Judgment

DUA, J.:- Subedar, appellant, has come up on appeal by special leave from his conviction under Section 396 read with Sec. 109, I. P. C. and sentence of life imprisonment imposed by the temporary Civil and Sessions Judge, Hardoi and affirmed on appeal by the Allahabad High Court according to which the appellant s case is covered by the second and third clauses of Sec. 107, I. P. C. read with Explanation 2.

2. Seven persons, including the appellant, were tried, five under S. 396, I. P. C. and Subedar, appellant, and Tota under Sec. 396 read with Section 109, I. P. C. The trial court convicted six and acquitted one. The appeal of the convicted persons to the High Court failed. In this Court only Subedar has appealed.

3. According to the courts below Subedar and Tota were not amongst the dacoits. They are, however, stated to have assembled at the tune of the dacoity which was committed on the night between the 21st and 22nd March, 1963. Subedar, it is not disputed, is a first cousin of the victims of the dacoity (Gajodhar and Chhotey Lal) and is a resident of village Zafarpur where the dacoity was committed Gajodhar, it may be stated, was killed during the course of the dacoity. The circumstances on which the prosecution relied against Subedar in the High Court are:

(1) bitter enmity between Gajodhar and Chhotey Lal and Subedar and Tota who are fast friends on the other; (sic)

(2) the nature of the incident suggests that the primary object of the culprits was to commit the murder of Gajodhar and Chhotey Lal and though the culprits did not succeed in killing Chhotey Lal his property was looted as an incidental venture;

(3) on the evening preceding the night of dacoity, Subedar and Tota were seen in a grove south of the village within less than a mile from Zafarpur in the company of five or six persons including appellant, Gajju son of Chheda, armed with kantas, bhallas and lathis. On the night following the dacoity was committed at the house of Gajodhar and Chhotey Lal when Gajodhar was killed and Chhotey Lal seriously injured and in the commission of that offence Gajju son of Chheda participated;

(4) Subedar, who was inimical towards Gajodhar and Chhotey Lal tried to show false sympathy for them by raising an alarm at the time of dacoity;

(5) on the following morning Subedar lodged first information report by way of Peshabandi in order to put the police on wrong track.

4. None of these circumstances is, in our view established on the record; nor can they be considered either singly or collectively to be sufficiently cogent to bring home to the appellant abetment of the offence under Section 397, I. P. C. beyond the possibility of a reasonable doubt According to Chhotey Lal undoubtedly there was a dispute in regard to property between him and the appellant who is his first cousin and indeed court litigation was pending between them. But it seems to be an exaggeration to say that there was bitter enmity between the parties. In support of the second circumstance also we are unable to find any evidence on the record. The inference seems to be conjectural, not supported by the material on the record on any rational basis. The charge under Section 396, I. P. C. also postulates murder in the course of the commission of dacoity and does not quite support the High Court s view. In any event it does not implicate the appellant. After dealing with the last two circumstances we will turn to the third. Subedar, it is conceded, actually lodged the first information report (Exhibit Ka 7) on the morning of 22nd March. It was a written report covering nearly three printed pages. Now, merely because there was some dispute or litigation pending in courts between the parties it does not follow that the report was lodged by the appellant with the object of misleading the police or in order to forestall suspicion against him. From the contents of the report it is not possible to draw this inference. There is nothing misleading in it and certainly nothi