JUDGMENT Vishnu Sahai J. - Since both these appeals arise out of same set of facts and a common judgment we are disposing them off by one judgment. 2. Through these appeals the appellants challenge the judgment and order dated 20-3-1995 passed by the Third Additional Sessions Judge. Sola pun in Sessions Case No. 65/93 convicting and sentencing them in the manner stated hereinafter: - a. Under Sec. 302 read with Sec. 34 of I.P.C. to suffer imprisonment for life and to pay a fine of Rs. 3.000/- each in default to suffer 3 years rigorous imprisonment; and b. Under Sec. 201 read with 34 of I.P.C. to suffer rigorous imprisonment for five years and to pay a fine of Rs. 2.000/- each, in default to suffer rigorous imprisonment for 3 years. The substantive sentences of the Appellants were directed to run concurrently. 3. In short, the prosecution case is that Vaishali Hanmant Kamale P.W.4 was the daughter of Appellant Kalawati @ Kalavva Hanmant Kamale and deceased Hanmant Kamale. She along with her parents and two brothers namely, Somnath and Navnath lived in village Ardhanari within the limits of Police Station Mahol. District Solapur. There was illicit relationship between appellants Sambhaji Bhimrao Waghmare and Maruti Balappa Bokade on one hand and Kalawati on the other. The said appellants used to visit Kalawati's hut in the absence of her husband Hanmant Kamale. This was in the knowledge of Hanmant Kamale and understandably he could not stand it. On account of this illicit relationship there used to be repeated quarrels between Hanmant Kamale and Kalawati. To ensure that Vaishali and her brothers remained out from the hut when they came the appellants Sambhaji Bhimrao Waghmare and Maruti Balappa Bokade used to give them money to purchase cigarettes, tea match box sweets etc. On the night of 10th December 1991, Vaishali alongwith her brothers was sleeping in a hut contiguous to the hut where Kalawati and Hanmant Kamale were sleeping. Sometimes between 12 a.m. to 1.30 a.m. Vaishali heard the cries of her father Hanmant Kamale and came to the hut where he was sleeping. She heard her father telling her mother that the relations between them had come to an end. Sometimes between 12 a.m. to 1.30 a.m. Vaishali heard the cries of her father Hanmant Kamale and came to the hut where he was sleeping. She heard her father telling her mother that the relations between them had come to an end. She saw in lantern light that her father was lying on the ground; Appellant Maruti was sitting on his chest; Appellant Sambhaji was putting a rope around his neck; and her mother appellant Kalawati was sitting near her father. On seeing Vaishali Kalawati caught hold of her hand; dragged her and brought her inside the hut where she was sleeping; and locked her there. Throughout the night Vaishali was crying. Next morning Kalawati opened the door of the, hut. Vaishali saw that Appellant Sambhaji and Maruti were not present. She enquired from Kalawati where her father was and Kalawati replied that he had gone to Saheb. 2 to 3 days thereafter, Vaishali and her brothers went towards the side of streamlet for collecting firewood while collecting firewood her brother Navnath saw a towel lying at the bank of streamlet. Since her father always used a towel they picked it up and brought it to the house. On seeing the towel her mother reprimanded her brother and burnt the same. Thereafter she burnt the cheeks of her brothers and threatened to burn them in case they disclosed the story, of burning of towel to anyone. Consequently on account of fear Vaishali and her brothers promised not to disclose that fact to anyone. It is said that appellants Sambhaji and Maruti went to Bhandarkavathe on a motor-cycle at night and brought her grandfather who resided with them for 3 days. It is also said that after the death of her husband, Kalawati started residing with appellant Sambhaji. 4. According to the prosecution, on the information given by appellant Kalawati to her father-in-law Layappa Kamale P.W.6 that her husband Hanmant Kamale was missing. Layappa Madappa Kamale lodged a missing re port at police station Mohol in respect of his son Hanmant Kamale. 4. According to the prosecution, on the information given by appellant Kalawati to her father-in-law Layappa Kamale P.W.6 that her husband Hanmant Kamale was missing. Layappa Madappa Kamale lodged a missing re port at police station Mohol in respect of his son Hanmant Kamale. On the said report enquiry was made by P.S.I. Mohiddin Mahiboob Shaikh P.W. 11 of Mohol Police Station, who during the course of it, learnt about the illicit relationship between the Appellants Sambhaji and Maruti on one hand and Appellant Kalawati on the other and the fact that the three Appellants had buried the dead body in the field of Appellant Sambhaji Bhimrao Waghmare. Consequently, in the presence of P.S.I. Mohiddin Mahiboob Shaikh, P.S.I Prakash Appasaheb Gadge P.W.12 and public punch Soudagar Baburao Dethe P.W.1 on 29-1-1992 the dead body of Hanmant. Kamale has recovered from the ditch, which was in the agricultural land of Appellant Sambhaji Bhimrao Waghmare, on the pointing out of the said appellant. 