G. K. MATHUR, J. ( 1 ) THE State of U. P. has preferred this appeal against the judgment and order dated 19-11-1979 passed by the V Additional Sessions Judge, Aligarh, in Sessions Trial No. 177 of 1979, acquitting all the accused persons of the charges levelled against them. ( 2 ) THE death of Khub Singh son of Yad Ram Singh resident of village Komari, P. S. Sasni, District Aligarh, on 23rd of June, 1977, while on police custody of P. S. Sasni gave rise to the prosecution of Ham Singh, Station Officer, S. 1. Chandrapal Singh and eight other police personnel of P. S. Sasni. According to the prosecution case, they had arrested Khub Singh from his house at about 9 p. m. on 22nd of June, 1977 as a supsect of Crime Case No. 148 registered on 22nd of June, at 8. 15 a. m. on the report of one Suresh Singh of village Nagla Kishore, P. S. Sasni against unknown persons for an offence punishable under section 458, I. P. C. (Ex. Ka-14 ). The crime was, however, converted for the offence of dacoity punishable under section 395, I. P. C. after the arrest of one Birbal byllam Singh, Station Officer, at 7. 20 p. m. on 22-6-1977. Copy of the General Diary is Ex. Ka -15. The prosecution casein brief is that theaccused persons after arresting Khub Singh forcibly made him to sit in a truck after beating in spite of protest by him and his uncle Kishan Singh (P. W. I ). It is alleged that after about half an hour of the departure of the police party viz. , at about, 9. 30 p. m. Kishan Singh (P. W. I), Guman Singh (P. W. 2), Gulab Singh (P. W. 6 ). Mahavir Singh, Pooran Singh Pradhan and Rampal Singh left on cycles for police station Sasni and reached at police station at 12-00 in the night. The police station is about six miles away from their village Komari. They alleged that the arresting police party had not reached the police station by that time and so they waited for them at the police station. It is alleged that the truck of the arresting police party arrived at about 2 p. m. from which Khub Singh and five other suspects in custody came down. They alleged that the arresting police party had not reached the police station by that time and so they waited for them at the police station. It is alleged that the truck of the arresting police party arrived at about 2 p. m. from which Khub Singh and five other suspects in custody came down. According to the prosecution case, the effort made by Kishan Singh (P. W. I) to get the release of Khlib Singh remained futile. It is further alleged that after about half an hour Kishan Singh and his companions heard the shrieks of Khub Singh and on entering inside the police station they saw S. 1. Chandrapal Singh and S. O. 11am Singh as well as some constables tortuning Khub Singh by the prosess known as Belan Chadana and when they implored them got to do so, SJ. Chandrapal Singh got them pushed out from the police station. After sometime when the shrieks of Khub Singh were no more heard and it became quiet at the police station, Kishan Singh and his companions claimed to have retired to a verandah of the school building situte adjacent to the police station. In the morning again they requested SJ. Chandrapal Singh to release Khub Singh, but he told them that Khub Singh had been despatched from the police station and that they need not worry for him. It is alleged that Kishan Singh and other did not believe it because no one had been seen going out of the police station by then and therefore they did not move out from there. According to the prosecution Kishan Singh and his companions peeped into a jeep which came out from the police station at about 9 a. m. but did not find Khub Singh therein. However, one of the suspects present in the jeep shouted that Khub Singh had been killed and that his dead body was lying inside the police station. It is alleged that Kishan Singh then gave telegrams at about I 1. 30 a. m. to the District Magistrate and the Senior Superintendent of Police, Aligarh, to the effect that the police of Sasni had killed Khub Singh inside the police station. It is also alleged that on hearing the news about the death of Khub Singh a crowd had surrounded the police station. 