M. L. SHRIMAL, J. - (1.) THE brief facts giving rise to this appeal are that on December13 1972, the accused-appellant Heera committed the murder of his wife Mst. Pushpa and thereafter attempted to commit suicide. His son PW 12 Mangiya 'ran to his uncle PW 2 Uda and informed him that his father had com-mitted the murder of his mother and has closed himself inside. On receipt of this information PW 2 Uda appeared on the scene of the occurrence and asked the accused to open the door and come out of the house. Instead of agreeing to the proposal the accused pointed out a gun as a result whereof he ran away for help to PW 1 Uda son of Roopa and other villagers. He returned on the scene of the occurrence with other persons. THE villagers found the house bol-ted from inside However, on their persuasion the accused opened the door and come out. On opening of the door the villagers noticed that the accused's wife Mst. Pushpa since deceased, having sustained three injuries on her person. THEy also noticed a wound on the neck of the accused. An axe and a sickle smeared with blood were also found lying there. 2 On December 14, 1972 at 1 p. m. first information report Ex. P/1 of the occurrence was lodged at Police Station, Jawahar Sagar Dam District Bundi In the course of investigation, autopsy on the dead body of Mst. Pushpa was performed by PW 20 Dr. Gyaneshwar Malviya, who detected the following external injuries on the dead body of Mst. Pushpa: - 1. . . Incised wound 3"x1/2 just below the chin over the neck anteriorly situ-at?d cutting skin and fascia.
(2.) 3" x 1" incised wound over the right side of neck just below the first wound cutting skin laryax hyoid bone trachea and oesoehagus. X 1-1/2" incised wound over the lower right anterior part of neck cutting right eXternal carotid artery and treachea. On internal eXamination he found the following injuries on the body of Pushpa (since deceased); - 1. Patechial haemorrhagic spot present on laryeX and treachea completely cutting the neck. 2. On eXamination the stomach was found empty and it shows that death has occurred 7 hours after last meal. In the opinion of the doctor the injuries sustained by Mst. Pushpa were sufficient in the ordinary course of nature to cause death. The doctor was further of -pinion that the injuries were caused with a sharp edged weapon. The postmortem report is EX. P/17. On the same day the accused was also clinically eXamined by Dr. Malviya and one injury with the following symptom was noticed on his neck: - 1. Incised wound over anterior part of neck measuring 2-1/2" X 1/2" cutting skin fascia, muscles, and treachea anteriorly. The injury was situated transversely and at just lower margin of throid. The duration of injury was 12 hours. The witness further stated that at the time of eXamination the accused was unconscious and the injury sustained by him must have been caused with a sharp edged weapon. The injury report is EX. P/18. The Police, after usual investigation, submitted a challan to the Court of the Munsif Magistrate, Bundi, who committed the accused to the Court of Additional Sessions Judge, Bundi for trial under sections 302 and 309, I. P. C. 3. The accused pleaded not guilty to the charges. The prosecution eXamined 22 witnesses, out of whom PW 12 Mangiya accused's son was eXamined as an eye witness of the occurrence. He resiled from his previous statement and was declared hostile. PW 2 Uda son of Moda is the real brother of the accused PW 1 Uda, Roopa's son is the cousin of the accused. Both these witnesses viz. . PW 1 Uda and PW 2 Uda were eXamined to prove the conduct of the accused just after the occurrence. P. W. 7 Mst. Teeja is the mother of the accused. She stated that when she reached near the room of the accused she found the door of the room bolted from inside and that both the accused and his wife were in side the room. She asked the accused to open the door, but he did not reply to her. She, however, continued to remain standing outside. Thereafter several persons collected on the spot. PW 20 Dr. Gyaneshwer Malviya was eXamined to prove the postmortem report of the deceased Mst, Pushpa and the injury report of the accused. PW 22 is the investigating officer of the case. EX. P/19 and EX. P/20 are the reports of the Chemical EXaminer and the Serologist respectively. The accused in his statement, recorded under section 342, Cr. P. C. denied his complicity in the crime and futher stated that at the relevant time he had gone out to answer call of nature and when he returned back, he to his utter surprise found the dead body of his wife lying inside the he use. He got perpleXed and c used a cut on throat to end his life. He then became unconscious, He pleaded ignorance as to the cause of his wife's death. The accused did not eXamine any witness in support of his plea. Learned Additional Sessions Judge, placing reliance on the circumstantial evidence, held that only one and one irresistible conclusion could arise from the evidence that it was the accused and accused only who committed the murder of his wife Mst. Pushpa and held the accused guilty of the offence punishable under sections 302 and 309 I. P. C. and sentenced him to imprisonment for life and to pay a fine of Rs. 2000/- on the first count and to six months' simple imprisonment and to pay a fine of Rs. 500/- on the second count Hence this appeal. Learned counsel appearing on behalf of the appellant has rightly not contested the point that Mst. Pushpa met homicidal death and as such we are not required to deal in detail the prosecution case, on this aspect of the matter. The only contention raised before us is that the trial court committed an error in drawing presumption of the guilt of the accused. Learned counsel for the accused contended that the possibility of Mst. Pushpa first attacking the accused and then the accused in self defence of his person causing injuries cannot be ruled out.
