C.M. Lodha, J.
1. The appellant Vijaysingh has been convicted and sentenced to imprisonment for life by the learned Additional Sessions Judge, Udaipur on the charge of committing the murder of his wife Smt. Prem Kanwar. The other of the appellant Smt. Bhanwar Bai also tried along with him for an offence under Section 302 read with Section 109 I.P.C., but she was acquitted and her acquittal has become final as the State has not filed appeal against it.
2. The prosecution case lies within a very narrow compass. It is alleged that the relations between the appellant and the deceased Prem Kanwar were not good and be wanted to marry again in order to get rid of her, on the night intervening 23rd and 24th July, 1971, be committed her murder by strangulation The case for the murder of Smt. Prem Kanwar was registered on a report made by PW/2 Smt. Uchab Kuowar sister of the deceased Smt. Prem Kunwar's father.
3. At the trial the prosecution examined as many as 21 witnesses and the appellant who denied his complicity in the crime examined 6 witnesses in defence. The learned Additional Sessions Judge. Udaipur, believed the prosecution case and convicted and sentenced the appellant as stated above.
4. That Smt. Premkunwar died a homicidal death on account of strangulations is a matter beyond doubt and has not been called into question before us. The only question for decision, therefore, is whether the prosecution has succeeded in establishing beyond doubt that the appellant is trail perpetrator of the crime. Admittedly there is no direct evidence and the case of the prosecution against the appellant rests solely on circumstantial evidence. It is mo well established and hardly needs any repetition that the circumstantial evidence must be conclusive and should be explicable only on the hypothesis of the guilt of the accused and no other. We have, therefore, to see whether the circumstances brought on the record and relied upon by the prosecution point unmistakably to the guilt of the accused. But before we do that, we may mention, here, that the prosecution also relied upon extra judicial confession alleged to have been made by the accused to PW/5 Bikhtawar. This evidence was, however, rejected by the trial court but since it has been relied upon by the learned Public Prosecutor before us, we think it necessary first to deal with it.
5. PW/5 Bakhtawar is a resident of Kerot. He states that about 7 or 8 months ago he was going to the village pond for making his cattle drink water & at the pond the appellant Vijayshigh, who seemed to be in a dejected mood met him & on enquiry the latter told the witness that he had murdered his wife and, therefore, the witness may go and tell his father that she may be cremated before the arrive of the doctor and the police & saying so the appellant went towards Kankrauli. The witness, however, admits that he did not go to VIjaysingh's father because he had beard later on that the appellant had killed his wife. The evidence of this witness is not at ail reliable, inasmuch as in his statement in the committing court marked Ex. D/4 he had stated the fact about the extra judicial confession having been made by the accused to him Moreover it appears to us almost impossible that without any thickness or deep friendship with Bikhtawar the accused should have thought it proper to divulge such a damaging information to him and to have confessed the guilt to him. The prosecution case is that not only the husband but the father-in law and the mother-in-law were not friendly disposed to the deceased Smt. Frem Kurwar and it that was so, we do not see any reason why the accused should have made this confession to PW/5 Bakhtawar instead of telling his father and mother what had transpired he witness also admitted that he did not disclose to anybody the talk he bad with the appellant. This is an impossible conduct. We are, therefore, in agreement with toe learned Additional Sessions Judge & with the learned trial court that the evidence regarding extra judicial confession given by PW 8 Bskhtawar is utterly unreliable.
6. Now, as to the circumstantial evidence the learned Additional Sessions Judge has enumerated the circumstances as follows:
1. Motive for crime.
2. Accused seen in village Reliant prior to the occurrence,
3. Accused seen going out of village Rebant in the early hours of morning of 24 July, 1971, and
4. Other circumstantial evidence:
(a) Sending information by the father of the accused to PW/2 Mst. Uchab Kunwar that Vijaysingh was ill.
(b) Sending word by Sardarsingh father of the accused to Kankrguli to call the Medical Officer to examine Mst. Prem Kunwar deceased.
(c) Sardarsingh, father of the accused not allowing Arjun-Bingh and Ganbhirsingh to go and see the dead body of Mst. Prem Kunwar, and
(d) Making preparations for the funeral of Smt. Prem Kunwar before the arrival of the doctor.
7. We have carefully scrutinised the evidence bearing on the circumstances mentioned above and relied upon by the learned trial court and are of opinion that neither of them singly nor all of them cumulatively lead to the conclusion that the decided applicant and the accused appellant alone vas the perpetrator of the crimes or that he had participated in it.
