P. K. Bahri ( 1 ) THESE three appellants-S/shri Chander Prakash @ Chander, Smt-Charneli Devi and Azmuddin have challenged their conviction andsentences awarded to them by an Additional Sessions Judge, Shahdara, videjudgment and order dated 30/03/1991, by which they were convicted of anoffence punishable under Section 302 read with Section 34 of the Indian Penal Codeand also convicted under Section 120-B of the Indian Penal Code which was termedas forming part of the main offence under Section 302 of the Indian Penal Code. Theappellants-Chander Prakash and Azmuddin were also convicted for an offencepunishable under Section 460 of the Indian Penal Code. All the appellants wereawarded imprisonment for life for the offence punishable under Section 302/34read with Section 120-B of the Indian Penal Code. The appellants-Chander Prakashand Azmuddin were further sentenced to undergo rigorous imprisonment for twoyears each for offence punishable under Section 460 of the Indian Penal Code. ( 2 ) FACTS of the case, in brief, are that Sia Ram, husband of Chameli Devi-appellant was having a crockery shop at Sanjay Market. At the time of theoccurrence, there were three daughters of the said couple living in house No. 169-170, Block No. 13, Kalyan Puri. The said house comprised of only two rooms anda compound in front of the same. Each room measured about 10 x 8 . Mahipal PW3was real brother of Sia Ram-deceased. He was also living with the family but heused to sleep at the shop of Sia Ram. Sia Ram remained abroad for earning moreincome for about three years prior to the occurrence and he had come to India in1986 and had again gone back abroad and returned in April 1987. Even before goingabroad he had let out one room in his house to Chander Prakash-appellant wholived there with his brother for some time. However, he had got vacated the saidroom from Chander Prakash sometime earlier to the occurrence. Sia Ram wasmurdered in one of the rooms of his house at about 11 p. m. on 25/01/1987. Thedaily Diary Report was recorded at serial No. 15a at about 12. 10 a. m. during theintervening night of 25th and 26/01/1987, copy of which is Ex. PW24/amentioning that Head Constable Mahavir Singh, Wireless Reporter, had gotrecorded that wireless information had been received that ASI Noor Mohd. Thedaily Diary Report was recorded at serial No. 15a at about 12. 10 a. m. during theintervening night of 25th and 26/01/1987, copy of which is Ex. PW24/amentioning that Head Constable Mahavir Singh, Wireless Reporter, had gotrecorded that wireless information had been received that ASI Noor Mohd. ,incharge of the Police Control Room Van, who informed that a person resident ofhouse No. 12/170, Kalyan Puri, had been stabbed with a knife and he had broughthim to Swami Dayanand Hospital where the doctor had declared him as broughtdead . Copy of this report was given to SI Dayanand PW24 who proceededalongwith SI Ram Chander PW6, Constables Randhir Singh and Davinder Singh tothe place of occurrence. MLC Ex. PW16/a was prepared by Dr. Tej Singh Vimalpw16 wherein he recorded that Sia Ram s/o Bhoj Raj, aged about 35 years r/o 12/169-170, Kalyan Puri, Delhi, had been brought by ASI Noor Mohd. at 12. 45 a. m. andon examination he found him dead having the following injuries:1. Incised wound about 1. 5 cm long over leftside of neck depth uptocorotial artery and vein about 5 cms. 2. C. L. W. over right temporal region size 3 X 2 cms. ( 3 ) IN the Medico Legal Certificate he did not record as to with what weaponthe injuries had been caused. He did not record that the injuries were caused by firearm. PW18 ASI Noor Mohd. had disclosed that he was incharge of the PCR Van onthat night and had reached Sanjay Marketwhen Head Constable Khajan Singh gaveinformation that some miscreant had injured a person with knife at premises No. 12/170, Kalyan Puri and on reaching the spot he found Sia Ram bleeding profuselyfrom his injuries and he removed him to the hospital and Mahipal PW3, brother ofsia Ram, accompanied him and Sia Ram was declared brought dead at thehospital and he gave this information to the Control Room. In cross-examination hedisclosed that at the time he reached the said house he found one constable presentat the spot. Head Constable Khajan Singh has not been examined in the case. Apparently it appears that he was the first police official who had come to knowabout the occurrence and he admittedly belonged to the Police Station Kalyan Puri. So, evidently the Police Station of Kalyan Puri must have come to know about thisoccurrence prior to Sia Ram being admitted in hospital at 12. Apparently it appears that he was the first police official who had come to knowabout the occurrence and he admittedly belonged to the Police Station Kalyan Puri. So, evidently the Police Station of Kalyan Puri must have come to know about thisoccurrence prior to Sia Ram being admitted in hospital at 12. 45 a. m. and that is thereason that Daily Diary Report at the Police Station had been recorded at 12. 