JUDGMENT Palok Basu, J.
1. This appeal has been filed by Kewal Krishna against the judgment and order dated 8-4-1978 passed by the IV Additional District and Sessions Judge, Saharanpur, convicting the appellant and sentencing him to imprisonment for life Under Section 302 and to six months' rigorous imprisonment Under Section 323, IPC. Both the sentences were ordered to run concurrently.
2. The prosecution case is that Kewal Krishna was married to Smt. Vinod Kumari. One child was already about 2 years old and on 28-8-1977 Smt. Vinod Kumari was carrying the second child which had reached about 9 months of its existence. Kewal Krishna had come to stay with the in-laws in Pratap Nagar Colony within Police Station Mandi, distt. Saharanpur. It is said that on 28-8-1977 at about 5 p.m. Parvesh Kumar brought his brother-in-law i.e. the appellant Kewal Krishna along with a blood stained Sonta to the Police Station Mandi, Saharanpur along with some witnesses. An FIR was lodged by Parvesh Kumar (P.W. 3) to the following effect (Translated into English by the Court):
I Parvesh Kumar live in Pratap Nagar Colony, Saharanpur. My brother-in-law (Bahnoi) Kewal Krishna Suri is employed in Anti-Biotics Factory, Rishikesh to whom my sister Vinod Kumari was married. He had come to stay at ours with my sister. Due to strike in the factory. Both were staying at ours. Quite often my brother-in-law used to be annoyed with my sister and we used to pacify him. My sister, brother-in-law and their two years' old son Avanish Kumar and my mother Kartar Devi were at the house. At about 4-30 p.m. I had gone to ease in the latrine. I heard strieks of my mother Bachao, Bacho'. I came out quickly and saw that the door of the room was closed from inside and my mother was knocking on it asking to open the door and from inside the room the shrieks of my sister 'Bachao, Bachao' was coming out. My other told me that since I had gone to the latrine, Kewal Krishna started beating Vinod Kumari and when she went to save her inside the room she was beaten and pushed out of the room whereafter the room was locked from inside and beating of Smt. Vinod Kumari continued. We shouted at which Ladika Ram, Jagdish Prasad, Harbansh Lal Malhotra and Yograj etc. arrived where all attempted to get the door opened but failed. We claimed the adjoining room and from the ventilator peeped inside and saw that Kewal Krishna was standing with the Sonta in his hand and when we asked him to open the door he said unless the Police would arrive he would not open the door. Shortly Dewanji and three police constables of the Police Outpost arrived and after great persuasion Kewal Krishna opened the door. We found Smt. Vinod Kumari lying on the floor drenched in blood, having several injuries. Kewal Krishna was standing with the Sonta in his hand which was smeared with blood. His clothes were also stained with blood. My sister was pregnant and the period was almost complete. I got my brother-in-law arrested by the Police, took the Sonta and asked him why did he do this upon which he said she was my wife. I have killed her because she did not heed to what I was saying. My brother-in-law has killed my sister by causing her injuries because of mutual misunderstanding. We have brought him to the Police Station having arrested him with the help of the police people along with the Sonta.
3. This FIR was lodged at 5 p.m. in the presence of P.W. 8 Inspector Ram Singh who took up the investigation and left for the place of occurrence along with Chaman Singh S.I. (P.W. 6). Under the directions of Ram Singh, the said Chaman Singh prepared the Panchayatnama, diagram and challan of the body (Ex. Ka-6 to Ka-8). The dead body was sealed and sent through constable Bashir Ahmad and Chandrapal for post mortem examination. Blood stained Kurta, Pyajama and dhoti of the accused were also taken, apart from taking into custody ordinary blood stained earth.
4. Apart from those, blood stained pieces of bangles, blood-stained cover of the bed, blood stained nose-pin of the deceased were also taken. Ornaments of the deceased were handed over to Parvesh Kumar in Supurdgi. A site plan Ex.Ka-19 was prepared and then interrogation of Parvesh Kumar (P.W. 3), Ladika Ram (P.W. 4) and Smt. Kartar Devi (P.W. 5) was done whereafter Smt. Kartar Devi was sent to the hospital for medical examination, where she was examined by P.W. 2 Dr. G. S. Gupta at 9-45 p.m. who found the following injuries:--
1. Abraded contusion 4 cm x 1 cm left forearm on back in middle with traumatic swelling 8 cm x 6 cm. around it. Kept under observation. Advised X-Ray.
