1. The appellants were convicted for an offence under section 326/149, P. P. C. and mentioned to undergo R. I. for 5 years and pay a fine of Rs. 1,000 or in default to undergo R. I. for 1 year.
2. Three bullocks of Sultan complainant were stolen. He suspected the appellants ^for having stolen the bullocks. Consequently he along witff his father Ali Mohammad, Nawab and Nasir tracked the foot-prints which led to the house of the appellants Rasulo and Panah. The females of the appellants came out and informed them that the appellants had gone to offer Idd prayers. On the following day the complainant along with his father Ali Mohammad, Mehrab, Nawab and Nasir went to the house of the appellants and asked them to return the bullocks but they refused and abused them. The complainant party, therefore, returned and while they covered a short distance all the four appellants armed with hatchets and lathis overtook them and inflicted injuries upon Nawab, Mehrab and Nasir, and then they forcibly dragged away Ali Mohammad after giving him blows. The complainant made a search for Ali Mohammad but he was not traced. Consequently first report was lodged. The police after usual investigation challaned the appellants. It is said that during investigation appellant Rasulo produced a bloodstained hatchet.
3. There could be no manner of doubt that Nawab and Nasir sustained the injuries and this is' borne out by the medical evidence. Nawab had two incised wounds caused by hatchet and Nasir had one incised wound caused by hatchet and five injuries by blunt weapon. The injury No. 1 was said to be grievous. So far Mehrab is concerned there is no medical evidence.
4. As regards the identity of the appellants with the crime the evidence mainly is ocular consisting of four witnesses Sultan, Nawab, Nasir and Mehrab. They are closely related to each other. Sultan, Nawab and Mehrab are brothers inter se while Nasir is their cousin. The learned Additional Sessions Judge accepted their evidence but on consideration of the circumstances prominently appearing in this case I must say that he clearly erred for the reasons which I will presently state.
5. In the first place all the four witnesses pointed out, are closely related to each other. It is further an admitted position that there is a dispute between the parties since a long time and some cases had already been filed. Consequently their evidence could not be accepted without corroboration.
6. But no such corroboration is available in the present case. Apart from this there are other circumstances which render their evidence incredible.
7. [ It will be noticed that there is inordinate delay in lodging he first report. The incident was said to have taken place on :he morning of 11-3-68 while the first report was lodged on 12-3-68 at 1-30 a.m. although ttfe police station was situated at i distance of I6 miles. Of course in this connection an sxplanation was offered. But the explanation is not only false )ut contradictory. The main reason put forth by the complainant vas that he did not proceed to the police station to lodge the eport on account of the fear of the appellants. This is idiculous. The appellants lived at a considerable distance from he complainant and, therefore, there could be no question of iny fear from the appellants. This fear has also no basis in view >f the statement made by the complainant that he had gone to 'arial Shah who lived at a distance of 6 miles from his village mt he was not available.
8. If he could cover 6 miles without any ear there is no reason why he could not also proceed to the olice station to lodge the report. It was further pointed out y the learned counsel for the State < that the complainant was nxious to find out the whereabouts oif his father and therefore he report was delayed but there is also no substance in this xplanation as someone else could be deputed to lodge the report, loreover, it was not disclosed in the first report that the father ad also accompanied the complainant party to the house of the ppellants. The story has also been greatly exaggerated and lere are several omissions in the first report as well as in the olice statements of the witnesses. Not only this, even Parial hah who was examined, stated that the complainant simply told im that Nasir and his other relations bad sustained injuries but s far as he could recollect the complainant had not disclosed ie names of the culprits to him.
9. On the other hand the case of the appellants is that the ijured persons had gone to commit some theft and when they ere discovered they received injuries from those persons whose teft they had gone to commit and they had been implicated on icount of enmity. In view of the circumstances of this case l ad considerable force in this contention, or at least this renders the prosecution evidence highly doubtful. The most important feature of this case is the time when the first report was lodged and this supports the defence put forth by the appellants. As already pointed out the first report is lodged at 1-30 a.m. at a village situated at a distance of four miles where the S. H. O. had gone to investigate some cases. According to the prosecution the incident had taken place in the morning and if this was true the report could have been lodged much earlier and not during night hours.
10. The only corroboration which was sought in this case was against Rasulo appellant who was said to have produced blood-stained hatchet. Even this does not serve to provide any corroboration as the hatchet was not sent to the Chemical, Analyser.
11. Even otherwise I am unable to find this as a supporting circumstance in view of the circumstances of the present case.
12. I, therefore, allow the appeal and set aside the conviction and sentence passed against the appellants, and acquit them. They are in custody and should be set at liberty forthwith. . s