J. S. VERMA, J. ( 1 ) ALL the six respondents were tried for offences punishable under sections 14r. 364 and 302, read with section 149, Indian Penal Code. They have been acquitted. Hence this appeal by the State against their acquittal. ( 2 ) IN brief, the prosecution case is that on 27-4-1973 the respondents, with few others led by respondent No. 1 Vinod alias Satyabrat Chaturvedi, constituted an unlawful assembly, armed with lethal weapons, including Guns, with the common object of committing the murder of Brindaban son of Sunderlal Ahir (P. W. 1), resident of village Buda in district Chhatarpur and having abducted the said Brindaban from his house at about 4. P. M. that day, took him to the adjacent village Ramgarh, at a distance of about one km. and there inflicted multiple injuries to him causing his death the same night. On these allegations, the aforesaid offences are alleged against the respondents. ( 3 ) INITIALLY only five persons, namely, Sukla, Ballu, Karanjua, Kadori and Kashi Prasad were prosecuted for these offences, leaving out the respondents, in Sessions trial No. 107 of 1973, decided on 29-1-1974 by the Additional Sessions Judge, Chhatarpur, and all of them were acquitted. It appears that in the earlier trial, it was observed that a fresh investigation as necessary to enable prosecution of the culprits. This observations made in the earlier Sessions trial as well as the complaint made by Sunderlal (P. W. 1), father of the deceased Brindaban to the Chief Minister of the State as well as the Prime Minister that respondent No. 1 Vinod alias Satyabrat Chaturvedi being son of Baburam Chaturvedi, then a Cabinet Minister in the State, was being shielded, led to a fresh investigation of the case by the C. I. D. and consequently to prosecution of the respondents in Sessions Trial No. 135 of 1978 on the basis of fresh challan filed on 20-6-1978 in the court of the Additional Sessions Judge, Chhatarpur. The trial court has acquitted all the respondents, taking the view that the case against the respondents is not proved beyond doubt by reliable evidence but while doing so, it has expressed regret/that such a dastardly crime committed in broad-day light in full public view is going unpunished primarily on account of the lacunae introduced during the earlier investigation. The trial court has acquitted all the respondents, taking the view that the case against the respondents is not proved beyond doubt by reliable evidence but while doing so, it has expressed regret/that such a dastardly crime committed in broad-day light in full public view is going unpunished primarily on account of the lacunae introduced during the earlier investigation. According to the trial court, this infirmity introduces an element of doubt about identity of the culprits. ( 4 ) THE question, therefore, is whether this view taken by the trial court is justified and we should affirm the conclusion that the prosecution evidence has failed to establish identity of the offenders as well as commission of any offence by them. ( 5 ) IN village Buda the deceased Brindaban Ahir lived with his wife Nanhibai (P. W. 24), separate from his father and other brothers. The house in which his father Sunderlal (P. W. 1) lived with other members of the family was at a maximum distance of about 100 paces from the house of the deceased Brindaban had purchased certain land under sale deed (Exs. P-6, P-7 and P-8), executed by Manjua, Dasua and Karanjua in his favour, in which the respondents particularly respondent No. 3 Sukhnandanlal alias Sukki Mishra of the nearby village Ramgarh and relative of respondent No. 1 Vinod Chaturvedi was interested. There was dispute between them for this reason. At about 4 P. M. on 27-4-1973, while Brindaban and his wife were in the house, about 8 to 10 persons came in a jeep to the house of Brindaban. Afterstopping the jeep in front of the house of Brindaban they forced or at least induced Brindaban to accompany them to the adjacent/village Ramgarh at a distance of only about one km. from village Buda, on the false pretext of getting his land dispute with Mishras of Ramgarh settled there. Brindaban was apprehensive of going to village Ramgarh and resisted the suggestion at which he was told by them that he could remain at some distance from village Ramgarh, which his adversaries would be brought there to settle the dispute. The persons who came in the jeep were armed with guns and lathis and they managed to take Brindaban with them in the jeep inspite of Brindabans resistance. The jeep was then seen going towards the adjacent village Ramgarh with all these persons and Brindaban. The persons who came in the jeep were armed with guns and lathis and they managed to take Brindaban with them in the jeep inspite of Brindabans resistance. The jeep was then seen going towards the adjacent village Ramgarh with all these persons and Brindaban. A couple of hours later, gun shots were heard in the direction of village Ramgarh. Tikaram (P. W. 29), as Head constable, why was posted alone with a police party near that village on account of apprehension of some trouble went to enquire. He then found Brindaban badly beaten up with multiple injuries on his person, bound with a rope, lying on open ground with some armed person, named Sukla, Ballu, Karanjua, Kadori and Kashi Prasad (the persons who were prosecuted for the offence in the earlier Sessions Trial near him. Head Constable Tikaram (P. W. 29) then took the injured Brindaban along with these other person, who were present there to Chhatarpur and lodged the report (Ex. P-22) at Kotwali Chhatarpur at 11. 