Aheibam Ningol Thongam Ongbi Thaba and ors. Vs. the State of Manipur - Court Judgment

Excerpt:
- - he was of the opinion that the injuries were ante-mortem and that the death was due to shock and haemorrhage as a result of the cranial injuries, which might have been caused by a sharp edged weapon like a dao. endorsed the letter to p. his evidence is that he had been a ferry owner in ningthem niden at seirou for about 5 or 6 months, that he heard that the deceased was murdered, that in the early morning on the day on which he got the news of the death of the deceased the two accused persons and a small child crossed the imphal river in his ferry, that they carried some bundle and that they went away like travellers. 15. thus, the fact that the appellants who were present in the house of the deceased in the night of the occurrence suddenly left his house in the day break is a..... c. jagannadhacharyulu, j.c.1. criminal appeals 8 of 1966 and 7 of 1966 are appeals by the accused 1 and 2 in sessions trial no. 11 of 1965 on the file of the sessions court, manipur at imphal, against their conviction under section 302 read with section 34, i. p. c, and the respective sentences of death and imprisonment for life passed on them,2. criminal reference no, 19 of 1966 was made by the sessions judge under section 374, cr. p.c. for confirmation of the sentence of death passed by him on the first accused.3. both the appellants (residents of heiningpok village) were charged under section 302 i.p.c. read with section 34 i. p. c, that at about 1-00 a. m. or sometime thereafter on 16-10-63 in the house of ahebam alias thongam gopal singh in heiningpok village they had a common.....

Judgment:

C. Jagannadhacharyulu, J.C.

1. Criminal Appeals 8 of 1966 and 7 of 1966 are appeals by the accused 1 and 2 in Sessions Trial No. 11 of 1965 on the file of the Sessions Court, Manipur at Imphal, against their conviction under Section 302 read with Section 34, I. P. C, and the respective sentences of death and imprisonment for life passed on them,

2. Criminal Reference no, 19 of 1966 was made by the Sessions Judge under Section 374, Cr. P.C. for confirmation of the sentence of death passed by him on the first accused.

3. Both the appellants (residents of Heiningpok Village) were charged under Section 302 I.P.C. read with Section 34 I. P. C, that at about 1-00 a. m. or sometime thereafter on 16-10-63 in the house of Ahebam alias Thongam Gopal Singh in Heiningpok Village they had a common intention to cause his death and that in furtherance of the same they murdered him by volunarily causing grevous injuries to him with sharp weapons.

4. Both the appellants denied having committed the offence and pleaded not guilty to the charge.

5. The case of the prosecution briefly according to the charge sheet and as brought out in the evidence is as follows:

(a) Late Thomgam Gopal Singh of Heiningpok, was a fisherman, aged about 57 years. The second accused Thaba alias Tombi Devi was his wife. She is in her youth still being aged about 30 to 40 years. She has a small daughter named Ningol Leima aged 6/7. years by Gopal Singh. The first accused Cheton Singh was employed by Gopal Singh to work in his own farm land near the house of Gopal Singh. He is also a youth being of the same age as the 2nd accused. Both the accused and Ningol Leima were living with Gopal Singh in his house. The appellants developed illicit intimacy. The deceased was chastising them.

(b) The deceased and P. W. 3 (Gambhir Singh) a co-villager placed angles to catch fish in Imphal river at a distance of about one mile from the house of the deceased in the evening of 15-10-63. Both of them returned to their respective houses in the same evening.

(c) Both the accused and the child crossed the ferry at Ningthem Hiden near the house of the deceased in the ferry boat of P. W. 6 (Mangi Singh) at about dawn on 16-10-1963 and went away.

(d) At about 6-00 a. m., P. W. 3 (Gambhir Singh) went to the house of the deceased and called him from outside. But, as he received no reply he proceeded further to the house of the deceased and found its door ajar. He heard groaning sound inside the house and found that the door was closed from inside with a piece of bamboo kept leaning against the 'Chatai' door. He peeped through the opening of the door and found the deceased groaning lying in a pool of blood. He did not find the other inmates of the house. He crossed the river in a boat and brought P. W. 5 (Chandan Singh) and P. W. 7 (Tondon Singh) and others from the other side of the river to the house of the deceased. They removed the bamboo which was put up as a prop against the 'Chatai' door and entered into the house. Sometime later, P. W. 1 (Sanajaoba Sarma), the immediate neighbour of the deceased, who went to Seirou to purchase some goods to sell in his shop, came. He too saw the deceased lying in a precarious condition.

(e) The villagers-P. W. 1 (Sanajaoba Sarma) P. W. 3 (Gambhir Singh), P. W. 5 (Chandan Singh), P. W. 7 (Ibochaoba Singh) and others suspected both the accused, as the villagers did not find them in the house. They called for them and searched for them. But they could not be traced. P. W. 1 (Sanjaoba Sarma) left the village for the Police Outpost, Sugnu, which is about 4 or 5 miles away from the village to give a complaint. On the way, he learnt that the deceased Gopal Singh died. He gave Ext. A/1, report (written by P. W. 2 T. Birendra Singh) to P. W. 14 (N. Sham Singh), the Officer in charge of Sugnu Outpost. P. W. 1 (Sanajaoba Sarma) stated in Ext. A/1 that he suspected that both the accused must have murdered the deceased, P. W. 14 (N. Shamu Singh) sent Ext. A/1 to P. W. 12 the Station House Officer of Mayang Imphal, which is about 27 miles away from the Outpost, as the latter had no jurisdiction to register the case, P. W. 14 (N. Shamu Singh) proceeded to the house of the deceased. He held inquest as per Ext. A/2 over the dead body of Gopal Singh in the presence of witnesses viz. P. W. 1 (Sanajaoba Singh), P. W. 4 (S. Ananda Singh and others who attended it. He seized M. O. 1 Nogun (sacred thread), M. O. 2 (Mala). M. O. 3 (Khudeidhoti), from the body of the deceased and M. O, 4 broken piece of gold chain (which was found lying on the bed where the deceased lay) under Ext. A/3. He prepared Ext. A/12, plan of the scene of offence and Ext. A/12-1 index. He called out for the inmates of the house and sent men to search for them. But, the inmates could not be traced. He then sent the dead body to Sugnu and handed over the records to P. W. 12 (L. Tomchou Singh), the Officer in charge of Mayang-Imphal Police Station. P. W. 12 (L. Tomchou Singh) registered Ext. A/1 on 17-10-63 in F. I. R. Case No. 140 (10) 63 under Section 302 I.P.C. against both the accused. He despatched the dead body to the Civil Hospital in Imphal, through constable Ibomacha Singh. He sent information to all the Police Stations as per Ext. A/9 about the abscondence of the accused persons and alerted them. He handed over the investigation on 23-10-63 to P. W. 13 Dy. S. P. Shri Shyamkishore Singh.

