S. K. AGARWAL, J. There are 3 connected appeals with Criminal Appeal No. 623 of 1980. Crl. Appeal No. 623 of 1980 was filed by Sita Ram. Criminal Appeal No. 624 of 1980 was filed by Ratan Chand Dubey @ Munna. Crl. Appeal No. 627 of 1980 was filed by Sheeta Prasad and Criminal Appeal No. 628 of 1980 was filed by Krishan Kumar Singh. All these appellants were convicted under Section 302/34 I. P. C. and were sentenced to life imprisonment. 2. Brief facts of the case as contained in the F. I. R. are that the informant Smt. Shail Kumari was living in Mohalla Khajuri, District Varanasi with her family. In the same locality her sister Smt. Prabhawati with her husband Badri Lal Srivastava and children lived in house No. 58/151. The relations between two families were cordial and they were frequently visiting each other. On the date of occurrence i. e. 4-12- 1978 at about 10. 00 a. m. she went to see her sister. On reaching there she found the main door in the front closed. She pressed the door but it did not open. She thought that her sister may be, in the inner Court yard busy in some house hold. She went to the side lane and from there she called her sister but no response to her call was made from inside. She stood on a heap of debris and tried to peep into the house. She found her sister lying on the floor of the middle room. Sita Ram, holding a knife, was inflicting the injury on her neck. Sheetal was pressing on her chest with one part of the stone grinder. Munna was pressing her legs and Krishan Kumar was pressing her head. She exclaimed "are BAAP RE, GAJAB HO GAYA. On hearing her exclaim the four, left her sister and turned towards her. She ran and shouted, sita Ramva, Sheetalava, Krishnava and Ratan Chandava have killed my sister. They all jumped from the wall and ran towards Khandahar. She had seen blood on their clothes. Her alarm attracted many people to the spot. She called the daughter Aarti of the deceased to open the door. She found her sister dead. Injuries of knife and a blunt object were there on her person. An Angauchha was also tied around her neck. Her clothes were stained with blood. She had seen blood on their clothes. Her alarm attracted many people to the spot. She called the daughter Aarti of the deceased to open the door. She found her sister dead. Injuries of knife and a blunt object were there on her person. An Angauchha was also tied around her neck. Her clothes were stained with blood. Several persons came there and told her that they had seen Sita Ram, Sheetal Prasad, Ratan Chand and Krishan Kumar running away from the spot and their clothes were stained with blood. Sita Ram was also holding a blood stained knife. The ran towards police lines. They did not respond to their queries. These persons used to keep an evil eye on the village women. Several complaints were already made against them. She felt that all these 4 persons finding her sister alone in the house, tried to satiate their lust and having failed due to resistance offered they killed her so that they may not be named. The husband of the deceased was informed. The written report Ex. Ka-1 is on the record. It was got prepared by P. W. 1. The case was registered at P. S. Cantt. District Varanasi on 4-12-1978 at about 10. 30 a. m. The distance of the police station is about 2 Kms. from the spot of occurrence. Report was carried to police station by Hira Lal, P. W. 3. It was scribed by her nephew Om Prakash Srivastava alias Kailash. 3. After completion of the inquest, the dead body was dispatched to the mortuary for post-mortem. The post-mortem on her dead body was conducted on 5-12-1978 at about 2. 00 p. m. Her dead body was brought to mortuary by Constables Ramesh Yadav and Dev Narain of P. S. Cantt. Post-mortem was conducted by P. W. 5 Dr. V. Kumar. He found following injuries on her person: (1) Lacerated wound 2 cm. x 1 cm. x skin deep right eye brow. (2) Multiple contusion in an area of 13 cm. x 7 cm. right side face. (3) Contusion 7 cm. x 7 cm. on left eye and cheek. (4) Lacerated wound 7 cm x 3/4 cm. x muscle deep on chin. (5) Punctured wound 1 cm. x 1/2 cm x 6 cm. on the right side neck front middle wound directed below and in. (6) Multiple contusion in an area of 22 cm. right side face. (3) Contusion 7 cm. x 7 cm. on left eye and cheek. (4) Lacerated wound 7 cm x 3/4 cm. x muscle deep on chin. (5) Punctured wound 1 cm. x 1/2 cm x 6 cm. on the right side neck front middle wound directed below and in. (6) Multiple contusion in an area of 22 cm. x 14 cm. on front of neck and upper part Chest front. (7) Multiple contusions in an area of 32 cm. x 15 cm. on the upper third back both sides. (8) Abraded contusion 2 cm. x 1 1/2 cm. on the back left elbow. (9) Contusion 5 cm. x 2 cm. back right forearm middle. (10) Incised wound 1 1/2 cm. x 1 cm. on the right hand dorsum at the root of right index finger. (11) Multiple contusions in an area of 15 cm. x 11 cm. right knee front. 4. In the post-mortem all the injuries except Injury Nos. 5 and 10 were found of blunt object. Injury Nos. 5 and 10 were caused by sharp edged weapon. Injury No. 5 is a punctured wound on the right side of neck and Injury No. 10 is an incised wound on the right hand at the root of right index finger. The internal damage in the thorax region was extensive. Right thorasic cavity contained 2 liter of blood. Pleura over right upper lobe was punctured. Upper lobe of the right lung was punctured. Stomach contained 1/2 kg. rice and Dal. Small intestine contained digested food and large intestine was found empty. Bladder was also found empty. 5. The defence has denied the prosecution story in its entirety. Sita Ram had stated that he was involved in the offence on account of enmity due to property dispute between him and the informant. He adopted the statement made by his cousin Ratan Chand. Ratan Chand has made a lengthy statement in defence. According to him about 10-12 years ago, his grand-father had sold out some land from his share to Smt. Shail Kumari, the informant. Some part of their land was included in her house by Shail Kumari. When the measurement took place, it was found that she had included some land of theirs in her house in excess of the land sold. Smt. Shail Kumari offered to pay its price. Some part of their land was included in her house by Shail Kumari. When the measurement took place, it was found that she had included some land of theirs in her house in excess of the land sold. Smt. Shail Kumari offered to pay its price. She further asked that rest of the land that fell in his grand-fathers share be also given to her. They demanded the prevalent market rate but she was pressing for the old rate. The deceased Prabhawati also told them to sell their land to Smt. Shail Kumari on past rate. When they did not yield, Shail Kumari also threatened to see them. She had neither returned the excess land that she occupied nor paid its price. On account of this enmity she involved him and his brother in this offence. He further stated that his house is adjacent to the house of Prabhawati. On the date of occurrence at about 9. 00-9. 30 a. m. he had gone to get his wrist watch repaired. When he was returning back to his house and was at a distance of 1 furlong, he heard an alarm being raised. He rushed to the spot. Smt. Shail Kumari met him. She asked him to call Badri Lal Srivastava, husband of the deceased. He claimed that he went to call Badri Lal Srivastava at his office at Lahurabir but we did not find him there. He was told there that he has gone to the Bank near Kutchehry. He came back to his house. As soon as he reached near this house, he found S. O. , P. S. Cantt. talking to his father. He took him to the spot where the dog squad was present. An attempt was made to make a dog smell him but that attempt failed. Smt. Shail Kumari repeatedly was, according to him, crying that he is the culprit and involve him some how. The Dog Squad operator told her when this animal is not sniffing him how can he involve him. The Inspector. brought him out and on the same day at about 4 p. m. he was taken away by the Sub-Inspector from his house. 6. Krishna Kumar, appellant, gave out in his defence that he was at his house on leave. He is army person and was posted during the period of occurrence in Panchmarhi, Jabalpur. The Inspector. brought him out and on the same day at about 4 p. m. he was taken away by the Sub-Inspector from his house. 6. Krishna Kumar, appellant, gave out in his defence that he was at his house on leave. He is army person and was posted during the period of occurrence in Panchmarhi, Jabalpur. On 5-12-1978, he was going to attend his duty. He was present at the relevant time when the police of P. S. Cantt. came at the railway station. He was sitting in the train after having his warrant for travel prepared. He was called by the Sub-Inspector who enquired from him whether his name is Munna. He told him that his actual name is Krishna Kumar but he was also called as Munna. Sub-Inspector had told him that they want to make some enquiry from him. He told him that he has to attend his duty. He further asked to take him before R. T. O. or Station Master but the police did not agree. They brought him to the police station. There he was told that in this case name of Munna occurred and if he pays Rs. 3,000 he will be let of. He declined to oblige. In the evening, Station Officer asked him to pay only Rs. 2,000 for his release but he declined it also. On 5-12-1978 Smt. Shail Kumari prepared a report on the instruction of S. H. O. and S. I. Rajendra Singh. The report was dictated by him. In the report the date was mentioned as 4-12-1978. On 6-12- 1978 he was sent to Jail. In his locality 8-10 persons are called Munna. He had no enmity with Smt. Shail Kumari and Prabhawati. He was involved with the connivance of the policemen in this offence. 