45 P. M. the same night, Brindaban was taken to the hospital at Chhatarpur at about 12 midnight where he was attended to by Dr. K. D. Khare (P. W. 20 ). Brindaban was fully conscious and Dr. Khare examined him out he became comatose at about 12. 15 A. M. and died at about 12. 30 A. M the same night. Accordingly to Dr. Khare, Brindaban had told him that he has been beaten in Ramgarh but before his dying declaration could be recorded by a Magistrate, as suggested by him, Brindaban had died. Ataullah (P. W. 9), a police constable, and Md. Yakis (P. W. 28), a police Head constable, attached to Kotwali Chhatarpur, who were on duty when Brindaban was taken to Kotwali Chhatarpur and then to the hospital, where also present at that time. Accordingly, the facts that Brindaban was inflicted the multiple injuries sustained by him and mentioned hereafter at Ramgarh, to which place he had been taken in a jeep from his house at Buda in the aforesaid manner; he being fully conscious till midnight when he was taken to Kotwali Chhatarpur and then the hospital there; and Brindabans death at 12. 20 the same night as a result of those injuries, is beyond controversy. 20 the same night as a result of those injuries, is beyond controversy. The main controversy really is about the identity of the culprits and the offence, if any, proved against them, which, according to the trial court, could not be established. ( 6 ) THE post mortem on the dead body of Brindaban was conducted by Dr. Ganesh Borale (P. W. 7) on 28-4-1973 and his post mortem report is Ex. P-3. The injuries found during the post mortem were the following, namely: 1. Lacerated wound, 4 x 1, on the anterior and middle portion of the right lower leg. Bone piece protruding, right of wound compound fracture of tibia, right middle 1/3rd present. 2. Lacerated wound 1/2 x 1/2 x 1/2 deep, 2 above injury No. (1 ). 3. Abrasion 1/2 x 1/2 present of enterior aspect of right knee. 4. Swelling and deformity right lower and of lower leg present ole lower end of tibia present. 5. Bruise itt x 1/2 on right syfema present. 6. Bruise 2 x1 on anterior aspect of right forearm. Lacerated wound on lateral aspect and at the base of first phalynx of left index finger; on examination, fracture of distal end of metacarpal of index finger was found. Compound fracture of left tibia upper one-third with lacerated wound, 1/2 x 314, on an anterior aspect left lower leg, upper one-third portion was found. Abrasion 1 x 1/4 on the right buttock. Abrasion itt x 1/2 on the right side of back just below the costal marc ion. Swelling and deformity right forearm, on examination, fracture of lower end of ulna and radius right present. In all the injuries, there was extravasation of blood underneath the injuries and in the surrounding tissues. All the injuries were ante-mortem and were caused by hard and blunt objects. The death was on account of shock and haemorrhage due to multiple injuries and the multiple fractures. These injuries were on all the limbs as well as the back and buttocks and there were multiple fractures of the bones in all the limbs. It is obvious that these injuries had been inflicted by weapons such as lathi and butt of gun in a brutal assault made on the deceased Brindaban. These injuries were on all the limbs as well as the back and buttocks and there were multiple fractures of the bones in all the limbs. It is obvious that these injuries had been inflicted by weapons such as lathi and butt of gun in a brutal assault made on the deceased Brindaban. ( 7 ) THE prosecution evidence consists of the testimony of Sunderlal (P. W. 1) father of the deceased, Nathu (P. W. 2), Kalua (P. W. 3), Gourishankar (P. W. 13), Shivcharan (P. W. 14), Nanhibai (P. W. 24), widow of the deceased, and Jhallu (P. W. 23) brother of the deceased, to prove the abduction of Brindaban from his house at about 4 P. M. on 27-4-1973 by 8 to 10 persons, including the respondents, led by respondent No. 1 Vinod Chaturvedi. The testimony of Tikaram (P. W. 29) and Kalua (P. W. 3), coupled with Brindabants version to Dr. K. D. Khare (P. W. 20) that he had been assaulted in village Ramgarh, is relied on for proving the assault resulting in the aforesaid injuries to Brindaban after he had been tied with a rope shortly after he was abducted from his house in village Buda, in the manner stated. Some witnesses examined to prove the identity of Brindabants assailants at Ramgarh having turned hostile, the prosecution now relics on the testimony of police constable Ataullah (P. W. 9) read with the testimony of Dr. D. K. Khare (P. W. 20) and the police Head Constable Mohd. Yakis (P. W. 28), to prove a dying declaration made by Brindaban on reaching Chhatarpur that the assault on him at Ramgarh had been made by Vinod Chaturvedi (respondent no. 1) and his companions. It is in this manner that the prosecution claims to prove its case against the respondents that they, led by respondent