Vyas Dev Misra, C.J.
1. This judgment will dispose of Criminal Appeals Nos. 23 and 45 of 1980 since they arise out of the same incident. The former appeal is directed against the judgment of Shri R. K. Mahajan, Additional Sessions Judge, Mandi, convicting the appellant under Section 302 of the Indian Penal Code and sentencing her to imprisonment for life. The latter is the State's appeal against the acquittal of Thakur Singh who was a co-accused with Sewaki.
2. Kalawati (deceased) was married to one Bahadur Singh. During the three years of her marriage no child was born to her. It is alleged by the prosecution that she had not brought enough dowry and there used to be frequent quarrels between Kalawati and her mother-in-law, Sewaki appellant, and others. Kalawati used to reside in the village with her mother-in-law Sewaki, and Kali Devi and Kantar Devi, daughters of Sewaki. Bahadur Singh and his father Hari Singh were employed in Mandi and they used to reside there, off and on Bahadur Singh used to visit the village during vacation Thakur Singh younger brother of Bahadur Singh, however, used to live in the village.
3. It is the case of the prosecution that on 4-10-1977, between 7 and 8 P. M, there was a quarrel between Kalawati and her mother-in-law, Sewaki appellant. The appellant is alleged to have throttled Kalawati to death. Thereafter the appellant told the village folk and her neighbours that Kalawati had died due to snake bite. Shrimati Mahantoo (P.W.3) mother of Kalawati deceased, and Puran Chand (P. W. 7), brother of Mahantoo, who were living in other villages nearby, came to know of Kalawati's death on the morning of 5-10-1977. They rushed to the house of the appellant. They noticed that the dead body had been put in the verandah and had been covered with a chaddar. They questioned the appellant and others about the cause of death. They were told that a snake had bitten Kalawati and she died thereof. Shrimati Mahan too uncovered the dead body and on examination did not find any signs of snakebite. However, she noticed blood oozing out from the nostrils as well as mouth of Kalawati deceased. Puran also noticed this blood. Puran along with Chand (P. W. 2) went to the police station and lodged a report there. This was done at about 12 noon. The police arrived at the scene, took over the dead body, held an inquest and sent the dead body for post-mortem examination.
4. Dr. Vasu Dev Sharma (P. W. 1) performed the autopsy at about 5.45 P. M. He found the hyoid bone fractured. Large quantity of blood was noticed inside the neck which was swollen. He opined that the deceased had died of asphyxia as a result of strangulation. He ruled out snake biting.
5. A case of murder was duly registered and after completing, the investigation the appellant was charge sheeted under Section 302 of the Indian Penal Code for the murder of Kalawati, and Thakur Singh was charge sheeted under Section 201/511 of the Indian Penal Code.
6. The defence of the appellant, as disclosed in her statement recorded under Section 313 of the Criminal Procedure Code, was that Kalawati had brought the customary dowry at the time of her marriage. She denied any ill treatment or beating being given to Kalawati by her. She also denied giving out snake bite as the cause of Kalawati's death. According to the appellant, the deceased used to suffer from fits. On the fateful night the appellant had gone to milk the buffalo in the cow shed. Her daughters called her from the cow shed stating that Kalawati had suffered a fit and had fallen in the bucket. Before she could reach the scene, her daughters with the help of Beli Bam and Dagi Ram had already placed Kalawati in the verandah where she lay dead.
7. The trial court came to the conclusion that the offence against the appellant was fully established and, therefore, she was convicted and sentenced as aforesaid. Thakur Singh, who was charged under Section 201 of the Indian Penal Code read with Section 511 of the Indian Penal Code, was acquitted.
8. The prosecution case consists of direct as well as circumstantial evidence.
9. During the trial Kali Devi (P. W. 4) and Kunta Devi (P. W. 8), daughters of the appellant, who were the alleged eye-witnesses, did not support the prosecution. On the other hand, they supported the defence version of the deceased getting a fit and falling headlong into a bucket and dying. They were duly crossexaminer by the prosecution and confronted with their statements made to the police during the investigation. However, they stuck to their stand of the deceased dying by an accident.
