Judgment P.K.Deb, J. 1. This appeal has been preferred by Sitaram Sao and his second wife Sabita Devi who have been convicted under Section 302/34 of the Indian Penal Code and sentenced to imprisonment for life for having murdered Nirmala Devi who was the first wife of appellant No. 1 in the night between 7th and 8th of February, 1989 at village Pindarkum, P. S. Baiumath in the district of Palamau. 2. According to the evidence produced during the trial, on 8-2-1989 at about 5 p.m., Choukidar Deenanath Ram (PW 2) of Baiumath police station had gone to the village in question at about 3-4 p.m. where he came to know from the villagers that the first wife of appellant No. 1 (Nirmala Devi, deceased) was killed and her deadbody was lying in the house of Sitaram Sao. He went to the house of Sitaram Sao where he found the deadbody of Nirmala Devi, first wife of the appellant No. 1 on a cot. One Sanu Mian who is a neighbour of Sitaram Sao told him that it was a case of murder. Choukidar (PW 2) immediately went to the police station and lodged information of the occurrence. The Officer-in-charge asked the informant-Choukidar to remain at the place of occurrence. The informant in his Fardbayan had stated that he had seen several injuries on the person of the deceased which ha did not state in his evidence. Therefore, the prosecution counsel cross-examined the informant and invited his attention to the Fardbayan, But in court he stated that he had not even seen the deadbody which was covered with a cloth. 3. Md. Sanif (PW 3), a neighbour of the appellant, has deposed that he had come out of his house in the mid-night when he heard the sound of thas thus from the house of the appellant. The sound resembled a sound produced by ox rubbing its horns. He bad not heard any sound of quarrel from the house of the appellant except the sound aforesaid. He had seen the deadbody of the first wife of the appellant No 1 after the police arrived and did not find any injury. This witness too was declared hostile, as he did not stick to his earlier version before tbe police. He denied entire statement given before the Investigating Officer during investigation. 4. Harilal Ganjhu (PW 4) was also declared hostile. 5. Dr. This witness too was declared hostile, as he did not stick to his earlier version before tbe police. He denied entire statement given before the Investigating Officer during investigation. 4. Harilal Ganjhu (PW 4) was also declared hostile. 5. Dr. Sidh Nath, Medical Officer at Latehar Sdb-divisional Hospital, had held post-mortem examination on the deadbody on 9-2-1989 and he found the following injuries : "(1) Height of the body was 5"3". (2) Hairs were black. (3) Clothes on her body were black spotted, yellow Sari, yellow blouse, yellow petti-coat. (4) On external appearance : Eyes were open ; cornea lustre-less mud in the eyes ; mouth open mud inside mouth. Head turned towards right side; complexion extremely pale; multiple bruises over chest. Post-mortem regidity in a passing off stage ; upper extremity stiff ; lower extremity partly stiff. (5) On examination of crenium and spinal cotd :Scalp and sculp : Two parallel incise wounds 1/2" x 1/4" apart from each other on the left side of forehead. Skull was intact. Vestebre-nothing abnormal detected. Membrances-nothing abnormal detected. Brain and spinal cord-nothing abnormal detected. (6) Ehorax : Walls, ribs and castiges ; Multiple bruises covering full of chest. Fracture of 3rd to 6th right sided ribs and 3rd to 7th left sided ribs. (7) Pleura ii pierced by fractured ribs on right side of the chest. (8) Larynx and trachea : Nothing abnormal detected. (9) Lungs-pierced by fractured ribs. (10) Pericaridum : Nothing abnormal detected. (11) Heart: Contracted and stopped cystole. (12) Large vessels : Ruptured. (13) Examination of abdomen walls : Nothing abnormal detected: Peritenium : Nothing abnormal detected. (14) MouthOesophagus and condition of teeth ; Mouth was open ; tongue dry, mud inside, mouth. Saliva like sacretion had come from right side of mouth staining the cheek. (15) Stomach and its contents : Full with undigested rice. (16) Small intestine : Nothing abnormal detected. (17) Large intestine : Nothing abnormal detected etc..." 6. Mr. Janak Kumar Nath (PW 6), Judicial Magistrate, Latehar recorded the statement of Gopal Prasad Sahu (son of appellant No. 1) (Ext. 4). The most important evidence of the case is that of Gopal Nath Sahu, the son of twe deceased and appellant No. 1 who was a minor at the time of the occurrence. His age was assessed as ten years at the time he gave evidence in court. 4). The most important evidence of the case is that of Gopal Nath Sahu, the son of twe deceased and appellant No. 1 who was a minor at the time of the occurrence. His age was assessed as ten years at the time he gave evidence in court. This witness has given a vivid account of the whole occurrence. He was sleeping with his deceased mother at the time of occurrence. Learned Additional Sessions Judge has accepted the evidence of this child witness and conviction is primarily based on this evidence. The trial court has devoted five paragraps in analysing the evidence of this witness. The statement given by this child witness is extracted from paragraphs 12 of the judgment which is as follows : "It was night when he was sleeping in his house and he woke up on the sound of dislocation of the door plank and then he saw his father (Sitaram Sao) and accused Sabita Devi, the mother of Satish assaulting his mother (deceased). His father was assaulting his mother with kicks and danda and accused Sabita Devi had caught hold of her mother by her lock (hairs) and she was pressing her neck. Thereafter, his mother (deceased) died. Then his father and step mother Sabita Devi burried his mother under the ground. PW 7 further stated that when he wanted to raise hulla, his father threatened to kill him. He also stated that he gave statement earlier before Judicial Magistrate. In reply to court questions PW 7 stated that his father and step mother had killed his mother in the night. He further stated that at the time of occurrence, his mother, step mother and father were there besides him. He also stated that his father and step mother burned his mother in another room." 7. The evidence of child witness runs in 13 pages. The witness appears to be intglligent. He was subjected to cruelling cross-examination. I find that the witness has answered all the questions in an intelligible manner. 