Judgment

KHANNA, J.:- Nika Ram (34) was convicted by learned Sessions Judge Mahasu under section 302 Indian Penal Code for committing the murder of his wife Churi (26) and was sentenced to death. On appeal and reference under section 374 of the Code of Criminal Procedure, the High Court of Himachal Pradesh confirmed the conviction and death sentence. Nika Ram has now come up in appeal to this Court by special leave.

2. The prosecution case is that Nika Ram was married to Churi deceased near about 1958. In 1964 Churi gave birth to a son named Joginder. Nika Ram considered that Joginder was not his son and had been born as a result of adulterous conduct on the part of Churi. When Joginder was three months old Churi and Joginder were sent to the house of Churi s mother Smt. Nagju (PW 2) in village Gani. Churi on arrival at her mother s house told her that the accused had not been treating her well. After Churi had stayed at her mother s house for about three or four years, the accused paid visits to her and wanted to take Churi to his house. The accused, however, declined to take Joginder with him. At the suggestion of Nagju, Churi, Joginder and Nagju came to the house of the accused in village Shilaroo which is at a distance of 1 1/2 miles from Gani. At his house the accused gave beating to Churi deceased. Nagju consequently returned along with Churi and Joginder to her village Gani. On the day of Shivratri before the present occurrence, the accused took Churi along with him to his house. Joginder was, however, left with Churi s mother Nagju. The accused and his wife lived alone in their house in Shilaroo. No one else resided with them in that house. On the evening of September 16, 1969, the accused and his wife were seen together at the house.

3. Kotkhai is at a distance of 2 1/2 furlongs from Shilaroo. At about 10.30 p.m. on September 16, 1969 the accused went to the residence of Shri Sudershan Kumar Mahajan (P.W. 15), Naib Tehsildar who exercised the powers of second class magistrate, in Kotkhai. The accused appeared to be nervous and told Shri Mahajan that he had murdered his wife. Shri Mahajan told the accused to sit down and be composed. On enquiry of Shri Mahajan, the accused stated that his wife was of loose character and had given birth to an illegitimate son. His relations with her were consequently strained. The accused, who was wearing a Kachha and a coat, added that he had tried to commit suicide by jumping into nulla but had somehow survived. Shri Mahajan thereafter recorded statement PH of the accused, wherein the accused stated that he had murdered his wife by giving her three khokhri blows. According to the accused, he had enquired from the wife regarding the father of the child, whereupon she had abused him. He consequently killed her. There was no reference to the attempt at suicide in statement PH of the accused.

4. At about 10.45 p.m. Shri Mahajan called his peon Mangat Ram (P. W. 10) and sent him to the Police post at Kotkhai, to call the Officer incharge of the Police post. Mangat Ram went to the Police post and arrived there at 10.50 p. m. At the Police post he told Head Constable Bhag Singh (P. W. 13) that an accused in a murder case had come at the residence of the Naib Tehsildar and the Police was wanted there. Entry 26, copy of which is PV, was made in the daily diary of the Police post at 10.50 p. m. regarding the above intimation given by Mangat Ram. The entry was signed by Mangat Ram.

5. Head Constable Bhag Singh then went to the residence of Shri Mahajan Naib Tehsildar. The accused who was present there, was put under arrest by the Head Constable. The Head Constable found that the coat and Kachha of the accused were wet. Written PH was also handed over by the Naib Tehsildar to the Head Constable. The Head Constable returned with the accused to the Police post and made entry in the daily diary. Intimation about the occurrence was also sent to Police Station Theog as well as to the Superintendent of Poli