JUDGMENT
Gopal Lal Gupta, J.
1. Appellant Udiya stands convicted by the learned Sessions Judge, Banswara vide his judgment dated 30-8-1979 under Section 302, IPC. He was sentenced to undergo imprisonment for life and pay a fine of Rs. 50/-, in default one month R.I.
2. The case of the prosecution is that the deceased Shambhu was wife of accused Udiya. Accused Udiya used to ill-treat his wife and it is on 24th of May, 1979 that he took away his wife from the house of her parents beating by lathies and thereafter next clay i.e. on 25th of May, 1979 Shambhu was found lying dead in his house. The F[R was lodged by Geba, P.W. 2 who is uncle of the deceased. On this report under Section 302, IPC was registered. The post-mortem examination was done by Dr. B. S. Rathore, P.W. 10 and he prepared Ex. P-8 stating therein that there was abrasion 5 cm x I cm lateral end of right clavicle and that there was dislocation of third cervical vertebra on both shoulder joints. The Doctor opined that Shambhu died of shock and asphyxia as a result of strangulation and other injuries inflicted on her body. The Police interrogated the witnesses and arrested the accused. Alter completion of usual investigation challan was submitted. Accused pleaded not guilty to the charge The prosecution examined P.W. 1 Jayram. P.W. 2 Geba, P.W. 3 Kanku, P.W. 4 Manila!, P.W. 5 Bhehra, P.W. 6 Devilal, P.W. 7 Kereng, P.W. 8 Shanker, P.W. 9 Ganesh Dan, and P.W. 10 Dr. B, S. Rathore. Accused in his statement under Section 313, Cr. P.C. stated that his wife is dead but the witnesses have given false statement against him. He led no evidence in defence. The learned Sessions Judge after hearing the arguments of the learned counsel for the parties held that the death of Shambhu was homicidal and that it was the accused who had caused the murder of Shambhu. The learned Sessions Judge been made by the accused but believed the statements of I he witnesses that she was beaten by the accused in the evening of 24th of May and also in the night intervening 24th and 25th of May, 1979.
3. We have heard arguments of Mr. Soni, learned counsel for the appellant and Mr. Bohra, learned Public Prosecutor appearing for the State-respondent and have gone through the record of the case.
4. Mr. Soni has contended that the trial Court has committed error in placing reliance on the statements of the four witnesses who are all inter-related. According to him there is a marked improvement in the version given in the FIR and in the statements given by the witnesses. He has further assailed the testimony of P.W. 7 Kereng and P.W. 8 Shanker on the ground that there are material contradictions in the statements and their conduct was far from natural.
5. On the other hand Mr. Bohra has tried to support the judgment of the trial Court. His main emphasis was that the accused who was husband of the deceased could only be the person who could have an opportunity to kill Shambhu in that night.
6. We have given the matter our thoughtful consideration. First, we shall scrutinise the statement of P.W. 7 Kereng and P.W. 8 Shanker who have deposed to have heard the cries of Shambhu in the night intervening 24th of May and 25th of May and to have gone in the house of the accused at that very moment.
7. P.W. 7 Kereng has deposed that Shanker who had come from Vanala was staying in his house in that night and at about 12 he heard the cries of Shambhu ^^vks ckbZ vks cki** and on this he and Shanker both went to the house of the accused where father of the accused met them in the ‘Dhaliya’. He has further staled that the room of the accused was closed and cries of Shambhu were coming from inside the room. He has also deposed that he has not seen Udiya there in the house. According to him father of the accused had told that he would settle the matter. The version of P.W. 8 Shanker on this part of the story is that while staying in the house of Kereng at about mid-night he got-up to pass urine when he heard cries of Shambhu and, therefore, he and Kereng went to the house of the accused where Nanda father of Udiya was found. According to him Nanda told that accused quarrelled at times and he would make him understand and it was better that they should not talk to the accused otherwise he would quarrel with them also. He has also deposed that cries of Shambhu were coming from closed room and on asking of Nanda to the accused as to why he was quarreling, accused replied from inside the room that now he would not quarrel as his work was over.
