3. Case of ‘rhe prosecution, in brief, is fhaf on ‘rhe fafeful day of 27—3—2005 be’rween 4 p.m. & 5 p.m. Pusauram (since deceased) - husband of appellanf No.2 & fa’rher‘ of appellan’r No.1, was presem‘ in his house, appelian’r No.1 RohiT Kumar. assaulTed Pusaur'am wi’rh s’rick repeaTedly and caused injuries over chesf & ofher parts of the body as a reSuI’r of which Pusauram became unconscious & fell down and finally he died. Merg was intimaled vide EXP-9 in which i‘r has been mentioned Thai Pusauram died as a resulT of excessive drinking and falling down on land. The Investigating Officer proceeded for The spo‘r and af‘rer summoning the witnesses vide Ex.P-2, prepared inquest over the body of Pusauram vide Ex.P-3. Dead body was sent for autopsy to Govt. Hospital, Mahasamund’vide Ex.P-6A. Dr. S. Chandravanshi (PW-10) conducted autopsy vide Ex.P-6 and found following injuries: (1) Two abrasions 1 c.m. x O.4’c.m. over left side of head. (2) Six abrasions 3 c.m. x 0.5 c.m. over chest. (3) Eight abrasions 2 c.m. x 0.5 c.m. over chest. (4) Abrasion over right & left elbow joint. (5) Lacerated wound 2 c.m. x 0.3 c.m. x 0.5 c.m. over left hand. (6) Abrasion over left shoulder. (7) 4T“ to 9““ left ribs & 3rd to 9"“ right ribs were found fractured. (8) Right lungs & right liver were found ruptured. Q Mode of death was shock. . On 30—3—2005, written report was lodged by Sarpanch Itwari Ram Dhruv, Up— Sarpanch Ganguram (PW-4) & others vide Ex.P-1. During the course of investigation, Patwari prepared spot map vide Ex.P-4. Finally FIR. was registered vide Ex.P—11. Viscera of the deceased were seized vide Ex.P—8. The Investigating Officer prepared spot map vide Ex.P—IO. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. 5. After completion of investigation, charge sheet was filed before Judicial Magistrate First Class, Mahasamund, who in turn, committed the case to the Court of Sessions, Raipur, from where learned Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the appellants, the prosecution has examined as many as fifteen witnesses. The accused were examined under Section 313 of — 3 The Cr‘.P.C. in which They denied the circumstances appearing against them, hleaded inhocence and faise implicm‘ion. 7. Af‘rer‘ affording opporium’ry of hearing To ‘rhe parties learned Additional Sessions Judge has cbnVIcTed & sentenced The appellanis m The aforesaid manner. 8. We have heard learned counsel for The parTies, perused The judgmenT and record of The Trial CourT. 9. Learned counsel for The appellanTs vehemenTly argued ThaT The prOSecuTion has uTTerly failed To prove The role aTTribuTed To appellanT No.2 DhanmaT Bai. According To The evidence of prosecuTion, DhanmaT Bai has noT caused any injury To The deceased. Evidence of The alleged eyewiTnesses Sevak Ram (PW-1), Dinesh Kumar Tiwari (PW 2) ITwari Ram (PW-3) & Ganguram (PW-4) are full of suspicion They have noT sTaTed The incidenT To police on The daTe/ of inquesT, They keep quiTe for five days and They have noT offered any explanaTion ThaT why They have noT sTaTed The inCidenT To police espeCially when Ganguram (PW—4) was presenT aT The Time of inquesT in which iT has been menTioned ThaT The deceased died as a resulT of excessive drinking and falling down on The land. Suspicion howsoever grave cannoT Take The place of legal proof. Even oTherwise, There is no moTive for appellanT No.1 RohiT Kumar‘ To kill his faTher. Learned counsel placed reliance in The maTTer of Shivaji Dayanu PaTil v. STaTe of MaharashTra (1989 MPWN 191) in which The Apex CourT has held ThaT wife of deceased claiming To be eye wiTness — noT disclosing name of accused for Two days - her sTaTemenTs To police and in i, CourTs differenT - accused enTiTled To benefiT of doubT. Learned counsel furTher placed reliance in The maTTer of Rama Rao and oThers v. STaTe of M.P. {1997 (2) VJLJ 118} in which The High CourT of'Madhya Pradesh has held ThaT eye WiTnesses noT sTaTing preSence of each oTher, one also denying in cross-examinaTion knowledge of hiTTing The deceased, such evidence cannoT be believed. 10. n The oTher hand, learned STaTe counSel opposed The appeal and submiTTed ThaT 5evak Ram (PW 1) Dinesh Kumar Tiwari (PW-Z), ITwari Ram (PW—3) & Ganguram (PW 4) have caTegorically supporTed The case of The prosecuTion, Their evidence inspire confidence Their eVidence are TrusTworThy and safe To O rey. Appellam‘ No.2 Dhanma’r Bai has noT caused injury to her husband, buf she was hoiding stone and was prevenfing oTher perSOns from saving ”the deceased which is over‘r acT and she has equaHy parTicipafed in the commission I of offence. .‘In order" To appreciaTe the arguments advanced on behalf of ’rhe parties, we have examined 'rhe evidence adduced on behalf of fhe prosecu‘iion. In The present case, homicidal death of Pusauram as a result of ante—mortem fatal injuries has not been substantially disputed by the appellants, otherwise also established by the evidence of Dr. S. Chandravanshi (PW-10) & autopsy report EXP-6. Injuries found over the body of Pusauram were not possible by accident or by simply falting of a person on tand. Almost thirteen ribs were found fractured including rupture of right lungs and liver which shows impact of injuries caused over chest of Pusauram. Death of Pusaurom was homicidal in nature. As regards complicity of the appeliants in the crime in question, conviction is based on the evidence of eyewitnesses. Sevak Ram (PW—1) has depOSed that at the time of incident, appellant No.1 Rohit Kumar was assaulting his