A.D. Koshal, J. - (1.) FATTE , aged 40 years, son of Mai Chand and a resident of village Gaddi Kheri in Police Station Sadar Rohtak, has filed this appeal against the judgment dated the 7th of June, 1966, of Shri K.S. Sidhu, Additional Sessions Judge, Rohtak, convicting him of an offence under section 302 of the Indian Penal Code for intentionally causing the death of his brother Surat Singh, aged 42 years, and of another under section 326 of the Indian Penal Code for causing grievous hurt to his own wife Shrimati Santokhi (P.W. 4) on the night between the 10th and 11th of May, 1965, and sentencing him on the two counts to imprisonment for life and rigorous imprisonment for two years respectively, the sentences having been directed to run concurrently.
(2.) THE case for the prosecution may be stated thus. Surat Singh deceased, who was an elder brother of the appellant, was a bachelor and had developed illicit corrections with Shrimati Santokhi (P.W. 4), the wife of the appellant. The appellant naturally resented Surat Singh's misconduct and used to beat Shrimati Santokhi in order to wean her away from the path of immorality for sometime before the occurrence, the appellant had ceased to be on speaking terms with the deceased. Having failed to stop his wife from having adulterous connections with Surat Singh, the appellant decided to put an end to the life of them both. On the night between the 10th and 11th of May, 1965, Surat Singh deceased and Shrimati Santokhi P. W. were sleeping in two different cots spread side by side in the compound which is common to the house of the appellant and the deceased. Shrimati Santokhi's children were also sleeping nearby. Biru (P.W. 6), a younger brother of the appellant, was sleeping in his own adjoining compound. At about midnight the appellant attacked Surat Singh in his sleep with Kassi Exhibit P. 1 and inflicting three cut wounds in the neck therewith, killed him on the spot. In the meantime Shrimati Santokhi P. W. got up and raised an alarm but she was also attacked by the appellant and sustained two incised wounds and a punctured wound on her arms and legs. Her hue and cry attracted to the spot Lekhu (P.W. 5), Biru (P.W. 6), Banwari (P.W. 7), and one Chandri, all of whom saw the appellant inflicting the last Kassi blow on Surat Singh deceased and three Kashi blow on Shrimati Santokhi P. W. The appellant made good his escape, taking the Kassi with himself. Biru (P.W. 6) reached Police Station Sadar Rohtak at 5 -30 A.M. on the 11th of May, 1965, when he lodged first information report Exhibit P.A. with Assistant Sub Inspector Joginder Singh (P.W. 15) who accompanied Biru P.W. to the spot of occurrence and prepared the inquest report in relation to the dead body of Surat Singh which was then despatched to the Rolhtak mortuary for post -mortem examination. The Assistant Sub Inspector took into possession bloodstained earth from underneath the cot in which the dead body of Surat Singh was found lying and also prepared statement Exhibit P.O. in relation to the injuries found by him on the person of Shrimati Santokhi P. W. who was examined at 10 -30 A.M. on the same day by Dr. Khalinder Sarup (P.W. 3) and was found to have the following injuries on her person: - 1. Oblique superficial incised wound measuring about 3" x 1/5'' on the lateral surface of right upper arm about 3" above the elbow. The slicing of skin was from below upwards. 2. Punctured would with clean cut edges measuring about 3/4" x 1/4" x 1" deep just at the anterior end of injury No. 1 Oblique incised wound measuring about 3 1/4'' x 3/4" x 2" deep on the antero -lateral surface of right leg about 3" both the leg bones appear to be cut in the alignment of wound. Injuries Nos. 1 and 2 were simple and injury No. 3 grievous in nature. Injury No. 2 had been caused by a sharp edged pointed weapon and the other two with sharp edged weapons. The duration of the injuries was estimated at "within 24 to 36 hours". The autopsy was performed by Dr. Mrs. J. Chanda (P.W. 1) on the 11th of May, 1965, from 11 -30 A.M. onwards. She found the followed ante -mortem injuries on the dead body of Surat Singh: - 1. A cut wound 2" x 1" x 2" on the left side of the neck, above the left clavicle. 2. A cut wound 4" x 1 1/2" x 2", 1/2" above injury No. 1 and 1 1/2" below the left ear. The carotid artery was found cut. 3. A cut wound 4 1/2" x 2 1/2" x 1 1/2" over the left mandible extending from the left ear up to the mid -point of the child . The mandible was also found cut. In the opinion of the doctor, Surat Singh died of shock and haemorrhage resulting from these injuries. The death had occurred almost immediately after the infliction of the injuries while the time -gap between the death and the autopsy was estimated as "within 24 hours". The injuries were sufficient in the ordinary course of nature to cause death. Partially digested food was found in the stomach of the deceased. The appellant absconded after the occurrence and was declared a proclaimed offender. He was arrested on the 24th of September, 1965, while in custody, made on the 2nd of October, 1965, a disclosure in pursuance of which kassi Exhibit P. 1 was recovered from a manure heap lying near he bictora of one Biru (Memos. Exhibits P. 1 and P. J.) Nineteen