S.K. Mal Lodha, J.
1. The appellants Mst. Dhapi and Manphoolram have filed this appeal and it has been placed before me on difference of opinion between G.M Lodha, J. and M.C. Jain, J. hearing the appeal in Division Bench. The learned Sessions Judge, Sri Ganganagar, by his judgment dated November 6, 1979, convicted the appellants for the offence under Section 302, IPC and they were sentenced to imprisonment for life and fine of Rs. 200/-, in default of payment of fin(sic), to further undergo rigorous imprisonment for one year, and also convicted them under Section 201/-, IPC and were sentenced to three years rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine, to further suffer six month's rigorous imprisonment Both the convicts appellants appealed and the appeal was heard by a Division Bench consisting of G.M. Lodha, J. and M.C. Jain, J. G.M. Lodha, J., has come to the conclusion that the conviction of the appellants under Section 30, IPC and also under Section 201, IPC is correct and the sentences passed against them are proper. He, therefore, opined that the appeal should be dismissed. M.C. Jain, J, was of the opinion that the prosecution has utterly failed to prove the offence against the appellants by clear, cogent, legal and unimpeachable evidence. In view of this conclusion, he was of of the view that the appeal should be accepted and the convictions and sentences should be set aside and the accused-appellants should be acquitted of the offence of which they have been charged with. It is in these circumstances, that the appeal has been laid before me under the orders of Hon'ble the Chief Justice.
2. It is not necessary to re-count the facts in detail, for, they have been set out in the judgments of the learned Judges. Shorn off, unnecessary details, the prosecution case is that the deceased Biru Ram was living in the Dhani of his field which is situate in Chak 3 BLD along with his wife Mst. Dhapi (Appellant No. 1) and children. The other appellant Manphool Ram also resided with them PW 4 Banwarilal, PW 9 Ramswaroop and Krishna, who are sons of Biru Ram and were serving at some other places and so, they were not living with the deceased Biru Ram. Mst. Kesar (daughter of the deceased Biru Ram-wife of Sobha Ram), was married with the younger brother of appeallant No.2 Manphool Ram. Guddi and Chawli, daughters of the Biru Ram & PW 8 Pappu, s/o Biru Ram were living with the deceased. As Mst. Kesar was married with Sobha Ram, the appellant Manphool Ram used to visit the Dhani of the deceased and also stayed with Biru Ram and Mst. Dhapi. The appellant Manphool Ram developed illicit relations with Mst. Dhapi, the wife of the deceased. It is said that on the date of occurrence. (sic) December 22, 197(sic), the appellant Manphool Ram brought liquor and meat in the Dhani The meat was cooked by Mst. Dhapi and Manphool Ram gave liquor to Biru Ram, Biru Ram was heavily drunken and he lied on the cot. According to PW 8 Pappu, who was about 12 years of age of August 27, 1979 (the date on which his statement was recorded); Manphool Ram pierced sickle in the abdoment of his father (Biru Ram) and done him to death. Mst. Dhapi supported Manphool Ram in lifting the bundle of the dead body on the head of Manphool Ram. The dead body was removed from the Dhani. Manphool Ram and Mst. Dhapi threatened PW 8 Pappu not to disclose the occurrence to anyone also he would be killed. No report of the occurence was lodged. According to PW 4 Banwarilal, his maternal uncle Purkharam informed him at 33 GB that his father is not there in the Dhani. On being told this, PW 4 Banwarilal visited the Dhani, he met the appellant Manphool Ram. He is also said to have enquired from his mother as to where is his father. Her mother told that Biru Ram had gone to fetch his sister Mst. Kesar PW 4 Banwarilal, after two days, went to the house of his brother-in-law Sobha Ram and enquired from him regarding where abouts of his father, who informed him that he has not come there. After this, he returned to the Dhani of Biru Ram and asked Mst. Dhapi to accompany him and to leave the company of Mahphool Ram. Mst. Dhapi is said to have asked him to bring cart. He brought the cart. He found that the appellant Manphool Ram, Sobharam, Sarwan and Udaram were sitting there. He asked his mother (Mst. Dhapi) to put the luggage in the cart and to accompony him to his residence at 33GB. The appellant Manphool Ram