5. The dead body was identified by Layappa Madappa Kamale the father of the deceased. 6. The medical officer Dr. Kore, who was present on the spot performed the autopsy on the dead body. He found a ligature mark around the neck below the thyroid cartilage encircling the neck, horizontal 9" circular (Rope present around the neck). On internal examination he found fracture of bones and tracheal wings. In his opinion, the deceased died on account of asphyxia due to strangulation. It would be pertinent to mention that as Dr. Kore died prior to the recording of evidence, the postmortem report was proved by Dr. Ainapure P.W.15, who was familiar with his hand-writing. 7. After the postmortem examination, A.S.I. Mohiddin Mahiboob Shaikh P.W.11 lodged the F.I.R. (Ex.42) against the Appellants. 8. The investigation was conducted in the usual manner by as many as 3 investigating Officers namely: P.S.I. Prakash Appasaheb Gadge P.W 12, P.I. Dhanraj Chavan P.W 13 and A.P.I. Pandurang Bodage P.W. 14 of the C.I.D. During the course of investigation, 4 statements under Section 161 Cr. P.C. were recorded of Vaishali Nanmant Kamale, on 4 different dates viz. 1-1-1992, 20-2-1992, 21-5-1992, and 16-9-1992. On completion of the investigation, A.P.I. Pandurang Bodage P.W. 14 submitted the charge sheet against the Appellants. 9. P.C. were recorded of Vaishali Nanmant Kamale, on 4 different dates viz. 1-1-1992, 20-2-1992, 21-5-1992, and 16-9-1992. On completion of the investigation, A.P.I. Pandurang Bodage P.W. 14 submitted the charge sheet against the Appellants. 9. The case was committed to the Court of Sessions in the usual manner where the Appellants were charged for offences punishable under Section 302 read with 34 I.P.C. and 201 read with 34 I.P.C. to which, they pleaded not guilty and claimed to be tried. During the trial in all the prosecution examined 16 witnesses. It is pertinent to point out that the solitary eye-witness of the incident Vaishali Kamale was examined as P.W. 4. Apart from the ocular account furnished by her, prosecution examined some witnesses to prove the factum of illicit relationship between the Appellants Sambhaji and Maruti on one hand and Kalawati on the other. Prosecution also examined P.W.1 Saudagar Dethe in whose presence corpse was recovered on t he pointing out of Appellant Sambhaji Bhimrao Waghmare. The defence of the Appellants was that of denial. Appellant Maruti Balaapa Bokade examined three witnesses viz. Bashir Mulani, Laxman Godke and Shaukat, P.Ws.1, 2 and 3 respectively. The learned trial Judge after assessing the evidence adduced by the prosecution and the defence believed the former and convicted and sentenced the Appellants in the manner stated hereinabove. Hence these appeals. 10. We have heard the learned Counsel for the parties. We have also perused the depositions of the prosecution witnesses; the material exhibits tendered and proved by the prosecution; statements of the appellants recorded under section 313 Cr. P.C. the evidence of the 3 defence witnesses examined by Appellant Maruti; and the 1mpugned judgment. In our view Criminal Appeal No. 195 of 1995 deserves to be allowed and Criminal Appeal No. 156 of 1995 warrants to be partly allowed. 11. As mentioned earlier. Appellants have been convicted on two counts namely under sections 302 read with 34 I.P.C. and 201 read with 34 I.P.C. So far as the conviction of the Appellants for the former offence is concerned, it is based on the evidence of Vaishali Kamale P.W. 4, the daughter of Appellant Kalawati and deceased Hanmant Kamale. 11. As mentioned earlier. Appellants have been convicted on two counts namely under sections 302 read with 34 I.P.C. and 201 read with 34 I.P.C. So far as the conviction of the Appellants for the former offence is concerned, it is based on the evidence of Vaishali Kamale P.W. 4, the daughter of Appellant Kalawati and deceased Hanmant Kamale. We have set out the prosecution story in the earlier part of our judgment on the basis of the recitals contained in her examination-in-chief and consequently we do not intend to graphically mention the details contained in her statement. In short she stated that the along with her two brothers her mother Kalawati and her father Hanmant Kamale in two contiguous huts resided in village Ardhanari within the limits of Police Station Mohol, District Solapur. There was illicit relationship between her mother and Appellants Sambhaji Bhimrao Waghmare and Maruti Balappa Bokade. In the absence of her father the said Appellants used to visit her mother and talk to her. To ensure privacy the said Appellants; when they visited used to send her and her brothers to purchase cigarettes tea etc. Her father did not like this illicit relationship. On the night of the incident viz. 10th December 1991 she and