C.M.LODHA, J. - (1.)THE convict Vajia has filed this appeal through jail from his conviction and sentence by the learned Sessions Judge, Balotra, under Section 302, I.P.C. for committing murder of one Navia. We have heard Shri B.L. Kachhawa, amicus curiae, on behalf of the appellant and Shri A.R. Mehta, learned Deputy Government Advocate, and for the reasons, which we shall presently state, we are of the opinion that this appeal must be allowed.
(2.)THE prosecution case is that the accused had illicit connections with one Mst. Ganga aunt of the deceased Navia who used to complain to his parents about the visits of the accused to Mst. Ganga. It is alleged that on 13th February, 1965, the accused took Navia with him to his house and killed him with an axe. It is further alleged that in order to make the evidence of murder disappear, he took the dead body of Navia from his house and threw it into a well situate at a distance of about 4 mills from his village Dudsi. The parents of the deceased Navia, aged about ten years made inquiries about the boy when he did not turn up for 2 days. Kartia uncle of Navia, was, however, informed by some people of the village that Navia had been seen last in the company of the accused at a hotel in the village and thereafter no trace of Navia had been found. The prosecution case is that Vijia admitted his guilt to one Amar Singh, Patwari, and narrated the whole incident to him as to how he took Navia from the hotel and how he then killed him in his house and ultimately threw his dead body into a well. The first information report of this occurrence was lodged by Kartia, uncle of the deceased Navia, on February 15, 1965, at Police Station, Jalore, as a result of which the accused was arrested the same day at about 8 p.m. After his arrest, the accused got the dead body of Navia recovered from the well. A few other articles, viz., a blood -stained gunny bag, two blood -stained towels two blood -stained jackets and one blood -stained basket connected with the crime, are also alleged to have been recovered at the instance of the accused. The accused also made a confession before the Munsif -Magistrate, Jalore, on February 24, 1965. He was then challenged in the court of Munsif -Magistrate First Class, Jalore, who recorded the statement of one prosecution witness Amar Singh and after examine the accused committed him for trial under Section 302, T.P.C. to the court of learned Additional Sessions Judge, Jalore. The accused pleaded not guilty and claimed to be tried and the learned Additional Sessions Judge, Jalore, recorded the statement of 5 prosecution witnesses. Thereafter the case was transferred to the court of sion Judge, Balotra.
On February 14, 1966 the learned Session Judge, Balotra, read out the charge to the accused and asked him whether he was guilty of the offence charged or claimed to be tried. The accused pleaded guilty to the charge in the following terms; I have heard the charge and understood it. I admit to have committed the offence. I have intentionally murdered Navia. I want to give my statement on oath and for that purpose I have made an application separately. I do not want a trial. He also submitted an application on that very day praying that his statement on oath may be recorded. The learned Sessions Judge allowed the accused to give his statement and recorded the same. This statement has been marked as D.W.I. In view of this statement given by the accused, the Public Prosecutor stated that he did not wish to examine any prosecution witness and, therefore, the witnesses Jeewa, Padamiya, Karatia, Mania and Amar Singh, who had been summoned to give evidence on behalf of the prosecution and who were present in the court on that day, were discharged and the learned Sessions Judge after hearing arguments convicted the accused under Section 302 I.P.C. and sentenced him to life imprisonment.

(3.)WE have carefully persued the judgment of the learned Sessions Judge and find that he has placed reliance on the statement of the accused for the purpose of holding him guilty of the offence charged with. He has observed that there are some minor points of variance between the prosecution case and the statement given by the accused but these, according to him, are of no substance. He has based his findings on the statement given by the accused on oath coupled with his confession made before the Munsif -Magistrate, and the plea of guilty made by the accused before him on February 14, 1966. He has also referred to the extra -judicial confession alleged to have been made by the accused to Patwari Amar Singh.
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