Judgment [Per Hon'ble Rajesh Tandon, J.] 1. Present appeal has been filed against the judgment and order dated 11-9-1997 passed by Sri Rama Kant Sharma, the then Additional Sessions Judge, Nainital convicting the accused appellant Smt. Surjit Kaur for the offence punishable under section 302 read with 34 I.P.C. and sentencing her to undergo imprisonment for life. 2. Brief stated, the prosecution story is that deceased Inder Singh was chaukidar in Sood Farm at village Chandanpura, P.S. Bajpur, District Udham Singh Nagar. On 9-8-1996 at 1.00 AM at P.S. Bajpur, his wife Smt. Surjit Kaur lodged written report to the effect that she along with her husband and paramour Gurmukh Singh were sleeping at the roof of the house. A dispute took place between her and her husband Inder Singh regarding birth of the children. She found at 11 P.M. that her husband committed suicide by strangulation. 3. On the basis of written report entry in the G.D. (Ex.ka13) was prepared and S.I. Nirvikar (C.W.2) went to the spot. He could not prepare inquest report due to darkness and in the morning he prepared inquest report (Ex.ka-10) and sealed the dead body. He sent the dead body for post mortem examination to L.N. Bhatt Hospital, Kashipur. On the same day S.I. Nirvikar received a written report Ex.ka-1 from P.W.1 Gurcharan Singh, In that report he mentioned that in the evening of 9-8-1996, he alongwith Sukhdev Singh went to the residence of deceased Inder Singh who happens to be the son of his Mausi (mother's sister's son). Inder Singh was employed as Chaukidar in the farm of Sud. He alleged that Gurmukh Singh son of Kernail Singh, resident of Dilari P.S. Milak Khanam, District Rampur also used to live with Inder Singh and he developed illicit relation with Smt. Surjit Kaur. On account of quarrel between husband and wife, Inder Singh left his children with his mother in village Chandanpura. On the fateful night both the witnesses P.W.1 Gurubachan Singh and P.W.2 Sukhdev Singh slept at the ground floor and Inder Singh and his wife were sleeping on the roof of the room. At 11.30 informant Gurbachan Singh heard the noise of Inder Singh and he went on the roof of the room. On the fateful night both the witnesses P.W.1 Gurubachan Singh and P.W.2 Sukhdev Singh slept at the ground floor and Inder Singh and his wife were sleeping on the roof of the room. At 11.30 informant Gurbachan Singh heard the noise of Inder Singh and he went on the roof of the room. He saw a knot of turban (Safa) at the neck of Inder Singh and Gurmukh Singh and Smt. Surjit Kaur were pulling the tow ends of the turban in opposite direction to tighten the knot on the neck. When the informant interrupted, Smt. Surjit Kaur threatened him. On the basis of the written report Ex.ka-1 check F.I.R. was prepared at 5.35 P.M. on 10-8-1996, at the police station and a case under section 302 I.P.C. was registered against the accused. The accused persons were arrested by the Police and after completing investigation charge sheet has been submitted against the accused persons. 4. During pendency of the trial accused Gurumukh Singh died and case against him stand abated. 5. The case was committed to the Court of Sessions. The learned Sessions Judge framed charge under section 302 read with section 34 of the Indian Penal Code against accused Smt. Surjit Kaur. The accused pleaded not guilty and claimed to be tried. 6. The prosecution to prove its case against the accused has examined P.W.1 Gurubachan Singh, P.W.2 Sukhdev Singh and P.W.3 Pramod Kumar. The learned counsel for the defence has admitted the genuineness of the post mortem report (Ex.ka-2), G.D. entry (Ex.ka-3), site plan, inquest report and charge sheet (Ex.ka-6 to Ex.ka-16) and formal proof of these documents have been dispensed with. Later on the Investigating Officer and Dr. B.C. Joshi who had conducted autopsy on the dead body were summoned by the Court and were examined as Court witnesses. 7. P.W.1 Gurubachan Singh was examined on 10-04-1997 and has stated in his statement on oath that on 9-8-1996 he along with Sukh Dev Singh went to the house of Inder Singh. They reached the house of Inder Singh at about 6.00 PM. He has aiso stated that Gurumukh Singh had developed illicit relation with the wife of Inder Singh. Children of Inder Singh used to live with the mother of Inder Singh. They reached the house of Inder Singh at about 6.00 PM. He has aiso stated that Gurumukh Singh had developed illicit relation with the wife of Inder Singh. Children of Inder Singh used to live with the mother of Inder Singh. He along with Sukhdev Singh slept on the ground floor while Inder Singh, his wife Surjit Kaur and Gurumukh Singh were sleeping on the roof of the room. At 11.00 in the night on hearing hue and cry of Inder Singh, they proceeded towards the roof and saw that Surjit Kaur and Gurumukh Singh were strangulating the neck of Inder Singh with a turban. When, he interfered both the accused had asked them to go away unless they (accused) would quarrel with them. Thereafter this witness went to Chandpur village for informing the mother of Inder Singh regarding this incident. Further he was again examined by the trial Court on 21-7-1997 and he has stated that he himself had not seen any occurrence. He lodged the report on the instigation of other people. The witness was declared hostile by the prosecution and opportunity was given to the prosecution to cross-examine the witness. 