(f) P. W. 11 (Namoijam Shyamkishore Singh), S. H. O., Churachandpur received the information that the accused persons were absconding. He and his Assistant P. W. 8 (A. Biramangol Singh got information on 10-5-64, that both the accused were hiding in an interior village, which is about 40 miles away from Churachandpur, P. W. 8 (A. Biramangol Singh) proceeded with his force in a jeep on 11-5-64. He travelled in a jeep for two hours and then proceeded on foot along a footpath from 8-30 a. m. till 4-30 a. m. of the next day. He found both the accused living in a newly built shed at the outskirts of a small hamlet called Malnum containing 10 to 20 houses. He arrested them and brought them to Churachandpur Police Station at about 8-30 p. m. on 13-5-64. The accused were handed over to P. W. 13 (Shyamkishore Singh), the Investigation Officer.

(g) P. W. 9 (K. Gopal Singh) R. M. O., Civil Hospital in Imphal, conducted the postmortem examination over the dead body at about 3-30 p. m. on 17-10-63. He found the following 9 external injuries:

(i) One transverse incised wound 2 1/2' x 2' bone deep on the middle area of the right patellar region; (ii) one-longitudinal incised wound 2 1/2' x 2' x bone deep on the lateral side of the right patella, the lower end tappering; (iii) one incised wound 3' x 2' x bone deep on the lateral medial surface of the upper one-third of the right arm; (iv) one longitudinal incised wound 3' x 1' x bone deep on the left side of the occipital protuberance; (v) one transverse incised wound 2' x 1' x bone deep just above the shoulder joint : (vi) one transverse incised wound 2' x 1' x bone deep on the posterior aspect of the right wrist; (vii) one longitudinal incised wound 4 1/2' x 1' x bones deep on the middle area of the nose and the frontal bone extending from just above the upper lip; (viii) one incised wound 4' x 3' at bone deep on the left side of the face extending from two inches above the lip upto the left eye-brow and (ix) one oblique incised wound 4 1/2' x 2' x bone deep extending from just below the nasal bone upto the area just above the left ear.

On dissection, he found the following injuries:

(i) one compound fracture of the nasal bone, nasal spine of frontal bone and middle area of the frontal bone corresponding to injury No. 7 above, (ii) one compound fracture-of the maxilla and zygomitic bone corresponding to injury No. 8 above; (iii) a compound fracture of the maxilla and frontal bone corresponding to injury No. 9 above; (iv) membranes of the brain ruptured and (v) one compound fracture of the right patella corresponding to injury No. 1 above. He was of the opinion that the injuries were ante-mortem and that the death was due to shock and haemorrhage as a result of the cranial injuries, which might have been caused by a sharp edged weapon like a dao.

(h) P. W. 13 (Shyamkishore Singh), the Investigating Officer sent the accused persons on 19-5-64 to the Sub-Divisional Magistrate, Imphal West, with Ext. A/10 (letter) to record their confessional statements. The S. D. M. endorsed the letter to P. W. 10 (Y. Ibatombi Singh, Second Class Magistrate), specially empowered to record the confessional statements. Both the accused persons gave Ext. A/6 and Ext. A/5 confessional statements admitting having murdered the deceased and having absconded.

6. The case of the first accused appellant in Criminal Appeal No. 8 of 1966 is that he was living in a hill village Malnum since June, 1963, that in or about October, 1963, the other accused Thaba Devi came to that place with a small girl with some goods for sale, that she was sent by some Nagas, that she stayed with him and that when they were residing the Police came and arrested them. It is also his case that he made the confessional statement Ext. A/6, on account of torture by the Police Officer and under their instructions.

7. The case of the second accused Thaba Devi (appellant in Criminal Appeal No. 7 of 1966) is that while she and the deceased were sleeping the first accused stealthily entered into the house and cut her husband with a dao, that he forcibly took her and her small daughter and ferried them with the assistance of P. W. 6 (Mangi Singh) and that she was arrested by the Police when she was living with the 1st accused in Malnum hill village. She admitted that she made Ext. A/5, confessional statement before P. W, 10 (Sri Y. Ibotombi Singh), but stated that she made the statement under the instructions and threats of the first accused.

8. The learned Sessions Judge held that the circumstantial evidence in the case corroborated by the conduct of the accused in absconding from the house of the deceased immediately after the occurrence and further corroborated by Ext. A/5, confessional statement of the second accused proved that both the appellants murdered the deceased with the common intention of removing the obstacle in their way to live together in illicit intimacy and found them guilty under Section 302 read with Section 34 I.P.C. He sentenced the first accused to death and the second accused to undergo imprisonment for life.

(After considering the evidence of P. W's. 1, 3, 5 and 7 in Paragraphs 9 to 13, the judgment proceeds : )

14. Then, there is the evidence of P. W. 6 (Mangi Singh) who is a ferry-man at Ningthem Nidem in the village Seirou. His evidence is that he had been a ferry owner in Ningthem Niden at Seirou for about 5 or 6 months, that he heard that the deceased was murdered, that in the early morning on the day on which he got the news of the death of the deceased the two accused persons and a small child crossed the Imphal river in his ferry, that they carried some bundle and that they went away like travellers. His evidence shows that there was no other place of ferry to cross the Imphal river, that when they crossed the river, there was no sunrise and that the sun rose about 1 hour or half an hour after they crossed the river. Though he stated that rarely people crossed the ferry before sunrise, sometime people did cross the ferry in the day break. But, according to him he was collecting 10 nP. per head and, as the two accused offered only 10 nP., he did not take the same on account of pity. He deposed that he did not know the deceased and that he did not see the accused persons before they crossed the river in his ferry. When he was confronted with Ext. B/2 which shows that he stated before P. W. 13 (Shyam Kishore Singh) that he knew the accused and the child, he stated that he did not remember having stated as per Ext. B/2.