8. Mr. T.R. Bajaj learned counsel for the appellant has severely attacked the evidence of child witness and submitted that the trial Judge accepted the evidence of the witness without being able to detect several objectionable features in his evidence. He submitted that the child was tutored by his uncles after the statement of the witness was recorded under Section 154, Cr. T.R. Bajaj learned counsel for the appellant has severely attacked the evidence of child witness and submitted that the trial Judge accepted the evidence of the witness without being able to detect several objectionable features in his evidence. He submitted that the child was tutored by his uncles after the statement of the witness was recorded under Section 154, Cr. P. C. in which be had made utterly confusing statement inasmuch as he implicated his step brother being a participant in the crime alongwith his father. 9. Mr. Bajaj submitted that before any contradiction had been made by the child witness, the Magistrate who recorded the statement should not have examined the statement of PW 7. He submitted that from the very inception, the prosecution wanted to give this evidence as substantive piece of evidence, though it can never be treated as such, even before the Magistrate. The witness has stated that the deceased was being assaulted by Sitaram Sao and his steps brother Satish. Sri Bajaj has invited our attention to the answer given by PW 7 in his cross-examination. The witness has stated that he was brought to the court by his uncles (maternal). Both these uncles had told him that he should not repeat the mistake when he gave statement before the Magistrate under Section 164, Cr. P. C. He further submitted that it is obvious that he was tutored. He submitted that his evidence was obviously the result of coaching since he had been cross-examined on the next day. He further submitted that there was no light in the house and as such question of identification by PW 7 did not arise and this fact has not been considered by the trial court. 10. Sri Bajaj next submitted that none of the villagers supported the prosecution case and in such circumstance there being no corroboration in the statement of PW,7, who is the child witness and could be tutored easily, his evidence ought to have been rejected outright. He submitted that the trial court even looked into the case diary that trench had been dug in the house for the purpose of corroborating the statement of the child witness that his mother had been burried by the appellants, although the prosecution case is that she was lying on a cot and not on the ground. 11. He submitted that the trial court even looked into the case diary that trench had been dug in the house for the purpose of corroborating the statement of the child witness that his mother had been burried by the appellants, although the prosecution case is that she was lying on a cot and not on the ground. 11. The defence of the appellant was that they were completely innocent and no such occurrence had taken place. They alleged that the deceased was living in a different room than the room where the appellants were living and they have no knowledge about the death of the deceased. According to the defence, the deceased had been killed by unknown persons and the appellants were falsely Implicated because of the strained relation which the appellants were alleged to have had with the deceased. 12. I have critically examined the evidence. First interesting thing is that a case against unknown was registered on the information of the Choukidar Deoriath Ram. A case of murder against unknown was registered. The deadbody of the deceased was found in the house of the appellants. Choukidar had seen the deadbody lying on a cot. He was told by the neighbour of the appellants that she was murdered. Md. Sanit (PW 3) had heard the sound of thas thus in the house of the appellants. He saw the deadbody in the next morning. He also appears to be an interested witness. This witness in paragraph 14 of his cross-examination stated that when he asked the appellant Sitaram Sao about the peculiar sound coming from the house, he evaded to give any direct reply. He stated that the sound could not be of ox. This is very important piece of evidence. 13. The report of the autopsy of the deceased indicates that the deceased was subjected to severe assault. The death has been caused due to asphyasia and shock due to injuries on chest leading to internal haemorrhage and haemotoma. Asphyxia was caused by strangulation. 14. Arbind Upadhyaya is the officer-in-charge of Garhwa Police Station and was also officer-in-charge of Balmnath P. S. and had deposed that he had registered the first information report on 8-8-1989, and he proceeded to the place of occurrence for investigation. He went to the house of the appellant Sitaram Sao which consisted of six rooms. 