turned him out after giving beating to him and Ramswaroop, his maternal uncle's son. It was on April 13, 1976, that PW 4 Banwarilal, submitted a report to the Superintendent of Police, Sri Ganganagar stating about the development of illicit relations of Manphool Ram with his mother Mst. Dhapi and that they considered his father Biru Ram to be an impediment in their way. It was also stated that the appellant Manphool Ram has illegally accupied one square of land of his father. A request was made that immediate action may be taken and in case the deceased Biru Ram has been killed, action may be taken against the appellants and in case Biru Ram is alive, his life may be saved On the basis of the report, which was sent to him by the Superintendent of Police, Sriganganagar, a case under Section 364, IPC was registered by Shri Umed Singh, SHO, Brijoynagar on May 17,1978, and it was handed over to the CI, CID., for investigation as ordered by the Superintendent of Police PW4 Banwarilal submitted a complaint to the Home Ministry, Government of India, New Delhi, which ultimately was sent for investigation to Iqbalsingh, C.I. During investigation, PW 13 Purkharam produced three post-cards Exs. 3, 6 and 8 on February 24, 1978. After the registration report dated April 13, 1976, PW 19 Iqbalsingh conducted further investigation & of the other case on the arrested the accused-appellants. At the instance of the appellants, some bones and sickle were recovered. After the investigation, charge-sheet was filed against both the appellants. At the instance of the appellants, some bones and sickle were recovered. After the investigation, charge-sheet was filed against both the appellants. The learned Sessions Judge, Sriganganagar, conducted the trial. Nineteen witnesses were examined on behalf of the prosecution. After the prosecution evidence was over, the accused-appellants were examined under Section 313, Cr. P C. It was stated by appellant No. 2 Manphool Ram that the witnesses have falsely given evidence against him due to enmity as he had lodged a report against PW 4 Banwarilal PW 9 Ram Swaroop and PW 17 Mani Ram for the offence of murder of Mst. Chawli, the daughter of the deceased. Appellant No. 1 Mst. Dhapi stated that she had reported the matter regarding the missing of her husband and also made a complaint of harassment by PW 13 Pukharam and PW4 Banwdrilal, She was also aid to be a witness against PW Banwarilal and PW 9 Ramswaroop in the murder case of Mst. Chawli. It was on account of these reasons that the witnesses have deposed against her, The accused-appellants did not produce any witness in defence. The learned Sessions Judge, Sriganganagar, has convicted and sentenced both the accused-appellant as aforesaid by his judgment dated November 6, 1979.
3. Being dissatisfied with the convictions and sentences, the accused-appellants have field the appeal, which was heard by a Division Bench consisting of G.M. Lodha, J., and M.C. Jain, J.
4. On behalf of the accused, Mr. B. Advani, learned Counsel for the appellants and Mr. M. C. Bhati, Public Prosecutor were heard by the learned Judges. The learned Judges came to two different conclusions. This appeal has been laid before me on account of the difference of opinion amongst them.
5. I have heard Mr. B. Advani, learned Counsel for the accused-appellants and Mr. D.S. Shishodia, Public Prosecutor for the State.
6. Mr. B. Advani, learned Counsel appearing for the accused-appellants pressed that the convictions of the accused-appellants are unsustainable aid, therefore, he urged for accepting the view taken and opinion expressed by M.C. Jain, J., Mr. D.S. Shishodia, learned Public Prosecutor, supported the reasons recorded and the conclusion arrived at by G. M. Lodha, J. Learned Sessions Judge has recorded the following findings:
(1) that the accused Manphool Ram frequently visited Biru Ram's Dhani and was having illicit relations with Biru Ram's wife Mst. Dbapi;
(2) that the P.W. 8 Pappu, P.W. 9 Ram Swaroop as corroborated by P.W. 16 Tulsi Ram are reliable and prove the case of the prosecution;
(3) that misleading was caused by three post cards Ex. P. 3, 6 and 8, which are said to have been sent by the accused-appellant Manphool Ram; and
(4) that it was proved that after murder of Biru Ram, in order to conceal the evidence in this regard, it was wrapped in a cloth and there after, the dead body was burnt by the accused-appellants.