In the cross-examination he deposed that he did not see the accused in the period between the incident of crossing the river in his ferry and when he gave the evidence in the Committing Magistrate's Court and that he identified the two appellants as the persons, who crossed the ferry in the morning of the day of occurrence. But, in his further cross-examination by the counsel for the accused he stated that he saw both the accused in the Police Station in Sugnu, after they were arrested Then the Assistant Public Prosecutor treated him as hostile and cross-examined him with the permission of the Court. Again, he deposed that he did not see them in the Police Station and that he did no see them at any time between the day on which they crossed the river by ferry and the day of their appearance in the Committing Magistrate's Court. The evidence of P. W. 6 (Mangi Singh) is very material. It shows that in the day break both the accused and the child crossed the river in the ferry boat of P, W. 6 (Mangi Singh). Subsequently the deceased was found lying on his bed with injuries. As such, they must have gone away from the house of the deceased immediately after the occurrence.

With regard to the evidence of P. W. 6 (Mangi Singh), the contention of the learned Counsel for the appellants is twofold. His first contention is that the evidence of P. W. 13 (Shyamkishore Singh), Investigating ' Officer shows that P. W. 13 (Shyamkishore Singh) examined P. W. 6 (Mangi Singh) on 11-4-64 while the occurrence took place on 16-10-63 and that, therefore, his evidence is belated. The evidence of P. W. 6 (Mangi Singh) himself is that he was examined by the Police 2 or 3 days after the accused crossed the river in his ferry. So, he must have been examined by the Police on or about 18-10-63 or 19-10-63. He was examined by the Sessions Court on 10-1-66. about 2 and 1/2 years after the occurrence took place. Ext. B/2, copy of the statement of P. W. 6 (Mangi Singh) recorded by P. W. 13 (Shyamkishore Singh) bears the date of '11.11' The year was not mentioned. The contention of the learned Assistant Public Prosecutor is that P. W. 6 (Mangi Singh) was examined by P. W. 13 (Shyamkishore Singh) on 1-11-63 as can be seen from the Case Diary and not on 11-11(1963) found in Ext. B/2 or on 11-4-64 as stated by P. W. 13 (Shyamkishore Singh) and that P. W. 13 (Shyamkishore Singh) committed a mistake in speaking to the date of 11-4-64.

Under Section 172 (2) Cr. P.C. any Criminal Court may send for the Police Diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. There are a number of decisions cited by the Assistant Public Prosecutor, which laid down the scope of Section 172 (2) Cr. P.C. In Devi Das v. Emperor AIR 1930 Lah 318 (2), it was held that the diary may be used to find out the indication of sources and lines of enquiry and the names of persons whose evidence may be material for the purpose of doing justice between the State and the accused. It was also held that should the Court consider that any date, fact or statement referred to in the Police Diary is, or may be material, it cannot accept the diary as evidence, in any sense, of such date, fact or statement and that before any date, fact or statement referred to in the diary is considered, it must be established by evidence. Vide also Deo Lal Mahton v. Emperor AIR 1933 Pat 440, Naguba Appa v. Namdev : AIR1954SC50 and Bholaratn Dalmia v. State : AIR1955Cal234 .

The date mentioned in the Case Diary cannot be taken as evidence in the absence of the examination of P. W. 13 (Shyamkishore Singh). But, it has to be noted that P. W. 13 (Shyamkishore Singh) gave reckless and irresponsible answers without any verification. For Ext. B/2 shows '11/11' and evidently must have been of the year, 1963. But P. W. 13 (Shyamkishore Singh) deposed that he examined P. W. 6 (Mangi Singh) on 11-4-64, giving a go-by to '11/11', mentioned in Ext. B/2 11. 11' was evidently mentioned by mistake instead of '1-11'. P. W. 13 did not closely scrutinise the date mentioned by him in his own case diary. So, the evidence of P. W. 6 (Mangi Singh) that he was examined about 2 or 3 days after the appellants crossed the river appears to be true. The second contention of the learned Counsel for the appellants is that P. W. 6 (Mangi Singh) was treated as hostile by the prosecution and that, therefore, his evidence cannot be believed. A reading of the evidence of P. W. 6 (Mangi Singh) shows that he consistently deposed several times that he saw the two appellants on the day on which they crossed the river in his ferry and again in the Committing Magistrate's Court. In the cross-examination by the counsel for the appellants he changed the version and deposed that he saw them in the Police Station in Sugnu in between. Then he was cross-examined by the Assistant Public Prosecutor. So, the discrepancy in his evidence is as to when he saw the appellants for the second time, after they crossed the river in his ferry. The decision in Bhagwan Singh v. State of Punjab 1952 Cri LJ 1131 : : 1952CriLJ1131 , relied on by the counsel for the appellants shows that the previous statement of a hostile witness can be used to contradict his evidence by complying with the formalities of Section 145 of the Evidence Act.

But, in Nisar Ali v. State of Uttar Pradesh : 1957CriLJ550 , it was held that the maxim 'falsus in uno falsus in omnibus' has not received general acceptance in different jurisdictions in India, that the maxim does not occupy the status of a rule of law, that it is merely a rule of caution and that all that it amounts to is that in such cases the testimony may be disregarded and not that it must be disregarded. It was also held that the doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances but that it is not what may be called 'a mandatory rule of evidence'. Vide also Sarjug Prasad v. State : AIR1959Pat66 , wherein it was held that the declaration of a witness as hostile by the Public Prosecutor amounts to a declaration that the witness is adverse or unfriendly to the prosecution and not that the witness is untruthful, that the true rule is that either party may rely upon the evidence of such a witness and that the Court can come to its own conclusion after considering his whole evidence. As such, it is not as though the evidence of P. W. 6 (Mangi Singh) is liable to be rejected on the ground that he was treated as hostile. But, P. W. 13 (Shyamkishore Singh) should have got an identification parade held by a Magistrate to make P, W. 6 (Mangi Singh) identify the appellants. However, the omission on his part to do so does not affect the veracity of the evidence of P. W. 6 (Mangi Singh) that the appellants and the child crossed the river in his ferry early in the day break of the day of occurrence.

15. Thus, the fact that the appellants who were present in the house of the deceased in the night of the occurrence suddenly left his house in the day break is a strong piece of circumstantial evidence and shows that they must have caused the injuries to the deceased and left the house together.

16. The fact that the front door of the house of the deceased was found closed from within the house by means of a bamboo prop leaning against the door also shows that the inmates of the house must have caused the injuries to the deceased. For, the evidence of P. W. 14 (N. Shamu Singh), the Officer in charge of the Police Outpost, Sugnu, who held the inquest on the same day at about 3-30 p.m. shows that there was no other entrance into the house and that there was no hole in the house. So, no outsiders could have entered into the house. The inmates of the house must have put up the prop after closing the door by thrusting their hand through the gap so that nobody could see the deceased lying inside.

