Judgment

HEGDE, J.: At about 7 a.m. on October 31, 1966, two persons by name Moti Ram and Balak Ram were injured as a result of an attack on them. The attack in question is said to have been made when they were on their way to the field for cultivation. It is said that they fell unconscious at the spot itself. When they were being removed to the hospital Moti Ram died on the way and later Balak Ram died in the hospital. The information about this offence was laid by P. W. 4, Harnam Das, the brother of the deceased Moti Ram at 9-30 a.m. on the same morning at Mullana Police Station which is about six miles from the scene of occurrence. In that information he accused the appellants as having attacked Moti Ram and Balak Ram. He claims to have seen the occurrence himself.

2. During the pendency of the investigation of the case one Rattan Lal, the brother of the appellant Gopi Chand sent a petition to the Superintendent of Police, Ambala on November 5, 1966. Therein he gave out a different version of the incident. According to the version given by him, the deceased persons and some of their relations attacked the appellants Nos. 1 to 3, when they were proceeding in a cart and that the appellant No. 4, Bhushan Lal was not present at the time of the occurrence. Therein he further stated that appellants Nos. 1 to 3 defended themselves by removing the cart pegs. The Superintendent of Police forwarded this petition to the Dy. Superintendent of Police for enquiry. He in turn appears to have entrusted the same to the Inspector of Police. It is also seen from the evidence that the Superintendent of Police himself went to the locality some days later and supervised the investigation.

3. On January 31. 1967, P. W. 4, Harnam Das filed a petition before the Judicial Magistrate. 1st Class, Ambala Cantt. alleging that the police were sabotaging the prosecution case with a view to help the accused. The implied suggestion in that complaint was that with a view to undermine his complaint, the police were distorting the version showing that Bhushan Lal, appellant No. 4 was not present at the occurrence and thereby not only exonerate Bhushan Lal but also condemn the evidence adduced in support of his complaint as being unreliable.

4. After the investigation. The police sent up a somewhat curious final report. Despite the fact that the complainant s version that the appellants including Bhushan Lal had attacked the deceased persons was supported by other evidence, it was recommended in that report that Bhushan Lal may be discharged and in his place Rattan Lal, the brother of the appellant Gopi Chand, who as seen earlier had sent a petition on Nov. 5., 1967, be included as an accused. At the trial of the case no evidence whatsoever was led against Rattan Lal. Therefore the complaint of P. W. 4, Harnam Das that the police were trying to sabotage the prosecution case cannot be dismissed as being frivolous.

5. Despite the report of the police, the learned Magistrate took cognizance against all the appellants as well as against Rattan Lal. But instead of framing one consolidated charge against all of them, he adopted a somewhat novel procedure. He framed two sets of alternative charges. In the first set he charged the present appellants under S. 302 read with S. 34, L P. C for the murder of Moti Ram and Balak Ram respectively, under the second set he charged appellants Nos. 1 to 3 and Rattan La] for the murder of those very persons. After holding a preliminary enquiry, he committed the appellants as well as Rattan Lal to the court of the Sessions Judge, AmbaIa for being tried under the charges mentioned above.

6. The learned Sessions Judge did not alter the charge which he could have and should have. But the prosecution adduced evidence only against the appellants. No evidence whatsoever was led against Rattan Lal, nor even the three court witnesses implicated Rattan Lal. The learned trial Judge believed the prosecution evidence. convicted the appellants under S