1. This is an appeal against an order of the Sessions judge, Kashmir, by which the appellant, Mst. Arandatti, has been convicted Under Sections 302 and 201, IPC for respectively having caused along with her paramour, Mohd. Bhat approver, the death of THEer husband, Sri Kanth, Patwari, and disappearance of the evidence of this offence and sentenced to life imprisonment and to four years' rigorous imprisonment. The case is also before us for confirmation of the sentence of life imprisonment on a reference by the Sessions Judge, Kashmir, Under Section 374, Criminal P. C.
2. The prosecution story, as mainly disclosed by Mohd. Bhat approver in his deposition before the committing Magistrate from which he resiled in the Sessions Court and which has been transferred to the Sessions file by the trial Judge Under Section 288, Criminal P. C, is briefly as follows:
Mst. Arandatti, 24 years old, had been the wife of Pt. Sri Kanth Patwari, deceased, who was aged 55 for the last 15 years or so. She was now fully grown up and young, while her husband was old, ugly and one eyed. For sometime Sri Kanth, deceased attached her brother Prem Nath, P.W. 3, to himself for helping him in his patwar work. Towards the end of 2008 Sri Kanth became dissatisfied with Prem Nath. He thought he was pilferring things from his house and then Mohd. Bhat approver, P.W. 1, who was literate and had read upto the middle standard appeared on the scene. Sri Kanth took him as a substitute for Prem Nath and made him assist him in his work. Mohd. Bhat came to Sri Kanth's house frequently and he did it even while the Patwari was absent from his house. Mohd. Bhat was only 23 and the two young people, Mst. Arandatti and he, soon grew fond of each other and it is alleged that an illicit intimacy developed between them.
This led them to devise plots for the removal of obstruction to their guilty love. Different schemes for doing away with the Patwari entered their minds.s At first it was thought that the Patwari should bo killed while he would be out on tour in his Circle. This,' however, could not mature. Mohd. Bhat then suggested to Arandatti to poison her husband. She would not accept this suggestion, because she felt that in these circumstances slie would have to face the music all alone. Eventually it was decided to kill him in his house at Kulgam and then to bury his corpse in the ground floor. With a view to carry out this nefarious design, according to the approver, it was decided that he should live in the house concealed from all, a long time before the actual execution of the plot and so, as he puts it, he remained there concealed for 26 or 27 days and dur- ing this time he dug a pit in the Vatu (a small entrance chamber of the house in the first storey) on the right side of the door.
This pit was prepared about 10 or 15 days before the murder. It was then covered with small planks and earth. The approver says that he did not go out from this house during these days even to answer the call of nature and Arandatti did the scavenging for him. A few days before the occurrence the approver placed the knife which he had brought from Punjab for the commission of this offence with Arandatti and she kept it safe in a box. On 26th Phagan 2010 Sri Kanth went to the house of his wife's step-father, Deva Ram, at Mangalpora to condole with him on his father's death. Arandatti could not go because she vvas pregnant. On 27th Phagan 2010 in the afternoon Sri Kanth deceased returned to his house at Kulgam. He purchased some meat and other provisions from the Bazar and told his wife to prepare food for Badri Nath Patwari, P.W. 12 and Kashi Nath Girdawar, P.W. 13, whom he had asked for midday meal on the next day.
Then he visited the temple in the evening. At that time Arandatti told the approver to conceal himself under a cot in their bed room on the second storey. He did as he was told and the appellant covered the cot with a 'duree' and gave the knife and a torch to Mohd. Bhat Sri Kanth deceased returned from the temple and after taking their meals the couple repaired to the bed room and went to sleep together in a bed spread on the floor. After about two hours, when both Sri Kanth and Arandatti were fast asleep, Mohd. Bhat approver came out of his hiding place and dealt a knife blow to the deceased in all probability on his fore-head. He was lying in his bed with face upwards. The deceased was awakened and he snatched the knife from the hands of his assailant who was sitting on his chest at that time. Mohd. Bhat then gagged the mouth of the deceased with his one hand and with the other pressed his throat.