No. 1 Vinod Chaturvedi, having abducted Brindaban from his house at village Buda on the evening on 27-4-1973 had taken him to the adjacent village Ramgarh and there bound him with a rope and inflicted the aforesaid injuries with lathis and butt of gun, causing his death after midnight at Chhatarpur in the hospital. ( 8 ) THE defence of the respondents in the trial court as well as in this appeal is that they been falsely implicated. ( 8 ) THE defence of the respondents in the trial court as well as in this appeal is that they been falsely implicated. The dispute is really about identity of the culprits and the manner in which Brindaban reached Ramgarh Shri R. N. Rai, learned counsel for the respondents reiterated the defendant suggestion in the trial court that the respondent No. 1 Vinod Chaturvedi had been falsely implicated on account of local political rivalry of Mahendra Kumar Manav with Vinod Chaturvedits father Shri Baburam Chaturvedi, who was a cabinet Minister in the State at the time of the incident and his mother, Smt. Vidyavati Chaturvedi, a member of Parliament of the ruling party for a considerable length of time. It is suggested that the name of Vinod Chaturvedi (respondent No. 1) was not even mentioned as one of the culprits till 29-4- 1 973, when it appeared for the first time in Ex. P-i, complaint of Sunderlal (P. W. 1) and Ex. P-9, a report sent by the Superintendent of Police, Chhatarpur to the higher authorities learned counsel for the respondents adds that the name of Vinod Chaturvedi (respondent No. 1) was introduced only on 29-4-1973 at the behest of Mahendra Kumar Manav, whose undue interest appears also from the material present on record to indicate that Manav had taken Sunderlal (P. W. 1) to the Chief Minister at Bhopal as also to the PrimeMinister Smt. Indira Gandhi in New Delhi, which led to reinvestigation and prosecution of the present respondents, even through they had not been prosecuted earlier. In short, the defence of tie respondent through is of false implication of respondent No. 1 Vinod Chaturvedi on account of the political importance of his parents. For the remaining respondents, no such reason was stated before us. Vinod Chaturvedi (respondent No. 1) is himself now a member of the Vidhan Sahba and Deputy Minister in this state. Shri Rai also suggested that the incident appears to have happened in the manner it was given out to Tikaram (P. W. 29) by the five persons tried in the earlier Sessions trial, when they met Tikaram near the injured Brindaban as Tikaram mentioned in his report (Ex. P-22) lodged at the Kotwali Chhatarpur. Shri Rai also suggested that the incident appears to have happened in the manner it was given out to Tikaram (P. W. 29) by the five persons tried in the earlier Sessions trial, when they met Tikaram near the injured Brindaban as Tikaram mentioned in his report (Ex. P-22) lodged at the Kotwali Chhatarpur. The version contained therein is that the earlier acquitted accused told Tikaram that Brindaban had come to village Ramgarh to recover a loan which he had advanced and on failure to recover the amount, he had fired a shot from a pistol which he was carrying and thereafter Brindaban had been over-powered and beaten. On this basis, Shri Rai contended that Brindaban had voluntarily gone-alone carrying a pistol to village Ramgarh to recover a loan and when he fired a pistol shot, be was over-powered and beaten with lathis by persons tried and acquitted earlier, namely, Sukla, Ballu, Karanjua, Kadori and Kashiprasad. ( 9 ) THE evidence pertaining to Brindabaos abduction from his house near about 4 P. M. on 27-4- 1973 as alleged by the prosecution, may now be considered. The direct evidence on this point consists of the testimony of Nanhibai (P. W. 24), widow of Brindaban, Sunder Lal (P. W. 1) father of Brindaban, Natthu (P. W. 2), Kalua (P. W. 3), Gaurishankar (P. W. 13), Shivcharan (P. W. 14) and Jhallu (P. W. 23), brother of the deceased Brindaban. Nanhibai (P. W. 24), widow of Brindaban, is the most natural witness on the point being present in the house with her husband Brindaban, when he went from the house in village Buda. Her consistent version is that 8 to 10 persons had then come in a jeep, who were carrying guns and lath is and they tried to induce her husband Brindaban to go with them to Ramgarh for settlement of his land dispute and that her husband was unwilling to go with them but he was forced to accompany they on this pretext and later pushed into the jeep and taken away in it by them. She has also stated that all the respondents were amongst those persons who has come in the jeep and taken away her husband with them. According to her, the leader of that party was Vinod Chaturvedi (respondent No. 1) who did most of the talking with her husband and he was carrying a gun. She has also stated that all the respondents were amongst those persons who has come in the jeep and taken away her husband with them. According to her, the leader of that party was Vinod Chaturvedi (respondent No. 1) who did most of the talking with her husband and he was carrying a gun. She has also said that amongst those 8 or 10 persons some were residents of Purwa (another name for village Ramgarh) she admitted that she did not know the name of