(ii) Lacerated wound 1 cm x 5 cm x skin deep left side elbow.
(iii) Abrasion on .5 cm x .25 cm x on left index finger on back lower part.
(iv) Contusion 6 cm x 2 cm on dorsum of right thumb. In the opinion of the doctor all the injuries were simple (except injury No. 1) caused by blunt object except injury No. 3 which was caused by friction. Duration fresh.
5. P.W. 1 Dr. R. K. Arora conducted the post mortem examination on the dead body of Smt. Vinod Kumari on 28-9-1977 at 4 p.m. and found the body in the following condition and injuries:
(1) Lacerated wound 9 cm x 3 cm bone deep on right side forehead near the hair line with depressed comminuted fracture of underlying bone with swelling around. Brain tissue is exposed. Whole of the face is covered with clotted blood.
(2) Lacerated wound 6 cm x 2.5 cm x bone deep on the right side head 8 cms above the right ear with swelling around. Clotted blood present around.
(3) Contusion 5.5 cm x 3 cms on the right side face near the jaw.
(4) Irregular contusion 8 cms x 5 cms on the right side chest upper part near the root of the neck.
(5) Lacerated wound 1.5 cm x 1/4 cm x muscle deep on left upper eye-lid.
(6) Lacerated wound 1 cm x 2.5 cms. x whole thickness of both upper and lower lips on right side with fracture of both upper and lower jaw bones on right side. The two upper incisor teeth on right side and of lower incisor and one teeth of lower right side from their sockets.
(7) Contusion 5 cms x 3.5 cms on the front right shoulder joint.
(8) Contusion 12 cms x 3 cms on the upper part of abdomen transversally.
6. Both the lungs were congested, the heart was empty and its weight was 230 grams. There was depressed communited fracture right frontal and parietal bone. The abdomen was distended due to advanced stage of pregnancy. The stomach contained about 8 oz of semi solid substance. The brain was lacerated and congested. Both intestines contained some faecal matter. The gall bladder was half full, its weight was 1 Kg and 1000 gram. Both the kidneys were congested and its weight was 230 grams. The uterus contained full time (about 9 months) Dead male baby.
7. In the opinion of the doctor the death was due to coma as a result of head injuries".
8. After completing the investigation the charge sheet (Ex. Ka-20) was submitted against the appellant. After due committal proceedings the C.J.M. Saharanpur committed the case to the court of Sessions which became subject-matter of Sessions Trial No. 442 of 1977 of the court of IV Additional District and Sessions Judge, Saharanpur. The appellant was found guilty of the charge and convicted and sentenced as stated above.
9. We have heard Sri D. N. Wali, learned counsel for the appellant and Sri Shivaji Misra, learned A.G.A. for the State and perused the entire record minutely.
10. During the trial the prosecution has examined three eye-witnesses. They are Parvesh Kumar (P.W. 3), Ladika Ram (P. W. 4) and Kartar Devi (P.W. 5). Reference about other formal witnesses has already been noted above and it may be stated here that head constable Laxmi Chand (P.W. 7) had registered the case and made necessary entries in the general diary and has proved them.
11. The accused has denied the prosecution case and has attributed false implication due to enmity. This apart, plea of insanity has been taken and in order to justify the said plea D.W. 1 Tara Chand, D.W. 2 M. R. Sharma and Dr. S.N. Deo (D.W. 3) have been examined.
12. The learned Sessions Judge has placed implicit reliance on the prosecution evidence and rejected the defence version and has come to the conclusion that the defence plea of insanity has not been established at all and has further held that the prosecution story about the beating of Smt. Vinod Kumari by the appellant in the manner alleged by the prosecution witnesses is wholly reliable and proved.
