Heeraman Shri Bahadur vs State of Madhya Pradesh

S.K. Chawla, J.

Appellant Heeraman by this appeal challenges his conviction u/s 302, Indian Penal Code and sentence of imprisonment for life.

Appellant Heeraman was earning his living by begging. He lived in village Ghisi with his two wives Taribai and Ramkalibai. Taribai was younger while Ramkalibai his elder wife. The appellant has also a son named Amin (P.W.-5), aged about 5 years, from his younger wife Taribai. Taribai is dead.

The prosecution story briefly stated was that appellant Heeraman was addicted to liquor and gambling. There was a festival called Jyuti festival on 28 July 1984. On that day the appellant was seen wandering in his village Ghisi in a drunken condition. He had also gambled at the house of Bhupat (P.W.-8) of his village on that day. He had returned to his house at about 10.00 in the night His brother-in-law Brijlal (P.W.-2) belonging to a different village was waiting for him at the house. The appellant, in the presence of Brijlal, quarrelled with his wife deceased Taribai. When Brijlal protested and intervened, the appellant left his house. It is the prosecution case that subsequently the appellant again returned to his house and killed his wife Taribai by assaulting her with Lathi and Knife. The murder was detected on the following morning when the dead body of Taribai was found lying in a room of the house. The only inmate of the house was child Amin (P.W.-5), aged about 5 years.

A report of the incident was lodged by Dilip (P.W.-3) real brother and neighbour of appellant Heeraman. Post mortem examination of the deceased showed that there were seven incised injuries on hands and legs, a contusion on the left hand finger and another contusion on the skull on the frontal region, vide post mortem report, Ex.P-8. The contused wound on the skull was responsible for the death. The frontal bone was thus fractured with contusion in the brain. Blood clots and blood effusion was seen in membrance and brain tissues. The cause of the death was shock due to haemorrhage and injury to skull.

The appellant was apprehended on 5-8-1984 when his shirt and Lungi worn by him were seized on suspicion of being blood-stained. The appellant further got a Lathi and Knife recovered on his information and at his instance from inside his house. The report of Chemical Examiner, Ex.P-20, confirmed presence of blood on shirt and Lungi of the appellant and Lathi recovered at his instance. No blood was however found on the Knife. The report of serologist has not been filed. It is, therefore, not known whether the blood found on the clothes of the appellant and Lathi was human blood.

The appellant abjured his guilt. His defence was that his elder wife Ramkalibai had left his house 15 days prior to the date of incident for village Bordahi. He had also left his Ghisi house two days prior to the date of the incident and had gone to village Bordahi to his elder wife.

The learned Additional Sessions Judge, Seoni found the appellant guilty and accordingly convicted and sentenced him as already indicated. Aggrieved from that judgment, the appellant has filed this appeal through jail.

In this case all the material witnesses turned hostile. Dhruvdas (P.W.-9) denied that he had gambled on the day of Jyuti festival i.e. on 28-7-1984 with appellant and others at the house of Bhupat in the village of the occurrence. Bhupat (P.W.-8) also denied that any gambling had taken place at his house on that date or that the appellant was one of the participants in the gambling. Dilip (P.W.-3) brother and neighbour of the appellant, denied that he had seen the appellant at his Ghisi house on the night of the festival. Brijlal (P.W.-2) brother-in-law of the appellant and living in outside village, who was supposed to say that he had visited Ghisi house of the appellant on the material day, deposed that he did visit Ghisi house of the appellant on the material day but denied having seen the appellant at his house. This witness happened to speak stray sentences here and there in his testimony from which the learned trial Judge held that it was established that the appellant was present in his Ghisi house on the material day. Amin (P.W.-5) a child aged 5 years, who is son of the appellant from his younger wife deceased Taribai, was supposed to be an eye witness. He too turned hostile but he also happened to utter some sentences from which the learned trial Judge inferred that the appellant was not only present in his Ghisi house on the material night but had also killed Taribai.

It will thus be seen that conclusion about guilt of the appellant was drawn by the learned trial Judge from certain parts of evidence of two hostile witnesses Brijlal (P.W.-2), brother-in-law of the appellant, and child witness Amin (P. W.-5), his son. It is the evidence of these witnesses which deserves to be carefully scrutinized to find how much reliance can be placed on their testimony.

