JUDGMENT S.K. Kaul, J. (for self and for Prem Prakash) 1. This appeal by Prem Shanker is directed against his sentence and conviction to undergo imprisonment for life u/s 302/149 IPC, one years' R. I. u/s 147 IPC, 5 years' R. I. u/s 365/149 IPC, five years R. I. u/s 324/149 IPC and six month's R. I. u/s 323/149 IPC the sentences, however, were ordered to run concurrently by the learned Additional Sessions Judge, Hardoi. 2. One Ram Laraite has a house in village Mansoor Nagar. This house opens on the north. His chaupal lies at a distance of 2 to 3 paces and it is to the west of the main door of the aforesaid house. There is a courtyard in his house and in the west of that courtyard there are kotharis. To the north of the aforesaid courtyard is a chappar. The eastern wall of Ram Laraite's house is about three and half feet in height. A path runs east-west and is to the north of his house. This path takes a turn towards south from the north east corner of his house. The house of Arjun Lai also opens in the south and it lies in front of the house of Ram Laraite, being situate across the path way. Ram Krishan is father of Ram Laraite. Virendra, Ram Prakash, Om Prakash, Raj Kumar and Ved Prakash are sons of Ram Kisjjan. Shyama Kumar was also a son of Ram Kishan. Smt. Ram Sri is wife of Ram Laraite. At the time of this occurrence, Shyama Kumar was aged 18 years, while Virendra was aged 21 years. The remaining sons of Ram Kishan were, however, minors. One Miththu, a workman working at brick kiln at Hardoi was also sleeping at the house of Ram Laraite in the relevant night. The present accused Appellant, Prem Shanker, has got two brothers, namely, Shiv Shanker and Hari Shanker. Ram Swarup is their father. Puttu Lal is brother of Ram Swarup. Prem Shanker, Shiv Shanker, Hari Shanker, Puttu Lal and Om Prakash along with Lal Bihari also reside in village Mansoor Nagar. Darbari and Bhagwan Din, who are real brothers, are residents of village Tilak Purwa, which lies at a distance of about one and a half miles from village Mansoor Nagar. Puttu Lal is brother of Ram Swarup. Prem Shanker, Shiv Shanker, Hari Shanker, Puttu Lal and Om Prakash along with Lal Bihari also reside in village Mansoor Nagar. Darbari and Bhagwan Din, who are real brothers, are residents of village Tilak Purwa, which lies at a distance of about one and a half miles from village Mansoor Nagar. The present Appellant as well as the other accused noted above, who were acquitted by the learned Additional Sessions Judge and with whose cases we are not concerned inasmuch as no appeal against their acquittal has been filed, were well known to the eye witness examined in this case. It is alleged that 10 or 12 days previous to this occurrence, Virendra, brother of Ram Laraite, had kidnapped Vishuna Kumari, sister of Shiv Shanker accused of this case. Report of this kidnapping was lodged at P. S. Kotwali on 3rd of December, 1971, against Virendra and three others. 7 or 8 days subsequent to the aforesaid kidnapping, Shiv Shanker and Darbari accused had gone to Ram Laraite. They had complained about the overt act done by Virendra and had warned that if Vishuna Kumari was not returned, they would massacre everyone in his family and would also abduct his wife. This kidnapping of Vishuna Kumari, according to the prosecution, prescribed a motive for the accused, including the present Appellant, to commit the offence with which the present Appellant and the co-accused were asked to stand trial. 3. The prosecution story now reads in this way that in between the night of 14 & 15--12--1971, Ram Laraite along with his wife Smt. Ram Sri and his son, about three months old, together with Shyama Kumar was sleeping in the Kothari. A Lantern was burning there. Ram Laraite's mother and his other brothers were sleeping underneath the chappar inside the house. Ram Kishan and Miththu were sleeping in the Chaupal. Some miscreants are said to have scaled the eastern wall of the house of Ram Laraite. They had opened the main door on account of which the inmates of the house had woken up. The miscreants had also broken open the doors of the Kothari where Ram Laraite was sleeping and this kothari was entered by the present Appellant accompanied by several other persons including Shiv Shanker, Bhagwan Din, Hari Shanker, Darbari, Om Prakash and Lal Bihari. The miscreants had also broken open the doors of the Kothari where Ram Laraite was sleeping and this kothari was entered by the present Appellant accompanied by several other persons including Shiv Shanker, Bhagwan Din, Hari Shanker, Darbari, Om Prakash and Lal Bihari. Shiv Shanker and Lal Bihari were said to be armed with guns. Bhagwan Din and Darbari were armed with pistols, Prem Shanker the present Appellant, Hari Shanker, Om Prakash and Puttu Lal were armed with Lathis, the unknown persons, who accompanied this party, were farmed with Kantas. All these persons were said to have caught hold of Smt. Ram Sri and started dragging her outside. The alarm raised by Ram Laraite, Smt. Ram