Nawal Kishore, C. J. - (1.) THIS is an appeal by Rama Shankar accused, 18 years of age from the Judgment of the learned Sessions Judge, Churu, dated 27th of October 1949 convicting and sentencing him under sec. 302 of the Penal Code to imprisonment for life for having caused the death of his wife Shakuntla by catting her throat.
(2.) THE facts relating to this case are few and may be briefly stated. THE accused and Shakuntla were married on 4th of May 1948 and on the day of occurrence, she was carrying a pregnancy of 4-1/2 months' duration, Shakuntla's father and family lived at Bikaner where the brother of the accused was also living separately. THE accused was, however, visiting his brother at Bikaner from time to time and Shakuntla was also, as will be clear from the detail given elsewhere in this judgment, visiting her father-in-law's family occasionally. P. W. 2 Joti Prasad, father of the accused was Station Master, first at Nagasar and at the time of the occurrence at Sujangarh. With him were also living Sudarshana, his daughter, the accused and three other minor sons Satya Prakash, Puran Prakash and Anil Kumar, Kamla wife of Prem Prabhakar, another son of Joti Prakash. Mt. Shakuntla came to Sujangarh from Bikaner on 30th of May 1949. Nothing happened till last of June 1949. On the night between the 2nd and 3rd of June 1949 Shakuntla was found in a room in the house with her throat cut and a Chhuri was lying nearby. P. W. 1 Sudarshana, sister of the accused woke up on hearing some gurgling noise at about 2 A. M. and on going to the verandah where Shakuntla was sleeping found the bed empty. She looked for her in the adjoining room through the chink of the door which was bolted from inside and found her lying on the ground and gasping for breath. She could see with the help of the lamp which was lighted and shouted for Shakuntla and rapped at the door but no reply was received. Mt. Kamala also Woke up on account of the shouting and other noise and joined Sudarshana. That night Shakuntla had slept alone in the verandah and the accused had made his bed along side of the other members of the family in the compound. THE accused was, however, not in his bed and as Sudarshna looked through the chink of the door again, she found him coming into the room, where Shakuntla lay, from the opposite door after push-ing a chair which had been placed against it. THE accused, on seeing Shakuntla lying in a pool of blood, became alarmed, began to weep and opened the door which had been bolted from inside. On Sudarshna asking the accused what had happened he said "hai, khun ho gaya". As soon as Sudarshna entered the room, Shakuntala expired. THE accused asked her to go and fetch the father but she refused fearing that the grief on the death of his wife may not induce him to kill himself. She succeeded, however in inducing the accused to run back to the Station which was 25 to 30 paces away to inform his father. He came into the house and was so struck at what he saw that he did not talk to anyone beyond giving instructions to change the clothes and cover the blood with sand. It may be pointed out here that when Sudarshna shouted for Shakuntla, the noise was heard on the railway station and Joti Prasad asked the accused to go to the house and see what had happened and also bring a glass of water for him. According to the evidence, that is how the accused happened to come into the house from the back door. Joti Prasad on going back to the Station gave verbal information to Nityanand, Superintendent of Police, who happened to be there in connection with the forthcoming visit of the Premier. Nothing happened at night so far as the Police is concerned and it was at about 8 O' clock in the morning that a clerk from the Thana came and wrote out First Information Report Ex. P-1. THE dead body of Shakuntla was sent to P. W. 3 Dr. Shambhudayal, Assistant Surgeon, Sujangarh who performed the post-mortem examination of Mt. Shakuntla on 3rd of June 1949 Ex. P-12 is the post-mortem report which shows that the deceased had a big incised wound on her throat about 10" long extending from the tip of the mastoid on the left side to the tip of the mastoid on the right side and all the blood vessels, muscles and nerves had been cut through. THE death was due to haemorrhage and shock due to the severing of the big vessels of the neck. According to the Doctor, it was highly probable that it was a case of homicide but he stated as a witness that it was not impossible that it may be a case of suicide. THE doctor also found that Mt. Shakuntla had a prag-nancy of about four months' duration. THE accused was arrested on 3rd of June at 5 P. M. and challaned under sec. 302 of the Penal Code on 14th of June 1949 in the court of First Class Magistrate, Sujangarh and committed to Sessions Court on 16th of July 1949. THE accused pleaded not guilty and stated that his relations with the deceased were cordial and affectionate but he did not know that she was pregnant as he had no access to her since October 1948 and had met her after return to Sujangarh where he found her depressed or despondent. He pleaded alibi and stated that on the night of the