8. P.W.2 Sukhdev Singh was also examined on 10-4-1997. In his examination-in-chief he supported the case of prosecution and has repeated the statement made by P.W.1 Gurubachan Singh but when he was further cross examined on 21-7-1997 he disowned his previous statement and has stated that he had not witnessed the incident. This witness was also declared hostile by the prosecution and learned State Counsel was permitted to cross examine the witness. 9. P.W.3 Pramod Kumar was examined as Court's witness he proved written report CW-1 which he has prepared on the dictation of Smt. Surjit Kaur. 10. C.W.1 Dr. B.C. Joshi was also examined as Court's witness. He has conducted autopsy on the dead body of Inder Singh. On post mortem examination the following ante mortem injuries were found on the dead body of the deceased : 1- Ligature mark 2.00 cm. in width extending whole of the neck except on right side below the incertoid process. The mark is situated above the thyroid cartilage between the larynx and chin, directed obliquely upwards following the line of mandible, the mark is caused by the Safa (which is sealed and handed over to same constable). in width extending whole of the neck except on right side below the incertoid process. The mark is situated above the thyroid cartilage between the larynx and chin, directed obliquely upwards following the line of mandible, the mark is caused by the Safa (which is sealed and handed over to same constable). On close examination the mark is seen like a grove, base is hard and parchment like margins red and congested, colour in deep chock/ate brown. The face is tilted towards the left side. On dissection of ligature mark the subcutaneous tissue is dry, whilte and glistering the corner of thyroid cartilage fractured extravasations of blood present around the tissues. 2- Abrasion 2 cm. x 2 cm. on angle of left elbow. In the opinion of the doctor the death was caused by asphyxia as a resulted of ante mortem hanging. 11. S.I. Nirvikar Sinqh was examined as C.W.2 He has stated that accused Surjit Kaur has submitted a report on 10-08-1996 alleging therein that her husband had committed suicide. He went to the place of occurrence in the same night but he could not prepare inquest report due to darkness. He prepared panchayatnama at the spot and took photograph of the dead body. He has stated that he received report from Gurumukh Singh at 11.00 A.M. on the next day. He proved written report as Ex.ka-1. 12. Accused Smt. Surjit Kaur in her statement under section 313 Cr.P.C. has denied the prosecution allegations and has stated that she has been falsely implicated in the case. 13. On appreciation of evidence on record the learned Sessions Judge held Smt. Surjit Kaur guilty of the offence punishable under section 302/34 I.P.C. and sentenced her to undergo imprisonment for life. Feeling aggrieved the present appeal has been filed. 14. We have heard Sri J.S. Virk, Advocate, Amicus curiae for the accused and learned Government Advocate and have gone through the record. 15. In the present case Sessions Judge based his findings on the ocular testimony of P.W.1 Gurubachan Singh and P.W.2 Sukh Dev Singh, who were declared hostile by the prosecution. He also based his findings on the medical evidence and statement of C.W.2 S.I. Nirvikar. He also placed reliance on the photographs of the place of occurrence. 15. In the present case Sessions Judge based his findings on the ocular testimony of P.W.1 Gurubachan Singh and P.W.2 Sukh Dev Singh, who were declared hostile by the prosecution. He also based his findings on the medical evidence and statement of C.W.2 S.I. Nirvikar. He also placed reliance on the photographs of the place of occurrence. The Sessions Judge also held that the motive of the accused to commit murder was the illicit relations between accused Smt. Surjit Kaur and Gurumukh Singh. Now it has to be seen whether the evidence adduced by the prosecution would be sufficient to establish the guilt of the accused and whether the evidence of the hostile witness can be relied upon to fasten the guilt of murder on the accused. 