Sri, Shyama Kumar, Ram Kishan and Miththu had brought several persons to the spot. Ram Kishan and Shyama Kumar as well as Miththu tried to obstruct the accused from forcibly abducting Smt. Ram Sri and thereupon Ram Kishan and Shyama Kumar were given Lathi blows and blows with the butt ends of the guns. Shyama Kumar had actually tried to release Smt. Ram Sri from the clutches of the accused whereupon 2 or 3 shots were fired by the accused on account of which Ram Laraite, Ram Kishan, Miththu and Shyama Kumar got firearm injuries. Shyama Kumar fell down. Ultimately the accused managed to drag away Smt. Ram Sri along with her child, three months old, and the party went towards east. Several persons had been attracted to the scene of occurrence on hearing hue and cry like Arjun Lal, Dwarika, Suresh and Shambhu Dayal, and they had witnessed the occurrence. After the departure of the accused, Shyama Kumar was removed in the Chaupal and there he breathed his last. Out of fear, no one dared to go to lodge F. I. R. Ram Laraite's uncle, Bhagwat Sahai, was summoned from Abdul Purwa a Mohalla in the city of Hardoi and on his arrival F. I. R. Ext. Ka. 5 was prepared in the morning and the same was lodged by Ram Laraite at Police Station Pihani on 15th December, 1971, at 9.30 a.m.. In this F. I. R. the names of alt the accused, including Prem Shanker, were noted as having taken part in this incident. The motive for this occurrence was also clearly mentioned. Ka. 5 was prepared in the morning and the same was lodged by Ram Laraite at Police Station Pihani on 15th December, 1971, at 9.30 a.m.. In this F. I. R. the names of alt the accused, including Prem Shanker, were noted as having taken part in this incident. The motive for this occurrence was also clearly mentioned. The weapons carried by the accused were also mentioned and that the abduction of Smt. Ram Sri along with the child was also noted. The names of the injured were also noted in the F. I. R., and it was further noted that Shyama Kumar had already died. The names of the witnesses, who had come to the scene of occurrence, were also given. Investigation was taken up by Sheo Lakhan Singh, Sub-Inspector who reached the spot at about 1 P.M. on 15th December, 1971. He found the dead body of Shyama Kumar at Chaupal. He prepared an inquest report and then sealed the dead body, and sent it for autopsy. He took possession over blood stained Kothri and pual, and after sealing them in separate bundles, prepared a memo. He inspected the spot and prepared a site plan. He found the two lanterns in working order. He found on the spot three spent cartridges, two big and 30 small pellets, some tiklis and some wads. He took possession over these and after sealing them prepared a memo. He made a search for the accused, but found them absconding. He deputed informers to trace out Smt. Ram Sri. The autopsy upon the dead body of Shyama Kumar was done by Dr. Bilgrami, Medical Officer, Police and Jail, on 16th December, 1971, at 1 p.m.. The following ante mortem injuries were found upon the dead body. * * * * * 4. The internal examination revealed pleura to be perforated on the right side through and through. Right lung was pierced through and through, cavity was full of blood and one shot was recovered. Peritoneum was pierced, small intestines contained some facecal matter. Large intestines were full of facecal matter. Liver was lacerated. Bladder contained two ounces of urine. According to Dr. Bilgrami, death was caused due to shock and haemorrhage caused by firearm injuries which, in his view, were sufficient in the ordinary course to cause death. 5. Ram Kishan, Miththu and Ram Laraite were sent for medical examination. Large intestines were full of facecal matter. Liver was lacerated. Bladder contained two ounces of urine. According to Dr. Bilgrami, death was caused due to shock and haemorrhage caused by firearm injuries which, in his view, were sufficient in the ordinary course to cause death. 5. Ram Kishan, Miththu and Ram Laraite were sent for medical examination. The following injuries were found upon Ram Kishan by Dr. Dixit who examined him on 15th December, 1971 at about 1 P.M. : * * * * * 6. According to Dr. Dixit, injury no. 6 was grievous, other injuries were simple. Injuries nos. 1 to 7 and 10 were caused by some blunt weapon like lathi. Injury no. 8 was caused by firearm. Injury no. 9 was due to injury no. 8. 7. Miththu had the following injuries : * * * * * 8. According to Dr. Dixit, who examined him, all the injuries except injury no. 5 were simple. Injury no. 5 was kept under observation. The injuries were caused by some blunt weapon like lathi. 9. Ram Laraite had the following injuries which were also examined by Dr. Dixit : s * * * * * 10. According to Dr. Dixit, these injuries were simple. Injuries 1 to 3 were caused by some blunt weapon like lathi. Injury no. 4 was caused by pellet of a firearm. 