10 a. m. It is also evident that the local police had come into action even prior to ASI Noormohd. came to the place of occurrence as he had found one constable alreadypresent at the spot before he removed Sia Ram from the house in question and tookhim to the hospital. We are referring to these facts at this very stage as they have alot of bearing on the merits of the case which we shall discuss after narrating thefacts. We may emphasize that even before any FIR was recorded the police hadalready almost formed the opinion that Sia Ram was stabbed with knife becausethat stands mentioned in Daily Diary Report No. 15a REFERRED TO above and the MLCEx. PW16/a also presumeably gave the indication that injuries were caused bysome sharp-edged weapon. ( 4 ) MAHIPAL PW3 claims that he was informed about the occurrence by Chamelidevi who came running to the shop which is five minutes walk from the house ofchameli Devi and he had gone to inform the police. He claims to have met thepatrolling police stationed at the market and had brought the police to the houseand police took his injured brother to the hospital. ( 5 ) PW24 SI Daya Nand, who was then posted at Kalyan Puri, on beingdeputed to inquire into the matter, had come to the place of occurrence andaccording to him, he met Smt. Chameli Devi and recorded her statement Ex. PW24/b and he made endorsement Ex. PW24/c and had sent the same for recording ofthe FIR, copy of FIR Ex. Public Witness 17/a. He claims to have prepared the sketch Ex. PW24/dand got the scene of occurrence photographed and had lifted blood from the spot,so also control earth. He found that blood was there also on the wall, sample ofwhich he lifted. PW24/c and had sent the same for recording ofthe FIR, copy of FIR Ex. Public Witness 17/a. He claims to have prepared the sketch Ex. PW24/dand got the scene of occurrence photographed and had lifted blood from the spot,so also control earth. He found that blood was there also on the wall, sample ofwhich he lifted. He lifted the blood stained bed-sheet, pillow, foam mattress andother blood stained clothes and the wooden takhat-posh on which the murder hadbeen committed and prepared the memo Ex. PW6/a. He had gone to the hospitaland prepared the inquest papers and had sent the dead body for post mortem videapplication dated Ex. PW14/b. In the application also, he recorded that Sia Ramhad been stabbed inside his house. In the inquest form Ex. PW24/f, he recordedthat the injuries were caused by knife. Dead body was identified byMahipal in theinquest proceedings and in that connection his statement Ex. PA was recordedwhere he was mentioned that Sia Ram was stabbed to death with a knife. The postmortem on the dead body of Sia Ram was performed on 26/01/1987, at about12 Noon by Dr. Bharat Singh. He found the following two injuries:1. One punctured wound over the right temporal area, size of the woundwas. 2 cm. X. 3 cm. X ? There was area of tattooing size 2. 5" X 2" aroundthe wound. Blackening and charring were present on the wounds. Hair in the area was also singed. Clotted blood was present over andaround the wound. 2. One lacerated wound on the leftside of the neck 1. 5 cm below the leftangle of mandible. Size of the wound was. 5" X. 4" X ?. There was nobruising around the wound Marginals were averted Blood had oozedout from the wound. There was no blackening and charring andtattooing around the wound. There was no other injury over the body. ( 6 ) INTERNAL examination carried out by the doctor showed presence of clottedblood in the shaft tissues of scalp around the external injury No. 1 in an area of 2"x 1. 5". Wound was found to be continuous on the right temporal bone which washaving a rounded whole about. 3" in diametre with radiating fissures fractures. ( 6 ) INTERNAL examination carried out by the doctor showed presence of clottedblood in the shaft tissues of scalp around the external injury No. 1 in an area of 2"x 1. 5". Wound was found to be continuous on the right temporal bone which washaving a rounded whole about. 3" in diametre with radiating fissures fractures. Wound was found to have entered the cranial cavity after lacerating the lowerportions of the right temporal lobe, then it had shattered the middle cranial fossaand the first cervical vertibral body and going towards left side with the downwarddirection. Major blood vessel on the leftside of the neck was found lacerated andfinally the track was found going, to the external injury No. 2 which is the exit ofwound No. 1. He did not find any bullet or any foreign material in the body. Heopined that the injuries were ante-mortem in nature caused by fire-arm from a closerange. Injury No. 1 was entry wound and injury No. 2 was exit wound. Death wasopined due to shock and comma resulted from injuries which were sufficient tocause death in the ordinary course of nature. Time of the death was about 12 hoursand he gave his report as Ex. PW14/a. ( 7 ) THE case of the prosecution is that Chameli Devi had given a false statementwhich was the basis of the FIR and later investigation revealed that the occurrencehad not taken place in the manner stated by Chameli Devi and in fact PWI Kumarigeeta, daughter of deceased, who was aged about 10 years at the time of theoccurrence, was an eye witness of the occurrence and her statement was recorded soon after the post mortem report and it revealed that appellants and one Rajesh (absconding accused) had conspired to kill Sia Ram and on that night all theappellants and the accused-Rajesh had caused the death of Sia Ram who was shotdead by Azmuddin from point blank range with a gun which he carried away. According to the prosecution, statement of Chameli Devi which was first in timewhich