Judgement

SINHA, J. : This is an appeal by special leave from a judgment and order of a Division Bench of the Allahabad High Court dated the 31-3-1953 allowing the appeal of the State of Uttar Pradesh against the order of acquittal passed by the Additional Sessions Judge of Meerut dated the 25-5-1951, so far as the appellant was concerned. The appellant an another person named Hoshiara had both been placed on trial for an offence under S. 302, Penal Code read with S. 34, Penal Code. Both had been acquitted by the learned trial Judge.

But the State of Uttar Pradesh preferred an appeal only as against the appellant. The appellant has been convicted under that section and sentenced to transportation for life.

2. The charge against the appellant, as also against the co-accused was that on the night between the 3rd and 4th June 1950 in village Tavela Garhi, P. O. Binauli. sub-district Sardhana, district Meerut, he had murdered Smt. Shivdevi in the latter s gher and thereby committed an offence punishable under S. 302, Indian Penal Code. The first information report had been lodged by Sub-Inspector Bishram Singh to the effect that he along with head constable Ram Bahadur Singh and constable Bhagat Singh of the Provincial, Armed Constabulary who were with a platoon, camping outside with a view to prevention of serious crimes, while on their round stopped in front of the appellant s gher (which may freely be translated as a farmhouse) on hearing a sound which raised their suspicion.

Soon after that Asaram Kahar (P. W. 1) came running from the direction of the police camp which was just outside the village. He informed the police party that he and his wife had heard from the roof of their house the shrieks of a woman from inside the appellant s gher and that he had gone to the police camp to report the matter. The first informant called out the name of Atley repeatedly from outside as the main door had been bolted from inside. As there was no response, he called Sajawal, chowkidar and sent him along with constable Bhagat Singh and Asaram aforesaid inside the gher by scaling over the low wall to see what the matter was.

Guards were posted all round the house. They found the appellant lying on a bed with his face covered with a cloth. The appellant was brought out of the house and on being questioned by the Sub-Inspector, began to tremble and with folded hands begged pardon. The suspicion of the police party was further roused by the conduct of the appellant. They were inside the gher and on search being made of the premises, made the gruesome discovery of a corpse, which was later identified to be that of the appellant s wife, stuffed in a sack. The appellant is said to have made a self-incriminating statement as a result of which he was taken into custody and information sent to the police station.

P. W. 15, the second officer of the police station Binauli, left for the spot eight or nine miles distant from the police station and reaching there about 10 A.M. started the investigation. He found the dead body of Shivdevi in a gunny bag in the kotha inside the appellant s gher . He noticed a piece of cloth (orhna) in the mouth of the dead body. He found the petticoat of a female inside the kotha . He also found marks of strangulation on the neck of the deceased. The dead body was naked. That day and on the following day, i.e., 5-6-1950, he examined the persons who figured later as P. Ws. 1 to 9 and 11 to 14.

The Civil Surgeon of Meerut held the post-mortem examination of the dead body on the 5th June at 6-15 P.M. The body was bloated all over, in a highly advanced state of decomposition with the skin peeling off, both eyes were bulging and there was bloody discharge from both nostrils and the tongue was protruding out. No external mark of injury could be located due to the bloating and the advanced state of decomposition. On opening up the body, it was found that on the right side the second to fifth ribs and on the left side the