11. In view of Dr. Dixit, the duration of the injuries of the three injured noted above, was half to one day old. 12. The Investigation Officer, on 16th December, 1971 reached near village Kuinya and then he received an information that the present Appellant along with his three companions had gone with a woman towards Gadnapur minor canal in Gadnapur village. The Investigating Officer, therefore, proceeded towards that direction, but when he did not find these persons beyond Gadnapur and since it was a cold night, he sat himself in front of the door of Heera in village Jagatpur in front of burning fire. At that place, he called Indal, Hori Lal, Tula Ram, Dalara etc. of the village and talked to them about night petrol. At about 4 A.M., he heard shouts of wailing of a child as well as shrieks of a woman, and accompanied by the witnesses, he rushed towards the direction of the shouts. At that place, he called Indal, Hori Lal, Tula Ram, Dalara etc. of the village and talked to them about night petrol. At about 4 A.M., he heard shouts of wailing of a child as well as shrieks of a woman, and accompanied by the witnesses, he rushed towards the direction of the shouts. He had a torch, and when the party reached near, they found a person trying to drag the woman and upon challenge, that person, after leaving the woman, tried to run, but ultimately, he was apprehended after he was subjected to a wild beating. The interrogation of that person revealed that he happened to be the present Appellant, and the woman, who was found there, was found to be Smt. Ram Sri along with her young child. He brought the present Appellant and the woman along with the child to the door of Heera and there he prepared a recovery memo. Ext. Ka. 6 which was duly witnessed and also bore signatures of the present Appellant. He then interrogated witnesses of recovery then and there and also interrogated the present Appellant and Smt. Ram Sri. He then prepared a site plan and thereafter, accompanied by the present Appellant, Smt. Ram Sri and her child, he came to P. S. Pihani where handed over the recovered woman as well as the Appellant about which a note was duly made in the G. D. Vide Ext. Ka-32. It may be noted here that the woman was handed over to Bhagwat Sahai on 17th December, 1971, about which a supurdginama Ext. Ka-19 was prepared. Bhagwan Din surrendered in the Court on 10th May, 1972. All the other remaining accused surrendered in the Court on 18--1--1972. Subsequent to the transfer of sub-Inspector Sheo Lakhan Singh, investigation was taken up by sub-Inspector Onkar Nath Yadav. He interrogated the accused, and after completing investigation, a charge-sheet was submitted against all the accused, and on that basis, the present Appellant as well as those other accused were asked to stand their trial under charges 147, 148, 365, 325, 324, 323/149 and 302/149 IPC. We are not concerned in this case with the defence of the other accused inasmuch as they have been acquitted by the learned Additional Sessions Judge and no appeal against their acquittal has been preferred. 13. We are not concerned in this case with the defence of the other accused inasmuch as they have been acquitted by the learned Additional Sessions Judge and no appeal against their acquittal has been preferred. 13. The defence of the present Appellant was that he had nothing to do with this occurrence and that he was falsley implicated in this case on account of enmity. He denied that he was arrested along with the lady, Smt. Ram Sri. He contended that two constables had arrested him from his house on 16th December, 1971, and had taken him to the police station where he was put behind lock. 14. The learned Additional Sessions Judge gave benefit of doubt to the other accused, but found that the prosecution story was fully proved so far as the present Appellant is concerned and, as such, he sentenced and convicted him as above. 15. Feeling aggrieved, he has come up in appeal to this Court. 16. The learned Counsel for the Appellant submitted before us that since the prosecution witnesses of this case had been discarded vis-a-vis the other co-accused who were named and who were also standing trial, their testimony should not be believed against the present Appellant as well on the same reasoning the analogy. It was next submitted that there was no evidence to show that the present Appellant was a member of unlawful assembly which had entered the house of Ram Laraite and had committed various offences inside the house. Consequently, according to his submission, if at all, charge u/s 365 IPC alone could be said to have been made out in case recovery of woman in the company of the present Appellant was believed. No other charges can be said to have been proved. It was finally submitted that the recovery of the woman in the company of the present Appellant was doubtful inasmuch as this woman had, according to the prosecution, remained at the police lock up right from 16th to 17th December and since on 16th December the present Appellant had been brought to the police lock up, it was easy for the police to have shown as if the woman was recovered in his company although she may have been left by the miscreants and she may have come to the village on her own without being escorted by anybody. 