S.P. Bhargava, J.
1. This judgment shall govern the disposal of Criminal Appeal No. 686 of 1968 (State v. Mukund Singh) also.
2. This appeal has been filed by the accused Dilli, son of Mukund Singh, who has been convicted by the First Additional Sessions Judge, Jabalpur, for committing the murder of one Halkai on 2-1-1968 in a field in village Gokala, Police Station Belkheda, by inflicting injuries with a tabbal on his neck which resulted in his instantaneous death. He -has been sentenced to suffer imprisonment for life for the said offence. Feeling aggrieved, he has filed this appeal.
3. In the same trial, along with the accused Dilli, three other persons, Mukundsingh (father of Dilli), Puran (a brother of Dilli) and Jabba were also tried for the offence Under Section 302 read with Section 34, Indian Penal Code and Under Section 201, Indian Penal Code. These accused were acquitted of the charges for which they were tried. The State has filed an appeal against their acquittal. This appeal is registered as Criminal Appeal No. 686 of 1968.
4. The prosecution case can be briefly stated thus. Dilli and his relations had strained relations with the deceased Halkai and the members of his family 6n account of an incident in which Dilli was said to have molested the wife of Summa (P.W. 10) who was a brother of the deceased. Though the said incident pertained to the year 1965 as is clear from the report Ex. P-22 made by the molested lady Basantibai, yet according to the prosecution the feelings between the parties continued to be strained, and not only the accused but also the other members of the Lodhi community to which the accused belonged and who resided in village Gukala were ill-disposed towards the deceased and the members of his family. On 24-1968 at about of p.m. the deceased Halkai was working in a field of his with his mother Sunderbai (P.W. 9). This field is roughly about a hundred yards away from his house. The four accused Dilli, Mukund Singh, Puran and Jabba entered the said field together. Dilli was armed with a lathi, Mukund Singh had Tabbal (axe) in his hand and Puran and Jabba were also armed with lathis. According to the prosecution, Jabba caught hold of the legs of Halkai and Puran caught hold of his hands. He was thus overpowered and he fell down. Dilli then took the axe which was with Mukund Singh and gave blows on the neck and forehead of the deceased as a result of which there was profuse bleeding and Halkai died on spot. Sunderbai (P.W. 9) tried to interfere with the accused in an attempt to save her son. She was, however, pushed off by Mukund Singh out of the field. Sunderbai went home running and informed her son Summa (P.W. 10) about the tragedy. Subsequently they along with some other persons came back to the field where they saw that the miscreants had collected some shrubs and set fire to the body of the deceased which was found to be burning when they came there. For this act of trying to destroy the evidence of murder by setting fire to the body of the deceased, the accused were charged Under Section 201, Indian Penal Code.
5. The first information report (Ex. P-28) was made by Summa (P.W. 10) at 1-15 a.m. on 3-1-1968 at the police station Belkheda which is at a distance of three miles away. The first information report contains a mention of the fact that Sunderbai (P.W. 9) had seen the four accused assaulting the deceased.
6. Dr. O. P. Verma (P.W. 11), who was at the relevant time the Assistant Surgeon in the Government Dispensary, Patan, performed the autopsy of the dead body of the deceased. He found the following injuries on his person:
(1) Incised wound 5' x 5Vs' x %' over the front of the neck cutting the neck through and through, excepting the posterior facia and a portion of platisma muscle. The head was attached to the body only by posterior facia and the portion of th muscle.
(2) Incised wound on left side of scalp measuring 6'x%'xl' just above the left ear, going posteriorly. The pinna of left ear was also cut off.
On internal examination of the dead body he found a fracture of the fourth cervical vertebrae. As a result of the neck injury, the traches, esophagus, lyrinx and carotid vessels were also cut. According to his opinion, all the injuries found by him on the person of the deceased were ante-mortem and had been inflicted by a sharp cutting weapon like an axe. In his opinion, the injuries were sufficient in the ordinary course of nature to cause death and the death had resulted due to shock and haemorrhage due to neck injuries cutting the spinal cord and carotid vessels.
7. All the accused abjured their guilt and stated that they were implicated on account of enmity.
8. There is no dispute about the deceased Halkai having died a homicidal death. This fact is fully established by the medical evidence of Dr. 0. P. Verma (P.W. 11) and the other prosecution witnesses including Sunderbai (P.W. 9), Summa (P.W. 10), Prithvilal (P.W. ]) and Nabbu (P.W. 2).