Vinod Chaturvedi (respondent No. 1) at the time when he had come with others and taken away her husband, even through she recognized him by face, and his name became known to her thereafter. The fact that she consistently and correctly described Vinod Chaturvedi (respondent No. 1) by appearance before she started giving also his name along with that description, cannot be disputed and so also the fact that the identity of Vinod Chaturvedi (respondent No. 1) as leader of that party, who had abducted her husband Brindaban in the aforesaid manner, was disclosed by her prior to the Superintendent of Police, Chhatarpur, sending the report (Ex. P-9) to the higher officers on 29-4-1973. In fact, the argument on behalf of the respondents is that it was for the first time on 29-4-1973 and not earlier that the name of respondent No. 1 Vinod Chaturvedi was given out by these witnesses. We find Nanhibais consistent version to the effect that 5 to 10 persons, of whom some were residents of village Ramgarh, led by Vinod Chaturvedi (respondent No. 1) came in a jeep to her house and compelled her husband Brindaban to accompany them on the false pretext of getting his land dispute settled at Ramgarh inspite of Brindabans resistance; and those persons then went away in the jeep taking Brindaban with them in the correction of Ramgarh. ( 10 ) WE find no cogent reason for rejecting Nanhibais consistent version to this effect and in our opinion rejection of her testimony by the trial Court is totally unwarranted. The fact that Nanhibai had identified the five persons tried in the earlier sessions trial also as person present in that group, does not negative her present version because the persons tried earlier were only five she did not then say that those were the only persons who had taken away her husband. The fact that Nanhibai had identified the five persons tried in the earlier sessions trial also as person present in that group, does not negative her present version because the persons tried earlier were only five she did not then say that those were the only persons who had taken away her husband. There is thus no inconsistency with her earlier case diary statement or her statement in the earlier sessions trial on the question of identity of the present respondent No. 1 Vinod Chaturvedi and the total number of persons who had come with Vinod Chaturvedi and forcibly taken away her husband. We fail to see how any contradiction relating to the identity of Vinod Chaturvedi (respondent No. 1) as leader of that party, can be spelled out of her earlier statements Exs. P-18, P-19, P. 20 and P-21, when no such contradiction exists. The trial Court clearly erred in taking the view that her version is not consistent. At least the identity of Vinod Chaturvedi (respondent No. 1), whom she correctly described throughout and also named after she knew the name, cannot be doubted. ( 11 ) THE next witness on the point is Sunderlal (P. W. 1), father of Brindaban Admittedly, Sunderlal lived separately from Brindaban in a house at a distance of a maximum of 100 paces. There is, therefore, nothing unnatural about his being a witness to the incident. He has named all the respondents led by respondent No. 1 Vinod Chaturvedi who came along with some others and forcibly took away Brindaban with them in the jeep. He says that on failure of Brindaban to return for some time, he sent Kalua (P. W. 3) to village Ramgarh (also known as Misro-ka-Purwa) to look for him and Kalua returned and told him that Brindaban had been tied there and was being beaten. Later Brindaban died. He also says that on account of the inaction of the local administration, he went to Bhopal and Delhi to complain and also made an application (Ex. P. 1), which he had got typed by Pyareju (P. W. 5), a pleaders clerk at Chhatarpur. Later Brindaban died. He also says that on account of the inaction of the local administration, he went to Bhopal and Delhi to complain and also made an application (Ex. P. 1), which he had got typed by Pyareju (P. W. 5), a pleaders clerk at Chhatarpur. The fact that Sunderlal had at least from 29-4-1973 been making such a complaint and naming Vinod Chaturvedi (respondent No. 1) is not only beyond dispute but also the suggestion on behalf of the respondents to contend that prior to 29-4-1973 t he name of Vinod Chaturvedi has not been mentioned. It appears, however that this was the version of Sunderlal and Nanhibai from the very outset as was reported by the Superintendent of Police Chhatarpur, to the higher officers on 29-4-1973. Sunderlal says that he complained against the local administration for not proceeding against the culprits, by approaching the higher authorities at Bhopal and also giving an application to the Prime Minister Smt. Indira Gandhi at Delhi, as a result of which some action was taken thereafter. The criticism made of the witness is that he was not present in village Buda on 27-4-1973, when Brindaban left home and subsequently on return, he falsely implicated Vinod Chaturvedi (respondent No. 1) at the suggestion of. a local politician, Mahendra Kumar Manav, a political rival of Vinod Chaturvedits parents. It is also said by learned counsel for the respondents that it was most unusual for him not to go to village Ramgarh