17. 17. We have given our anxious consideration to all these submissions, but in our view, these submissions have no force. 18. So far as the motive for this occurrence is concerned, it admits of no doubt. Ext. Ka. 20 is report lodged on 3rd of December, 1971 at P. S. Pihani by Shiv Shanker, son of Ram Swarup, against Ram Pratap, Virendra Kumar and two others in which it was clearly mentioned that Vishuna Kumari, a girl of 16 years, had been kidnapped by the accused persons on 2nd of December, at 8 A.M. from the village. Shiv Shanker happens to be brother of the present Appellant and has been made accused in this case. Virendra Kumar happened to be admittedly brother of Ram Laraite. The very fact that Smt. Ram Sri was forcibly abducted from the house of Ram Laraite in this incident which occurred at the house of Ram Laraite, clearly shows that this occurrence was a retaliation for the kidnapping of Vishuna Kumari. Ram Laraite spoke about this motive and, in our view, motive for this occurrence is amply proved. 19. To prove the prosecution story, we find that the witnesses examined were Ram Laraite PW 1 Smt. Ram Sri PW 2 Ram Kishan PW 3 and Indal PW 4, apart from Sheo Lakhan Singh, Investigating Officer. We may note here that Indal is a witness about the recovery of this woman, Smt. Ram Sri, from the clutches of the present Appellant. Smt. Ram Sri is a witness for the initial incident that took place at the house of Ram Laraite. She also speaks about her recovery and the fact that the present Appellant was responsible for her abduction. 20. Before discussing their testimony, we would like to mention that there is no dispute or serious cross-examination or controversy about the manner in which Shyama Kumar received fatal injuries at the house of Ram Laraite and in that very connection, the three injured also received injuries. There is positive testimony of the witnesses examined on this aspect and this is corroborated by the autopsy and injury reports. 21. There is positive testimony of the witnesses examined on this aspect and this is corroborated by the autopsy and injury reports. 21. In our view, there can be no doubt that an assault was launched at the house of Ram Laraite by an unlawful assembly of several persons, the primary object of which was to abduct Smt. Ram Sri, and in the commission of that object not only the assembly had caused fatal injuries to Shyama Kumar, but had also caused injuries to Ram Laraite, Ram Kishan and Miththu as well as had succeeded in abducting Smt. Ram Sri along with her child of three months. The very fact that this child of three months was also taken away along with the woman clearly gives an inkling to the object of unlawful assembly and leaved no room for doubt that whosoever was involved in this incident, was concerned with a retaliatory act in consequence of kidnapping of Vishuna Kumari that had taken place a few days earlier. 22. To prove complicity of the present Appellant, we find that Ram Laraite, Smt. Ram Sri and Ram Kishan were examined. We are leaving out, for the moment the testimony of Indal which we will discuss at appropriate stage when we take up the matter of recovery. It is true that the learned Addl. Sessions Judge did not place implicit reliance upon the testimony of Ram Laraite and Ram Kishan about the complicity of the other named accused on the ground that the complicity of those accused had not been corroborated by independent witnesses and other circumstances and it was not safe to rely upon the statements of these two witnesses alone, specially when there was positive enmity between the two parties and when the other named witnesses were not produced although the prosecution had given positive evidence that these witnesses Arjun Lal, Dwarika, Suresh and Dayal had filed affidavits disclaiming their presence. 23. Before taking up the question whether the testimony of these two witnesses should be excluded in toto vis-a-vis the present Appellant or not, we would like to mention as to what these two witnesses had stated about the complicity of the present Appellant. There can be no doubt that both these witnesses were definitely present at the house when this incident took place because both of them received injuries. There can be no doubt that both these witnesses were definitely present at the house when this incident took place because both of them received injuries. It is equally true that Ram Laraite is the best person amongst the inmates of the house to know which of the assailants, in case he knew them, had dragged out his wife because looking to the month, it is clear that Ram Laraite along with his wife and the small child, as was the prosecution case, must be sleeping together inside the kothari. Ram Laraite stated on oath that in the relevant night, the present Appellant together with some other named accused as well as 6 or 7 