8. A close scrutiny of the statements of both the witnesses reveals that there are significant contradictions in the version given by the two witnesses. According to one witness from the room only the cries of Shambhu were coming and presence of the accused in the house could not he known while according to the other witness the accused had replied that he had already finished his job. According to one witness the father of the accused had enquired from the accused as to why he was quarrelling whereas other witness is silent on this point. These contradictions are not on minor points and cannot be lightly brushed aside. We will also comment on the testimony of these two witnesses while discussing the incident of previous evening hereinafter. In our considered opinion both these witnesses are not trustworthy.
9. As a matter of fact it is doubtful that Shanker had stayed in the house of Kereng in that night. According to Shanker he had gone to Kereng for buying grass from the persons from whom Kereng had purchased. It is not understood as to why Shanker who happened to be the brother-in-law of Jay Ram stayed at the house of Kereng and he did not go to his sister’s house. Then it has come in the statement of P. W. 8 Shanker that in the next morning i .e. on 25th of May at about 5 a.m. he had gone to his village and there Maniya told him that Shambhu has been murdered. It is rather surprising that Shanker witnessed I he incident in the night in which according to him even the accused had told that his work was finished he did not care to see Shambhu who was none-else than the daughter of his real sister. Can it be believed in the ordinary course of human conduct and experience that the real maternal uncle would ignore the incident of night and proceed to his village without informing about it to his sister and brother-in-law.
10. Apart from this both Kereng and Shanker who are related to Jay Ram did not care to go to report the matter during that very night to Jay Ram. According to them they had not only seen incident of beating in the evening but had also witnessed serious incident in that night yet they kept silent till morning. This conduct was far from natural.
11. It is also significant to point out that Shanker has admitted that when he came back to village Ghatala after knowing about the death of Shambhu police was there and the police had prepared Inquest Memo and Site Plan. As a matter of fact he was associated as Panch while preparing the Inquest Memo Ex. P/5. The witness has admitted that even at that time he had not disclosed this fact that he had seen some incident in the mid-night. All these circumstances clearly go to show that both the witnesses have given false statements regarding the incident which is said to have taken place in the mid-night. There is no other evidence on this point that the accused was seen or noticed by some persons beating Shambhu in his house. The immediate neighbour of the house of the accused was Devilal, P.W. 6. He has not deposed about the night incident. His house was situate only 15 steps away from the house of the accused. The house of Kereng is far away from the house of the accused. When Devilal has not deposed to have heard cries or seen anything in the house during that night it cannot be believed that these two witnesses could hear the cries and they had occasion to go to the house of accused and talk to his father and hear the cries of Shambhu or the reply of the accused from the room.
12. Now, we proceed to examine the evidence regarding the incident of beating said to have taken place on the previous evening.
13. On this fact, the prosecution has examined P.W. 1 Jay Ram, P.W. 3 Kanku who are parents of the deceased, P.W. 2 Geba her uncle and also the two witnesses P.W. 7 Kereng and P.W. 8 Shanker.
14. P.W. 1 Jay Ram has deposed that Shambhu came to his house at about 8 p.m. and at that lime the accused also came with a lathi and took Shambhu beating by lathies. To the same effect are the statements of P.W. 2 Geba and P.W. 3 Kanku. However. Jay Ram and Kanku had not staled this important fact in their police statement Ex. D/1 and D/2. They have admitted that in the police statement they had not deposed that the accused had given beating to Shambhu that evening. There is evident improvement in the prosecution story. It is pertinent to note that in the FIR Ex. P/l also it was not stated by P.W. 2 Geba that the accused had beaten by lathi to Shambhu. What was stated therein that the accused came to the house of Jay Ram having lathi with an intention to beat her and on this Shambhu ran away to her house. It is thus obvious that the witnesses have made significant improvement in their statements. On the basis of their statements it cannot be found that the Accused had given beating to Shambhu in the previous evening. Simply because the accused was having a lathi it cannot be presumed that lie had gone there to beat his wife particularly when it is not there in the statements of the witnesses that the accused had expressed such intention at the time when he went to the house of Jay Ram.