17. The fact that M. O. 4, a broken piece of necklace of the 2nd accused was found lying near the head of the deceased is another piece of incriminating circumstantial evidence which shows that she was also involved in the incident. Though the goldsmith, who prepared it was not examined, P. W. 1 (Sanjaoba Sarma) identified it as that of the 2nd accused.

18. The further fact that the appellants, who were the inmates of the house, absconded, that they were not found in the house or near it or in the locality immediately after the occurrence took place is another strong piece of incriminating circumstantial evidence, which shows that the appellants must have committed the crime. The evidence of P. W. 12 (L. Tomchou Singh) the S. H. O. of Mayang Imphal, is that he sent the information to all the Police Stations and the Outposts in Manipur about the abscondence of the appellants. According to that proclamation, P. W. 11 (N. Shyamkishore Singh), the S. H. O. of Churachandpur and his assistant P. W. 8 (Biramangol Singh) A. S. I. collected information. After coming to know that the appellants were hiding in an interior hill village of Malnum, P. W. 8 (Biramangol Singh) went with a force on 11-5-64 to arrest them. His evidence shows that he went in a jeep for about two hours, that then he went on foot from 8-30 A. M. till 4-30 A. M. along a hill path without any break in the journey and that he reached the hill village Malnum, which is a small hamlet situate in the interior parts of the hill lying at a distance of about 40 miles from Churachandpur Police Station, which is itself about 15 miles away from Sugnu Outpost and which by itself is about 4 or 5 miles from the place of occurrence. So, Malnum is situate in the interior parts of the hills at a distance of about 60 miles from the scene of occurrence. P. W. 8 (Biramangol Singh) found that both the appellants were living in a newly erected shed in the outkirts of the hamlet and P. W. 8 (Biramangol Singh) arrested them on 12-5-64 at about 4-30 P. M. P. W. 8 (Biramangol Singh) handed them over to P. W. 11 (N. Shyamkishore Singh) on 13-5-64 who in turn produced them before P. W. 13 (Shyamkishore Singh). Thus, the appellants hid themselves in an interior village in the hills, so that nobody could trace them and lived in it in illicit intimacy. They were thus hiding themeselves for about 7 months before they could be traced and arrested.

The contention of the learned Counsel for the appellants is that their abscondance is not significant. It is significant under the circumstances of the case. If her husband was beaten by somebody else and if she was not a party to any plan, the second accused would not have absconded from her house with her child. She would have stayed in the house and complained to the neighbours that her husband was beaten by others. So also the conduct of the first accused, who was living in the house of the deceased, working under him for cultivation of the land in running away from the (house after the occurrence took place also shows that he must have committed the crime. If he was not responsible for the injuries, he would have stayed in the house and reported the matter to others. So, the fact that both the appellants eloped and absconded from the, house of the deceased immediately after the occurrence took place is a very strong piece of incriminating circumstantial evidence against them.

19. Then, there are Exts. A/6 and A/5, the confessional statements of the appellants 1 and 2 respectively. The evidence of P. W. 13 (Shyamkishore Singh) is that P. W. 12 (L. Tomchou Singh), the S. H. O. Churachandpur Police Station, sent the appellants to him with Ext. A/7 and that on 19-5-64 under the instructions of P. W. 13 (Shyamkishore Singh) the appellants were sent to the Sub-Divisional Magistrate, Imphal West, along with Ext. A/10 (letter) to record their confessional statements. It is also his evidence that the S. D. M. endorsed Ext. A/10 as per Ext. A/10-1 to P. W. 10 (Shri Y. Ibotombi Singh), Second Class Magistrate who was specially empowered to record the confessional statements.

The evidence of P. W. 10 (Y. Ibotombi Singh) is that he was working as Second Class Magistrate of Imphal West in May, 1964, that he was specially empowered to record the con-Sessional statements under Section 164 Cr. P.C. and that on 19-5-64 both the appellants were produced before him. It is his evidence that they told him that they were ready to make the confessional statements that then he gave them due warnings by telling them that they were not bound to make confessions, that the confessional statements would be used against them as evidence if they made the statements, that he informed them that he was not a Police Officer and that he was a Magistrate before whom they could freely make any statement P. W. 10 (Y. Ibotombi Singh) deposed that there was no Police Officer at the time nearabout, that even though the appellants were prepared to make voluntarily confessional statements, he still gave them time for reflection by sending them to Jail through Judicial Custody of his Office Peon and that again on 21-6-64 the Peon of P. W. 10 (Y Ibotombi Singh) produced them before him.

The evidence of P. W. 10 (Y. Ibotombi Singh) is that he administered fresh Warnings to them as before, that he gave them half an hour's time for further reflection, that the 2nd accused stated that she was willing to make confession voluntarily, that he called her again, that as she still replied that she was willing to make the confession voluntarily, he felt satisfied and that he recorded her statement Ext. A/5. It is his evidence that he appended a certificate as per Ext. A/5-1 as required by Section 164, Cr. P.C. Then, it is his evidence that he called upon the first accused. He too stated that he was going to make a confession voluntarily. Still, P. W. 10 (Y. Ibotombi Singh) gave him half an hour's time for further reflection and called him back and recorded his statement after administering warnings as per Ext. A/6. He also appended a certificate as per Ext. A/6-1. It is his evidence that he kept both the appellants in a separate room under the guard of his Office Peon, that nobody was allowed to interview them and that no Police Officer was present when he recorded the confessional statements. He was also definite that no Police escorted the Office Peon in bringing the appellants from the Jail and in taking them back to it and that they were throughout in Judicial Custody.

20. The first accused stated in Ext. A/6 that about 8 or 9 months prior to the date of the confessional statement the deceased requested him to stay with him in his house, that as the first accused had no house he accordingly stayed with the deceased in his house in Heiningpok, that both the accused were going out to the villages for doing business, that after a few days they fell in love with each other and that he pressed her to elope with him leaving her husband, but that the second accused wanted to elope with him on some other day as a necklace was being prepared for her.

He further stated that on one day the second accused went to get the necklace prepared, that the deceased also went in connection with some work, that after they returned home both of them quarrelled, that 2 or 3 days later, the second accused asked the first accused to bring the necklace, that accordingly the first accused went to bring it, but that he was told that it was not yet prepared, that he returned home, that 2 or 3 days later at about 1-00 A. M. a quarrel between the deceased and the second accused started, that the first accused intervened, that the deceased insulted him, that the first accused lost his temper and assaulted the deceased with a wachet, that sub-sequantly the second accused got up from the bed and took up a knife, that the first accused took one dao and that they together beat the deceased with the knife and the dao.