was the basis of the FIR Ex. According to the prosecution, statement of Chameli Devi which was first in timewhich was the basis of the FIR Ex. PW24/b gave the facts that as Chameli Devi withher husband and three children were sleeping in that room, Chameli Devi woke upon hearing the noise of opening of the door and on her husband also awakening andmaking inquiry as to who there was that a person entered the room and hadswitched on the light and she found that he was Ved who was accompanied byanother person and Ved had complained that Sia Ram had not paid him the fullamount for arranging the job for his brother and he wanted him to clear out thebalance amount on which Sia. Ram pleaded that he had no money and he wouldgive the money later on and they then searched the pockets of the shirt of Sia Ramand found no amount and the other person who accompanied Ved had stabbed Siaram on his neck with a knife and threatened Chameli Devi if she raised alarm shewould be also stabbed with knife and some of their companions were also standingoutside the house and Ved and his companions tied Sia Ram s hands with a clothand her husband was again stabbed with a knife by the said person and head of Siaram was struck against the wall and thereafter both the persons ran away and shementioned that the other person was aged about 20-23 years of wheatish complexion whom she could identify if shown to her. She disclosed that Ved had takenabout Rs. 3500. 00for getting employment to Mahipal who was also known as Pappuand about 7-8 days earlier Ved had taken Mahipal @ Pappu to Dadri (Uttarpradesh) and had beaten him and who was admitted in the hospital and it is onaccount of this money matter her husband had been stabbed by Ved and hiscompanion. ( 8 ) AFTER the doctor, who performed the post mortem, had opined that fatalinjuries had been caused by fire arm, the Investigating Officer is stated to have thenrecovered a bullet from the room which was embeded in between the bricks on thefloor near the said wooden takhat-posh which was also converted into seaedparcel. Vide memo Ex. PW6 / B which was signed by SI Ram Chander and witnessesramphal and Mahipal Singh. Vide memo Ex. PW6 / B which was signed by SI Ram Chander and witnessesramphal and Mahipal Singh. ( 9 ) ACCORDING to the prosecution, Kumari Geeta had disclosed that her fatherwas having a job outside the country and about 5-6 months earlier to the occurrencehad come back and earlier Chander Prakash was living as a tenant in one of therooms in her house but her father had got vacated that room from him andthereafter Chander Prakash continued to visit her house and on that score herparents used to quarrel and sometime her father used to beat her mother and on thenight of occurrence she alongwith her sister were sleeping on one bed and hermother was sleeping with younger daughter Pooja on the other bed while her fatherwas sleeping on the third bed and on hearing the noise she woke up and found thatelectricity in the room was on and she saw Kallu and another boy present in theroom whereas Chander Prakash was seen by her just outside the door and Kalluand his companion asked her father to give money. Her father told them that he hadno money with him and Kallu was having a pistol and his companion was havinga knife. They both of them tied the hands of her father at his back with a greencoloured cloth and Kallu fired a shot from that pistol on the right temporal regionof her father and her father collapsed on receiving the said injury and the said threeassailants went away and that during this occurence her mother kept sitting quietlyon her bed and after the assailants had gone away her mother went away to call heruncle from the shop and after she brought her uncle, her uncle had raised the alarmwhich attracted many people and thereafter some police came who took her fatherto the hospital. She also disclosed that at the time Chander Prakash was living asa tenant in her house, Kallu had visited him some times. She would be in a positionto identify the companion of Kallu also. ( 10 ) ON finding the story given by Chameli Devi as false and on the basis of theeye witness account given by Geeta, the police on 4/02/1987, arrestedchameli Devi and on the same day had arrested Chander Prakash. Azmuddin @kalli was arrested on 18/02/1987. The police had not been able to seize theweapon of offence. ( 10 ) ON finding the story given by Chameli Devi as false and on the basis of theeye witness account given by Geeta, the police on 4/02/1987, arrestedchameli Devi and on the same day had arrested Chander Prakash. Azmuddin @kalli was arrested on 18/02/1987. The police had not been able to seize theweapon of offence. ( 11 ) MAHIPAL is also stated to have given the version that Chameli Devi washaving illicit relations with Chander Prakash which he had resented and Chamelidevi had asked him not to come to her house and after Sia Ram had come fromabroad hehad apprised Sia Ram about the illicit relationship between Chamelidevi and Chander Prakash and Sia Ram used to have a quarrel with Chameli Deviand he had seen Chander Prakash visiting Chameli Devi even after Chanderprakash was evicted from the house and he had heard Chander Prakash saying tochameli Devi about 3-4 days prior to the occurrence that he would do the job soon. ( 12 ) IT may be also mentioned at this stage that