7. In these circumstances, the first question that crops up for consideration is whither there is credible and unimpeachable evidence on record o(sic) the basis of which it can be held that the accused appellants are guilty of the offences with which they have been charged with. The main & the most important evidence in this case is that of PW. 8 Pappu, who is son of the decease Biruram & the accused appellant Mst Dhapi, as he is said to be an eye witness; of the occurrence His statement was recorded by the learned Sessions Judge on August 27, 1979. The witness, at the time of recording of his statement was 12 years of age. By putting two questions as to the object of coming and for what purpose the date has been fixed, the learned Sessions Judge was satisfied regarding the competency of the witness to give the statement. The occurrence is said to have taken place in the night of December 22, 1975. At that time, P.W. 8 Pappu was aged 8 years. He has give an ocular account of the occurrence. He has stated that after making his father Biru Ram dead drunk when he was lying on the cot, the accused Manphool Ram cut his abdomen with sickle & thereafter, his body was removed after it being wrapped in cloth and that bundle was removed by the accused Manphool Ram on his head with the support of his mother Mst. Dhapi. The report of the occurrence was not lodged soon after the commission of he offence. The written report Ex. P 9 dated April 13, 1976 addressed to be Superintendent of Police, Sriganganagar, was submitted by P.W. 4 Banwarilal. In that report, it was not specifically stated that Biru Ram has been murdered. What was mentioned therein was regarding apprehension about the murder or for tracing out the where abouts of the deceased Biru Ram. To quote from the report:
fnlEcj 75 ds e/; ls esjk firk xk;c gS A ges rks igys Hkh ?kj ls fudky nsrs Fks A gekjh xSj gtkjh es eq- /kkih o euQwy us esjs firk oh:jke dks ;k rks [kRe dj fn;k gS A ;k dgh ij ls uktk;t jksd j[kk gS A ge tukc bl ckr dk irk pyk rks fQj ge ogka ugh x;s A ges Hkh tku dk [krjk gS A
^dbZ o'kZ igys Hkh geys fd;s vkSj tc eq>s iwjk ;dhu gS fd bu yksxks us gh esjs firk oh: jke dks ;k rks ;gh [kRe dj fn;k gS ;k cUn dj j[kk gS A fiNys pkj ebZ ls oh:jke dk irk ugh py jg gS A
P.W. 8 Pappu has stated that he has divulged the information to one Mala Ram, who was working as a servant in the field of Ranji Thakar, which is adjacent to his field as Mala Ram enquired from him regarding his father and thereupon, he (P.W.8 Pappu) narrated about the occurrence to him (Malaram). It may be stated here that Malaram has not been produced by the prosecution. It appears from the cross-examination of P.W. 8 Pappu that Malaram had not asked him anything and he of his own accord, narrated, about the occurrence. In the words of P.W. 8 Pappu:
eSus vius vki lkjh ckr ekyk jke dks tkdj crk nh A ekykjke us esjs ls dqN ugh iwNk Fkk AeSus vius vki gh crk fn;k Fkk A
The witness also stated that after 2 or 3 days of the occurrence, his elder brother PW 4 Banwarilal came to Dhani & there he narrated about the occurrence to him. He has told his brother that their father has been murdered It is a thus, clear from the statement of P.W. 8 Pappu that the information regarding murder of Biru Ram was conveyed to Malaram after 2-3 days and to P.W. 4 Banwarilal after 5-6 days of the occurrence. Now, one has to consider that if P.W. 8 Pappu had seen the occurrence and informed about the murder to Malaram 2-3 days after the occurrence and 5-6 days after to P.W. 4 Banwarilal, a report about it should have been lodged, but the fact is that no report was lodged and even on April 13, 1976, the report which was submitted to the Superintendent of Police, Sri Ganganagar, definite allegation regarding murder of Biru Ram was not made.
