S.W. Puranik, J.
1. Both these appeals are heard together and are disposed of by this common Judgment inasmuch as they are directed against one judgment delivered on September 17, 1984, by the Additional Sessions Judge, Nanded, in Sessions Case No. 17/1984. Appellants in Criminal Appeal No. 210/84 were the original accused Nos. 1 and 3 in the said Sessions trial while appellant Abdul Latif in Criminal Appeal No. 211/84 was the original accused No. 2 in the said trial.
2. All the three appellants were charged for offence of murder punishable under section 302/34 of the Penal Code as also for the offence under sections 201/34 of the Penal Code.
3. The allegations on behalf of the prosecution were that on August 19, 1983, between 9 to 11.30 p.m. in the house of Babusing s/o Vithalsing Bais situated in Gadipura, Nanded, they had with common intention committed the murder of Narsingh husband of Karuna (accused No.1) by intentionally causing his death by strangulation and that, they gave false information with the intention of screening themselves from the clutches of law.
4. Appellant Karuna is the wife of the late Narsingh Chavan. Appellant Gangubai is the mother of Karuna i.e. the mother-in-law of deceased Narsingh while appellant Abdual Latif is the alleged paramour of Karuna.
5. It was the case of prosecution that some months before the incident in question the relationship between Karuna and her husband deceased Narsingh had become strained. The deceased Narsingh had become an addict of alcohol and used to beat Karuna on occasions. It is further alleged that Karuna, even though a mother of seven children from her husband Narsingh, had developed illicit intimacy with accused No. 2 Abdul Latif.
6. It was further the case of the prosecution that few days before the incident in question deceased Narsingh, his wife Karuna and their daughter Anita had been to Hyderabad in connection with the settlement of marriage of Anita. The talks in respect of her marriage, however, did not fructify and the deceased Narsingh, his wife Karuna and daughter Anita returned back to Nanded. On their return, there was an incident in which the deceased Narsingh assaulted his wife Karuna and as a sequel to this incident, Karuna with her five children was brought back to the house of her father Babusingh who was living in the same area. The prosecution further alleges that on Karuna and her children shifting to her parent's residence, the deceased also came and resided with his father-in-law Babusingh and accused Karuna and her mother Gangubai.
7. The incident is of August 19, 1983. The father-in-law of deceased had gone out of station. Only Narsingh, his wife Karuna, his mother-in-law Gangubai and their five children were in the house on that date. According to the prosecution, the deceased Narsingh returned home at about 5 p.m. at which time he was under the influence of alcohol. It is alleged further that at about 10.30 in the night the deceased had a quarrel with his wife Karuna and suddenly, Karuna overpowered her husband Narsingh and fell him down on the open verandah and sat on his chest. Accused No. 2 Abdul Latif brought a rope and sat near the head of deceased Narsingh. Accused No. 3 Gangubai helped them by sitting on the legs of the deceased. Accused No.1 Karuna and accused No. 2 Abdul Latif strangulated Narsingh by trying a rope around his neck.
8. According to the prosecution, this incident was witnessed by P.W. 10 Kishnabai who was a distant relative of Narsingh and was working as a maid-servant in that house. It was also witnessed by Balaram (P.W. 4) immediate neighbour. He is alleged to have seen the incident by climbing over the tin-roof.
9. According to the prosecution, number of persons had gathered in front of the house and one Raja s/o Satwaji (P.W. 3) had also noticed the same. He found that the main entrance door of the house was locked from inside and even though people were shouting to open the door nobody was opening the same. He, therefore, rushed to the Police Station and informed this fact.
10. On taking entry in the station diary two Police Constables and two home-guards accompanied by P.W. 3 Raja came to the residence of Karuna. On their call also the entrance door was not opened and finally they climbed over the wall into the open Court-yard. It is alleged by the prosecution that Raja (P.W. 3) switched on the light in the verandah and called for the inmates of the house. Accused No. 1 Karuna, her mother Gangubai and Karuna's children emerged from a room. On enquiry by the Police Constables, accused No.1 Karuna informed them that there has been a domestic quarrel between her and her husband. P.W. 3 Raja and the Police Constables saw at that time that Narsingh was lying in a cot on the Osari. It was also noticed that the main entrance door was locked from inside and it was accused No. 1 Karuna who on demand by the police handed over the key. On being satisfied that there was nothing untoward happened, the police party and the witness Raja returned. The people who had gathered outside were also asked to leave.