Chameli Devi was pregnant atthe time she was arrested and PW3 Mahipal Singh when he came into the witnessbox had brought some prescription of the doctor which was exhibited as PW3/damark which only indicated that Chameli Devi was pregnant. The only object ofmahipal in producing such a document during evidence for the first time was toshow perhaps that Chameli Devi was having a child not conceived from herhusband but no importance could be attached to such a document because Chamelidevi s husband admittedly had come back about 4-5 months prior to the date ofoccurrence and it could not be said with any rationality that a child which wasconceived and was born after the arrest of Chameli Devi was not from the loins ofsia Ram. The learned Additional Sessions Judge has brought home the offences tothe appellants on placing implicit reliance on the statement of the child witness andalso on the ground that Chameli Devi s conduct which indicated her complicity inthe crime as she had given a false story to the police with a view to mislead thepolice. The learned Additional Sessions Judge has brought home the offences tothe appellants on placing implicit reliance on the statement of the child witness andalso on the ground that Chameli Devi s conduct which indicated her complicity inthe crime as she had given a false story to the police with a view to mislead thepolice. ( 13 ) THE learned Counsel for Chander Prakash-appellant has vehementlycontended that conviction of the appellants including Chander Prakash is totallymisplaced inasmuch as there has been effort of the police to introduce false childwitness at belated stage and moving finger from the very first day of the occurrencehas been Mahipal who had the motive to implicate Chameli Devi in order to grabthe house and the shop of Sia Ram. He has urged that in fact Chameli Devi had notgiven any version that Sia Ram was stabbed with knife and she had, in fact,mentioned about the fire arm injury but the police on its own brought in the storyof stabbing by knife which police persisted even after the police had seen the MLC. The police had itself in the inquest papers and other documents mentioned that Siaram had stab injuries caused by knife. He has also urged that Geeta being a childwitness had been tutored to give statement in favour of the prosecution inasmuchas she had been under the influence of her uncle since the date of the occurrence andin Court she had made vital improvements in the story which do not find mentionin the alleged statement given by her to the police initially. He has urged that itwould not be safe for the Court to convict the appellants on the uncorroborated andcontradictory and prevaricated statement of a child witness. ( 14 ) THE learned Counsel appearing for the other appellants also adopted thesame arguments and Mr. Akhtar Hussain appearing for Chameli Devi had alsourged that the whole story concocted by the prosecution is totally improbable. Hehas pointed out that if Chameli Devi was not having any good relations withmahipal, there could be no occasion for Chameli Devi to have gone and calledmahipal to the spot soon after the occurrence. Akhtar Hussain appearing for Chameli Devi had alsourged that the whole story concocted by the prosecution is totally improbable. Hehas pointed out that if Chameli Devi was not having any good relations withmahipal, there could be no occasion for Chameli Devi to have gone and calledmahipal to the spot soon after the occurrence. It is further argued by the learnedcounsel that in case Chameli Devi had conspired with some assailants to kill herhusband and her husband had been killed by use of fire arm, she could not havegiven a story that in fact her husband was killed with stab injuries caused by a knifebecause such statement could be easily found to be false the moment the postmortem was performed on the dead body. He has argued that in case Chameli Devihad really conspired to kill her husband she would have given the story of a fire arminjury on her husband and not an injury caused by knife. He has pointed out thatfacts show that injuries caused to Sia Ram had led to profuse bleeding that the bloodhad even sprouted upto quite a height on the wall, the clothes of the deceased, thebed sheet and the other clothes lying near the bed were all drenched with blood andlot of clotted blood was found around the wounds which appear to have misled notonly the Investigating Officer but also the doctor who prepared the MLC inthinking that injuries had been caused by use of a sharp-edged weapon like knifeand it was the police who introduced the story of knife in the statement of Chamelidevi in order to show her in bad light and he has argued that no other person exceptmahipal would have been interested in involving Chameli Devi for this grusomemurder of her husband in order to deprive her the inheritance to the property leftby her husband. ( 15 ) SHRI Irshad Ahmed, Advocate, who appeared for Azmuddin, has alsoargued that there is not an iota of evidence to show that Azmuddin was in anymanner involved in the murder of Sia Ram and he had no enmity against Sia Ramand he could have no motive to kill Sia Ram. He has urged that because of hisfriendly relations with Chander Prakash that he has been roped in as an accused inthis case. He has urged that because of hisfriendly relations with Chander Prakash