JUDGMENT

GUPTA, J. :— The two appellants before us were convicted by the trial court of offences under S. 307 read with S. 34 I. P. C. and S. 333 read with S. 34 I. P. C. and each of them was sentenced to six years and four years rigorous imprisonment respectively under the aforesaid two charges. On appeal the High Court affirmed the order of conviction and the sentences passed on the accused appellants. The prosecution case is that on 16th October, 1972 at about 2-30 a. m. P. W. 1 and P. W. 9 (Bhagwan Singh and Maharaja Singh), police constables on duty, saw a truck loaded with fuel wood passing through the town Bagh towards Kukshi P. W. 5 Latif, cleaner of the truck, and appellant Yaqoob were in the same truck. The truck belonged to the other appellant Bhagwan. Suspecting that the fuel was being illicitly taken away, the two constables stopped the truck and asked for the permit. Latif was then sent to summon appellant Bhagwan who is said to be the owner of the truck. The constables asked the driver of the truck to turn the truck and take it to the police station. As there was no sufficient space for turning the truck, constable Bhagwan Singh (P. W. 1) asked the driver to take the truck ahead and bring it back and requested constable Maharaja Singh (P. W. 9) to sit in the truck. After proceeding some distance the truck stopped. Appellants. Bhagwan and Yaqoob, who had been following the truck came up, Yaqoob opened the left side window of the truck and Bhagwan dragged out Maharaja Singh. Yaqoob then hit him with an tami and Bhagwan belaboured him with a stick. Maharaja Singh fell down unconscious and the truck was driven away. Bhagwan Singh waited for some time for the truck and when it did not return, he proceeded towards the bus stand where on the road he found Maharaja Singh with bleeding injuries on his person. Bhagwan Singh found appellant Yaqoob standing there and took him to the police station and lodged the F. I. R. (Ex. P. 1). Maharaja Singh was then removed to the Public Health Centre, Bagh, where he was examined by P. W. 4 Dr. Sharma. The defence version is that when constable Bhagwan Singh asked the driver to take the truck to the police station, constable Maharaja Singh was standing on the footboard of the truck and after it proceeded some distance, he was hit by another truck coming from the opposite side, as a result of which he fell down and sustained injuries.

2. The prosecution case rests on the evidence of P. Ws. 1, 5 and 9. P. W. 1 constable Bhagwan Singh lodged the F. I. R. The story that appellants Bhagwan and Yaqoob followed the truck when it was being taken to the Police Station does not find a place in the F. I. R., and P. W. 1 is not able to explain why. The F. I. R. also does not mention the name of appellant Yaqoob at all. It appears that P. W. 5, the cleaner of the truck, was examined nearly 1 1/2 months after the date of the incident. According to this witness he was kept confined by the police for about two days before they took his statement and it was argued before the trial court as also before the High Court that he gave his evidence under duress. The High Court has declined to accept the story that P. W. 5 had been kept under detention. The fact however remains that Latif was examined on 25-11-1972 and there is no explanation why he could not be examined earlier.

3. Apart from Latif, P. W. 9 Maharaja Singh was the only witness of the assault on himself. He was also examined on 25-11-1972 but in his case the explanation is that he could not be examined earlier because of his state of health. In his statement to the police P. W. 9 did not mention what he stated before the Court that appellant Yaqoob assaulted him with a knife and appellant Bhagwan assaulted with a tami. The reason for the omission according to him was that at that time his mind was not working properly. However, he does not say when his mind started functioning properly and when exactly the memory of the incident came flooding b