JUDGMENT

R. S. SARKARIA, J. :— The appellant, a graduate in agriculture, was working as a lecturer and Head of the Agricultural Department in the Composite Training Centre of the Manvi Vidyapeeth at Gargoti in the district of Kolhapur. He was tried and convicted by the Sessions Judge, Kolhapur under S. 302, Penal Code for the murder of his wife, Smt., Malti, and sentenced to imprisonment for life. The learned Judges of the Division Bench of High Court who heard Prabhakars appeal were divided in their opinion. Bhole, J. opined that the conviction of the appellant be upheld while his companion Judge held a contrary opinion. The case was then referred to a 3rd Judge and heard and disposed of by Kotwal C. J., who agreed with Bhole, J. and dismissed Prabhakars appeal. Prabhakar has come in appeal to this Court after obtaining special leave under Art. 136 of the Constitution.

2. We have heard learned counsel for the parties and examined the record very carefully.

3. The conviction of the appellant mainly rests upon circumstantial evidence. The facts of the prosecution case may be set out as under :

Malti deceased was married to the appellant in 1963. The appellant was addicted to drinking. Malti used to protest and object against this conduct of her husband. She wanted him to give up his obnoxious habit. The appellants father also had written letters, advising him to correct himself. The appellant did not desist from drinking and his relations with, the deceased had become unhappy. There was no issue from their marriage.

4. The appellant was residing within the premises of the Vidyapeeth. His sister Surekha (PW 9), aged about 10 or 12 years also used to live in the same house. The appellants father is a landlord in the same district. His brother-in-law Dr. Ghali is a well-known medical practitioner practising at Gadhilganj. Dr. Ghali was married to the sister of the accused.

5. On the day of occurrence (Sept. 7, 1969) the deceased wanted to go to her brothers place in Gadhilganj she had asked permission of her husband for the contemplated trip and he had allowed her to go. But she missed the bus and could not go. In the morning on the day of occurrence only three persons namely, the accused-appellant, Surekha, Malti deceased were in the house. Surekha was in the bathroom. When she heard the outcry of Malti to the effect : I am dead : Iam dead ! Surekha rushed out to the kitchen where Malti was. The appellant also rushed to the kitchen. They saw a small bottle lying near her. The bottle contained. Baygon, an insecticide. The appellant then administered saline water to the deceased to induce vomitting and she vomitted. The appellant sent Surekha to fetch Dr. Kulkarni, the Medical officer of the Public Health Centre in Mouni (Manvi) Vidyapeeth. Surekha ran to Dr. Kulkarnis house, gave the message and returned to the house. Dr. Kulkarni (P.W. 2) followed by his compounder Kambale (P.W. 5) came to the house. The appellant informed the Doctor that Malti had consumed the insecticide, and that he had given her saline water to induce vomitting. After examining the patient, Dr. Kulkarni gave more salt water to her and she vomitted. Dr. Kulkarni gave her three injections: one was of coramine, the second of teramycin and third. of betnisol. On his advice, the appellant prepared tea and administered it to her. She sat on the bed, took the tea but. vomitted it. After remaining with the patient for about an hour, Dr. Kulkarni went away at 8-45 or 9-45 A.M., telling the appellant that if he was needed he might be called again.

6. A couple of hours thereafter, the appellant again sent Surekha out to fetch Dr. Kulkarni. On receiving the message, Dr. Kulkarni accompanied by his compounder went to the appellants house and rang the bell twice. Dr. Kulkarni went inside, while the compounder carrying the medicine chest waited outside. Dr. Kulkarni wanted to enter the room in which the patient Malti was, but the appellant came into the door and told the Doctor t