8. It will be useful here to refer to the decisions having bearing on the question relating to the appreciation of the evidence of a child witness.
9. In State of Bihar v. Kapil Singh : 1969CriLJ279 , regarding appreciation of the statement of a child witness, their Lordships of the Supreme Court observed as under:
While such a child witness can often be expected to give out a true version because of her innocence, there is always the danger in accepting the evidence of such a witness that under influence, she might have been coerced to give out a version by persons who may have influence on her. In this case, there are a number of circumstances which, in our opinion, indicate that it will not be quite safe to rely on her evidence.
10. In C.P. Fernandes v. Union Territory. Goa : AIR1977SC135 , the question was also with regard to the appreciation of evidence of a child witness. Their Lordships expressed themselves in the following words:
His evidence is, therefore, to be approached with great caution, He was, according to the prosecution, the only eye-witness to the crime. We have carefully gone through his evidence but we are constrained to observe that ever after making the utmost allowance in his favour in view of the fact that he is a child witness. We find it difficult to accept his testimony. There are several contradictions from which his evidence suffers, such as who had which weapon, but it is not merely on account of these contradictions of a minor character that we are inclined to reject his evidence. There are serious infirmities affecting his evidence, and of them, the most important is that he is supposed to have given the name of appellant No. 2 as the assailant of the deceased even though he had never seen him before the date of the incident....This contradiction is again of a very serious nature and we do not think it would be safe at all to rely on the testimony of Xavier.
It was held in Mohammed Sugal Esa Mamasad Rer Allah v. The King AIR 1946 PC 3 as under:
In England where provision has been made for the receiption of unsworn evidence from a child it has always been provided that the evidence must be corroborated in some material particular implicating the accused. But in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a Court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child whether sworn or unsworn, but this is a rule of prudence and not of law.
The tender years of the child, coupled with other circumstances appearing in the case such for example as its demeanour, unliklihood of tutoring and so forth, may render corroboration unnecessary, but this is a question of fact in every case. Corroboration is not a rule of prudence, but of practice. The Court should not lightly rely upon an uncorroborated evidence of child witness unless after adopting all precautions it is considered reliable. The statement of a child witness should be scrutinised with 'extreme care and caution' when he is the only eye-witness.
11. Cross, on Criminal Investigation, fourth Edition Edited by Ronald Martin Howe, M.C..,. in Chapter II, relating to examination of the witnesses, while dealing with children, has stated as under:
Again it must not be forgotten that a child is peculiary exposed to external influences, whether designed or accidental. Anyone, knowing that a child is to appear as a witness in a court of justice if he is interested in its statements and has the chance of influencing it himself, will almost certainly exert that influence. The child, as yet devoid of principles, places great faith in the words of grown-up people; so if a grown up person brings influence to bear on it, especially some time after the occurrence, the Child will imagine it has really seen what it has been led to believe
Keeping the aforesaid principles bearing on the question of appreciation of statement of a child witness, the statement of P.W. 8 Pappu is to be scrutinised. There are contradictions in the statement of the child witness P. W. 8 Pappu in as much as he stated.'
eSus vius vki lkjh ckr ekykjke dsk tkdj crk nh A Ekkykjke us esjs ls dqN ugh iwNk Fkk] eSus vius vki gh crk fn;k Fkk A Thereafter he stated eSus iqfyl ds c;kuks es Hk ;gh fy[kk;k Fkk fd eSus vius vki gh ekykjke ds iwNus ij rqeus lc ckr crkbZ rks xokg us tckkc fn;k fd igys ekykjke u iwNk rc eSus ckr crkbZ A Soon after this, he deposed ^^odhy lkgc }kjk iwNus ij xokg us dgk fd eSus [kqn us mldks igys cryk;k ] ekykjke us ugh iwNk A
It has to be remembered that do report of the occurrence was lodged even earlier than April 13, 1976. Even in the report that was lodged on April 13, 1976, it was not definite about murder.
