AGRAWAL, J. - (1.) APELLANT Binjaram has filed this appeal against his conviction for the offence under Section 302, Indian Penal Code by the Additional Sessions Judge No.1, Jodhpur vide his judgment dated 26th April, 1977 in Sessions Trial No. 17/74. In the sessions trial aforesaid the appellant was prosecuted for the murder of his wife Smt. Pyarki.
(2.) THE case of the prosecution is that the appellant suspected the fidelity of his wife and on 1st June, 1967 the appellant inflicted two injuries on the head of the deceased with a 'mogri' (thick wooden stick) as a result of which she died on the spot. Hanvantaram (P.W.4) who is the son of the appellant and was aged about ten years at that time entered the house and found his mother (deceased) lying injured and found the appellant sitting near her. He went and informed his grandmother Smt. Sayara who was living in a separate house. Smt. Sayara came to the house of the appellant and asked the appellant as to why be had assaulted his wife and the appellant told her that she was his property and, therefore, he killed her and be further told Smt. Sayara to leave the place or otherwise he would kill her also. Thereafter Smt. Sayara lodged a report at police station Shergarh on 1st June 1967. A case under Section 302 Indian Penal Code was registered and the investigation was commenced. Shri Mahboob Khan (P.W.5) who was posted as S.H.O. at police station Shergarh arrived at the scene of the occurrence and prepared the site plan (Ex. P3) the memo (Ex. P3) about the condition of the dead body, memo of site inspection (Ex. P. 7), and be also seized the blood stained clothes of the deceased vide memo (Ex. P. 4) and the 'mogri' which was lying at the spot and was stained with blood vide memo (Ex. P4A). The appellant was arrested at the spot vide memo (Ex. P.5). The post mortem examination of the dead body of Smt. Pyarki was conducted by Dr. Shanti Gopal Sinha (P. W. 1), Medical Officer, Incharge, Shergarh Hospital, District Jodhpur and he prepared the post mortem report (Ex. P1). According to the post mortem report the deceased had two lacerated wounds, one was 3 1/2  X 2  X upto brain on the right parietal bone vertically and the other was 3" x 2' X upto brain on the middle of the occipital bone vertically. According to the medical officer, the cause of death was due to laceration of vital organ such as brain haemorrhage and shock. After completing the investigation, the police filed a charge sheet against the appellant in the court of Munsif and Judicial Magistrate, Jodhpur District, Jodhpur and by order dated 29th December, 1967 the Judicial Magistrate committed the appellant for trial to the Court of Sessions. In the Court of Sessions, a charge under Section 302, Indian Penal Code was framed against the appellant. On 12th March, 1968 when the appellant appeared before the Sessions Judge it appeared that he was of unsound mind and, therefore, an order was passed for his medical examination with regard to the condition of his mental state. After the appellant had been medically examined and bad been kept under observation in the hospital, the. Sessions Judge on 31st August, 1969 passed -an order holding that the appellant was of unsound mind and incapable of making his defence. The Sessions Judge directed the appellant should be detained in safe custody in the Central Jail, Jodhpur till he was cured of unsoundness of mind. The appellant remained under treatment and ultimately on 5th January, 1977 the Sessions Judge on the basis of the report received from the hospital found that the appellant bad been cured of his insanity and that he could be tried and thereupon the trial was held. The prosecution in support of its case examined four witnesses. Dr. Shant, Gopal Sinha (P. W. 1) is the medical officer who had conducted the post mortem examination of the dead body of the deceased and has proved the post mortem report (Ex. P. 1). Anna (P.W. 2) resides in the neighbourhood of the appellant and has deposed that the appellant had committed the murder of Smt. Pyarki with a 'mogri'. Bhikaram (P. W. 3) has deposed that Smt. Sayara had come to him and told him that the appellant had killed his wife and the dead body was lying in the house. Thereafter he went to the house of the appellant and found him sitting near the dead body of his wife. Hanvantaram (PW. 4) is the son of the appellant who deposed that he had arrived at the house and found his mother lying in an injured condition though alive and that the appellant was sitting nearby and that he had gone and informed his grandmother about the incident and thereafter he had come along with his grandmother and his grandmother had asked the appellant as to why he had beaten his wife and thereupon the appellant bad stated that she was his property and had killed her and further told Smt. Sayara to leave the place or otherwise lie would kill her also. The appellant in his statement recorded under section 313, Criminal Procedure Code pleaded that he was not aware as to whether he had killed his wife and that he was insane at that time. He also stated that the members of his family made him insane by beating him. He has also stated that since he was insane his son and other witnesses were against him. Shri Mahboob Khan the Investigating Officer was examined by the court at a court witness.
(3.) THE Additional Sessions Judge held that although there is no eye witness to the occurrence the guilt of the appellant is established on the basis of the extra -judicial confession made by the appellant and other circumstantial evidence. The Additional Sessions Judge held that the extra judicial confession made by the appellant has been proved by Anna (P. W. 2) who has deposed that on being enquired the appellant had confessed to have murdered his wife and further by Hanvantaram (P.W. 4) who has also deposed that when his grandmother asked the appellant as to why he had killed his wife the appellant had replied that she was mine and he also threatened Smt. Sayara to go away otherwise he would kill her also. Apart from the extra judicial confession the other circumstances on which reliance was placed by the Additional Sessions Judge were the medical evidence namely the post mortem report (Ex. P. n indicating the injuries found on the person of the deceased and the circumstance that the appellant was found sitting neat the dead body at the time when Bhikaram (P.W. 3) arrived there and blood stained 'mogri' was recovered from the place where the dead body was found. Taking into consideration the aforesaid circumstances the Additional Sessions Judge held that Smt. Pyarki had met homicidal death and that the injuries which resulted in her death were inflicted on her person by the appellant with a 'mogri'. As to whether the appellant could claim the benefit of section 84 Indian' Penal Code the Additional Sessions Judge held that the accused is presumed as sane unless he is able to show that he was of unsound mind at the time of the commission of the act and that in the present case there was no direct evidence to show that the appellant was mainly unsound at the time when he had inflicted injuries on the person of the deceased which resulted in her death. The Additional Sessions Judge, therefore, held that the appellant wall guilty of the offence of murder punishable u/s 302 Indian Penal Code. While sentencing the appellant the Additional Sessions Judge, however, observed that the appellant had already remained in jail for a period of ten years but that period cannot be a set off against the sentence which was imposed on him and in the circumstances the Additional Sessions Judge held that this is a fit case in which the Government may commute the sentence to the period of imprisonment already undergone and he, therefore, strongly recommended to the Government of Rajasthan to commute the sentence of the appellant to the period of imprisonment already undergone. Hence this appeal.;