C.M. Kudal, J.
1. These are two connected appeals arising out of the judgment dated 3.11.1970 by the Sessions Judge, Merta who sentenced the appellants as follows:
------------------------------------------------------------------------------Name of accused Convicted under Sentenced to------------------------------------------------------------------------------1. Laxmandas Under Section 302 read with Rigorous imprisonment for lifeSection 34 I.P.C. and a fine of Rs. 100/- in defa-ult of payment of fine to undergo further six months' rigorousimprisonment.2. Smt. Bhanwari under Section 302 read sentenced to life imprisonmentwith Section 34 and a fine of Rs. 100/-, in default of payment of fine to un-dergo further six months'rigorous imprisonment.3. Jagdish under Section 302 IPC sentenced to life imprisonmentand a fine of Rs. 100/- ; in de-fault of payment of fine to fur-ther undergo six months' rigo-rous imprisonment.
2. Laxmandas and Jagdish have filed a joint appeal through Jail and their appeal has been registered as D B. Criminal (Jail) Appeal No. 243 of 1971. Smt. Bhanwari has filed a separate appeal through Jail and her appeal his been registered as No. 428 of 1971. Since all the three appellants were unrepresented we appointed Shri C.L. Agarwal to argue the case on their behalf free of charge. However, after the case had remained part-heard on 6.5,1975 Shri M.B.L. Bhargava put in appearance and submitted that he had been engaged by convict Jagdish to argue his appeal. Thereupon we adjourned the bearing of the case.
3. We have heard Mr. Agarwal on behalf of Laxmandas and Shrimati Bhanwari and Mr. A.K. Bhandari who has appeared to argue the matter on behalf of Mr. M.B L. Bhargava counsel far the convict Jagdish.
4. The facts of the case lie within a narrow compass : The appellant Smt. Bhanwari was first married to Hiradas. Then in the life time of Hiradas she performed second marriage with Modadas. She again left Modadas and married the deceased Ramnarayan. It is alleged by the prosecution that she developed illicit relationship with the accused Laxmandas, brother of the deceased Ramnarayan, alias Narayandas. The appellant Jagdish was born to Smt. Bhanwari out of her marriage with Modadas. The prosecution case is that on the night between 10th and 11th July, 1969, all the three accused viz. Laxmandas, Smt. Bhanwari and Jagdish killed the deceased Narayandas in their own house in village Ren, Police Station, Merta Road, and then burried his dead body in the 'sal' of the house. PW 1. Smt. Kamla, daughter of Smt. Bhanwari, witnessed the murder as well as 'be burial of the dead body but she was threatened not to disclose this fact to anybody. Consequently she remained silent till the Police interrogated her on 10th August, 1969.
5. The crime came to light in this manner : An anonymous report Ex. P. 14 was received at the Police Station, Merta Road on 7.8.1969 wherein it was mentioned that the where abouts of Ramnarayan had not been known since 10-7-1969. This report has been placed on the record and marked Ex, P. 14. On receipt of the report the Station House Officer, Police Station, Ren, PW12 Ummed Singh reached the village Ren and started enquiry into the correctness of the report. On making enquiries at the spot he came to the conclusion that Ramnarayan had been killed by the accused on the night intervening 10th and 11th July, 1969 and thereupon he registered the case, under Section 302 IPC and started regular investigation. He arrested the accused on 9.8.1969. The accused Jagdish soon after his arrest gave information to the Station House Officer that he had concealed the dead body of the deceased Narayandas in the 'sal' if his house. The information was reduced to writing by the Station House Officer and is marked Ex P. 15. On the next day i.e. 10 8 1969 Jagdish pointed out the place where the dead body had been concealed in the presence of Sub divisional Magistrate Shri Satyendra Nath (PW. 11), Dr. S.K. Lodha (PW. 5) and motbirs PW. 9 Razak and Ghewarchand. The recovery memo of the dead body was prepared by Ummed Singh (PW. 12) and the same is marked Ex P. 10. The post-mortem examination of the dead body conducted by Dr. S.K Lodha revealed the following injuries:
1. The body was found shrunken. Skin was dry and peels of at places, and common salt was lying on the body. Skin of the face found destroyed.
2. There was a wound which was soiled with sand S' in length extending from upper border of thyroid cattilage to the right side of axile.
