K MALLES RAO Vs. STATE

JUDGEMENT

(1.) Here is an unfortunate case of a husband killing his wife by dealing fist blows and kicks on her stomach and other parts and the death was owing to rupture of the liver as a result of the assault by the appellant on October 22, 1980, at Bhubaneswar. Equally unfortunate, however, is the order of conviction recorded against the appellant under section 302 of the Indian Penal Code (for short, 'the Code') sentencing him to undergo imprisonment for life in a case of this nature by wrongly applying the fourth clause of section 300 of the Code.

(2.) As regards the assault by the appellant on the person of his wife (to be described hereinafter as the 'deceased'), there was the clear and cogent evidence of three close neighbours of the appellant (P.Ws. 1 to 3) who had testified that after a sudden quarrel, the appellant had dealt kicks and fist blows on the person of his wife who fell down and ultimately died. We are, however, not prepared to place any reliance on the testimony of P.W. 5 in this regard as he had made no statement either under section 161 or 164 of the Code of Criminal Procedure that he had witnessed the assault on the person of the deceased by the appellant. P.Ws. 4 and 6, the mother and brother respectively of the appellant, understandably did not support the case of the prosecution and were put leading questions by it. Two witnesses for the defence including the father-in-law of the appellant had been examined to say that no such occurrence had taken place. In our view, the evidence of P.Ws. 1 to 3 far outweighed the testimony of the two witnesses examined for the defence and the ocular testimony did get ample support from the medical evidence.

(3.) Having considered the evidence of P.Ws. 1 to 3 coupled with the medical evidence which would show that the death of the deceased was homicidal in nature, we are not prepared to accept the contention raised by Mr. Das for the appellant that the evidence of P.Ws. 1 to 3 was not worthy of credence.