Decided on August 08,1955

DHULA Appellant


- (1.) THE Additional Sessions Judge of Shajapur has agreeing with the opinion of the assessors found the appellant Dhula guilty under Section 302, I. P. C. for the murder of his wife Bali and has sentenced him to transportation for life. Dhula has now appealed against his conviction.
(2.) THE accused and his wife resided in village Awan. They lived in a "gawadi" which consisted of several dwelling rooms separated by thin partition walls. One of the rooms was in the occupation of the accused and his wife. The other rooms were occupied by Bhuli P. W. 1, Devali P. W. 3, Kana P. W. 4 and Nathi P, W. 6. The accused is a step-son of Bhuli. Devah is a daughter of Bhuli; Kana is a cousin of the accused and Nathi is a sister of the accused. It was alleged by the prosecution that Bali used to go away very frequently to her parents' home, and stay there for long periods. This the accused resented. On 30-4-1953 when Bali's brother Poora paid a visit to Dhula, Bali wanted to accompany her brother and return to her parents home. When the appellant did not permit her to go to her parents, Bali became sulky. On the morning of 1-5-1953 the appellant, Bali and Nathi went out to collect lime-stones. They returned home at about 11 A. M. When the party returned at 11 A. M. , the accused and Bali went inside their dwelling room. Nathi went out again to fetch butter-milk. The prosecution stated that on returning home Dhula asked Bali to cook his meals. She declined saying she would rather die in a sweeper's house than cook meals for him. On hearing this reply of Bali, the appellant picked up an axe and dealt several blows with it on Bali's head. Bali shouted (sic) On hearing her cries the witnesses Bhuli, Devali and Kana came out of their rooms and saw the accused come out of his room with an axe, which was smeared with blood and also saw him throw away the axe in the courtyard. The accused then ran away and absconded. He was arrested on 16-7-1954. Bheru, the chowkidar of the village removed Bali to police station Badod, where he lodged the First Information Report on the morning of 2-5-1953. In the report Dhula was named as the assailant. Thereafter Bali was removed in an unconscious state to the civil dispensary Agar. She succumbed to the injuries on 3-5-1953. According to post-mortem examination and the medical evidence Bali received four incised wounds on the head and her skull bones were fractured. During the course of investigation, Bhuli handed over to the police on 2-5-1953 an axe smeared with blood which she said, had been thrown away by the accused and subsequently picked up by her and kept in her house. According to the opinion of the Serologist the axe was stained with human blood. On 21-7-1954 the Sub-Divisional Magistrate of Susner recorded a confession of the accused. The learned Sessions Judge has, however, not relied on the confession. The accused denied having killed his wife. He admitted that he, his wife and Nathi went out in the morning to collect lime-stone and that they returned home at about 11 A. M. He said that thereafter his wife went inside the house and he sat out side the house. The accused offered no explanation as to how his wife sustained the injuries that she did and led no evidence in defence.
(3.) THE prosecution sought to prove the guilt of the accused mainly by the evidence of Bhuli, Devali, Kana s/o Kalu P. W. 4 and Kana 8/o Bheru P. W. 5. These witnesses deposed before the committing Magistrate that they heard cries of Bali; that they saw the accused come out of his house with an axe which was besmeared with blood; that the accused threw away the axe in the courtyard and then went away. In the Sessions Court they, however, resiled from their statements before the committing Magistrate and gave evidence to the effect that they did not see the accused coming out of his house with an axe. All that they said was that when they heard Bali's cries, they went to her room and saw her lying on the floor. (After setting out the evidence of these witnesses before the committing Magistrate and that before the Sessions Court His Lordship proceeded. The learned Sessions Judge came to the conclusion that the statements made by these witnesses before the Committing Magistrate were true and reliable and that all these witnesses, who were relatives of the accused resiled from their. . . previous statements just to save the accused from punishment. He, therefore, on the basis of the statements made by the above witnesses before the committing Magistrate, and on the evidence of Nathi that Dhula was the only person with Bali at their house when she left them at about 11 A. M. , found the appellant guilty under Section 302, I. P. C.;

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