that he has been roped in as an accused inthis case. ( 16 ) SHRI P. S. Sharma, Counsel for the State, however, has contended that theadditional Sessions Judge, was right in convicting the appellants on the truthfulversion given by the child witness who was the natural witness and there could beno reason for the child to have involved her mother in such a case of murder of herfather unless she was speaking the truth. He has argued that conduct of Chamelidevi in not raising any alarm and attracting the neighbours during the course of theoccurrence and remaining quiet till the assailants had made their escape and givinga false version to the police to mislead the police is also sufficient to show that sheof conspiring to cause the death of her own husband. ( 17 ) WE have to at first examine the statement of Kumari Geeta, the star witnessof the prosecution, in order to determine whether the Additional Sessions Judgewas right in putting full faith in her testimony. As already mentioned above, Geetawas hardly 10 years of age at the time of the occurrence. According to theinvestigating Officer, he had recorded her statement soon after the post mortemwas performed on the dead body of Sia Ram. It is quite evident from the record thatinvestigating Officer has not taken any steps to arrest the appellants soon afterrecording the statement of the said child. It was being urged before us that in fact,this child witness s statement was not recorded on the date and the time on whichit is purported to have been recorded by the Investigating Officer. We examined thecase diary maintained by the Investigating Officer and we had to recall theinvestigating Officer in the witness box to get some clarifications with regard to theglaring discrepancies appearing in the case diary maintained by him in respect ofthis case during the investigation and it was put to him that the case diary had beenissued to him having the Book No. 6073 and having the serial numbers printed onthe case diary. He admitted this fact that the case diary was written by him onprinted outer page No. 1 and he wrote the case diary on printed internal pages frompages 427501 to printed pages 427506 upto paragraph 24. He admitted this fact that the case diary was written by him onprinted outer page No. 1 and he wrote the case diary on printed internal pages frompages 427501 to printed pages 427506 upto paragraph 24. The printed page 427507was found missing and in its place another paper of different texture having noprinted serial number and the portion which should have been there as printedserial number being torn off was found and the said page also found to have beenwritten with a different ink. Subsequent to this page, again printed pages appearfrom serial Nos-427508 to 427514. Then again the printed serial numbered page427515 was found missing and in its place two leaves having no printed serialnumbers and the portions at the top which would have the printed serial numbersbeing torn off were found and these two leaves were also of different texture fromthe other leaves of the printed diary and were also found to be written withdifferentink and the subsequent pages again had the printed serial numbers 427516and 427517. This was the case diary written on 26/01/1987. Significantlyenough, statement of Geeta was found written on the said suspicious leaf havingno printed number and having different ink and having different texture andsimilarly the recording of the diary pertaining to recording of the statement ofgeeta was also on that inserted page of different texture having different ink. Onbeing questioned as to why it has so happened in respect of not only the recordingof the case diary pertaining to the statement of Geeta but also with regard to therecording of the statement of Geeta that the papers of different texture and differentink and having no printed serial number stand inserted in the case diary, theinvestigating Officer could not give any explanation. The learned Counsel for thestate, who was also shown these unusual features of this case diary, could give usno explanation as to how it happened that the crucial statement of Geeta which isthe main basis of the prosecution case was not recorded in normal manner in thecase diary. The case diary also indicated that appellants were not shown as suspector accused in the opening sheet of the case diary of 27/01/1987. And till thecase diary of 4/02/1987, the appellants were not being shown as culprits oraccused. It is only when appellants-Chander Prakash and Chameli Devi werearrested on 4/02/1987 that they were shown as accused. The case diary also indicated that appellants were not shown as suspector accused in the opening sheet of the case diary of 27/01/1987. And till thecase diary of 4/02/1987, the appellants were not being shown as culprits oraccused. It is only when appellants-Chander Prakash and Chameli Devi werearrested on 4/02/1987 that they were shown as accused. ( 18 ) IN Mukund Lal v. Union of India and Another,air1989 SC 144, the Supreme Court has clearly laid down that under Sub-section 2 of Section 172 of the Code ofcriminal Procedure the Court has the unfettered power to examine the entries inthe diaries as it is a very important safeguard. It was emphasized that Legislaturehas reposed complete trust in the Court which is conducting the inquiry or the trialand it has