It was at that time that the appellant was awakened and the approver told her to take out the torch from his pocket and light it. She did it and they saw that the deceased was still holding the knife in his hand. The appellant wrested it from him and gave it to the approver. The appellant then gagged the mouth of the deceased, while the approver cut his throat. According to the approver, half of the throat of the deceased was cut, his blood flowed freely and the deceased breathed his last. The deceased was then put in the bed sheet. The appellant lighted a lantern and then both of them carried the body of the deceased to the entrance chamber in the ground floor. There they lowered the body in the pit which had already been prepared and then covered it with earth till it was made level with the floor. Then the approver dug another pit parallel to the first pit on the left side of the door and in that clothes of the deceased which were blood stained were concealed.
Then this pit was also filled up likewise. The lower part of the walls of the upper room and its floor were covered with blood stains when blood rushed out of the throat of the deceased. According to the approver these stains were removed by them by scratching the walls and the floor and this earth was also deposited with the clothes in the second pit. All this was accomplished till three in the night. The approver then left the house with a Chadar of the deceased Patwari given to him by the appellant as it was cold. The approver then went to Srinagar via Anantnag and as he had little money with him he sold the Chadar for Rs. 32/- to one Rasool Dar Dalai, P.W. 4, in Zaina Kadal. After going to different places in the valley he left for Amritsar on or about the 1st of Baisakh 2011.
3. Next morning on 28th Phagan 2010 Badri Nath Patwari, P.W. 12 and Kashi Nath Girdawar, P.W. 13, came to the house of Sri Kanth and had their meals there in the same room in which the murder had taken place during the night. The meal was served by the appellant. They asked her where the deceased vyas and she replied that he had left for work in his patwar circle. According to these two witnesses, the deceased was not seen after that date. They left the house after taking their meals. On the 2nd of diet 2010 the appellant locked the upper room and the entrance chamber and then accompanied by her brother, Prem Nath, P.W. 2, she went to Mangalpora to live with her parents. On 15th Chet 2010 Prem Nath, P.W. 2, sent two written reports Ex. P. H and Ex. P. J. to the Tahsil-dar and Sub-Inspector, Kulgam respectively. In these it was stated that Sri Kanth Patwari had gone from Kulgam to his Circle on 27th Phagan 2010 and had not since returned.
A search had been made for him, but he could not be found. It was then added that from the enquiries made it had appeared that the deceased had been given a very harsh beating by Gani Dar, Lumbardar, Redwani, who was inimically disposed towards him and that it was suspected that the deceased had been done to death by Gani Dar. The Ex. P. J, was received in the Kulgam Police Station on 15th Chet 2010 and thereupon Mohd. Syed Investigating Constable P.W. 24, as directed by S.H.O. went to Redwani to make enquiries about Sri Kanth. On 17th Chet the Superintendent of Police reached the spot and under his orders a ca<-e Under Section 302, IPC was registered vide Ex. P. A/12. On 20th Chet 2010 the police raided the house of the Patwari in order to get the deceased Palwari's official papers therefrom, Mohd, Syed, Head Con-.stable, P.W. 24, went to the house in the evening .accompanied by Prem Nath, P.W. 2 and the Lumberdar, after having made aimless enquiries at Redwani mostly from the people who knew nothing of the occurrence.
Prem Nath had brought the key from his sister with which the Patwari's bed room on the 2nd -storey was opened and the official papers of the Patwari were taken from there. It is strange that, though the house was raided, it was not carefully searched 'by the Police, not even the bed room in which the papers were found. The explanation is that Prem Nath had not brought all the keys with himself. Nothing further of note happened except that the police went on making fruitless enquiries 'till the 30th of Chet 2010 when an inland air letter, Ex. P. K., purporting to have been written by one Shambhu Nath son of Ram Chand of Kulgam with a small chit in it, Ex. P. L. addressed to the Sub-< Inspector of Police, was received by the Naib Tehsildar, Kulgam. It was stated in this letter that Sri Kanth Patwari had been murdered at the instigation of Pt. Ram Chand Sodai and that his body was lying in a pit which had been dug in the ground floor.