The first accused went on to state in. Ext. A/6 that he assaulted the deceased with a dao twice, once on the head and another on the cheek, that the second accused assaulted him for some time, that in the meantime the child got up and started crying, that the appellants threatened her, that when the appellants threatened her she stopped weeping, that thereafter the appellants threw away their weapons into the river and crossed the river, that they reached Churachandpur, that they boarded a bus and reached Ningthoukhong, that they went to the house of the sister of the first accused Mani Devi, that thereafter they went to a hill village situate on the western side of Ningthoukhong, that they put up for one night at that place, that they spent some nights in some of the houses, that finally they reached the village Malnum and stayed in it for about 5 or 6 months and that the Police party came and arrested them.

The second accused stated in Ext. A/5 that about 8 months prior to the death of her husband the first accused came to her house along with the deceased and stayed in it, that in a few months later they fell in love with each other, that when deceased came to know of their love, he abused them frequently and that to get rid of him both the accused planned that they should kill him and run away to some place. She further stated that in the night of the occurrence, the first accused struck him with dao several times, that she also struck him 4 times with a dao, that thereafter they ran away with the child from the place, that they threw their daos into the river and went to several villages, that they spent several nights in many houses, that finally they settled down in Malnum village and that after 6 months they were arrested by the Police.

21. The 1st accused retracted his confession before the Committing Magistrate and also the Sessions Judge. The 1st accused stated before the former as can be seen from Ext. A-13, that he was tortured by the Police of Churachandpur and that he did not make the confession voluntarily. Regarding Ext. A-6, there are several infirmities. The accused were arrested on 12-5-64 at about 4-30 P. M. and produced before P. W. 10 on 19-5-64. It is no doubt true that P. W. 8 might have taken one day for the journey to produce the accused before P. W. 11 on 13-5-64. They might have been handed over to P. W. 13 (Dy. S. P.) on 14-5-64. But, the accused were not produced before P. W. 10 the Judicial Second Class Magistrate immediately. They were produced subsequently before him on 19-5-64. The confessional statements were recorded on 21-5-64.

In Nathu v. State of Uttar Pradesh : 1956CriLJ152 , it was held that prolonged custody immediately preceding the making of the confession is sufficient, unless it is properly explained, to stamp it as involuntary. P. W. 13 the Investigating Officer did not explain satisfactorily the delay in sending the accused to P. W. 10, the J. S. C. M. for recording the confessional statements. Another contention of the learned Counsel for the appellants is that they were sent by P. W. 12 to the police custody after he recorded their confessional statements. This is not correct. For, P. W. 10 deposed that he sent the appellants to the Jail after they were brought and produced before him and that he sent them back to the Jail after he recorded their confessions and that on all the occasions they were escorted by his office peon. He swore that no police officer was present on any occasion in the Court or in his room. So, the decision reported in Findal v. State , that the accused should not be delivered to police custody does not apply to the facts of this case. But, P. W. 10 (the J. S. C. M.) should have informed the accused that they would not be delivered to the police custody. There is no evidence on record to show that P. W. 10 informed the accused accordingly. There is, however, the statement of the 1st accused in Ext. A-6 itself even before P. W. 10 that he was tortured by the police of Churachandpur. The entire statement of the 1st accused must be read as a whole, vide Emperor v. Taranath (1910) 11 Cr LJ 694 (Gal), Provincial Govt. Central Provinces and Berar v. Jaganbhat 47 Cr LJ 625 : AIR 1946 Nag 301 and Md. Pasha v. State of Hydrabad AIR 1956 Hyd 180. As such, the statement of the first accused that he was tortured by the police of Churachandpur has also to be considered along with his other statements. So, it follows that the confessional statement of the first accused was not voluntary.

22. The learned Sessions Judge also held that Ext. A-6 cannot be taken into consideration. The contention of the A. P. F. is that under Section 374, Cr. P.C. the High Court has got the power to set aside the finding of the Sessions Judge and to act upon Ext. A-6. He relied on Jumman v. State of Punjab : 1957CriLJ586 , where it was held that it is the duty of the High Court to consider the proceedings in all aspects and come to an independent conclusion on the materials apart from the view expressed by the Sessions Judge. But, in view of the statement of the 1st appellant in Ext. A-6, which has to be considered as a whole, that he was tortured by the police of Churachandpur, there is no reason for coming to a different conclusion. Another contention of the learned A. P. P. is that under Section 28 of the Indian Evidence Act the influence of the Police, if any, over the first accused was removed, as soon as he was remanded to the Jail and that the mere allegation of the first accused that he was tortured by the police of Churachandpur, before he was remanded to the Jail, is irrelevant. He relied on Arjoon v. State 1963 (2) Cri LJ 234, of the Orissa High Court and Thingom Sashikumar v. Manipur Administration 1963 (2) Cri LJ 562 of this Court. But in view of the persistent allegation of the first accused in Ext. A-6, which he repeated before P. W. 10, the Committing Magistrate's Court and the Sessions Court, it follows that his allegation might be true and so it will have to be acted upon. So, Ext. A-6 cannot be said to be a voluntary confessional statement of the first accused.

23. So far as the second accused is concerned, she stated before the Committing Magistrate as per Ext. A/4 that she gave the statement implicating herself on account of threat by the first accused. Under Section 24 of the Indian Evidence Act the threat must be by a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to Him reasonable for supposing that by making confession he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him, In the present case both the accused were in Jail when the alleged threat was given by the first accused to the second accused. So, it cannot be said that the second accused could be possibly threatened by the first accused. In the Committing Magistrate's Court and also in the Sessions Court the second accused admitted that she is the wife of the deceased and that she lived with him. In the Sessions Court she further stated that the first accused stealthily entered into her house when she and her husband Gopal Singh were sleeping that after dealing blows with a 'thangjou' on her husband, the first accused forcibly took her away and her daughter and that they did not return back. She further stated that she was forcibly ferried away by the first accused and P. W. 6, (Mangi Singh) a bit before the dawn and that she was arrested when she was living with the first accused.

