Rowland, J.:— The three appellants were charged together and tried at one trial for offences under S. 302, I.P.C, and also under S. 201, the substance of the prosecution case being that one or more of the accused on the night of Wednesday 1st March 1939 at the residence of all of them committed murder of Mt. Paltanbati widow of Nebti's brother Jubti and that all of them secretly and hastily disposed of the body in order to prevent detection of the crime and ??? false explanation to account for ???. As to the propriety of trying ??? one trial both for murder ??? causing the disappearance of evident ??? it, the old decisions in which it was held some times that only a person completely innocent of the murder can be convicted under S. 201 have been reconsidered in some of the recent cases. In 6 Lah 226 : 52 IA 1911 the Judicial Committee affirmed the conviction under S. 201 of three persons who had been tried on the charge of murder (S. 302), but the evidence being insufficient to establish this charge against them, had been convicted under S. 201. Their Lordships did not examine in detail the exact point whether in order to be convicted under S. 201, the accused person must be innocent of the major offence; but it is clear from the result of the case itself that to be accused of the major offence, does not in itself confer on the criminal any immunity from conviction in respect of the concealment of the evidence. In a case of this Court 10 Pat 1402 the accused had been tried on charges both under S. 302 and under S. 201 and the trial which was before a jury had resulted in their conviction under S. 201. The conviction was affirmed, Fazl Ali J. observing that he was inclined to accept the restricted interpretation of S. 201 which has been adopted in some of the recent decisions and according to which a person cannot escape conviction under this Section merely because he has been charged also with the principal offence or because there are some grounds for suspicion that he might be the principal culprit. But the learned Judge was not prepared to go so far as the Judges in the Allahabad case in 49 All 573 in which they were dealing with a case in which there was evidence that one Beni Singh had been done to death by one of three persons; the body had been done away with by all three and the Sessions Judge found himself unable to convict any of them for concealing the corpse lest he should accidentally be convicting the murderer himself which certainly earlier decisions had said could not be done. The Judges observed that the point whether S. 201 applies to the actual culprit in a case of murder is obviously academic. None the less we are unable to agree the view that a person who has actually committed a crime himself—whether murder or any other crime is any the less guilty of removing ??? thereof, if it is proved against him that he has does so, because he was the person who actually committed the offence. If the Legislature intended to provide such an exception, they would undoubtedly have said so in express language.

2. In a later decision, namely in 54 Mad 684 which came before the Madras High Court, Wallace and Jackson JJ., examined the proposition that Ss. 201 to 203, I.P.C, have no application to the person who actually committed the main offence mentioned in the Section and that the person who committed the main offence cannot be himself found guilty of causing evidence of that offence to disappear or of giving false information about it. After examining the decisions they observed:

The true principle seems to be that there is no law preventing the main offender being convicted under Ss. 201 to 203, but in practice no Court will convict an accused both of the main offence and under these Sections. But if the commission of the main offence is not brought home to him, then he can be convicted under Ss. 201 to 203. Therefore there is no misjoinder in charging an accused in the alternative with the main offence and under Ss. 201 and 203, I.P.C, nor is there anything irregular or improper in a Judge holding, as the learned Sessions Judge has done in this case, that, while the accused is himself not free from the suspicion of being the actual murderer, he can be none the less convicted under S. 201 or S. 203.

