JUDGMENT

RANGNATH MISRA. J. :—These appeals by special leave are directed against the judgment of the High Court of Madhya Pradesh reversing the order of acquittal passed by the learned trial Judge. Criminal Appeal No. 192 of 1983 is by Vinod Chaturvedi while the other is by five of the co-accused. All of them had been charged for offences punishable under Ss. 148, 364 and 302/149 of the Penal Code and were acquitted by the Additional Sessions Judge. The State of Madhya Pradesh carried an appeal being Criminal Appeal No. 732 of 1980 to the High Court assailing the acquittal and the High Court allowed the Appeal and while maintaining the acquittal under Section 302/149 of the Penal Code, convicted the appellants for offences punishable under Ss. 148 and 367 of the Penal Code and directed each of them to be sentenced to 3 years rigorous imprisonment for each of the offences with a further direction that the two sentences would run concurrently.

2. According to the prosecution on 27th April, 1973, around 4 p.m. the appellants kidnapped Brindaban, the deceased son of P.W. 1. from village Budha, and took him in a jeep to Rampura about one kilometre away on the pretext that a pending dispute between Brindaban and some villagers of Rampura would be settled amicably. It was further alleged that later in the evening Brindaban was done to death by being given several blows by blunt and deadly weapons pursuant to the common object of the appellants of killing him. The dead body was brought to village Budha on the following day. Investiagtion was taken up on the basis of the first information report and as a result thereof five persons were put on trial in Session Trial No. 107 of 1973 but they were acquitted by the learned trial Judge by judgment dated 29-1-74. The trial Court came to hold that the investigation was defective and the real accused persons had not been brought to trial. Nothing appears to have been done in the matter until 1977 when a fresh investigation was undertaken and it resulted in prosecution of the appellants in the court of Session as killers of Brindaban.

3. Prosecution examined seven eye-witnesses being P.W. 1 Sunderlal father of the deceased; P.W. 2 Nathu a covillager and claimed to be a servant of P.W. 1 by the defence; P.W. 3 Kalua. a nephew of the deceased; P.W. 23 Jhallu, a brother of the deceased. P.W. 24, Nanhaibai wife of the deceased and P.Ws. 13 and 14. two outsiders who have been declared hostile by the prosecution. The trial Court assessed the evidence in a fair way and was not prepared to rely upon it. Accordingly he disbelieved the prosecution case and directed acquittal of the accused persons. The High Court did not come to the conclusion on the basis of the ocular evidence that the same was acceptable and on the basis thereof a conviction could be recorded, but heavily relied on two documents - the first being Exhibit P-1, a letter sent by P.W. 1 Sunderlal to the Superintendent of Police dated 29-4-73 and the second, being Exhibit P-9 a confidential letter of the Superintendent of Police to the Deputy Inspector-General of the Department. The High Court found support for the prosecution case from these two letters and accepting the position that their contents corroborated the oral evidence of the witnesses proceeded to reverse the acquittal. It however did not accept the prosecution case relating to the charge of murder. Thus, while sustaining the acquittal in respect of the charge of murder the Court convicted the appellants under Ss. 148 and 367 of the I.P.C.

4. The peculiar features of this case are that the prosecution had alleged that Brindaban had been murdered by a set of five persons different from the present appellants and had made them face a regular trial. Three most material witnesses being P.Ws. 1, 3 and 24 of the present trial who are close relations of deceased. Brindaban had then testified before the Court that those five accused persons and no others including the appellants were r