empowered the Court to call for any such case diary if there is anyinconsistency or contradiction arising in the context of the case diary the Court canuse the entries for the purpose of contradicting the Police Officer as provided insub-section (3) of Section 172 of the Code of Criminal Procedure. It was further laiddown that ultimately there can be no better custodian or guardian of the interestsof justice than the Court trying the case and no Court will deny to itself the powerto make use of the entries in the diary to the advantage of the accused bycontradicting the police officer with reference to the contents of the diaries and inview of this safeguard, it cannot be said that unless an unfettered right is conferredand recognised, the embargo engrafted in Sub-section (3) of Section 172 of the Codeof Criminal Procedure would fail to meet the test of reasonableness. ( 19 ) A Division Bench of this Court in the case of Om Parkash v. The State, 1979 (16) DLT 281 , has also held that entries in the case diary cannot by themselves betaken as evidence of any date, fact or statement therein contained, and it may beused for the purpose of contradicting the police officer who made it or it can be usedby the police officer who made it. In the said case, the Court had found that the casediaries of the said case did not have any book number and serial number printedon them and the space after the words book number and serial number was foundblank. In the said case, the Court had found that the casediaries of the said case did not have any book number and serial number printedon them and the space after the words book number and serial number was foundblank. The explanation given by the Investigating Officer was that the case diarieswere being supplied to the Police Station having no book numbers and serialnumbers. This practice of issuing case diaries without printed book number andserial number was criticised by the Court. ( 20 ) IN the present case, however, we find that case diaries have been issuedwith printed book number and printed serial number but the crucial pages whichpertain to the statement of Geeta had no printed number at all and were recordedwith different ink on paper having different texture from the other papers of thecase diary having printed numbers. The Investigating Officer could give no explanation. So, a doubt is raised in the mind of the Court that in all probability statementof Geeta was not recorded on 26/01/1987 as stated by the Investigating Officerand most probably the same was recorded near about 4/02/1987 and hadbeen shown to be recorded in the case diary on 26/01/1987. Keeping in viewthese facts, we have to examine the statement of Geeta which was given in Courtin order to appreciate whether she could be termed as a truthful witness and hadnot been tutored to give the statement by anyone. ( 21 ) COMING as PW1 Geeta stated that Chander Prakash even after having leftresiding in their house used to visit and tease her mother and was having good relations with her mother and on that score her father used to quarrel with hermother and her mother had even threatened the father that she would get himbutchered like a dog. In cross-examination, she stated that she did not rememberwhen her statement was recorded by the police. She was confronted with her policestatement, copy of which is Ex. PWI /da wherein it was not recorded that Chanderprakash used to tease her mother and that her mother had threatened her fatherthat she would get him butchered like a dog. In cross-examination, she stated that she did not rememberwhen her statement was recorded by the police. She was confronted with her policestatement, copy of which is Ex. PWI /da wherein it was not recorded that Chanderprakash used to tease her mother and that her mother had threatened her fatherthat she would get him butchered like a dog. In Court she made very vitalimprovements in her statement by deposing that on the night of the occurrence shesaw Chander Prakash and Kallu and one more person present in the room when shewoke up on hearing the noise of quarrel and found her mother catching hold of herfather from hair whereas Chander Prakash had caught hold the hands of her fatherand Chander Prakash had tied the hands of her father with a green coloured clothand had also gagged the mouth other father by putting a cloth. All these facts werenot found mentioned by her in her police statement with which she was dulyconfronted. She had not assigned any such active role to Chander Prakash in thepolice statement. She had only mentioned the presence of Chander Prakash outsidethe room when the whole occurrence took place but she denied having stated suchfacts to the police when she was again confronted with the police statement withregard to the said version. Admittedly this young girl has been living with Mahipalsince after the occurrence and it is obvious that she could not have of her ownconcocted these vital improvements in her Court version and thus inference is thatshe must have been tutored to depose to such facts by Mahipal and no one else. Admittedly, she has been coming to the Court for giving her statement accompanied by her uncle Mahipal. ( 22 ) IN State of Bihar v. Kapil Singh, AIR 1969 SC 53 , the Supreme Court hadhe occasion to deal with the evidence of childwitness aged about 12 years. It washeld that