Her statement that she was forcibly taken away by the first accused after the first accused dealt blows on the deceased Gopal Singh cannot be believed. For, she would have protested and returned back. Because she was a willing party to kill the deceased, she did not come back to her house. She did not state either before P. W. 10 the J. S. C. M. or before the Committing Magistrate or in the Sessions Court that she was induced by the Police to make the confessional statement. In Manipur State the separation between the Judiciary and the Executive is not yet complete. The jails are not under the supervision and the control of the Judiciary as yet. But, they are under the supervision of other officers. The A. P. P. stated that the practice in Manipur is to keen the remanded prisoner in the jails before and after their confessional statements are recorded. P. W. 10 the J. S. C. M. followed the same procedure. He gave three days' time to the 2nd accused for reflection. He gave her due warnings. He told her that her confessional statement would be taken as evidence against her. Yet, she made the confessional statement as per Ext. A-5, She has no complaint against the Police. So Ext. A-5 is her voluntary statement and can be relied upon.

24. There are any number of rulings to show that a retracted confession can be relied upon not only as against the person making the confession but also against a co-accused. However, the following rulings were; cited by the learned Counsel for the accused to show when they can be relied upon. They are Kashmira Singh v. State of Madhya Pradesh : 1952CriLJ839 and Public Prosecutor v. M. Rangareddy AIR 1957 Andh Pra 81. The following are the rulings relied on by the learned A. P. P. Ranjit Singh v. State , L. S. Raju v. State of Mysore : AIR1953Bom297 , Balbir Singh v. State of Punjab : 1957CriLJ481 Sarwan Singh v. State of Punjab : 1957CriLJ1014 , Subramania Goundan v. State of Madras : 1958CriLJ238 . In re, Muthukarunga Konar : AIR1959Mad175 Noor Muhammad v. State : AIR1959Ker46 Ram Parkash v. State of Punjab 1959 Cri LJ 90 : : 1959CriLJ90 and Deveeramma v. State of Mysore AIR 1960 Mys 199.

The above rulings go to show that, under Section 30 of Indian Evidence Act, where more persons than one are being jointly tried for the same offence, the confession made by any one of them affecting himself and any one of his co-accused can be taken into consideration by the court not only against the maker of the confession but also against his co-accused. The Evidence Act nowhere provides that, if the confession is retracted, it cannot be taken into consideration against a co-accused or the confessing accused. So, the provisions of the Indian Evidence Act do not prevent the court from taking into consideration a retracted confession against the confessing accused and his co-accused. The amount of credibility to be attached to a retracted confession however would depend upon the circumstance of each particular case. Although a retracted confession is admissible against a co-accused in view, of Section 30 of the Indian Evidence Act, as a matter of prudence and practice the court would not ordinarily act upon it to convict a co-accused without the strongest and fullest corroboration on material particulars, The corroboration in the full sense implies corroboration not only as to the factum of the crime but also as to the connection of the co-accused with the crime. Vide the observations made by the Supreme Court in 1959 Cri LJ 90 : (AIR 1959 SC 1).

It is also clear that the rule of prudence does not require that each and every circumstance mentioned in the confession with regard to the participation of the accused persons in the crime must be separately and independently corroborated. It is also not essential that the corroboration must come from the facts and circumstances discovered after the confession was made. If the rule requires that each and every circumstance mentioned in the confessional statement must be separately and independently corroborated, then the rule would be meaningless inasmuch as the independent evidence itself would afford sufficient basis for conviction and it will be unnecessary to call the confession in aid.

25. Bearing the above principles in mind, the circumstantial evidence has to be examined to show how far it corroborates the confessional statement of the second accused made by her in Ext. A-5. It is proved by the prosecution and admitted by the second accused that she was the wife of the deceased and that she lived with him. The evidence of P. Ws. 1, 3, 5 and 7 (Sanajaoba Sarma, Gambhir Singh, Chandan Singh and Tondon Singh) is that the first accused was working on the land of the deceased and lived in his house. The second accused also stated in Ext. A-5 that the first accused lived in her house as a member of the family. The second accused stated in Ext. A-5 that both the appellants fell in love with each other. She further stated that the deceased abused them frequently after he came to know about their love affairs and that the appellants planned to kill him to get rid of him and to run away.

The second accused further stated in Ext. A-5 that in the night she cut her husband 4 times with her dao, that the first accused inflicted the other injuries with another dao, that they threw them away into the river and went away to several villages, that they spent several nights and that men they settled down in Malnum village, where they were arrested by the Police. Her confession that both of them inflicted the injuries on the deceased is supported by the medical evidence of P. W. 9. He found 9 external injuries mentioned by him in Ext. A-4. The injuries Nos. 1 to 3 and 9 were peculiarly 2' in depth, while the injuries No. 4, 5, 6 and 7 were also peculiarly 1' deep. This fact shows that two different daos must have been used by both the accused to kill the deceased. P. W. 9, the Medical Officer could not state whether one sharp weapon or more were used to cause the injuries. The court need not be guided away by his opinion. The nature of the injuries shows that two separate sharp weapons must have been used to kill the deceased.

It is no doubt true that P. W. 9 deposed that the deceased might have died about 29 or 30 hours before P. W. 9 conducted the postmortem examination and that the death might have taken place between 2 or 3 hours after he was injured. P. W. 9 conducted the postmortem examination at about 3-30 p. m. on 17-10-63. So, the learned Counsel for the appellants made a calculation of the time and contended that the injured must have received the injuries at about 6 a. m. on 16-10-63. P. W. 9 was not such an expert as to give the time of the occurrence or the death exactly. He must have spoken to the hours approximately. In view of the evidence of P. Ws, 1, 3, 5 and 7 (Sanajaoba Sarrna, Gambir Singh, Chandan Singh and Tondon Singh) it is impossible to believe that the deceased was injured at about 6 a, m. As the evidence shows that the deceased was injured even before 6 a. m., both the appellants must have caused the injuries before 6 a, m. and before the day drawned and absconded by crossing the river in the ferry of P. W. 6 (Mangi Singh). As such, the confessional statement of the second accused as per Ext. A-5 cannot be said to be inconsistent with the medical evidence of P. W. 9. Her confessional statement that she and the first accused absconded is also proved to be true, since both of them were arrested in the hill village of Malnum about 7 months after they absconded.

26. The learned Counsel for the first accused however, contended that the statements of the first accused in his confessional statement as per Ext. A-6 regarding the weapons, prearranged plan etc. are inconsistent with those in Ext. A-5, This is immaterial, because Ext. A-6 is left out of consideration.

27. Thus, there is the following circumstantial evidence in the case:

(a) It is proved that the second accused was living with the deceased and that the second accused bore a daughter by him. The deceased was aged about 57 to 60 years and the second accused was aged about 30 to 40 years. There was disparity of ages between them. While the deceased was an old man, the second accused is young and youthful.