Brijlal (P.W.-2) at the outset deposed that he had reached village Ghisi on the day of Jyuti festival. At that time he had seen the dead body of Taribai lying inside a room of the house of the appellant. He further deposed that the relations between appellant and deceased Taribai were cordial. He was then declared hostile by the prosecution. In cross examination at the instance of the prosecution he deposed that he had reached village Ghisi at about 6 or 7.00 P.M. in the evening on the day of the Jyuti festival. He had also visited the house of the appellant on that night. He had then not come to know of any quarrel having taken place between appellant Heeraman and his wife Taribai. He remained at the house of the appellant for 1 or 2 hours. He stated further down in his deposition that when he had gone and stayed for a short while in the house of the appellant, appellant Heeraman was not in a drunken condition but in a sober state. This piece of evidence was utilised by the learned trial Judge to hold that the appellant was at his house in village Ghisi on the fateful night. Brijlal (P.W.-2) however stated categorically both before as also after uttering the above words that he had not seen appellant Heeraman at his house on the material night. He went to the length of stating that appellant had left his house 3 days prior to the day of Jyuti festival and, therefore, himself questioned how could he have seen the appellant at the latter''s house. But the above stray statement by the witness that when he visited the appellant''s house the appellant was not in a drunken condition but in a sober state, was utilised by the learned trial Judge to base his finding that the appellant was in his house on the material night. In our opinion, Brijlal was a totally unreliable witness. He stood thoroughly discredited in his cross examination. It was wrong to pick out stray sentence spoken by him to make the same basis of any conclusion, as the learned trial Judge apparently did Speaking about such kind of hostile witnesses their Lordships of the Supreme Court in the case of Sat Paul Vs. Delhi Administration, observed in paragraph 53 of the judgment as follows : "It was, therefore, not proper for the Courts below to pick out a sentence or two from their evidence to support the evidence of trap, witnesses."

Coming to the evidence of child witness Amin (P.W.-5), it is recognized legal position that it is notoriously dangerous to accept the evidence of a child witness unless satisfaction is reached that it was free from tutoring and upon close scrutiny it bears the stamp of naturalness and truth. The learned trial Judge recorded a certificate before starting to record the evidence of Amin that he understood questions only partially and gave only partial replies and that too after pauses. He was naturally not administered any oath. His evidence is short and it may be set out with advantage as below : -

esjh ek� ej xbZ gSA eSa] ek� ds lkFk jgrk FkkA esjk cki ek� ds lkFk jgrk FkkA ;g iwNus ij fd rqEgkjh ek� dks fdlus ekjk] cPps us vis{kk�r šph vkokt esa dgk fd cki us ekjkA vc dgrk gS fd esjk cki xk�o x;k FkkA vkxs iwNus ij xokg tokc ugha nsrkA

izfrijh{k.k }kjk Jh ,p- ,l- Bkdqj vf/k- okLrs vkjksih %&

ftl jkr esjh ek� ejh ml jkr esjk cki ?kj ij ugha FkkA esjs cki us esjh ek� dks ugha ekjkA esjh ek� ls esjk cki ugha yM+rk FkkA

izfrijh{k.k }kjk Jh ,- ds- fnokdj] yksd vfHk;kstd %&

&&&&&&&&&&&&&&&& xyr gS fd jkr dks esjh ek� dks esjs cki us ykBh ls ekjk FkkA eSaus iqfyl dks ,slk ugha cksyk Fkk fd esjs cki us esjh ek� dks ykBh ls ekjk Fkk &&&&&&&&&&&&&&& cM+h ek� ds lkFk vk;k gw�] cM+h ek� us esjs dks fl[kkbZ Fkh fd cksyuk fd cki us ugha ekjkA &&&&&&&& eSa ek� ds ikl jgrk gw�A

iqu% izfrijh{k.k }kjk Jh ,p- ,l- Bkdqj vf/k- okLrs vkjksih %&

vkth ds lkFk jgrk gw�A eq>s vkth us vkt cksyus ds fy;s ugha fl[kk;kA esjh cM+h ek� us Hkh eq>s ugha fl[kk;kA

Considering the contradictory statements made too often in this case by the child witness as will be clear from the above extract of his evidence, it will be most unsafe to reach any conclusion thereon. It was hazardous to hold on his evidence either that the appellant was in his house on the material night or that he had seen the appellant assaulting the deceased.

There was no other evidence. It must be held that it was not satisfactorily established on the entire evidence that the appellant was in his house at village Ghisi on the material night or on Amin''s evidence that he had on that night witnessed the appellant assaulting the deceased.

In view of the foregoing discussion, it is proper to give benefit of doubt to the appellant. The appeal is allowed. The conviction of appellant Heeraman for the offence u/s 302, Indian Penal Code, for murdering his wife Taribai and sentence of life imprisonment are set aside. The appellant is acquitted of that offence. He shall be set at liberty forthwith if not required in any other case.