16. The first information report paper no. 16-ka Ex.CW-1 was lodged by accused Surjit Kaur herself stating therein that her husband had committed suicide at 11.00 P.M. in the night of 9-8-1996. After the receipt of this report police visited the place of occurrence in the same night at about 2.30 AM. S.I. Nirvikar Singh C.W.2 has stated that another report (Ex.ka-1) was handed over to him at 11.00 AM on 10-8-1996 by P.W.1 Gurubachan Singh on the basis of which case under section 302 I.P.C. was registered against Smt. Surjit Kaur and Gurumukh Singh. Thus according to the own version of Investigating Officer written report EX.ka-1 was handed over to him with a delay of 12 hours. However, P.W.1 Gurbachan Singh has stated that report was lodged at Police Station at 5.00 PM. P.W.-2 Sukhdev Singh has given similar statement regarding lodging of the report at police station. No explanation of such a delay in lodging report against the accused has been given from the prosecution side. 17. Informant Gurubachan Singh has mentioned in his report that he was present at the house of deceased Inder Singh at the time of incident and has witnessed incident but instead of raising alarm and informing the Police he went to another village and thereafter written report was prepared with deliberation and consultation which itself was scribed by a petition writer. 18. In the present case there are two written reports in which two different versions of the death of deceased Inder Singh have been given. 18. In the present case there are two written reports in which two different versions of the death of deceased Inder Singh have been given. In the report Ex.CW-1 which was lodged just after the occurrence in the police station, accused Surjit Kaur wife of deceased has mentioned that the cause of death of Inder Singh was suicide while in the report Ex.ka-1 lodged by P.W.1 Gurubachan Singh the cause of death was mentioned to be strangulation by Smt. Surjit Kaur and Gurumukh Singh. Thus in view of two different version regarding the death of Inder Singh in this case, the medical evidence plays an important role. 19. The defence has admitted the genuineness of post mortem report Ex.ka-3 and formal proof of post mortem report has been dispensed With. However, the Sessions Judge has examined Dr. B.C. Joshi (C.W.1) who has conducted autopsy of the dead body. The doctor has stated in his examination in-chief that ante mortem injury may be sustained in suicide and not in the case of murder. He has stated as under : 20. The doctor has further stated in his cross-examination that in his opinion it may be a case of suicide. 21. Thus the medical evidence does not corrobotate the prosecution case that the death of deceased Inder Singh was caused by the accused by strangulation in the manner alleged by the prosecution. 22. The learned Sessions Judge was not justified by drawing the inference of murder by strangulation from the statement of CW.1 Dr. B.C. Joshi, who has stated that one cannot commit suicide by tying a cloth on his neck and by pulling the same from both the sides by hands. In view of the version given by the doctor supporting the case of the accused, the Sessions Judge was not justified to draw different inference of the same. It is a settled law that if evidence gives two different inferences, the inference supports the accused must be accepted. 23. The prosecution case stands on the ocular testimony of P.W.1 Gurubachan Singh and P.W.2 Sukhdev Singh. Initially both these witnesses were examined in the trial Court on 10-4-1997 and they supported the prosecution case but on their further cross examination on 21-7-1997 both the witnesses have disowned their previous statements and they were declared hostile by the a prosecution. 24. The prosecution case stands on the ocular testimony of P.W.1 Gurubachan Singh and P.W.2 Sukhdev Singh. Initially both these witnesses were examined in the trial Court on 10-4-1997 and they supported the prosecution case but on their further cross examination on 21-7-1997 both the witnesses have disowned their previous statements and they were declared hostile by the a prosecution. 24. There are several pronouncements by the Apex Court that the evidence of a witness cannot be discarded merely because he is declared hostile, however his evidence must be scrutinized with care and caution. 25. P.W.1 Gurubachan Singh has stated in his cross-examination that he had never gone to the house of deceased Inder Singh prior to the incident or after the incident. He stated that they left the place of occurrence at 6 or 7 A.M. In the morning. He further stated that they left for village Chandanpura at 2.00 AM in the night. This witness also stated that he reached village Chandanpura at 8.00 in the morning. He along with the mother of Inder Singh went to the Police Station at about 12.00 O'clock. He has categorically stated that report was lodged at Police Station at 5.00 PM after post mortem examination, whereas the Investigating Officer C.W.1 has stated that P.W.1 Gurubachan Singh handed over written report to him at the place of occurrence at 11.00 AM. At another stage in his cross-examination this witness has stated that Gurumukh Singh went to police station for giving information. However, according to him he and Sukhdev Singh left the place of occurrence as soon as accused asked them to go away. He stated as under: 26. This witness stated In his cross-examination that P.W.2, Sukhdev Singh had not gone to Chandanpura with him to inform the mother of the deceased and he left aside at Bamkhera at 7.00 AM in the morning. He has clearly stated that Sukhdev Singh has not gone to Police Station with him for lodging the report. 