C.A. VAIDIALINGAM, J.
1. In these appeals by special leave, the appellants who are Accused 2 to 4, challenge the judgment, dated April 24, 1968, of the Madhya Pradesh High Court, confirming their conviction and sentence for an offence under Section 302, read with Section 34 of the Indian Penal Code.
2. The appellants, alongwith one Bamdeo were charged and tried under Section 302, read with Section 34 of the Indian Penal Code for committing the murder of one Surajkunwar on the morning of August 24, 1967, in furtherance of their common intention. The prosecution case was briefly as follows:
The deceased Surajkunwar was the widow of one Durjan, brother of Bamdeo, Accused 1. Accused 2 Yudhishtir is the son of Bamdeo. Rajkumar and Shivkumar Accused 3 and 4 are the nephews of Bamdeo. On the death of Durjan, Surajkunwar had inherited as her husband's heir about 22 acres of land. Surajkunwar used to live in the house of Bamdeo, but as differences arose between Accused 1 and Surajkunwar, she was having her mess separately in that house for about four years prior to her death. Bamdeo took possession of her lands. Though the deceased Surajkunwar protested against this conduct of Accused 1, the latter was not agreeable to give back the lands. In view of this, there was a dispute between Accused 1, and Surajkunwar. A few days earlier, prior to August 24, 1967, Surajkunwar apprehended danger to her life at the hands of Accused 1, and on the advice of Nirpat, the brother of Accused 1, she used to stay for the night at Nirpat's house, which was close by. On August 24, 1967, Ratan (PW 1) and Labho (PW 6), the farm servants of Accused 1, had come to his house to take instructions regarding the nature of work to be done that day. At that time the appellants and Accused 1 were sitting in the verandah of the house, which was abutting the rooms which used to be occupied by Surajkunwar, when she was residing with Accused 1. Surajkunwar also came to the house of Accused 1. As soon as she came near the Verandah, Accused 1 and Accused 3, closed the front and back doors of the house. Accused 2 caught hold of Surajkunwar by her neck and all the four accused dragged her inside the house and pushed her into the room, which was used to be occupied by her. Surajkunwar was pushed on the floor by all the four accused. Accused 1 and 3 throttled her by pressing her neck. Accused 2 gagged her mouth by thrusting a cloth and Accused 4 caught hold of her legs. This incident was witnessed by both PWs 1 and 6. When Surajkunwar was being dragged into the house she had raised a cry and on hearing the same. PW 5 Vidyadhar came near the house and raised an alarm. On hearing this alarm of PW 5, several persons living nearby including PWs 3, 4, 7 and 9 gathered outside the house. These witnesses saw Accused 1, opening the back door of the house and the appellants herein running away from the house. Accused 1, himself opened the front door of the house and PWs 1 and 6 came out of the house and mentioned to these witnesses about the crime committed by the appellants. When Bamdeo was questioned, he first evaded to give any reply, but later on admitted that he had killed Surajkunwar. PW 9 Nohardas Kotwar went and gave the first information report Ex. P. 3 at the Police Station of Basna.
3. Dr R.N. Sharma (PW 16), who conducted the post-mortem examination on the dead body of Suraj kunwar had deposed that the death was due to strangulation.
4. The appellants, as also Accused 1, denied the offence with which they were charged and they pleaded that they have been falsely implicated due to enmity.
5. The learned Sessions Judge held that Accused 1, had killed Surajkunwar by throttling her and as such convicted him under Section 302 of the Indian Penal Code. He further held that as the act of killing Surajkunwar has been done in furtherance of a common intention of all the accused persons, Accused 2 to 4 were guilty of an offence punishable under Section 302, read with Section 34 of the Indian Penal Code. So far as Accused 1 was concerned, the learned Sessions Judge was of the view that he has committed the murder of a helpless widow in a brutal manner and accordingly sentenced to death the said accused. So far as Accused 2 to 4, the appellants herein were, concerned, the learned Sessions Judge sentenced them to undergo imprisonment for life as they had been found guilty of murder only by virtue of Section 34 of the Indian Penal Code.
6. The appellants and Accused 1, challenged, before the Madhya Pradesh High Court, in Criminal Appeal No. 196 of 1968, their conviction and sentence passed against them by the learned Sessions Judge. The High Court, by its judgment, dated April 24, 1968, confirmed the conviction and sentence of all the appellants and Accused 1. But the High Court altered the sentence of death passed against Accused 1, to one of imprisonment for life. Subject to this modification regarding the sentence in respect of Accused 1, Criminal Appeal No. 196 of 1968 was dismissed.
