JUDGMENT
S.K. Phaujdar, J.
1. The three appellants were found guilty of offence under Section 302/34, IPC in Sessions Trials No. 120 of 1977 and 337 of 1977 by the IVth Additional Sessions Judge. Aligarh and each was sentenced to imprisonment for life under Sections 302/34, IPC. There was another co-accused, Raja Ram, who had faced a separate trial subsequently for the same charge and was also convicted to sentence equally. This Raja Ram has moved a separate appeal before this Court and the said appeal stood abated on the death of Raja Ram, after filing of the appeal.
2. According to the prosecution story, these three present appellants and Raja Ram had committed murder of one Onkari, who was husband of appellant Vimla, on the night between 15th and 16th December, 1976. The death, according to medical evidence, was caused by asphyxia due to strangulation. The appellants denied the allegations and alleged false implication against them. In the appeal all the three appellants are reported to be on bail.
3. Admittedly, the case is one based on circumstantial evidence alone. The first Information report by the village Chowkidar at the Police Station simply narrated that Onkari was found dead in the night and the reason for death was not known “(Na Jaane Kaise Apne Ghar Mein Raat Ko Mar Gaya Hai)”. Upon this report, a Police Officer came to the village and recorded statements of witnesses. Only during such examinations it was revealed that on the fateful night one Than Singh, uncle of the deceased, heard groanings of the deceased Onkari from his house. Onkari had been living with his wife Vimla whom he had brought on “payment of price”. On hearing the groaning sound Than Singh called Onkari aloud, as to what had happened. On hearing this call of Than Singh some other villagers also assembled near the house of Onkari. They found the present two appellants, Virma and Babu, and the deceased accused Raja Ram coming out of the house of Onkari. They also saw Vimla coming up to the door. On asking Vimla replied that Onkari was ill and had vomited. These villagers entered the room, did not see any sign of vomitting nor any sign of cleaning the same. They also saw Onkari dead. There were marks of scratches on his body. His set of false teeth was found lying nearby. Vimla did not say anything as to how Onkari had died and as to who had killed him. The police seized a lathi and a piece of rope from the room. The dead body was sent for post mortem examination and two women accused Virma and Vimla were arrested. It is stated that Babu and Raja Ram had absconded. They were apprehended subsequently.
4. At the appeal, the appellants attacked the prosecution story as absurd and incredible. It was further contended that the mere presence of the accused persons was the only circumstance touching them in his case and it was not at all sufficient to base conviction on that circumstance alone. The learned AGA supported the orders of conviction and sentence and has stated that the circumstances were sufficient to bring home the charge against the appellants.
5. The FIR, as already stated, was lodged on the next date i.e. 16-12-1976 at about 8-15 a.m. The maker of the FIR was the village Chowkidar, who was examined as PW 1. His evidence disclosed that there was a big difference in age between Onkari and his wife Vimla. It was further stated that the appellant, Virma, had some illicit connection with Babu, and finally she settled with the younger brother of her husband although the husband was alive. Virma introduced Babu to Vimla and Onkari did not like that Babu should visit his house. This witness stated that he and others had heard the call of Than Singh and had gone to the house of Onkari and saw these appellants coming out. His cross-examination indicates that when they tried to enter the house, Vimla did not stop them. He also said that Vimla was weeping. His cross-examination indicates that in the night itself he and other witnesses were convinced that Onkari was done to death. He gives no explanation as to why, after this conviction in their mind this Chowkidar did not report about the murder in his First Information Report. He simply stated that he did not think it proper to make that report. Had the report proceeded from a lay man, one could have some explanation for this non-disclosure, but when the informant was a village Chowkidar and he had full knowledge that some human hand was behind the death of Onkari, the absence of such statement in the First Report speaks a lot against the prosecution story made out at subsequent stage.
6. P.W. 2, Than Singh, is an uncle of the deeased. He also gives a similar statement as that of P.W. 1 touching Vimla, Virma and Babu relating to their illicit connection and Onkari’s grudge against any intimacy between Babu and Vimla. On the occurrence, he spoke that he heard the groans of Onkari and made a sound for help. Certain other villagers also assembled there and they all went to the house of Onkari to see, these appellants coming out and to find Onkari killed. He makes a clear admission that on looking to the dead body, he could understand that Onkari was killed. He was also of the view that it were the appellants, who had killed Onkari. The village Pradhan and others had assembled in the village after the incident but this witness did not speak to them anything, not even the fact that he saw three or four persons coming out from the house of Onkari. It is he at whose instance the Chowkidar had gone to the Police Station. He explains that because Vimla was not giving out the name of the assailants, he did not ask the Chowkidar to report about the murder. This explanation does not appeal to reasons. Moreover, there is no explanation as to why the matter was not reported to village Pradhan and others.
7. PW3, Tej Pal, is another witness giving a same version. After seeing Onkari dead and Vimla weeping he left the place. He makes a statement that he was not examined by the Police Officer making investigation in the case. He too was convinced on looking to the dead body that somebody killed Onkari. He did not ask Babu and Virma nor he did call them for interrogation even though he suspected them.
8. PW4, Champa, was declared hostile. Her attention to her statement to police was drawn wherein she allegedly had stated that she over-heard Vimla and Virma talking about “treatment” to be given to Onkari. This statement before police cannot be read as evidence and the evidence of PW4 is a nullity so far as this case is concerned.