to the rescue of his son or thereafter with him to Chhatarpur, in case he was then present in village Buda. This witness as also some others have candidly admitted that they did not do so out of fear of Vinod Chaturvedi who had great influence in the area. The circumstances in which Brindaban was dealt with and mercilessly beaten in full public view, does render this explanation to be plausible. The nature of the incident itself indicates that the culprits were not afraid of the authorities and the people were so terror stricken that no one dated to intervene during commission of the crime. Sunderlal has identified and consistently named all the respondents. The nature of the incident itself indicates that the culprits were not afraid of the authorities and the people were so terror stricken that no one dated to intervene during commission of the crime. Sunderlal has identified and consistently named all the respondents. There being a plausiblereason for Sunderlal not going to the rescue of his son Brindaban out of fear of the culprits, which is evident, his presence in village Buda at that time cannot be doubted for this reason alone. The trial Court has relied on the fact that the first case diary statement (Ex. D-3) of Sunderlal could not be recorded prior to 30-4-1973, since he was not available in village Buda prior to that, as stated by R. K. Singh (P. W. 26), the officer who investigated the case initially. This explanation of R. K. Singh (P. W. 26) has to be rejected for the obvious reason that the Superintendent of Police, Chhatarpur, did have the version of Sunderlal implicating respondent No. 1 Vinod Chaturvedi prior to sending his report (Ex. P-9) on 29-4-1973 and this could not have been possible, unless Sunderlals version that effect had been available to the Superintendent of Police. If at all, this fact lends support to the grievance made by Sunderlal and others throughout of the partisan attitude of the local authorities during the earlier investigation, obviously with a view to shield Vinod Chaturvedi respondent No. 1) on account of his political influence. It is obviously for this reason that Sunderlal had to run not only to Bhopal but also to the Prime Minister at Delhi to ensure proper investigation and prosecution of the culprits. This is also evident from the observation made in the earlier sessions trial and the need or a fresh investigation leading to the present trial as well as the observations of the learned trial Judge in the present case that certain lacunae were introduced in the first investigation which enabled such a dastardly crime to go unpunished. ( 12 ) THE trial Court has rejected the testimony of Sunderlal also on the ground that the name of respondent No. 1 Vinod Chaturvedi is not mentioned as one of the culprits in his case diary statement (Ex. D-3) recorded on 30. 4. 1173. This is a patent misreading of Ex. ( 12 ) THE trial Court has rejected the testimony of Sunderlal also on the ground that the name of respondent No. 1 Vinod Chaturvedi is not mentioned as one of the culprits in his case diary statement (Ex. D-3) recorded on 30. 4. 1173. This is a patent misreading of Ex. D-3 as there is no such contradiction therein, the name of Vinod Chaturvedi (respondent No. 1, carrying a gun being expressly mentioned therein. Accordingly, rejection of the testimony of Sunderlal (P. W. 1) by the trial Court is also not for cogent reasons, but in fact it is for some reasons, which are not even existent. The trial Court has clearly erred in misreading the evidence. ( 13 ) JHALLU (P. W. 23), brother of the deceased, is another natural witness, being a resident of Buda. He also corroborates his sister-in-law Nanhibai, P. W. 24, and proves that Nanhibai rushed to him in the filed where he was working and told him that this brother Brindaban had been forcibly taken away in a jeep by several persons. This part of his statement, which is his consistent version, excluding from his version the identity of the culprits, does corroborate Nanhibais version of having seen her husband forcibly taken away in a jeep at that time and place, Jhallu has expressly admitted not going to the rescue of his brother out of fear of Vinod Chaturvedi (respondent No. 1 ). ( 14 ) NATTHU (P. W. 2) is the next witness. He too was residing in village Buda at that time. There is, therefore, nothing unnatural in his being a witness to the abduction of Brindaban carried out in full public view. He has stated that all the respondents were present in the jeep along with a few others, when Brindaban was being taken in that jeep, which was being driven by Vinod Chaturvedi (respondent No. 1 ). He admits not doing anything out of fear of Vinod Chaturvedi as he was son of a Minister. He had known all the respondents whom he has named. He describes the part played by Vinod Chaturvedi (respondent No. 1) as the leader of that party, who was also carrying a gun and had driven the jeep in which Brindaban had been taken away. He had known all the respondents whom he has named. He describes the part played by Vinod Chaturvedi (respondent No. 1) as the leader of that party, who was also carrying a gun and had driven the jeep in which Brindaban had been taken away. The trial Court has merely mentioned that there