13. There is absolutely no reason whatsoever for the mother-in-law, the brother-in-law and an immediate neighbour who is aged about 60 years, to falsely implicate the appellant. In the very nature of the things the action of the appellant in killing his wife is so reprehensible that it disturbs the conscience of any sensible human being. Smt. Vinod Kumari was carrying a child of nine months in the womb and even the first child of the said couple was in the neighbourhood and yet having first beaten his own mother-in-law and thrown her out of the room and then having bolted the same from inside, the appellant committed the heartless crime. There is nothing in the cross-examination of any of the three witnesses to discredit their testimony. None of them has any axe to grind against the appellant. Then sitting tight with the dead body of the wife in front of him inside the room and refusing to come out until the Police comes indicates the apprehension in the mind of the appellant that if he were to come out without police being there, he may be similarly dealt with and may receive injuries at the hands of the witnesses who had arrived and particularly his brother-in-law. That being so, his own instincts of self-preservation were so apparent in his mind that his action in killing his own wife can only be discredited as a well-calculated action. There is absolutely no reason to disbelieve that the appellant was caught at the spot along with arm smeared with human blood and then brought to the police station by those witnesses after the police had arrived at the scene of occurrence and had managed to get the door opened after a lot of persuation. It is, therefore, apparent that the prosecution case is truthful and the learned Trial Judge has rightly placed reliance on their testimony.
14. The defence evidence of the appellant requires consideration now. D.W. 1 Tara Chand is clerk in the Mental Hospital, Shahadra. He has said that the appellant was an outdoor patient there from 9-7-77 to 8-8-77. D.W. 2 M. R. Sharma is a Junior Assistant in the I.D.P.L. Rishikesh. He has said that the appellant was on duty on 7-7-1977 whereafter he had gone on leave for four days and then he did not come to join. He proved an application dated 14-7-1977 (Ex. 11) along with a medical certificate (Ex. 12), purporting to be an application by the appellant suggesting that he was an outdoor patient in the Mental Hospital Shahadra. The services of the appellant was terminated on 14-11-1977 due to continued absence. D.W. 3 Dr. S. N. Deo is a psychiatrist in the Mental Hospital, Shahadra. He has said that the appellant was suffering from mental disease and was outdoor patient in the mental hospital Shahadra between July 9 and August 8, 1977 and he proved the relevant extract as Ex. Ka-3. He also proved the certificate of fitness Ex.Kha-4 dated 8-8-1977. According to the statement of D.W. 3 Dr. Deo he had issued the fitness certificate on 8-8-1977 and the appellant was only an outdoor patient. He has further said that the appellant was a non-violent patient and had regularly responded to the treatment. From the statement of Tara Chand D.W. 1, it appears that the accused had gone to the hospital for outdoor treatment on July 11, 14, 18, 25 and August 8, 1977. In cross-examination Dr. Deo has said that the ailment could relapse. He has further said that if after such relapsing, the patient does a crime like murder, then the said condition would continue until he is treated again. This statement of the doctor is acceptable for the reason that if any mental aberration had taken place that would not have gone without any treatment and admittedly no treatment whatsoever was extended to the appellant after he was arrested and put behind the bars after having committed the murder of his wife. There is, therefore, not an iota of evidence suggesting that the action of the appellant was accentuated by any mental aberration much less insanity. The law is well-settled that if an accused takes the plea of insanity he has to prove it to the hilt. In the instant case not only that the appellant has not been able to prove it, the evidence produced in fact goes contrary to his claim of insanity. It was suggested that since there is no motive in the instant case the case may be converted to Section 304, IPC. It is difficult to accept this argument. The appellant had caused injuries to his mother-in-law and when she had protested and tried to save her daughter she was thrown out of the room forcibly. Then having bolted the room from inside the appellant rendered the pregnant woman helpless and brought cruel end to her life as also terminated the life of the male child she was carrying for the last nine months in her womb. Therefore, there is no question of doubting the prosecution story even if there is no cogent evidence about motive.
15. So unhusband-like and unfather-like are the actions of Kewal Krishna and that too in so much a calculated manner that it has to be held that Kewal Krishna was absolutely alert and in his senses and executed a well-planned murder of his wife with a nine month old child in her womb.
16. In view of the aforesaid discussion this appeal fails and is hereby dismissed. The appellant is in jail and he will serve out the sentence awarded to him by the trial court.