12. No corroboration can be sought of the statement of P.W.8 Pappu from the statement of P.W. Kasiram. P.W. 15 Kari san was examined by the prosecution after 4-5 months after he had come to know about the murder of Biru Ram. The information pertaining to the murder of Biruram, was furnished to him by Malaram.
13. The argument of Mr. D.S. Shishodia is that P.W. 8 Pappu was under threat of dire consequences and so, he did did not give information regarding the occurrence and therefore, the fact that he has not divulged the information for a long period, should not come in the way of not believing PW 8 Pappu and other witnesses. This need not detain for the reason that v n despite the threat of dire consequences, PW8 Pappu did divulge information regarding occurrence to Malaram and his brother PW 4 Banwarilal. In these circumstances, it cannot be said that an(sic)d threat was operating the mind of PW 8 Pappu. It follows therefore, that if PW 8 Pappu had witnessed the occurrence and had divulged the occurrence, the natural consequence would have been to logde the first information report of murder. The prosecution has not come forward with a case that PW, 8 Pappu, under the threat of his own murder, had no courage to disclose about the incident to any one and disclose it to his brother PW 4 Banwarilal sometime before the submission of the application Ex. P (sic)0 to the Home Minister. That application, regarding the details and the manner in which Biru Ram was murdered, is also conspicuously lent. In Guljari v. State AIR 1971 Raj. 68 it was observed:
The witness also stated that he did not relate this incident to anyone before October 15, 19(sic)7. It is difficult, if not possible, to believe that if really such an important happening was noticed by him, he would not talk about it to any other person for long. (Emphasis supplied)
In Biharisingh v. State of Bihar : AIR1954SC692 , one witness PW 2 Tapusingh stated that he heard the sound of a man being strangulated and that was what attracted his attention and took him to the spot, and that there he was told about the murder by one Gujri and yet he told no one. It was observed as follows:
If he had raised a hue and cry the murderer or murderers would either have been caught on the spot before they had a chance to escape or at least the body would have been found at once. His conduct is unnatural and inexplicable, for we cannot see what he had to fear with all the villagers around. It seems probable that he was not told at the time but much later. We have already pointed out that Gujri said in cross-examination that she did not tell this fact to 'any one' till several days later.
In view of the various contradictions that have come in the statement of PW 8 Pappu, coupled with the fact that the firs' information report was not lodged, though he is said to have told about the occurrence to Malaram and PW 4 Banwarilal before April 13,197 (the date of submission of the report to the Superintendent of Police): it is clear that implicit reliance cannot be placed on the testimony of PW 8 Pappu and it cannot be said to be free from all taints which tend to render the oral testimony of this witness to be suspicious.
15. Now, let me examine the statements of PW 9 Ramswaroop and PW 16 Tulsiram.
16. PW 9 Ramswaroop is son of deceased Biruram. He has stated that he was serving in the Chak 4 BLD and when he enquired from his mother about his father, she told that his father has gone to Pakistan. When this information was given, the accused-appellant Manphool Ram was present in the Dhani. Even after the murder of Biru Ram, Manphool Ram lived in that Dhani with Mst. Dhapi for three years. He has further stated that his mother came to PW 16 Tulsiram and demanded wheat for food from him, and, thereupon, he told her that he will not give wheat till his father comes in the Dhani. Thereafter, according to this witness, his mother slapped him and told that as his father has been removed as thron from the way, so she will also remove him. In the cross-examination, the witness stated that he did not tell Banwarilal when he met him after 18 days, that his mother came and demanded wheat from him and she slapped and told him about the removal of his father as thorn. This matter was disclosed to Banwarilal after one month Ex. 1 is the statement of the witness which was recorded by the Police on September 23, 1978. In that statement there is no mention of slap being given by his mother to him. PW 16 Tulsiram has stated that Mst. Dhapi had come to demand