7. Sheetal Prasads house is 2-3 Furlong from the house of Prabhawati deceased. Smt. Shail Kumari was running a tea shop at the main road on Nagar Maha-palika land. People of bad antecedent of the locality used to sit there which had caused problems to the villagers in their movement. He had made an application against Smt. Shail Kumari for the removal of her Gumti in the Nagar Mahapalika. Shail Kumaris husband is posted in Nagar Mahapalika as Vaccinator. He suppressed that application on coming to know about it. No action was taken. He had made an application against Smt. Shail Kumari for the removal of her Gumti in the Nagar Mahapalika. Shail Kumaris husband is posted in Nagar Mahapalika as Vaccinator. He suppressed that application on coming to know about it. No action was taken. When Shail Kumari came to know this fact, she threatened him that you tried to kick at my belly, I will see you and ultimately managed to involve him in the present case in connivance with the I. O. 8. The prosecution in support of its case has examined 6 witnesses. P. W. 1 Smt. Shail Kumari is the lone eye-witness of the incident. Hira Lal Srivastava, P. W. 2 and P. W. 3 Shambhu Nath Sharma are witnesses of circumstance of seeing the accused persons running away. Hira Lal Srivastava, P. W. 2 is also a witness of the fact that on his reaching the spot he learnt from the people who collected there that Ratan Chand, Sita Ram alias Jhingan, Sheetal and Krishna Kumar had killed his sister. He claimed that P. W. 3 had seen the appellants running away towards the police lines while he was going to Lalpur for getting his agricultural instruments repaired. He is a Baba. P. W. 4 Om Prakash Srivastava alias Kailash is the scribe of the F. I. R. P. W. 5 is Dr. B. Kumar who had conducted the autopsy on the person of the deceased. P. W. 6 is Rajendra Singh, Sub- Inspector who investigated the case and submitted charge- sheet against these appellants. 9. Learned Counsel for the appellants has raised the following submissions before us that the murder of Smt. Prabhawati was not seen by any one. Smt. Shail Kumari is a got up eye-witness. F. I. R. is ante-timed. P. W. 3 Shambhu Nath Sharma is a chance witness. He could not be present. He has changed his place of going from Khajuri to Lalpur during trial. P. W. 2 Hira Lal Srivastava also could not be there as alleged by him. He is the brother of the deceased and the informant. It is further contended that not a single witness of the locality was examined by the prosecution in this case, although admittedly a large number of people were present after Shail Kumari raised alarm to corroborate that pronounced the names of these accused openly. He is the brother of the deceased and the informant. It is further contended that not a single witness of the locality was examined by the prosecution in this case, although admittedly a large number of people were present after Shail Kumari raised alarm to corroborate that pronounced the names of these accused openly. The arrest of the appellant Krishna Kumar and the recoveries made from him were foisted on him and cannot be relied upon. 10. In order to test the submissions, we have to examine very closely statement of P. W. 1, Shail Kumari, the sole eye-witness of the case. She is the younger sister of the deceased and was living in the same locality at a distance of 15-20 steps. Her husband was a vaccinator in Nagar Mahapalika. After her husband leaves for his duty and the children go to the school at about 9. 00 a. m. she used to remain alone in the house, therefore, she claimed that she frequently used to visit the deceased. According to her, the house of appellants Sita Ram and Ratan Chandra Dubey are just in front of her main door. She knew these two appellants very well. Sita Ram is also known as Jhingan. Ratan is also called Munna. she identified them in Court. Her statement shows that niece of Ratan Chand was a friend of Arti, daughter of the deceased. She used to play with her. She had seen the incident by climbing the debris of a Khatiks house. This heap of debri was lying in the north of deceaseds house. The debris were about 2-3 hands high. On the date of occurrence at about 10. 00 a. m. she went to see her sister. She found her main door bolted from inside. She pushed the door but it did not open. She reached the northern boundary wall of her sisters house. She climbed the debri and saw that her sister was lying in the middle room of her house and the appellants, as earlier stated, were there. Ratan had held her legs, Sheetal was pressing her breast part with a part of the stone grinder, Krishna Kumar was pressing her by her head and Sita Ram was inflicting knife injuries. Seeing this, she cried out that Sitaramva, Ratanva, Krishna Kumarava and Sheetalava have killed her sister. On her alarm these persons rushed towards her. Ratan had held her legs, Sheetal was pressing her breast part with a part of the stone grinder, Krishna Kumar was pressing her by her head and Sita Ram was inflicting knife injuries. Seeing this, she cried out that Sitaramva, Ratanva, Krishna Kumarava and Sheetalava have killed her sister. On her alarm these persons rushed towards her. She ran towards East. The appellants thereafter crossed the northern boundary wall and ran towards police lines in the North. The height of the boundary wall was 5- 6 feet. She did not pay any attention to the presence of Arti inside the house till then. Many women arrived at the scene of occurrence. She had also seen Shambhu Nath Sharma and other persons near the tap. They came to the front door. On her call Arti opened the door. They all entered the house. The inner latch of the door was about 2-2 1/2 feet high from the base. She found her sister lying in the middle room near its internal door. Her clothes were upset and her blouse was torn. It was also stated that on her chest one part of stone grinder was lying. A red Gamachha was tied on her neck. There were injuries on her person and knife injury was also there on her neck. In the meantime Shambhu Nath Sharma also reached there and told Sita Ram, Ratan, Krishna Kumar and Sheetal were seen running towards police lines. Their clothes were stained with blood. Kailash alias Om Prakash also arrived there. She got her report prepared from him. It is Ex. Ka-1. This report was carried to the police station by her brother Hira Lal Srivastava. She admitted that from the southern door, the females and the children of Ratan Chand used to visit the house of Prabhawati. All children of the deceased other than Arti were school going. She denied that Arti was only 3 year old at the time of occurrence. She claimed that she was 3 1/2 or 4 years old. According to her Munna @ Jai Prakash is step son of Prabhawati. The father of the appellants Sita Ram and Ratan are real brothers. Sita Rams father is Chitamani and Ratans father is Laxman Prasad. She admitted that she had purchased some land from Dwarika Prasad Dubey, uncle of these appellants, for the construction of her house. Sale-deed was executed 15-16 years ago. The father of the appellants Sita Ram and Ratan are real brothers. Sita Rams father is Chitamani and Ratans father is Laxman Prasad. She admitted that she had purchased some land from Dwarika Prasad Dubey, uncle of these appellants, for the construction of her house. Sale-deed was executed 15-16 years ago. According to her the sale-deed was for 3-3 1/2 biswa of land. She further stated that the sale-deed was for the entire land which fell in the vendors share. The land which she obtained through sale-deed was a joint property. She pleaded ignorance that this land was a joint holding of three brothers. She further admitted that the land was measured in her presence. When she asked whether it was measured before the sale-deed or after, she failed to respond. Whether at the time of measurement all the brothers were present she did not answer it. She failed to disclose the boundaries of her land. She denied that she had occupied more land than the area of the land mentioned in the sale-deed. When Jai Chand and Chinta Mani raised an objection, she told that her house was almost complete so she would pay the price of excess land the subject matter of the dispute between them. She also denied that just 4-5 months before the incident she asked Chinta Mani and Jai Chand to sale some more land of theirs to her. She denied that she refused to pay the current price for it but was ready to pay the old price which they refused to accept. She denied that she was running a tea stall and claimed that it was run by her servants. She admitted that she used to go to her shop to take the account. Her stop used to open at 6. 00 a. m. and close at 7. 00-8. 