11. In the morning of August 20, 1983, accused No. 2 Gangubai mother of accused No. 1 Karuna reported to the Police about the death of Narsingh. It was registered as accidental death No.13/1983. The Police Investigating Officer also recorded the statement of Gangubai vide Exhibit 47.
12. It is alleged that shortly after this entry, an anonymous telephone call was received by the Police stating that Narsingh Chavan had some dispute on the earlier date with his wife Karuna in the night and that, he was not traceable. The source of this information could not be known. However, the police agency swung into action and came back to the place of incident. They prepared inquest panchanama over the dead-body of Narsingh and noticed that there were ligature marks around his neck. They also prepared panchanama of the scene of offence and thereafter, the dead-body of Narsingh was sent for autopsy. The Medical Officer issued a preliminary report that the deceased died because of asphyxia as a result of stranagulation. Upon this report, Police Sub-Inspector Manudahen registered an offence about 8 p.m. on 20-8-1983 at Crime No. 115/83. Immediately thereafter, accused No.1 Karuna and accused No. 2 Gangubai were arrested on 20-8-83. While accused No. 3 Abdul Latif was arrested on 28-8-83. During the course of investigation the statement of eye-witness Kishnabai (P.W. 10) was recorded on 20-8-83 in the evening. The statement of another eye-witness Balram (P.W. 4) was recorded on the night of 21-8-83. On 22-8-1983 accused No. 1 Karuna showed her willingness to produce the rope which was the weapon of offence and her memorandum was recorded vide Exhibit 29 and the nylon rope produced by her from the store-room was seized under Exhibit 30. Article No. 4 was sent to the Chemical Analyser but the result is negative and it does not show any blood-strains or skin-tissues attached to it
13. It is pertinent to note that after this statement of eye-witness Kishnabai (P.W. 10) was recorded on 20-8-1983, the Investigating Officer also arrested her on 30-8-1983, her statement before the Magistrate under section 164 of the Criminal Procedure Code was also recorded but finally she was released on September 8, 1983.
14. Mohd. Rafiq (P.W. 8) is the Police Constable who investigated part of the crime upon report lodged by P.W. 3 Raja. Police Sub-Inspector Manudhane (P.W. 11) conducted the investigation in respect of the accidental death and then lodged his first information report under sections 302 and 201 read with section 34 of the Penal Code at Exhibit 48. It is he who completed the investigation and filed the charge-sheet against the three accused.
15. After the case was committed to the Sessions Court, the prosecution examined 11 witnesses in its support. On examination of the accused, they abjured their guilt and contended that entirely false and connected story has been lodged against them. On appreciation of the evidence, however, the learned Additional Sessions Judge accepted ocular testimony of Kishnabai (P.W. 10) and Balaram (P.W. 4) as also accepted the circumstantial evidence tendered by the prosecution and found that all the three accused were guilty of both the offences charged against them. He imposed sentence of life imprisonment upon the three accused. It is this judgment of conviction and sentence which is being impugned by the appellants in these two appeals.
16. Shri S.N. Loya, Advocate appears for the appellants in Criminal Appeal No. 210/84 while Shri S.C. Bora, Advocate appears for appellant Abdul latif in Criminal Appeal No. 211/84. Respondent-State is represented by Shri B.B. Jadhav. Additional Public Prosecutor. With the assistance of the Counsel of both the parties we have carefully gone through the evidence and documents on record and have also perused the impugned judgment. It was contended on behalf of the appellants in both the appeals that the impugned judgment is totally erroneous and illegal. Several infirmities in the evidence of eye-witnesses Kishanabai (P.W. 10) and Balaram (P.W. 4) were pointed out to support the theory that their testimony is totally unreliable. Emphasis was also laid upon the fact that the Investigating Officer Police Constable Mohd. Rafiq had already been to the house and had not noticed anything untoward. The delay in lodging of the first information report after having enquired into the accidental death was also criticised, which, according to the appellants, was fatal to the prosecution. According to the appellants, the Investigating Officer was marking time to concoct the prosecution case and to plant eye-witnesses. Shri Loya for the appellants also urged that the testimony of Kishnabai is nothing but a figment of imagination. Her testimony cannot be relied upon as she is in the position of an accomplice having been arrested for the same offence on August, 30, 1983, for a period of about nine days. Her presence in the house was doubtful. The prosecution case indicates as if this witness was called to the houses and was made to wait to witness the incident. The conduct of both the eye-witnesses Kishnabai and Balaram is most unnatural and improbable. In the absence of ocular testimony, therefore, the circumstances brought on record are not sufficient to bring home the guilt of the accused. The circumstance of the discovery of rope is of no assistance to the prosecution and the theory propounded by the accused in defence that the deceased Narsingh had assaulted Karuna and had locked up Karuna and Gangubai in one and room locked it from outside becomes more probable. Shri Bora also urged that there is no iota of evidence against accused No. 2 Abdul Latif with regard to his presence at the scene of offence. There is also no evidence against him of the any illicit relationship with Karuna and, therefore, there is total absence of motive on his part.