30 a. m. to the District Magistrate and the Senior Superintendent of Police, Aligarh, to the effect that the police of Sasni had killed Khub Singh inside the police station. It is also alleged that on hearing the news about the death of Khub Singh a crowd had surrounded the police station. ( 3 ) THE case of the prosecution is that at about 12-30 p. m. on 23rd of June, 1977 when the Circle Officer came to the police station, Kishan Singh (P. W. I), Guman Singh (P. W. 2), Gulab Singh (P. W. 6) and their other companions went inside the police station and saw the dead body of Khub Singh kept on a cot in a room with stool filled in his mouth and some stool kept in a plate nearby. ( 4 ) THEY also claimed to have seen bloodstains on the floor and the walls of the roof. P. W. 7 Devendra Kumar Tomar, the then Tehsildar/executive Magistrate, Aligarh, who had also reached at the police station, under the orders of the A. D. M. city started inquest on the dead body of Khub Singh at 3 p. m. and concluded it at 6. 20 p. m. It is marked as Ex. Ka-12. The District Magistrate, Aligarh and the S. S. P. , Aligarh reached Police Station Sasni at 4. 40 p. m. which fact is noted in the general diary. Copy of which is Ex. Ka-20. The S. S. P. Aligarh, entertained a written report of Kishan Singh (Ex. Ka. I) and ordered for the registration of the case. The case was registered at 6 p. m. as Crime No. 156 for the offence punishable under section 302 I. P. C. Onkar Singh (P. W. 9), who was the Constable clerk, prepared a check report (Ex. Ka-24) and made the corresponding general diary entry at serial No. 24, a copy of which is marked as Ex. Ka-25. The sealed deadbody of Khub Singh along with papers was sent for post-mortem examination through Constable Dhan Pal Singh. (P. W. 3 ). Dr. S. K. Saxena, Medical Officer, District Hospital Aligarh, (P. W. 4), conducted the post-mortem examination on the dead. body of Khub Singh at 11 p. m. on 23rd june, 1977. According to him, the deceased was 35 years of age. He found the following ante-mortem injuries on the dead body: 1. (P. W. 3 ). Dr. S. K. Saxena, Medical Officer, District Hospital Aligarh, (P. W. 4), conducted the post-mortem examination on the dead. body of Khub Singh at 11 p. m. on 23rd june, 1977. According to him, the deceased was 35 years of age. He found the following ante-mortem injuries on the dead body: 1. Three abrasions on left fore-head in an area of 2 x 1-1/4ft abrasions varied from 112 x 1/101 to 1/4 x 2/ 101. 2. Contusion 1" x112 on prominence of right cheek. 3. Contusion 112 x 1121 on the back of outer part on right shoulder 4. Contusion 1121 x 1/41 on top of left shoulder. 5. Abrasion 1121 x 1/10 on the back of outer part of right elbow. 6. Contusion 112 x 112 on the proximal inter phalangeal part posterior aspect left little finger. 7. Contusion 31 x 1/2 on the left iliac region oblique 1 above and interior superior ilias spine. 8. Contusion 2 x 1121 on the right abdomen, 2 from umblicu at 9 oclock position. 9. Three abrasions on outer and lower part of left knee in an area of 3-112 x 2-112. Abrasion varied from 1-1/ 21 x 112 to 1121 x 1121. 10. Abrasion 112 x 2/10 in the middle and front of left leg. 11. Abrasion 3/4 x 1/21 on the lateral wall of left ankle. 12. Abrasion 1/4 x 1/41 on the left foot outer and middle part. 13. Abrasion 1121 x 2/101 on left knee lower and inner part 14. Abrasion 1/2 x 1/21 on the base of outer and right toe. 15. Abrasion 1/4 x 1/4 on the dorsum in inter-phalangeal joint of right big toe. 16. Contusion 11 x 1/2 on right foot, 1 in front of ankle, 17. Abrasion 1-1/2 x 1/2 on the right leg, lower, inner part. 18. Contusion 1-1/2 x 1 on back of left knee; 19. Abrasion 3/4 x 112 on right knee upper and middle part. 20. Abrasion 3/4 x 1/2 on the back of right knee. ( 5 ) ON internal examination the Doctor found the hyariod bone intact. Trachea was not congested, nor did sub-cutaneous tissues of neck show any congestion. Right chamber of heart was full. Left chamber was empty and weight 10 oz. There was no fluid in the abdominal cavity. Stomach contained 2 oz. greyish white fluid. ( 5 ) ON internal examination the Doctor found the hyariod bone intact. Trachea was not congested, nor did sub-cutaneous tissues of neck show any congestion. Right chamber of heart was full. Left chamber was empty and weight 10 oz. There was no fluid in the abdominal cavity. Stomach contained 2 oz. greyish white fluid. It was congested at places. There was yellowish substance in the small intestines and gray faceal matter in the large intestines. ( 6 ) BY an order dated 26th August, 1977, passed by Sri Dwarka Singh, Circle Officer, C. I. D. marked as Kx. Ka 9, investigation of the case was entrusted to Brahmanand Sharma, In spector C. I. D. (P. W. 8), on 30th of August, 1977. He collected the case diary of the case, prepared by Sri Surjan Singh, Inspector, from the office of the S. S. P. , Aligarh, and after completing the investigation of the case, obtained orders of sanction for the