unknown persons had come inside the kothari and had then dragged his wife out. In cross-examination no doubt, the witness stated that in the Court of the committing magistrate he had given a statement that in the night he had not mentioned the names of the assailants either to his father or to Miththu, and from this conduct the learned Counsel for the Appellant urged that his testimony regarding complicity of the present accused should be rejected. The witness further gave statement in cross-examination that after the departure of the badmashes, 10 or 15 persons had enquired from him about the incident and although he narrated the incident, he had not told the names of badmashes to them. On this portion of the statement, the counsel wanted to rely for the proposition that his testimony should be rejected altogether. We would, however, like to mention that in the F. 1. R. lodged by him it was specifically mentioned by him that the present Appellant and other named accused had dragged his wife out. As regards Ram Kishan PW 3 he confessed in cross-examination that on shouts being raised when he went to door of his house, he found his daughter-in-law to be dragged out by 4 or 5 persons, but he could not identify who were those persons and that they were not known to him. The witness, however, had stated that in the torch light he had identified the present Appellant as well as the other named accused. 24. The witness, however, had stated that in the torch light he had identified the present Appellant as well as the other named accused. 24. The question arises whether the testimony of these two witnesses and specially that of Ram Laraite has to be discarded in toto vis-a-vis the present Appellant as was argued by the learned Counsel for the Appellant or whether their testimony has to be accepted with caution provided it finds corroboration from unimpeachable evidence of Smt. Ram Sri PW 2 coupled with the fact of her recovery from the possession of the present Appellant soon after the commission of the crime so as to raise a presumption u/s 114 of the Indian Evidence Act that the present Appellant must be one of those who had perpetrated the crime of which he was asked to stand trial. In this connection, we would like to mention certain cases cited by the learned Counsel for the Appellant at the Bar. 25. In Nanhku Singh and Another Vs. State of Bihar, AIR 1973 SC 491 the Supreme Court observed in paragraph 3 that : In view of the admitted ill feelings between Mahika Singh and Mohan Singh and some of the witnesses including In-dradeo Singh and Chait Ahir, the evidence of the eye witnesses has to be scrutinised carefully. 26. In Balaka Singh v. State of Punjab AIR 1975 SC 1968 the principle laid down by the Supreme Court was that in appreciation of the evidence, the Court must make an attempt to separate grain from the chaff, the truth from the falsehood yet this could only be possible when the truth was separated from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are inextricably mixed up that in the process of separation the Court will have to reconstruct an absolutely new once for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply. In that case, it appears that four persons were acquitted on certain reasons by the High Court. Prosecution party was inimical to the accused. In that case, it appears that four persons were acquitted on certain reasons by the High Court. Prosecution party was inimical to the accused. No distinction between one set of accused could be made vis-a-vis the other and since it was possible to sift the grain from the chaff, the Supreme Court observed that the same benefit was to go to the convicted accused as well. There can be no dispute with this proposition enunciated by the Supreme Court, but as we shall presently discuss, in this case, the case of the acquitted accused is distinct from the case of the Appellant because over and above, the testimony of PWs 1 and 3, we have testimony of PW 2 coupled with factum of her recovery from the custody of the Appellant soon after the commission of the crime. We may note here that even in cases where a witness is declared hostile, the Supreme Court has laid down this proposition that it is open to a Court to rely upon certain portions of a hostile witness in testimony as corroborating the prosecution evidence given through other unimpeachable nature. That being so, we are not prepared to accede to this submission made before us by the learned Counsel for the Appellant that simply because the trial Court as a rule of abundant precaution without corroboration of independent evidence did not think it safe to convict the co-accused on the testimony of PWs 1 and 3, it should be held that on the same analogy the testimony of PWs 1 and 3 should be excluded vis-a-vis the present Appellant although the testimony of these two witnesses as noted above, to our minds, stands corroborated from the testimony of PW 2 as well as from the factum of her recovery from the custody of Appellant soon after the commission of crime. 