17. Shri B.B. Jadhav, Additional Public Prosecutor, supported the impugned judgment. He submitted that even though there was no direct evidence regarding illicit relationship between Karuna and her paramour Abdul Latif yet, the defence Counsel themselves had given suggestions on that count to the prosecution witnesses. He also submitted that even though there is no direct evidence that a quarrel was going on at the material time between the deceased and accused No. 1Karuna yet, the statement of Gangubai (accused No. 3) recorded on the morning of 20-8-1983 at Exhibit 47 shows that on the fateful evening there was a quarrel between them. Shri Jadhav relies on the reported decisions of the Supreme Court in Faddi v. State of Madhya Pradesh, : 1964CriLJ744 and Aghnoor Nagesia v. State of Bihar, : 1966CriLJ100 and contended that the statement of accused No. 3 Gangubai is admissible in so far as it relates to certain statements of fact not connected with the crime itself. He, therefore, contended that the accused No. 1 Karuna, her mother and her alleged paramour have been rightly convicted.
18. Having detailed the prosecution case as appearing on record it may be summarised that the prosecution relies on the direct testimony of Kishnabai (P.W. 10) and Balaram (P.W. 4). It also relies upon the following circumstances namely: (i) That, the relations between accused No. 1 Karuna and deceased were strained and there were quarrels, (ii) that, Karuna was having illicit relations with accused No. 2 Abdul Latif, (iii) that, on the date of incident there was in fact a quarrel between accused No. 1 Karuna and deceased Narsing, (iv) that, the main entrance door of the premises was locked from inside and the people had gathered around 9.30 in the night and had heard shouts emanating from the house but the door was not being opened inspite of demand, (v) that on report by P.W. 3 Raja, Police Constable Mohd. Rafiq (P.W. 8) had come to the house to verify and as the door was not opened they had to climb over the compound wall, they found that Narsingh was lying on a cot in the Osari and Karuna and Gangubai told them that there was only a domestic quarrel, (vi) Gangubai herself made a report (Exh. 47) stating that Narsingh had died in the night after the quarrel between him and accused No. 1 Karuna, (vii) that the medical evidence of Dr. Gagrani (P.W. 1) indicating that the death of Narsingh was due to the strangulation; and (viii) the production of nylon rope. Upon this evidence the prosecution wants to establish the charges against all the three accused.
19. It may be noted that all the accused were charged only with the aid of section 34 of the Penal Code. No charge of murder under section 302 of the Penal Code simpliciter was framed against any of the accused. Charge under section 201 of the Penal Code with the aid of section 34 of the Penal Code was also framed against all the three accused.
20. As regards the principal offence of murder by the three accused in furtherance of their common intention we will have to assess the evidence of the two direct witnesses Balaram and Kishnabai as well as the other circumstances noted above.