(b) The first accused was brought by the deceased to work under him. The first accused was living in the house of the deceased as a member of the family. He is also a youth. Both the accused developed illicit intimacy.

(c) In the evening of 15-10-63 the deceased and P. W. 3 (Ghambir Singh) planted an angle in the river to catch fish and both of them returned back and the deceased came away to his house,

(d) The deceased, his daughter and both the accused were in his house in the night of 15-10-63.

(e) In the day-break of 16-10-63 both the accused and the little child crossed the river in the ferry of P. W. 6 (Mangi Singh) and absconded.

(f) P. Ws. 1, 3, 5 and 7 (Sanajaoba Sarma, Garnbir Singh, Chandan Singh and Tondon Singh) saw the deceased groaning and lying on his bed with multiple injuries on his body and without one eye-ball.

(g) They found that the inmates of the house namely both the accused and the little child absconded.

(h) They found the door of the house closed from inside.

(i) Both the accused were found hiding in a newly built shed in a hill village in the interior at a distance of about 60 miles from the village of the deceased.

(j) The above circumstantial evidence is corroborated by Ext. A-5 the confessional statement of the second accused. The explanation, given by the first accused that he was living, in the village of Malnum from June, 1963 and that the second accused was brought to him by some Nagas is false. The explanation of the second accused that after the first accused stabbed the deceased, he forcibly took her away along with the child is equally false. She was also a party to the nefarious plot to kill the deceased, so that he might not be an obstacle in their way to lead immoral life. So, the several links in the chain of circumstantial evidence are consistent with the guilt of the accused and are inconsistent with their innocence and the chain was completed by their false explanations. It is also proved that both the accused had common intention under Section 34 I.P.C. to murder the deceased. When common intention can be inferred had been laid down in a number of decisions. Vide State v. Saidu Khan : AIR1951All21 (FB), Kashim Pillai v. State AIR 1952 Trav-Co 565, Hulliah v. State AIR 1954 Hyd 54 (FB), State of Bihar v. Lala Mahto AIR 1955 Pat 161 and Rishideo v. State of Uttar Pradesh : 1955CriLJ873 . But, the principle that can be gathered from the decisions is that the common intention presupposes a prearranged plan. But, it does not mean that there must be a long interval of time between the formation of the common intention and the doing of the act. The common intention is to be inferred from the surrounding circumstance and the conduct of the parties. The circumstantial evidence coupled with Ext. A-5 goes to show that both the accused had the common intention to do away with the deceased.

28. It is correct to state that in a case of this type where there is circumstantial evidence there must be legal proof and not merely moral conviction, as contended by the counsel for the accused and as laid down in In re, Periyaswami Thevan AIR 1950 Mad 714, Hanumant v. State of M.P. : 1953CriLJ129 , Mani Joseph v. State AIR 1954 Trav-Co 396, Ranjit Singh v. State AIR 1954 Pepsu 69, State v. Motia AIR 1955 Raj 82, State v. Thingol Dhabalo Singh AIR 1955 Manipur 1, Machander v. State of Hyderabad : 1955CriLJ1644 , Eradu v. State of Hyderabad : 1956CriLJ559 . In re, D. Satteyya AIR 1957 Andh Pra 213, State v. Abbaham : AIR1960Ker115 and In re, Kamya AIR 1960 Andh Pra 490. As against these decisions the learned A. P. P. relied on the following decisions : - Nisa Stree v. State of Orissa : AIR1954SC279 , Ram Bharosey v. State of Uttar Pradesh : AIR1954SC704 , Kutuhal Yadev v. State of Bihar : AIR1954SC720 , Deonandan Mishra v. State of Bihar : 1955CriLJ1647 , Pershadi v. State : AIR1955All443 and Govinda Reddy v. State of Mysore : AIR1960SC29 .

The principle which can be gathered from the above decisions is that in a case, where the evidence is of a circumstantial nature, the circumstance, from which the conclusion of guilt is to be drawn, should in the first instance Be fully established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused, Vide AIR 1960 SC 29. Also, absence of explanation or a false explanation by the accused completes the chain of circumstantial evidence.

The facts of the case discussed above, the circumstantial evidence, Ext. A-5 and the false explanations of the accused leave no doubt about the guilt of the accused under Section 302 read with Section 34 I. P. C,

29 (a). The learned Counsel for the appellants urged a number of contentions. Firstly, they urged that in Manipur State there is a custom of divorce among the Hindus according to which the second accused could have easily divorced the deceased without killing him and that, therefore, it is not probable that the appellants would have murdered the deceased. He relied on Puyam Liklai Singh v. Moirangthan Maipak Singh AIR 1956 Manipur 18 where it was held that Gandharva form of marriage is recognised in Manipur and that divorce can be effected at the pleasure of either the husband or the wife. But, in the present case, the second accused has got a daughter aged about 6/7 years, whose presence was a stumbling block. So, it was possible that the appellants might have thought of killing the deceased.

(b) The second contention of the learned Counsel for the appellants is that P. Ws. 13 and 14 the Investigating Officers did not seize the blood-stained earth or blood-stained bed of the deceased, that they did not seize the bamboo prop, that they did not seize the articles of the 1st accused to show that he was living in the house of the deceased and that they did not seize the daos from the river. P. W. 14 seized M. Os. 1 to 4, out of which M. O. 3 is the blood-stained dhoti of the deceased. The evidence of P. W. 6 (Mangi Singh) is that the appellants took a bundle with them. They might have taken away the articles of the 1st accused. But P. W. 13 did not depose in the chief examination that he made any search for the daos. He was not cross-examined on this point.

(c) The third contention of the counsel for the appellants is that the daughter of the deceased was a material witness and that the prosecution should have examined her. The contention of the learned Assistant Public Prosecutor is that the daughter was sleeping when the occurrence took place, that, the Investigating Officer examined her and that she did not give any useful information. No doubt, a child witness is a competent witness as can be seen from Dhani Ram v. Emperor AIR 1915 All 437, Panchu Choudhury v. Emperor AIR 1923 Pat 91, Ghulam Hussain v. Emperor AIR 1930 Lah 337, Rameshwar v. State of Rajasthan : 1952CriLJ547 and Jalwanti Lodhin v. State : AIR1953Pat246 . But, the prosecution is entitled to examine only such of the witnesses, whom it considers to be material for the case. Vide Doraiswami Udayan v. Emperor AIR 1924 Mad 239, Jowaya v. Emperor AIR 1930 Lah 163, Stephen Seneviratne v. The King AIR 1936 PC 289, Habeeb v. State of Hyderabad : [1954]1SCR475 and Bakhshish Singh v. State of Punjab : 1957CriLJ1459 . It has to be noted that the daughter of the deceased stayed for about 7 months with the accused in the hill village. So, it is not proper to expect the prosecution to examine the child, who is naturally attached to the mother.