are some contradictions with his earlier statement without detaining all of them. We find that his version about the identity of Vi nod Chaturvedi (respondent No. 1) as the leader of that party as well as the presence of Kandu (respondent No. 4) and in evidence (respondent No. 5) amongst the culprits, is throughout consistent. Thus, the identity of respondent No. 1 Vinod Chaturvedi, respondent No. 4 Kandu and respondent No. 5 Devidin, amongst the culprits, who were about 10 in number, is proved also by, his consistent version, leaving out the remaining respondents who were not named by him consistently. The trial Court has rejected his testimony to this extent also for apparently no agent reason. ( 15 ) THE next witness is Kalua (P. W. 3), a relative of Sunderlal, who was staying with him at that time. The consistent version of Kalua (P. W. 3), which cannot be doubted, is that he saw Brindaban being carried at that time from his house in a jeep by 8 or 9 persons who took him towards village Ramgarh (Misro-ka-Purwa); a little later he went to village Ramgarh to look for Brindaban and there he found Brindaban tied and being beaten. Leaving out the identity of the culprits, at least this part of his consistent version to support the prosecution case of Brindabants abduction in the aforesaid manner from his house, cannot be doubted. His presence then in the village and he being sent by Sunderlal to village Ramgarh to look for Brindaban is spoken of consistently even by Nanhibai, the most natural witness of the incident, whose presence at the time and place is beyond doubt. ( 16 ) WE may now refer to Gourishankar (P. W. 13) and Shiv Charan (P. W. 14), both of whom turned hostile. Both these persons were residents of village Buda and, therefore, natural witnesses of the incident of abduction. ( 16 ) WE may now refer to Gourishankar (P. W. 13) and Shiv Charan (P. W. 14), both of whom turned hostile. Both these persons were residents of village Buda and, therefore, natural witnesses of the incident of abduction. In spite of being declared hostile, Gourishankar (P. W. 13) does speak of Brindabants abduction by a number of persons who came in a jeep armed with guns and lathis, of whom, he definitely says that Sukki (respondent No. 3) was one. He says that Brindaban was not willing to go to Ramgarh but he was forcibly taken away in that jeep by the persons who had come for this purpose. The witness further admitted that he had earlier correctly named Kandu (respondent No. 4) and Devidin (respondent No. 5) as two of the culprits, which is a fact. He than also admitted that one of the culprits looked like Vinod Chaturvedi (respondent No. 1 ). He has consistently stated that Sukki (respondent No. 3) was one of the culprits. Thus, in spite of trying to shield the respondents by resiling from his earlier statement, a part of which at least be admitted having made and it being true, Gourishankar expressly admitted abduction of Brindaban by a number of persons who came armed with guns and lathis in a jeep and Sukki (respondent No. 3), Kandu (respondent No. 4) and Devidin (respondent No. 5) being three of those culprits and one of the remaining culprits being a person looking like Vinod Chaturvedi (respondent No. 1 ). The other hostile witness, Shivcharan (P. W. 14) has also admitted, in spite of being declared hostile, that Gourishankar (P. W. 13) had told him soon after the abduction that day that Brindaban had been abducted by several persons who came in a jeep. The other hostile witness, Shivcharan (P. W. 14) has also admitted, in spite of being declared hostile, that Gourishankar (P. W. 13) had told him soon after the abduction that day that Brindaban had been abducted by several persons who came in a jeep. ( 17 ) FROM the above direct evidence consisting of the testimony of Nanhibai (P. W. 24), Sunderlal (P. W. I), Natthu (P. W. 2), Kalua (P. W. 3), Jhallu (P. W. 23) and the admissions made even by the hostile witnesses, Gourishankar (P. W. 13) and Shivoharan (P. W. 14), there can be absolutely no doubt that Brindaban had been forcibly taken away or at least induced by deceitful means on the false pretext of getting his land dispute settled, to go with 8 or 10 persons who came in a jeep to his house armed with guns and lathis at about 4 p. m. on 27-4-1973; that he was taken in that jeep towards village Ramgarh where he was tied and assaulted; Vinod Chaturvedi (respondent No. 1), who was the leader of that party, was carrying a gun and had driven away the jeep towards Ramgarh, carrying Brindaban in it along with the remaining respondents, who had all come with him for this purpose. ( 18 ) THE suggestion on behalf of the respondents that Brindaban had gone alone on his own to village Ramgarh to recover-a loan and had then fired a pistol shot as a result of which he was overpowered, tied with a rope and beaten by five persons, namely, Sukla, Ballu, Karanjua, Kadori and Kashiprasad who were tried and acquitted in the earlier sessions trial, is wholly unacceptable. It is too obvious that Brindaban was mortally scared of going to village Ramgarh and, therefore, the possibility of his going voluntarily and an alone for any purpose, is too unreal and must be ruled out. This suggestion of the defence is based on