EMPEROR Vs. HARNAM KISHA

JUDGEMENT

(1.) This is an appeal by the accused against his conviction for murder by the Sessions Judge of Kaira, and against the sentence of death passed upon him, and there is an application to confirm the death sentence.

(2.) The case for the prosecution is this: The accused was sleeping with his wife on the night in question. He had a quarrel with her because she refused to have sexual intercourse with him, and he beat her to death with a dharia. He then left the house, in which the only other occupant was his old mother, and went to his elder brother Fulabhai and told him what he had done. He then proceeded to the Police Sub-Inspector of Dakore, about seven miles away, and arrived there at six o clock in the morning and he there made a statement, which is exhibit 16, stating the facts in accordance with the prosecution case. Fulabhai, accused's brother, reported the matter to the Police Patel and subsequently made a statement before a Magistrate under Section 164 of the Criminal Procedure Code stating what the accused had told him and that he himself had reported the matter to the Police Patel. Now if that case is proved there can be no possible doubt about the guilt of the accused, but the question is whether it is proved.

(3.) So far as Fulabhai is concerned, he gave evidence before the learned Sessions Judge, and his evidence was entirely contradictory to what he had stated before the Magistrate. His evidence in the Sessions Court was that on the morning of the offence he heard that his brother was crying, that he went to the brother's (accused s) house, that he found his wife lying dead on the ground and a blood- stained dharia lying near by, and that the accused said that his wife had been killed by somebody. The statement made by the witness under Section 164 of the Criminal Procedure Code was of course used for the purpose of cross-examining him and discrediting his evidence in the Sessions Court, and one can feel no doubt whatever that the witness's evidence in the Sessions Court was untrue. But the fact that the evidence was untrue does not establish the truth of his earlier statement, and it is clear that the statement made under Section 164, Criminal Procedure Code, is not substantive evidence. The learned Sessions Judge appreciated that point and treated the evidence of Fulabhai as practically of no consequence.