prosecution of the accused persons from Sri Tishar Dutt, the then D. I. G. Agra on 1112-1978 and submitted a charge-sheet against them on 14-2- 1979. ( 7 ) THE prosecution in all examined nine witnesses to prove its case. A mentioned of these witnesses, except Raghuvir Singh (P. W. 4) has come in the narration of facts given above. P. W. 4 Raghuvir Singh is a resident of village Komari and has stated about the incident of arrest of Khub Singh from his house by Chandrapal Singh S. I. and other police authorities. ( 8 ) THE accused persons pleaded not guilty and specifically denied the allegations made against them. ( 9 ) HAM Singh, Station Officer, in his statement recorded under section 313 Cr. P. C. admitted that he was the station officer, Police Station Sasni. His contention has been that he did not go to village Komari to arrest Khub Singh and that when S. I. Chandrapal Singh and others brought him to the police station, he was admitted in the lock up and no beating whatsoever was given to him at the police station. He stated that no one of village Komari at all came in the night at the police station. He stated that no one of village Komari at all came in the night at the police station. He stated that in the morning on getting information of deteriorating condition of Khub Singh, he got the lock up opened and started making arrangement for sending him for medical treatment, but in the meantime Khub Singh died. He stated that he then went away from the police station to inform the high officers for the inquest of the body of Khub Singh. According to him. Dwarka Singh, Sector Officer; under political pressure got him falsely implicated in this case. ( 10 ) S. I. Chandrapal Singh stated that he along with other police personnel, except 11am Singh, had gone to village Komari to arrest Khub Singh, who tried to run away and jumped from the roof of is house, but was arrested after beating him and that he along with others reached at the police station at 4. 05 a. m. on 23rd of June, 1977. He stated that the injuries which were seen on the body of Khub Singh were noted by him in the general diary. According to him, the electric bulb of police station Sasni was fused and the injuries of Khub Singh were seen by him in the candle light. He stated that no beating on Khub Singh was done at the police station and that the first information report had been written at the instance of Vimal Kumar Jam, Advocate. He claims that he had been falsely implicated in the case due to loc:11 political party-bandi and political pressure. ( 11 ) THE other police personnel have simply stated that the injuries to Khub Singh were caused during his arrest and that they all had returned at the police station at 4. 05 a. m. on 23-6-1977 and that the entry in the general diary about admission of Khub Singh and others was made by the S. I. Chandrapal singh. They also claimed that they have been psecuted under political pressure and that the witnesses have deposed against them because they happened to be of the family of Khub Singh. They also stated that no beating on Khub Singh was done at the police station and that the people of village Komari had not come in the night of 22nd of June, 1977 at the police station. They also stated that no beating on Khub Singh was done at the police station and that the people of village Komari had not come in the night of 22nd of June, 1977 at the police station. ( 12 ) TWO witnesses were examined by the accused persons in their defence. D. W. 1 Chhokey Lal stated that he was arrested from his house in village Anokhari and was brought along with Khub Singh and other arrested persons to the police station Sasni at about 4. 05 a. m. and that no beating on Khub Singh was done at the police station. He also stated that Khub Singh, who was feeling pain, became unconscious in the lock up and then the S. O. Came there, got the lock up opened at before he could be sent for treatment, he died at about 5. 