9. PW5, is another villager, Fateh, whose evidence is also on the same lines as that of PWs 1, 2 and 3. According to him, none had asked Vimla anything. This appears a bit strange that none of the villagers would say anything to Vimla when she should have been the best person to explain the death of Onkari. They did not stop Babu and Raja Ram or Virma from going away nor did these persons stop them from entering the room of Onkari. This evidence discloses that Onkari’s brother, Todi, lived in a neighboring village and he had come on information of death of Onkari. This witness had stated nothing to the brother of the deceased. This brother was not late to arrive as he had accompanied the deady body to Aligarh.
10. The other witnesses were the doctor who held post mortem examination on the dead body and two police officers. One police officer had also proved an earlier report by Onkari against Babu. This report marked as Ct. Exhibit -1 is said to be a report of Onkari written by Shri Haris Chandra Gupta. But this scribe was not examined and one police officer has simply proved the hand-writing of the scribe. We do not think that in this manner a former statement of a person could be brought on record.
The learned Counsel for the appellants, as already stated, submitted that it was a winter midnight and it was unusual that four persons would assemble at that unearthly hour on hearing some groaning sound or on a call of one person. Thereupon it was contended that all the witnesses were not the natural neighbours, barring Than Singh, and these witnesses were either coming from the mela or watering the sugar-cane fields or was busy in crushing sugar-cane to get the juice. The defence described all these witnesses as chance witnesses. We may look to the situation again. It was a winter night and it is expected that everybody would be within the doors at mid-night. It is very strange that Than Singh would hear the groans of Onkari from another house, however near it may be. It is also not easy to accept that three persons engaged in three different works would assemble at that hour to probe into the source of the sound. The conduct of the witnesses in not questioning the appellants at the spot and not informing about the incident to the Pradhan on the next day and, crowning all, non-mention of the fact of murder in the First Information Report lodged by no other person than the village Chowkidar cast a grave doubt on the prosecution story itself. It is difficult to believe that such an occurrence would take place “and these persons would take it so lightly.
11. Even if the prosecution story to the extent as depicted in evidence be believed, we reach only to the following facts:
(i) Onkari was strangulated to death.
(ii) He was living with his wife Vimla.
(iii) Virma, Babu and Raja Ram were seen coming out of the house and Babu was not found in the Village on the next day.
12. Even on these proven facts, it may not be logically concluded that these persons, singly or conjointly, were liable for the murder. If we believe that on the groaning sound of Onkari, Than Singh had called him out loudly which attracted other villagers, it can well go to the rescue of the accused persons who are also neighbours in the same village. It is possible that they had also assembled on hearing the call of Than Singh. When the case is based on circum-stances alone, the circumstances should be such as may point to the guilt of the accused and as may be incompatible with the theory of the innocence of the accused. Evidence is there to show that these persons were asked nothing by the assembled villagers. They had simply walked away. They did not run away. They did not offer any resistence to the villagers to enter the house. These persons Babu, Virma and Raja Ram could also be innocent villagers and their presence on the spot immediately after the murder is not incompatible with the theory of their innocence as they could well be inquisitive villagers like others. The theory of absconding is certainly a circumstance, but this was on the next day when police had come and there could hardly be a villager who knowing that he has been named by some to the police, would dare to face the consequence.
13. So far as the appellant Smt. Virma is concerned, the prosecution story itself says that initially Smt. Virma had illicit relationship with Babu but later on she settled with the younger brother of her husband although her husband was alive. Smt. Virma introduced Babu Lai to Smt. Vimla and Onkari (deceased) did not like that Babu Lal should visit his house. This story of the prosecution is not in consonance with human conduct as a woman normally does not entertain the idea that a person with whom she had illicit relations should have contacts with another woman. Moreover, assuming the prosecution story to be correct, Smt. Virma having severed her connections with Babu Lal and having settled with the younger brother of her husband, as alleged, it is further wholly improbable that Smt. Virma will involve herself with the conspiracy of killing Onkari so that Babu Lal may continue to have illicit relations with Smt. Vimla. This conduct is also against human behaviour and a normal conduct of a woman. Besides that there is no evidence worth the name on the basis of which it could be established that Smt. Virma was in any way interested in the murder of Onkari. Merely on the basis that she was present outside the house of Smt. Vimla at mid night when Onkari had already died cannot lead to only conclusion that Smt. Virma was involved in the conspiracy of murdering Onkari. These circumstances lead to only inference that the prosecution has made out a false story for implicating the present appellants as once a murder is committed in the area of a police station, police officers cannot tolerate that they should be blamed for their incompetence to find out the culprits of a murder and for this reason, they have to blame somebody or the other and merely on this basis, the present accused have been implicated.
14. For Vimla, the circumstances are certainly grave. She was the person, who was always with the deceased, and should have known how the death came to the deceased, her husband. She does not open her mouth. From that alone it cannot be stated that she was the murderer. The murderer could have been a man for whom she had some soft corner and there may be many reasons for her not to disclose the name of the murderer. Concealing the name of the murderer is one thing and to participate in the murder is another. The suspicion is strong against Vimla no doubt but in a criminal trial, suspicion however strong may not take the place of proof and, be it a case of direct evidence or a case of circumstantial evidence, it is for the prosecution to establish the case beyond reasonable doubt. In our view, the prosecution could not make out a chain of circum Stances that would lead to the only conclusion of guilt of the present appellants.
15. In the result, the appeal stands allowed,-! The appellants Virma, Vimla and Babu are given! the benefit of doubt and are found not guilty thereupon. They are acquitted. The order of conviction and sentence of the trial court passed against the appellants is set aside. The accused; persons are reported to be on bail. They are discharged from their bail bonds.