00 p. m. She stated that she was going to the house of Prabhawati frequently. She admitted that to go to her sisters house she first will go to the East then to the South thereafter to the West and after walking some distance in the West again would turn to the South, to reach the house of her sister. She claimed that the distance of her house and the house of the deceased is 20-25 steps. The defence has suggested this distance to be 250-300 steps which was denied by her. She claimed that the distance of her house and the house of the deceased is 20-25 steps. The defence has suggested this distance to be 250-300 steps which was denied by her. It is admitted to her that the deceased was third wife of Badri Lal Srivastava. After the death of Prabhawati after 5-6 months he married another lady. His first wife died leaving her son Munna @ Jai Prakash. Second wife is alive but they had separated before the marriage with Prabhawati. Prabhawati was married to him some 12-13 years ago. According to her Badri Lal Srivastava reached the spot within 30- 45 minutes. She had not asked any one to call Badri Lal Srivastava and who went to call him was not known to her. Till this date she did not know who called him. When he came to the spot, she was weeping in the inner Court yard. Before the arrival of Badri Lal Srivastava, her brother Hira Lal, P. W. 2, Kailash @ Om Prakash, P. W. 4 and her sister-in-law arrived at the scene of occurrence. When Badri Lal Srivastava came to the spot, Hira Lal and Kailash were there. Hira Lal reached the spot just 5-7 minutes after the arrival of Kailash to the spot. The deed body was dispatched at about 4. 00 p. m. Hira Lal went to the police station few minutes past 10. 00 a. m. Some 10-15 minutes after the report was ready he left for the police station. Om Prakash did not go there. Police arrived at the scene of occurrence within 45 minutes. Kailash did not write anything on the dictation of police. Ratan Chand admittedly, according to her, was arrested on the date of occurrence but was unable to give the time of his arrest. According to her police remained upto 4. 00 p. m. on the spot. Her statement was recorded at about 11. 00 a. m. When she was dictating this report, Hira Lal and Badri Lal were not there. No one other than she and Kailash were present. It was written in the inner Court-yard in front of the room where the dead body was lying. It was written 4-6 minutes after all the assailants fled away. The report was prepared in 7-8 minutes. She had no conversation with any one before the preparation of the report. No one other than she and Kailash were present. It was written in the inner Court-yard in front of the room where the dead body was lying. It was written 4-6 minutes after all the assailants fled away. The report was prepared in 7-8 minutes. She had no conversation with any one before the preparation of the report. It did not pass her mind why this murder was committed before the report was scribed. She denied that nothing was told by her to Kailash. She denied that she had dictated to Kailash, "all these 4 have killed her sister when they entered the house finding her alone with a bad intention and attacked her on her resistance and on their failure to satisfy their lust. " She further claimed that apart from Shambhu Nath Sharma, no other person disclosed to her that he saw the assailants running away with blood stained clothes. According to her Shambhu Nath remained in the house till the dispatch of dead body. Shambhu Nath came to the spot 10 minutes after the opening of the main door. He arrived at the spot before she dictated the report. She was informed by Shambhu Nath that he had seen the culprits running away with blood stained clothes before she dictated her report. He did not disclose to her any other fact. Then she stated that he had also stated that Sita Ram was holding blood stained knife. She had claimed that she had disclosed to Kailash, scribe of the report that these facts were told to her by Shambhu Nath but why it is not in the F. I. R. She did not explain. She then stated, Kailash may not have heard. She denied that she was told by many persons that they had seen these persons running away with blood stained clothes. In the F. I. R. she disclosed that several people told her about the abovesaid fact. If it is in the report, she must have dictated it to Kailash but she did not remember it. She further stated that she disclosed that Shambhu Nath informed him all the above facts to the investigating officer in her statement under Section 161 Cr. P. C. If these facts are not written in her statement, the only reason would be that he may have missed to transcribe it. She further stated that she disclosed that Shambhu Nath informed him all the above facts to the investigating officer in her statement under Section 161 Cr. P. C. If these facts are not written in her statement, the only reason would be that he may have missed to transcribe it. She further stated that she did not remember whether she had informed the investigating officer that several people told her about this fact. If this is there in her statement, she may have told. She denied having any knowledge about the bad intention of the accused before she dictated the F. I. R. She claimed that just 2-4 minutes later she learnt about the bad character of the accused. She denied that report Ex. Ka-1 was not dictated by her and prepared it after consultation with the police. She admitted living of 4-5 Munnas in her locality. Relations between Badri Lals son Munna and Prabhawati were cordial. She denied that relations between them were strained. She admitted that Ratan Chands alias is also Munna. It was not dictated in the report because she had given out his real name. She admitted that she did not know that at what time Badri Lal left his house on that day. She claimed that he used to leave his house at about 9. 00-9. 30 a. m. On the date of occurrence she did not carry her young son to her sisters house. She had left her son at her house because her sister-in-law and her married daughter were there. She had no business to go to Prabhawati on the date of occurrence especially when guests were there. She was feeling upset, therefore, she went there. Her health was slightly disturb since morning. She had left for that house after her sons went to school at about 9. 30 a. m. One daughter was to go at about 12. 00 p. m. She denied that this report was got prepared later on after the arrival of police. She admitted that without going on the debris, she could not see the happenings inside the house of the deceased. Debris were also lying in the lane. She had seen the incident from a distance of 3-4 hands from the south of the north boundary wall. She did not remember whether she had shown this place to the investigating officer or not. Debris were also lying in the lane. She had seen the incident from a distance of 3-4 hands from the south of the north boundary wall. She did not remember whether she had shown this place to the investigating officer or not. The houses of Hori Lal, Ram Nandan and Babu Nandan were in the North of the house of Prabhawati. The southern part of Hori Lals house had fallen and its debris were lying there. She had not shown this spot to I. O. She claimed that she cannot say how the investigating officer had shown it is the sight map. She did not disclose this fact in her F. I. R. This is also missing in her statement to the investing officer. She admitted that neither in her report nor in her statement to the investigating officer, this fact that when the accused rushed towards her she called out their names is mentioned. She could not offer any plausible explanation for this omission and stated that she might have forgotten. She stated that she had gone to the debris herself. She denied that she had disclosed to Kailash that she had gone to the lane. She came to the side of the wall from the lane and gave a call towards inner Court yard. Receiving no response she tried to see inside by standing near the wall. Her explanation is that Kailash had wrongly written it. She denied that she did not hear the cries of Arti. She denied that she did not call Arti because she thought that they were sleeping. For this very reason she had not called Prabhawati also. According to her Kailash is residing in Ardali Bazar. Shambhu Nath Sharma is living near Kutchehari. Hira Lals house is adjacent to her house. Hira Lal had constructed his house on the adjacent land. She stated that she did not remember that any one was sent to call Kailash. She stated that she did not see whether sister-in-law of Prabhawati and Kailash came together. According to her Shambhu Nath Sharma is a barber. He used to come to her house to dress the hair, therefore, she knew him. She was knowing him for the last 2-3 years. She stated that she did not see whether sister-in-law of Prabhawati and Kailash came together. According to her Shambhu Nath Sharma is a barber. He used to come to her house to dress the hair, therefore, she knew him. She was knowing him for the last 2-3 years. She admitted that she told the investigating officer that the above accused persons in order to commit dacoity entered the house of deceased and on her resistance, they killed her so that they may not be named. She admitted that apart from Sita Ram, she also knows his eldest brother by his name. She did not know any alias name of his eldest brother or other brothers. She did not know their actual names. She knows only names of two brothers of Ratan. She did not know even the names of other brothers. She also did not know their alias names. She denied that Sita Ram was employed in a Tullu Pump factory at the time of occurrence and he used to leave his house at about 9. 