30 a. m. on 23rd of June, 1977. D. W. 2 Constable Ram Rakshpaj has proved the General Diary entry no. 21 dated 20-11-1975 a copy which is marked was Ex. Kha 1. ( 13 ) THE learned Trial Court held the prosecution case not proved and acquitted the accused persons of all the charges for which they were tried. Feeling aggrieved, the State has preferred this appeal. ( 14 ) HEARD the learned Additional Government Advocate Sri S. P. Tiwari for the State and learned counsel for the opposite parties and also perused the record. ( 15 ) LEARNED counsel for the State submitted that the manner of appreciating the evaluating the evidence by the Trial Court is faulty and the conclusion arrived at by it to the effect that Thus even though Sri Khub Singh may have succumbed as a result of the injuries caused during or immediately after his arrest at Komari, it can not be said that the accused formed an unlawful assembly at the police station with the object of excorting confession and caused injuries or any one of them was a member of such unlawful assembly which caused injuries resulting in the death of Khub Singht is perverse and has resulted in great miscarriage of justice. ( 16 ) THE crucial question for determination in this appeal is whether the arresting police party reached at the police station at 2 a. m. with Khub Singh and other supsects in custody and whether Khub Singh was beaten and subjected to torture at the police station in the night which caused his. death. If so, by whom such beating was given and what offence, if any, they committed. ( 17 ) THE learned Trial Court has not given any definite finding about the time of reaching the arresting police party at the police station. The learned Trial Court has mentioned, If Sri Chokhey Lal is not to be believed, there always remains a possibility that the police party reached the police station at 2 a. m. and not at 4 a. m. and they did not note the entry immediately. The Trial Court also observed. It is quite possible that when Sri Khub Singh died at about 4 a. m. the police made entries in the general diary and in the entry mentioned all the injuries on the dead body as the injuries received before the deceased was brought to the police station. The circumstances of the case demanded a clear-cut finding on the point of time of reaching the arresting police party at the police station because according to the prosecution case, the melo drama was epacted from 2 a. m. in the night at the police station. 20. The testimony of Kishan Singh (P. W. I), Goman Singh (P. W. 2), Raghuvir Singh (P. W. 4) and Gulab Singh (P. W. 6) to the effect that they had witnessed the occurrence or arrest of Khub Singh or the happenings of events immediately thereafter at village Komari has been accepted by the Trial Court. We also do not find any reason to disbelieve them on this point. ( 18 ) KISHAN Singh (P. W. l) Goman Singh (P. W. 2) and Gulab Singh (P. W. 6) have stated on oath that they after about half an hour of the departure of the arresting police party with Khub Singh left on cycles for police station Sasni and reached thereat about 12 in the night and as the arresting police party had not reached there by then, they waited there. They also stated that at about 2 a. m. the arresting police party arrived there in a truck. They also stated that at about 2 a. m. the arresting police party arrived there in a truck. ( 19 ) THE learned Trial Court has not only disbelieved them but has branded them as not Truthful witnesses; and has held that they had not visited Sasni on the night between 22nd/23rd of June, 1977. The reason given by the Trial Court is that P. W. 4. Raghuvir Singh stated that he had reached the police station at about 11 a. m. and that he did not go in the night behind the arresting polite party. It may be mentioned here that it was never the case of the prosecution that Raghuvir Singh (P. W. 4) also went along with Kishan Singh and others in the night to the police station. The other reason for disbelieving these witnesses by the Trial Court is that they did nothingt by way of sending telegram or making complaint to the higher authorities in the night. P. W. I Kishan Singh had stated that it did not strike to him in the night to give telegram or to contact the Chairman of Sasni. There is a ring of truth in the statements of these prosecution witnesses when they say that by the time they reached the police station the. arresting police party bad not reached there. According to the defence version, the truck bad got stranded and could arrive at the police station at 4. 05 a. m. the entry made at serial no. 4 in the general diary about the arrival of the party at 4. 