H.R. Krishnan, J.
1. These two appeals arise from the judgment of the Additional Sessions Judge Barwani in a criminal case in which the two appellants husband and wife were sent up under a charge respectively of murder and under Section 201, I.P.C. of giving false information with the intention of saving the offender from punishment. The former for murdering, by gunshot, one Khandiya Bhilala of the same village; and the latter for falsely informing the authorities that she has killed the said Khandiya Bhilala in self-defense when he tried to abduct her so that he could make her his wife. The husband has been sentenced to imprisonment for life under Section 302, I.P.C., while the wife has been sentenced to two year's rigorous imprisonment under Section 201, I.P.C.
2. The conviction is based almost wholly on what may be called circumstantial evidence and the extra-judicial confessions or the statements of one or other of the accused persons before different villagers. The common ground in this case is that the two appellants were living together in their village Mohariya. They do not seem to have children of their own but they were bringing up two nephews, that is, Chema Bhilala's sister's sons? Tarsingh (P. W. 1) and Narsingh P. W. 2, the former about 13 years of age and the latter about 8. On the 6th March, 1964 which was the season of Holi there was. the usual spate of boisterousnesa among these villagers. One of the events of that day was a feast given by the patel. The deceased Khandiya Bhilala had attended the feast: but Chema did not, having given out earlier that he was to go to some place in the Khandesh - an area contiguous to this district; either he had really intended to go away or this was only an excuse so as not to appear impolite in refusing the invitation. On that night Khan diya Bhilala was killed by somebody shooting at him with a gun, a muzzle loader, from the nature of the shot and its spread and the find of wadding in some of the wounds. The corpse was found on the next morning and the villagers informed the police without putting the suspicion on anybody in particular. The place where the corpse was found was about 40 paces from the house of the appellants so that suspicion fell upon inmates of that house though the earliest information before the police was against unknown. In the morning both husband and wife were away: but the elder of the nephews, that is, Tar. singh, gave a story which has been treated as the main piece of evidence in this case. Later on Chema went to his father-in-law's place where already Pasubai had reached. Chema is said to have made a conlession to different people including the father-in-law. Later still, he was found in a jungle near another Tillage and it is said that he told people that he was wandering about there because he had killed a man. The gun itself was found outside the house concealed in a dungheap; on later examination it was found to have signs of having been used sometime before.
3. Tersingh's story was that while he was Bleeping on that night he was suddenly awaken ed by a gunshot. Opening has eyes he saw the two appellants in the house neat the door and talking. Tersingh heard has uncle Chema telling has wife of his having killed Khandiya and requesting her all the same to take the blame upon herself. The boy slept again and when in the morning there was a sensation in the village after the discovery of Khandiya's corpse he told the villagers what he had beard of the conversation between is uncle and his aunt.
4. Both the accused denied the charges Chema said that he did not shoot Khandiya: the wife has been inconsistent. In the earlier stages and in a so called confession before the magistrate she said she bad shot him in self-defence. In the Court she said that a neighbour Shavaji has shot Khandiya when he came and objected to his Shavaji making love to her.
5. The learned Sessions Court held that though there was no direct evidence, the different circumstances and the statements given by the accused themselves were sufficient to establish that it was the appellant Chema that had shot Khandiya with his gun. Motive is obscure; but the suggestion is that Khandiya was trying to be improperly familiar with Chema's wife which annoyed the latter. Actually, the learned Sessions Judge speaks of Chema having laid a trap by pretending to be going away to another village.
6. The woman went to her father's house and after sometime reached the police station at Khetia where she gave a statement. As that police station was not the proper one, a gist of that report was passed on to the thana Silawad which has jurisdiction over this village. Since this woman's story is the basis of her conviction under Section 201, Penal Code it is useful to quote the report in extenso.
To the Sub-Inspector Silawad, from Police Station Khetia-
I have to report that on 7.3.1964 one Mat. Pasu, wife of Chema Pawaria of village Jarar thana Silawad came to me at the thana Khetia at about 70 A.M. She reported that at about midnight she had been sleeping at her house. Khandiya Pawaria entered it and having forcibly caught her, dragged her outside. one pretended to agree and went back into the house saying that she would bring her clothes: but actually she brought out a muzzle-loading gun bharmar banduk which had already been kept there loaded. She shot Khandiya Pawariya with it. Having done it she went during the night itself to Bamanpuri. From there she had come to the thana. She says that She has killed Khandiya Pawariya. Please take necessary action....
Meanwhile the Silawad police were investigating this case on a report against unknown given by a villager.
7. We have a vague indication that these two jointly, or one of them, might have had something to do with the killing of Khandiya because the corpse was found just outside their house and the killing was with a muzzle-loading gun and Chema has a muzzle-loading gun and further though these points are not so definite, the wadding found in one of the gunshot wounds in the corpse was similar to the wadding found in Chema's house, and the gun itself had signs of having been used sometime before the examination. The problem then is whether this is sufficient and if so, whether they were acting with a common intention or, which comes to the same thing, each abetting the other; and if each was acting independently which of the two it was. In the absence of common intention the evidence has to be led pointing to one out of the two because the shooting of the gun was a one-man job whoever it was, whether one of the appellants or Shavaja Bhilala as for that matter or the woman.