wheat for food from him after 2-3 months of the missing of Biru Ram and that when PW 9 Ramswaroop refused him to give wheat to her. Mst Dhapi told Ramswaroop that he will meet the same consequences as his father had met, i.e. he would also be got killed. The witness has admitted that he has not disclosed this to anyone. This was told by the witness 2 1/2-3 years after, when the police enquired from him. In the ordinary course of human conduct, PW 16 Tulsiram should have disclosed it to some body that Mst. Dhapi had told PW 9 Ramswaroop that he will meet the same fate that his father had met, i.e. he would also be got killed. PW 9 Ramswaroop should have told about the slap being given to him by his mother to his brother PW 4 Banwarilal. Admittedly, this was not done. From the statements of PW 9 Ram Swaroop and PW 16 Tulsiram Mr. Shishodia, suggests that in a way Mst. Dhapi has confessed regarding the murder of Biru Ram. The version given by PW 9 Ramswaroop and PW 1(sic) Tulsiram, in so far as it relates to the incriminating statement of Mst. Dhapi is concerned, I am of opinion that it does not inspire confidence, and it is not a confession. What at the most can be said from the testimony of the aforesaid witness is that the accused Mst. Dhapi was behind the murder of her husband On the basis of the version of the aforesaid two witnesses, no guilt can be fastened against the accused Mst. Dhapi and, in my opinion, it will not be safe to rely on their testimony.
17. Now, I take up the evidence relating to sending of three postcards by the accused Manphool Ram to mislead regarding cause of murder. The three post cards are Exs. P3, P6 and Ex. P8 Ex. P3 is dated January 7, 1976 and is addressed to Purkharam Meghaval (village Shopuri) care of Seth Dholaram Kapare-wala, Post Office Vijaynagar, District SriGanganagar, Ex. P6 is post card dated December 30, 1976 addressed to Purkharam Meghawal, and Ex. P 8 is dated December 28, 1975 addressed to Harchand Meghwal, 4 BLD, Tehsil Vijaynagar, District Sri Ganganagar. The prosecution examined PW 2 Gulabsingh and PW 3 Karnisingh. Both the witnesses were declared hostile and the Public Prosecutor was permitted to cross-examine them. A perusal of the statement of PW 2 Gulabsingh show that he wrote the post card Ex. P3 at the instance of one person, who disclosed his name as Biruram. A specific question was put to him with reference to the accused Manphoolram In reply to that question he stated that he can't say that it was Manphoolram, who got the aforesaid post card written by him. PW 3 Karni Singh stated that the man, who got the post-card written is not present in the court. The addressee of the post-cards are of PW 13 Purkharam and PW 10 Harachand. Two post cards are received by Purkharam & one was received by Harchand. Ex. P 3, 6 & 8 which are after the date of the murder in as much as Ex. P8 is dated December 29, 1975, Ex. P6 is dated December 30, 19(sic)5 and Ex. P8 is dated January 7, 1976, and by these post cards it was sought to be conveyed that Biruram was still alive and would return home after sometime. What the prosecution was required to establish was that it was at the instance of Manphoolram that the post-cards (Ex, P 3, 6 & P8) were got written so as to mislead regarding the circumstances of the murder of Biruram. No evidence from which it could be inferred that the accused-appellant Manphoolram got these post-cards written, has been placed on record and in the absence, of such evidence much assistance cannot be derived from the statement is of PW 31 Purkharam and PW 10 Harchand.
18. It is true that there is evidence on record regarding motive, but on the basis of motive alone, the accused-appellants can't be found guilty for, that by itself is not sufficient for holding that guilt has been established against the accused-appellants.
19. Besides the evidence referred to here in above, no evidence was shown on record for coming to the conclusion that the accused appellants have committed the offence under Sections 302 and 201. IPC. While agreeing with M.C. Jain J. I am of opinion that the prosecution has failed to prove the offence under Section 302 and Section 201, IPC against both the accused-appellants.
20. The result is that I allow the appeal, set aside the convictions and sentences of the appellants (Mst. Dhapi and Manphool Ram) and acquit them of the offences of which they have been convicted by the Sessions Judge, Sriganganagar. They are in Jail. They be released forthwith, if not required-in any other case.