occurrence, he was with his father from 11 P. M. to 2 A. M. and that at about 2 A. M. when his father heard somebody calling Shakuntla to open the door, he asked him to go to the house and she what it was and also bring water for him. So he entered the house from the nearest route from the platform which was from the back side and opened the door by pushing a chair which had been placed against it. He admitted having changed the clothes of the corpse under the instructions of his father. No defence was produced. THE prosecution produced six witnesses in all including P. W. 1 Sudarshna, P. W. 2 Joti Prasad and P. W. 6 Prem-narain, Shakuntla's father. THE trial was held by the learned Sessions Judge with the help of three assessors out of whom two returned the verdict that the accused was not guilty. THE learned Sessions Judge agreed with the third assessor and convicted and sentenced the accused as above. No direct evidence is forthcoming in this case connecting the accused with the commission of the crime and the learned Sessions Judge has relied upon what he has chosen to call circumstantial evidence but has dealt with it in a manner which can not be said to be judicial. He has, for instance, held that in respect of all the adult members of the house, Sudarshna, Joti Prasad and Kamala, there was neither any motive nor any thing else to enable the Court to connect them with the offence and that since Shakuntla was carrying an unlawful pregnancy of four and a half months of which the accused must have been aware, be alone could have committed the offence. The learned Sessions Judge did not weigh the force of his observations carefully otherwise he should have known that what a man might and could have done may not be done at all. In other words, from a pure conjecture the learned Sessions Judge has arrived at a definite conclusion for which there is neither any warrant nor a basis. The next element relied upon by the learned Sessions Judge is the fact that when - Sudarshna peeped through the door, the accused was found to be coming in and thereafter he indulged in such exclamations as did not show at all that he was grieved at all or sorry for the death of his wife. We are wholly unable to understand how from these factors it is possible for a Court to jump to the conclusion that the accused was responsible for the death of Shakuntla. Similarly, the learned Sessions Judge has relied upon other elements with which it is unnecessary to deal at length in this Judgment but with regard to which it is necessary to state that his mind was not working in a judicial manner. What he has described as circumstantial evidence are nothing but conjectures and innuendoes. He has indulged in the process of elimination but pushed it too far. He succeeded in eliminating Sudarshna, Joti Prasad and Kamala and from this jumped to the conclusion that the only person who could have done it was the accused. We do not propose to cavil at the elimination of the persons named above but cannot deprecate too strongly the method by which he came to the conclusion that the only person responsible for the crime was the accused. It is an elementary principle of criminal jurisprudence that no person should be convicted unless circumstances involve him unmistakably and his conduct cannot be explained away on any other hypothesis. Possibly, the learned Sessions Judge came to have a moral conviction that the accused had cut the throat of his wife on the basis of the statement of the accused that he had not met his wife for 7-1/2 months. He, however, forgot that the statement of the accused was a self-serving statement and may well have been made in order to establish the theory of suicide. It is conceivable that if a girl carries a pregnancy from a person other than her husband and her husband comes to know about it, he would normally make her existence in the house intolerable and the girl might, in order to put an end to her ignominy, resolve to take her life. It was the duty of the learned Sessions Judge, therefore, to test the statement of the accused in the light of the prosecution evidence and explore it in order to ascertain how for it was true that the accused and his wife had not met each other for such a long time as alleged by the accused. The learned Sessions Judge, truly speaking, did not spend as much care and thought as a serious case like this demanded, with the result that he has turned out a thesis rather than a judgment. Judicial conclusion is materially different from a moral conviction which is another name for conjectures and unless a conclusion is judicially sound, a person's liberty should not be taken away from him. With the above observations with regard to the manner in which the case has been dealt with in the Court of the learned Sessions Judge, we now proceed to consider the points which have been raised in this case at the Bar. The only question calling for a determination is whether it was a case of homicide or suicide and in order to arrive at our judgment, we have weighed the prosecution evidence in detail and referred freely to Taylor's Principles and Practice of Medical Jurisprudence Vol. 1 Tenth Edition for