HONNIAH, C. J. - (1.) THE appellant Kantilal has been convicted under section 302, Indian Penal Code and sentenced to death. THE learned Sessions, Judge, Jalore has made a reference to this Court for confirmation of the death sentence.
(2.) THE facts leading to the prosecution of the appellant briefly stated are these: Kantilal-appellant married Bhuri (deceased)6 or 7 years prior to May 29, 1977. After the marriage he went to Palanpur, where he was doing some business. A few days prior to May 29, 1977, he closed his business and came along with Bhuri and his three children to Badgaon, where he was staying in a rented house belonging to Ukhaji Few days after he came to Badgaon village, Bhuri went to Ratanpur to her mother's place. Eight days prior to the murders the appellant went to her mother-in-law's house to fetch her. on May 28, 1977 he came back to his house along with his wife and children On that day, it appears, he did not give her any food on the ground that he suspected her character. On the next day, at about 9 P. M. . or so Kantilal was in the company of Laxmichand (P. W. 9), a neighbour of his, talking to him for some time. Later on he went to his house. Shortly thereafter Laxmichand (P. W. 9) heard shouts coming from the house of the appellant. By then Bhanwar Singh (P. W 7), who was going on that direction came near Laxmichand (P. W. 9) arid both of them saw the appellant coming out of bis house armed with an axe, and going away. Mishrimal (P. W. 13), brother of Bhuri, who was living in the same village, come to know about the incident He went to the house of the appellant along with D,\ Rajendra Prasad (P. W. 1 ). P. W. 1 examined Bhuri and found her dead. Then P W. 13 came out of the house and met P. W. 7 and P. W. 9, who told him that they had seen the accused coming out of the house armed with an axe. P W. 13 went to the house of the father of the appellant and found the appellant sitting there with his father Malaji (P. W. 2), He questioned the appellant for which he replied that he had committed the murder of his wife in an anger. Bhanwar Singh (P. W. 7), who was in the company of Mishrimal (P. W. 13), heard this statement made by the appellant. Then P. W. 13 went to the Polish Station, Raniwara where he lodged the complaint Ex. P. 13. The Station House Officer, Punamchand (P. W. 14) on the basis of Ex P. 13 registered a case against the appellant. He proceeded to the spot, arrested the appellant, recovered from his person blood-stained clothes and then on his information recovered axe from the well. The clothes recovered from the person of the appellant and the axe were found to coutain human blood. The case of the prosecution was that the appellant suspected the fidelity of his wife and therefore on the night of September 29, 1977 killed her in the most brutal manner and thereby committed an offence punishable under section 302, Indian Penal Code. The entire case of the prosecution rests upon the circumstantial evidence. So far as motive is concerned. Mishri Mal (P. W 13) has stated that when he met his sister on May 28, 1977, she told him that her husband was ill-treating her suspecting her character. Although there is no other evidence in this case from the circumstance that this fact has been mentioned in Ex. P. 13 at the earliest point of time, we hold that the accused had some grouse against his wife. So far as the incident is concerned, there is no direct evidence at all. On the fateful night, the appellant was sitting talking to Laxmi Chand (P. W. 9) about his business till about 9 P. M. or so, According to P. W. 9 the appellant went into his house and soon thereafter he heard the cries of Bhuri coming from the house. Bhanwar Singh (P. W. 7), who owned a flour-mill, was going to the mill at about 9. 30 or 16 P. M. and while passing near the house of P. W. 9 met him. At that point of time he also heard the cries coming from house of the appellant. When both Bhanwar Singh (P. W. 7)and Laxmichand (P. W. 9) were standing talking they saw the appellant coming out of his house armed with an axe and going away. Shortly thereafter they told Mishrimal (P. W. 13), who came to the scene about their having seen the appellant going out of the house armed with an axe. That is also the evidence of Mishrimal (P. W. 13 ). Therefore, there is nothing to disbelieve the evidence of these three witnesses.
(3.) P. W. 13 went to the house of Malaji, father of the appellant, where he found the appellant sitting with his father. Bhanwar Singh (P. W. 7) also had accompanied him. When these two witnesses questioned the appellant why he had done so, the appellant confessed before them that he committed the murder of his wife in anger. Malaji (P. W. 2), who was present when the appellant confessed, has turned hostile for obvious reasons, being father of the appellant. The evidence of Bhanwar Singh (P. W. 7) and Mishrimal (P. W. 13) finds corroboration in the earliest statement made by P. W. 13 in Ex. P. 13. Therefore, we are convinced that what these two witnesses have stated is a true version. The Sub-Inspector of Police, who came to the spot found the accused wearing blood-stained clothes. He recovered the axe on the information given by the appellant from a well. These articles, as certified by the serologist, contained human blood. No explanation has been offered by the appellant in this behalf, Therefore, these circumstances taken singly and cumulatively point out that it was the appellant who committed the murder of his wife Bhuri on the night of May 29, 1977. The only question that arises for consideration is whether the appellant has committed an offence under section 302, Indian Penal Code or an offence under section 304, Indian Penal Code as contended by the learned counsel for the appellant. ;