6. The wound was going upto cervical vertebrae in neck and about 1/4' deep on chest, 3rd and 4th trachea curtilage were found broken. There was wound on the body of 3rd cervical vertebrae about 1/2' deep. There was dislocation of right sterno-claricular joint. In the wound of the neck ail the blood vessels of the right side of the neck were found severed including right superior venacsvae just above clavicle. Eye balls were completely destroyed. The duration of the death according to the doctor was 1 to 2 months. The doctor has further opined that the cause of death was shock resulting from bleeding from injury on the neck. The doctor has further said that the injuries found on the dead body were sufficient in the ordinary course of nature to cause death.
7. On 11.8.1969 the accused Jagdish again gave information regarding the axe elleged to have been used in the crime. Information memo has been marked Ex P. 16. The axe was seized on 15-8-1969 and the seizure memo is Ex. P. 9. On 14-8-1989 the accused Smt. Bhanwari gave information regarding presence of blood stuns on her clothes alleged to have been worn by her at the time of commission of the crime. This information was reduced to writing and marked Ex. 17 and the seizure memo of her clothes is Ex P. 11. On 12-8-1969 the accused Laxmandas gave information regarding presence of blood stains on a cot on which the deceased was sleeping. This information is masked Ex P. 18 and the memo of recovery of the cot is Ex P 12, dated 15-8-1969. It may, however, be mentioned that in case of none of these articles the Serologist has found stains of human blood and therefore these recoveries are not of much assistance to the prosecution in connecting the accused with the crime. The prosecution has also placed en record an inland letter Ex. P 1 purporting to have been scribed at the instance of the accused Laxmandas and Smt. Bhanwari and posted from Bhilwara. It purports to be written by the deceased Narayandas from Bhilwara and addressed to the accused Laxmandas wherein it is written that he would stay for some time in Malw(sic)z. After collecting all this evidence the Police challaned the accused in the Court of Additional Munsiff Magistrate, Merta, who by his order dated 25-6-1970 committed them for trial to the Court of Sessions Judge, Merta. The accused denied having committed the offence The Sessions Judge convicted and sentenced the accused as already mentioned above.
8. After having heard learned Counsel for the parties and after perusing the relevant record, we find that the case against the accused rests on the direct evidence of PW 1 Smt. Kamla, recovery of the dead body of Ram Narayan from his house acid other recoveries, and lastly the letter ExP 1. We may add, however, that the conduct of the three accused is an additional circumstance which may be taken into consideration.
9. PW 1 Smt. Kamla is a girl of 15 years She has stated that her father Ramnarayan was murdered in his house in village by her mother Smt. Bhanwari, her under Laxmandas and her brother Jagdish. That night she slept with her younger sister Smt. Geeta on one cot, in the court-yard, in front of the 'sal' of the house and her mother Smt. Bharwari was also sleeping at a distance of 6 to 7 pawandas from her. She further states that the accused Laxmandas and Jagdish were also sleeping on cot at a distance of 2 to 3 pawndas from her cot. Her father Narayandas came into the House after the night bad advanced. He knocked at the door and Smt. Bhanwari woke up and opened the door and after Narayandas had come in bolted it from inside. Narayandas also slept on a cot lying there at a distance of about 14 steps from her cot. The witness fell asleep and suddenly she heard the cries of her father and saw that Narayandas had fallen from the cot and the accused Jagdish was holding an axe in his hands while Laxmandas had caught his feet and her mother Smt. Bhanwari his bands. The witness further states that she saw injury on the throat of her father where from there was profuse bleeding. She saw the whole incident while sitting on the cot and began to weep, arid thereupon Laxmandas, Jagdish and Smt. Bhanwari threatened her that if she disclosed the incident to any body she too would be put to death and buried by the side of the fairer. She has stated that after killing hei father Jagdish put sand on the injury in order to check the bleeding Accused Laxmandas and Jagdish put stones on the chest of Narayandas and then all the three went inside the 'sal' and dug a pit infront of the almirah in that 'sal'. Smt. Bhanwari had a spade, Laxmandas had an axe and Jagdish a 'Kassi'. Having dug a pit with these instruments the accused lay the dead body of Narayandas in the pit and put salt over it, and then plastered the ground with mud. She also stated that her mother Smt. Bhanwari had developed illicit intimacy with her uncle Laxmandas and her father used to rebuke her mother for that. This led to the perpetration of the crime. She also stated that she, her father Narayandas her brother Jagdish and her uncle Laxmandas and so also her mother Smt. Bhanwari used to live jointly in the same house. In the course of cross-examination on behalf of the accused the witness turned hostile and stated that she had made a statement implicating the accused at the instance of the Police. Thereupon she was permitted to be cross examined by the prosecution and on an application made in that behalf, her statement in the committing court marked Ex. D 3 was taken on the record of the trial court under Section 288 CrPC wherein she had supported the statement made by her in examination-in-chief in the trial court.