10-11. Mr. Manohar Lal Sharma learned Counsel for the appellant, is justified in contending that there are no eye-witnesses to the crime. He also criticised the trial court in having taken into consideration the statements made by the hostile witnesses under Section 16.1 of the Criminal Procedure Code as substantive evidence.
12. It is beyond the pale of controversy that statements made by witnesses under Section 161 of the Criminal Procedure Code during the investigation of a case are not substantive evidence. The prosecution witnesses can be contradicted with these statements either by the accused or with the permission of the court, by the prosecution when they resile from the truth. During this process it is necessary for the prosecution to prove that the statements were in fact made by the witnesses to the Investigating Officer. The method adopted is simple. The moment a prosecution witness resiles from the statement already made by him to the Investigating Officer, the prosecutor asks for the permission of the court to cross-examine the witness under Section 145 of the Indian Evidence Act. In order to convince the court that the witness is suppressing the truth, his statement recorded by the police is shown to the court. After the permission is 'granted, the prosecutor cross-examines the witness and confronts him with the statement already recorded by the Investigating Officer. This statement is immediately exhibited and the portions confronted are marked. Though the statement is exhibited, it is understood that it will be got formally proved when the Investigating Officer comes in the witness box. This in fact is done in the trial. So the statement is proved to have been correctly recorded. However, the proof of the statement having been correctly recorded. does not make the statement substantive evidence. Section 162 prohibits the use of the police statement for any purpose except for contradicting the prosecution witnesses (Sat Paul v. Delhi Administration : 1976CriLJ295 . The substantive evidence is the statement made by a witness on oath in the court in the presence of the accused. The purpose of contradiction is to show that the statement made on oath, which is contrary to the earlier police statement, is false. The statement recorded under Section 161 of the Criminal Procedure Code, therefore, is used only to assail credit of the witness and nothing else. Of course, the statement of the so-called hostile witness has to be scrutinised by the court and cannot be rejected straightway since the statement remains evidence.
13. We are constrained to record that this elementary principle of law was not followed by the trial court. The trial Judge accepted the statements recorded under Section 161 of the Criminal Procedure Code as substantive evidence and proceeded to put questions under Section 313 of the Code to the accused on the basis of these statements. This could not have been done. We may at this stage point out that another alarming feature in this case is that the statements made by the witnesses to the Investigating Officer when he arrived at the scene of occurrence had also been allowed to go on record. These consist of the statements made by the two daughters of the appellant. Again this could not be done. The learned Judge should have realised that all the statements made by witnesses or the accused to the Investigating Officer during the investigation of a case cannot be brought on record in view of the bar of Section 162 of the Code of Criminal Procedure.
14. The circumstantial evidence against the appellant consists of the following facts:
(1) The appellant has given a false version of the cause of death by saying that Kalawati had died because of snake bite,
(2) The relations of the deceased were not informed immediately during the night of occurrence. Indeed no message was sent to them.
(3) The dead body was kept ready for cremation.
15. Mr. Sharma has vehemently contended that the appellant did not put forward the excuse of snake bite as a cause of death of the deceased. We do-not find any force in this submission. We find that Chand (P. W. 2), Shrimati Mahan too (P. W. 3), and Puran (P. W. 7) had categorically deposed that when they questioned the appellant about the cause of death of the deceased, she stated that Kalawati died because of snake bite. It is true that other persons present near the dead body said the same thing. But then apparently once the snake bite theory was floated by the appellant as the cause of death of the deceased, the neighbours and other village folk accepted the same as true. In fact' others had no reason to suspect the same. We are not impressed with the contention that the other prosecution witnesses as well as some defence witnesses had categorically stated that the appellant did not make any such statement. It is only those prosecution witnesses who had resiled from their earlier statements made to the police and supported the appellant. We have carefully scrutinised the statements of all the prosecution witnesses. We find that no worthwhile cross-examination: of Chand, Mahantoo and Puran P. Ws. was conducted on this aspect. It was. therefore, too late in the day to produce defence witnesses to show that. the appellant never talked about snake bite to the relations of the deceased or get the same fact from other hostile witnesses who were the neighbours and co-villagers of the appellant.
