JUDGMENT 1. - Mst. Memoona W/o Hasan has filed this appeal u/s 374 (2) Cr. P.C., 1973 against the judgment of learned Additional Sessions Judge Jhalawar convicting her under sections 109 and 302 I.P.C. and sentencing her to imprisonment for life for the murder of one Babu. 2. According to the information lodged by Gani Mohammad at Police Station Patan, it was alleged that on 29-8-1974 at 2.45 P.M. while he was sitting in the company of Sabir Hussain and Kadar Khan at the well on High School Road at Jhalrapatan, accused Kedar was standing in front of the house of Kamla Brahmin. Appellant Memoona was also standing by the side of Kedar. Deceased Babu appeared there and on seeing him, Memoona and Kedar caught hold of Babu. Babu tried to get himself released but he could not succeed and appellant Memoona told Kedar to finish Babu, so that the dispute can be ended for ever. Kedar whipped out a knife from his Dhoti and inflicted a blow on the chest of Babu. As a result of which, Badu fell down on the ground, after he felt giddy, infront of the shop of Brahmini. Kedar then took out the knife from the chest of Babu and ran away. Memoona also left the place. The informant went near Babu and Babu informed him that he was attacked by Kedar at the instigation of appellant Memoona. Babu was taken in a hand-cart in the injured condition to the hospital, but before they could reach hospital, Babu breathed his last on the way itself. 3. A case was registered under Section 302 IPC against appellant Memoona and accused Kedar. During investigation, post mortem was conducted. The investigation proceeded on usual lines and a charge sheet was filed in the court of learned Munsiff & Judicial Magistrate, Jhalawar under Section 302 read with Section 109 IPC against appellant Memoona. On commitment the learned Additional Sessions Judge, Jhalawar framed the charge against appellant Memoona. Memoona pleaded not guilty and claimed trial. Accused Kedar could not be arrested as he remained absconding and till now he has not been put in the dock for trial. 4. The prosecution examined 11 witnesses in support of its case. PW 2 Gani Mohammad, PW 3 Kabul Khan, PW 5 Kedar Khan and PW 6 Sabit Hussain appeared as eye-witnesses of the alleged occurrence. PW 1 Dr. 4. The prosecution examined 11 witnesses in support of its case. PW 2 Gani Mohammad, PW 3 Kabul Khan, PW 5 Kedar Khan and PW 6 Sabit Hussain appeared as eye-witnesses of the alleged occurrence. PW 1 Dr. Madan Lal appeared as Medical expert who conducted the post mortem PW 7 Khalil was produced to prove the conspiracy to kill Babu. PW 8 Ram Narain was produced to prove Ex. P. 4. PW 9 Abdul Gafar was produced to prove the site plan PW 10 Udai Lal happened to be the Head constable who scribed the First Information Report. PW 11 Ram Pratap, Investigating Officer was produced to prove the various stages of investigation and the memos. 5. Accused appellant was examined, but she again denied the charge. She did not examine any witness in defence. After hearing the arguments learned Additional Sessions Judge found Memoona guilty as mentioned above. 6. Mr. Dave, learned counsel for appellant Memoona argued the appeal with great vehemence and submitted that there was no reliable evidence connecting the accused with the crime because so far as the appellant Memoona is concerned, the evidence is untrustworthy, unreliable, contradictory and fails to inspire any confidence. 7. Before we proceed to consider the submission of Mr. Dave in the light of the evidence produced in the case and the finding of the Additional Sessions Judge, it would be necessary to mention the facts, which gave rise to this incident. 8. It is established that deceased Babu was married to Mst. Bilkish daughter of accused Memoona. Memoona was having flour Mill and accused Kedar, who is absconding, was working on that shop. Accused Kedar alleged to have developed illicit relation with Bilkish and was also residing with Memoona and was virtually maintained by Memoona. Bilkish was not going to the house of deceased Babu and Babu was trying to take her away. This created strained relations between them. 9. The suggestion of the prosecution is that it is on account of the above background that Memoona wanted to get rid of deceased Babu so that accused Kedar can live with her and Bilkish her daughter without any fear and disturbances. 10. It may also be mentioned here that by the evidence of PW 1 Dr. 9. The suggestion of the prosecution is that it is on account of the above background that Memoona wanted to get rid of deceased Babu so that accused Kedar can live with her and Bilkish her daughter without any fear and disturbances. 10. It may also be mentioned here that by the evidence of PW 1 Dr. Madan Lal, Medical Officer of Jhalarapatan, who conducted the post-mortem of deceased Babu, following injuries external and internal were found on the person of deceased Babu : 1. One oblique penetrating wound 0.7" long x 0.2" x chest cavity deep when seen externally starting from mid sternum going obliquely onwards and to the left through third left inter castal space reaching up to 2" below the left sterno clavicular joint where it was shallower in depth then at its start. 2. One oblique incised wound 0. 