10. Learned Counsel for the appellants has argued by placing reliance on Sharnapa Mutyappa Malke v. The State of Maharashtra : 4SCR589 that since Smt. Kamla has resiled from her evidence in the committing court and her statement in the committing court has been brought on the n cord under Section 288 Cr.P.C. then before such evidence is accepted, satisfaction about its being true and reliable is absolutely necessary. He has further cited Periyasami v. State of Madras : 1967CriLJ975 in which their Lordships have been pleased to hold that if the matter rests upon the statement of a witness who has changed the version and there is nothing further to connect the accused with the offence with which he is charged, there will be go id ground for acquitting him.
11. In her statement recorded in the committing court Ex. D 2. Smt Kamla has given a consistent version that in her presence all the three accused killed Narayandas and then buried his dead body in the 'sal' of the house. She has also stated that the motive for the crime was that her mother bad illicit connection with her uncle Laxmandas and therefore all the three accused wanted to remove Narayandas from the way. She has further stated that the site was inspected by the Police in her presence She was cross-examined at length by the learned Counsel for the accused but she stood the cross-examination very well. Nothing has been brought out to discredit her testimony or to make her otherwise unreliable. In the trial court also she made a statement in examination-in-chief exactly on the same lines as in the committing court In the course of cross-examination she stuck to her original version to a considerable extent. She also admitted the contents of her statement recorded under Section 164 Cr.P.C. (Ex. E 6 ), and so also she admitted her statement before the Police (Ex D. 1), and then suddenly trimmed her version by stating first that when her father expired the accused Laxmandas was not present in the village Ren as he had gone to some other village, on that day, and it was under the Police pressure that she had stated that her uncle Laxmandas also lived jointly with her father. She goes on to state that the Police gave her beating and on account of threat by the Police she had said that Laxmandas committed the murder of her father. Then she has stated that the accused did not talk amongst themselves that they would commit the murder of her father. By and by she started watering down her statement and said that when the dead body was taken out it was not identifiable and that she had stated simply at the behest of the Police that the accused Jagdish had placed the axe Article 6 on the peg in the wall after washing it. In the course of cross examination by the counsel for the accused Jagdish and Smt. Bhanwari, she completely resiled from her statement in the committing court and said that she had not seen the accused committing the murder of her father Narayandas. At that stage the Public Prosecutor sought permission of the Court for cross-examining the witness and the permission was granted. In the course of cross examination by the Public Prosecutor she stated that it was constable Biju Khan who had threatened her to give the statement as the Police wanted. Even then she admitted that the dead body of her father was buried in her house and it was taken out by digging the earth. This time she admitted that the dead body was of her father yet strangely enough in the next breath she said that she is not able to state whether her father is alive or dead She further stated that in the beginning when the Public Prosecutor asked question to her she gave wrong replies due to the fear of the Police but when she was cross-examined by the counsel for the accused she made a come statement as the fear of the Police had then disappeared. She further admits that at no point of time before her statement was recorded by the trial court she ever disclosed to anybody that she bad given an incorrect statement under the influence of Bejukhan Constable. It appears to us that the witness has resiled from her statement recorded in the committing court on account of her close relationship with all the three accused who are her mother, brother and uncle.
12. It was observed by their Lordships of the Supreme Court in Sharnappa Mutyappa Malke v. The State of Maharashtra : 4SCR589 :
Where a person has made two contradictory statements on oath it is plainly unsafe to rely implicitly on his evidence. In other words, before one decides to accept the evidence brought in under Section 288 of the Code of Criminal Procedure as true and reliable one has to be satisfied that this is really so. How can that satisfaction be reached? In most cases this satisfaction can come only if there is such support in extrinsic evidence as to give a reasonable indication that not only what is said about the occurrence in general but also what is said against the particular accused sought to be implicated in the crime is true.