3. I am of opinion that the view expressed in these two decisions of the Allahabad and Madras High Courts is correct. Where the charge is framed in the alternative in respect of offences under Ss. 302 and 201, the position may arise as contemplated by Sec. 72, I.P.C It may be open to the Court to give judgment that a person is guilty of one of several offences specified in the judgment, but that it is doubtful of which of these offences he is guilty. Such a finding is in accordance with Section 367(3) of the Cr PC, and will have the consequence that under S. 72, I.P.C, the offender is to be punished for the offence for which the lowest punishment is provided, the same punishment not being provided for all. Coming now to the facts, the deceased Mt. Paltanbati had her maternal home in village Khirda P.S Araria She was daughter of Bhere Lal deceased and his wife Bulni P.W 4 of this case. Bulni has a brother Agamlal P.W 7 of this case and Agamlal has a daughter Rama P.W 5 of this case, a child of six or seven years. Bhore Lal also-bad a brother whose son is Besamlal, a name which will appear later in the history of the case. Paltanbati was married in village Potia to Jukti son of Manbharan Goala. Jukti had a brother Nebti accused 1 of this case married to Pirni who was also-accused but was acquitted in the Sessions trial. Jukti and Paltanbati had a son who died and another son Doman or Domra who was aged about five at the time of the event we are discussing. Manbharan the father-in-law of the deceased Paltanbati had a brother Raj Kumar accused 2 of this case and Raj Kumar has a son Uchit accused 3 who is married to Mt. Sabujni accused 5. At the time of the events under consideration, Manbharan was dead and Jukti was also dead, the latter having died about February 1938 since when Paltanbati had lived part of her time in the house of her brother-in-law Nebti, but a considerably greater part of the time in the house in which her mother Bulni was living with her brother Agamlal.

4. The story of the alleged crime begins on Tuesday 28th February 1939. The little boy Domra was ill and Paltanbati who was at that time in Potia at Nebti's house started to take him to Jokihat hospital for treatment in Nebti's cart of which the driver was Utam Hari P.W 16 a boy of 11 or 12 years in the service of Nebti. At the hospital Paltanbati was met by her mother Bulni and Utam Hari took the cart back from there to Potia. Bulni, Paltanbati and Domra went from Jokihat to Khirda to the house of Agamlal. Domra's disease, was serious. The compounder of the dispensary has said that it was kala-azar and it was proposed to call in the services of an Ojha to treat him by spells. He inspected the child and said that the treatment would cost Rs. 2. Paltanbati then left Domra with Bulni while she herself went to Potia taking with her Agamlal's daughter Rama. It is said that on her asking for Rs. 2 she was told that she would get it after the harvest was sold. This answer was not satisfactory and on the next day she asked villagers to form a Panchayati to settle her claim for a partition in default of being given the money she asked for by Nebti. It is the prosecution case that the partition awarded to her and her son a half share in the property which had been joint property of the brothers Jukti and Nebti. Paltanbati on the Tuesday night 28th February 1939 had slept at the house of her relative Resamlal which is only two doors away from that of Nebti. On the Wednesday night 1st March 1939 Paltanbati slept at Nebti's house.

5. There is some contradiction between successive statements of Rama as to whether on the Wednesday night she slept at Resamlal's house or Nebti's. I shall return to that later. Be that as it may, during the night Rama according to her evidence heard Paltanbati cry out that she was murdered. Rama wished to go to Paltanbati but was prevented by her hostess. Paltanbati was not again seen alive. On Thursday 2nd March 1939, she was cremated at Sankhpokhar about a mile to the east of Nebti's house and one admittedly curious circumstance about this cremation is that the only persons present at it were the three accused. None of the villagers attended the cremation. On Friday 3rd March 1939, Agamlal, it is said, met Uchit at Jokihat and on his enquiring about Paltanbati was told that Paltanbati habged herself. Agamlal returned to Khirda and informed Bulni of this. Agamlal went to Potia where he met Nebti, Uchit and Raj Kumar all of whom said to him that Paltanbati had committed suicide by hanging herself. He returned to Khirda without Eama. Foul play was suspected by Bulni and Agam as they had not been informed before cremation and Bulni thought it unsafe to allow Rama to remain in Khirda. The next morning, Saturday 4th March, Agam went to Potia, met Eama out-side the house of the accused and took her home. On the road she told Agamlal of having heard the cry in the night. That afternoon the three accused came to Khirda and there was some sort of a Panchayati at which they told a number of Agamlal's co-villagers that the death of Paltanbati had been due to her hanging herself and aaked Agamlal to hush the matter up. For this they offered a sum of Rs. 40; but Agamlal would not accept it.