the purpose of determining whether a wound of the character received by the deceased could be self-inflicted. Much argument has been raised on the question of motive in this case and we will deal with it presently but we may point out that even if the motive is fully established, it would not necessarily mean that the accused had committed the offence unless his connection with it is established beyond all doubt. It has been urged by the learned Government Advocate altogether on the basis of the statement of the accused that the latter had not met his wife for 7-1/2 months and that, therefore, since she was carrying a pregnancy of 4-1/2 months, she must have conceived by someone else than her husband. From this it is argued that the accused would not submit to such a conduct on the part of his wife and had, therefore, caused her death. This was the stand taken up by the learned Government Advocate at the commencement of his reply but he ultimately conceded that the prosecution evidence on the record clearly established that the husband and the wife had occasions to meet during the period of gestation though he still contended that there was nothing to show that the accused had intercourse with her. The comedown on the part of the learned Government Advocate is indeed due to overwhelming evidence produced by the prosecution itself showing the important fact that the accused had throughout been meeting his wife. There is, in the first instance, the statement of P. W. 2 Joti Prasad and then of P. W. 6 Premnarain and P. W. 1 Sudarshna. From a perusal of this evidence it is clear that Shakuntla first came to the house of the accused on 20th of May 1948 and went back to her parents' house in August 1948. She came back, however to the house of her father-in-law soon after and did not return to her father's house till 3rd of November 1948. Four days after, the accused took her back and she lived at her father-in-law's house till the end of January and possibly till the middle of March when a son was born to Premnarain. On the 13th of May she was definitely at her father's house in Bikaner and the accused was also at Bikaner in those days. Thereafter, when an attempt was made to send her to Sujangarh where Joti Prasad was posted, she was very unwilling to go and stated to her father that her husband was carrying on with Kamala who was rough in her behaviour towards her. On the basis of this evidence we do not wonder that it has been conceded on behalf of the Sarkar that the statement of the accused that he had no met his wife for 7-1/2 months was nor quite correct. The further contention of the learned Government Advocate that there was nothing to show that even although they had occasions to meet each other, the accused actually had intercourse with his wife, appears to us to be baseless as there is nothing on the record to show that the husband was impotent or that Shakuntla was a girl of bad character. Accordingly the inference is irresistible that she had conceived by her husband and that the child in her womb was legitimate. Therefore, ground is cut beneath the prosecution case and motive on the part of the accused for the crime cannot be said to have been established. The prosecution has been behaving in a curious manner in this case as it has neither prepared the Fards properly nor carried out a search of the house. If it was their case that the accused had cut the throat of his wife, the clothes which he was wearing at the time could have been stained with blood. The Police, however, did not make any search for these clothes. Even the Chhuri with which the throat is alleged to have been cut has not been described properly in the Fard prepared for the purpose. As urged by the learned Government Advocate it was a very difficult case inasmuch at all the prosecution witnesses were near relations of the accused and naturally interested in saving him. It was accordingly all the more necessary that the prosecution should have taken greater pains in the case and handled it carefully. After dealing with the motive imputed to the accused for the commission of the crime, the next question which arises is whether Mt. Shakuntla could be in a desperate mood to end her life. It is in evidence that she was suspecting a liaison on the part of the accused with Kamala and that she was very unwilling to come to her father-in-law's house. She remained depressed and despondent. She would naturally be a canker in the eyes of Kamala and her husband. It is in evidence that on the night of the incident her husband slept away from her. It is conceivable that having found that she was not required in the house, she decided to put an end to her life. It is not possible to hold positively in the circumstances in which the case has developed that she was murdered. If it had been a case of murder, it would require in the first instance that she should be dragged from her bed in to the room where the deed was done and then since she would not permit anyone to do it without putting up a struggle, there would be marks of violent struggle on her body and further a lot of hue and cry and commotion would be raised in the house and it would