M.H. Beg, J.
1. The appellant before us by special leave, Sawal, Das, his father Jamuna Prasad, and Ms stepmother Kalawati Devi, we charged with offences punishable under Section 302 Indian Penal cod simpliciter on the allegation that they had intentionally caused the death of Smt. Chanda Devi, the wife of the appellant, on 28-5-1965 in their house in mohalla And Gola in Muzaffarpur, in Bihar. The appellant Sawal Das, his father Jamuna Prasad, their molar driver Sita Ram, and eight other per-sons were charged under Section. 201 Indian Penal Code for having caused the disappearance of the body of Smt. Chanda Devi with a view to concealing the murder Furthermore, Smt. Kalawati Devi was charged under Section 302/109 Indian Penal Code for having instigated the murder of Chanda Devi. The trial Court had amended and converted the charges against the appellant and Jamuna Prasad and Kalawati Devi into those under Sections 302/34 Indian Penal Code and convicted each of them with the aid of Section 34 Indian Penal Code for the offence of murder and sentenced them to life imprisonment It had also son victed the appellant and his father under Section 201 Indian, Penal Code, but it did not pass separate sentences against them for this offence. The driver Sita Ram was also -convicted under Section 201 Indian Penal Code arid sentenced to three years Rigorous imprisonment. It acquitted all the other accused person. On appeal, the High Court of Patna had acquitted the appellant, his father, and his stepmother of offences punishable under Section 302/34 Indian Penal Code, but it found the appellant alone guilty of an offence punishable under Section 302 Indian Penal Code simpliciter and sentenced him to life imprisonment. It had also found the appellant and his father guilty under Section 201 Indian Penal Code, but while passing a sentence of three years rigorous Imprisonment on Jamuna Prasad, it had not passed a separate sentence on the appellant in view of his conviction, under Section 302 Indian Penal Code. It had allowed appeals of Kalawati Devi and Sita Ram and acquitted them.
2. The whole case against the appellant depends upon circumstantial evidence. There is no eye witness- of the murder which was alleged to have been committed by the appellant, his father, and step-mother conjointly on the morning of 28-5-1965 at about 8.00 a. m. The Sessions Judge had relied upon the following proved facts and circumstances to convict the three accused persons of murder under Sections. 302/34 Indian Penal Code:
1. The relations between Smt. Chanda Devi and her step-mother-in-law, Smt. Kalawati Devi, who were living in the same house with their respective husbands and children, were strained so that there were frequent quarrels between them.
2. The appellant as well as his father Jamuna Prasad used to take the side of Smt. Kalawati in the quarrels between the murdered wife and her mother-in-law.
3. On the morning of the murder, there was a particularly sharp quarrel between the deceased and Smt. Kalawati, so that Smt. Kalawati, who was living in a room adjoining that of Smt. Chanda Devi on the first floor of the house called out to the appellant that his 'rascal wife' was quarrelling with her and informed him as well as Jamuna that either she or Chanda Devi will live in the house henceforth.
4. The appellant and his father Jamuna Prasad went upstairs to the Verandah where the quarrel was taking place and the appellant took or pushed Chanda Devi inside her room followed by the appellant's father and his step mother.
5. Immediately after that, cries of atleast 'Bachao' 'Bachao', were heard from inside the room. Nobody heard the voice of Smt. Chanda Devi after that-
6. Immediately after these cries, the children of Chanda Devi were heard crying and uttering words indicating that their mother was either being killed or had been killed.
7. A short while after that, the appellant and his father Jamuna Prasad were seen bringing a gunny bag with the help of their driver, Sita Ram, and another person, and keeping it in the luggage boot of the car which had been brought there by-the driver.
8. The car, containing the body of the deceased Chanda Devi, was driven fast and taken to what is known as Pahleza-Ghat, 50 miles away, to be burnt there at night. The car was shown to have crossed Sonepur Bridge at 9-00 p.m.
9. The relations of the deceased Smt. Chanda Devi, who were living in the town, were not at all informed by the appellant or other members of his family, that she had died either naturally or accidentally.
10. No persons who usually performed the funeral rites in the family were shown to have been informed and there was no funeral procession of the usual kind. But, some of those related to the appellant, who were co-accused for the offence of illegal disposal of the body, were said to have followed in a truck.
11. Some blood, which was said to have disintegrated so much that its origin could not be determined, was shown to have been scraped from the boot of the car as well as from inside the car.