witnesses were examined at the trial in support of the prosecution case, three of them on affidavits. They included Shrimati Santokhi (P. W. 4) Lekhu (P. W. 5), Biru (P. W. 6) and Banwari (P. W. 7), all of whom were, according to the prosecution, eye -witnesses of the occurrence. Shrimati Santokhi (P.W. 4) refused to support the prosecution in the witness -box and deposed that on the night of the occurrence, she did not see the appellant in the house and that she also could not say where Surat Singh had slept. She professed ignorance about Surat Singh's killer as also own assailant, the reasons given by her for the same being that she had lost consciousness on account of receipt by her of kassi blows. She was allowed by the learned Additional Sessions Judge to be cross -examined by the Public Prosecutor and after her attention had been drawn to various portions of her statement made to the Committing Magistrate, the statement was transferred to the file of the Sessions case under the provisions of section 288 of the Code of Criminal Procedure. In that statement she had gone the whole hog with the prosecution and had claimed to be an eye -witness of the occurrence in which Surat Singh was killed by kassi blows given by the appellant and she herself had been injured by such blows. Banwari (P.W. 7) also asserted that he had not witnessed the occurrence but that he had only heard Shrimati Santokhi (P.W. ) and her children crying "mar gaya mar gaya". He was also allowed to be cross -examined by the Public Prosecutor and was confronted with that part of his statement made to the Committing Magistrate according to which he had heard Shrimati Santokhi and her children shouting immediately after the occurrence that Fatte had murdered Surat Singh. He took the stand that he might have made that assertion before the Committing Magistrate but that the same was not correct. Biru (P.W. 6) disclaimed being an eye -witness and asserted that he had reached the place of occurrence after the murder and that he only heard Shrimati Santokhi and her children crying that the appellant had run away after murdering Surat Singh and inflicting cut wounds on Shrimati Santokhi. Various portions of the first information report lodged by him with the police were brought to his attention but he denied that he was the author thereof. Lekhu (P.W. 5), however, stuck to his earlier stand and stated that he had seen the appellant inflicting kassi blows on the neck of Surat Singh and on the person of Shrimati Santokhi P. W. According to him, Banwari and Biru P.Ws. and Chandgi had also reached the spot in time to see the occurrence. He added that after the commission of the crime, the appellant ran away from the spot carrying the kassi with him. The witness further stated that Surat Singh had illicit relations with Shrimati Santokhi P.W. and that it was for that reason that the appellant had killed Surat Singh and injured Shrimati Santokhi. Pehlad (P.W. 8), Constable Sushil Kumar (P.W. 11) and Sub Inspector Rohtan Singh (P.W. 12) made depositions testifying to the abscondence of the appellant after the occurrence and about his arrest on the 24th of September, 1965, after he had been declared a proclaimed offender. Assistant Sub Inspector Din Dayal (P. W. 14) and Sub Inspector Joginder Singh (P.W. 15) are the investigating officers and they have given the same details of the investigation as have been narrated as part of the prosecution case. Rup Chand (P.W. 9) testified to the appellant having made a disclosure regarding the kassi in his presence and to the kassi having been later recovered from the place of its concealment. 3. When examined in pursuance of the provisions of section 342 of the Code of Criminal Procedure, the appellant admitted that Shrimati Santokhi was a woman of immoral character and that she was having illicit relations with his brother Surat Singh. He further admitted that he had been scolding and rebuking her on that account and that he had remained absent from his village for the entire period from the 11th of May, 1965, to the 24th of September, 1965, but asserted that his absence was due to the fact that he had gone to Bhatinda for his livelihood there. All the other allegations made against him by the prosecution were denied by him as incorrect. He disowned Kassi Exhibit P. 1 as well as the disclosure said to have been made by him to Assistant Sub Inspector Din Dayal P. W. No evidence was produced in defence.
(3.) THE learned Additional Sessions Judge found that the statement made by Shrimati Santokhi (P. W. 4) to he Committing Magistrate was a narration of the truth and that she had resiled therefrom at the trial with the object of saving her husband from punishment. He also regarded the deposition of Lekhu (P.W. 5) to "be trustworthy. Certain portions of the testimony of Biru (P.W. 6), a younger brother of the appellant, were found by him to be lending corroboration to Shrimati Santokhi's statement before the Committing Magistrate. He was further of the opinion that the medical evidence supported the prosecution case and that the appellant had been shown to have absconded immediately after the occurrence. It was in this view of the matter that he convicted and sentenced the appellant as aforesaid.;