(3.) THE short question that arises for determination is whether the prosecution has succeeded in bringing home the guilt under sec. 302 and sec. 309 I. P. C. to the appellant. We are conscious of the fact that in the instant case there is no direct evidence and the prosecution case rests only on the circumstantial evidence. A conviction of the accused which is sought to be founded on mere circumstantial evidence, must necessarily satisfy the test that the circumstances upon which suck conviction is sought to be based are of conclusive character in the sense that they would be incapable of explanation and would be entirely incompatible with his innocence. Reference may be made to Jaswant Singh vs. Delhi Administration (1), the relevant portion of which reads as under: - - "it is also true that the circumstantial evidence in order to sustain conviction must be complete and must be incapable of explanation on any other hypothesis than that of the guilt of the accused. " From the prosecution evidence it stands conclusively proved that the accused was alone with his deceased wife in his room, which was bolted fom inside. When the room was opened it was found that the accused's wife Mst. Pushpa was lying dead with three injuries with sharp edged weapon and the accused was standing there and axe an and a sickle were lying there stained with blood. Besides that, it has come in the evidence of P. W. 2 Uda, who is the real brother of the accused, that when he asked the accused to come out, he instead of opening the door, pointed a gun towards him. Such a conduct on the part of the accused cannot be said to be that of an innocent man. The witness further goes on to state that just after the occurrence and prior to his reaching the house of the accused. Mangiya P. W. 12 (son of the accused) came to him and told him that his father had committed the murder of his mother. Even after opening the door the accused did not make any gesture showing his innocence. No reliance can be placed on the story given by the accused in his statement, recorded under sec. 342, Cr. P. C. that at the time of the occurrence he was not present in the room. This is an after thought. Had he come to his house after the occurrence, he would not have kept quiet but would have raised hue and cry and collected neighbours or would have ran for help, instead on closing the room and bolting it from inside. At no stage of the trial the accused has raised this specific plea of self defence. No question was put to any of the prosecution witness on this plea. Even the doctor was not examined on the point that the injury questained by the accused could not have been a suicidal injury. The conduct of the accused in cutting his own throat clearly indicates a feeling of fear or remorse, which induced him to attempt to take his own life after committing the murder of his wife. There is nothing to hold that any body else might have committed the murder or that the accused might have caused injuries to his wife in exercise of his right of self defence to his person. If such had been the position, the accused would have indicated this fact as soon as the villagers reached the site. He could have indicated so by making signs or gesture in case he was not in a position to speak. He could have at least raised the plea of self defence in his statement recorded under sec. 342 Cr. P. C. The accused was found inside the room where his wife was lying dead with three injuries with a sharp edged weapon and the room was bolted from inside. On asking first he did not open the room and instead pointed the gun towards his own brother, such an unreasonable conduct does not lead to the presumption of innocence of the accused. When compelled to unbolt the room, as soon as he opened the door from inside, an incised wound was noticed on his own neck. The accused at that time either by oral statement or by any sign or gesture or conduct did not suggest that he had not committed the murder There was no one inside the room except the accused and his wife. He had enough opportunity to commit the murder. The false explanation given by the accused in his statement recorded under sec. 342 Cr. P. C. (old) is an additional link, which completes the chain. Reference may be made to Deonandan Mishra vs. The State of Bihar (2), wherein their Lordships of the Supreme Court have observed as under : - "but in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, which reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. " ;