Mange Ram vs State of Haryana

M.R. Sharma, J. (Oral)

Vide his judgment and order dated 22nd September, 1983, learned Sessions Judge, Bhiwani, convicted the appellant under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life.

The appellant is said to have strangulated to death his wife Shri mati Omli on April, 1983 at about 11 AM at his own house situated in village Mandhola, Police Station Dadri. The law was set into motion on the basis of the first information report, Exhibit PA, lodged by Ram Kishan PW 1, brother of the deceased at Police Station, Dadri. According to Ram Kishan, he and his brother Krishan PW 7, were coming from Dadri after purchasing diesel oil. They had two sisters, the deceased as well as Shrimati Dhanno who were married to Ramesh son of Dadu Ram of this very village. When they reached near village Mandhola, they thought of paying a visit to their sisters who was married in that village. When both of them went to the house of their sister Omli, they found Babli, daughter of the appellant and Vajendar his son crying. When questioned, Babli told them her father (the appellant) had strangulated and killed the deceased and then ran away.

After recording the first information report SubInspector Raj Singh PW 8 sent the dead body for postmortem examination. Dr. Subhash Bansal PW3, who conducted this examination on 14th April, 1983 at 11.15 A.M. observed as under :

"On the neck bruises of the size of 3 cm x 1.5 cm and 4 cm. x 1.5 cm were present on the front of the neck on the either side of the wind pipe. Echymosis was present on both sides of neck. It ran obliquely downwards and outwards. It was reddish in colour. On dissection muscles were normal, fusion of the blood was present into the subcutaneous tissues of the neck. Thyroid cartilage was normal.

It was a body of healthy, well built middle aged woman. Her face was congested and cyanosed. Her eyes were open, mouth was open. Blood stained fluid was coming out of the nostrils and the mouth. Both the hands were clinched. Rigor mortis was present. Post mortem staining were present on the back. She was wearing one sari cotton of redyellow blue green strips, one white blouse, one petticoat of cotton of blue colour, one pair of pazaib, made of gilt, one chain in the neck of steel, one black thread, one ear ring in left ear of yellow colour made of brass, and nose pin (gold), five bangles of glass red colour and bangles of brass in right wrist and five bangles of glass of red colour in left wrist. Larynx and trachea contained blood discharge and mucous memberance was congested. Right jung was congested and exuding dark fluid blood on section. The same was the position with respect of left lung. Left heart was empty and right was full of dark fluid blood. Memberance and brain were congested. Stomach contained semi digested food about two ounces. Liver, spleen and kidney were congested and blader was empty. Mouth contained a little blood discharge. Uterus contained dead fetus of 2428 weeks. Male child containing aminiotic fluid and placenta. The rest of the organs were healthy."

In his opinion the death was due to asphyxia caused by throttling of neck.

At the trial the prosecution relied on this medical evidence as well as the oscular version given by Babli PW2, Ram Kishan PW 1, and Krishan PW 7. Babli PW 2 did not support the prosecution and went to the extent of saying that her father did cause no harm to her mother. Learned trial Judge however accepted the evidence of PW 1 Ram Kishan and PW 7 Krishan for convicting and sentencing the appellant.

In this appeal by the convict we have gone through the evidence with the help of the learned counsel.

The only question involved in the case is whether the statements of PW 1 Ram Kishan & PW 7 Kishan are admissible in evidence or not. At the cost of repetition we might add that the occurrence took place at 10.00 AM in the morning. The brothers of the deceased are said to have come to the house of the deceased at 1.00 or 2.00 PM. In other words there is a difference of two or three hours between the actual occurrence and the visit of the brothers of the deceased to her house. The answers to the quarries made by the two brothers of the deceased from the daughter of the deceased cannot be regarded as a part of the transaction in which the murder of the deceased took place. As such the evidence of the brothers of the deceased cannot be regarded as admissible under Section 6 of the Evidence Act. This view is settled by Jowala Sahai v. Crown, 1914 Punjab Records (34) page 109. The alleged eye witness who described the occurrence to the two other witnesses had himself become hostile at the trial. The question arose whether the statements of the other two witnesses, to whom the incident had been narrated, should be admitted in evidence or not. The Division Bench held that the evidence of the two witnesses was in the nature of hearsay evidence. The same view was taken in Nasir Din alias Nasira s/o Umar Bakhsh v. Emperor, AIR 1945 Lahore 47, Partap Singh and another v. State of Madhya Pradesh, 1971 Criminal Law Journal 172, Mahendra v. State of M.P., 1975 Criminal Law Journal 110. We are constrained to hold that it was not open to the learned trial Judge to take into consideration the statements made by Ram Kishan PW 1 and Krishan PW 7. The prosecution has led no other evidence to convict the appellant with the crime.

For reasons aforementioned we hold that there is no evidence to connect the appellant with the crime, the appeal is allowed and he is acquitted of the charge.