27. We will now discuss the testimony of PW 2 Smt. Ram Sri in this connection. Smt. Ram Sri is a witness who has given a forthright statement. She stated on oath how on the relevant night she was sleeping in the kothari along with her husband Ram Laraite, Shyama Kumar and a child of three months. 27. We will now discuss the testimony of PW 2 Smt. Ram Sri in this connection. Smt. Ram Sri is a witness who has given a forthright statement. She stated on oath how on the relevant night she was sleeping in the kothari along with her husband Ram Laraite, Shyama Kumar and a child of three months. Some badmashes came inside the kothari and started dragging her away along with her child and then she was tried to be saved, not only her husband and Shyama Kumar were beaten, but her father-in-law and Miththu also were beaten who has come at the door of the house. She then went on to say that after firing, she was taken to the east by the badmashes up to the pucca road and thereafter four persons took her to a sugar cane field. In the sugar cane field only one person remained with her, while the three persons went away. That person remained with her throughout the night. Next morning, again she was kept there and in the night again that person, accompanied by three persons, took her to a grove and there, when she suspected that abadi was near, she shouted and so did her child whereupon some person, accompanied by police came there and out of those four badmashes, the present Appellant was arrested. She was taken to the police station along with that badmash and, ultimately she was given to the custody of her chachiya sasur. She then categorically stated that the person who was arrested along with her and the person who continued to stay with her for two nights in the sugar cane crop was the present Appellant. She frankly confessed that she did not know him from before, nor did she know him by face previous to this occurrence in asmuch as she was a pardanashin woman. She stated that she came to know his name in the night as other badmashes had called him by that name. She was also able to pick up the present Appellant amongst all the accused present in the Court as one who had remained with her throughout in the sugar cane field and who was arrested along with her in the grove. We would like to mention that inspite of sufficient cross-examination, no infirmity could be shown in her testimony. She was also able to pick up the present Appellant amongst all the accused present in the Court as one who had remained with her throughout in the sugar cane field and who was arrested along with her in the grove. We would like to mention that inspite of sufficient cross-examination, no infirmity could be shown in her testimony. It was tried to be argued before us that this lady said as if there were four badmashes in all while Indal and the sub-Inspector said as if in the torch light they had seen only one person dragging this woman. This was argued to be a contradiction, but we do not find any substance in this argument for the simple reason that it is possible that as soon as hue and cry was raised by this woman and her child and the badmashes found the arrival of somebody from the direction of the abadi, three of them managed to make good their escape leaving the present Appellant who was found by the rescue party to be actually dragging the woman. It is not the case of a broad daylight occurrence of recovery wherein the rescue party could not have missed the number of the miscreants. 28. The next contradiction tried to be suggested before us was if this witness denied that there was any likhaparhi at the spot were she was arrested, but this is again not a contradiction because the evidence of Indal and the Investigating Officer is that likhaparhi took place at the house of Heera. No question was put to this woman whether likhaparhi took place at the house of Heera or in the abadi of the village. It was then urged that the witness said that there was likhaparhi at the thana and she was made to sign the same and that five per-sons had come to the thana and after likhaparhi they had gone away, but once again, the questions were mixed up. There was some writing at the thana in connection with handing over of this woman to her chachiya sasur. There was some writing at the thana in connection with handing over of this woman to her chachiya sasur. It is possible that some persons from the village might have accompanied the lady when she went to the police station so and to ensure that no mischief was done and that being so, we do not think from this statement of the lady any cloud upon her recovery in the company of the Appellant can be cast. It was urged finally that this lady was handed over next morning to the chachiya sasur and, according to the submissions of the counsel, her handing over was deliberately delayed so that in the mean time the accused may be brought in custody to the police station so as to be shown to this lady. This argument does not