15. With regard to the beating said to have been given to Shambhu in that evening, the prosecution has also examined Kereng, P.W. 7 and Shanket. P.W. 8. Kereng has deposed that at about 9 p m. Shambhu was going towards her parents’ house and she was weeping at that time and the accused was beating her by a lathi. He has further stated that after some time accused went to his house and thereafter Shamhhu also went towards the house of the accused weeping and at that time Shambhu had told him that she was going to the house of the accused to fetch her daughter. On this point the statement of Shanker, P.W. 8 is that at about 8 p.m. when he was in the house of Kereng he had seen Shambhu going towards the house of her father and the accused was following her having a lathi in his hand. He has then deposed that he had seen the accused wielding lathi on Shambhu but Shambhu avoided the infliction by moving from the place. He has then deposed that after sometime it was noticed by him that Shambhu was going from her father’s house all alone and at that time Shambhu told him that she was going to fetch her child and Shambhu went away towards the house of the accused. A close scrutiny of the statement of both the witnesses clearly shows that they have belied themselves regarding this incident which is said to have taken place at about 8 or 9 p.m. The parents of the deceased and her uncle have not said about this incident that Shambhu had again gone to their house after she went along with the accused at about 8 p.m. and thereafter she again went all-alone to fetch her child. Then it has to be noticed that according to Kereng the accused had inflicted lathi blows to Shambhu at that time but Shanker is very emphatic when he says that no injury was caused to Shambhu at that time. Thus, there are apparent contradictions in the statements of Kereng and Shanker. It is rather surprising that Shanker had not chosen to stay with his sister Kanku and stayed with Kereng who was his distant relation through his sister. It is also relevant to state that according to Kereng, Shanker had reached his house at 10 p.m. in the night whereas the occurrence of beating is said to have taken place between 8 to 9 p.m. Thus, there could not be any occasion for Shanker to have witnessed that occurrence.
16. On a careful consideration of the entire evidence and material placed on record regarding the incident of the previous evening we are convinced that the witnesses have clearly belied themselves in this regard. Here it is also not irrelevant to point out that according to Dr. Rathore there was only one abrasion found on the person of the deceased besides throttling when the accused had caused number of injuries, according to the witnesses there ought to have been more than one injury on the person of Shambhu. Thus, the medical evidence also goes counter to the eye-witness account.
17. The prosecution had also relied on the extra-judicial confession of the accused which was said to have been made by him in the presence of Jay Ram. Geba and Shanker. This confession was said to have been made before Geba who lodged the first information report. However, this version was not there in the FIR. The Learned Sessions Judge has thus rightly disbelieved the evidence of extra judicial confession.
18. Now the only circumstance which remains in be considered is that the witnesses have deposed that the accused used to beat his wife. Accused and deceased were married some 10 years before the date of occurrence. They had even six years old child. There is no convincing evidence on record to believe that the accused was not satisfied with his wife and he, therefore, used to ill treat her. The witnesses who are parents and uncles have also not given concrete instances of the sufferings which the accused had given to his wife. There might be sometimes exchange of words between husband and wife and even beating might have taken place but on that basis it cannot be presumed that the accused could be the only person who could commit murder of Shambhu. It is trite principle of criminal law that the prosecution is required to establish the guilt of the accused beyond all reasonable doubts, which in our opinion the prosecution has not been able to do in this case.
19. Now the only circumstance which required consideration is that the accused being husband of the deceased was in the house where the murder had taken place, therefore, a presumption can be raised that the accused could be the only person who had an opportunity to kill his wife. It has come in evidence that in the night father of the accused Nanda was also there in the house. It has also come in the statement of Kanku who is said to be first person to go to the house of accused in the morning that the gates of both the sides of house were lying open. It has further come in evidence that the accused used to sleep outside his house in the ‘Dhaliya’ and even the immediate neighbour Devilal had seen Udiya sleeping outside his house in the morning of 25th. In these circumstances it is difficult to hold that the accused was the only person who had opportunity to commit the offence. At any rate the case is not free from doubt and the benefit of doubt goes to the accused and he is entitled to the acquittal.
20. For the reasons slated above, we allow the appeal and set aside the conviction and sentence and acquit the accused-appellant of the offence under Section 302, IPC. He is on bail, he shall not surrender to the bail bonds which stand cancelled. Fine if realised shall be refunded.