00 a. m. According to her Ratan Chand and Sita Ram were living in the same house. She denied any enmity between deceased and Chintamanis family. She admitted that there were several papita trees inside the Court yard. They are 6-7 feet in height and further stated that they were 10 feet in height. She stated that papita trees were on the same side where she was standing but were below the boundary wall. She did not see any Angauchha tied on the neck of her sister from the boundary wall. She did not see that Sita Ram was inflicting any blow of knife. He was holding a knife and his hand was raised. She denied that on account of enmity of land she had involved Sita Ram falsely. She admitted that even after the doors were closed there remains some space in the main door from where inside could be visible but she did not see from this gap because rooms were not visible. She went towards back because she thought that the deceased may be in the inner Court yard. She started from her house at about 10. 00 a. m. It took her 4 minutes to reach her sisters house. She did not stay at the main door but immediately moved towards its back. She went towards back because she thought that the deceased may be in the inner Court yard. She started from her house at about 10. 00 a. m. It took her 4 minutes to reach her sisters house. She did not stay at the main door but immediately moved towards its back. She had not heard any cries coming from inside the house. Some 4-6-10 persons were there. Shambhu Nath Sharma was amongst them or not she did not remember. When Shambhu Nath Sharma met her only then she knew about his presence. She had no conversation with anyone including Shambhu Nath Sharma. All persons who collected there entered the house when Arti opened the door. People were visiting the house regularly. Within 2-4 minutes some 25-50 persons collected there. She asked these men to leave the house at the time of preparation of the report. She bolted the door from inside. She denied the suggestion that Badri Lal had connection with his 4th wife from before his third marriage and a quarrel regularly occurred between deceased and Badri Lal. Badri Lal after used to beat his wife. She also denied that the husband of Uma Devi, 4th wife of Badri Lal, was alive and was employed in Chandmari Animal Hospital, Varanasi as Compounder. Her first husbands name was Taju Lal. She denied that Uma Devi was living with her husband in other locality. Krishna Kumar had come to his house on leave. He is a married person and has children. She did not know how many brothers and sisters Krishna Kumar has. She claimed that she had seen Krishna Kumar on the roof of Ratan Chands house just a day or two before the incident. She denied that she did not know Krishna Kumar from before and made a false statement against him on being tutored by police. She had not seen any accused in standing position. She is educated upto Class VIIIth. From where the police arrested him, she did not know. She also denied that Sheetal Prasad made an application for removal of her Gumti in Nagar Mahapalika and she had involved Sheetal Prasad due to it. 11. Before discussing the evidence of other witnesses of the circumstances, it shall be relevant to deal with the evidence of Rajendra Singh, P. W. 6, the investigating officer. She also denied that Sheetal Prasad made an application for removal of her Gumti in Nagar Mahapalika and she had involved Sheetal Prasad due to it. 11. Before discussing the evidence of other witnesses of the circumstances, it shall be relevant to deal with the evidence of Rajendra Singh, P. W. 6, the investigating officer. According to him, the F. I. R. was registered on 4-12-1978 at about 10. 30 a. m. It was brought by Hira Lal. The check report was prepared by T. B. Singh. He had identified his writing. Copy of check report is Ex. Ka-3. After registration of the case, the investigation was taken over by him. He claimed that he recorded the statement of Hira Lal at the police station itself but Hira Lal, P. W. 2, contradicts him on this score. According to him he had stayed for only 2-3 minutes at the police station to hand over the written report and immediately thereafter rushed back to the spot. The I. O. had also admitted that Dog Squad and Incharge of Field Unit Scientific Section were also called to the spot. After they had completed the formalities, he had started preparing the inquest memo. The body was sent for post-mortem, as earlier stated, with two constables. Afterwards he had recorded the statements of Smt. Shail Kumari, Km. Arti and the panches witnesses of the inquest and other witnesses. Second statement of Hira Lal was recorded at the spot. Thereafter he had prepared at the instance of Shail Kumari, the site map which is Ex. Ka-13 on the record. After completing all these, he started the search of accused persons but they could not be arrested. On 5-12-1978 he arrested Krishna Kumar Singh, Sheetal and Ratan Chand and examined them. On the pointing out of Ratan Chand, from southern room of his house, he recovered a blood stained Shirt and Pant. These are Exs. 6 & 7. The recovery memo is Ex. Ka-14. Site map of the room from where it was recovered was also prepared. It is Ex. Ka-15 on record. He lodged the accused persons in the lock up on the same day. Its entry was made in the G. D. at Sl. No. 15. Its copy is proved on record as Ex. Ka- 16. It was prepared by Head Moharrir Tej Bahadur Singh. It is Ex. Ka-15 on record. He lodged the accused persons in the lock up on the same day. Its entry was made in the G. D. at Sl. No. 15. Its copy is proved on record as Ex. Ka- 16. It was prepared by Head Moharrir Tej Bahadur Singh. On 15-12-1978, statements of Shambhu Nath and others were recorded. He also learnt that Sita Ram had surrendered in Court and was sent to Jail from there. On 18-12-1978, statement of Arti under Section 164 Cr. P. C. was got recorded. On 25-12- 1978, the recovered articles from the spot as well as from the accused Ratan Chand were sent to the chemical examiner for his report. Charge-sheet was submitted on 31-12-1978. He admitted that the report of another cognizable offence was registered at the police station on 4-12-1978 before registration of the present case and afterwards also. He had denied that the report was prepared under his guidance and is anti-timed. He admitted that the Dog Squad is used in recoveries of the looted properties and identification and arrest of accused as well. The dog squad was called on phone by him. He had taken help of the dog squad in working out cases in several districts. The dog squad is generally used to work out the cases of theft, dacoity and murder. In all those cases he had taken help of dog squad to locate the culprits. The persons belonging to the field unit had drawn a photograph of the dead body. He denied the suggestion that till he received the information of the incident at the police station, names of the culprits were not known. For this reason the help of dog squad was sought. 12. On 4-12-1978 he started from the police station at about 10. 45 a. m. He reached the spot straight. He admitted that on reaching the spot and until the preparation of the inquest memo, he had not recorded the statements of any eye-witnesses. Here he is very clearly contradicted by P. W. 1, whose statement is that her statement was recorded at 11. 00 a. m. According to this witness, the eye-witnesses were busy. He recorded statement of Shail Kumari P. W. 1 at 4. 30 p. m. He denied the suggestion that it was delayed because the names of the accused were not known. 00 a. m. According to this witness, the eye-witnesses were busy. He recorded statement of Shail Kumari P. W. 1 at 4. 30 p. m. He denied the suggestion that it was delayed because the names of the accused were not known. He denied that even the report was not ready until then. He admitted that the time of conclusion of the inquest is written in the last column of the inquest memo. In the inquest memo, time of reaching the spot is shown as 11. 00 a. m. No time of initiation of the inquest proceeding is shows in the the memo. The preparation of the inquest memo was started after 2-21/2 hours of his reaching there. In the meantime the dog squad and field unit were doing their job. He had followed the Dog Squad for some distance but had not gone to every place where the dog had gone. Within 2-4 minutes of his reaching the village, the dog squad also came there. The dog squad was being pressed into service immediately. As long as the Incharge dog squad had not informed him that the accused persons could not be traced, he did not start the inquest proceedings. He denied the defence suggestion that after the Incharge Dog Squad informed him that the identity of the culprits could not be established only thereafter the report was prepared in consultation with him and the inquest proceedings were started. 