appeal to us. No question was put to the Investigating Officer why her handing over was delayed. It may be that the police probably thought of getting the lady medically examined. The fact remains that once no question was put to the Investigating Officer on the score, the argument cannot be based merely on conjectures and surmises. It is true that the Appellant said that he was brought from his house on 16th of December but to us it appears that since he could not deny his detention at the police station on 16th, this defence had to be taken up. It should be remembered that it was positive statement of the Investigating Officer that he had tried to search for the accused in the village on the 15th but none of them could be found. It is impossible to hold that in face of a murder having been committed at the house of Ram Laraite, in face of several persons having received gun shot injuries and having come to know that an F. I. R. had been lodged, the present Appellant alone would still be found at the house on 16th specially when the object of this unlawful assembly was to abduct Smt. Ram Sri. The Appellant belongs to the family of an aggrieved person who wanted to take revenge for kidnapping of young girl of the same family. That being so it is clear that this accused was not brought from her house, but was arrested along with this woman, Smt. Ram Sri, in a different village. The Appellant belongs to the family of an aggrieved person who wanted to take revenge for kidnapping of young girl of the same family. That being so it is clear that this accused was not brought from her house, but was arrested along with this woman, Smt. Ram Sri, in a different village. In this connection we would like to take up the testimony of Indal PW 4. Indal PW 4 is a resident of Jagtapur. He categorically stated that the Sub-Inspector had come to his village and was at the house of Heera where he and others were called and while all of them were engaged in the talk, they heard the shouts coming from the direction of the grove of Heera and when all of them rushed there and flashed the torch, it was found that one person was dragging this woman and ultimately after chase, the present Appellant was arrested and then he disclosed his name and address. Thereafter, the Appellant, the woman along with the child and all of them came back to the door of Heera and there the memo Ext. Ka-6 was duly prepared. Thereafter the Sub-Inspector along with woman and the Appellant went to the police station. This witness has stood the test of cross-examination. There is no enmity between this witness and accused. He is not partial to the prosecution as well. No doubt, in cross-examination, the witness said that (sic) Sub-Inspector had not interrogated him or anybody at the village, but we do not think this should be treated as contradiction simply because the Investigating Officer said that he had interrogated witnesses of recovery at the village. This was a very minute circumstance. After all, the incident took place in the month of December 1971 and the witness was giving his statement in January, 1973. Such minute details are not expected to be remembered by simple villagers. We may however, note here that a positive question was put to this witness as if Prem Shanker was brought to the village in a state of arrest which the witness categorically denied. This would go to show that different explanations were being given to explain the arrest of the accused on 16th December. We in this connection would like to mention the statement of the Investigating Officer who also was a witness of this recovery. This would go to show that different explanations were being given to explain the arrest of the accused on 16th December. We in this connection would like to mention the statement of the Investigating Officer who also was a witness of this recovery. We do not find anything in his testimony to hold that a manufactured story was being put forward and that a twist was being given to this case. It is difficult to believe although the object of unlawful assembly was to abduct this woman, she would be left in a different village all alone by those who had actually abducted her so that she may on her own go to this village Jagtapur. On the other hand the testimony of Smt. Ram Sri and Indal can be implicitly relied upon to hold that this present Appellant was not only present right from the time of abduction of this woman from her house up to the time of her recovery in village Jagtapur, but, as stated by PWs 1 and 3, he had accompanied other assailants as well to (sic)ommit the offence in order to abduct is woman. In this connection, we would like to mention Section 114 of the Indian Evidence Act. This section reads thus : 114. The Court may presume the existence of any fact which it thinks to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. 