JUDGMENT
M.L. Visa, J.
1. Both the appellants have preferred this appeal against the judgment dated 19.3.1997 and order dated 27.3.1997 passed by 1st Additional Sessions Judge, Aurangabad in Sessions Trial No. 122 of 1992/161 of 1992 convicting and sentencing them to undergo imprisonment for life under Section 302 read with Section 34, Indian Penal Code and imprisonment for a period of seven years under Section 201, Indian Penal Code. Both the sentences have been order to run concurrently.
2. The case of prosecution, as disclosed by informant Maharaj Yadav (P.W. 5) in the First Information Report (Exhibit-1), in short, is that on 27.10.1991 at about 7 a.m. Ram Dhyan Kumar (P.W. 1), the material grandson of informant (P.W. 5) came to his house and informed him that on 26.10.1991 in the night at about 11 p.m. when he was sleeping with his mother Jageshwari Devi, his father appellant Ram Kesh Yadav, his uncle Jagdish Yadav, and his grandfather appellant Dwarika Yadav brought his mother in the courtyard of the house and after holding her legs and hands, press d her neck and killed her and half an hour thereafter, they took the dead-body of deceased towards Berhni where they cremated the dead-body at a burning Ghat. Informant (P.W. 5) further stated that his grandson Ram Dhyan Kumar (P.W. 1) had come alone to his house for giving informant about the occurrence.
3. On the basis of First Information Report (Exhibit-1) of informant Maharaj Yadav (P.W. 5), a case under Sections 302/201/34, Indian Penal Code was registered against both the appellants and co-accused Jagdish Yadav. After investigation, charge-sheet against both the appellants under Sections 302/201/34, Indian Penal Code was submitted keeping the investigation pending against Geeta Devi and Shanti Kumari, wife and daughter respectively of co-accusad Jagdish Yadav. After taking cognizace, the case was committed to the Court of Session where charges under Sections 302/34 and 201, Indian Penal Code were framed against both the appellants. The case of the appellants, as it appears from their examination under Section 313, Code of Criminal Procedure, is that at the time of occurrence, appellant Ram Kesh Yadav, husband of deceased was not in his house and he was in a house situate at a distance of about four hundred metres west from his house and when on information he came from there and was going to a doctor in his village and when he reached the house of doctor, he found his family members weeping and at that place his wife died and at that time, the wife and daughter of his brother were not in his house, who a forthright ago, had gone to Naihar of wife of his brother. The appellant Dwarika Yadav, in his examination under Section 313, Code of Criminal Procedure, has stated that deceased suffered from vomiting and diarrhoea and she became unconscious and was taken to doctor who advised to take the deceased somewhere else but because of poverty, deceased could not be taken to anywhere else and they have been falsely implicated in this case.
4. After trial, both the appellants were found guilty under Sections 302/34 and 201, Indian Penal Code and were convicted and sentenced as indicated above.
5. In order to prove its case, five witnesses have been examined on behalf of the prosecution. Ram Dhayan Kumar (P.W. 1) is the son of deceased as well as of appellant Ram Kesh yadav and is said to be an eye-witness to the occurrence. Nawal Kishore Mishra (P.W. 2) is a formal witness who was proved First Information Report (Exhibit-1). Maharaj Yadav (P.W. 5) is Nana (Maternal grandfather) of Ram Dhayan Kumar (P.W. 1) and father-in-law of appellant Ram Kesh Yadav, in whose house Ram Dhayan Kumar (P.W. 1) had gone after the occurrence and had informed him about the occurrence and hereafter he alongwith Jagdish Yadav (P.W. 3) went to Police Station where he lodged the First Information Report (Exhibit-1). Jagdish Yadav (P.W. 3) is a hearsay witness in whose house Ram Dhayan Kumar (P.W. 1) and Maharaj Yadav (P.W. 5) had gone and had informed him about the occurrence and he had accompanied the informant (P.W. 5) and Ram Dhayan Kumar (P.W. 1) to Police Station where informant (P.W. 5) lodged the First Information Report (Exhibit-1). Dr. Md. Taiyya Ansari (P.W. 4) is a hostile witness. Ram Dhayan Kumar (P.W. 1), the son of deceased and appellant Ram Kesh Yadav, is a child witness because on 10.2.1993, when he was examined as witness by Court, his age was estimated as eleven years and he himself gave his age as eleven or twelve years. He, in his evidence, has stated that on the day of occurrence at about 11 p.m., his father committed murder of his mother by pressing her neck and at that time, his grandfather appellant Dwarika Yadav had caught hold of hands of his mother and when he started weeping, his aunt caught hold of legs of his mother and his cousin sister Shanti Kumari pressed his mouth at the instance of his father. About the motive of occurrence, he has said that his father sold to he goats for a sum of rupees one thousand six hundred and his mother had demanded half of that amount from his father who asked her to wait and for this reason, he committed the murder of his mother in the courtyard of his house. He has further said that after committing murder of his mother, her