MANA Vs. STATE

JUDGEMENT

(1.) THE prosecution case is that the appellant Mana who has a blind wife Choona was living with his father -in -law Gambhir. On the date of the incident i.e. on 23 -10 -1957 at about 8 a.m. the accused was quarrelling with the said wife when his mother -in -law Mani intervened. This instead of pacifying him inflamed his wrath which fell on the mother -in -law Mani whom he dealt a blow with a log of wood as a result of which she died almost immediately. On the basis of the above prosecution story the accused was prosecuted under section 302, Indian Penal Code but the Sessions Judge found him guilty under section 304 (Para I), Indian Penal Code and sentenced him to undergo rigorous imprisonment for 7 years.

(2.) THE defence is that Mani came there when he was talking with his wife and fell down on the stone and died. The injuries received by the deceased Mani have been described by P.W. No. 6 Dr. Badrul Hasan Naqui who held the post -mortem examination. They are as follows: Lacerated wound 1 1/2" x 1/6" bone deep on the left lateral side of the scalp. Lacerated wound 1" x 1/8" x muscle deep on the left half of the fore -head. Abrasion 1/2" x 1/4" on the right maxilla. Abrasion 1/2" x 1/2" on the left check.

(3.) THE prosecution has sought to establish the case against the accused with the two witnesses P.W. No. 1 Mangtya and P.W. No. 2 Choona, also the statement of Gambhira, the husband of the deceased made before the committal Court, and taken as evidence under section 33 of the Indian Evidence Act. This statement, Exh. P -12 has got to be discarded as inadmissible. Section 33 of the Evidence Act requires that before any evidence under this section can be admitted that there should be sufficient proof that the witness concerned was not available. No doubt the record shows two summonses were issued and there was an application by the Public Prosecutor to admit his statement in the committal Court as evidence on account of his non -availability; but nothing further was done. The Court relying on the two unserved summonses and the application of the Public Prosecutor admitted this evidence. The power under section 33 is a very wide power and it must be exercised with great caution. There must be a strict proof from the prosecution that the witness was not available. Persons who attempted to serve summonses on the witness must be examined. In this case there is an absolute lack of inquiry about this non availability of the witness. Exh. P -12 therefore should be kept out of consideration being inadmissible. But the prosecution case has been established otherwise. The witness Mangtya who has clearly deposed the incident in detail can be safely relied on. He came to the place of the incident on hearing the cries of the blind woman and saw the accused in temper. He also saw the accused actually taking the log of wood and giving a heavy blow on the head of Mst. Mani. The blind woman, who of course was not in a position to see actually what happened, can be relied on to the extent that the appellant was quarrelling with her and the deceased Mani came there. She no doubt afterwards tried to save her husband by saying that she heard the sound of a fall. But that the death was not due to such a fall is clear from the medical evidence. The injuries on the person of the deceased corroborated the testimony of this Mangtya. Then there is the evidence of P.W. No. 3 Sakadia and P.W. No. 7 Jairam. These are sort of extra -judicial confession. These confessions no doubt themselves could not be sufficient, but they do support the statement of Mangtya. In fact this Sakadia after hearing about the incident from the accused, took him to the police station and lodged the first information report. It is therefore clear that the appellant is responsible for causing the fatal injury to the deceased Mani.