while a child witness of about 12 years can often be expected to give outa true version because of its innocence, there is always the danger in accepting theevidence of such a witness that, under influence, she might have been couched togive out a version by persons who may have influence on her. It washeld that while a child witness of about 12 years can often be expected to give outa true version because of its innocence, there is always the danger in accepting theevidence of such a witness that, under influence, she might have been couched togive out a version by persons who may have influence on her. Because of suchpeculiar facts appearing in that case the Supreme Court held that it was unsafe torely on the girl s evidence as her statement implicating the accused was obtainedbelatedly so she could not, therefore, be held to be reliable witness. In that case thechild witness had not disclosed the names of the accused at the earlier stage. ( 23 ) KEEPING in view the facts appearing in this case, it is quite evident that thischild s statement was not recorded promptly by the Investigating Officer andpossibility of her being tutored to give any statement against her mother bymahipal cannot be completely over-ruled. Her statement is also not truthful whenwe find that she under tutoring had made vital improvements in her statementgiven in Court from what she stated to the police. It would not be safe to place anyimplicit reliance on her testimony unless we find some corroboration from anyother independent evidence. ( 24 ) THE learned Counsel for the State has argued that at least Chameli Devi isdefinitely involved in the murder other husband because of her unusual conduct. He has placed reliance on Golam Majibuddin and Another v. The State of Westbengal, 1972 Crl. L. J. 1342, wherein it has been held that the evidence of falseexplanation is not only relevant under Section 8 of the Evidence Act but is ofconsiderable importance when it was given soon after the alleged occurrence andwas apparently designed to give to the facts an appearance favourable to theaccused. ( 25 ) STATEMENT of Mahipal has been strongly relied upon by the prosecution toshow that there existed illicit relations between Chander Prakash and Chamelidevi and that conduct of Chameli Devi was anbormal when she narrated themanner in which the occurrence took place involving the murder of her husband. ( 25 ) STATEMENT of Mahipal has been strongly relied upon by the prosecution toshow that there existed illicit relations between Chander Prakash and Chamelidevi and that conduct of Chameli Devi was anbormal when she narrated themanner in which the occurrence took place involving the murder of her husband. According to this witness, he had objected to Chander Prakash visiting Chamelidevi and Chameli Devi got annoyed with him and required him not to come to herhouse and thereafter he had stopped coming to the house of Chameli Devi and heinformed the deceased about the illicit relations being there between Smt. Chamelidevi and Chander Prakash. In case his statement is true then Chameli Devi, who was not on good terms with this witness, would not have gone to him to tell himabout the occurrence. He had made certain improvements in his statement in Courtby introducing the story that he had overheard Chander Prakash telling Chamelidevi that the work would be done by him soon which fact he had not told to thepolice and he was duly confronted with the copy of his police statement Ex. PW3 /da. He has also not told the police in his statement Ex. PW3/da with which he wascontronted that Chameli Devi had got annoyed with him and had asked him not tovisit her house in future. Mahipal had admitted that he had already applied forgetting succession certificate in the name of one of the daughters of the deceasedpertaining to the estate of the deceased. The suggestion given to him in cross-examination that he had the motive to grab the property of deceased by falselyimplicating Chameli Devi in the murder of her husband was, of course, denied byhim but the conduct of this witness does not appear to be above board. As alreadydiscussed, the prosecution case does not appear to be based on any reliable andconvincing evidence bringing home the offences to the appellants beyond shadowof reasonable doubt. ( 26 ) WHILE giving the facts we have noticed that this story of Sia Ram beingstabbed with knife was being brought into existence much before Chameli Deviallegedly gave statement to the police. The question is who could be the personcirculating this story that Sia Ram was stabbed with knife ? ( 26 ) WHILE giving the facts we have noticed that this story of Sia Ram beingstabbed with knife was being brought into existence much before Chameli Deviallegedly gave statement to the police. The question is who could be the personcirculating this story that Sia Ram was stabbed with knife ? Head Constable Khajansingh, who was the first person to be approached in all probability by Mahipal andwho had got recorded Daily Diary report giving the story of stabbing of a personby knife has not been examined in Court. It is also clear that it was Mahipal who gotin touch with the police initially and it was he who brought the police to the spot. It is also significant to mention that PW6 Ram Chander who was then working aspolice officer in the same Police Station and in whose presence admittedly variousarticles were lifted from the place of occurrence who has since, however, retiredfrom the police, had categorically stated that the bullet was recovered by theinvestigating Officer around 12. 