(d) The fourth contention of the learned Counsel for the appellants is that the prosecution did not supply correct copies of the documents to the counsel for the accused before the Committing Magistrate as required by Section 173 (4) Criminal Procedure Code and that therefore, the accused were prejudiced. He filed Criminal Miscellaneous Application No. 40/1966 in this Court enclosing the copies of the confessional statements Exts. A/5 and A/6. The copies show that P. W. 10, the J. S. C. M. did not make endorsements under Section 164 Cr. P.C., the originals of which were marked as Exts. A/5(1) and A/6 (1). He relied on the following decisions to show that the trial itself is illegal. Vide Willie v. State of M. P. : 1956CriLJ291 . In In re, Rangaswami Goundan : AIR1957Mad508 it was held that the provisions of Sub-section (4) of Section 173, Cr. P.C. are mandatory which must be complied with and that if they are not complied with, the defect is a vital one which invalidates the conviction. Vide also In re, G. Tayarami Reddy AIR 1959 Andh Pra 325 and Jabid Ali v. Tripura Administration 1962 (2) Cri LJ 590 (Tri-pura).

But, in State v. J.D. Doraga : AIR1959Bom314 it was held that it is not correct to say that the effect of a breach of the duty cast upon the Police Officer under Sub-section (4) of Section 173 Cr. P.C. is that the prosecution is debarred forever from examining any person on the ground that a copy of the police statements has not been supplied to the defence. It was further held that the proper way in which the Magistrate should deal with the question is from the point of view of the prejudice which the breach of the obligation has caused or is likely to cause to the defence. The latest decision reported in Noorkhan v. State of Rajasthan : 1964CriLJ167 is clear on the point. It was held that failure to furnish statements of witness recorded in the course of investigation may not vitiate the trial that it does not affect the jurisdiction of the court to try the case and to record the conviction, if the evidence warrants such a cause. It was further held that the provisions relating to the making of copies of statements recorded in the course of the investigation is undoubtedly of great importance, but that the breach thereof must be considered in the light of the prejudice caused to the accused by reason of the breach.

In the present case the Sessions Judge appointed amicus curiae for both the appellants in the trial. The counsel for the appellants did not take any objection that copies of Exts. A/5 and A/6 given to the accused did not contain copies of Exts. A/5-1 and A/6-1. They knew fully well that Exts. A/5 and A/6 contain Exts. A/5-1 and A/6-1. So, they did not contend before the Sessions Judge that the accused were not given correct copies. It is, no doubt, true that the advocates for the accused cannot fill up any lacunae in the evidence as laid down in Bansidhar Mohanty v. State of Orissa : 1955CriLJ1300 , But the question is whether the appellants were prejudiced in the trial. The answer is that they were not.

(e) The fifth contention of the learned Counsel for the appellants is that P. W. 13 filed the Charge Sheet before the Committing Magistrate on 20-10-1964, i.e., nearly about 5 months after the appellants were arrested, that there was no explanation for the delay and that the fact that the charge sheet was filed late is fatal to the case. They relied on R. P. Kapur v. State of Punjab : 1960CriLJ1239 , Promode Banian Saha v. State AIR 1960 Tripura 8 and State of Kerala v. Samuel : AIR1961Ker99 (FB). The answer of the learned Assistant Public Prosecutor is that P. W. 13 the Investigating Officer wanted to examine a witness, that P, W. 13 examined him on 14-10-1964 and filed charge sheet on 20-10-1964 and that therefore P. W. 13 delayed in filing the charge sheet, But, the said witness was not examined in the lower court. If really he was a material witness, he would have been examined in the lower court. Sp, the explanation offered by the learned Assistant Public Prosecutor is not, at all, acceptable. There are, however, decisions to show that a charge sheet can be filed finally but not in piecemeal and that the delay in filing the charge sheet is not fatal to the prosecution case. Vide AIR 1952 Him Pra 81 and In re, Ponnu Kudumban AIR 1956 Mad 392.

In Mahanth Dukhan Das v. Emperor AIR 1944 Pat 211 it was held that the delay on the part of the police in preparing the report of the occurrence is not by itself a reason to discredit the evidence against any of the accused. In that case, there was a delay of 11 days. But the decision in AIR 1960 SC 866 is an authority for the position that though the charge sheet should be filed as soon as possible according to the provisions of Section 173(1) Cr. P.C., still the fact that the police filed the charge sheet late is not very material, inasmuch as a charge sheet had been in fact filed. But, I cannot but comment on the conduct of P. W. 13, the Investigating Officer in filing the charge sheet very late. He has to realise that there are provisions like Section 173 (1) Cr. P.C. which are mandatory. P. W. 13, to say the least, did not discharge his duties properly.

(f) The sixth contention of the counsel for the appellants is that it is the duty of the prosecution to prove its case beyond all reasonable doubt and relied on Jairamdas Jotsingh v. State : AIR1956Bom426 and State v. Kesavan : AIR1959Ker161 . There is no dispute about this point. It is a well-known principle of law that the prosecution has got to establish its case. In the present case it has established it.

(g) The last contention of the learned Counsel for the appellants is that when two versions are possible, then the version which is favourable to the accused must be accepted. They relied on Bejjanki Rajam v. State of Andhra Pradesh AIR 1959 Andh Pra 333. In the present case, there cannot be two versions. The evidence already referred to, which is supported by Ext. A/5 confessional statement of the 2nd accused is consistent with the guilt of the accused persons.

30. Thus, the appellants are guilty of the offence under Section 302 read with Section 34 I.P.C. The learned Sessions Judge imposed different sentences on the appellants. He imposed sentence of imprisonment for life on the second accused on the ground that the first accused, who is a male must have taken more active part in murdering the deceased. But, the evidence and the circumstances of the case show that both the accused took equal part in the offences. So, both deserve to De hanged. But, inasmuch as, the second accused was sentenced to undergo imprisonment for life only, I modify the sentence of death on the first accused into one of imprisonment for life.

31. In the result, the convictions of the appellants are confirmed and the appeals are dismissed subject to modification in the sentence passed on the first accused. The reference is rejected. Cr. M. P. 40/66 is recorded.