- (1.) K. Narayan, J. Vlth Additional District Judge, Shahjahanpur by his order in. T. No, 376 of 1978, has acquitted accused Idrish and Smt, Jameelan father and mother, and convicted Jumman appellant of the offence of murder under Section 302, I. P. C. and has sentenced him to imprisonment for life. Aggrieved by his conviction and sentence, he has, come up in appeal.
(2.) WE have heard learned counsel for the appellant and A. G. A. and also gone through the records. The prosecution story has been that on 1-6-77 at 9-25 hours, one Naseer Khan later on examined as PW 1 conveyed that Smt. Nazma wife of Jumman Khan had hanged herself in her kothari around 2 p. m. and the member of mohalla had taken down her body and kept it in the court-yard. It was also stated by him that before yesteredy, there were some heated talks between the husband and wife and two police men had also reached the spot. Since this had happened in the evening, the murder of deceased was committed next day and the same was indicated by PW 2 Walli Ullah Khan to the Sub-Inspector of Police on 2-6-77. The body was sent for postmortem examination which was conducted on 3-6-77 by Dr. V. D. Singh, PW 6 both in the inquest as well as postmortem examination a number of contusions were found almost on the entire body of the deceased. It was thereafter that the investigation was commenced for the offence of murder. After necessary investigation, on submission of chargesheet, the three accused mentioned above were committed to the court of session and after evidence the conviction and sentences were arrived at by the learned Sessions Judge. In addition to the Medical Officers, the prosecution had also examined PW 5 Head Constable, Sri Nath Singh who had prepared the chick report, F. I. R. and PW 4 Sri Badri Narain Misra, Sub-inspector of Police who had conducted the investigation. Their evidence has not been of any material value as the deceased had already been taken down and any impression about the local inspection could not lead to any conclusion about the matter of suicide or murder. The evidence of occurrence whatever, was contained in the statements of PW 1 Naseer Khan, PW 2 Walli Ullah Khan and PW 3 Khaleel Ahmad PW 1 Naseer Khan had stated that on coming to know that the wife of Jumman Khan had hanged herself be had gone to the house of Jumman but at that time could not enter the house to reach the real place of hanging PW 2 Walli Ullah Khan has stated that when he reached he found some warmth in the body of Smt. Nazma and consequently in consultation with others including Triveni Lal, Pradhan they brought down the body of the deceased with a hope that she might survive previously she was already with PW 3 Khaleel Ahmad, father of Smt. Nazma who had come on getting in formation about the death of Smt. Nazma. Thus there was nothing in the evidence to connect the accused or any of them with the so- called murder of Smt. Nazma except the fact that there have been differences between deceased and her mother-in-law. Hower, that alone cannot be a sufficient reason or evidence to come to the conclusion that the guilt can be proved against them might have committed the murder. Even of it be that the contusions found upon the person of deceased were sufficient in the ordinary course of nature to cause death, the burden remains upon the prosecution to make out as to who was responsible for creation thereof. The prosecution had failed in that behalf also. A mere guess that since the accused happened to be the husband, generally residing in the same house and, therefore, he must have committed the murder or assault, cannot form a good idea regarding conclusion of guilt.
(3.) APART from the above, the prosecution evidence also suffers from certain weakness in the form that PW 1 Naseer Khan and PW 2 Walli Ullah Khan who alone belong to the village, were not independent persons in them selves. There has been some election and animosity between the Triveni Lal, Jumman and Naseer Khan was not away from it. He frankly admitted that Idrish and Triveni Lal as Pradhan were displeased with each other. It will not be much use to enter into the details as the evidence given by them itself, even if plea could not have been there was not sufficient to conculude that the crime was committed by any of the accused. In the result we find ourselves unable to maintain the conviction and sentence recored by the learned Sessions judge and this appeal should succeed The appeal is allowed and the conviction and sentences recorded by the learned Session Judge are hereby set aside. The accused need not to surrender. bail and bonds are cancelled and sureties are discharged Appeal allowed. .;