Mohd. Syed, Head Constable, P.W. 24, who was pursuing his enquiries at Redwani received Ex. P. K. and Ex. P. L. at Redwani on the same day, i.e., 30th Chet 2010. He at once left for Kulgam and there accompanied by Gulam Nabi Lumbardar, P.W. 18, ;Gopi Nath petition writer, P.W. 16 and some others went to the house of Sri Kanth deceased. They found the Vatu, i.e., the entrance chamber of the house, or vestibule locked. Its key was still with the appellant at Mangalpora. The Head Constable removed the staple in which the lock had been fastened from the door and then a search for the pit was made and it did not take them long to discover it in a corner on which some grass and wood were lying. A foul stink was coming therefrom. Mohd. Syed, Naib Tehsildar Magistrate, was then sent for and in his presence the body of the deceased, covered in a sheet, was recovered from the pit (Vide Ex, P. Z.) The police then prepared the necessary documents, Ex. P. Q. (Fard Surat Hal) and Ex. P, A./14 (Injury statement).
It was stated in these documents that the throat of the deceased had been cut and the injury was about 6 inches in length. The dead body was ther sent to Anantnag for post mortem examination and Arandatti along with her father, Deva Ram, and her brother, Prem Nath, was sent for from Mangalpora and Gwash Lai, P.W. 7, the brother of the deceased5 whose house was adjacent to the house of the deceased and Jagar Nath, P.W. 15, the adopted son of Sri Kanth deceased, who lived with Sri Kanth upto 9th Magher 2010 were also summoned for the purpose of investigation. The post mortem was conducted by Dr. Samsarchand, Medical Officer, Anantnag, on 1st Baisakh.
The doctor found an incised wound running, ia the middle of the neck just above thyrod cartilage extending to either side about ten inches in length. The doctor was of the opinion that the death of the deceased was caused by cutting the throat in front involving all the vital structures of the neck including carotid arteries and jugular veins. There was no other external or internal injury on the body. The injury was caused by some sharp-edged weapon. When this witness appeared in Court he was not at all cross-examined.
4. The appellant remained with the police during the night intervening between 30th Chet 2010 and 1st Baisakh 2011. On 1st Baisakh 2011 she' took the police to the entrance chamber of the house and there pointed out a place and on its being dug up the following garments of the deceased which appeared to be blood stained were found lying there:
1. One long cloth Kurta,
2. One pillow case,
3. One Kashmiri topi,
4. One cotton muffler,
5. One woollen pull-over,
6. One woollen Pheran.
This recovery took place in the presence of Gwash Lai, P.W. 7, the brother of the deceased Gopi Nath, Petition Writer, P.W. 16, and Ghulam Nabi Lumbardar, P.W. 18. On the same day a 'liven (spade) which was lying in the house was presented by the appellant to the police and it is alleged that this spade was used in digging the two pits. The police then entered the bed room in which the occurrence was alleged to have taken place after getting its key from the appellant and on searching it one durree, one pillow, one pillow case and one quilt cover were seized by the police. These also appeared to have blood stains on them vide recovery list Ex. P. A./5. Apart from these two mats and one gunny bag were also seized by the police from this room and these also appeared to be blood stained. It is stated that these clothes were wet and great stink was coming from them.
Therefore these were not immediately packed and sealed for being sent to the Chemical Examiner but were spread out for being dried up. They were, however, later on sent to the Chemical Examiner and according to the Chemical Examiner's report on & large number of these articles blood stains were detected. On 3rd Baisakh 2011 the appellant was sent by the police to Qazi Mohd. Syed, Naib Tehsildar Magistrate Second Class, with an application stating that her statement Under Section 164, Criminal P. C. might be recorded by him as she was to be immediately sent to the maternity hospital, Anantnag as it was feared that delivery might take place at any time. The Naib Tehsildar Magistrate thereupon took down her statement in which she stated that when Mohd. Bhat approver replaced her brother, Prem Nath, as Patwari's assistant and he began to frequent the house, she fell in love with. him and then they began to devise schemes of doing away with the Patwari and after his removal of marrying each other.