attract the notice of the neighbours and the people on the platform where a lot of activity was going on in connection with the forthcoming visit of the Chief Minister, Rajasthan. The medical evidence shows that there were absolutely no mark of violence or struggle on her body. In fact, even the bangles which she was wearing before her death were all intact. The neighbour Bigamal lives next door and was sleeping in the compound and yet knew nothing about it. It is possible that she may have quietly left her bed, went into the room, bolted it from inside and cut her throat. The question which now remains is whether such an extensive wound could be inflicted by the deceased with her own hand. P. W. 3 Dr. Shambhudayal stated that looking at the seriousness of the wound, suicide appeared to be difficult but it was not impossible. In Taylor's Principles and Practice of Medical Jurisprudence Vol. I Tenth Edition p. 320, the following passage occurs : - "it has been some what hastily laid down as a rule that an extensive wound of the throat, involving all the vessels and soft parts of the neck to the spine, could not be inflicted by a suicide. Although in general suicidal wounds of this part of the body do not reach far back, or involve the vessels of more than one side, yet we find occasionally that all the soft parts are thus completely divided. These are cases in which, perhaps, with a firm hand; there is a most determined purpose of self-destruction. In a case of suicide observed by Marc, the weapon had divided all the muscles of the neck, the windpipe, and gullet; it had severed the jugular veins and both carotid arteries; and had even grazed the anterior ligaments of the spine. A wound so extensive as this is rarely seen in a case of suicide; but there is no ground for the assertion that extensive wounds in the throat are incompatible with self-murder. " From the above, the possibility of a suicide in respect of the extensive nature of the wound has not been ruled out. The learned Government Advocate has drawn our attention to the following two important factors in this connection. Firstly, he has also referred to a passage in Taylor's Principles and Practice of Medical Jurisprudence p. 325 according to which wounds which take an oblique course from upwards are generally indicative of homicide and it is extremely rare that a person bent on suicide unless a lunatic, thus uses a weapon. Secondly he urged that the statements of P. W. 1 Sudarshna and P. W. 2 Jotiprasad showed that the body of Shakuntla was lying on the ground with her face downwards and that this clearly indicated that she had not committed suicide but had been murdered by someone. So far as the passage from Taylor's Jurisprudence is concerned, its significance is modified by the observations contained on page 324 where it is stated that suicidal wounds are subject to such variation in extent and direction that it is scarcely possible to generalise with respect to them. Nevertheless, the learned author goes on, an attention to these matters may sometimes be of real assistance to the inquirer, when the body has not moved from the position in which it is found. In this case it is in evidence that all the clothes were changed and the body was moved from where it was found to another position in the room. Further, if it is not possible to generalise with respect to suicidal wounds, it would be dangerous to hold that a wound which takes an oblique course from below upwards is necessarily indicative of homicide. So far as the other point is concerned, Lyon's Medical Jurisprudence refers to the methods by which homicidal and suicidal throat-wounds may ordinarily be distinguished and reference is made to these in 172 I. C. 171. The learned Judges observed that an intending suicide seldom cuts his throat while lying in bed that he usually does so in the erect or sitting position and on the supervention of unconsciousness, he collapses to the floor and probably turns over on his face. "a body stretched out in bed with a wound on the throat suggests murder during sleep; one on its back on the floor makes one think of the possibility of homicide in which more than one person has had a hand; a body, face downwards, is almost certainly of suicide. " In the circumstances, the position in which the body of Shakuntla W|as seen by Sudarshna and Joti Prasad in consistent with the injury being suicidal. The accused, it may be pointed out, pleaded alibi and though he led no defence it appears from the statement of Joti Prasad, a prosecution witness that the accused was with him from 11 P. M. till 2 A. M. when Shakuntala was found lying in the room with her throat cut. Joti Prasad is no doubt the father of the accused and naturally interested in him and, therefore, we can only accept his statement with caution. Everything considered, the case against the accused is extremely doubtful and we have no hesitation in giving him the benefit of this doubt. We, accordingly, accept this appeal, set aside the order of the learned Sessions Judge convicting and sentencing him to rigorous imprisonment for life and hereby acquit him. He shall be set at liberty forthwith. .;