8. There is no evidence that the appellant had ever been seen quarrelling with his wife or that he had ever beaten her. The statement of PW/2 Mst. Ucheb Kunwar is, at the best, to the effect that Smt. Prem Kunwar used to tell her that she was not being treated well at her father-in-law's place. That may be so, inasmuch as it is even the prosecution case that Mst. Bhanwiri Bai, mother-in-law of the deceased Smt. Prem Kaowar was not favorably disposed towards her and her treatment towards the deceased was far from cordial but that by itself cannot raise a presumption that the apellant wanted to get rid of her, by causing her death. Then, there is she evidence of PW/7 Moddngh that the appellant told him that he was in search of a suitable girl whom he may marry and he proposed to the witness that his daughter may be given in marriage to him. The witness however admits that his daughter was only 10 years old. The suggestion, therefore, of giving his daughter in marriage to the appellant is on the lace of it absurd. This evidence is, therefore, of hardly any help to the prosecution. Thus, in our opinion, there is no satisfactory evidence of motive.
9. As regards circumstances No. 2 and 3 as mentioned above, in our opinion, they are not at all sufficient to connect, the accused with the crime. The appellant may be in the village on the day prior to the occurrence and also on the day following the occurrence But that by itself cannot raise any presumption that he had commuted the murder particularly when it is the prosecution evidence itself that not only the appellant but his mother also was very much annoyed with the deceased We have it from the statement of PW 12 Kishansingh that en the day previous to the occurrence he had seen Vijaysingh's mother dragging the deceased Smt. Prem Kunwar and sweating that she must be done away with.
10. As to the other circumstances mentioned by the learned Judge, it is sufficient to point out that they all pertain to the acts of father of the appellant and they are perfectly explicable on the hypothesis of the innocence of the accused-appellant. The person through whom the message of illness of the appellant is alleged to have been sent by his father Sardarsingh has not been produced and even it such a message wan sent, the appellant cannot be connected with it and no such inference can be drawn that the message was sent at the behest of the appellant in order to conceal the dime. We do not think it necessary to dwell at length on the circumstances mentioned by the learned trial court under the heading (other circumstantial evidence) as it is clear to us that they do not connect the appellant with the crime and are explicable on hypothesis other than the guilt of the accused.
11. Learned Public Prosecutor, however, invited our attention to the statement of PW 13 Veniram to show the conduct of the accused at or about the time of occurrence. PW 13 Veniram has stated that on the Hariyali Amawabyu' which admittedly foils on the 22nd July, 1971 i.e. one day prior to the occurrence, he beard the cries of a lady from the house of the appellant at night at about 11 or 12 when he came out of the house to case himself and thereupon he asked the appellant what the matter was and to this the appellant replied that his wife has been startled due to a rat running in the room and that was why she had given out a cry. He has, further, stated that the radio was being placed at that time. It may be pointed out that in the first place according to him the incident, he has narrated took place on 'Haiiyali Amawasya' i.e. on the night between 22nd and 23rd July, 1971 and not on the night between 23rd and 24th July, 1971 and, therefore, the evidence of this witness is liable to be rejected, on this single ground. But that is not all. The witness is a resident of a different village called Vajmiya and his version is that he had come to Reliant to earn his livelihood and had accepted the employment of one Chhattarsingh where he served for four months on a salary of Rs. 300/- p.a. Chhattarsingh has been produced by the defence as DW1 and he has denied to have ever kept Veniram in his service. The witness, further, stages in his cress examination that even though on the next day he came to know that Vijaysingh's wife hid b-en murdered at night, still he did not disclose the fact of his having heard her cry the previous night to anybody. This is not the natural conduct of a man who had heard the cries of a murdered lady previous night & to whom a false explanation had been given for the same. The natural reaction of a person placed in the position in which Veairam was, to have narrated to the people next morning when he came to know about the death of Smt. Prem Kunwar what had transpired the previous night. The witness therefore, does not pass the test of credibility and. in our opinion is not worth reliance. This is all the evidence in the case and, in our opinion, the prosecution has failed to bring home guilt to the accused who is entitled to benefit of doubt.
12. Accordingly, we allow this appeal, set aside the conviction and sentence passed against the accused-appellant and hereby acquit him. He shall be released forthwith if not required in connection with any other case.