She further stated that Mbhd. Bhat approver came to the house with Sri Kanth Patwari on the evening of 27th Phagan 2010. Late in the evening before going to bed her husband went to the stream and at that time the approver came up and asked ta tell her where he should conceal himself as he hadi brought the necessary wherewithal to kill her hus--bandT Thereupon she made him sleep under a cot. After about half an hour the deceased returned from the stream and the husband and the wife slept] together in the room. The lantern which was in the room was extinguished by the deceased and soon both of them were asleep. She further added that she was awakened by a cry 'if poison had been given it would have been better' and she saw the approver sitting on the chest of the deceased. By then in all probability he had dealt a blow to the deceased and he had gagged his mouth. The approver then asked her not to make a noise, light the lantern and help him.
The appellant, after dressing herself, lighted the lantern. Then she also plugged the mouth of the deceased with clothes and the approver cut the throat of the deceased. After the deceased expired the approver took up the spade from under a box and went down and asked her to stay there. After digging a pit down stairs the approver came up and then both of them took down the body of the deceased covered in a sheet and lowered it into the pit and then covered it with earth. Another pit was then dug and in that clothes of the deceased were deposited. Both of them then came up to the bed room, scratched its walls and floor and removed blood stains therefrom. After this work was done the approver said that it was rather cold and he wanted a Chadar from her. The appellant complied with his request, The appellant continues that the next morning she prepared meals in the Vatu in which two pits had been dug during the night and when Badri Nath and Kashi Nadi, P. Ws. 12 and 13, came next morning she served them meals in the room in which the murder had been committed.
On 2nd Chet 2010 she went with her brother Prem Nath to the house of her parents at Mangal-pora. This confession recorded by the Naib Tehsildar Magistrate was retracted by the appellant before the committing Magistrate and the Sessions Judge and in her depositions before them she has denied all the allegations contained therein. It may also be stated that Prem Nath, P.W. 2, the brother (of the appellant, was also produced by the police in the Court of Naib Tehsildar on 9th Baisakh and there his statement Under Section 164, Criminal P. C. was recorded wherein he stated that his sister had told him on 29th Phagan 2010 that she and the approver had killed the deceased and that his dead body was lying in the Dehliz i.e., the vestibule of the house.
5. Mohd. Bhat approver remained in the Valley for sometime going from one place to another and on or about 30th Chet 2010 he met his friend, Abdul Rehman, P.W. 3, whom during the course of conversation, as stated by him before the Committing Magistrate, he told that the deceased had been murdered by him and the appellant and his dead body was lying in the Vatu of the house of the deceased. The evidence of Abdul Rehman, P.W. 3, shows that it was he who had written the letter and the note, Ex. P. K. and Ex. P. L. to the Naib Tehsildar which purported to have been sent by Shambu Nath and, as already indicated, it was this letter which led to the recovery of the dead body and the articles referred to above. It may be stated that a statement of this witness Under Section 164, Cr.PC was got recorded by the police on 17th Baisakh 2011.
After meeting Abdul Rehman the approver went Jammu and after staying a night there left for Pathankot and then he proceeded to Amritsar. He-again returned to Kashmir and seeing that the police-investigation was proceeding and his relations suffered harassment from the police he surrendered himself to the police on 15th Baisakh 2011. On 17th-Baisakh 2011 the police produced him before the Additional District Magistrate, Anantnag and his-confession Under Section 164, Criminal P. C. was recorded. What is contained in this statement has-already appeared as prosecution story in para. 2. above. On 28th Baisakh 2011 the Police produced Mohd. Bhat before the District Magistrate with the request that he may be tendered pardon and made an approver. The District Magistrate forwarded the-application to the Additional District Magistrate for necessary action who did the needful and recorded the statement of the approver again.