13. Keeping in view the fact that Smt Kamla has resiled from her previous statement recorded in the committing court we find it safe to act upon her testimony only to the extent it is corroborated by some other extrinsic evidence and we propose to judge the case against each of the accused from this point of view.
14. It may be recalled that soon after his arrest Jagdish gave information to P.W. 12 Ummed Singh that he had buried the dead body of Narayandas in the 'sal' of his house. The dead body was actually recovered at his instance in the presence of a large number of witnesses referred to above whom we consider wholly reliable particularly the Sub-divisional Magistrate and the doctor. From this extrinsic evidence we are satisfied that Smt. Kamla's statement contained in Ex. D. 2 implicating the accused Jagdish as one of the participants in the crime is correct and must be accepted.
15. As against Smt. Bhanwari admittedly she was the wife of the deceased Narayandas and will be presumed to be living with her husband in the house in question from where the dead body was recovered. We may mention, here, that even though she has deposed in her statement under Section 342 Cr.P.C. that the used to live in a separate 'Nohara', we are not prepared to give any credence to this version. Added to this is another very strong circumstance against her that she made no report to the Police that her husband had disappeared in the night of 10-7-1969 and some enquiry may be made about him. Her silence in this connection also raises a presumption of guilt against her. The cuttings from her 'lenhanga's suspected to be stained with blood were seized by the Police and sent to the Chemical Examiner who has reported that there was blood on them However, the blood had been washed away and the Sexologist's report is that the origin of the blood could not be traced. Jo absence of a finding by the Serologist that it as human blood, this circumstance cannot be very much pressed into service against her but in our view the other circumstances narrated above are explicable only on the hypothesis that, what Smt. Kamla has stated against her is correct and she was a participant in the crime.
16. Now it remains to consider the case against Laxmandas. The prosecution has placed on record the letter Ex. P. 1, alleged to have been scribed at his instance. It purports to be from the deceased Narayan Das and has been posted from Bhilwara. The prosecution has endeavoured to show that in order to keep the Police off the track and to keep the murder Hidden Laxmandas had manoeuvered this letter. We have gone through the statements of P.W. 2 Radha Kishen, P.W. 3 Mangilal and P.W. 4 Raghavdas, father of the accused Smt Bhanwari. Raghavdas was declared hostile and was permitted to be cross examined by the prosecution. He is a discredited witness and, in our opinion, no value can be, attached to his testimony. P.W. 4 Radha Kishen has stated that the letter Ex. P. 1 was written by him and he had copied the same from a draft. The draft has not been produced. P.W. 3 Mangilal has stated that he was called by Raghavdas at his house in the presence of Smt. Bhanwari and Laxminarayan and he wrote a letter on a white paper on a request by Smt. Bhanwari that the people of her village were harassing her as to the where abouts of the deceased Narayandas and therefore she wanted to obtain this letter to convince the people of her village that Narayandas was still alive and was living to the vicinity of the town of Bhilwara As pointed out above the letter was addressed to Laxminarayan and should have been in the ordinary course delivered at the residence of Laxminarayan but there is not an iota of evidence on the record that the letter was delivered to Laxminarayan or that it was recovered from his possession or from his house. We are, therefore, not in a position to know as to how this letter came into possession of the Police. The original draft from which P.W. 2 Radhakishen copied it out has also not been produced. We have looked into the original letter Ex. P. 1 and find that the dates both in G(sic)gorian and Vikram Calenders are over-written. We are not inclined to attach much evidentiary value to this letter and consider it safre not to rely upon it. There is no other extrinsic evidence against him. Apart from Smt. Kamla no other witness has even stated that he used to live with the deceased Narayandas in the same house. In absence of reliable extrinsic evidence we are constrained not to uphold his conviction on the basis of the sole statement of Smt. Kamla recorded in the committing court (Ex. D. 2) and give him benefit of doubt.
17. The net result of the fore-going discussion is that the convictions and the sentences imposed upon Smt. Bhanwari. and Jagdish are maintained and their appeals are dismissed. The accused Laxmandas is given benefit of doubt and his appeal is allowed. The conviction and sentence passed against him are set aside and he shall be released forthwith if not required in connection with any other case.