6. On the next day, Sunday 5th March 1939 at 4 P.M Agamlal made a statement at Araria police station which was recorded in the form of Fardbeyan as the occurrence related to the jurisdiction of police station Palasy and on the same day the village chaukidar of Potia made a report at his police station of the death of Paltanbati as having occurred on 28th February 1939 on account of fever. The Fardbeyan or the statement of Agamlal was sent from Araria police station to Palasy where it reached in the morning of Monday, 6th March 1939. The Sub-Inspector reached Potia at about 11 A.M and made a search of the house of the accused without finding anything which appeared to him particularly incriminating or suspicious. He arrested Uchit, Raj Kumar and Nebti and sent them to Court. Investigation was continued on Tuesday 7th March 1939 when a second search was made of the house of the accused in the presence of the Inspector and Deputy Superintendent of Police. On this search articles were found bearing stains which to the eyes of the superior officers appeared suspicious. Accordingly charge was taken of one sari, one rezai, one mat, one khurpi, one kurta and scrapings of earth from the wall of a room of the house at a level of 1½ cubits from the floor. Search was also made at the cremation ground and 29 pieces of burnt bones were found at the place where Paltanbati was supposed to have been cremated. The bones have been proved to be human, but that is all that the medical evidence can prove about them of the articles seized one kurta of red colour is supposed to have been the property of Uchit. The stains on it were found on chemical examination to be stains of blood, but owing to disintegration the source of the blood could not be positively determined. At the trial evidence has not been led to prove that this kurta in fact belonged to Uchit. It remains then that it is simply a shirt found on those premises. The that has been identified by Bulni as the property of her daughter Paltanbati. The stains on it were found on chemical examination to be of blood which was proved to be human blood. The scrapings of earth from the wall of the room were found on chemical examination to contain stains of human blood.

7. Mr. S.C Chakravarty as amicus curiae has taken, us through the evidence and assisted us in the examination of the case. It is beyond dispute that on Tuesday 28th February Paltanbati and Domra went from Potia to Jakihat hospital. Thereafter they came to Khirda and Paltanbati returned that day to Potia. A question was however raised at the trial whether she was accompanied by Rama. For this we have not only the evidence of, Rama, of Agamlal and of Bulni, but also the evidence in the committing Magistrate's Court of the boy Utam, Hari, though he reviled from this statement at the trial. I shall have something to say later as to the use of a deposition put in under S. 288 to prove a fact which the witness denies at the trial. At present it is enough to state that I have no doubt that Paltanbati and Rama went to Potia and slept that night in the house of Besamlal. As to what happened on Wednesday the defence story is that all that day and even from Tuesday, night Paltanbati was suffering from vomiting and stools which caused her death on the night of Wednesday. In support of this is the evidence of several defence witnesses, neighbours resident in village Potia; but the prosecution case is that these persons are colluding with the accused to suppress the death and the Sessions Judge thinks that the failure of the prosecution to produce evidence from Potia village is due in part to the indiscretion of the police who with, out discrimination sent up as accused practically all the; near neighbours who might have given valuable information but were at the time of the investigation unwilling, to do so. The prosecution case that on Wednesday 1st March Paltanbati not having got the Rs. 2 for which she had asked went further and demanded a partition and that a panohayati was held, rests on the evidence, of Rama together with a passage in the deposition of Utam Hari in the committing Magistrate's Court and the evidence of Agamlal as to the statement to him by Uchit that Paltanbati had hanged herself because she was dissatisfied with the award of the panchayats which while giving her and her son an eight annaa share in the land gave them of mailer share in the mpveables. The Sessions Judge-disbelieved the evidence as to illness and believed the story that on Wednesday 1st March Paltanbati was pressing her claim to property. That as the Sessions Judge rightly points out provides a good motive for the accused to do away with the widow.

8. But the central point of the prosecution case as presented was that Rama heard a cry in the night. She was examined by the police, before the committing Magistrate and at the trial and throughout she has adhered to her story that she heard this cry. Agamlal too says that she told him the same when he saw her on the morning of Saturday 4th March; but her evidence was challenged on the ground that she had prevaricated as to the place where she was sleeping on the night in question. In the earlier stages she said that she had been sleeping at the house of Besamlal. Before the committing Magistrate she changed her story and said that she was at Nebti's house. This is difficult to believe, for, if she was at Nebti's house she would have been practically an eye witness and would have had much more to say about the crime than she has. The Sessions Judge has rightly held that in fact she was sleeping at Resamlal's house. The change in her story may possibly be accounted for by the fact that Resamlal had been included in the list of accused persons sent up, but Agamlal, Bulni and Rama who are related to Eesamlal perhaps did not wish him or his wife to be convicted of an offence in which they were not directly concerned. The change in Rama's statement seems to me to have been made more probably with a view to exculpating Resamlal and his wife than to bring the witness Rama nearer to the scene of occurrence so as to add credibility to her statement that she had heard a cry. The Sessions Judge has not accepted this statement because he says the room in Nebti's house occupied by the deceased and the room in Resamlal's house occupied by the girl Rama are so far apart that even if a cry was raised by Paltanbati, Rama could not have heard it.