body was taken to a doctor who was told that she was ill but doctor, after examining the deceased, declared that she was dead by strangulation and, thereafter, the appellants took the dead-body for cremation and when they returned after cremation he, by riding on a vehicle, went to the house of his Nani where he narrated the incident to his Nana. He has further said that at the time of occurrence, his father appellant Ram Kesh Ya lav had given him threatening that in case of weeping, he would also be killed. He has further said that his statement was recorded by police and by a Magistrate. Supporting his evidence, Maharaj Yadav (P.W. 5), who is Nana of P.W. 1 who and father-in-law of appellant Ram Kesh Yadav, has said that on a Sunday at about 7 a.m., P.W. 1 happens to be son of his daughter Jageshwari Devi came to his house weeping and when he enquired from him, he discussed that his mother had been killed and also disclosed that both the appellants alongwith Shanti Kumar, Geeta Devi and Ashok Singh committed murder of his mother. He has said that at the advice of Jagdish Yadav (P.W. 3), he went to Police Station where he lodged the First Information Report (ExhibiM) which was read over to him and finding it correct he put his signature and Jagdish Yadav (P.W. 3) also put his signature on the First Information Report (Exhibit-1). He has said that he had given two he-goats, one she calf and one she goat to his daughter and appellant had sold he-goats in market and when his deceased daughter demanded its price, appellant Ram Kesh Yadav denied to give it and for this reason, he committed the murder of his daughter. Jagdish Yadav (P.W. 3), in his evidence, has said that on a Sunday, he was in his house when P.Ws. 1 and 5 came to his house and P.W. 5 told him that on the proceeding night, his daughter had been killed by both the appellants and daughter-in-law and grand daughter of appellant Dwarika Yadav and he also told him that for giving this information, P.W. 1 had come to his house and when he enquired from P.W. 1, he also told him that his mother had been killed by his father, grandfather and aunt on the previous night and he had come there running. He has said that he alongwith P.W. 5 went to Police Station where P.W. 5 lodged the First Information Report (Exhibit-1). Admittedly, he is a hearsay witness and in para-6 of his cross-examination, he has admitted that he did not see the occurrence himself. Dr. Md. Taiyyab Ansari (P.W. 4) has said that he is a Medical Practitioner in village-Berhni and on 20.10.1991, both the appellants in the midnight at about 1-1.30 O’clock had come to him and after awakening him told him that a woman was suffering from cold and at that time, he was himself ill because of operation of appendicitis and when he moved he found a woman lying whose condition was critical and he, therefore, advised the appellants to take the woman to somewhere else and, thereafter, they took away that woman. He has been declared hostile by the prosecution because according to prosecution he, after seeking the deceased, had told that deceased was already dead and this fact he had supported in his statement recorded during investigation where he had stated that both the appellants alongwith Ashok Singh, Banarsi Mahto and wife of Jagdish had kept the dead-body of deceased at his Darwaza and had also stated that while leaving the place, Ashok Singh had told him that if somebody asked him, he should say that deceased was suffering from cholera and he had given her treatment by injecting five bottles of water in her body.
6. The fact that mother of P.W. 1 who was wife of appellant Ram Kesh Yadav is dead and her dead-body was cremated is well proved from the evidence of P.W. 1 and this fact has not been disputed by the appellants who have also in their examination under Section 313, Code of Criminal Procedure admitted that dead-body of deceased was cremated the night. Because of cremation of the dead-body of deceased immediately after her death, the police did not get opportunity to find the dead-body of deceased and no post-mortem examination could be conducted but then from the evidence of P.W. 1 who is not only the son of deceased but is also the son of appellant Ram Kesh Yadav establishes the corpus delicti in this case of murder. It is true that P.W. 1 is a child witness and besides this he is the only eyewitness to the occurrence but then from going through his evidence particularly the cross-examination, it appears that he is quite a competent witness. So far the question of P.W. 1 being the only eye-witness to occurrence is concerned, the occurrence took place in the residential house of P.W. 1 and some members of his family were participants of the occurrence, therefore, the question of witnessing the occurrence by any outsider does not arise. In their examination under Section 313, Code of Criminal Procedure, the appellants have stated that at the instance of P.W. 5 or cousin brother of appellant Ram Kesh Yadav, they have been falsely implicated in this case. This defence does not appear to be convincing because nothing has been brought on record to show any motive for P.W. 5 or cousin brother of appellant Ram Kesh Yadav for tuitoring P.W. 1 in order to falsely depose on the point of murder of his mother.