13. Till the dispatch of the dead body, the houses of none of the accused were searched. He claimed that before calling the dog squad he already knew that the accused were named in the F. I. R. He had not made any entry any where either in the Rojnamcha or in the case diary about the fact of calling of the dog squad. He admitted that he called the dog squad in order to apprehend the culprits. According to him, the smell of blood takes the dogs in the direction to which the culprits had gone. He stated that dog squad and field unit did not make any report to him in writing. He had not received any help from the dog squad and the field unit in working out the case. He admitted that there is no entry in the case diary that the dog squad came to the spot after his arrival. He stated that dog squad and field unit did not make any report to him in writing. He had not received any help from the dog squad and the field unit in working out the case. He admitted that there is no entry in the case diary that the dog squad came to the spot after his arrival. He denied the defence suggestion that the dog squad came to the spot alongwith field unit before his arrival. Then he stated that the dog squad and the field unit came after his arrival. According to him constables from Ardali Bazar Chowki also came to the spot. C. O. (City) had reached the spot simultaneously. He denied the suggestion that before his arrival, dog squad, field unit and C. O. (City) were present at the spot. He denied the suggestion that dog squad and field unit are used in those cases in which the culprits are unknown. 14. The statement of Badri Lal was recorded by him on 4-12-1978 at about 6. 30 p. m. Badri Lal came to the spot after his arrival. He did not search the houses of the appellants for the recovery of stolen articles. He had also got the statement of Shail Kumari recorded under Section 164 Cr. P. C. This was done by him because the accused persons were threatening and they would have dismantled the evidence. This report was made by him on 18-12- 1978. Badri Lal in between had never met him. Badri Lal, father of Arti, was present when her statement under Section 164 Cr. P. C. was recorded. He did not come inside the Court room. He very frankly admitted that all along his investigation he made no attempt to find out as to when Badri Lal reached his office and when left it. According to him he did not find it necessary to do. He denied the defence suggestion that Ratan Chand was arrested on 4-12-1978 at about 4. 30 p. m. but this fact is admitted by P. W. 1, Shail Kumari and other witnesses, therefore, further suggestion that recoveries made on 5-12-1978 at his instance were false is also denied by him. He denied the defence suggestion that Ratan Chand was arrested on 4-12-1978 at about 4. 30 p. m. but this fact is admitted by P. W. 1, Shail Kumari and other witnesses, therefore, further suggestion that recoveries made on 5-12-1978 at his instance were false is also denied by him. He further admitted that he made no enquiries about the antecedent of Badri Lal as admitted to P. W. 1, Shail Kumari, that deceased Prabhawati was his third wife and within 6 months of her demise, he married Uma Devi, as his fourth wife. 15. Regarding the site plan, his statement is that the place from where Smt. Shail Kumari saw the incident was shown in the site map by him at spot a. Just in the North of this spot is the house of Ram Nandan and Babu Nandan. Adjoining the houses of Ram Nandan and Babu Nandan is the place where the debris were. Smt. Shail Kumari did not disclose to him any place South of the Khandahar (debris ). He further admitted that she did not disclose to him the name of Shambhu Nath amongst those who informed her the fact that they had seen the assailants running away with blood stained clothes and Sita Ram with blood stained knife. He had proved her statement, "several people informed her about this fact". He proved it as Ex. Kha-1. He admitted that Shail Kumari did not disclose that she had seen the incident by standing on the debri. According to him Shambhu Nath had told him in his statement that a little after him Badri Lal also reached the spot. It is Ex. Kha-2 on record. He had also stated to him that "after disclosure of this fact, I immediately left the spot and went towards Pandeypur in connection with some work. A copy of this statement is Ex. Kha-3. The other piece of evidence which was disclosed to him by this witness is "to the north-west corner of the Badri Lals house, a tap was there. It is Ex. Kha-4 on the record. It is further statement of this witness that "accused persons were running away to the North. " He had further proved the statement of Shambhu Nath recorded by him that "he came to Mohalla Khajuri on some personal work". It is Ex. Kha-6 on record. It is Ex. Kha-4 on the record. It is further statement of this witness that "accused persons were running away to the North. " He had further proved the statement of Shambhu Nath recorded by him that "he came to Mohalla Khajuri on some personal work". It is Ex. Kha-6 on record. He also proved the statement of this witness that "when many people of the locality collected, he also was present there and it was seen that Smt. Prabhawati Devi, wife of Badri Lal is dead. " It is Ex. Kha-7. He had stated that statement of Shambhu Nath was recorded on 15-12-1978 at the spot. Before that he could not get hold of Shambhu Nath, therefore, his statement was not recorded. He learnt the name of Shambhu Nath from the statement of Badri Lal recorded on 4-12-1978 in the evening. He denied the suggestion that no statement of Shambhu Nath was recorded by him but he being friend of Badri Lal, his statement was falsely recorded. He also denied the suggestion that the case was not worked out fairly and honestly by him. 16. He further stated that he learnt that Krishna Kumar is in Army after his arrest. He denied the defence suggestion that he was arrested when he was on the train about to proceed to join his duty. He also denied the suggestion that he got him arrested from the Railway Station through S. I. Sarvjeet Ram. He admitted that after his arrest identity card, railway warrant and other papers were taken into possession and handed over to his father. He further stated that he had informed the Army Headquarters about his arrest. When was it sent he did not remember. He denied that no such information was sent by him. He also denied the suggestion that Krishna Kumar was arrested by him on suspicion because his alias name was Munna. He also denied the suggestion that he arrested him on account of insistence of Shail Kumari. 17. Thus, from the statement of this witness it is clear that he had not started the investigation till the dog squad and field unit informed him that they could not locate the culprits. The formalities of preparation of inquest, site map, recording of evidence of witnesses was actually begun after he was so told by them. 17. Thus, from the statement of this witness it is clear that he had not started the investigation till the dog squad and field unit informed him that they could not locate the culprits. The formalities of preparation of inquest, site map, recording of evidence of witnesses was actually begun after he was so told by them. Generally the dog squad were pressed in service by the police when murder or any other offence is blind and absolutely no clue is available. Denial of this fact by this S. I. therefore is not acceptable to us. It is also admitted to him that the dog squad initiated its working after his arrival meaning thereby the field unit and dog squad had already reached the spot before he came there. Regarding Circle Officer, who is an officer of the rank of Dy. Superintendent of Police his statement is that he reached simultaneously with him but from the later part of his admission, it is clearly revealed that he also reached the spot with members of field unit and dog squad. It is admitted to him that they used to work out the cases of theft and murder with the help of dog squad to workout the identity of the accused persons. Why investigation was not commenced for more than 2-2 1/2 hours till the dog squad and field unit of scientific department concluded its operation he offered no explanation. His statement leaves hardly any room for doubt that it was not so done because the identity of the assailants was known till then. The investigation started actually after it was settled by P. W. 1. His failure to find out when Badri Lal reached his office and when he left it and came to the spot was a crucial feature. Recording of the statement of Shambhu Nath, who is a very important witness in proving the chain of circumstance, on 15-12- 1978 is also a crucial factor for which no proper explanation is offered by him. Why the statements of Km. Arti, a 4 years girl, and Smt. Shail Kumari were got recorded under Section 164 Cr. P. C. The only explanation is that she was suspect of her support of the story set out by him is indigestible. There is no evidence that P. W. 1 was ever threatened by any accused. She did not herself say. Arti, a 4 years girl, and Smt. Shail Kumari were got recorded under Section 164 Cr. P. C. The only explanation is that she was suspect of her support of the story set out by him is indigestible. There is no evidence that P. W. 1 was ever threatened by any accused. She did not herself say. It clearly proves that she was not sure of her support atleast. 