C.P. Sen, J.
1. By this judgment Criminal Appeal No. H86 of 1981 (Mst. Sarojrani alias Tarabai v. State of M. P.) is also disposed of as both these appeals arise out of the same Sessions Trial.
2. The two appellants have been convicted Under Section 302/34 I.P.C. and each sentenced to imprisonment for life for committing murder of Laxminarayan on the night intervening 14th and 15th Oct. 1980. Appellant Sarojrani is the widow of deceased Laxminarayan. They were living in the house of appellant Lakhoo as a tenant in Ward No. 3, Damoh. The other portion was in occupation of the deceased. The deceased and appellant Lakhoo were habitual drinkers. Sarojrani developed illicit relationship with Lakhoo. So there used to be frequent quarrels between the deceased and Lakhoo, who used to beat Sarojrani. On the night on 14th and 15th Oct. 1980 the deceased came drunk, beat Sarojrani with a Chimta and then abused Lakhoo. Thereafter he slept in his room. It is alleged that in the night he was strangulated to death by both these appellants. On the next day morning Lakhoo lodged a report about the death of the deceased. A morgue intimation was prepared and the dead body was sent for post mortem examination. Dr. J.P. Mishra (P.W. 2) held autopsy and found multiple ante mortem injuries and opined that the cause of death was asphyxia as a result of throttling. So an offence Under Section 302 I.P.C. was registerred by Station Officer V.K. Duve (P.W. 17) vide Ex. P-17. On completing the investigation the two appellants were charge-sheeted. Their defence was of denial and they took the plea of alibi. Lakhoo contending that he had gone out of Damoh on that night and Sarojrani stated that she was in the Railway Station throughout the night. The learned Sessions Judge relying on the circumstantial evidence on record convicted both these appellants.
3. The circumstances found against the appellants are : (1) that Lakhoo had illicit relationship with Sarojrani and there was motive for doing away the deceased ; (ii) on that night Sarojrani was in house and Lakhoo was seen near about and they had taken a false plea of alibi ; (iii) in the morning the appellants wanted to cremate the dead body in order to cover up the crime ; and (iv) the statement of Rajesh Kumar (P.W. 9) who was told by his younger sister Asha Kumari (P.W. 8) both being son and daughter of deceased, that these two appellants had strangulated the deceased to death. It could be said that the first three circumstances have been proved beyond doubt, but according to us, the evidence of Rajesh Kumar is not admissible, it being hearsay. There were two eye-witnesses in the case Asha Kumari (P.W. 8), a girl aged 11 to 12 years and her younger sister Meena aged 10 years. Asha Kumari turned hostile and resiled from her case diary statement, while Meena was given up having turned hostile. So, there is no evidence to prove throttling of the deceased by these appellants. The Sessions Judge was in error in relying on the statement of Rajesh Kumar (P.W. 9) Under Section 157 of the Evidence Act by wrongly relying on a decision of the Supreme Court in Ramratan v. State of Rajasthan : 3SCR590 . The proposition laid down in that case is that firstly the witness should have given testimony with respect to some fact and secondly he should have made a statement earlier with respect to the same fact at or about the time when the fact took place. There is nothing in Section 157 which requires that before the corroborating witness deposes to the former statement the witness to be corroborated must also say in his testimony in court that he had made the former statement to the witness who is corroborating him. This has no application here because Asha Kumari (P.W. 8) has not given a statement in court that she had witnessed the crime. If that was her statement then the same could have been corroborated by the evidence of Rajesh Kumar (P.W. 9) Under Section 157 of the Evidence Act, even though she had not mentioned that she had narrated the incident to Rajesh Kumar also. So, if this witness is excluded, the link in the Chain of circumstantial evidence is broken and the possibility of the deceased being killed by some one else cannot be ruled out.
4. Accordingly both the appeals are allowed. The conviction and sentence passed against the appellants are set aside and they are acquitted of the charge. They be released forthwith, unless required to be detained in connection with some other case.