BYAS, J. - (1.) BRIJ Lal, the appellant before us, was convicted under section 302, I. P. C. and sentenced to imprisonment for life with a fine of Rs. 50/-, in default of the payment of fine to further undergo three months' rigorous imprisonment by the learned Sessions Judge, Churu by his judgment dated December 23, 1981. The accused has come-up in appeal and challenges his conviction.
(2.) SUCCINCTLY stated, the prosecution case is that the accused was married to Smt. Kamla the deceased victim, nearly three years before October. 1980. He was living in Assam in connection with the earning of his livelihood. At times, he used to come to his town Taranagar. The parents of the accused were not happy with Smt. Kamla. On account of their unhappy relations with her, Smt. Kamla lived in her parents' house in village Kalbas, but whenever the accused came to Taranagar, she used to come there. It is alleged that the accused was also not happy with her. Somewhere in September, 1980, the accused came from Aassam to Taranager. Smt. Kamla was then at her parents' house. He went there and asked her brothers to send her to Taranagar. Smt. Kamla had fear that she would be ill-treated and beaten at Taranagar if she went there. Her brothers advised her to go to Taranagar and properly work there so that she may not be ill-treated and beaten. On being thus assured, she came to Taranagar nearly fifteen days before October 17, 1980, Two days before October 17, 1980 she met PW 1 Chanikiya Prasad and expressed her fear to him that she would be beaten by her in-laws and husband. She requested him that she be sent to her parents' house. The prosecution case further proceeds that in the night between October 17 & 18 1980, when Smt. Kamla and the accused were sleeping in a Kotha of their house, the accused throttled her to death. As she was not ill, PW 1 Chanikiya Prasad took her death to be unnatural. He went to Police Station, Taranagar and presented written report Ex. P. I The Station House Officer Ramkumar Singh decided to proceed under section 174, Cr. P. C. He arrived at the house of the accused. He found the dead body of Smt. Kamla lying in the court yard of the accused's house. He prepared the inquest and the Pan-chayatnama of her dead body. He also inspected the site and prepared the site plan. The post-mortem examination of her deadbody was conducted at about 11. 30 a. m. on October 19, 1980 by PW 13 Dr. B. L. Soni the then Medical Officer Incharge, Government Hospital, Rajgarh. He found the following injuries on the victim's deadbody:- External (1) Crescentric abrasion 1/6" x 1/16" on the right side of the chest about 1. 25" away from the middle line. (2) Irregular contusion 1. 75" x 1/3" to 3/4" on the anterior aspect of the neck about 3/4" right to the medial line at the level of the thyroid cartedage. (3) Contusion 3/4" x 1/2" on the left side of the neck above 1" anterior and below the left angle of the mandible. (4) Contusion 1" x 1/3" about V below and alightly lateral to the injury No. 3. (5) Irregular contusion 1 1/3" x 1" about 1/2" below the injury No. 4. (6) Contusion on the right half of the upper lip inner surface. (7) Contusion on the inner surface of the right lower lip extending into the right cheek. Internal On dissection of injuries No. 2,3,4 & 5, there was extravaxation of blood in the subcutaners tissue under the injuries, muscles underneath laterated. " In the opinion of Dr. Soni, the cause of her death was asphyxia due to throttling. Since the post-mortom examination revealed the death to be unnatural, a case under section 302, LP C. was registered and investigation was taken-up. The accused was arrested on October 26, 1980. On a search of his house, letters Ex P. 64 to Ex. P. 67 were recovered. These letters were alleged to have been written by the accused from Aasam to his parents. The specimen handwriting of the accused were taken before the Tehsildar, Taranagar. The recovered letters and the specimen handwritting of the accused were sent for examination to the State Forensic Science Laboratory, Rajasthan, Jaipur. On examination, letters Ex. P. 64 to Ex. P. 67 were found to be in the handwritting of the accused. It is alleged that the accused made an extra-judicial confession before PW 11 Pawan Kumar and PW 12 Malirem. On the completion of investigation, the police presented a challan against the accused in the Court of the Munsif cum Judicial Magistrate, Rajgarh, who, in his turn, committed the case for trial to the Court of Sessions. The learned Sessions Judge framed a charge under section 302, I