21. In chronological sequence we will have first to appreciate the initial part of the prosecution story as unfolded through P.W. 3 Raja and Police Constable Mohd. Rafiq (P.W. 8). P.W. 3 Raja was serving in the Hotel of Babusingh-father-in-law of deceased Narsingh. He had closed the hotel at about 10.30 p.m. and was returning home. On the way, near his house he met one boy, whose name is not disclosed by him, who told him that a number of persons had gathered near the house of Babusingh and there was some hue and cry being heard from the house and nobody was opening the door. He then went immediately to the house and knocked on the door but to no effect. He saw about 200 persons who gathered there. The people told him that he should go to the Police Station. He then accompanied by another servant also named Raja son of Namdeo went to the Police Station. His report was taken down in the station diary under Entry No. 34 dated 19-8-83, at Exhibit 16. Immediately thereafter two Police Constables along with two Home Guards were despatched to the scene of offence. Document (Exh. 17) is regarding the station diary Entry No. 35 of the same night after the police party returned back.
22. According to P.W. 3 Raja when he came to the scene of offence with the police party, the crowd was already there, the police party and P.W. 3 Raja asked the door to be opened but was not opened. They climbed over the 7 ft. compound wall and entered the Court-yard of the house. P.W. 3 Raja then switched on the light and noticed that Narsingh Chavan was lying on the cot in front of the Deoghar. He also called out Gangubai and Karunabai, and immediately they all the children came out of the house. Karunabai appeared annoyed with their presence and informed them that it was their usual domestic quarrel. She requested the police party to go out. Accused Karuna produced the key of the main door which was locked from inside and the door was opened. No further investigation was made by the police and they returned back to the Police Station. They also asked the crowd which had gathered thereto go away. It is only in the morning next day that this witness learnt of the death of Narsingh. The station diary Entry No. 35 at Exh. 17 clearly shows that the police party went to he house and learnt that there has been a quarrel between husband and wife and that, the husband had beaten Karuna and that, there was no other untoward incident. P.W. 8 Mohd. Rafiq Police Constable also narrates the same story. He says that on our enquiry accused No. 1 Karuna told him that her husband was under the influence of drink and was sleeping and when we tried to go near the cot the accused Karuna, her mother and children did not allow them to go to the cot. Immediately thereafter P.W. 3 Raja got the key from accused No. 1 Karuna, opened the door and then they left.
23. From the testimony of these two witnesses the only circumstance proved is that the door of the main entrance was locked from inside. It is pertinent to note, however, that both these witnesses do not refer to the presence of accused No. 2 Abdul Latif as also the presence of the star eye-witness Kishnabai (P.W. 10). In fact, according to P.W. 10 Kishnabai, it is after the police party had come and the door was opened that, she left the scene of offence. However, both these witnesses do not refer to her presence. It is also the case of the prosecution that the alleged paramour Abdul Latif was in the house at the time of incident and continued to be in the house till 2 in the night. Yet his presence is also not referred to. The prosecution has tried to show through the evidence of P.W. 3 Balaram and P.W. 9 Bajransingh that accused No. 2 Abdul Latif was seen leaving the house at 2 in the night. If that be so, Kishnabai (P.W. 10) and Abdul Latif ought to have been seen by these two witnesses.
24. Coming to the ocular testimony of Kishnabai (P.W. 10) and Balaram (P.W. 4) it must be observed that in so far as the testimony of Kishnabai is concerned, she is in the position of an accomplice, she was arrested in connection with the very offence ant was in the police custody for about 8 to 10 day. Her testimony will have to be taken with great caution and that too, if only there is proper corroboration to her testimony.
25. As already noted, Kishnabai (P.W. 10) a maid-servant in the usual sense but is a distant relative of deceased Narsingh. It was because of her poor circumstances that she used to work at his place for meals. She continued to work, according to her, even on the date of the incident. Her story as deposed is very interesting and amusing. She say that the relations between Karuna and Narsingh were good for about two years. There after accused No. 2 Abdul Latif used to visit the house of Narsingh and this continued for about six months prior to the date of incident and that, accused Karuna and accused No. 2 Abdul Latif used to sit in the room and used to ask her to go home. It is because of this, the relations between Karuna and Narsingh were strained and quarrels used to take place. This in all the evidence of the alleged intimacy between Karuna and Abdul Latif. It has also come from her testimony that Karuna had seven issues from Narsingh and five of them were alive. The eldest one Anita was aged about 20 years. She also refers to a quarrel at the residence of Narsingh whereafter Karuna had shifted to the residence of her father with her children. She also narrates that Narsingh also went to reside with Karuna at the house of Babusingh. This evidence does not explain why the relations became strained and Karuna had separated from Narsingh. Be that as it may, this does not advance the case of the prosecution any further.