18. At this very juncture it shall be relevant to refer to the statement of P. W. 2, Hira Lal. He stated that while he was returning back from Ardali Bazar, he saw a crowd near Prabhawatis house and on enquiry some lady informed him that Prabhawati was murdered. There he was told that Raj Kumar, son of Jai Chand, Sita Ram alias Jhingan son of Chinta Mani, Sheetal son of Hira Kushwaha and Krishna Kumar son of Rajendra Singh had killed her. Amongst those who informed him Shambhu Nath was also there. According to him, Shail Kumari was dictating her report and also was weeping. The report was taken to the police station Cantt. by him. The report was concluded within a minute and half after his entry inside the house. He further stated that at the police station he stayed hardly for 3-4 minutes. Immediately after handing over the report, he returned to the spot. He did not do anything at the police station after handing over the report. He came back from the police station within 12- 13 minutes. After 1/2 an hour of his return, the police reached the spot of occurrence. It was a large contingent comprising of 4-5 Inspectors. Till the dispatch of the body, the Sub-Inspector remained inside the house. He also admitted that the dead body was sent for post-mortem at about 4. 00 p. m. He stated that he had not seen the Sub-Inspector recording the statement of any one till then. He had stated that his statement was recorded by the investigating officer at about 12. 00-12. 30 p. m. According to him when his statement was recorded Shambhu Nath was not there. Thus from his statement it is abundantly clear that his statement was recorded at the police station is falsified completely. The is why a second statement of this witness according to I. O. was recorded on the spot after the departure of the dead body. Thus from his statement it is abundantly clear that his statement was recorded at the police station is falsified completely. The is why a second statement of this witness according to I. O. was recorded on the spot after the departure of the dead body. Thus, it is absolutely clear from the facts and circumstances that the investigation proceeding began after the dog squad and scientific field unit failed to work out or identify or apprehend the real culprits. The police till then waited with its fingers crossed since it had no clue to the identity of the real culprits. 19. In these circumstances, the second submission made by learned Counsel for the applicant that the F. I. R. is anti-timed and was prepared in consultation with the investigating officer and in all probability with Badri Lal, husband of the deceased Prabhawati requires a serious consideration. The circumstance that have been earlier discussed in relation to the testimony of witnesses P. W. 1 in harmony with the statement of the investigating officer are as follows : (i) Hira Lal P. W. 2 claimed that he had gone to the police station and hardly stayed for 2-3 minutes there meaning thereby that the facts of recording of his statement by the police at the police station stands wholly falsified. This necessitated the clarification from I. O. that a second statement of his was also recorded at the spot. (ii) Whether the information was oral or written is also highly doubtful. The probable situation is that Hira Lal went to the police station to inform about the incident only. He had not carried till then any written report. Had it been there, a check report should have been prepared and its copy must have been handed over to the witness. No such fact was averred by any witness. The constable who had prepared the report was not produced in the trial. Calling of dog squad and the field unit of the scientific department further ensures this inference. It is common knowledge that the field unit of the scientific department and dog squad are always pressed into service in this country when the incident that has to be worked out is a blind one and the offenders are not known. Calling of dog squad and the field unit of the scientific department further ensures this inference. It is common knowledge that the field unit of the scientific department and dog squad are always pressed into service in this country when the incident that has to be worked out is a blind one and the offenders are not known. The fact that the inquest memo was prepared after receiving the information orally from the dog squad and the field unit that they could not locate the culprits is of great relevance. There is no evidence that they were also used in the search of the looted property. No search of the house of any appellant was conducted after 5-12-1978. Even the site plan was prepared after the dispatch of the dead body. Yet another fact that the dead body reached the mortuary at about 8. 30 p. m. but the papers reached the doctor next day at about 11. 00 a. m. is also available to the distress of the prosecution. We have examined the written F. I. R. , Ex. Ka-1. It shows that the case vide Case Crime No. 769 under Section 302 I. P. C. alone was registered. The inquest memo also shows only 302 I. P. C. It clearly proves that the F. I. R. had not reached the police station at 10. 30 a. m. as alleged by the prosecution. The inference that it was prepared after 12. 30 p. m. is clear and ambiguous. 20. In the inquest there is no mention of any weapon. According to it the death occurred by strangulation the neck by an Angauchha. In the later part at Sl. No. 2 it is shown that death had occurred due to strangulation by Angauchha and also putting the stone grinder on her chest. No name of accused is mentioned in the inquest memo. Even the section of the offence is not mentioned. Number seems to have been entered subsequently. These facts and circumstances when read in their proper perspective in league with the statement of Smt. Shail Kumari leave no room for any doubt that this F. I. R. could not be the handiwork of Smt. Shail Kumari, P. W. 1. It was dictated by an expert and not by a village woman. These facts and circumstances when read in their proper perspective in league with the statement of Smt. Shail Kumari leave no room for any doubt that this F. I. R. could not be the handiwork of Smt. Shail Kumari, P. W. 1. It was dictated by an expert and not by a village woman. This conclusion is further fortified from the facts that the incident was said to have taken place at 10. 00 a. m. Yet no person of the village was chosen to draft the report of this magnitude (two pages) but O. P. Srivastava. Om Prakash Srivastava was not the resident of this Mohalla. He is nephew of the deceased and Smt. Shail Kumari, P. W. 1. He was residing in front of the house of Mahabir Mishra. He is a resident of Ardali Bazar. He must have received some communication and, therefore, reached the spot. He is scribe of this F. I. R. It will take, in the least, one hour in sending some one to Ardali Bazar to call him from there. According to him, he reached the spot on being sent by his mother to contact Prabhawati and enquire from her when she will go to attend the Gauna ceremony of her son. Admittedly Smt. Shail Kumari was his maternal aunt (Maami ). His mother was her Nanad. Gauna ceremony was of his younger sister. This explanation was given for his presence at 10. 00 a. m. This explanation does not appeal to us. According to him his statement was not recorded by the investigating officer on the date of incident. He claimed that when he went inside the house of Badri Lal, some 8-10 persons were present there. He stayed inside the house only for 10-12 minutes. He became badly upset by the sight so came out of the house. He stayed outside the house for an hour. When other relatives also reached there, he again went inside the house and remained there till the dispatch of the dead body. He denied the presence of dog squad but admitted that he had not seen any Inspector making any enquiry from any person regarding the incident. He further admitted that he had not seen any Inspector doing anything to investigate the case. He denied the presence of dog squad but admitted that he had not seen any Inspector making any enquiry from any person regarding the incident. He further admitted that he had not seen any Inspector doing anything to investigate the case. It is further stated by him that he had not taken down the dictation made by Smt. Shail Kumari in her own words but had written the same in his own language. Although he stated that he had written that what was told by Shail Kumari. Shail Kumari did not corroborate him. According to him she dictated the report. These are the circumstances that strengthen our opinion that this F. I. R. was not ready at the time as alleged by the prosecution. It, in all probability, was prepared after the dog squad and the field unit reported that they failed to apprehend or locate the identity of the culprits. The F. I. R. apparently was prepared in collusion with the police thereafter and these accused persons were included in it on account of the fact that Km. Arti had disclosed the name of Munna so only those persons bearing the name Munna were introduced in the case apart from the persons who were inimical to Shail Kumari. Smt. Shail Kumari had admitted the purchase of the land from the family of Ratan Chand and Sita Ram. She had clearly admitted that she had not paid the price of the extra land which she unauthorisedly merged in her construction beyond the area sold to her. She also admitted that Ratan Chand had made an application for the removal of her Gomti. Thus, so far as the Ratan Chand and Sita Ram are concerned, they may have been introduced in the case on account of this enmity at her instance. Other two were involved because they bore the alias names Munna and were living in the vicinity of the deceased. 