16. We are also not impressed by the defence version that Kalawati was suffering from epilepsy and used to set fits. No such suggestion was made to the mother and the maternal uncle of the deceased. Mother of the deceased was the best person to say whether her daughter used to suffer from epilepsy or fits of any kind. There is not a whisper of such a suggestion. It, therefore, does net lie in the meuth of hostile witnesses to say that the deceased was suffering from any such disease. We may at this stage record that Bahadur Singh (D. W. 6). husband of the deceased, did depose that he had got Kalawati treated for fits. But there is nothing to support his bald statement. No medical evidence at all has been produced to show if the deceased was ever treated for any such disease. We, therefore, have no hesitation in holding that Kalawati neither died because of any snake bite nor because of having suffered any fit and having fallen headlong into any bucket.
17. As regards the question of informing the relations of the deceased about her death, the only evidence on record is that Daya Ram (P. W. 9) had informed Puran (P. W. 7) about the death of the deceased. This was done on the following day. Now the house of Puran (P. W. 7), we are told, is about 3 kilometres away from the house of the appellant. The information, therefore, could have been sent to him very quickly. It would not have taken an hour or so for a person to walk to the village,of Puran to give the information Puran tells us that he sent the message through his wife to his sister Srimati Mahantoo, mother of the deceased, who was living in a village about one kilometre away from his house. But the Question is whether Daya Ram (P. W. 9) was sent as a messenger? There is nothing on the record to show it. After all it is very common that a sudden death will come to be known to ail the villagers and any villagers going to a nearby village and meeting the relations of the deceased would inform them about the death. It is true that Lachhman (D. W. 2) does say that he had gone to Shrimati Mahantoo. But then Shrimati Mahantoo has not even suggested that she came to know about the death of the deceased from Lachhman. It is, therefore, apparent that information regarding Kalawati's death was not given to Shrimati Mahantoo and Puran soon after the death of Kalawati, This is in striking contrast to the fact that a special messenger Kali Dass (D. W. 8) was sent by the appellant to her son Bahadur Singh and her husband Hari Ram who were working at Mandi. They had quickly come back to the village.
18. Mr. Sharma has given the reasons ;of not sending the message to the mother and maternal uncle of the deceased. It is that the appellant expected other members of the family to inform the relations of the, deceased. This can hardly be any explanation or a reason. If the appellant could ensure quick information to her husband and son at Mandi, which is said to be about four kilometres away, there was no reason for not simultaneously conveying the message to the relations of the deceased. This was more so because the death was sudden. Not informing the relations of the deceased quickly does adversely reflect on the innocence of the appellant,
19. The third circumstance also stands proved. By the time Shrimati Mahantoo and Puran reached the house of the appellant, the dead body had been given the ritual bath and was ready to be taken to the cremation ground. This is apparent from the fact that the dead body had no clothes on and was covered with a Chaddar. Moreover, the hair had been combed afresh. This fact is not only supported by the statement of Shrimati Mahantoo. who was not at all cross-examined on this aspect; but also from the statement of the Investigating Officer who had held the inquest.
20. But the Question which now arises is whether these three facts are sufficient to complete the chain of circumstances to show the guilt of the appellant without any reasonable doubt It must be remembered that at the time when Kalawati was done to death, there were persons other than the appellant in the house. They were Kali Devi and Kunta Devi, the two daughters of the appellant. Kali Devi, who has appeared as P. W. 4, is aged 22 years and is a married woman. Kunta Devi is aged about 21 years and she is also married. Thakur Singh, son of the appellant, was also in the house. Can we reasonably say that it was the appellant and the appellant only who had committed the murder of the deceased Can we rule out the probability of a mother floating the snake bite theory, refusing to inform immediately the relations of the deceased and quickly preparing the dead body for cremation, in order to shield her daughters or her son
21. The Supreme Court in Eradu v. State of Hyderabad : 1956CriLJ559 , observed that it is a fundamental principle of criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that it was the accused and the accused only who was the perpetrator of the offence and such evidence should be incompatible with the innocence of the accused.