2" x 0. 1" x skin deep, just on the upper part of the first phallanx of left little finger palmar side. The cranium was having skull and brain with spinal card, all healthy, except that the brain its membrance was pale. On examination of the thorax the thoraxic cavity at mid sterneum was having a oblique penitrating wound described in external examination the chest wall due to that wound was cut at the level of the 3rd left inter castal space cutting the under line structures correspondingly reaching deep upto heart. Whole thoraxic cavity was full of dark fluid blood. Right plourae was covered with blood in thoraxic cavity but otherwise healthy. Left plourae ruptured at its interior boarder overlapping the anterior aspect of the heart corresponding to injury No. 1. Left lung was punctured near its anterior boarder overlapping the anterior of the heart corresponding to injury No. 2. Pericardium ruptured corresponding to chest wound No. 1 and full of blood. Heart was having 0.3" tear in the right aurical and 0. 1" tear in left aurical corresponding to chest injury No. 1. Heard and large blood vessels were found empty of blood. In abdomen there was nothing, abdomen except partially diagested food seen in the stomach and both the large and small intestine slightly distended with gasses. Only small quantity of urine was seen in the urinary bladder. 1" tear in left aurical corresponding to chest injury No. 1. Heard and large blood vessels were found empty of blood. In abdomen there was nothing, abdomen except partially diagested food seen in the stomach and both the large and small intestine slightly distended with gasses. Only small quantity of urine was seen in the urinary bladder. In the opinion of the Medical Officer death of Babu occurred due to hemorrhage and shock caused as a result of rupture of the upper part of the left lung and rupture of the heart at right aurical and left aurical corresponding to injury No. 1. He further opined that this injury was sufficient singally in its natured course the death". It is, therefore, obvious that Babu died due to the injuries caused by accused Kedar. 11. The trial court has believed the testimony of PW 2 Gani Mohammad, PW 3 Kabul Khan, PW 5 Kadar Khan. All of them stated that Kedar took out a knife from his Dhoti and inflicted injuries to deceased Babu. Sabir Hussain has turned hostile and has only stated that he saw Kedar running from the site and Babu in injured condition out side the shop. 12. The important and crucial aspect, which requires detailed consideration and the submission of Mr. Dave were concentrated relates to the part played by the appellant Memoona. PW 2 Gani Mohammed has stated that Memoona caught hold of Babu's hands and asked Kedar DEKHNA KYA HAI DE'. It was on this accused Kedar gave fatal blow. PW 3 Kabul Khan has deposed that Memoona caught hold the hands of deceased Babu and then asked Kedar in the following words; Ishe Maar De'. PW 5 Kader Khan also deposed that Memoona caught hold of Babu and that asked Kedar accused in the following words: 'DEKHTA KYA HAI ISHKA FANDA KAAT DE'13. It would thus be seen that the allegations of the prosecution as held to be proved by the trial court relates to the two important overt acts constituting the vital part played by appellant Memoona. The first being of catching hold of Babu and helping accused Kedar in preventing Babu from running away or from being released from the clutches of Kedar accused. The first being of catching hold of Babu and helping accused Kedar in preventing Babu from running away or from being released from the clutches of Kedar accused. The second part corroborates the objects of the first part played Memoona aggravates it in the form of open, clear categorical instigation, abatement by asking accused Kedar to finish deceased Babu.14. Mr. Dave, learned counsel for the accused reiterated the submissions made in the trial court and argued that the versions of the words used for instigation are not consistent and there is difference.15. We are not persuaded to reject the important evidence of these three eye-witnesses on the ground that the exact words used by Memoona while instigating and directing the accused Kedar to kill Babu, have not been mentioned in the trial court in the statements in parrot like manner. The trial court has rightly pointed out that there was consistency in the statement of all the three witnesses because all of them have emphasised the word 'De'. PW 2 Gani Mohammed pre-fixed the word 'De' with 'DEKHTA KYA HAI'. PW 3 Kabul Khan said 'MAAR DE' and Kadar PW 5 said 'KAAT DE'. The substance of the matter is that all the three witnesses stated that appellant Memoona instigated accused Kedar to kill Babu. If the exact words would have been repeated in parrot like manner the criticism would be that they were tutors, otherwise, it was impossible to remember the exact words. we are in agreement with the trial court that as per the view of the Allahabad High Court in Prem Narain v. State ( AIR 1957 All. 177 ) , whenever witnesses attempt to reproduce either a conversation or an exhortation, there is bound to be some little disparity, but this difference would not make their statements false. The relevant observations extracted by the