JUDGMENT
R.D. Shukla, J.
1. The appeal is directed against the judgment and order dated 14.8.1993 of IIIrd Addition Sessions judge, Ratlam, passed in S.I. No. 278 / 92, whereby the accused-appellant has been convicted under Section 302 1.P.C. for having committed murder of his wife Sajnibai on 24.7.1992 at about 9 p.m. in village Nalwasa, P.S. Raoti and sentenced to imprisonment for life.
2. The prosecution story in brief is that the accused was living alongwith his wife Sajnibai. On the date of incident there was some altercation between both of them hear the railway station. Accused assaulted and caused injuries to his wife on the railway station and brought her to his house by almost continuously beating her on way. Chowkidar Tela (P.W.I) received information, who then went to the house of accused and found Sajnibai dead inside the house. He, therefore, lodged F.I.R. in the Police Station Raoti whereby Crime No. 56/92 was registered by Balchandra (P.W. 8). He visited the spot, prepared site map Ex. P/8. He, further, prepared inquest report vide Ex.P/9 and the body was sent for postmortem examination with a letter of request Ex. P/10. Accused was arrested on 22.7.1992 vide Ex. P/ll. His gave information about the stick vide Ex. P/12. The same was seized vide Ex. P/13.
3. Dr. B.L. Mangriya (P.W. 2) conducted autopsy on the body of deceased on 25.7.1992 and found following injuries :
(i) Lacerated wound 11/2 × 1/2 × 1/2 c.m. on Rt eye brow.
(ii) Bruise 5×5 c.m. on front of Lt. thigh.
(iii) Bruise 5 x 2.5 c.m. on Rt. shoulder.
(iv) Bruise 6×3 c.m. on Lt. thigh.
(v) Bruise 7×3 c.m. on Rt. side of (Lateral) of chest.
(vi) Bruise 6 x 2.5 c.m. below No. 5 wound.
(vii) Bruise 6×3 c.m. on Lt. side of abdoman to lateral side of chest.
(viii) Bruise 5 x 2.5 c.m. on Lt. side of chest just above injury No. 7.
(ix) Lacerated wound ‘/2 x Vi x % c.m. on Lt. dorsom of hand.
(x) Abrasion 5×5 c.m. on Lt. buttock.
On internal examination he found rupture of liver and connection. Injured died of haemorrh age because of rupture of liver. Dr. Mangriya prepared report Ex. P/3. The doctor further sent the clothes of the deceased to police in a sealed bundle, which in turn seized by Mr. Balchandra vide Ex. P/14. After investigation accused was prosecuted, who denied the guilt and pleaded false implication.
The learned Trial Judge, after trial, convicted and sentenced the accused-appellant as above, hence, this appeal.
4. Nobody appeared for the accused, as such, in view of 1994(4) SCC 664,1996 (VI) JT 287 and AIR 1996 SC 2439, ex-parte arguments were heard. However, we perused the memo of appeal and the points raised therein.
5. The main objection raised by the appellant in the memo is that the prosecution witnesses are not reliable. There is no direct and connecting link between the crime and the accused. It has also been raised that the act would not be covered under the offence of murder.
As against it, learned Counsel for the State has supported the case of the prosecution and in all fairness conceded that there was no intention of murder and the accused only wanted to chestise his wife.
6. We were taken to the evidence on record. There is no serious challenge to the homicidal death. Even otherwise that stands proved apart from the statements of P.W. 1 Tela, Chowkidar and Balchandra (P.W. 9), but from the statement of Dr. B.L. Mangriya (P.W. 2), who conducted autopsy on the body of deceased, as stated above.
7. P.W. 5 Fakira, though hostile, has stated that he saw the accused moving towards railway station as his wife has gone towards the side of railway station. Heha.sfurthcrstatedthatatabout3p.rn. he (accused) came to his house and stated that there was quarrel between him and his wife. He (this witness) should look after his cattle and other property. He further states that he informed this fact to Hindudi Parel.