the version of Tikaram (P. W. 29) and the report (Ex. P-22) lodged by him, as well as the testimony of Ram kishore (P. W. 22), a hostile witness. The version of Tikaram (P. W. 29) is not his own but is merely a repetition of what he was told by the earlier acquitted accused, when he found them present with lathis near injured Brindaban, lying tied with a rope. P-22) lodged by him, as well as the testimony of Ram kishore (P. W. 22), a hostile witness. The version of Tikaram (P. W. 29) is not his own but is merely a repetition of what he was told by the earlier acquitted accused, when he found them present with lathis near injured Brindaban, lying tied with a rope. It is, therefore, not a version emerging from the prosecution evidence itself but merely a defence given out by the earlier acquitted accused to Tikaram (P. W. 29), who himself had no personal knowledge of any fact relating to the incident. All that Tikaram proves is that the five earlier acquitted accused were present at the spot near; Brindaban who was lying tied with a rope and severely injured and those persons at least tacitly admitted having beaten Brindaban, giving out of Tikaram their defence for the- assault made on Brindaban. Ram kishore (P. W. 22), a hostile witness, was a postal employee, who is too willing to support the respondents. In cross- examination on behalf of the accused, he stated that he was present when Manav was instigating Sunderlal to implicate Vinod Chaturvedi (respondent No. 1) so as to embrrass his father, a State Minister, promising to help Sunderlal if he did so. This statement is indeed too unreal to be acceptable as true. It is extremely unlikely that such a suggestion would be made by anyone in the presence of a stranger so as to provide evidence against himself for such a misdeed. This is against the ordinary course of human conduct. The fact that a pistol was lying near the place where Brindaban lay tied with a rope and some shot had been fired earlier, does not have the effect of supporting this suggestion made on behalf of the respondents. There is nothing to indicate that the pistol belonged to Brindaban. Moreover, it is not at all likely that Brindaban would not at least have injured some one even after firing a pistol shot, were the defence version true. The absence of any gun shot injury to anyone only shows that the shot which may have been fired near about thattime was certainly not by Brindaban and possibly it was fired by some assailant of Brindaban to scare away anyone trying to come to the rescue of Brindaban. The absence of any gun shot injury to anyone only shows that the shot which may have been fired near about thattime was certainly not by Brindaban and possibly it was fired by some assailant of Brindaban to scare away anyone trying to come to the rescue of Brindaban. Moreover, this is not a version emanating from the prosecution evidence but only a defence given out earlier and, therefore, the accused cannot claim its acceptance for this reason alone. The acquittal of Sukla, Ballu, Karanjua, Kadori and Kashiprasad in the earlier trial does not in any manner help the present respondents, who were prosecuted subsequently after a fresh investigation, as earlier stated. The total number of the culprits was definitely more than six, being near about to as stated at an stages by the witnesses. Thus the acquittal of the five persons tried in the earlier sessions trial, does not even exclude the possibility of the present respondents being the culprits. Whether the acquittal of the accused in the earlier trial is correct or not is not the question for consideration before us in this appeal and, therefore, we need not go into the question of participation by them also in the crime. ( 19 ) FROM the above conclusion, it follows that at about 4 P. M. on 27-4-1973, all the six respondents along with a few others, led by Vinod alias Satyabrat Chaturvedi (Respondent No. 1), by force compelled at least by deceitful means induced the deceased Brindaban to go with them to Ramgarh in the Jeep in which they had come soon thereafter at Ramgarh Brindaban was tied with a rope and inflicted the aforesaid injuries with lathis and gun butts either by the respondents themselves or by those to whom he was handed over by the respondents for this purpose; and the death of Brindaban was caused by these injuries in the hospital at Chhatarpur soon after midnight. It is, therefore, clear that this conclusion alone proves the offences punishable under sections 148 and 364 or at least 367 Indian Penal Code against the respondents. ( 20 ) THE question now is whether the identity of the actual assailants of Brindaban is also established So as to determine the other offence, if any, proved against the respondents. It is, therefore, clear that this conclusion alone proves the offences punishable under sections 148 and 364 or at least 367 Indian Penal Code against the respondents. ( 20 ) THE question now is whether the identity of the actual assailants of Brindaban is also established So as to determine the other offence, if any, proved against the respondents. So far as the identity of the persons actually inflicting the injuries to Brindaban at Ramgarh is concerned, no direct evidence is available inasmuch as some