21. Both P. W. 2 , Hira Lal and P. W. 3, Shambhu Nath are chance witnesses. Their evidence does not inspire confidence for the reason that they claimed to have reached the spot at the nick of the time for no valid reason. So far as Hira Lal, P. W. 2, is concerned, he claimed that he went in search of a shop for himself to establish his photography business in this town. Their evidence does not inspire confidence for the reason that they claimed to have reached the spot at the nick of the time for no valid reason. So far as Hira Lal, P. W. 2, is concerned, he claimed that he went in search of a shop for himself to establish his photography business in this town. As per his own admission he was already doing this business at Jaunpur. He had gone to Lahurabeer locality for that purpose. As per his admission he started from the house of his sister at about 8. 30 a. m. He visited one shop which, according to him, was not sufficient for his business. It was a small shop, therefore, he had not taken much time in the conversation with its owner. Thereafter he had visited an Army Officer and had examined his shop. He had held a detail conversation with the owner. The shop was in front of a Bank but he did not get the shop. According to him, he had taken another shop 3-4 months ago in other locality, Dithori Bazar. He admitted that he held conversation with the Army Officer for about half an hour. Then he had gone to take a cup of tea to the tea stall, he sat there examining possibility for the shop of photography. He stayed there for half to quarter of an hour and thereafter started for Khajuri Colony. He disclosed to the investigating officer in his statement under Section 161 Cr. P. C. that he was going back from Ardali Bazar to Khajuri locality. He went to Ardali Bazar and had held conversation with one person near Banaras Bank and then a conversation with an Army Officer for half an hour and thereafter he stayed for nearly 45 minutes at the tea stall. In all it must have taken him nearly 2 1/2 hours. Thus he cannot be in the locality of the incident before 11. 00 a. m. Moreover, the alias name of Sita Ram is not written in his statement. He did not know how many brothers Sita Ram has. He also did not know the names of any one of them. He had not named Shital Prasad in his statement to the investigating officer. He did not name the person who informed him about the murder of his sister. He did not know how many brothers Sita Ram has. He also did not know the names of any one of them. He had not named Shital Prasad in his statement to the investigating officer. He did not name the person who informed him about the murder of his sister. He falsely stated that his statement was recorded by investigating officer at about 12. 30 p. m. His statement is that he stayed at the police station for 3- 4 minutes further corroborates our inference that he had made cryptic oral communication of murder at the police station only. His admission that Shambhu Nath only told the names of the miscreants and not their parentage. How then parentage of the accused has occurred in his statement was unexplained. He had not disclosed to the investigating officer presence of Arti inside the house. He had stated that he did not meet the Sub-Inspector at the police station. He was unable to tell whether Shambhu is known as Shambhu Prasad or Shambhu Nath. He did not know the name of Krishna Kumar. He learnt that Krishna Kumar is employed in Indian Army for the last 14-15 years after the occurrence. He did not know where the family of Krishna Kumar is living. Therefore, we do not intend to place any reliance on his testimony on the question of lodging of F. I. R. before 10. 30 a. m. and presence at the spot at the relevant time of Shambhu Nath or Shambhu Prasad and his passing on any information about the culprits running away with blood stained clothes and the knife to him or P. W. 1 Shail Kumari. His explanation that he came to Varanasi 4-5 days earlier does not stand to our reason. The probability is that either he had come on the next day in order to attend the delivery of his wife or was sent for immediately and reached there sometime during the afternoon from Jaunpur where he was running a photography shop. 22. So far as Shambhu Nath or Shambhu Prasad is concerned, he is an acquaintance of Shail Kumari and Badri Lal, husband of the deceased. Neither Hira Lal, P. W. 2 named him nor he was specifically named in the F. I. R. or in her statement to the investigating officer. P. W. 1, Shail Kumari is an important witness of the case. Neither Hira Lal, P. W. 2 named him nor he was specifically named in the F. I. R. or in her statement to the investigating officer. P. W. 1, Shail Kumari is an important witness of the case. Her statement discredits the testimony of this witness. He claimed that he was going to Lalpur for repairing of his instrument and when he crossed the D. I. G. colony, Pokhari (small pond) and reached the Government tap, heard cries of a woman. The woman was crying that Sitaramava, Shitalava, Krishna Kumarava and Ratanva have killed his sister and they are running away. A little thereafter he saw the culprits jumping from the boundary wall of the deceaseds house and running towards police lines. From his own examination-in-chief, the situation that emerges out gives us an impression that he is a totally got up witness. According to him, a woman was shouting that Sitaramva, Shitalava, Krishna Kumarava and Ratanava had killed her sister and are running away. I clearly indicates that they were fleeing, therefore, his second statement in the examination-in-chief itself that a little thereafter he saw these accused persons jumping from the boundary wall is nothing but a cock and bull story. P. W. 1 Shail Kumaris statement makes his statement improbable. Her statement is that as soon as she raised alarm, these accused persons ran towards her. She ran to the east and these accused persons jumped the boundary wall and ran away towards the police lines. She did not name Shambhu Nath as the person standing nearby. He was an acquaintance of her. Had he been there at that time, she would not have missed to notice him and name him. Apart from it, from her statement it is apparent that before any person reached the spot, the assailants had already taken to their heels. According to his 161 Cr. P. C. statement after disclosing the fact of his having seen the assailants running towards the D. I. G. colony he left the spot for Pandeypur but now in the trial Court he stated that he was going to Lalpur when he saw the incident. He is a resident of Ardali Bazar. He has a shop at Kutchehary Golghar. The police lines is 10- 15 steps from his house. He is a resident of Ardali Bazar. He has a shop at Kutchehary Golghar. The police lines is 10- 15 steps from his house. From his statement in paragraph 4 it is apparent that he had no reason to go towards Khajuri from Ardali Bazar. He claimed that from Ardali Bazar a pathway passes through the crossing and reaches Lalpur but he did not go by it. It is clearly confounding. He preferred a longer route than the shorter one. He had also shifted the Pokhari and in contrast claimed in his deposition that when he saw these accused persons, he was near the Government tap. In his statement to the investigating officer he had disclosed that he had gone to Mohalla Khajuri for his personal work. It now stands wholly belied. He admitted that he had not informed the investigating officer that he was going to Lalpur for getting his instruments mended. He claimed that he failed to identify the voice of the lady who raised alarm. The place from where he heard the alarm, Badri Lals house was not visible from there. Therefore, for the reasons discussed above, we find it difficult to place any implicit reliance on his testimony. Three of the witnesses examined in this case are closely related to each other. They are P. W. 1, Shail Kumari, P. W. 2, Hira Lal, her brother and P. W. 4, Om Prakash Srivastava, her nephew. Shambhu Nath, P. W. 3 is also a very good acquaintance of the family of P. W. 1 and the deceased. 23. The question that engages the mind of the Court seriously is non-examination of any witness of locality. Some of them must have seen the incident or the subsequent events on arrival of P. W. 1, Shail Kumari. They definitely could be the witnesses of the circumstances such as running away of the culprits, the time of occurrence, time of preparation of the report and sending the report to the police station, who carried it, the time when the police arrived on the spot and why the dog squad was called alongwith field unit of the scientific department. Despite our best efforts we are not able to scan any reason for failure of the prosecution to examine any public witness of the locality. It was a populous locality. Despite our best efforts we are not able to scan any reason for failure of the prosecution to examine any public witness of the locality. It was a populous locality. The only reason that we could work out from the evidence and circumstances is that in all probability they were not ready to support a false case of involvement of innocent persons. 