9. The only question for consideration is as to whether it has been satisfactorily proved that the accused or any of them committed the crime of murder attributed to them and further perpetrated the offence which is punishable Under Section 201, Indian Penal Code.
10. The prosecution supported their case by the evidence of three eyewitnesses, they being Sunderbai (P.W. 9) and the two child witnesses Hakim (P.W. 7) and Sukhlal (P.W. 8). To corroborate ,their testimony, the prosecution further examined Summa (P.W. 10) to whom the incident was stated immediately after the occurrence by Sunderbai (P.W. 9) and who actually lodged the first information report. Durjan (V. 5) is the father of Sukhlal (P.W. 8). He is the uncle of the other child witness Hakim (P,W. 7). He was examined in the case to corroborate the evidence of these two witnesses who, according to him, had stated about the deceased having been killed by the four accused whin he returned to his house on the fateful evening.
11. We will now take up for consideration the evidence of these witnesses. Sunderbai (P.W. 9) in her examination-in-chief in the trial Court supported fhe prosecution version as stated above. In her cross-examination she admitted that when she was pushed off by the accused Mukund Singh, she had not seen the witnesses Hakim (P.W. 7) and Sukhlal (P.W. 8) near the field in which the incident took place. She further stated that when she was narrating the incident to her son Summa (P.W. 10) at her house, she saw that in the field in which Halkai had been killed, fire was burning. She stated that she did not go a second time to that field. She was confronted with her statement in the committal Court (Ex. D-3). In that statement she had stated that from her house she took Summa (P.W. 10) with her and again went to the spot. She further stated that when she reached the field a second time, she saw that over the corpse of Halkai munga plants were stacked and fire was lighted.
In paragraph 5 of her deposition she stated that the accused Jabba had run from the place of the incident to assault Sukhlal and Hakim. She further stated that Sukhlal and Hakim came running behind her. She also stated that Sukhlal and Hakim were. at a distance of about 15 yards from the spot of the incident. It has been urged by the learned Counsel for the appellant that the contradictions which are found in her statement are on material points and they go to show that at one stage, namely, in the Committing Court, the witness had tried to introduce a story indicating that Sukfilal and Hakim were the eye-witnesses of the incident and she wants to corroborate her version by herself stating that she had seen them in the field at a small distance. In our opinion, these contradictions are of significance and her attempt to mention the presence of these two witnesses detracts so materially from her reliability that it would be dangerous to accept her testimony as beings of any great value. We are fortified in our view by the decision in Bhagwan Das v. State of Rajasthan : 1SCR854 .
12. The other contradiction pointed out in her statement is that in one part of her statement in the trial Court she had stated that she did not go to the spot of the incident a second time but later she stated in para 10 that she did go to the spot. In para 10 her version was that when Nabba came, she along with Summa and Nabba went to the place where Halkai was lying. She also testified to the fact that at that time there were some other persons of the village present also. In para 8, her statement was that she did not go to the spot with Summa. Possibly the contradiction can be explained away by saying that what shef denied in para 3 was .that she did not go with Summa alone and wanted to assert that she did go with Nabba and Summa. However, in view of the previous contradiction the reliability of her testimony is very much shaken and unless slie is found to be corroborated in her version by some independent evidence, we feel that it would be unsafe to convict the accused on the basis of her uncorroborated testimony.
13. The next set of important witnesses is Hakim (P.W. 7) and Sukhlal (P.W, 8). Both of them are child-witnesses aged respectively 11 years and 12 years. Sukhlal, as already pointed out, is the son of Durjan (P.W. 5) and Hakim is the nephew of Durjan. There is no doubt that both these witnesses in their statements have given an intelligent account of the entire version and if this testimony was not found to be otherwise shaken or weakened, their statements go a very long way to corroborate the version of Sunderbai (P.W. 9). However, the testimony of these two witnesses suffers from some improbabilities. Durjan (P.W. 5) admittedly went to the police station with Summa (P.W. 10). Summa (P.W. 10) has stated that they took about 8 or 4 hours to reach the police station. Thus, Durjan was with Summa for a very long time.
According to Durjan, when he came home, his son Sukhlal (P.W. 8) had told him that in the village Halkai had been murdered by the four accused Dilli, Jabba, Puran and Mukundsingh. He further stated that shortly after his nephew Hakim came there and he also corroborated the fact of Halkai having been killed by the said four persons. If Durjan had been informed both by Sukhlal and Hakim, it does not stand to reason that he would not disclose the fact of his having been informed by his' son and nephew about the names of the assailants. His silence for 3 to 4 hours when he was with Summa before the report was recorded at the police station casts a doubt on this version being true that he was informed by Sukhlal and Hakim as alleged by him. It is further significant to note that though Sukhlal maintained that he had informed his father about the tragic incident when he came home, Hakim in unmistakable words stated that he did not meet his uncle Durjan on the evening or night of the incident and he had only a talk with him .on the following morning.