3. The Trial Court had come to the conclusion that, upon the established circumstances listed above, no-other inference was left open to the Court except that the appellant and' his father and step-mother had conjointly committed the murder' of the deceased Smt. Chanda Devi on the morning of 28-5-1965 and that the appellant and his father had then hastily and stealthily disposed of the body in order to conceal the commission of the offence. It had also taken into account, in coming to this conclusion, the fact that the appellant had unsuccessfully set up a plea, in Ms written statement, that Smt. Chanda Devi, who was alleged by him to be wearing a Nylon Saree, said to have caught fire accidentally while she was using a Kerosene stove in her room, died of extensive burns on her body and collapsed. The appellant had alleged that Smt. Chanda Devi was debilitated and kept a bad health due to frequent pregnancies and was also suffering from Asthma, a weak heart, and abdominal complaints. She had given birth to six children.
4. The Trial Court observed that no Doctor was called in to substantiate the appellant's plea. Furthermore, it pointed out that, as a highly qualified Doctor, Dr. G.B. Sahai, had deposed, normally death would not take place immediately as a result of accidental burning of the kind alleged by the appellant and that there would have been evidence of rolling on the ground or other acts of the deceased in attempts to save herself in such an event. The Trial Court had also believed the evidence of the relations of Chanda Devi that she was enjoying good health so that the bare assertions of the appellant that she had a weak heart could not be accepted. It also observed that no burnt pieces of cloth or marks of smoke or soot on the walls or roof of the room in which Smt. Chanda Devi had admittedly died were shown to exist.
5. Learned Counsel for the appellant drew our attention to a number of pieces of evidence, such as a boil on the finger of Jamuna, multiple irregular areas of suspected burns, varying from 1' to 1/3' in length and half inch to 3/4' in width, on the lower third of right fore-arm, ulnar side, of the appellant, when lie was examined fey Dr. J. Nath on 2-6-1905, the statement by a witness that he saw some smoke coming out of the house at the time of the alleged murder, the rumour of her death by burning mentioned by several witnesses, which found a place in the information sent to the Police on 30-5-1965 by Lallu Prasad, P.W. 28, a relation of the murdered wife, and into another written Information given by Hawaldar Goraknath Singh, P.W. 3, at the Police Station, on 28-5-1865, and other similar bits of information and belief deposed to by witnesses.
6. So far as the information dated 30-5-1965 (Ex. 11} treated as F.I.R. by the Police, or the information given by Gorakhnath Singh on 28-5-1965, which, according to the appellant, ought to be treated as a First Information Report, and other pieces of information and belief given by the witnesses are concerned, it is clear that these are based on hearsay which was rightly excluded. The Trial Court pointed out that the appellant and other members of his family were the sources of these false rumours circulated by them so as to protect themselves against an accusation for murder. We, therefore, attach no importance whatsoever either to the document which the prosecution or the one which the appellant placed before us as the First Information Report. These contain nothing more 'than rumour and hearsay because those who could have reported the commission of an offence were actually the offenders interested in concealing its commission and misdirecting investigation.
7. As regards the burns on the body of the appellant, the Trial Court rightly pointed out that the Doctor had stated on 2-6-1965 that they were 3 or 4 days old. They were not shown to be connected with any attempt to extinguish a fire which could have burnt Smt. Chanda Devi. The best evidence in such a case could have been that of a Doctor who, as the High Court pointed out, should have been called but was not called despite the fact that there was a telephone in the house.
8. We think that the burden of proving the plea that Smt. Chanda Devi died in the manner alleged by the appellant lay upon the appellant This is clear from the provision of Sections 103 and 106 of the Indian Evidence Act. Both the Trial Court and the High Court had rightly pointed out that the appellant had miserably failed to give credible or substantial evidence of any facts or circumstances which could support the plea that Smt. Chanda Devi met her death because her Nylon Saree had accidentally caught fire from a kerosene stove. The Trial Court had rightly observed that the mere fact that some witnesses had seen some smoke emerging from the room, with a kitchchen nearby at a time when food was likely to be cooked, could not indicate that Smt. Chanda Devi's saree had caught fire. Neither the murdered woman nor the appellant nor any member of his family was shown to have run about or called for help against a fire.
9. Learned Counsel for the appellant contended that Section 106 of the Evidence Act could not be called in aid by the prosecution because that Section applies only where a fact relating to the actual commission of the to within the special knowledge of the accused, such an the circumstance in which or the intention with which on accused did particular act alleged to constitute an offence. The language of Section 106 Evidence Act does not, in our opinian, warrant putting such narrow construction upon it. This Court held In Gurcharan Siagh v. State of Punjab : 1956CriLJ827 , that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is different matter that the quantum of evidence by which he may succeed in discharging his burden of creating a reasonable belief, that circumstance absolving him from criminal liability may have existed, is lower than the burden resting upon to prosecution to the guilt of an accused beyond reasonable doubt.
10. Neither an Application of Section 188 nor of 108 of the Evidence Act could, however, absolve the procaicution from the duty of discharging its genaral or primary burden of proving the procectcution case beyond reasonable doubt. It is only when the prosecution has lad evidence which if belived will curtain a conviction, or, which makes out prima facie case that the question arises of considering fact of which the burden of proof may be upon the accused. The crucial question in the case before us is: Has it procectcution discharged its initial for general and primary burden of proving the guilt of the appellant beyond doubt?
