Decided on September 20,1952

Dissu Appellant
STATE Respondents


CHOWDHRY,J. - (1.) DISSU , aged 25 years, of village Sanhol, pargana Bakan, district Chamba, was challenged under Section 302, I. P. C., for causing the death of his wife Mt. Chelo, aged 22 years, at his own house in the afternoon of 12 12 1951. The Magistrate concerned committed him to Sessions to take his trial for an offence punishable under paragraph 2 of Section 304, I. P. C., and the learned Sessions Judge has convicted him under Section 325, I. P. C., and sentenced him to five years' rigorous imprisonment. Against that conviction and sentence Dissu has filed the present appeal.
(2.) THE facts, as found from the testimony of P. W. 3 Musahibu, who was an eye witness to the occurrence and is the appellant's mother's brother, and from the confession of the appellant himself to which he stuck in the main to the last, are not in dispute. The appellant had acquired Mt. Chelo for his wife by exchange. The bargain was however not a happy one, for the woman was a termagant. A day before the occurrence she had been coaxed against her will to return to his house from her parental home. In the afternoon in question the appellant asked her to bring hay. She not only refused to carry out the behest but foully abused him involving his mother. This enraged the appellant and he gave her two blows with a 'tehanta', causing her simple injuries. The woman repeated the foul abuse, and thereupon the appellant gave a blow on her back with a 'danda' causing simple injury and catching her by the locks and holding her close to the ground with her face downwards gave two blows on her neck which proved fatal. The appellant was in the act of giving these blows when Musahibu reached the scene of occurrence. The latter asked him not to beat his wife whereupon the appellant stopped giving her blows. But the blows already inflicted proved fatal, and within a short time the woman expired. The injuries on the neck, which proved fatal, have been described by the doctor in his post mortem report as marks of contusion on both sides of the neck all over joining with each other with ecchymosis of underlying tissues. The doctor found the pupils dilated, mouth slightly open with frothy discharge, the liver, spleen, both the lungs and the brain congested and the larynx and trachea congested with some mucus. The victim has been described by the doctor in the report as a young well built girl of about 22 years. In the opinion of the doctor death was due to asphyxia due to strangulation and must have been caused within five to thirty minutes of the infliction of the injuries.
(3.) THERE are two particulars in respect of which the confession differs from the other evidence on the record, and it was argued by the learned counsel for the appellant on the authority of 'Balmukand v. Emperor', AIR 1931 All 1 (FB), that the other evidence on the record being inconclusive, the confession must be accepted as a whole. The first is as to whether Musahibu reached the scene of occurrence after Mt. Chelo's death, as stated by the appellant in his confession, or whether he reached there while blows were being given, as stated by the witness himself. The confession of the appellant on this point appears to be false because he admitted that Musanibu asked him not to beat his wife. The warning could have been administered by Musahibu to the appellant only if the former saw the latter inflicting blows on his wife. The point is not of any importance, however, because the infliction of blows is admitted by the appellant. The other fact is however important, and that relates to whether Mt. Chelo died as a result merely of the blows inflicted on her neck by the appellant, or of strangulation. There is nothing in the confession of the appellant suggesting that he throttled her to death, but the postmortem report is clear that death was due to asphyxia caused by strangulation. The other details of the postmortem report given above also point to the same conclusion. Had the difference between the post mortem report and the statement of the appellant stood at that, there would have been no difficulty in accepting the former and disregarding the latter. It was however elicited from the doctor in cross examination that the fatal injury in question (described above as marks of contusion on both sides of the neck all over joining with each other with ecchymosis of underlying tissues) could have been caused by fist blows. After this statement it was incumbent upon the counsel for the prosecution, and, if he failed to do so, on the Sessions Judge, to question the doctor further as to whether it was possible for fist blows to have caused strangulation. It is very unlikely that they should have, but as the point was not clarified the matter is left in doubt. This is not the only circumstance showing the unsatisfactory nature of the trial before the Sessions Judge, for there was no question put to the doctor as to the number of fist blows which in his opinion could have caused the said fatal injury. The argument of the learned Government Advocate that this was a clear case of strangulation, or in any case of a large number of blows having been persistently inflicted on the neck of the deceased, cannot therefore be accepted, and it has to be taken on foot of the appellant's confession that the said fatal injury was caused only by two blows inflicted by him on the deceased's neck.;

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