RAJESH BALIA, J. - (1.) THE appellant has been convicted of causing death of his wife Mst. Kali in the night between 30th March and 31st March, 1996 with the aid of tamy (steel rod). A F.I.R. was orally lodged by one Shyam Lal on 31.3.1996 at about 10.00 A.M. at the Police Station Phooliakallan on 31.3.1996 stating that while he was going on his duty to Agoocha Mines Hemraj S/o Ram Narayan who is the brother of the appellant informed him that the appellant has killed his wife Mst. Kali at about 11.00 P.M. by hitting over her head with a rod and requesting him to make a report to the police. To support this case the prosecution had relied on the only alleged eye witness Chaina recovery of weapon of offence at the instance of accused from the house of the accused and circumstantial evidence of last seen together.
(2.) THE post mortem revealed that the dead body had one injury over the forehead and that the cause of death of Mst. Kali was the said injury on the head. The prosecution came up with a case that in the previous night, Mst. Kali, accused Babu Lal and their daughter Chaina who was than a 10 years old child, had slept after having their meals. In the late night, Chaina was awakened on hearing his father abusing her mother and she saw her father Babu Lal hitting Mst. Kali with iron sabbal. As a result of which, she fell under the Neem tree and after a while, she became silent. Babu Lal has threatened his daughter and directed him to sleep. In the morning, the accused directed his daughter Chaina to call her grand parents. She informed grand parents, they came on the spot. At that time, Hemraj also appeared on the spot. Babu Lal was arrested on 1.4.1996 and at his instance, the weapon of assault a blood stained iron bar was recovered from the house of the accused vide recovery memo Ex.P/8 in the presence of Motibrs - -Ladu Ram, P.W. 20, Biram P.W. 10 and Hemraj P.W. 9. The post mortem has been conducted by the Medical Board which including Dr. S.N. Vijayvargia P.W. 19 and Dr. Gyan Prakash P.W. 16. Solitary eye witness Chaina was examined as P.W. 12. She was then a child of 10 years. She has not supported the case of prosecution and was declared hostile. She has denied to have seen anything in the night. She has denied that any quarrel took place between her father and mother before going to the bed. She has also denied her police statement. However, she has stated that her mother was suffering from Epilepsy and many a times, she has fallen as a result of it and there is a Neem tree within their house and there is a stone slab under it. The Trial Court found that the only eye witness has turned hostile and the matter has to be decided only on the basis of circumstantial evidence. It has also found that the recovery of the alleged weapon of offence at the instance of the accused has not been proved. The finding that the accused was undoubtedly with the lady during the fateful night and he alone had the opportunity to cause the injury to his wife on account of which she died and also at the time of investigation when the police has reached at the spot, Babu Lal was not found there and he was arrested on the next date. The Court held that these circumstances lead reasonably to only one conclusion consistent with the guilt of accused; that the accused alone has caused the death of Mst. Kali. He, therefore, convicted the accused Under Section 302 I.P.C. and sentenced him to Life Imprisonment and a fine of Rs. 1,000/ -. The accused has been in jail since the day of his arrest.
(3.) HEARD learned amicus curiae Miss Sunita Jain and the learned public prosecutor.;