14. Arbind Upadhyaya is the officer-in-charge of Garhwa Police Station and was also officer-in-charge of Balmnath P. S. and had deposed that he had registered the first information report on 8-8-1989, and he proceeded to the place of occurrence for investigation. He went to the house of the appellant Sitaram Sao which consisted of six rooms. The deadbody of Nirmala Devi was found in one of the rooms. In one room, the I. O. found a trench which was covered with wood. He collected some pieces of broken bangles and blood stained earth from the room. He prepared a sketch map. 15. The significant fact in the evidence of I. O. is that he dies not say whether he had interrogated the accused or he arrested them. It is proved beyond doubt that the deceased was murdered in the house of Sitaram Sao in the night. There was no injuries on the side of the accused. The appellant did not inform any of the neighbours about the death of his wife. There was clinching circumstance against the accused even if the evidence of the child witness is ignored for the moment. 16. The behaviour of the accused is relevant in such sort of cases as per Section 8 of the Evidence Act. The wife of the accused appellant No. 1 beieg killed within the house, he get silent and mum for the next whole day. When the Chowkidar made an information to the police and then police came in the evening hours of the next day. If there was no hand of the accused persons in the case then in normal cases, they should have immediately informed police and the villagers as to the unnatural death of the near and dear one of the accused-appellant No. 1, but that has not been done. In such a position, the clinching circumstances tells against the accused-appellants and also fingure towards his involvement with the crime. The maxim that men may lie but the circumstances do not is applicable in this particular case. There was trench in the adjacent room and it is in the evidence of the son of the deceased that the accused-appellants tried to burry the deadbody within that trench which fact gets corroboration from the inquest and the post-mortem report where earth could be found on the body and mouth of the deceased. There was trench in the adjacent room and it is in the evidence of the son of the deceased that the accused-appellants tried to burry the deadbody within that trench which fact gets corroboration from the inquest and the post-mortem report where earth could be found on the body and mouth of the deceased. So these circumstances too totally go against the accused-appellants. 17. Regarding the occular evidence of the son of the deceased, there were many objections from the side of the learned counsel for the appellants to the effect that he was tutored by his maternal uncles while deposing before the trial court. I have carefully gone through that portion of evidence given by PW7, Gopal Prasad Sao. He stated that on earlier occassion when he came to depose before the court, he was asked by his maternal uncle not to make any mistake in giving evidence before the trial court as he had done before the Magistrate in course of statement under Section 164, Cr. P. C. But, on that date, the evidence of the boy was not recorded and only on subsequent date, he came to depose before the trial court. There was mistake on his part while making statements under Section 164, Cr. P. C. is apparent from the statement itself. It is true that the statement under Seetion 164, Cr. P. C. is not a substantive piece of evidence but the same can be used for the purpose of corroboration and contradiction. 18. In the light of the evidence gives by the boy, the sole eye-witness in the case and contradictions being brought from his statement under Section 164, Gr.P.C., it is the bounden duty of the Court to see whether those contradictions are proper or not. In tne earlier part of the statement under Section 164, Cr. P. C, Gopal Prasad Sao had mentioned his step brother Satish to have accompanied his father, accused-appellant No. 1 in committing murder of his mother but he has corrected the same by saying in the latter part of the statement under Section 164, Cr. P. C, to the effect that it was not Satis but Satishs mother i.e. accused-appellant No. 2, Sabita Devi (step mother of the deponent), who associated his father in killing of his mother, Nirmala Devi. P. C, to the effect that it was not Satis but Satishs mother i.e. accused-appellant No. 2, Sabita Devi (step mother of the deponent), who associated his father in killing of his mother, Nirmala Devi. So it is not the fact that this eye-witness is making embroidery in getting the accused No. 2 involved in the crime. Soon after the occurrence, he had involved the accused appellant No. 2. Only by mistake in place of Satishs mother, he had mentioned Satish in the earlier part of his statement, which has been corrected by himself in the latter part of the statement. He was a very little boy and his statement was recorded by the Magistrate after finding him fit for the purpose of recording his statement. 19. The condition of a boy and his mental set up should also be considered in the circumstances of the case, when on one side his own mother was killed and on the other side his father and 6tep mother were the assaillants. So, in such circumstances, if the statement under Section 164, Cr.P.C is recorded by the Magistrate concerned in question and answer form, I do not find any illegalities or irregularities or impropriety in the matter rather it is found that the Magistrate was conscious about his duty in extracting the truth from the mouth of a minor boy who was the sole witness and had seen the occurrence. Moreover, this boy was a natural witness as he was sleeping with his mother in the night hours whoa the occurrence took place. He gave vivid description about how he woke up when the doors were being opened by breaking the bolts and leches and then he saw the occurrence of killing of his mother by the two accused-appellants. He was also threatened by his father of dire consequences when he raised alarms. 