11. Perhaps the Trial Court had adopted more logical course up on facts and circumstance indicating the appellant was one of the there person whose conjoint actions had, on the morning of 28-5-1969, resulted in the death of Smt. Chanda Devi, It may be that the appellant was the primary or the main actor in the actual commission of the murder after his step-mother had sought his aid in what appeared to be in appeal to him by her to teach his wife a lesson so that she may not be troubled by her any more. But, the effect of the finding that the appellant went into the room from which the cries of the murder women, save her from being killed, came immediately afterwards, is diluted by the evidence that Jamuna Prasad and Smt. Kalawati had followed him. The High Court's view could perhaps find some support from the-fact that Jamuna Prasad was seen pacifying and rebuking the children outside while the appellant may have-been dealing with his wife in a manner which brought about her death, But, all this is a matter of conjecture. Lurking but not unreasonable doubts and suspicions seem to us to envelope-end assail the prosecution case atleast after Jammu Prasad and Smt. Kalawati have been acquitted. As the learned Counsel for the appellant has rightly pointed out after the acquittal of Kalawati and Jamuna Prasad for murder, by the use of Section 34 Indian Penal Code, the individual and not the conjoint liability of the appellant has to be established by the prosecution before the appellant could be convicted under Section 302 Indian Penal Code simpliciter. Beyond the fact that the appellant is the husband of the murdered wife, who might be ordinarily expected to take the initiative in teaching her a lesson, especially when Smt. Kalawati had invoked his aid, and, a possibly natural reluctance of a normal father-in-law to take the initiative or a leading rote In such & matter, both of which could be matters I conjecture or presumption only, there is nothing which could fasten or conclusively fix the liability for any particular or separate act of the appellant which may be said to have caused his wife's death.
12. We find that the High Court had not dealt with the question whether a distinction could be made between the case of the appellant on the one hand and his father Jamuna Prasad and his step-mother Kalawati on the other quite satisfactorily, so-far of the offence of murder is concerned, Nevertheless, we may have agreed with its conclusion, on the evidence on record, that the appellant alone was liable for the murder of his wife Smt. Chanda Devi and we may not have disturbed its finding of fact but for another feature of the case which stares on. In the face. We pro-now to deal with this feature.
13. Even if, as the Trial Court and the High Court had correctly held, there is admissible and credible evidence of five witnesses, Ganesh Prasad, P.W. 1, Nand Kiahore, P.W. 2, Radhey Shaym Sharma, P.W. 9, Laxmi Narain, P.W. 16, and Basdeo Prasad, P.W. 27, who are said to have heard or watched from outside, from varying distances, of what was going on in the Verandah, no eye witness was produced who could prove what actually took place inside the room where the murder wag committed. The only evidence given of what could have taken place inside the room was the cry of 'Bachao' 'Bachao' although there is some understandable variation between accounts of witnesses as to whether the murdered woman also uttered some more words showing that she was being actually killed. We also agree with the view that the evidence of witnesses about what the children said or did at that time is admissable under Section 6 of the Evidence Act. In view of some evidence in the case that the appellant's children had refrained front revealing any facts against the appellant or his father or his step-mother, when they were questioned by relations or by the Police, it could be urged that there was no point in producing the children, The Court could also have rightly decided, in such circumstances, not to examine them under Section 540 Criminal Procedure Code. But, there is no explanation even attempted to show why the Maidservant, Geeta Kur-mini, who, according to the prosecution case, was also in the Verandah at the time of the occurrence, was not produced at the Trial although her statement was recorded under Section 184 Criminal Procedure 'Code and was brought on the record (Ex. 12). The statement could only be used as evidence to corroborate or contradict Geeta Kurmini if she had appeared as a witness at the trial. The appellant would therefore, quite reasonably ask the Court to give him the benefit of the optional presumption under Section 114 Illustration (g) of the Evidence Act and to infer that, if she had been produced, it would have damaged the prosecution case against the appellant. Her statement, if it had been there as evidence in the case, may very well have shown that it was Jamuna who was taking the leading part in bringing about the death of Smt. Chanda Devi. There is some evidence in the case as to the kind of man Jamuna was it shows that he was not a naturally kind or gentle or amiable individual liked by people. The normal Inhibitions of a father-in-law with regard to his daughter-in-law, which learned Counsel for the State emphasized so much, may not really be there at all in this case. Indeed, we think that, in the circumstances of the case, Geeta Kurmini, the maidservant, was a witness essential to the unfolding of the prosecution case. Her evidence could not be withheld by the prosecution whatever may be its effect upon the, case. We think that the principle laid down by Privy Council in Stephen Seneviratne v. the King AIR 1936 PC 289 - (37 Cri LJ 963) with regard to such a witness, is applicable here. It was observed there (at p. 300):
Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but, at the same time they cannot, speaking-generally, approve of an idea that prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution-ought to discharge the functions both of prosecution and defence. If it does so, confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding-of the narrative on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution.
