' Lal son of Machhia, aged 30 years, resident of Fatehpur Pretty, Police Station Garh Mahraja, District bang, has appealed against his conviction under section 302, P. P. C. And sentence of life imprisonment and a fine of Rs, 2,000 or in default rigorous imprisonment for one year more. The tine, if realised in part or whole, has been ordered to be paid to the heirs of the deceased as compensation. The specific allegation which was found by the trial Court to be true against the appellant is that on the night of 6th and 7th of August 1972 while his wife Mst. Tajan was asleep he caused her death by giving hatchet blows on her neck.
2. The prosecution case is that about three or four years before the occurrence Lal appellant was married to Mst. Tajan and in exchange Mst. Ijaz uterine sister of the appellant was married to Muhammad son of Noor (P. W. 9), the brother of Mst. Tajan deceased. The deceased had been living with her husband and had given birth to Mst. Iqbal who was about two years old. Mst. Ljaz being a minor was not living with Muhammad son of Noor as his wife, immediately after the marriage but when she became of age it was suspected by Muhammad son of Nur (P. W. 9) that the appellant stood in her way and for that reason she did not join him as his wife. The appellant is alleged to have been beating Mst. Tajan deceased whereupon about four months before the occurrence she had left her husband and come to live with her brother, in the same lhara but in a different Kotha. The efforts of the appellant to take back Mst. Tajan did not bear fruit as she had refused to go with him. The last refusal had taken place only about ten days before the occurrence, when the appellant is said to have threatened her with revenge. On the night of 6th and 7th of August 1972 Mst. Tajan was sleeping in the common courtyard along with a number of other womenfolk while Muhammad complainant along with his two guests Dalmir (P. W. 10) and Muhammad son of Ahmed (P. W. 4) were sleeping on the roof of the Kotha. A lantern had been kept lighted on a wall three or four feet away from the cot of the deceased. At the dead of night there was a cry from the deceased which attracted the complainant and the other witnesses from the roof and they saw and identified the appellant giving axe blows to the deceased who on receiving them expired. The complainant left for the police station at a distance of about 14 miles and lodged the report at 8.30 a.m. It was recorded by Sakhawat Ali (P. W. 12). He reached the spot, prepared the inquest report and the injury statement and sent the dead body to the mortuary for post-mortem examination. He took blood-stained earth from the spot as also the blood-stained cot P. 6 and the bed-sheet P.
4. The lantern P. 5 was also taken into possession. Lal appellant was arrested on 8th of August 1972 and the blood-stained shirt on his person was taken into possession and sealed into a parcel. He also led to the recovery of the hatchet P. 1 which was ultimately found to be stained with human bood.
3. The post-mortem examination of Mst. Tajan showed that she had four incised wounds, two of which were only skin deep and were on the right side of the chin. Two other effective blows by sharp-edged weapon had been caused one on the right side of face and the other on the neck.
These two injuries were fatal and were sufficient in the ordinary course of nature to cause death as they appeared to have been given with great force. The tongue itself was cut.
4. The appellant, when examined, admitted that exchange marriages as set out by the prosecution, had taken place. He, however, stated that Tajan continued to live with him till her death and there was no ill-will or of cispipci bgvirvic ogiosed the death of his wife Est. He explained the case against him by stating that Mst. Ijaz was not prepared to live with the complainant, who in turn put pressure on his sister Mst. Tajan to come away from him but she declined and on this it was the complainant who had murdered her. He also pleaded that his arms had been paralysed on account of typhoid and he was not in a position to handle and use effectively a hatchet. He also pleaded that his hands had not fully developed and further incapacitated it. No defence was however produced.
5. The learned trial Judge rejected the motive as given by the prosecution and instead held that Mst. Tajan had succumbed to the pressure of complainant Muhammad and had left the appellant with a view to bring pressure on him to send Mst. Ijaz. The allegation of maltreatment of Mst. Tajan by the appellant was disbelieved. It was further held that as Mst. Tajan had been living with her brother against the wishes of the appellant became frustrated and desperate and on that account killed her. Going by the site from where blood-stained earth was recovered, it was held that it was closer to the Kotha of the complainant than that of the appellant. Dalmir and Muhammad, the two eye-witnesses were disbelieved. The recovery of the blood-stained shirt P. 3 and the hatchet P. 1 at the instance of the appellant was believed. As regards the-plea of the appellant about his physical incapacity, the trial Judge observed as follows:- "Accused has no difficulty in walking. He is apparently not incapacitated. It is difficult to believe that he cannot wield a hatchet. He has not requested for his medical examination. The plea of physical disability is rejected."