20. On independent scrutiny of the evidence of this witness, I find him to be totally a truthfull one and being a natural witness, conviction can be based solely relying on him. The objections to the effect that small boy went to his maternal grand fathers house in the early morning hours on the next day alone cannot have any i mpossibility as it is found that the boys own sister was living in that house and he was in visiting terms with that house all along. The objections to the effect that small boy went to his maternal grand fathers house in the early morning hours on the next day alone cannot have any i mpossibility as it is found that the boys own sister was living in that house and he was in visiting terms with that house all along. After he made the statement implicating his father, naturally he felt insecure in the house of his grand father then he was taken to his maternal aunts house and then to his maternal uncles house where he was staying at the time of giving deposition before the trial court. All these subsequent circumstances show the naturality of the case and the position and circumstances of the poor boy. The evidence of assault as given by this boy corroborates the medical evidence i.e. the post-mortem report, the legature mark on the deadbody on the neck was due to pressing by the accused-appellant No. 2 on her neck so that the injured might not raise alarm. There might be attempt on the part of the accused-appellants to manipulate the case to be a case of suicide and for that purpose her neck might have been tied with a rope which caused legature mark on her neck, but when that case is not there from the side of the prosecution, evidence adduced shows the possibility of legature mark on the neck of the deceased due to pressing of her neck by fingures by the appellant No. 2. The occular evidence of the eye-witness together with circumstances and the manner of the accused-appellants proves beyond all reasonable doubt that the accused-appellants were responsible for the killing of Nirmala Devi. 21. The demeneour of the accused-appellants also could be found from the evidence of the independent witnesses, although they became hostile but stated that on being asked by them, the accused-appellant No. 1 stated that his wife had gone somewhere else and his evasive reply as to the sounds caused i.e the house in the night hours also goes to finger towards involvement of the accussed-appellant with the crime. Those sounds could be the sound of assault by lathis on the person of the deceased by force and in a close room, such sounds of assault may come out as thas thus resembling to that sound of ox on movement in the cow shed. 22. Those sounds could be the sound of assault by lathis on the person of the deceased by force and in a close room, such sounds of assault may come out as thas thus resembling to that sound of ox on movement in the cow shed. 22. Let us now come to the point as to who was responsible for causing death of Nirmala Devi. Allegation is against both the accused-appellant i.e. the husband and the co-wife. About the husband i.e. Sita Ram Sao, there is clear evidence of his son PW 7, Gopal Prasad Sao that it was Sita Ram Sao, who had assaulted his mother, Nirmala Devi giving incessent blows with the lathi. From the medical evidence also, it is clear that there was breaking of ribs having internal effects of haemorrhage which caused death of deceased Nirmala Devi. Against, co-wife i.e. appellant No. 2 Sabita Devi, there is nothing specific evidence or attribution to her regarding assault on Nirmala Devi. As per evidence of PW 7, she had put his mother by pressing her neck to that she might not raise alarm. 23. The behaviour and the conduct of the accused-appellant No. 1 just before the occurrence and after the occurrence totally goes to show his guilt conscience when he tried to conceal everything by giving an evasive reply sometimes to the effect that Nirmala had gone elsewhere and sometime to the effect that Nirmala was inside the house on the next morning of occurrence. About the sounds of Marpeet, he tried to give different colcurisation by stating it to be sounds of movement of horns of the oxen in the cow-shed. 24. I am convinced that it was accused-appellant No. 1, who is solely responsible for causing death of Nirmala Devi. About the involvement of Sabita Devi, evidence is not so strong and PW 7 in his statement under Section 164, Cr. P. C. did not mention her name in the first part but afterwards involved her in its later part and in the evidence before the trial Court also he has not attributed auy specific overt act of assault of accused-appellant No. 2, Sabita Devi and hence she is entitled to get acquittal on benefit of doubt. 25. P. C. did not mention her name in the first part but afterwards involved her in its later part and in the evidence before the trial Court also he has not attributed auy specific overt act of assault of accused-appellant No. 2, Sabita Devi and hence she is entitled to get acquittal on benefit of doubt. 25. In the result, the appeal is partly allowed and impugned judgment of conviction and order of sentence against the accused-appellant No. 2, Sabita Devi is hereby set aside and she is acquitted on benefit of doubt and is relieved of her bail bond, when she was granted bail by this Court on 23-11-1992. The judgment of conviction and order of sentence against the accused-appellant No. 1 is hereby confirmed and upheld. He is in custody and his period of detention during the course of trial and after conviction by the impugned judgment shall be set off from the award of sentence.