The approver stuck to this statement made by him before the committing Magistrate but completely went back on it before the Sessions Judge. Before the learned Sessions Judge the approver stated that he had gone to the Punjab on 4th Magher and returned from there in Baisakh 2011 and during. all this time he was not in Kashmir. He has also stated that his statements before the Committing Magistrate and the Additional District Magistrate at Anantnag were under police pressure and he had simply repeated what the police had tutored him to-say. In this statement he has denied outright that he had anything to do with the appellant or that he-was concerned in the murder of the deceased. He has also denied that he sold Chadar to Rasul Dar or that it was recovered at his instance. He also denied that he spoke to Abdul Rehman, P.W. 3, that he and the appellant had committed the murder or that the dead body was lying in the Vatu.
6. The appellant has pleaded not guilty to both the charges. She has denied all the allegations made by the prosecution against her. She, however, admits that the deceased slept with her during the-night intervening between 27th and 28th Phagait 2010 and that the clothes recovered from the pit belonged to him. She, however, denies that she-pointed out the pit or the recovery of the clothe was made at her instance. She also denies any connection whatsoever with the approver and in> her statements both before the Committing Magistrate and the Sessions Tudge she has denied that she gave any Chadar to him on the night in question. On a specific question having been put to her by the Sessions Judge, she has also denied that the-Chadar, Ex. P. 2 belonged to her husband. She has not led any defence evidence.
7. Lengthy arguments were addressed to us by counsel for the parties and the case was heard by us twice. From the facts stated above it would appear that the material against the appellant consists of the following items:
(i) The statement of the approver before the Committing Magistrate from which he resiled before the Court of Session and the recovery of Chadar of the deceased from Samad Zaru, P.W. 8, alleged to have been sold by the approver to Rasul Dar, P.W. 4 and by Rasul Dar to Samad Zaru.
(ii) The retracted confession of the appellant.
(iii) The recovery of the dead body from the Vatu of the house on so the Chet and the recovery of clothes of the deceased from the pit in the vestibule and other articles from the bed room of the deceased and the spade presented to the police by the appellant on 1st Baisakh 2011.
(iv) Extra-judicial confession alleged to have been made by the appellant to her brother, Prem Nath, on 29th Phagan, 2010 and the statement of Abdul Rehman, author of Ex. P. K. and Ex. P. L.
8. (i) The approver's statement has been given in detail in paragraph 2 above. It is clear that it is not safe to act upon the approver's statement unless it is corroborated in material particulars and that the corroboration should consist of independent evidence. One piece of tainted evidence cannot corroborate another piece of such evidence. While it is true of ordinary accomplice evidence, greater scrutiny and greater corroboration is required in the case of an accomplice evidence which has been subsequently retracted. It is the evidence of a man who is not only immoral in so far as he is a participator in the crime and betrayer of his associate but vvno is also, according to his own showing a patent perjurer. After careful consideration of the case I feel that this corroboration is not forthcoming in this case so far as the identity of the appellant with the commission of the offence Under Section 302, R. P. G. is concerned.
There is another solid reason why this retracted statement of the approver cannot be placed at pan with the general type of accomplice evidence. In this case almost all the material by which the truth or falsity of the approver's statement could be tested had already been made available to the police. The dead body had been recovered, clothes and other articles from the house of the deceased had been recovered and the statements of die appellant and Prem Nath had already been recorded Under Section 164, Criminal P. C. This main test for scrutinizing the evidence of the approver in this case is therefore not forthcoming. It is true that the Chadar, Ex. P. 2 was recovered from Samad Zaru on 15th Bai-sakh 2011 and this Chadar has been identified by some witnesses as belonging to the deceased. But I very much doubt if the recovery of this Chadar, however important it may be, can corroborate the statement of the approver in a material particular so far as the commission of the offence of murder is concerned.
If the approver was so familiar in the house of the deceased as he is alleged to have been, it is not difficult to believe that he could get this Chadar from the house by means other than the one which has been imputed to him. Apart from it, a Chadar is a common place thing and its identity, however strong the evidence about it may be, cannot be regarded as free from the element of doubt. Besides what is stated in the retracted confession there is no evidence available on the record to show that the approver was seen in the house of the deceased on the fateful night or on a day or two preceding it. There is also no other evidence to show that he was on familiar terms with the appellant. Further, even the retracted confession of the appellant, tainted as it is, does not furnish material corroboration of the statement given by the approver. The two statements as these are given above, are materially discrepant.