27. Another eyewitness Sukhdev Singh (P.W.2) has stated in his cross-examination that he had not gone to the place of occurrence with the Investigating Officer nor he showed anything to the Investigating Officer at the spot. This witness also contradicted the statement of P.W.1 Gurubachan Singh that he had not gone to village Chandanpura and left his company at Bamkhera. 27. Another eyewitness Sukhdev Singh (P.W.2) has stated in his cross-examination that he had not gone to the place of occurrence with the Investigating Officer nor he showed anything to the Investigating Officer at the spot. This witness also contradicted the statement of P.W.1 Gurubachan Singh that he had not gone to village Chandanpura and left his company at Bamkhera. He stated that he along with Gurubachan Singh went to the house of Inder Singh on foot, whereas Gurubachan Singh (PW1) has stated that they went there by bicycle. P.W.1, Gurubachan Singh stated that Sukhdev Singh had not gone to the Police Station with him for lodging the report but P.W.2 Sukhdev Singh has stated that he had gone to police station with Gurubachan Singh. P.W.2, Sukhdev Singh has also stated that his statement was recorded by the Investigating Officer after one month of the occurrence. This witness also declined the facts mentioned in his statement under Section 161 Cr.P.C. Thus even if it is presumed, that these witnesses were won over by the accused and they became hostile and disowned their previous statements, even then their previous statements. are full of contradictions and variations on the material points and no reliance can be placed on them. The contradiction in the statements of alleged eyewitnesses regarding their leaving the place of occurrence, reaching to village Chandanpura, time and manner of lodging the report at Police Station and their unnatural conduct on seeing the accused committing murder of their relative (son of Mausi), cannot be said to be the normal and the learned Sessions Judge was not justified in ignoring them. 28. The learned Sessions Judge also placed reliance on the photographs of the dead body for holding the accused guilty of murder but the photographs were taken after changing the position of the dead body. S.I. Nirvikar C.W.2 stated that when he reached the place of occurrence the dead body was lying on the ground but photographs were taken after keeping the dead body on cot. Thus no conclusion can be drawn from the photographs taken after changing the position of the dead body. Thus the learned Sessions Judge has not properly considered taking note of the posture of dead body shown in the photographs for arriving at a conclusion. 29. Thus no conclusion can be drawn from the photographs taken after changing the position of the dead body. Thus the learned Sessions Judge has not properly considered taking note of the posture of dead body shown in the photographs for arriving at a conclusion. 29. In view of above, the prosecution case has become highly doubtful and the testimony of eyewitnesses becomes unreliable and unworthy of eredence and as such no conviction can be based on the evidence of such witnesses. In their cross-examination both P.W.1 Gurubachan Singh and P.W.2 Sukhdev Singh have stated that deceased Inder Singh was a liquor addict and even he sold his entire agricultural land and then had to work as Chaukidar. Thus considering the conduct of the deceased and his having gone bankrupt, possibility of his committing suicide cannot easily be thrown aside. 30. In view of the above discussion, we find that it is highly unsafe to place reliance upon the testimony of alleged eyewitnesses who later on turned hostile and have declined their previous statements throughout. The medical evidence did not at all support the prosecution case and the statements of the prosecution witnesses are contradictory on the material aspects of the case. Thus the conviction of the appellant cannot be sustained and the appeal deserves to be allowed. 31. The appeal is allowed. The order of conviction and sentence dated 11-9-1997 passed by the II Additional Sessions Judge, Nainital is set aside and the appellant is acquitted. The accused is in jail. She be released forthwith, if not wanted in any other case. 32. Let a copy of this judgment along with lower Court's record be sent to the trial Court for necessary action.