her brothers were sleeping in one hut and her parents in the contiguous hut. Sometimes between 12 a.m. to 1.30 a. m. she heard the cries of her father; went inside the hut where he was sleeping; saw him telling her mother that their relationship had come to an end; saw-Appellant Maruti sitting on the chest of her father and Appellant Sambhaji tying a rope around the neck of her father; and her mother sitting nearby. On seeing her, her mother caught hold of her hand and took her and wicked her inside her hut. In the morning she opened the lock of the hut. She asked her where her father was, She replied that he had gone to Saheb. She also stated that subsequently. Appellant Sambhaji and Maruti called her grandfather who stayed for 3 days and went away. She further stated that 2 or 3 days after the incident when she and her brothers had gone to the streamlet to get the firewood they saw a towel lying and as her father used to always keep a towel they picked it up and gave it to their mother. She further stated that 2 or 3 days after the incident when she and her brothers had gone to the streamlet to get the firewood they saw a towel lying and as her father used to always keep a towel they picked it up and gave it to their mother. On that their mother burnt the towel; also burnt her brothers cheek; and threatened them that in case they disclosed the burning of towel to anyone they would be burnt. 12. We have gone through the said statement of Vaishali Kamale and in our opinion, it does not inspire confidence and is far from a safe basis for sustaining the conviction of the Appellants. Apart from the fact that at the time of incident she was aged about twelve and a half years and was as child witness and her evidence has to be scrutinized with caution on that score, we find that there are some inherent infirmities in her testimony which rendered it unworthy of acceptance. The first such infirmity is that, all four of her statements under Section 161 Cr. P.C. were recorded after an inordinate delay namely, on 1-1-1992, 20-2-1992, 21-5-1992 and 16-9-1992. Prosecution has failed to furnish any explanation for this delayed interrogation of her. It is pertinent to point out that in her statement on 1-1-1992 Vaishali stated that her father was in the habit of leaving home for days and days as he was interested in kirtan and bhajan. In portions of the said statement with which she was confronted during trial and which is marked as Ex. A, there is no mention that on the night of the incident she heard cries of her father; ;on hearing them went to his hut; saw the Appellant Maruti sitting on the chest of her father and Appellant Sambhaji putting a rope around the neck of her father; and her mother sitting nearby. In the said statement she has also not mentioned that her mother took her and locked her in the hut. These omissions in her first statement, in our judgment, render extremely suspicious and doubtful her claim of having seen the incident. In the said statement she has also not mentioned that her mother took her and locked her in the hut. These omissions in her first statement, in our judgment, render extremely suspicious and doubtful her claim of having seen the incident. Apart from this, we find that in her later statements, which were recorded on 20-2-1992, 21-5-1992 and 16-9-1992, there is no mention that she saw Appellant Maruti sitting on the chest of her father and Appellant Sambhaji encircling a rope around her father's neck. It is pertinent to point out that she has not been able to furnish any explanation for the said omissions. 13. In our view, the circumstance that during investigation her statement under Section 161 Cr. P.C. was recorded as many as 4 times clearly shows how desperate the prosecution was to make her an eye-witness. In the instant case, no explanation has been furnished by the prosecution for interrogating her 4 times during investigation. In our view, the only possible reason was that the prosecution wanted her to give a highly incriminating account of the incident and since she was not doing it. She was being repeatedly interrogated. The Supreme Court, times out of number, had held that delayed inter rogation of a witness under section 161 Cr. P.C. is itself sufficient to throw out the evidence of a witness. Here the delay in interrogation is not marginal but it 'is lamentably long and wholly unexplained. 