6. It was not the prosecution case that Muhammad complainant exercised any pressure on his sister Mst. Tajan to come away with a view to force the appellant to prevail upon his uterine sister to reside with the complainant Muhammad, son of Noor. All the same a part of the statement of the appellant has been believed to hold that it was with this object that Mst. Tajan had gone to live with her brother. If Mst. Tajan had not thought of forcing her husband in this manner for three or four years that had elapsed it would hardly be time to succumb to the pressure of the brother against the husband. In the first information report a more positive act of cruelty in the form of beating has been alleged against the appellant but in the statement in Court the complainant satisfied himself by saying that Mst. Tajan was annoyed with the appellant and bad on that account, come away. If what has been held by the trial Court as the motive were true the grievance would not be against Mst. Tajan but her brother. If the motive were as stated by the prosecution i. e. Annoyance of Mst.
"Tajan with her husband then the cause of grievance should have been more specific. On this evidence it is not possible to hold that there was a motive which in the, ordinary course could prompt the appellant to cause the death of his wife.
7. What is most intriguing is the location where the occurrence had taken place. The Kothas of the appellant and that of the complainant are contiguous and there are other Kothas located in the same Ihata. In such a situation where the husband and wife were living in such a close approximity, where the families had been sleeping in the common courtyard without any distinction, the women-folk being separate from the menfolk, there would hardly be a grievance of the gravity indicated on the record calling for periodical attempts on the part of the husband to formally go and persuade the wife to follow him and settle with him. The site-plan prepared in the case by the Patwari is deficient in a number of things. It is not indicated at whose instance it was prepared. Its value as a site-plan therefore is reduced. Further it does not show the presence of any of the witnesses or others whose presence at the time of the occurrence is admitted. It does not indicate the wall on which the lantern was kept which facilitated the identification of the appellant,
8. Coming to the eye-witnesses Dalmir (P. W. 10) and Muhammad (P. W. 11) they have been rightly disbelieved for they are witnesses who do not inspire confidence, have advanced the most flimsy reasons for being present there and cannot be taken to be eye-witnesses of the occurrence, We are therefore left on record only with the statement of Muhammad complainant which is found not true in more than one respect particularly in so far it mentions the presence of Dalmir (P. W. 10) and Muhammad (P. W. 11). It is also open to question whether with the receipt of the injuries that Mst.
Tajan received she would be in a position to raise a cry of the sort as to awaken Muhammad complainant and others sleeping on the roof top.
9. The benefit of the statement of Sultan (P. W. 3) has not been given to the appellant on the ground that he was supposed to depose only about the identification of the dead body of Mit.
Tajan, his cousin at the time of post-mortem examination and not about the fact that Lal appellant had brought the police on the night of the murder of Mst. Tajan and that Muhammad complainant was suspected of the murder and he was joined in the investigation and then let off and the case was foisted upon the appellant. An examination of the inquest report prepared by the investigating Officer immediately after arrival at the spot shows Sultan son of Hasta (P. W. 3) to be one of the persons who identified the dead body before the police officer. On this recital Sultan undoubtedly is a witness who could state about the initiation of the investigation in this case and his statement could not be brushed aside on the basis of a reported case the facts of which were not in this matter similar. The witness was not declared hostile or cross-examined by the Public Prosecutor and this statement of his which he was competent to make remains on the record.
10. As regards the recovery of the shirt and the axe, it is very doubtful that a person who is arrested after about 36 hours of the occurrence, near about 48 hours after, should be wearing the same shirt with blood stains visible to every on looker. Talib Hussain (P. W. 8), the witness of recovery, cannot be taken to he a truthful witness, for he was confronted with his commitment Court's statement wherein he said that he could not tell whether the recovery of the hatchet had taken place in the morning, noon or in the evening. At the trial he straightaway said that the recovery bad taken place at 7 or 8 a. m. The Investigating Officer who recovered the hatchet has stated that the recovery had been effected at 7 p. m. The recovery witness stated that the hatchet was neither weighed nor measured in his presence. The Investigating Officer stated that it was weighed as well as measured at the time of its recovery. All these contradictions clearly repudiate the case of the prosecution. The learned counsel for the appellant had also tried to indicate from the inquest report that there was only a chaddar found on the person of the deceased covering her body below the waist. The whole of the upper portion was naked. The complainant, on the other hand, has stated that she had a Dopatta and was also wearing a Bunyan. From this state of the dead body it is pleaded that such could be the position of Ms:. Tajan deceased not in the house of her brother but in the house of the husband and not in any case while she was sleeping close to a lantern on a summer night when according to the prosecution, the visibility was so clear and unobstructed.
11. I find that the case of the prosecution is not at all made out and accepting the appeal, I set aside the conviction and sentence of the appellant 4 and acquit him. The fine if recovered shall be refunded to him.