26. As regards the actual incident, according to P.W. 10 Kishnabai, she had not gone to work during the day time and Anita the eldest daughter of Karuna had come to call for work in the evening. She worked upto 9.30 p.m. Then accused No.1 Karuna and Gangubai told her to wait and go only after Narsingh came. Upto this the witness dose not refer to the presence of other children and Narsingh in the house as also to the presence of accused No. 2 Abdul Latif. She then narrates that when she was asked to sit in a room next to the Deoghar the room was chained from outside. She does not disclose whether it was chained by Gangubai or by Karuna. She then asked from inside the room as to why the door was chained from outside. According to this witness, at this moment, the deceased Chavan Master (Narsingh) came there and he opened the door. He asked her who was inside and she disclosed her identity. Karuna who was present outside the room also followed Narsingh and told him that 'Badi ma' (Kishnabai) was inside the room. According to this witness, Karuna took Narsingh to the open Verandah and some scuffle between them took place and accused Karuna fell Narsingh Master on the ground. She saw accused Latif sitting on Sajja of Deoghar. She also saw Latif jumped in the Osari. She further saw that accused Karuna sat on the chest of Narsingh and she herself and accused No. 2 Latif then started pulling the rope which was fixed around the neck of Narsingh. Since he was making some movements, accused No. 3 Gangubai also sat on his legs. Narsingh should 'Bala Kaka Bala Kaka Bachav' Bala Kaka refers to the witness Balaram (P.W. 4). Kishnabai (P.W. 10) then saw that Balaram had come on the zink roof of his house. Balaram gave a call to the inmates of the house as to what was going on and accused No. 1 Karuna informed him that it was her domestic dispute. At this point of time accused No. 3 Gangubai switched off the light. Number of persons were knocking the main door but it was not opened. Accused No. 1 Karuna, accused No. 3 Gangubai and accused No. 2 Abdul Latif then lifted Narsingh from the floor and kept him on the cot. Shortly thereafter Raja (P.W. 3) with the police persons came in the house. She was sitting in the kitchen and when the door was opened she immediately left the house. This is the version narrated by witness Kishnabai (P.W. 10). Apart from the fact that, it appears wholly unnatural we will have to see whether this story is corroborated in any respect. Even though the incident is of night of August 19, 1983, her statement has been recorded on the night of August 20, 1983. No reason for such delay in recording the statement has been given inasmuch as this witness was readily available in the same town. We have also noticed that Police Constable Mohd. Rafiq and Raja (P.W. 3) do not at all refer to her presence at the material time when they had been to the house of Babusingh. In her cross-examination, she admits that she had not seen Raja (P.W. 3) visiting the house of Narsingh earlier. It is not known as to how she happened to know that Raja (P.W. 3) had come with the police party. According to her, this incident of strangulation lasted for half an hour. She herself was a passive observer and did not speak during the incident of half an hour. She admits that Anita 20 year old daughter of accused No. 1 Karuna was also present. In para 7 she admits that she herself nor Anita talked to Balaram when he had come on the roof. She did not shout for help. Further even though the police party had come with Raja (P.W. 3) she did not talk to them nor did they talk to her. What is more interesting is that she did not tell this incident to any person or persons who were gathered in front of the house while she was leaving the house. When she entered her house she did not narrate the incident to her son or daughter-in-law. Next morning she also did not narrate the incident to her close relative. Furthermore, she admits that next morning she went to the house of Narsingh in the morning at 6.30 or 7 a.m. when she saw number of relatives had gathered in the house. Yet, she did not talk with the said relatives and disclose the incident. She tries to rectify this situation by saying that she did narrate the incident to the wife of Narsingh's brother. However, she is neither named nor examined by the prosecution. One fact, however, remains undisputed and that is, she did not narrate this incident to anybody from the time of incident till her statement was recorded next evening.