7. Bamdeo and his son Yudhishtir Accused 1 and 2 respectively, have filed Criminal Appeal No. 233 of 1968, and Rajkumar and Shivkumar Accused 3 and 4 respectively, have filed Criminal Appeal No. 234 of 1968. However, this Court by its order, dated October 11, 1968, declined to grant special leave so far as Accused 1, Bamdeo was concerned. Special leave has been granted only so far as Accused 2 to 4 are concerned. Therefore, Criminal Appeal No. 233 of 1968, is restricted only to a consideration of the case as against Accused 2; and the case of Accused 3 and 4 will be dealt with in Criminal Appeal No. 234 of 1968.
8. Mr A.S.R. Chari, learned counsel for the appellants, in Criminal Appeal No. 234 of 1968, has very strenuously attacked the reasons given by both the learned Sessions Judge and the High Court for convicting the appellants of the offence under Section 302, read with Section 34 of the Indian Penal Code. Mr Chari's contention have been adopted by Mr V.K. Sanghi, learned counsel, appearing for Accused 2 in Criminal Appeal No. 233 of 1968.
9. Mr Chari pressed before us the following circumstances which, according to him, will show that the evidence of the prosecution witnesses particularly of PWs 1 and 6 cannot be accepted. Suraj kunwar had left the house of Bamdeo and had taken up her residence at the house of Nirpat another brother of Bamdeo, and there is no evidence to show that she was expected in the house of Bamdeo on the morning of August 24, 1967.
10. The presence of Yudhishtir, Accused 2, in the house of Bamdeo was quite natural as he was the son of Bamdeo and was living with him. There is nothing unusual in Accused 3 and 4, who are the nephews of Bamdeo, paying a visit to their uncle's house. As Surajkunwar had already left the house of Bamdeo, a meeting of these people in the house of Bamdeo cannot be for any unlawful purpose, as they would not have expected her to come to Bamdeo's house at that time.
11. The evidence given by PWs 1 and 6 before the Court was substantially in variance with the version given by them in the statements given to the police at the earliest occasion. Before the Court they have considerably improved their statements. Omissions in the statements to the police were of a very serious nature making their evidence before the Court false and unacceptable.
12. In the statements to the police these two witnesses (PWs 1 and 6) have not mentioned anything about the part played by the appellants nor have they referred to the appellants when they gave information to the other witnesses whom they met on the coming out of the house of Bamdeo after seeing the incident.
13. PW 9, who claims to have been informed by PWs 1 and 6 about the part played by the appellants has not at all referred to the appellants in the first information report Ex. P-3 given by him to the police. In the first information report, PW 9 has mentioned so many matters relating to Bamdeo. The only reference to the appellants is that he learnt from other persons that they have escaped through the back door of the house of Bamdeo. He has further stated that when Bamdeo opened the front door, PWs 1 and 6 came out of the house and simply walked away. According to the learned counsel, the above circumstances have not been properly considered by either the learned Sessions Judge or by the High Court.
14. Mr M.N. Shroff, learned counsel for State, has pointed out that on an overall consideration of the evidence of all the prosecution witnesses and in particular of PWs 1 and 6, both the learned Sessions Judge and the High Court have concurrently found the appellants guilty of the offence under Section 302, read with Section 34 of the Indian Penal Code, while holding Accused 1 guilty under Section 302 of the Indian Penal Code. The evidence reveals that there has been serious misunderstanding between Bamdeo and Surajkunwar regarding the properties owned by the latter and therefore, there was enough motive for Bamdeo for committing the murder of Surajkunwar. The appellants who are none other than the son and nephews of Bamdeo were also equally interested in helping Bamdeo to get rid of Surajkunwar. It is not in evidence that Surajkunwar had completely ceased to reside with Bamdeo. On the other hand, she was only going to the house of Nirpat, for sleeping in the nights and she was expected to come back to Bamdeo's house in the morning. That is why all the accused were together on the morning of the occurrence expecting Surajkunwar to come to the house of Bamdeo.
15. The presence of the appellants in the house of Bamdeo at the time of the occurrence is spoken to not only by PWs 1 and 6, but also by PWs 3, 4, 5, 7 and 9. These witnesses have given evidence to the effect that when Bamdeo was being asked to open the front door, the appellants were seen running away from the house by the back door. This conduct, coupled with their presence in the house and the direct evidence of PWs 1 and 6 regarding their participation clearly leads to the conclusion that they were also active participants along with Accused 1 in committing the murder of Surajkunwar.