22. Again in Khashaba Maruti v. State of Maharashtra : 1SCR266 , the Supreme Court laid down the following guide line (at p. 1612 of Cri LJ):
In order to base the conviction of an accused on circumstantial evidence the court must be certain that the circumstantial evidence is of such a character as is consistent only with the guilt of the accused. If, however, the circumstantial evidence admits of any other rational explanation, in such an event an element of doubt would creep in and the accused must necessarily have the benefit thereof. The circumstances relied upon should be of a conclusive character and should exclude every hypothesis other than that of the guilt of the accused. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The circumstances must show that within all reasonable probability the impugned act must have been done by the accused. If two inferences are possible from the circumstantial evidence, one pointing to the guilt of the accused, and the other also plausible. that the commission of the crime was the act of someone else, the circumstantial evidence would not warrant the conviction of the accused.
23. These observations were reiterated in Pohalya Motya v. State of Maharashtra : 1979CriLJ1310 in the following terms (at p. 1311 of Cri LJ):
Briefly, the principles are that each circumstance relied upon by the prosecution must be established by cogent, succinct and reliable evidence; that the circumstance relied upon must be such as cannot be explained on any hypothesis except the guilt of the accused. In other words, the circumstances must be of an incriminating character. All the proved circumstances must provide a complete chain no link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence.
24. It is contended by Mr. ,Sharma that there is no evidence on record to show that the appellant was present in the house at the time the crime was committed. There is force in this contention. No prosecution witness has come forward to depose that she was present in the house at the time of incident. All the witnesses of the prosecution who could possibly depose about her presence have unequivocally stated that she was not present in the house and reached the scene of crime after the appellant's daughters Kali Devi and Kunta Devi P. Ws. shouted for her. It is true that all these witnesses had refused to support the prosecution and they were allowed to be cross-examined by the Public Prosecutor. But then the fact remains that there is no evidence on record to show her presence at the time of the incident. The appellant has taken the defence that she was in the cow shed which is away from the house and where she had gone to milk the cattle. There is nothing on record to discredit her statement.
25. Assuming the presence of the appellant in the house. the only circumstances proved by the prosecution, to recapitulate, are: (1) false explanation of death due to snake bite, (2) relations of the deceased not informed during the night, (3) preparing the dead body for cremation, and (4) deceased being ill-treated by the in-laws. These circumstances are not such that they point out to the guilt of the appellant and the appellant only. We cannot forget that circumstances Nos. 2, 3 and 4 would be common to Kali Devi and Kunta Devi P. Ws. as well as Thakur Singh P. W. who were present in the house at the time of the incident. Kali Devi and Kunta Devi have given false explanation of the death of the deceased. Whereas they have stated about the deceased getting a fit and falling headlong in a bucket and dying, the appellant put forward the snake bite theory. The opportunity for each one of them to commit murder individually was there. They could have committed the murder jointly in furtherance of their common intention. Thakur Singh also had the opportunity of committing the murder. It may be remembered that the prosecution had put forward the maltreatment of. the deceased by her in-laws as a motive. This motive was common to all the members of the house who were at that time present in the house.
26. We may repeat that we are satisfied that the deceased was murdered in the house and there is a grave suspicion that the members of the household individually or collectively are responsible for this dastardly act. But suspicion, howsoever grave, cannot take the place of proof.
27. The circumstances discussed above do not complete the chain of circumstances. We cannot say without reasonable doubt that the murderer is. the appellant and the appellant alone.
28. As regards the acquittal appeal filed against Thakur Singh, there is no evidence at all which would suggest that he did anything in order to do away with the evidence of murder. He was rightly acquitted by the trial court.
29. The result is that Criminal Appeal No. 23 of 1980 of Sewaki is allowed. Her conviction and the sentences awarded to her are hereby set aside and she is acquitted. She is directed to be released forthwith unless she is detained under any other law.
30. Criminal Appeal No. 45 of 1980 challenging the acquittal of Thakur Singh is hereby dismissed.