The approver says that he remained concealed in the house for 26 or 27 days prior to the murder and it was during this period that all preparations for murder were made and the pit was dug. The woman says that as a matter of fact the approver came with the deceased from Mangalpora on the afternoon of 27th Phagan. Furthermore, while the approver says that when he dealt the first blow of the knife to the deceased he snatched the knife from the approver, the woman does not make any mention of it. Again, while the approver says that it was at his bidding that the appellant took out the torch from his pocket and on lighting it, it was found that the deceased was still holding the knife and then it was she who took the knife from the hand of the deceased and handed it over to the approver, lie appellant says that she simply lighted the lantern and after dressing herself put some clothes in the mouth of the deceased while the approver cut the throat of the deceased.
The appellant does not at all say that she lighted the torch or wrested the knife from the hand of the deceased. Similarly while the approver says that after the commission of the murder both he and the appellant went down to prepare the pit, the appellant says that she stayed there while the approver went down and dug the pit. Under these circumstances I am afraid the statement of the approver cannot be deemed to have been corroborated in so far as the commission of the offence of murder is ascribed to the appellant.
(ii) Retracted confessional statement of the appellant has been partly dealt with in the preceding paragraph, It also suffers from other patent defects. It is to be noted that the appellant was sent to the Magistrate direct from the police custody and after the statement she was again returned to the police custody as she was to be taken by the police to the maternity hospital for being delivered. She was then expecting child birth at any moment The Magistrate at the request of the Police did not consider it desirable to postpone recording her statement. There is ample authority for the view that a confessional statement recorded in such circumstances loses much of its value and cannot be| deemed to have been entirely free from police pressure.
In this case, however, there are other indications which show that the statement may not have been entirely voluntary. It is admitted by Qazi Mohd. Syed, Naib Tehsildar Magistrate who recorded the confession that the condition of the appellant at that time was precarious and that, as labour pains had started, she cried hoarse when spasm consequent upon these pains agonized her body and this spell of excruciating pain lasted all through while Tier statement was being recorded. In these circumstances I would not attach any significance to such portions of this statement as are not fully and materially corroborated by independent evidence,
(iii) Recovery of the dead body on 30th Chet, 2010 from the house of the deceased and the recovery of clothes etc. at the instance of the appellant are there. These afford sufficient corroboration of the statement contained in the confession of the appellant that she helped in the disposal of the dead body and the clothes which the deceased was wearing. There is no doubt that the deceased was murdered in the house and in all probability on the night intervening between the 27th and 28th of Phagan 2010. The disappearance of the appellant from the house of the deceased from 2nd Chet 2010 and the fact that she pointed out the place from where clothes of the deceased were recovered show that the appellant knew where the deceased and the clothes had been buried and that she at least committed an offence of causing disappearance of the evidence of murder.
I feel that so far as the offence Under Section 201, R. P. C. is concerned it is fully established against the appellant by that portion of the confessional statement in which she has stated how the dead body was disposed of, strongly as it is corroborated by the recovery of the body of the deceased from the vestibule and from the recovery of the clothes of the deceased. Though the appellant pleads not guilty to both the offences she has not denied that these clothes belonged to the deceased. She has not admitted before the Sessions Judge that she pointed out the place from where the clothes were recovered but there is no reason to disbelieve the evidence of Gopi Nath, petition writer, P.W. 16 and Ghulam Nabi Lumbardar, P.W. 18 in whose presence she took the police to Vatu and pointed out the spot on digging which these clothes were recovered.
I am, however, not prepared to attach much importance to certain blood-stained articles recover- ed.from the bed room in the upper storey and to the recovery of the 'liven' (spade). This room, as it has been observed, was opened by the police on 20th Chet 2010 when certain official papers of the deceased Patwari were recovered from it. I fail to see why proper search of the room was not then made and why bloodrstained articles, if they were there, were not detected then. It casts a great deal of reflection on the police in charge of the investigation. It has already been stated that the case had been registered on 17th Chet 2010 and the police had started investigation when this room was opened on 20th Chet. Nonetheless the recovery of the dead body and the clothes from the vestibule show that the appellant was guilty of helping in the removal of the dead body.