P. C, to which the accused pleaded not guilty and claimed to be tried. The defence taken by the accused was that Smt. Kamla was hystorical and she committed suicide In support of its case, the prosecution examined nineteen witnesses and filed some documents. In defence, the accused examined five witnesses. On the conclusion of the trial, the learned Sessions Judge found the charge duly proved against the accused. The defence version was found false. The accused was consequently convicted and sentenced as mentioned at the very out set. Aggrieved against his conviction, the accused has taken this appeal. We have heard Mr. S. R. Singhi-learned counsel for the accused and the learned Public Prosecutor. We have also gone through the case file carefully. It may be mentioned at the very out-set that Mr. Singhi did not challenge the testimony of PW 13 Dr. Soni, according to whom the death of the victim had taken place on account of throitling. We have also gone through his statement and find no reasons to distrust his opinion. Dr. Soni has ruled out the possibility that the death of Smt. Kamla was suicidal. Thus, the death of Smt. Kamla was not natural but homicidal. Admittedly, there is no eye witness of the occurrence and the prosecution case rests squarely on circumstantial evidence. In order to establish the guilt, the prosecution adduced the following sets of circumstantial evidence:- (1) The relations between the accused and his wife Smt. Karate were not happy; (2) Her relations with the accused's parents were also not happy; (3) Extra-judicial confession of the accused made by him before PW 11 Pawan Kumar and PW 12 Maliram; and (4) Early in the morning of October 18, 1980, PW 16 Mukand Lai had seen the accused quarrelling with his wife Smt. Kamla. The learned Sessions Judge rejected the evidence relating to extrajudicial confession as both the witnesses PW 11 Pawan Kumar and PW 12 Mali-ram did not support it. The remaining sets of evidence, according to the learned Sessions Judge, were sufficient to connect the accused with the murder of his wife.
(3.) IT was contended by Mr. Singhi that the circumstantial evidence on record is wholly insufficient to show that it was the accused and none else who bad throttled Smt. Kamla to death. The letters Ex. P 64 to Ex. P 67 were no doubt, written by the accused to his parents, but they do not disclose that he was unhappy with his wife or that he wanted to kill her. IT was further argued that there was no evidence on record to show that the accused and Smt. Kamla slept together in the room and he, therefore, had an opportunity to throttle her to death. The accused and his parents were living together in that house IT cannot be, therefore, affirmatively said that the victim was done to death by the accused. PW 16 Mukand Lal, who has stated to have seen the accused and Smt. Kamla quarrelling in the early hours of October 18, 1980, is not at all a witness of reliance and dependence. He was examined by the police on October 26, 1980 i. e. nearly after eight days of the occurrence. No explanation is forthcoming from the prosecution side to explain this delay. There is conflict between the testimony of PW 16 Mukand Lal and the medical evidence. According to Dr. Soni, the death of Smt Kamla took place thirty to forty hours before 11. 30 a. m. on October 19, 1980. Mukand Lal (PW 16) had seen Smt. Kamla alive at about 5. 00 a. m. on October 18, 1980. Her death could take place even before 5. 00 a. m. on October 18, 1980 according to Dr. Soni. As such, no reliance can be placed on PW 6 Mukand Lal. Combating all these contentions, it was argued by the learned Public Prosecutor that the various circumstances appearing on record unerringly show that it was the accused and none else who had committed the murder of Smt. Kamla. We have taken the respective contentions into consideration. The most formidable evidence against accused was that of extra-judicial confession The accused is alleged to have confessed before PW 11 Pawan Kumar and PW 12 Maliram that he had killed Smt. Kamla. Both these witnesses did not support the prosecution. Even if they had supported the prosecution their evidence was wholly unreliable They were examined by police on October 28, 1980 during investigation. Had the accused confessed the guilt before them, they would have not remained silent nearly for ten days. This silence of ten days on their part is in itself sufficient to reject the story of extra-judicial confession. It appears that the evidence relating to extra-judicial confession has been falsely introduced. ;