29. Now, the presumption has been taken to be raised against man who is found in possession of stolen goods soon after theft, that either he is the thief or has received the goods knowing them to be stolen unless he could account for his possession. This proposition has been extended even to cases of murder. In Bhagwan v. Emperor AIR 1929 Oudh 190, the Bench observed that : Where the person admittedly knew that his wife was murdered shortly after midnight and yet he made no report to the police station, nor made any attempt to find out who killed his wife, his conduct was unnatural and may lead to the conclusion that he himself was the murderer. 30. We may note that Section 114 of the Indian Evidence Act was relied upon for this prosecution. 31. 30. We may note that Section 114 of the Indian Evidence Act was relied upon for this prosecution. 31. The Supreme Court in the case of Tulsiram Kanu Vs. The State, AIR 1954 SC 1 observed at page 3 that : Apart from this confession the judgment of the High Court is based on the identification of gold ornaments. The Sessions Judge recognised that if the ornaments had been proved to have been the property of the deceased it would have been possible to infer that, the accused was the person who committed the murder and robbed the murdered man. In our opinion, this reasoning under the circumstances of the case, is unsound. The alleged murder took place on 26--5--1949 and assuming that the ornaments were traced to the accused at the end of October 1949, no legitimate inference could be drawn about the Appellant being the murderer of the deceased. The important factor which appears to have been overlooked is that five months had elapsed between the date of the alleged murder and the tracing of the ornaments. The presumption permitted to be drawn u/s 114, ill. (a), Evidence Act, has to be read along with the important time factor. If ornaments or things of the deceased are found in the possession of the person soon after the murder, a presumption of guilt may be permitted. But if several months expire in the interval, the presumption my not be permitted to be drawn having regard to the circumstances of the case. This criticism applied equally to the reasoning of the High Court for its conclusion. 32. In another case, Supreme Court in the case of Wasim Khan v. State of Uttar Pradesh 1956 SC 400 discussed the proposition of Section 114 of the Indian Evidence Act and, relying upon 17 C WN 1077; 13 Mad. 426; 1930 Cal. 379; 1950 Mad. 309 and 1949 Nag. 277, observed at page 403 that: The Appellant was found in possession of the deceased's goods three days afterwards. The Appellant made no effort to trace the whereabouts of the deceased or lodge information of his disappearance from the bullock cart. The Appellant has told the Court that some people called the deceased while the cart was on its journey and the deceased told him to wait for him at a certain place. He waited until 4 a.m. but the deceased never turned up. The Appellant has told the Court that some people called the deceased while the cart was on its journey and the deceased told him to wait for him at a certain place. He waited until 4 a.m. but the deceased never turned up. This should have aroused his suspicion and he should have informed the police or some one in authority about it. He says he informed the Mukhia and all the people about it. Neither the Mukhia nor anyone ha been examined by the Appellant to support his story. Reliance was placed on the statement of Iftikhar and PW 7 who spoke of a rumour in the village that the Appellant had brought the property of a man on his cart who had gone away and that this rumor had been spread by the Appellant. It is clear, however, that the witness was not speaking of this from his personal knowledge and his statement is not legal evidence. On the other hand, if really the Appellant had spread such a rumour there is no adequate explanation for his failure to inform the authorities. He knew he was in possession of a large number of articles belonging to the man who had hired "his cart but had disappeared in very strange circumstances. 33. It is, therefore, clear that in this case, the Appellant was found soon after the commission of this crime in the custody of Smt. Ram Sri who was abducted from her house and whose abduction was the object of the unlawful assembly which had committed murder of Shyama Kumar and which had caused injuries to three persons. No explanation was given by the present accused for being found in the company of Smt. Ram Sri soon after this occurrence. In fact, he denied the recovery. That being so, we find that on basis of evidence discussed above, there can be no doubt that the resent Appellant was guilty of all the charges of which he was ultimately convicted and sentenced by the trial Court. 34. As a result, we would reject the appeal and maintain sentence and conviction awarded to the Appellant on all the counts. The sentences, however, awarded to him shall run concurrently. The Appellant is on bail. He shall surrender and serve out the sentence awarded to him. The Chief Judicial Magistrate, Hardoi, shall send compliance report within two months.