SUBELAL Vs. STATE OF M P

JUDGEMENT

(1.) Out of the two accused prosecuted for committing the murder of one Ttjiyabai-the wife of the appellant Subelal appellant's son Mangna bas been acquitted. The appellant has however been convicted on the basis of the sole testimony of Fagoobai (P.W. 1) who at the relevant time was in the keeping at Mangna.

(2.) It appears that the acquitted accused bad two wives, namely Fagoobai (P.W. 1) and Punabai (P.W. 5). Their mother-in-law was Tijiyabai i.e. the wife of the appellant Subelal. Tijiyabai was found floating in a nearby well where all these persons lived in a house. The body was taken out. Inspector Atulkar (P.W. 11) reached the spot and adehati nalish (Ex. P-15) was recorded. First Information Report was then recorded on its basis and is (Ex. P.16) Panchnama of the body was prepared and it was found that the tongue of the deceased protruded through its teeth and blood was coming out of the nostils. On the suspicion, the appellant and his son Mangna were taken into custody. Witnesses were examined by the police including Fagoobai (P.W. 1) and Punabai (P.W.5) statement of Fagoobai was also recorded under Section 164 Criminal Procedure Code during the course of _the prosecution. She was declared hostile and was cross-examined by the prosecution. The post-mortem examination also did not prove to be of any assistance to the prosecution. Since the body was completely decomposed and the Doctor performing the postmortem examination was unable to assign any cause of the death of Tijiyabai. He has examined in the court and therefore the postmortem report has little bearing on the case. The prosecution was the n left with the sole testimony of Fagoobai (P.W. 1) and the lower Court relying upon her testimony has convicted the appellant as aforesaid.

(3.) We find ourselves unable to rest the conviction of the appellant on the testimony of Fagoobai (P.W. 1) alone reason for our so doing is that when she was examined before the Magistrate under Section 164 Criminal Procedure Code vide Ex. D-2 all that she stated was this. eSus dksbZ yM+kbZ ;k naxk ugha ns[kk rhu eaxy gks x;s gSa fd eaxy ds jkst ,d fnu iqcg eSausa iVsy ds dq,Wa ij esjks 1k! dks [kM+s ns[kk Fkk A eSa esjh 1k! dk uke ughs tkurha A eSaus esjh 1k! dks vanj vdM+h gqbZ gkyr esa [kM+h gqbZ nkk esa ns[kk Fkk bids vykok eq>s vkSj dqN 11kb ugha dguk gS A In paragraph 23 of her deposition, she denied to have made any such statement earlier her dying statement were recorded as Ex. D-l she had made a bit different stages bas been changing her statement on the most vital issue .in the case as to the cause of the death of Tijiyabai, no reliance can be placed upon such a witness to rest any conviction. The lower Court cannot be said to be justified in relying upon her testimony and in further seeking corroboration to it from the testimony of a hostile witness namely Punabai (P.W. 5). There is no other circumstance on record which may connect the appellant with the Crime.