30 in the night and that is much before the postmortem performed on the dead body of Sia Ram. It is evident that even before Siaram was taken and got admitted in the hospital, the Investigating Officer had comeinto picture and had recovered the bullet but still for unexplainable reasons thestory was adhered to that the injuries had been caused on the deceased byknife. Itbecomes rather doubtful to believe that Chameli Devi could have given this versionthat she had seen her husband being stabbed with a knife. It is also surprising that a Doctor who examined Sia Ram initially in the hospital should have not been askedto write on the MLC as to the weapon which had been used for causing the saidinjuries. It is also surprising that Doctor would not have noticed the telltaleevidence of fire arm injury present on the body of Sia Ram when he examined him. Again the mystery surrounds as to why efforts were being made from the verybeginning and by whom to show that injuries on theperson of the deceased werecaused by a knife. Chameli Devi is not a literate lady and she had no familymembers of her own to give her support when the police recorded her statement. We again find that Mahipal was the only person who was associating with thepolice even before Chemeli Devi was examined. Chameli Devi is not a literate lady and she had no familymembers of her own to give her support when the police recorded her statement. We again find that Mahipal was the only person who was associating with thepolice even before Chemeli Devi was examined. In case in reality or in fact Chamelidevi had conspired to kill her husband, it is impossible to believe that she wouldgive such a version to the police which could be found to be false immediately ondead body being subjected to post-mortem. It is also significant to mention that inthe plan Ex. PWIS/a which was prepared to scale later on on the instructions of theinvestigating Officer by police draftsman Davinder Singh PW13 it is indicated thatgeeta had woken on hearing the fire arm shot. If that is so, it is not understood howgeeta could have seen as to what transpired with her father at the hands of theassailants prior to being shot. So, it is quite doubtful that the conduct of Chamelidevi was in any manner suspicious and she had tried to mislead the police bygiving statement that her husband was stabbed with knife. The version given by herthat her husband was killed due to money matter by Ved and his companion hadnot been thoroughly investigated with due promptness by the Investigatingofficer. Only an eye-wash of investigation was carried out by a Head Constablewho visited the native place of Ved, whose real name is Tej Singh and an alibi wasfound for Tej Singh from the statements of Public Witness 11 Ram Chander and PW12 Prem Palsingh, the residents of Village Dadarpur. Tej Singh was also examined as PWIO. Money transaction between Tej Singh on the one hand and Mahipal Singh on theother hand was indeed not even denied by Tej Singh. Mahipal also admits that Tejsingh had earlier beaten him on account of money transaction. These facts findmention in the statement given by Chameli Devi to the police. The prosecution case, in our opinion, against the appellants bristles withcertain falsehood and efforts to introduce false child witness and not carrying outany fair investigation which lead us to doubt the involvement of the appellants inthe ghastly murder of Sia Ram. None of the neighbours had come in the witness boxto depose that they heard any fire arm shot or had seen any assailants eitherentering the house or escaping from the house. None of the neighbours had come in the witness boxto depose that they heard any fire arm shot or had seen any assailants eitherentering the house or escaping from the house. PW2 Smt. Madhu, who is one of the neighbours, did state that Chanderprakash who was earlier living as tenant in the house of Chameli Devi had vacatedthe house but was visiting the said house almost every day. It may be possible thatchander Prakash may be having some sort of relationship with Chameli Devi butthat circumstance, in our view, is not sufficient to show that he and Chameli Devialongwith others had entered into any conspiracy to kill Sia Ram. Another neighbour Sham Babu PW9 deposed about having come to knowabout the occurrence when he found Mahipal had brought the police and Mahipalwas weeping. Neither Smt. Madhu nor Sham Babu, who were the neighbours, hadreferred TO to Chameli Devi s actions soon after the occurrence which could show thatchameli Devi was behaving in any abnormal manner showing that she had anyguilty mind. In view of the above discussion, we conclude that it would not be safe tosustain the conviction of the appellants on such shaky evidence appearing in thiscase. We allow the appeals and set aside the judgment and order of the Additionalsessions Judge convicting and sentencing the appellants and acquit the appellantsof all the charges and direct that they be set at liberty if not required to be detainedin any other case. The police file be kept in a sealed cover with the record and be not returnedto any one.