This is further supported by the incontestable fact: which has appeared in this case that the deceased passed what appears to be his last night with the appellant in his house on the night intervening be-. tween 27th and 28 th Phagan 2010 and he was not heard of after that. The fact that human blood was detected on some of the clothes of the deceased and other articles recovered from the house loses all its value for purposes of corroboration, as the police did not pack and seal these articles in the presence of the witnesses of the recovery but did so sometime afterwards when these witnesses were not present, The possibility, therefore, that human blood was placed on them later cannot be eliminated.
(iv) So far as the extra-judicial confession made by the appellant to her brother, Prem Nath, on 29th Phagan 2010 is concerned I cannot place any appreciable value on it. The confession is alleged to have been made on 29th Phagan but Prem Math did not open his mouth till he, his father and Arandatti were arrested by the Police. The dead body had already been recovered and it was only on 9th Baisakh 2011 when he was taken by the police to the Naib Tehsildar Magistrate where his statement Under Section 164, Criminal P. C. was recorded that the disclosure about this confession was made. As such the statement of Prem Nath is open to the criticism that it was made by a person who had been arrested by the police as a suspect for this murder and, therefore, he must have been subject to police pressure. It is clearly stated by him in his statement on 9th Baisakh 2011 that he, his father and his sister were arrested by the Police on 30th Chet 2010.
This extra-judicial confession would have been of great value if Prem Nath had gone himself to the Police, made a clean breast to them and the dead body had been recovered in consequence of this information. As it is, this statement cannot be considered as reliable. Further, as has been indicated in para, 3 above, Prem Nath is not a man on whose testimony implicit reliance can be placed. He did not hesitate to make a false report against Gani Dar, Lumbardar Redwani (Vide Ex. P. H. and Ex. P. J.) Abdul Rehman's (P.W. 3) statement that the approver had told him that he and the appellant had committed this murder, cannot be taken into consideration as it would be a simple hearsay so far as the appellant is concerned. Abdul Rehman is also the person who wrote Ex. P. K. and Ex. P. L. under the false name of Shambu Nath implicating therein Ram Chand Sodai falsely for this murder.
9. In the result after careful consideration of all the material specified above we come to the conclusion that the appellant is entitled to the benefit of doubt so far as the offence Under Section 302, R. P. C. is concerned. But the offence Under Section 201, R. P. C. is fully proved against her. We, therefore, set aside the conviction and the sentence passed upon the appellant Under Section 302, R. P. C. but maintain her conviction and sentence Under Section 201, R. P. C. The appeal is partly accepted.
10. Before concluding we would like to remark that we consider it extremely deplorable' that a brutal and heinous crime as has been committed in this case, should go unpunished. But we feel that the police concerned cannot escape responsibility in this matter. The way in which this case has been investigated shows utter lack of care and competence on the part of the police. It is incomprehensible that though the case was registered on 17th Chet and though from the very beginning some clue should have been available to the police by the sudden absence of the appellant from her house, they did not raid house and carefully search it at the earliest possible moment and the more so when we find that the scene of the occurrence was visited by the police on 20th Chet when Official papers of the Patwari were removed therefrom. ,
It is strange that they did not even detect that the lower portion of the wall and the floor of the room had been scratched and certain blood-stained articles were lying there. This reveals wanton and gross carelessness on the part of the police. Again if Badri Nath and Kashi Nath, P.W. 12 and P.W. 13, were truthful witnesses, the police should have give information of their visiting the bouse on 28th Phagan from their preliminary enquiries and should have examined these witnesses in the initial stages of the investigation. Furthermore, it is totally inexplicable why the police did not pack and seal the clothes recovered from the pit and the bed room on the day when these were recovered and in the presence of the witnesses before whom these were recovered. It was absolutely necessary for them to do so as otherwise the report of the Imperial Sero-logist in this connection becomes absolutely useless.
11. I agree.