8. The woman's own statement might either be true or might be designed to put the police on a wrong track. To show the latter which-would of course be an offence under Section 201, Penal Code as giving information likely to screen the real offender it has to be established by separate and sufficient evidenoe that the real killer was somebody else. For that the prosecution here depended upon the statements attributed to Chema as it appears on three different occasions. The first when his rephews waking up on hearing the report of the gun are able to remark that their uncle and aunt are at the door and are talking in course of which conversation the uncle says to his wife that he had killed Khaniiya but she should take the responsibility on herself. The second occasion is when the appellant Chema is said to have gone to his parents-in-law where the wife had already reached and asked her to follow him to the police station so as to give a statement that could save him from prosecution. At that stage he is supposed to have told the in-laws also that he it was that had killed Khandiya; but be all the same wanted the wife to take the responsibility. The third occasion is when he is wandering in a jungle and the auspicious villagers question him and he tells them that he is wandering about because he had hilled a man. The real difficulty is the; if we are seriously called upon to believe that the wife was implicating herself so as to screen the husband from the consequences of his act, it was at least equally likely that the husband was trying to screen the wife by pretending to have shot Khandiya while he had done nothing and the wife herself had shot that man when he tried to abduct her. Whether it is a case of cross-application, or one of mutual self-implication with a view to saving the other, we cannot arrive at any finding unless there is independent evidence pointing to one or of the two or equally independent evidence showing common intention. We do not have it in this case.
9. The learned Sessions Judge has formed at a theory which, however plausible, itself is one unsupported by any evidence. Khandiya was one of the lovers of the woman and the husband was laying a trap by pretending to the going away to a village in another district; but actually lying in wait for the lover. He keeps away from the feast which Khandiya attends from which possibly the latter forms the impression that the husband was really away. Accordingly he tries to go to meet the woman when the husband lying in wait shoots him dead. After it he makes the woman her-self go to the police pretending that she had done it in a fit of real indignation that Khandia who stood in the relationship of a nephew should make such indecent-overtures. All this sounds quite ingenious but is altogether without any shred of evidence to support it.
10. What the lower Court supposes to be the eye-witness evidence of Tersingh is, even rating it at its face value, the statement of certain circumstances and of an extra-judicial confession, That the boy could have heard the report of the gun is quite probable because sometime in course of the night the gun was actually fired just outside or near that house. The strange part of the story is that nobody-else, not even Shavaji Bhilala, nor as for that matter other villagers wake up and feel curious about the gunshot. The only explanation is either that the villagers knew why he was shot dead and approved of it, or were so drunk and merry that even a gunshot went unremarked. Anyway, the thirteen year old boy getting up in confusion or in fright is supposed to have followed the conversation between his uncle and aunt at a short distance at the door. This is surprising enough, especially, when we are told that the boy did nothing more than to close his eyes and sleep again. But ever if we believe all that he gives here it does not advance the prosecution theory very far, Chema confessed to his wife that be had killed and since possibly the killing had something to do with her requested that she should take the responsibility. Thus, it is nothing more than an extra-judicial confession heard by a boy who wakes up in the sleep and goes to sleep again. The evidence given by the younger boy has been rightly rejected by the lower court as he does not seem to have got any dear idea about the whole thing.
11. If we believe that the husband lying in wait surprised the wife's lover and the wife in the act then it would be a case of grave and sudden provocation. If the lover was dragging her away, then it could be just self-defence. The disability with extra-judicial confessions is that the prosecution speaks of the admission that the accused makes without mentioning, why, he said, he bad done it. If Chema said he had killed a human being, the statement is incomplete unless we know why and in what circumstances he had killed his fellow-villager. Either the story is not accepted ; and if we accept the story even as given by the wife in the earlier stages the lover was there to force her or to take her away with the intention of making her his wife. Similarly in the absence of any evidence to qualify this story the woman's account whether in her statement to the police at Khetia or in the so-called confession to the Magistrate has to be taken as a whole. If in the absence of her husband Khandiya enters her house and tries to compel her to go away with him it was attempted abduction with intention of compelling her to an improper intimacy. She was within her rights of private defense in shooting him dead. If we do not believe the story we have to reject it as a whole and as far as this is concerned it does not necessarily point to her husband as she herself has suggested a third alternative.
12. The result is that apart from the statements attributed to either of the accused persons there is really no evidence against either jointly or individually. Something like a circumstance is found in the fact that a muzzle-loading gun had been used ; but even that is not very illuminative beoause it has not been brought out that Ohema is the only owner of a muzzle-loading gun in that village. Wadding of the type found in one of the wounds and also in Chema's house is of a common variety; but assuming that Ohema Bhilai's gun had been used and then put on the dung heap, that by itself while creating suspicion may not point to one or the other definitely as the offender. One of the two might have used it. Each of them bad at different stages been anxious to take the blame on himself or her self and spare the other and each indicated that they were justified in shooting Khandiya. If there was any other evidence we could pin the responsibility on one of the two definitely or even make out common intention ; but we have nothing. Thus, it would be a case of no common intention and uncertainty as to which of the two had shot. Further, if one takes into account the recorded statement of the woman, then again it would be a case of justification in self-defence as the person killed was trying to abduct her with the intention of compelling her to sex-intetcoures. If we reject that statement, nothing is left. The only conclusion a Court can arrive at is that it is a case for the benefit of doubt to both the appellants.
13. The appeals are accordingly allowed and the convictions and sentences are set aside. The appellants should be released unless wanted in some other case.