8. P.W.4 Hindudi has also corroborated that story and stated that Fakira informed him that accused has murdered his wife. P.W. 3 Ramesh Malviya, Patwari has proved the site map Ex. P/4 and stated that distance between the house of accused and the railway station is about one Kilometre.
9. P.W. 1 Tela has also turned hostile and has stated that a dead body of woman was lying in the field, but stands belied from the statement of Balchandra (P.W. 8), who has stated that he prepared site map and the body was found inside the house of the accused. As Tela (P.W.I) has turned hostile F.I.R. Ex. P/l cannot be used for corroboration of prosecution story.
10. We have perused the inquest report Ex. P/9, which has not at all been challenged. This report clearly mentions that fact that the body was found inside the house owned by the accused. P.W. 8 Balchandra has also very clearly stated in last portion of his statement para-6 that the body was found inside the house of the accused. Though most of the prosecution witnesses have turned hostile and there is no direct evidence to connect the accused with the crime, however, the man may lie but the circumstances shall not. In the instant case it is proved beyond reasonable doubt that: (i) the deceased Sajnibai was wife of the accused and was living with him; (ii) the dead body of Sajnibai was found inside the house of accused; (iii) Sajnibai had sustained injuries and the death was homicidal; (iv) the accused has made extra-judicial confession about the quarrel and further indicated that the P.W. 5 Fakira is looking after his cattle. This further goes to prove that there was quarrel and his wife was inside the house; and (v) there was no other occupant of the house except the accused and his wife.
In such cases where the husband and wife are found living together and either is found dead with homicidal injuries heavy burden lies on the serviving person (out of couple) to explain as to hew other is dead and how other had sustained homicidal injuries.
11. In our opinion, therefore, it stands proved beyond reasonable doubt that it is accused and accused alone who has caused injuries to his wife. It may further be mentioned here had the assault been done by anybody else the accused must have resisted the same and would have raised alarm. This conduct also goes against the accused. Though it is also true that while sustaining conviction on the basis of circumstantial evidence it should be seen that the chain of the circumstantial evidences is so complete that it is not only consistent with the hypothesis of the guilt of the accused, but is totally inconsistent with the hypothesis of innocence of the accused.
12. In this case as accused was residing with his wife, whose body was found inside the house with homicidal injuries the accused must have informed Fakira about the quarrel. There is absolutely no resistance by accused to raise the presumption of -causing injury by any other person. This leads to irresistible conclusion that accused and accused alone is responsible for causing injuries.
13. The next point that arises for determination in the case is whether accused intended to kill his wife ? Though, accused has caused nearly 10 injuries, but the injuries have not caused damage to the open and visible vital part of the body. There is possibility that injury No. 5 (which is of the size 7×3 c.m.) has caused damage and rupture to the liver. In such a situation the knowledge of likelihood of death cannot be inferred. In our considered opinion, the accused intended to chestise his wife and caused injuries with that intent. The accused is held responsible for the injuries caused unless there were intervening circumstances. In this case he has caused previous injuries by causing injury on the chest and abdomen which resulted in rupture of the liver. Thus, he would be held guilty for causing grievous injuries. As the injury was not only dangerous to life, but actually resulted in death.
14. As a result, appeal partly succeeds. The accused is acquitted of the offence p/ Under Section 302 I.P.C, but he is convicted Under Section 325 I.P.C. The accused has done merciless beating, therefore, a very lenient view in matter of sentence cannot be taken. As such, accused is sentenced to R.I. for 4 years under Section 325 I.P.C. He is on bail. His bail bonds are cancelled. He is directed to surrender before C.J.M. Ratlam, on or before 15.4.1997 or he shall be arrested and put in jail for serving the sentence. Any period of detention during investigation, trial and during pendency of appeal shall be given set off under Section 428 Cr.P.C.