05 a. m. is in the hand-writing of Chandra Pal Singh himself. ( 20 ) LEARNED counsel for the State pointed out that S. I. Chandra Pal Singh himself wrote this entry in he general diary at serial No. 4 and it is not mentioned in it that the arrested persons were admitted in the lock up after taking their search. He submitted that in case they had in fact been admitted in the lock up, then in the ordinary course of business the search of the person of those suspects would have been made. In support of his contention be referred to the G. D. entry no. 32 made on 22-6-1977 (Ex. Ka 15) relating to the admission of Birbal in the lock up. In support of his contention be referred to the G. D. entry no. 32 made on 22-6-1977 (Ex. Ka 15) relating to the admission of Birbal in the lock up. It is mentioned therein that he had been admitted after taking his search. The learned counsel for the State also pointed out that at no point of time search of the person of Khub Singh had been made because at the time of inquest of his body, Bidis, match box, vicks vaporub, ball pen and coin were recovered from his pocket. In the entry of the general diary at serial No. 4, a copy of which is Ex. Ka. 17, it is no where mentioned that the truck was stranded in their return journey. On the other hand, an attempt has been made to cover up the time gap by saying that Chandra Pal was arrested at 10. 30 p. m. It is also significant t6 note that S. L Chandrapal Singh or any other accused in their statements recorded under section 313 Cr. P. C. have nowhere deposed the fact that the delay was caused due to holding up of the truck. In the inquest report, P. W. Devendra Kumar Tomar has mentioned that stool was present on one side of the mouth of Khub Singh. This fact gives support to the statement of the prosecution witnesses Kishan Singh and Gulab Singh to the effect that when they went inside the police station on the arrival of the Circle Officer in the noon, they saw stool present in the mouth of Khub Singhs dead body. It is thus obvious that Khub Singh was subjected to third degree torture at the police station. It leads us to the irresistible conclusion that the arresting police party reached the police station by 2 a. m. as claimed by the prosecution witnesses and that the statement of DW Chokey Lal on this point as well as the General Diary entry no. 4 are false. ( 21 ) NOW we come to the next question regarding beating and torture of Khub Singh. 4 are false. ( 21 ) NOW we come to the next question regarding beating and torture of Khub Singh. P. W. 1 Kishan Singh and Gulab Singh (P. W. 6) have stated on oath that they heard the shrieks of Khub Singh and had gone inside the police station and then saw that Khub Singh was made to lie on the floor of a court yard and was subjected to torture P. W. 2 Goman Singh though had supported the case of the prosecution on all material points, but has avoided to speak about the hearing of shrieks and seeing the beating on Khub Singh in the night at the police station by saying that he remains sitting in the night by the side of the road at some distance from the police station. From the cross examination made the learned Public Prosecutor, it is obvious that this witness was won over because he did not want to invite the wrath of the police. There is no reason to disbelieve the testimony of Kishan Singh (P. W. I) and Gulab Singh (P. W. 6) to the effect that Khub Singh was assaulted and subjected to torture in the night at the police station. In our opinion, there was no justification for the Trial Court to assess and examine the evidence of the prosecution witnesses in isolation of the attending circumstances of the case and this faulty apporach of the Trial Court caused miscarriage of justice. ( 22 ) HAVING come to the conclusion that Khub Singh was beaten and tortured at the police station, there remains no point in the version of the defence that all the injuries found on his body were received at the village Komari during his arrest. We find that the learned Trial Court in a way accepted that all the twenty injuries found on the person of Khub Singh might have been caused at village Komari and for all practical purposes and covered in the ten injuries mentioned in the general diary entry no. 4. This view of the learned Trial Court on the face of it is faulty because it has no where been held by it that the arresting police party in fact arrived at 4. 05 at police station Sasni. 4. This view of the learned Trial Court on the face of it is faulty because it has no where been held by it that the arresting police party in fact arrived at 4. 05 at police station Sasni. In the general diary entry No. 4 it is no where mentioned that Khub Singh has fallen down from the roof of his house during the course of his arrest In the statement of Kishan Singh (P. W. 1) it has come that Khub Singh was slapped and given fist blows and was, thereafter thrown down in the turck of the police. The other prosecution witnesses, namely Guman Singh (P. W. 2) Raghuvir Singh (P. WA) and Gulab Singh (P. W. 6) stated that Khub Singh was not beaten at village Komari during his arrest the conclusion of the learned Trial Court that all the injuries were caused at village Komari is thus against the evidence on record. The entry made in the general diary by Ham Singh at 5. 