27. Apart from the artificiality of this deposition, the conduct of this witness itself casts a cloud on her veracity. The witness is a distant relation of Narsingh and it is improbable that she would not disclose this incident of gruesome murder to any of the relatives who had gathered next morning as also the crowd which was outside the house or to her own son or daughter-in-law. Her statement has been recorded by the police after 24 hours. She was also admittedly taken into custody for the same offence and the Investigating Officer probably did not rely upon her veracity and got her statement recorded before the Judicial Magistrate. In para 10 of her cross-examination several omissions amounting to contradictions have been brought on record. She avers that she had narrated this incident to the police that accused No. 2 Abdul Latif and accused No. 1 Karuna were pulling the rope which was tied to the neck of Narsingh but she is unable to explain why this is omitted in her police statement. The fact that she was in that house of the fateful night till 9.30 is also not disclosed in her earlier statement, and what is more important is that even though she states that she had narrated the name of witness Balaram that he had come on the zink roof of his house, that fact is also missing from her earlier statement. Her testimony shows that she is merely a got up witness, her story is totally unreliable, she has no credence for truth and she can be branded as nothing short of a blatant liar. As already stated, apart from being unreliable she was also in the position of an accomplice and we do not find any corroboration from any of the testimony of the other witnesses. The main omission from her statement amounting to contradiction that Karuna and Abdul Latif were pulling the rope around the neck of Narsingh established the fact that this witness is not only unreliable but wholly untrustworthy. Her testimony is merely to be discarded.
28. The other witness Balaram (P.W. 4) is also cited as an eye-witness. According to this witness, who is an immediate neighbour at about 10.30 p.m. he was lying in the Osari of his house. He heard sounds of 'Bala Kaka Bala Kaka Bachav' from the house of Babusingh. It was 10.30 in the night. He identified the voice as that of deceased Narsingh. He at once came out of the house and knocked on the door of main entrance of Babusingh's house. He gave a call to open the door. He also pressed call-bell. But the door was not opened. His brother Kishan also came there. Fifty persons were gathered at the spot. He asked his brother Kishan to go on the tin roof and he also followed him. They went on the zink sheet roof of their house. From there they noticed that Narsingh was lying on the floor of Osari and accused No. 1 Karuna was sitting on the cheot, accused No. 3 Gangubai was sitting on the legs of Narsingh while accused No. 2 Abdul Latif was near the head of Narsingh. He states that he saw Kishanabai (P.W. 10) near the Deoghar. He also saw a rope in the hand of Karuna and Abdul Latif. According to this witness, on noticing the sound of zink roof accused No. 3 Gangubai switched off the light. His brother Kishan gave a call saying that 'Chavan Saheb Chavan Saheb' and it is accused No. 1 Karuna who told him and his brother that Narsingh was heavily drunk and he may assault them and asked them to leave. The witness and his brother got down from the roof of their house. At that time about 200 persons had gathered in front of the house of Babusingh. Raja was seen in the mob and it is this witness Balaram (P.W. 4) who told him to go to the Police Station. Raja then called the Police, they came and knocked the door.
29. As far as the testimony of this witness is concerned, it shows that not only himself but his brother Kishan is also a witness to the incident. The said Kishan is not examined either to corroborate or substantiate the testimony of this eye-witness Balaram. Whereas, the witness Kishnabai stated that Anita was standing by her side at the time of incident. The witness Balaram does not refer to her presence. Kishanabai (P.W. 10) states that after Karuna told Balaram that it was a domestic dispute, accused No. 3 Gangubai switched off the light whereas the witness Balaram reverses the sequence and says that the light was switched off first and then Karuna responded to Kishan. Furthermore, the witness Kishanabai (P.W. 10) does not refer to the presence of Kishan brother of Balaram. Whereas this witness insists that he himself and Kishan were both standing and it was Kishan who had given a call to Narsingh Master. Cogent corroboration to this witness is sadly lacking and the prosecution for reasons best known has not examined Kishan. Apart from this, his witness continues to narrate the arrival of Raja with the police party and their climbing over the wall into the Court yard. He includes the version about the taking of match-box from the public and later on electric light was put on. The main door was opened and ten minutes after the police party came out.
30. According to him, he disclosed the incident of Bholesingh and Bajransingh, who continued to chit-chat on his Osari and also noticed at about 2 a.m. in the night that the main door of Babusingh's house was opened and that, accused No. 2 Abdul Latif came out and left with a shawl on his person. He gives further spicy touch to his story by saying that in the morning at about 6 a.m. accused No. 3 Gangubai came to his house and told him that Narsingh was not talking or making any movement. He then told her that when he had asked to open the door it was not opened and now she should not make any grievance and should not call him. Accused No. 3 Gangubai then went back to her house crying and weeping. This witness then went away for his duty.