7. The evidence of Ram Dhayan Kumar (P.W. 1) is that his father appellant Ram Kesh Yadav had passed the neck of his mother and his grandfather appellant Dwarika Yadav had caught the hands of his mother at the time of occurrence. About his aunt, he has said that she had caught the legs of his mother. A suggestion has been put by defence to P.W. 1 that neither before Investigating Officer nor before the Magistrate who recorded his statement under Section 164, Code of Criminal Procedure, he had stated that his grandfather had caught hands of his mother and his aunt had caught ledges of his mother. He has denied the suggestion but then prosecution has not examined Investigating Officer in this case and for this reason, the defence could not bring on record the contradiction in his earlier statement and his evidence in Court on the point of manner in taking part by appellant Dwarika Yadav in commission of occurrence. The statement of P.W. 1 recorded by Magistrate has been brought on record by prosecution which is marked Exhibit-2 and the Court below has used this statement for corroboration of evidence of P.W. 1 but it failed to take note of the fact that in this statement P.W! 1 had stated that at the time of occurrence his grandfather Dwarika Yadav had caught hold of both legs of his mother and it was his aunt who had caught hold of both the hands of his mother. Appellant Dwarika Yadav has been found guilty considering the evidence of P.W. 1 that at the time of occurrence, he had caught hold of hands of deceased. No other overt act is alleged against him. The allegation of pressing neck of deceased is, admittedly, against appellant Ram Kesh Yadav, the husband of deceased. When the evidence of Ram Dhayan Kumar (P.W. 1) that at the time of occurrence, appellant Dwarika Yadav had caught hold the hands of deceased, becomes doubtful in view of his earlier statement where he has stated that he had caught legs of deceased, it becomes very difficult to come to a finding as to participation of appellant Dwarika Yadav in the commission of offence. Besides this, P.W. 1 in para-20 of his cross-examination, has admitted that when his mother died, his grandfather lifted her asking to leave her because she was dead. This statement also makes the statement of P.W. 1 that his grandfather had caught hold of the hands of his deceased mother at the time of occurrence quite doubtful. So, we find that evidence of P.W. 1 does not inspire confidence that appellant Dwarika Yadav had also taken part in the commission of murder of deceased but so far his evidence against his father appellant Ram Kesh Yadav is concerned that is free from any doubt.
8. The earned Counsel for the appellants has argued that in this case the attention of P.W. 1 by defence has been drawn that in his statement recorded by Magistrate under Section 164, Code of Criminal Procedure, he had stated that his father committed the murder of his mother with lathi and witness denied this suggestion, but then his such statement (Exhibit-2) shows that he had stated that his father committed the murder of his mother by pressing her neck with lathi. In his evidence, P.W. 1 has said that his father committed the murder of his mother by Ghathi. The meaning of this word “Ghathi” has been stated by Court below as pressing the neck. The pronounciation of word “Ghathi” and “lathi” sound similar and the possibility that this witness might have used the word “Ghathi” at the time of recording his statement under Section 164, Coda of Criminal Procedure but inadvertently it was recorded “lathi” cannot be ruled out. Notwithstanding this possibility, we find that manner in which mother of P.W. 1 was murdered as stated by him in his evidence and his statement recorded under Section 164, Code of Criminal Procedure is same, that is, by pressing the neck. We, therefore, find it difficult to disbelieve the entire case of prosecution only on account of this contradiction which is quite minor in our opinion.
9. In this case both appellants have been charged under Section 201, Indian Penal Code also. So far this charge against appellant Dwarika Yadav is concerned, only evidence against him is that he had gone to attend the cremation of the dead-body of deceased. Admittedly, he happens to be father-in-law of deceased and merely his presence at the cremation place will not amount to an offence. Besides this, P.W. 1 has himself admitted that he had also gone for cremation of the dead-body of his mother alongwith appellants. But, so far this charge against appellant Ram Kesh Yadav is concerned, that stands proved considering the fact that immediately after committing murder of his wife, he took away the dead-body of deceased for cremation at dead night without waiting for morning.
10. Considering the entire evidence on record, we find that the prosecution has proved its case beyond all reasonable doubt under Sections 302/201, Indian Penal Code against appellant Ram Kesh Yadav, the husband of deceased. So far appellant Dwarika Yadav is concerned, we find that charges against him have not been proved beyond all reasonable doubt.
11. In the result, this appeal is allowed in part and the appellant Dwarika Yadav is acquitted f the charges. As he is on bail, he is discharged from the liabilities of his bail bonds. So far appellant Ram Kesh Yadav is concerned, this appeal is dismissed against him confirming the order of conviction and sentence, passed by Court below, against him.
B.K. Jha. J.
I agree.