30 a. m. is also rendered false in view of our above finding and that was simply made to cover up the crime in question. ( 23 ) IN an appeal against acquittal the High Court has full power to review at large the evidence but has to keep in mind: 1. the view of the trial Judge to the credibility of witnesses; 2. the presumption of innocence in favour of the accused; 3. the right of the accused to the benefit of any doubt; and 4. the slowness of an appellant court in disturbing a finding arrived at by a Judge who had the advantage of seeing the witness. ( 24 ) WE have examined the matter, keeping the above mentioned principles in mind any yet we come to the conclusion on the basis of the evidence discussed by us that it is a case in which justice demands interference in appeal and we proceed to find out as to who amongst the accused persons were responsible for the crimes in question. ( 25 ) THE learned Government Advocate submitted that the entire arresting police party and 11am Singh Station officer, should be held responsible for the offence in question because Khub Singh remained in their charge after arrest and was in fact not admitted in the lock up. ( 25 ) THE learned Government Advocate submitted that the entire arresting police party and 11am Singh Station officer, should be held responsible for the offence in question because Khub Singh remained in their charge after arrest and was in fact not admitted in the lock up. ( 26 ) FROM the evidence of the prosecution witnesses it is made out that 11am Singh and Chandra Pal Singh along with three or four constables subjected Khub Singh to torture and beating. It would mean that the entire arresting party not indulge in the beating and torture of Khub Singh at the police station. In this view of the matter, the aforesaid contention of the learned Government Advocate that the entire arresting police party be held responsible for the offence in question can not be accepted. ( 27 ) WE have of find out from the evidence on record the names of the persons responsible for the commission of the offence in question Kishan Singh (P. W. 1) stated that S. O. 11am Singh, S. I. Chandra Pal Singh and Sheo Pal were amongst the persons, besides the constables who subjected Khub Singh to torture and beating. P. W. 2 Guman Singh stated that in the presence of 11am Singh, two or three constables were administering Belan to Khub Singh and that other police personnel were standing there. From the evidence discussed above, it is clear the Chandra Pal Singh was the investigating officer of Criminal Case No. 148 and had made-false entries in the general diary to cover up the offences. We hold that 11am Singh and Chandra Pal along with three or four constables subjected Khub Singh to beating and torture which resulted in his death at the police station. The names of the constables, who indulged in the beating and torture of Khub Singh, with S. D. 11am Singh and S. I. Chandra Pal, have not come in the evidence and therefore, we are unable to pick them up. They are, therefore, entitled to the benefit of doubt. ( 28 ) WE, therefore, hold that Ram Singh and Chandra Pal Singh along with others had formed an unlawful assembly, the common object of which was to extort confession or any information which might be helpful to the detection of the offence. ( 29 ) IN the result, the appeal is partly allowed. ( 28 ) WE, therefore, hold that Ram Singh and Chandra Pal Singh along with others had formed an unlawful assembly, the common object of which was to extort confession or any information which might be helpful to the detection of the offence. ( 29 ) IN the result, the appeal is partly allowed. The judgment and order of the learned Trial Court relating to S. D. 11am Singh and S. I. Chandra Pal Singh are set aside while in respect of. Rajendra Singh, Yadunath Singh, Sheovir Singh, Mukat Behari, Ram Khilari, Ram Kishan, Om Prakash and Sheodan Singh, opposite parties, are maintained S. D. 11am Singh and S. I. Chandra Pal Singh are held guilty for the offences punishable under Sections 147,330/149 and 304 Part 11/149 I. P. C. and each of them is sentenced to undergo Rigorous Imprisonment for a period of six months, three years for the aforesaid counts respectively. There sentences shall run concurrently. 11am Singh and Chandra Pal singh shall be taken into custody forthwith. Appeal partly allowed. .