31. This witness has exposed funny conduct by not rebuking Gangubai as far as the incident of strangulation is concerned but merely advised her not to ask for help. It has come on record through the cross-examination of this witness that his brother was a partner with Babusingh but denies the suggestion that there was any dispute between his brother and Babusingh. He has also no explanation as to why, when he had heard a call for help from Narsingh, he did not get down into the house from the roof to save Narsingh. He says that even though he felt that Narsingh was being murdered by strangulation, yet, he did not give any call to the public on the road for any help. Even though they were seen on the roof no person from the crowd asked them regarding the incident. Even after they got down from the roof they did not make any attempt to enter the house. This witness has the temerity to say that he had narrated this incident to Bajrang, Bholu, Babulal, Dhanusingh, Musta and Ismail but none of them attempted to climb over the seven foot wall to save the unfortunate incident. He admits that even though he had told Raja to report the matter to the police he had not disclosed the incident as such to Raja. The witness then avers that he did narrate the incident to Raja after he returned with the police party. Surprisingly no corroboration is forth coming from P.W 3 Raja. In fact, he states that he did not see P.W. 4 Balaram at the scene of offence any time.
32. The conduct of this witness goes to show that next morning even though Gangubai told him of the death of Narsingh he did not brother to go to the Police Station and to narrate them what he had witnessed, instead he went away for usual work as a washer-man. He also does not say that he saw the Police party when he had returned for the river. The conduct of this witness is so unnatural that it is hard to believe his testimony. It is not the case of this witness that he was afraid of his life if he were to disclose the incident to anyone. But yet for no reasons whatsoever there is nothing brought on record that this witness did narrate or disclose the incident to anyone. In his statement to the police, he had also not narrated that he had given a call to Narsingh when they were on the roof to watch the incident. Moreover, the testimony of P.W. 3 Raja shows that this witness Balaram and his brother Kishan are on inimical terms with Narsingh and Babusingh P.W. 3 Raja in para 3 of his cross-examination has stated that he knows Kishan and his brother Balaram and states as follows :---
'Due to dispute the partnership of Kishan Dhobi was discontinued and Babusingh then took Omprakash as his partner. Due to the said discontinuance of partnership the relations in between Kishan Dhobi and Babusingh became strained. Due to the said dispute Narsingh, accused Karuna were also not on talking terms with Kishan Dhobi.'
In para 4 P.W. 3 Raja clearly admits that he did not see Kishan nor Balaram Dhobi in the said crowd at the material time. Thus, apart from the unnatural conduct of the witness there is absolutely no corroboration forthcoming from P.W. 3 Raja or for that matter from P.W. 10 Kishnabai and further there is undisputedly enmity between this witness and deceased Narsingh and his wife Karuna. In our opinion the testimony of this witness whose statement was recorded after two days after the incident is wholly unreliable. It is not the case of the investigating agency that this witness was not available in the town. For all these reasons the ocular testimony of this witness and that of Kishnabai (P.W. 10) has to be discarded.
33. Balaram (P.W. 4) and Kishnabai (P.W. 10) were the only eye-witnesses to the incident examined by the prosecution and both are found to be totally unreliable.
34. Having discarded the direct testimony of the two witnesses we are left only with the circumstantial evidence brought against the accused, in that, the prosecution wants the Court to take into account the fact that the main door of the house was closed from inside and that, three accused were inside the house and are, therefore, the persons responsible for the murder. We are not impressed by this circumstance at all because the presence of accused No. 2 Abdul Latif is not at all established at the scene of offence from any evidence. The police party which came to the house at mid-night alongwith P.W. 3 Raja did not see Abdul Latif in the house. They also did not see eye-witness P.W. 10 Kishnabai. Furthermore, admittedly in the house apart from Karuna and Gangubai, Anita her twenty years old daughter alongwith four children were present. According to the learned Additional Public Prosecutor, the statement (Exhibit 47) is admissible inasmuch as it relates to certain facts unconnected with the offence. If that statement is looked into it could be seen that on the date of the incident the deceased under the influence of liquor had abused the wife Karuna her daughter. The children were crying. The deceased was also crying over-night. She herself and her daughter were inside the room with the children. Her daughter Karuna also came inside the room and latched it from inside on the ground that she was being beaten by Narsingh and thereafter deceased Narsingh latched the door from outside. He continued to shout from outside. Narsingh had also locked the front main door of the house. Because of his shouting many people had gathered in front of the house but since they were locked in their room they could not open the main door. Thus, if this statement is looked into on the ground that it is admissible it clearly shows that both Karuna and Gangubai were locked inside the room and they were unable to come out and open the main door. They were also not aware as to how Narsingh expired some time in the night. It is only after the police party came that they were able to come out of the room.