24. Thus, the circumstances available in the case such as that the deceased Prabhawati was third wife of Badri Lal and Badri Lal had soon after the occurrence ( 6 months) brought another lady Uma Devi as his fourth wife. The suggestion was that he was carrying on with this lady, illicitly, for a considerable length of time. The failure of the investigating officer to make an enquiry about the time when Badri Lal reached his house, reached his office and when he left it are also very important facts. Whether he left his office with the permission of a senior officer on receiving the information and whether he went to his office at all are equally important questions for the prosecution to investigate. The abovesaid circumstances raise an accusing finger against the husband and about the complicity of the police with Badri Lal. With pain we have to advent (sic) to the situation. This is a pitiable state of affair that the cases like murders are investigated in such a lack luster manner by the police of this State. Even the investigation has not been fairly and honestly conducted. Two persons bearing alias name Munna were roped in this case on account of the statement made by the daughter of the deceased Km. Arti, a girl aged about 4 years. Her statement under Section 161 Cr. P. C. was recorded and reproduced at page 15 of this paper book. Her statement is reproduced hereunder: "my name is Arti. My mother was killed by Munna. He is Malas Munna. She has pointed out towards the house of Munna and said that this is the house of Munna. My mother was knitting a sweater. She was knitting it in the Aangan (in courtyard ). She was beaten in the middle house. Her mother was weeping. " She pointed out by raising her hand the wall used for his escape. She was taken to inner Courtyard. When she was asked how many people killed her, she raised 4 fingers". My mother was knitting a sweater. She was knitting it in the Aangan (in courtyard ). She was beaten in the middle house. Her mother was weeping. " She pointed out by raising her hand the wall used for his escape. She was taken to inner Courtyard. When she was asked how many people killed her, she raised 4 fingers". Why this girl was not, therefore, examined during the trial when she was the sole eye-witness from the beginning till the end astounds us. Although she was only 4 years old but her statement could have strengthened the prosecution case. The statement of her shows that her mother was alive when she was beaten. The statement under Section 161 Cr. P. C. or 164 Cr. P. C. is of no help to the prosecution. Her statement under Section 164 Cr. P. C. is also reproduced at page 17 of this paper book. She was, at the time of statement, in the laps of her father Badri Lal Srivastava who disclosed his name as father of the girl to the Court. She stated that she did not know the numbers but said that Munna killed her mother. There were others also with him. Munna also assaulted her on the face. Munna belong to Mala. The Magistrate wrote that the witness could not understand the question and did not answer them properly. This is the reason why she was not examined. In law, statement of a person recorded under Section 164 Cr. P. C. cannot be used as substantive evidence. It could be used only for the purpose of corroboration or contradiction of its maker. But since Km. Arti was not examined as a witness before the trial Court, her above statements cannot be made use of by us for any purpose whatsoever. Moreover, according to her Munna alone killed her. Who was Mala was never probed despite the fact that I. O. was taken to that house by her. In these circumstances non production of the local witnesses assumed serious significance. So far as P. W. 1 is concerned, her testimony is not worthy of any implicit reliance. She too was a got up witness. 25. The fact that any robbery was committed is also a highly doubtful circumstance. This was stated in her 161 Cr. P. C. statement. In these circumstances non production of the local witnesses assumed serious significance. So far as P. W. 1 is concerned, her testimony is not worthy of any implicit reliance. She too was a got up witness. 25. The fact that any robbery was committed is also a highly doubtful circumstance. This was stated in her 161 Cr. P. C. statement. Had there been any robbery committed in the house that fact must have found mention in the First Information Report but this is not there in the First Information Report. The First Information Report clearly disclosed the reason behind the murder that is the bad character and antecedent of these 4 appellants. They committed her murder as they failed to satisfy their sex lust. She suspected that they had entered the house of her sister to commit rape but having failed on account of resistance of hers, they killed her. She did not know anything about their antecedent before the incident. The witnesses who reached the spot told her about it. She did not name any one of them. The cause behind the murder now set up is robbery. No attempt was made by the investigating officer to search the house of any of the accused despite the presence of these accused. The prosecution alleged in the trial a new motive behind the murder. It has been changed to make participation of these appellants plausible. 26. Coming to the arrest and recovery from Ratan Chand of the blood stained Shirt and Pant. Our conclusion is that from the statement of P. W. 1, Ratan Chand was arrested on 4-12-1978 in the evening after the departure of the dead body but the statement of P. W. 6, the investigating officer shows that he was arrested on 5-12-1978 and the recovery of Shirt and Pant were made thereafter at his pointing out from his house. No independent witness of these recoveries was produced in the trial. The conduct of the investigating officer has already been seriously dis-approved by us. It makes it difficult for us to place any implicit reliance on his evidence regarding the factum of arrest of this appellant in the particular manner in the absence of any independent corroboration. So far as the fact of arrest of Krishna Kumar is concerned, we have serious doubts about it. It makes it difficult for us to place any implicit reliance on his evidence regarding the factum of arrest of this appellant in the particular manner in the absence of any independent corroboration. So far as the fact of arrest of Krishna Kumar is concerned, we have serious doubts about it. We find no valid reason to disbelieve his statement under Section 313 Cr. P. C. that he was arrested on suspicion because he also bear alias name Munna from the train when he was to leave from Varanasi for attending his duty. He was posted at Panchmarhi. He was leaving on 5th so as to be present at his place of posting on 6th. Whether any money was demanded or not from him that we do not want to dwell upon but suffice it to say we have reason to believe that fact as well. There is no doubt in our mind that he was involved in the incident on account of Arti naming one Munna relative of Mala. There is no evidence that Arti identified the house of this appellant nor she identified him as Munna before any one. The house of Ratan Chand no doubt is in the vicinity of the house of the deceased and since no evidence is there that she pointed to his house and since her statement could not be taken into consideration by us, we have no evidence to hold him guilty. 27. The medical evidence specially stomach and small intestine contents also paint a different picture. It renders time of occurrence open to serious doubt. Stomach contained 1/2 Kg. of rice and Dal. Small intestine contained digested food. Large intestine was empty. Bladder was also empty. There were a large number of blunt object injuries on her person. None of the accused was armed with blunt object. Presence of an Angauchha around her neck and the part of a grinder on her chest indicate that an attempt to strangle her or suffocate her was made. The injuries were caused after she became unconscious. According to Shail Kumari, P. W. 1, three persons pressed her and one was standing and wielded a knife. She did not see any assault. Moreover, she went to backside. The dead body was lying inside the middle room. Its door open in the inner courtyard so she could not see the above acts from backside. According to Shail Kumari, P. W. 1, three persons pressed her and one was standing and wielded a knife. She did not see any assault. Moreover, she went to backside. The dead body was lying inside the middle room. Its door open in the inner courtyard so she could not see the above acts from backside. Her statement is most unnatural and improbable in these circumstances from the above facts the time of occurrence could not be conclusively fixed. 28. The appellants were not prosecuted for the offence of robbery or theft by the trial Court itself. They were simplicitor prosecuted for the offence of murder read with Section 34 I. P. C. 29. In the circumstances, discussed above, we have no option but to acquit these appellants. 30. In the light of abovesaid discussions and observations we allow this appeal. The appellants are acquitted of the charge under Section 302/34 I. P. C. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are hereby discharged. Appeal allowed. .