Non-production of all eye witnesses by prosecution fatal.

Manohar Pershad, J.-

This is an appeal on behalf of the State against the Acquittal of the accused. In such appeals, this Court does not usually interfere with the order of acquittal unless there are compelling and substantial reasons; but the learned Public Prosecutor contended that the learned Sessions Judge has erred in holding that the failure on the part of the prosecution to produce all the eyewitnesses for examination before the committing Magistrate’s Court was fatal; as such, it is urged that his conclusion that the accused are entitled to an acquittal is not justified.

The facts leading to this appeal are: On 22nd July, 1958, when A-1 returned to his house in the evening, he found the door closed from inside. He called out the deceased, who was his daughter-in-law. She came out and went away saying that she would go to the pond to wash clothes. After entering the hut, he found P.W. 1 concealing himself in a big earthern pot. A-1 caught hold of his hair and pulled him out and thed him to a pillar with the help of P.W. 2. Sometime later, the deceased came back to the hut. She was also tied to a pole and beaten by A-1, Baliah, P.W. 4, the brother of P.W. 1 arrived at the house of the accused on bearing from P.W. 2 that his brother was tied to a pole. He got his brother released on assuring the accused that he would be bound by whatever decision the panchayat gives. P.W. 1 was accordingly released. Thereafter A-2 came and when he knew that his wife had been found in a compromising position, he gave her a few blows and released her. She then took her food in the night and at about midnight she died. The matter was not reported to the police patel, but somehow the police patel got the information of the offence, came to the house of the accused and finding the dead body, made a report. An inquest was held over the dead body, Exhibit P-3, after which it was sent for post mortem examination. Shortly thereafter both the accused were arrested and a cord was discovered in consequence of the information given by A-1 and a stick, sari, bodice and a mat were discovered at the instance of A-2 under panchanamas Exhibits 5, 6 and 7. The accused confessed their guilt before the Circle Inspector and later before the Magistrate. They were charge-sheeted under section 302, Indian Penal Code. In all twelve witnesses were examined on behalf of the prosecution. The accused did not produce any defence evidence. On the evidence, the learned Sessions Judge acquitted the accused. Hence this appeal on behalf of the State.

Of the prosecution witnesses, P.W. 7 is the doctor. According to him, he conducted the post mortem examination on July 23, 1958. There were four ante-mortem injuries: (1) contused wound on left buttock 5“X, 1” and ½; (2) contused wound on the right buttock 4“X 1” and ½; (3) contused wound on the left shoulder blade and they were two 4“X 1”; (4) contused wound at the level of lower ribs lower side 5“X 1”. In the opinion of the doctor, the cause of death was shock and internal haemorrage due to the rupture of the liver in two places.

Thus, it would appear that from the statement of the doctor, the deceased died an unnatural death. The prosecution has led evidence to show that the deceased died due to the injuries inflicted on her by both the accused. The question is whether the prosecution has succeeded in proving this fact.

Of the other witnesses, P.W. 1 is the person who was found hiding in the earthern pot. According to him, while he was returning from the house of his aunt, the deceased met him and asked him where he was going. He told her that he was going to get a leaf for bidi to which she said that she would give the leaf herself in her house. She accordingly invited him to her house. He accepted the request and when they entered the house, she closed the door from inside. Just then A-1 arrived. He called out to her. In reply, she said that she was taking a bath. She told him (P.W. 1) that as the father-in-law had come, he sh

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