trial court in para No. 28 of the judgment wants extraction again and they are:- "Whenever witnesses attempt to reproduce either a conversation or an exhortation, there is bound to be some little disparity. This disparity does not make the statements false because such disparity is born of want of capacity of illiterate witnesses to reproduce the words accurately several months later. If the witnesses had been made to state the words which were not spoken at the time, then the courts would not find any diversity. This disparity does not make the statements false because such disparity is born of want of capacity of illiterate witnesses to reproduce the words accurately several months later. If the witnesses had been made to state the words which were not spoken at the time, then the courts would not find any diversity. The witnesses would then have conned their parts by rote and would have made no mistakes in reproducing the words". (Para 22) It was further observed : There is no doubt that there has to be a reasonable certainty in regard to the meaning of the words used by the inciter in order to judge whether or not there was in incitement, but it is not necessary in law to prove the actual words used for the incitement. Thus where the court is reasonably certain of the meaning which A wished to convey by this words to his co-accused B and know how B reached after hearing the words spoken to him by A, the immediate reaction in a particular manner by B to the words addressed to him by A afford a good deal of guarantee that the words used by A were words of incitement" (Para 26) In Allahabad's case, 6 witnesses reproduced the sentences of conservation in 6 different sentences but there was a common theme in all of exhortation and there was emphasis on the word 'MARO'. It was held that it was a case of instigation by the words spoken by the accused. In the instant case, the word "MARO" has been used by using the word 'DE', but both conveys the same sense.16. We have ourselves gone through the statements of these 3 witnesses with the assistance of Mr. Dave, learned counsel for the accused appellant and the learned Public Prosecutor.17. P.W. 2 Gani Mohammad was near the Chhatari Choraha and according to him Babu came from Lanka Gate side. In front of Kamla's shop, accused appellant Memoona was standing alongwith accused Kedar. When Babu deceased came, Kedar caught hold of him and Memoona also caught hold of his hands. At this stage, Memoona told accused Kedar "DEKHTA KYA HAI DE" and then Kedar accused took out the knife (CHHURA) and gave a stroke on the deceased. Mr. Dave submitted that in Ex. P. 2 this witnesses has stated that he was sitting on a Patti and in Ex. At this stage, Memoona told accused Kedar "DEKHTA KYA HAI DE" and then Kedar accused took out the knife (CHHURA) and gave a stroke on the deceased. Mr. Dave submitted that in Ex. P. 2 this witnesses has stated that he was sitting on a Patti and in Ex. P. 2 he has not mentioned that he has witnessed this occurrence from Choraha. The witness explained this by saying that this detail has not been mentioned in the police statement, but Choraha is near his Mohalla.18. We have considered this discrepancy pointed out by Mr. Dave and we are of the opinion that it cannot be termed as very material discrepancy. The witness was not asked where was the Patti and Kuiya and whether they were away from Chauraha and what were the distances. In the absence of that the mere difference in details of description of the place I where they were standing or sitting is not material. We are further convinced from the cross-examination that no questions have been asked regarding the actual words used by appellant Memoona in instigating accused Kedar and the cross examiner has not even dared to make an attempt of detailed cross examination on this aspect. Whatever the witness has said in examination-in-chief in this respect has not been challenged and we have no reason to disbelieve this witness.19. P.W. 3 Kabul Khan has also stated that Memoona caught hold the hands of the deceased and Kedar took out the knife from his Dhoti. He also said in his examination-in-chief that when Memoona caught hold the hands of Babu deceased, she said to Kedar accused "ISHE MAAR DE". It is significant that on this aspect of the case, there has been no significant cross examination.20. Mr. Dave submitted that P.W. 3 Kabul Khan has admitted that he has appeared as the witness from the prosecution side in about 2 cases during the last 5 years. From this he wanted us to draw an inference that he is a police bird and he can implicate any one falsely.21. We are unable to draw such conclusion without any further examination availability of the material about the out-come of those cases, nature of those cases, the important question whether he was believed or disbelieved in those cases. From this he wanted us to draw an inference that he is a police bird and he can implicate any one falsely.21. We are unable to draw such conclusion without any further examination availability of the material about the out-come of those cases, nature of those cases, the important question whether he was believed or disbelieved in those cases. Learned counsel, who cross-examined this