14. For the said reasons, in our view, it would riot be safe to accept the ocular account of Vaishali Kamale. If her ocular account is excluded, then the only circumstantial evidence which remains against the Appellants is illicit relationship between Appellants Sambhaji and Maruti on one hand and Appellant Kalawati on the other. This, in our view, would not be sufficient to convict the Appellants for the offence punishable under Section 302 read with 34 I.P.C. 15. So far as the conviction of the Appellants for the offence under section 20I read with 34 I.P.C. is concerned, we have no reservations in straight away observing that Appellants Kalawati @ Kallava, Hanmant Kamale and Maruti Balaapa Bokade cannot be convicted on the said account because the evidence of the public panch Saudagar Dethe P.W.1. So far as the conviction of the Appellants for the offence under section 20I read with 34 I.P.C. is concerned, we have no reservations in straight away observing that Appellants Kalawati @ Kallava, Hanmant Kamale and Maruti Balaapa Bokade cannot be convicted on the said account because the evidence of the public panch Saudagar Dethe P.W.1. P.S.I. Mohiddin Mohiboob Shaikh P.W. 11 and P.S.I. Prakasn Bodake P.W. 12 categorically shows that the dead body was recovered on the pointing out of Appellant Sambhaji Bhimrao Waghmare. So far as the conviction of the Appellant Sambhaji Bhimrao Waghmare for the offence under Section 201 read with Section 34 I.P.C. is concerned we find that the evidence of the above mentioned three witnesses clearly shows that it was on his pointing out that the corpse of the deceased was recovered from the ditch. Their evidence inspires implicit confidence and the defence has not been able to discredit it in any manner during cross examination Since Appellants Kalavati @ Kallava. Hanmant Kamale and Maruti Balappa Bokade have to be acquitted for the offence under section 201 read with Section 34 I.P.C. in place of an offence under Section 201 read with Section 34 I.P.C. one under Section 201 I.P.C. simplicitor would be made out against this appellant. There is no legal impediment in our converting his conviction from section 201 read with Section 34 I.P.C. to one under Section 201 I.P.C. Consequently we make the aforesaid conversion. 16. Mr. S.R. Borulkar learned Additional Public Prosecutor urged that the acquittal of appellant Sambhaji Bhimrao Waghmare for the offence under Section 302 read with Section 34 I.P.C. would be no impediment in bur way of convicting him for offence under Section 201 I.P.C. To substantiate his submission he placed reliance on the decision of the Supreme Court reported in Suryamanil Dei and others v. State of Orissa1, in the said case Suryamani had been convicted by the trial Court for offences under Section 302 read with Section 34 I.P.C. and 201 read with Section 34 I.P.C. and her appeal was dismissed by the High Court. The Supreme Court however acquitted her under section 302 read with 34 I.P.C. but maintained her conviction for the offence under Section 201 read with Section 34 I.P.C. observing in paragraph 4 that there was sufficient evidence to show that she knew that the dead body was being carried for being disposed of. 17. The question which remains is the quantum of sentence to be awarded to Appellant Sambhaji Bhimrao Waghmare for the offence under section 201 read with 34 I.P.C. we find that he was convicted on 20th March 1995. Hence including the period served as an under trial he has been in jail for about 4 years and 3 months. In that view of the matter in our view his substantive sentence of five years rigorous imprisonment deserves to be reduced to the period already undergone but the sentence of fine and that in its default warrants to be maintained. 18. In the result: - Criminal appeal No. 156/95 is partly allowed. Appellant Kalawati @ Kallava Hanmant Kamale is acquitted on both the counts viz. under section 302 read with Section 34 I.P.C. and 201 read with Section 34 I.P.C. She is in jail add shall be released forthwith unless wanted in some other offence. In case she has paid the fine it shall stand refunded to her. Appellant Sambhaji Bhimrao Waghmare is acquitted of the offence under section 302 read with Section 34 I.P.C. in case he has paid the fine it shall stand refunded to him. We alter his conviction from section 201 read with 34 I.P.C. to one under section 201 I.P.C. and though we reduce his substantive sentence to the period already undergone but we confirm his sentence of fine of Rs. 2.000/- and that in its default. This fine of Rs. 2.000/- shall be paid to Kum. Vaishali Hanmant Kamale P.W. 4. Appellant Sambhaji Bhimrao Waghmare is in jail. In case he has paid the fine he shall be released forthwith unless wanted in some ether case. If not he shall be released from jail 1mmediately after paying the same Criminal Appeal No. 195/95 is allowed. The conviction of Appellant Maruti Balaapa Bokade on both the counts namely Section 302 read with 34 I.P.C. and 201 read with 34 I.P.C. is set aside. In case he has paid the fine it shall stand refunded to him. If not he shall be released from jail 1mmediately after paying the same Criminal Appeal No. 195/95 is allowed. The conviction of Appellant Maruti Balaapa Bokade on both the counts namely Section 302 read with 34 I.P.C. and 201 read with 34 I.P.C. is set aside. In case he has paid the fine it shall stand refunded to him. He is in jail and shall be released forthwith unless wanted in some other case. Appeal No. 156 allowed partly. Other appeal allowed. 1. A.I.R. 1979 S.C. 1534.