35. We have also noticed that no motive has been established in this case against accused No. 2 Abdul Latif, his illicit relations with Karuna is not at all brought on record and his presence is also not established. As such the conviction recorded against accused No. 2 Abdul Latif cannot be sustained. Secondly it has come on the record that Karuna has been married to Narsingh for about 21 years back, their eldest daughter Anita being 20 years old. The deceased was an alcoholic and used to quarrel but at the same time he was staying with his wife and children in the house of his father-in-law Babusingh. It has also come on the record that the deceased with his wife and daughter Anita had returned from Hyderabad in connection with the marriage of his daughter. It, therefore, shows that the relations were not so strained so as to give any motive for accused No.1 Karuna to do away with her husband. The ocular testimony is wholly unreliable and is already discarded. The circumstance that the door was locked from inside by itself is not of any consequence. As admitted by the Police Constable Mohd. Rafiq and Raja (P.W. 3) the height of the main door wall was only seven feet and any body could enter the Court yard and reach the open verandah where the deceased was sleeping. The testimony of Kishnabai (P.W. 10) does not show that there was any quarrel so as to give any cause to Karuna to attack her husband in the manner described. For all these reasons we find that the circumstantial evidence does not complete the chain of events and is insufficient to conclude the guilt of the accused. In fact, whatever circumstances are on the record are also compatible with the hypothesis of the innocence of the accused. The defence version is rendered more reasonable and probable.
36. It may not be out of place to mention here that the Counsel for the appellants tried to urge that the death of deceased was not due to the strangulation but asphyxia due to over intoxication. However, the testimony of P.W. 1 Dr. Gangrane clearly indicates the presence of ligature marks with subcutaneous tissues having blood. It may be that the cross-examination of this Medical Officer was not done to pursue the theory of natural death due to the intoxication. At any rate, we are not inclined to accept the theory of death due to the intoxication for lack of evidence in that regard. The death was, therefore, homicidal as held by the trial Court.
37. The prosecution, however, is unable to establish the nexus between the three accused, their common intention to do away with the deceased Narsingh and their nexus with the actual act of strangulation. For the reasons discussed above, we are unable to agree with the conclusion of the learned trial Judge. The conviction under sections 302/34 of the Penal Code, therefore, is liable to be set aside.
38. As regards charge under sections 201/34 of the Penal Code it must be observed that there is no material on record to prove charge under sections 201/34 of the Penal Code. There is no attempt at disappearance of any evidence to conceal the fact of murder. Merely giving misguided information of a death or murder does not amount to an offence under section 201 of the Penal Code unless it is shown that the information given was false to the knowledge of the informer and was given with the intention of screening the offender. Admittedly, there is no material to show that Gangubai gave information with the knowledge that it was false as per the discussion herein before. Hence, there is no material to support the conviction of the appellants for that offence. We hold that all the three appellants in these two appeals are entitled for acquittal for offence under sections 201/34 of the Penal Code. It may not be out of place to mention here that the body of deceased Narsingh continued to be in the house throughout the night and in the morning only it was available for inquest and post-mortem. The rope (Article No. 4) allegedly used for the commission of offence was also in the house itself and the fact of his death was known to all the relatives who were already present in the house on the morning of August 20, 1983. The conviction under sections 201/34 of the Penal Code cannot, therefore, be supported on any ground and is liable to be set aside.
39. In the result, both these appeals are allowed, the conviction and sentence imposed upon all the three appellants are quashed and set aside and they should be set at liberty forthwith if not otherwise required. Their bail bonds shall stand discharged.