16. We have given due consideration to the above various aspects presented to us by the learned counsel on both sides as also the reasons given by the learned Sessions Judge and the High Court for convicting the appellants. After such a consideration, we are of the opinion that the conviction of the appellants cannot be sustained.
17. As Accused 1 Bamdeo is not before us, it is unnecessary to consider the evidence in detail so far as he is concerned. Therefore, our discussion of the evidence will only be insofar as it relates to the appellants. In the first information report Ex. P-3, given by PW 9 at about 8.30 a.m. on August 24, 1967, he has very minutely given the various details which will implicate Accused 1, Bamdeo. In fact the main facts referred to therein relate only to Bamdeo. Two facts have to be noted in Ex. P-3. It is merely stated that Bamdeo opened the front door on being demanded by the persons who had assembled outside the house; PWs 1 and 6 came out of the house and simply went away. There is absolutely, no reference to any talk with those two witnesses either by PW 9 or any other persons present, nor is there any reference to their having given any information about what they have seen inside the house regarding the crime.
18. The second fact to be noted is that PW 9 merely refers to having learned that three appellants escaped through the back door of the house. It is clear that PW 9 himself has not seen the appellants running away nor has he stated as to who informed him about having seen them so running away from the house.
19. Though the attempt of Mr Chari has been to establish that the appellants were not in the house at all at the material time, it is not possible for us to accept this extreme contention. The evidence of PWs 1 and 6 as also of PWs 3, 4, 5 and 7 clearly establishes that the appellants were seen running away from the house by the back door. But that circumstance by itself without any direct evidence regarding their participation in the crime or any other circumstantial evidence, which will conclusively lead to an inference of their participation will not justify a court in finding them guilty of an offence of murder. In this case the prosecution is not attempting to establish their guilt on circumstantial evidence. On the other hand, they have relied on the evidence of PWs 1 and 6, who claim to be eyewitnesses to the perpetration of the crime by the appellants. Hence it becomes necessary to consider the infirmities, if any, in the evidence of PWs 1 and 6.
20. Before the Court, no doubt, PWs 1 and 6 have given evidence that when Surajkunwar came to the house of Bamdeo on the morning of August 24, 1967, Accused 2 dragged her by the neck inside the house and the appellants and Bamdeo pushed her inside the room where she used to stay. They have also spoken to the fact that all of them pushed her down on the floor and Accused 1 and 3 throttled her by pressing her neck. Accused 2 gagged her mouth by thrusting a cloth and Accused 4, caught hold of her legs. They have also given evidence to the effect that after they came out of the house when the front door was opened by Bamdeo they mentioned about all these facts to the people assembled outside, particularly to PWs 3, 4, 5, 7 and 9. If this evidence is accepted, it is needless to state that the conviction of the appellants can be said to be justified. The question is whether it is safe to act on this evidence in view of the circumstances to be indicated immediately.
21. We have already referred to the first information report Ex. P. 3 given by PW 9 where there was absolutely no reference to PWs 1 and 6 mentioning anything about the incident to either PW 9 or to any other persons who had assembled there. On the other hand, in Ex. P-3 it is only stated that PWs 1 and 6 walked out of the house-when the door was opened and went away. This means that they never spoke to anybody about what they had seen inside the house.
22. In the statements before the police PWs 1 and 6 have not referred to their having mentioned to PW 9 about the incident of coming out of the house of Bamdeo. They have also not mentioned that the appellants had killed Surajkunwar. Again they have not mentioned in the statements before the police that both Accused 1 and Rajkumar, Accused 3 had pressed the neck of Surajkunwar; nor they have stated that Accused 2 Yudhishtir had trusted a cloth in the mouth of Surajkunwar, nor about Shivkumar catching hold of her legs. In the statements before the police they have merely stated that after coming out of the house they saw several persons outside, but they went away. This statement is quite consistent with the information given in Ex. P-3 that these witnesses never talked to anybody about the incident.
23. When confronted with these omissions in the police statements, PWs 1 and 6 stated before the Court that though they mentioned all the details about the crime to the police, the latter has not properly recorded their statements. But the Investigating Officer, PW 17 has given evidence to the effect that he has recorded the statements of PWs 1 and 6 as given by them and that they did not mention anything about the part played by the appellants in the crime.
24. Mr Shroff, learned counsel for the State, has attempted to explain away these circumstances on the ground that they are only minor omissions which will not affect the credibility of their evidence given before the Court. We cannot accept this contention of the learned counsel. We are of the opinion that these omissions, pointed out above, are not minor, but they are omissions of a very substantial nature, which affect the truth of the evidence given before the Court. On the earliest occasion these witnesses have omitted to refer to the decisive role stated to have been played by the appellants in the commission of murder. Therefore, the statement before the Court implicating appellants must, in the circumstances, be considered to be an improvement.