witnesses, who were examined for this purpose have also turned hostile. The difficulty in adducing direct evidence of the assault, in spite of the same being in fun public view at Ramgarh, is easy to visualise. Apparently, it is the terror and influence of the assailants coupled with the willingness of the initial investigating agency to shield them, which has made direct evidence not available in the Court. No other rational explanation of the absence of direct evidence on the point is possible. ( 21 ) THE only evidence available for this purpose is an oral dying declaration of Brindaban made at Chhatarpur. The witnesses for this purpose are Ataullah (P. W. 9), Mohd. Yakis (P. W. 28) and Dr. K. D. Khare (P. W. 20 ). Ataullah (P. W. 9) was undoubtedly one of the persons present at the Kotwali Chhatarpur, who, along with Mohd. Yakis (P. W. 28), the Head Constable, had been entrusted the task of taking Brindaban to the hospital for his treatment. Ataullah (P. W. 9) says that Brindaban told him that Vinod Chaturvedi (Respondent No. 1) and his companions had assaulted him. Head Constable Mohd. Yakis (P. W. 28) does not speak of this oral dying declaration but does say that Dr. K. D. Khare (P. W. 20) was a recording his dying declaration after asking these persons to go out. Dr. K. D. Khare (P. W. 20) has expressly proved the capacity of Brindaban to make a dying declaration, being fully conscious, when he examined him and also the opportunity for this purpose. It was natural for Brindaban to have told the Doctor and others present, the identity of his assailants. Dr. K. D. Khare (P. W. 20) has expressly proved the capacity of Brindaban to make a dying declaration, being fully conscious, when he examined him and also the opportunity for this purpose. It was natural for Brindaban to have told the Doctor and others present, the identity of his assailants. The Doctor, however, says that Brindaban had only told him that he had been beaten in village Ramgarh and so be had asked for a Magistrate to be called for recording his dying declaration, but before the Magistrate could come, Brindaban died in the night at 12. 30. Dr. K. D. Khare (P. W. 20), therefore, does prove that Brindaban had made a dying declaration to him saying at least that he was beaten at Ramgarh. Accordingly, the oral dying declaration spoken of by Ataullah prior to that time is rendered more probable. It is no doubt strange that Dr. K. D. Khare himself should not have at least asked the identity of Bridabans assailants from him or that he did not record his dying declaration when a Magistrate was not available at that time of the night. There is evidence to suggest, including the testimony of the Policeman that the Doctor did record a dying declaration after asking the Policeman to leave. There is mention of such a dying declaration also in the report (Ex. P-9) of the Superintendent of Police, to his superiors. However, the same is not forthcoming. It the context of this case and the facts which emerge from the evidence, we are inclined to think that the Doctor recorded a dying declaration which has been held back in order to shield the culprits and the Doctor himself is silent on this aspect for the same reason. It is not otherwise possible to explain why Dr. K. P. Khare (P. W. 20) did not ascertain the identity of Brindabans assailants, which was his obvious duty when no Magistrate was available and Brindaban was not likely to survive. It is not otherwise possible to explain why Dr. K. P. Khare (P. W. 20) did not ascertain the identity of Brindabans assailants, which was his obvious duty when no Magistrate was available and Brindaban was not likely to survive. ( 22 ) THE version of Ataullah (P. W. 9), the only witness who speaks of the actual oral dying declaration fixing the identity of Vinod Chaturvedi (respondent No. 1) as an assailant of Brindaban would have been sufficient ordinarily to held that at least Vinod Chaturvedi (respondent No. 1) was an assailant of Brindaban, when the same is corroborated by the facts and circumstances duly proved and beyond controversy. But for the fact that this is an appeal against acquittal, we would have had no hesitation in taking this view. However, we refrain from doing so for the only reason that this is the entire evidence on the point and the trial Court did not consider it safe to act on. We must commend Ataullah (P. W. 9), the lowest official for being bold enough to withstand the pressure to which his superiors succumbed. ( 23 ) TAKING the most lenient view in favor of the respondents, we have reached the irresistible conclusion that the offences punishable under sections 148 and 367 Indian Penal Code are the minimum offences made out against all the respondents. The sentence of three years rigorous imprisonment for each offence to each respondent is appropriate. ( 24 ) CONSEQUENTLY, the appeal is allowed. The acquittal of the respondents is set aside and they are convicted under sections 148 and 367 Indian Penal Code and each of them is sentenced to rigorous imprisonment for three years for each offence. Both sentences shall be concurrent. The bail bonds of the respondents Nos. 1 to 6 are cancelled. They shall surrender to their bail to serve the sentences awarded to them. Appeal allowed. .