witness did not even care to ask those case's result in conviction or acquittal and what was the evidence and whether evidence was believed or disbelieved. In the absence of this, we cannot discard an evidence purely and simply on the ground that he appeared on behalf of the prosecution in a number of cases.22. The evidence of these two witnesses is further corroborated by P.W. 5 Kader Khan, who also deposed that Memoona caught hold of the hands of deceased Babu and then she exported accused Kedar to kill Babu in the following words "ISHKA FANDA KAAT DE".23. Here again we find that this part of the testimony has not been put to serious cross-examination. Mr. Dave again pointed out that in the cross examination, it has been revealed that in 'Ex. D. 2 Portions A to B he has mentioned that they were sitting near the Chhatari, but this version the witness has resiled. As we have mentioned earlier, it is not possible to discard the testimony of this witness only on this ground. The description of the place where the witness was standing or sitting is has not seriously disputed and it has also not come that what where the differences between 'Kuiya' Chhatari' and 'Patti' as discussed earlier.24. On a careful reading of the statement of the above three witnesses, we are convicted that there is running chain of truth in their version about the instigation of the appellant Memoona to accused Kedar to kill Babu and this is to be viewed in the background that deceased Babu was trying to take Bilkish to his house and Memoona was interested in accused Kedar who, it appears, was having very intimate relation with both the mother Memoona appellant and her daughter Bilkish and was living with them.25. The facts of the motive further corroborates the version of the eye witnesses and makes the instigation by appellant to other accused Kedar natural in the ordinary course of human conduct. The facts of the motive further corroborates the version of the eye witnesses and makes the instigation by appellant to other accused Kedar natural in the ordinary course of human conduct. We are, therefore, convinced that there is no serious infirmity in the statement of these three witnesses and the learned trial court has not committed any error in believing them on both the points, namely, appellant Memoona caught hold the hands of the deceased and helped accused Kedar in keeping Babu in their catch and then instigated and exhorted accused Kedar to kill Babu and get rid of him for all times.26. Mr. Dave further pointed out that there were many independent witnesses, who were available as the place was frequently visited and shops were open.27. We have considered this aspect of the case also. Simply because of the persons were available and could have been available and they were not produced it is not possible to discard the testimony of the 3 witnesses, who were there and who have been believed by the trial court. The prosecution is not obliged to produce any particular witness quantitatively and it is all the quality of the witnesses, which count. We have not been shown that any important witness has been deliberately with held by the prosecution warranting drawing of adverse inference against the prosecution.28. Accused Kedar is still absconding and, therefore, we would not go into the details of the parts played by him resulting in the death of deceased Babu, but the evidence believed by the trial court on this point calls for no interference in this trial and Mr. Dave has also not challenged that part of the story seriously and rightly so because Kedar accused is not facing trial at this stage. Mr. Dave of course submitted that the story that a knife was kept in Dhoti of accused Kedar is unbelievable and improbable.29. We have got no hesitation in rejecting such an argument because it is common knowledge that criminals conceal their weapons of offence in different manner and at difference places and portions of the body and no uniform standard can be laid down for judging probability or improbability of the same. Obviously, Dhoti is warned by the villagers and other persons in such a manner that concealment of a knife is a very probable and mostly remained undetected. Obviously, Dhoti is warned by the villagers and other persons in such a manner that concealment of a knife is a very probable and mostly remained undetected. Therefore, it has caused no surprise to us if the story of concealment of a knife in the Dhoti has been believed by the trial Court,30. We are convinced that the reliance placed by the trial court on the testimony of the above three witnesses in order to hold appellant Memoona guilty of abatement and instigation to accused Kedar for committing murder of deceased Babu, is wholly justified and based on correct proper and just appreciation of evidence.31. We have, therefore, no hesitation in confirming the judgment of the trial court and up-holding the conviction of the appellant Memoona under section 109 and 302 IPC.32. The result of the above discussion is that the conviction of the accused appellant Under Section 302 and Section 109 IPC and the sentence of life imprisonment calls for no interference. Consequently, the appeal fails and is hereby dismissed.Appeal dismissed. *******