father Pusaurom with stick, appellant No.2 Dhanmat Bai was also present near the incident and was preventing persons from saving Pusauram, even she told him (this witness) 6i other persons that it is their private affair and they all should go to their houses. He has further deposed that he has finally lodged report vide EXP—1. His evidence is corroborated by the evidence of Dinesh Kumar Tiwari (PW—2), Itwari Ram (PW~3) & Ganguram (PW~4), substantially. Defence has cross-examined these witnesses in detail and tried to show that on account of enmity these witnesses have falsely implicated the appellants in the crime in. question. These witnesses have admitted that prior to 30-3— 2005 they have not lodged any report or informed to the police that they are eyewitnesses to‘ the incident. . According to the case of defence, appellant No.2 Dhanmat Bai was elected as panch and Sevak Ram (PW—1), Dinesh Kumar Tiwari (PW-2), Itwari Ram (PW-'3) & Ganguram (PW—4) have grudge against her. Explanation given by appellant No.2 Dhanmat Bai under Section 313 of the Cr.P.C. reveals that pane/7 post was reserved for woman candidate. Sevak Ram (PW-1), Dinesh Kumar Tiwari ///,X l . . (PW—2), I’rwar‘i Ram (PW-3) & Ganguram (PW-4) are no‘r women. Defence has noT sugges‘red to fhese wiTnesses that any woman relafing To These wiTnesses had contested The pane/I elecTions and was defea'red by Dhanmm‘ Bai. In absence of such facf and circumsTances, defence of false implicafion on accoun’r of pane/7 elecfions is no’r a subsTan‘rive defence. Even o’rher'wise, in case of enmh‘y, These wi‘rnesses were having oppor‘runi‘ry To implicaTe panch Dhanmaf Bai, appellanT No.2 herein, by adducing evidence ThaT DhanmaT 'Bai has assaulTed her husband, buT They have noT sTaTed anyThing againsT DhanmaT Bai excepT ThaT she was holding sTone and was prevenTing The persons from saving her husband. DefiniTely, These wiTnesses have noT sTaTed anyThing To The police prior To'30-3-2005 i.e. Till Three days of The incidenT and Thereaffer, They have lodged wriTTen reporT. They are eyewiTnesses To The incidenT and They keep quiTe for Three days, buT ulTimaTely They are The persons who have lodged reporT againsT The accused persons. They are noT relaTives of The deceased. Their evidence are well corroboraTed by medical evidence which reveals ThaT seven ribs of one side & six ribs of oTher side of The deceased were found fracTured including mulTiple fracTure of one rib and rupTure of lungs & liver which shows The impacT used upon The chesT of The deceased aT The Time of causing injuries. Evidence of These wiTnesses cannoT‘ be discarded only on The ground ThaT They have noT sTaTed The incidenT To The police or oTher persons for Three days. By filing wriTTen complainT, They have explained The circumsTances. 15. In The maTTers of shivaji & Rama Rao (supra), sTaTemenTs of wiTnesses who have noT sTaTed The incidenT for Two days have been discarded on The ground of oTher discrepancies and conTradicTions, buT noT on accounT of The facT ThaT They have noT sTaTed The incidenT To police. The cases of Shivaji & Rama Rao (supra) are disTinguishable on facTs To ThaT of The presenT case. .In The presenT case, evidence of Sevak Ram (PW-1), Dinesh Kumar Tiwari . (PW-2), ITwari Ram (PW-3) & Ganguram (PW—4) inspire confidence, Their evidence are TrusTworThy To The effecT ThaT appellanT No.1. RohiT Kumar has caused mulTiple injuries including faTal injuries over chesT To his faTher Pusauram resulTing inTo his deaTh, buT appellanT No.2 DhanmaT Bai was only holding sTick To prevenT The persons from coming near The place of incidenT To save or rescue The deceased. However, The evidence adduced on behalf of The prosecufion is no’r sufficient for drawing inference fha’r appellant No.2 Dhanma’r Bai has assaulted her husbandin spite of having full opportunity to assault her husband (the deceased). In absence of such overt act, it is difficult to hold that appellant No.1 Rohit Kumar has committed culpable homicide amounting to murder of his father Pusauram in sharing common intention with co—accuSed Dhanmat Bai, appellant No.2. 17.After appreciating the evidence available on record, learned Additional Sessions Judge convicted Rohit Kumar under Section 302 of the I.P.C. and Dhanmat Bai under Section 302 read with Section 34 of the I.P.C. but has not considered the most material aspect of the caSe that except preventing the persons from. coming near the spot on the ground that it was their private affair, Dhanmat Bai has done nothing, and thereby committed illegality. Mere preventing persons from rescuingvor saving the deceased is not sufficient to infer that appellant No.2 Dhanmat Bai was having intention to kill her husband. 18. For the foregoing reasons, we are of the view that the prosecution has proved the case of commission of culpable homicide amounting tomurder of Pusauram against appellant No.1 Rohit Kumar, but has utterly failed to prove th offence of murder in sharing common intention against appellant No.2 Dhanmat Bai. 19. In the result, the appeal is partly, allowed. Conviction & sentences ofappellant No.1 Rohit Kumar under Section 302 of the I.P.C. are herebyrmaintained. However, conviction of appellant No.2 Dhanmat Bai under Section 302 read with Section 34 of the I.P.C., sentence of imprisonment for life & fine of Rs.500/— are hereby set aside and she is acquitted of the said charge. She is Soma c}, is i: I . e 2 on bail, she need not surrender. Sd/- sd,_ ‘ _ R.L.Jhanwar = mp. SHARMA. » Judge ~ Judge c“