9. Now there is a statement in the course of the evidence of Agamlal that any cry from the room occupied by Paltanbati would not be heard in the house of Resamlal; but if we suppose that Agamlal at this stage was not anxious to say anything that would go against Resamlal, too much importance must not be attached to this statement. It is more to the point to consider the map and the evidence of the Sub-Inspector regarding the distance. The map is to scale and; the explanatory note shows that the distance between the supposed place of occurrence A to the room where Rama slept F is only 51 cubits that is to say 76 feet or 25½ yards and the Sub-Inspector Ajit Kumar Kunar says in his evidence that Resamlal's houso adjoins Nebti's house separated only by a lane. On this evidence I think that there is no improbability in Rama having been able to hear a cry raised by Paltanbati and I am more inclined to believe that she did hear a cry as deposed to by her. That cry is direct evidence that Paltanbati was suffering a violent death and the circumstances go to confirm the truth of that inference. The cremation was done by the male members of the household in the absence of any other villagers. The prosecution have placed the hour of this cremation earlier than the defence, but without going into that the very fact that no outsiders were present suggests that there was some reason for keeping it so quiet. The accused in their statements have not attempted to make out that any other villagers were present, but they said that villagers were invited to come but refused to do so in consequence of the fear of infection because Paltanbati had died of cholera. If however the story of cholera is itself a lie and an afterthought, the whole of this explanation completely falls to the ground and the cremation must be regarded as secret disposal of the body and a circumstance adding to the suspicion that the deceased had been violently done away with. As we have seen there is evidence that the theory of cholera was not the first explanation propounded to account for the death of Paltanbati which in the first instance had been attributed by the accused to suicide by hanging. The motive assigned for the suicide was not a motive which could reasonably be expected to have caused Paltanbati to commit suicide.

10. Other suspicious circumstances are the failure to advise Paltanbati's mother Bulni or son Domra either of her illness or of her death. Then there is the evidence of Utarn Hari before the committing Magistrate in which he had told about the panchayati in the evening at which Paltanbati was present and had deposed that the body was removed for cremation before dawn. He says that he did not ask anyone how the Musammat had died, nor that any explanation was offered to him at that time. The Sessions Judge relied on this deposition in preference to the contradictory statement which he made during the sessions trial. His procedure was quite correct and in accordance with 3 Pat 7815 where Buckuill J. laid down that:

Evidence duly taken before a Magistrate can be used for all purposes in a trial Court so long as the evidence is evidence within the meaning of the Evidence Act; or in other words, that magisterial depositions can be utilized in a trial Court as of evidential value only if the matter contained therein is according to the rules of evidence laid down in the Evidence Act, of evidential value.

11. He further observed that the principle was settled, that unless there is clearly present besides the evidence given before the Magistrate evidence which will show that the evidence given before the Magistrate should be preferred to and substituted for that given before the Sessions Judge the evidence given before the Magistrate cannot be effectively utilised in support of a conviction.

12. These rules have since been followed and may be regarded as settling the practice for all Courts in Bihar. They are in accord with 41 CWN 7416 a decision of the Judicial Committee of the Privy Council. That wad a case in which a question arose as to the admission of evidence in the Sessions Court under Section 288 of the Cr PC, and their Lordships observed that:

By the express provision of S. 288 of the Code the previous deposition is to be treated as evidence in the case for all purposes. The words ‘subject to the provisions of the Evidence Act, 1872’, cannot be read so as to limit the purpose for which it may be used.

