SHYAM SUNDER BYAS, J. - (1.) NARAYAN Puri, the appellant before us was convicted under Section 302, I.P.C. and sentenced to imprisonment for life by the learned Sessions Judge, Jodhpur by his judgment dated July 29, 1976. He has come -up in appeal and challenges his conviction.
(2.) BRIEFLY out -lined, the prosecution case is that Smt. Devi aged about 30/35 years at the relevant time of her murder, was the wife of the accused. The marriage between them had taken place nearly 25 yrs. before the incident. PW 2 Miss Sarla and PW 3 Miss Sushila are their daughters while PW 4 Smt. Bhikhi is the mother of Smt. Devi. The accused has also a son. They were all living together in a room of the house of one Bhanwar Lal Ghanchi situate in Mohallah Ghoron -Ka -Chowk, Jodhpur, which the accused, had taken on rent from PW 12 Bhagwati Prasad in April, 1975. The room is situate on the first floor; Smt. Bhiki was living with the accused as her relations with her husband Moolpuri PW 8 were not happy. Moolpuri was living with his sister's son Pukha Bharti. PW 11 Moolpuri sold his house to Pukha Bharti for a sum of Rs. 4000/ -. This amount was paid to Smt. Bhiki for her maintenance. The accused, his wife Smt. Devi and Smt. Bhikhi jointly kept his amount with DW 2 Smt. Ram Kanwari with the understanding that they would jointly withdraw it. The accused alone approached Smt. Ram Kanwari and asked her to return the money to him. Ram Kanwari refused to oblige him and told that she would return the money jointly to him, his wife and Smt. Bhikhi. The accused approached his wife Smt. Devi to withdraw the money, but she also refused to oblige him on the ground that the money belonged to her mother Smt. Bhikhi. The suggestion is that as Smt. Devi did not oblige the accused, he became irked and annoyed. As usual, in the evening of April 27, 1975, the accused, his wife Smt. Devi, his daughter and son and his mother -in -law Smt. Bhikhi were sleeping on the roof situate outside their room. PW 6 Ramdharisingh Gautam, PW 12 Bhagwati Prasad, PW 13 Brahamdutta and Mahaveersingh were also sleeping on the same roof nearly 15 yards away from the place where the accused and the members of his family were sleeping. PW 6 Gautam and Mahaveersingh were the tenants living in the first floor of the same house, which they had taken on rent from Bhagwati Prasad (PW 12). In the midnight PW 12 Bhagwati Prasad woke -up on hearing some noise. He saw that the accused was leaving the house with a bicycle. The witness called him, but the accused did not stop and went away. Bhagwati Prasad thereafter went to sleep. At about 5.00 a.m. on April 28, 1975 (i.e. the next day), it was found that the room, which the accused had taken on rent, was locked from out -side and the accused was missing. PW 2 Miss Sarla peeped into the room through the ventilation and found her mother lying inside on a cot. She and her brother went to the accused's elder brother Vishanpuri (PW 5) and brought him to the room. Vishanpuri called aloud, but there was no response from Smt. Devi. The lock was broken. Vishanpuri and others went inside the room and found Smt. Devi dead She had injuries on her neck and froth was coming out of her mouth. Vishanpuri went to Police Station, Sadar Bazar and presented written report Ex. P 11 at about 8.30 a.m. The police registered a case and the investigation ensued. The Station House Officer Mangi Lal (PW 10) arrived on the spot and prepared the inquest report of the victim's dead body. He seized and sealed the broken lock. He also seized and sealed the blood -stained clothes of the victim. The post -mortem examination of the victim's dead body was conducted at about 2.10 p.m. on the same day by the Medical Jurist Dr. Prakash Dayal (PW 14). He found the following ante mortem injuries on the victim's dead body: (1) Abrasion 0.5 c.m. x 0.2 c.m. on the posterior aspect of right forearm 7 c.m. below the elbow; (2) Abrasion 0.5 c.m. x 0.5 c.m. on the posterior aspect of right forearm 7 c.m. below the elbow; (3) Abrasion 1 c.m. liner on the neck on left side on lateral aspect 4 c.m. below the ear; (4) Abrasion 0.5 c.m. liner on the left lateral aspect of neck 4 c.m. below the right ear; (5) Abrasion 0.5 c.m. liner on the right lateral aspect of neck 3 c.m. posterior and below injury No. 4; (6) Abrasion 0.4 c.m. liner on the right lateral aspect of neck 1 c.m. anterior and below injury No. 5; (7) Abrasion 0.9 c.m. liner on the right lateral aspect of neck 3.5 c.m. below injury No. 4; (8) Abrasion 0.3 c.m. liner on the anterior aspect of neck just below the mandible in mid -line.
(3.) THERE was froth over the nostrils. There was also ecchymosis of the tissue on the neck on right and left lateral aspect under the abrasions. The right cornue of hyoid bone was fractured at its middle with localized collection of blood. The larynx and trachea were full of blood -stained froth and were congested. The right and left lungs were oedematous and were congested. The doctor was of the brain and the brain were found congested. The doctor was of the opinion that the death of Smt. Devi was on account of throttling. The post -mortem examination report prepared by him is Ex. P. 21. The accused was arrested on April 29, 1975 vide Ex. P.15. When his personal search was taken at the time of his arrest key (Article 6) was found in the pocket of his pants. It was seized and sealed. This key fitted with the broken lock. Afterwards, when the investigation was over, the police presented a crime sheet against the accused in the Court of the Additional Munsif cum -Judicial Magistrate (1), Jodhpur, 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 him is that of alibi. It was stated by him that on the relevant day, he was at a far distant place in district Barmer. In support of its case, the prosecution examined 14 witnesses and filed some documents. In defence, the accused examined three witnesses. On the conclusion of the trial, the learned Sessions Judge disbelieved and rejected the defence of the accused and held the charge duly brought home to him. The accused was consequently convicted and sentenced, as mentioned at the very out -set. Aggrieved against his conviction, the accused has taken this appeal.;