25. In fact the learned Sessions Judge has also held that the evidence of PWs 1 and 6 to the effect that after coining out of the house of Bamdeo they had told the people assembled, outside that all the four accused persons had killed Surajkunwar cannot be believed. Similarly the learned Sessions Judge has also held that these two witnesses cannot be believed on the point that along with Bamdeo the appellants had also actively participated in causing the death of Surajkunwar.
26. Normally on the basis of the above finding recorded by the learned Sessions Judge, one would expect the Court to hold the appellants not guilty of murder. But curiously the learned Sessions Judge proceeds on the basis that though the evidence of PWs 1 and 6 by itself would not be sufficient to convict the appellants, some corroboration will have to be found in other independent evidence. We are unable to appreciate this reasoning of the learned Sessions Judge. Corroboration for any evidence given by a witness may be found necessary when a Court is not inclined to reject the evidence of the witness to be false. A court may be willing to act on the evidence of a witness but it may be of the view that the witness is an interested one and it may not be safe to act on that evidence alone. In such circumstances, in order to enable the court to act on that evidence, it may seek corroboration from other independent evidence or circumstances. When evidence of a witness, as in this case of PWs 1 and 6 has been rejected as unacceptable, there is no scope for attempting to find corroboration by other independent evidence or other circumstances. If there was any other evidence implicating the appellants, it was open to the Court to consider such evidence even after rejecting as false the evidence of PWs 1 and 6.
27. But in this case, the prosecution does not rely upon any other evidence excepting PWs 1 and 6 regarding direct participation of the appellants in the crime. The learned Sessions Judge, accepting the evidence of PWs 3, 4, 5, 7 and 9 finds that the appellants' presence in the house was probable, and ultimately holds that Surajkunwar was murdered by Bamdeo “assisted physically by the other three accused persons also, meaning thereby the three appellants”. The finding as against the appellants regarding their participation in the crime, in our opinion, is not supported by the evidence of PWs 3, 4, 5, 7 and 9 once the evidence of PWs 1 and 6 has been rejected. The mere fact that the other witnesses speak to the appellants' running away from the house is not enough to make them guilty of an offence under Section 302, read with Section 34 of the Indian Penal Code.
28. The High Court has not at all referred to the infirmities pointed out by the learned Sessions Judge regarding the evidence of PWs 1 and 6, nor has the High Court adverted to the finding of the learned Sessions Judge that the evidence of PWs 1 and 6 regarding the participation of the appellants cannot be believed. On the other hand, a perusal of the judgment of the High Court gives the impression that the High Court was of the view that the evidence of PWs 1 and 6 has been completely accepted by the learned Sessions Judge without any hesitation.
29. There is only a brief reference to PWs 1 and 6 by the High Court to the effect that these witnesses were present in the verandah of the house of Bamdeo when the incident took place; and the High Court finds “we have no hesitation to hold that they were present and witnessed the incident as deposed to by them. Their presence is consistently deposed to by the prosecution witnesses and they were also duly mentioned in the first information report (Ex. P-3) lodged without delay at the Police Station”. We regret to note that these finding of the High Court have been made without actually considering the facts mentioned in Ex. P-3. We have already pointed out that Ex. P-3 does not refer PWs 1 and 6 having disclosed any facts about the crime to the people assembled outside the house. The High Court further says that PWs 1 and 6 have mentioned to the people outside the house about the facts relating to the crime and they have also narrated them to the police. We have already referred to the very serious omissions in the statements made to the police by PWs 1 and 6 and those omissions are not of a minor and inconsequential nature.
30. The High Court further, without any reference to these omissions and to the evidence given before the Court holds “that PWs 1 and 6 must have seen what transpired inside the room”. Such a finding recorded by the High Court without reference to the various circumstances, already adverted to by us, cannot but be characterised as anything but a guesswork and cannot be treated as a finding arrived at after a consideration of the evidence. On such a reasoning, as pointed out, the High Court has confirmed the conviction of the appellants. The approach made by the High Court is not at all justified and as such the conclusions arrived at by the High Court, as against the appellants, cannot be sustained.
31. In the result the judgment of the High Court confirming the conviction and sentence of the appellants of the offence under Section 302, read with Section 34 of the Indian Penal Code is set aside, Criminal Appeal No. 233 of 1968 insofar as it relates to Accused 3, Yudhishtir and Criminal Appeal No. 234 of 1968 are allowed, and all the three appellants are acquitted of the offence for which they were tried and convicted. They shall be set at liberty.