13. The same principles have been followed in 16 PLT 7307 where 3 Pat 781 was applied and a conviction was supported, the depositions under S. 288 being corroborated by previous statements recorded under Section 164 of the Cr PC, as well as by some other evidence. The use of previous statements recorded under S. 164 to corroborate a deposition put in under S. 288 was also supported as permissible in 60 Cal 1339.8 But in this case the Sessions Judge found that there was corroborative material which inclined him to prefer the statement of Utam Hari made before the committing Magistrate to the evidence given by him in the Sessions Court. The corroboration available is in my opinion more ample than the Sessions Judge had thought because I would accept the evidence of Rama that she heard the death cry in the night. In connection with Rama's evidence, however as also that of Utam, it is to be mentioned that both these witnesses having made statements which the prosecution did not accept as correct, they as well as some others of the witnesses were by permission of the Court cross examined by the public prosecutor after a note had been made that they were “declared hostile” by the prosecution.

14. At one time it was thought that to declare a witness hostile had the effect of disqualifying the prosecution and even the defence from relying on the evidence of such a witness. This doctrine was developed in a series of decisions of the Calcutta High Court. But after a contrary view had been taken in this Court in the case in 11 PLT 148 : 9 Pat 474,9 those decisions were overruled by a Full Bench in 58 Cal 1404 10 and the law as stated in 9 Pat 474 was followed and further explained in 14 PLT 494.11 It is now settled that the evidence of a witness who is cross-examined by the party calling him is still evidence and can be relied on by either party; the credibility of the facts deposed to being a matter for the jury. As a corollary to the earlier view, it was said in some cases that leave to declare a witness hostile should not lightly be given. There must first be good reason to believe that the witness had been “gained over.” See observations in 7 PLT 56712 and 16 PLT 95.13 The former of these cases was considered and not followed in 14 PLT 494. When it is no longer considered that by giving the permission to cross-examine, something adverse to the credit of the witness is decided, there is no necessity to put obstacles in the way of a party who has called an unwilling witness. The circumstances in which a witness may be cross-examined by the party calling him are not laid down in Section 154 of the Evidence Act, which leaves the matter entirely to the discretion of the Court and there is no legal objection to such permission being freely granted. Once we are rid of the mischief of considering the grant of permission to be equivalent to an adjudication or expression of opinion of the Court adverse to the veracity of the witness, it is harder to justify the refusal than the grant to any party of permission to cross-examine any witness who supports the case of his opponent. Thus, in 6 CWN 513,14 when a party had by the trial Court been refused leave to cross-examine their Lordships of the Judicial Committee expressed their regret that this course was adopted. “Common fairness” they said required that opportunity to test such statements by cross-examination should be given, if the evidence was to be relied on;

and that not having been done, they said that (in the case before them) the evidence was of no value. In the present trial, we find no error in the procedure followed by the Sessions Judge: though, as I said in 14 PLT 494 I consider it preferable to avoid the use of the words “declared hostile” which by association have come to carry by implication a misleading significance. The depositions of Rama and Utam are still evidence notwithstanding their cross-examination on behalf of the prosecution. So also are the depositions of P.W 15 Kare, P.W 17 Mahangu, P.W 18 Sarfu and P.W 19 Anoop Lal. These witnesses support the defence case that on the Wednesday Paltanbati was suffering from cholera which caused her death. These witnesses may be regarded as in effect defence witnesses. Their testimony did not favorably impress the Sessions Judge, and has in our view rightly been rejected. The prosecution theory receives very material corroboration from the recovery at the house search of the house of the accused of the articles I have referred to above of which Paltanbati's that was found to be stained with blood and the scrapings of earth from the wall of the room were found to be stained with human blood. That being so, the inference cannot be in my opinion resisted that Paltanbati was murderously done to death in the house of the accused on the night of 1st March 1939 and the three accused persons all took part in causing the evidence of the crime whoever was its author to disappear. I would affirm the conviction. In awarding sentence the Sessions Judge has had regard to the ages of the accused persons and to what appeared in all probability to be their relative digress of responsibility. I see no reason to differ from the Sessions Judge's appreciation of these matters and I do not consider the sentence on either of the accused to be excessive. I would dismiss the appeal.

Chatterji, J.:— I agree.

G.N/R.K

15. Appeal dismissed.