Mr. Mulla appearing for the appellant, has also drawn our attention to K.G. Patil v. State of Maharashtra : 1SCR678 . This Court held there that, when two out of three accused persons, each having been charged under Section 302 read with Section 34 Indian Penal Code were acquitted, it must be assumed that the two acquitted persons did not participate in the commission of the offence at all. It is contended that the nautral result of this view is that the particular act of the individual accused which brought about the death of the murdered person must be established beyond doubt before he is singly and separately convicted under Section 302 Indian Penal Code simplicter.
14. Our attention was also invited to Sohan Lal v. State of U.P. : 1971CriLJ1458a where it was held by this Court that, in the absence of evidence to show which act of the accused caused the death of the murdered man, it would neither be proper to convict the accused person under Section 302 Indian Penal Code simpliciter nor under Section 302 read with Section 34 Indian Penal Code, when the High Court had acquitted the co-accused of charges under Section 302 read with Section 34 Indian Penal Code, and the State had not appealed against the acquittal.
15. In the case before us, the High Court had actually altered the conviction of the appellant from one Tinder Section 302/34, I.P.C. to one tinder Section 302 I.P.C. thereby implying that he was not guilty of any offence under Section 302/34, 1 P.C. It is true that this Court explained, in Yashwant v. State of Maharashtra : 1SCR291 , that the applicability of Section 34 I.P.C. to a case depends upon the particular facts and circumstances of the case. Therefore, we have to scrutinize and pronounce upon the particular facts of the case before us.
16. We think that, upon the facts of this case, there could be a reasonable doubt as to whether Section 34, I.P.C. could be applied to convict any of the three accused persons of murder. After excluding the application of Section 34 I.P.C. to the case, the evidence does not also appear to us to prove conclusively that the appellant must have either throttled the deceased or done some other act, quite apart from the acts of his father and step-mother, which brought about the death. This result follows from the totality of evidence and the presumption from the non-production of Geeta Kurmini which destroys the value of the evidence, which weighed so much with the High Court, that the appellant was doing something like pushing or taking the murdered woman inside her room at the time when she was last seen alive.
17. The Trial Court and the High Court, relying en the evidence of some bleeding of the body of the deceased, admitted by the appellant to have been carried in the car to the burning ghat, and the absence of evidence of death caused by burning, came to the conclusion that the appellant must 'have throttled the deceased. This was pure conjecture after eliminating the defence case of burning by accident. If it had been a case of throttling only, it would be difficult to explain the cries of murdered woman for help which were heard by witnesses on the road unless we assume that the murdered woman cried out, as she may have done, before the hands which choked her were placed on her throat. Therefore, although we may hold, as we do, that this must be a case of murder, it is not possible for us to find conclusively that it was a case of throttling and of nothing else or that the person who could have throttled ' or done some other act which actually killed the deceased was the appellant and not his father or step-mother.
18. So far as the case of quick disposal of the body by the appellant is concerned, the circumstantial evidence was rightly believed and held to be conclusive by both the Courts below. This evidence was too damaging to admit of any doubt that the appellant took the leading part in doing away with the remains of the body of his wife after she had been murdered. The Trial Court and the High Court, while maintaining the appellant's conviction under Section 201 Indian Penal Code, had not fixed his sentence. It was urged by Mr. Mulla before us that the appellant should not be given more than three years rigorous imprisonment just as his father Jamuna had been sentenced to three years rigorous' imprisonment only under Section 201 Indian Penal Code. It may be mentioned here that, while special leave to appeal was granted to the appellant against the judgment of the High Court, this Court had refused to grant any leave to his father Jamuna to appeal against his conviction under Section 201, Indian Penal Code. We, however, think that a distinction between the case of the appellant and his father is justified on two grounds mainly; firstly, it was the duty of the appellant, as the husband, to have done something to protect his wife, even if we assume, for the sake of argument, that the actual death may have been brought about by the acts of others; and, secondly, the appellant had taken leading part in disposing of the body of the murdered woman. We think that the maximum sentence which can be passed under Section 201, Indian panel Code is deserved by the appellant upon facts and circumstances of this case. Accordingly, we allow this appeal to the extent that we set aside the conviction of the appellant under Section 302, I.P.C., but we maintain his conviction under Section 201, I.P.C. and sentence him to undergo seven years' rigorous imprisonment and to pay a fine of Rs. 1,000/-, and in default of payment of fine, to undergo further rigorous imprisonment for a term of six months.