It is also significant that Dukhilal (P.W. 16) who recorded the report at the police station came with Summa, Durjan and Nabbu and the Kotwar Prithvilal to the village from the police station. He also deposed that up to 11 a.m. on the following morning lie had conducted the investigation and the S. O. Shri Harnarain Dubey (P.W. 17) reached there only at about 11 a.m. He also stated that till 11 a.m. on the following morning Sukhlal and Hakim were not produced before him by any one. He stated that at the time of lodging the report Summa was accompanied by Kotwar Prithvilal, Nabbu and Durjan (P.W. 5). He stated that at that time Nabbu and Durjan had not stated any fact about the incident to him. In para 2 of his deposition he had stated that he started from the police station at about 2 a.m. in the night and had reached the- village at about 5 a.m. in the morning. At that time also the persons who had gone to the police station to lodge the report accompanied him. It is difficult to believe that if Durjan came to know about the names of the assailants from his son and nephew he would adopt this attitude of silence. There is evidence on record that Durjan's relations with the accused were strained. He was prosecuted in a case for causing injury to Gutai, a brother of the accused Mukund Singh and in that case he had admittedly been sentenced to suffer rigorous imprisonment for six months.
Considering this background, it is not unlikely that to render support to the version of Sunderbai (P.W, 9), Durjan or other persons interested in the prosecution set up the two children as eye-witnesses of the incident. We may also stress at this stage that although legally there is no bar to accepting the uncorroborated testimony of a child witness, yet prudence requires that Courts should not act upon the uncorroborated testimony of a child witness whether #sworn or unsworn see State of Bihar v. Kapil Singh : 1969CriLJ279 . It has further been laid down that the unsworn testimony of a child is not adequately corroborated by similar evidence or another child witness: see In re Dake Abbavi, TLR (1956) Andh Pra 203. We have already said that in view of the improvement made on a very material point by Sunderbai it is unsafe to act on her testimony. As the main evidence against the accused itself becomes of doubtful value, it is useless to seek corro-boration of the story in the statement of Kotwar Prithvilal (P.W. 1). No doubt, he did state that when Sunderbai came to him, she was weeping and she stated to him the names of the four assailants of her son and being those who had set fire the body of the deceased by putting some shrubs over the dead body.
14. We are free lo confess that there is a great element of doubt against the accused as being the perpetrators of the crime but unfortunately the guilt of the accused has not been established beyond reasonable doubt and we cannot allow suspicion howsoever grave it may be to take the place of proof.
15. In the result, we give benefit of the doubt and acquit the accused-appellant Dilli who was convicted Under Section 302, Indian Penal Code by the trial Court. The respondents in the State appeal are also entitled to the benefit of doubt. Their acquittals are maintained and the State appeal is dismissed.
16. Before we part with the case, we feel bound to record our dissatisfaction at the approach made by the learned 1st Additional Sessions Judge, Jabalpur, about the liability of the three accused Mukund-singh, Puran and Jabba who were sought to be made liable for the offence of murder Under Section 34, Indian Penal Code. We are unable to see as to how when the evidence of Sunderbai (P.W. 9) was relied on by him, he could hold that the aforesaid three persons were not constructively liable. It was shown by the evidence of Sunderbai that all the four accused persons came together and Mukundsingh had come armed with a tabbal and the other three had,lathis with them. It is also in evidence that when Dilli snatched the tabbal from Mukundsingh, an attempt was made by Sunderbai (P.W. 9) to intervene to save the life of Halkai. She was driven away from the field by Mukundsingh. The evidence of Sunderbai and the child witnesses ascribe definite parts to Puran and Jabba in so far they overpowered the , deceased and made him stay in a particular position so that the fatal blows were inflicted by Dilli. The grounds given by the learned Additional Sessions Judge for holding that they were not constructively liable for the offence of murder after having believed the evidence of Sunderbai (P.W. 9) does appear to us to be totally unconvincing and the approach made by a senior Judge of his experience, in our opinion, can only be regretted. It is true that we have acquitted all the accused, but that is on the view that we are unable to place implicit reliance on the testimony of Sunderbai (P.W. 9).