MATHUR, J. - (1.) THIS appeal is directed against the judgment dated 17. 12. 1992 passed by the learned Sessions Judge, Merta convicting the appellant of the offence under Sec. 302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 500/- and in default of payment of fine, to further undergo three months' simple imprisonment.
(2.) BRIEFLY stated the appellant Jai Narain was put to trial on the charge of murder of his wife Mst. Santosh in the intervening night of 28th and 29. 04. 1992. The father of appellant PW-4 Dunga Ram vide Ex. P. 8 gave information at Police Station, Chitava, in the early morning i. e. 7. 35 A. M. of 29. 04. 1992 with respect to the unnatural death of his daughter-in-law Mst. Santosh. The police proceeded with an enquiry under Sec. 174 of the Code of Criminal Procedure. According to the version set out in the said report, on receipt of the information from his son Girdhari, he went to the field, where Smt. Santosh was lying dead. On enquiry, it was disclosed by his son appellant Jai Narain that his wife Smt. Santosh complained of headache and, as such, he gave him a pill paracetamol. After sometime, she complained of pain in the neck. He pressed the neck and soon thereafter, there was no movement in the body. On enquiry by the police, he disclosed that his son was married about two twelve years back. Mst. Santosh did not produce any child. He also stated that on being questioned about the death of Mst. Santosh, it was disclosed by his son (accused appellant) that deceased Santosh could not swallow the pill paracetamol and complained pain in neck. He thought that it has struck in the neck and, therefore, he pressed her neck and she died after sometime. He also disclosed that families of his three sons reside in the field. On the same day at about 12. 30 P. M. , P. W. 6 Parma Ram the grand father of deceased Santosh submitted a written report Ex. P. 10. As per the version set out in the said report, his grand daughter Smt. Santosh was married to appellant Jai Narain. She was at the in-laws' house as the appellant had taken her thirteen days back. On 29. 04. 1992, one Rameshwar informed him that as his grand daughter has fallen sick and, therefore, his presence was required in village Nagwada. Accordingly, he went to village Nagwada and found his grand daughter dead. He noticed swelling & four marks on the neck with blood. He suspected it a case of murder by strangulation at the hands of appellant Jai Narain. The police registered a case against the appellant for the offence under Section 302 IPC and proceeded with investigation. The police prepared the inquest report and sent the dead body for post mortem. After usual investigation, police laid a chargesheet against the appellant for offence under Section 302 IPC. The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined as many as eleven witnesses. The appellant in his statement under Section 313 Cr. P. C. denied the correctness of the prosecution evidence appearing against him. The trial Court relying on the evidence of extra judicial confession of the accused appellant before PW-6 Parma Ram and PW-7 Uda Ram corroborated by other circumstances particularly his conduct, found the charge of murder proved and, accordingly, convicted and sentenced as noticed above. It is contended by Mr. Sandeep Mehta, learned counsel for the appellant, that the trial court has committed error in convicting the appellant solely on the evidence of extra judicial confession alleged to have been made before PW-6 Parma Ram and PW-7 Uda Ram, who are highly interested and partisan witnesses. It is also submitted that as the confessional statement is alleged to have been made by the accused in the presence of the police, it is not admissible in evidence being hit by Section 25 of the Evidence Act. It is submitted that the evidence of extra judicial confession has been introduced later on as it does not find place in FIR. It is lastly contended that as the dead body of Smt. Santosh was in the house in which three families were residing, it can not be conclusively said that Smt. Santosh was murdered by the appellant. On the other hand, learned Public Prosecutor has supported the judgment of the trial court. Before we deal with the contentions, it would be appropriate to indicate the prosecution evidence produced before the trial court. PW-1 Dr. Dinesh Sharma has stated that he was one of the members of the Board conducting the post mortem of the dead body of Smt. Santosh. The Board noticed the following injuries on her person: ``1. Abrasion with bruise 1. 5 cm x 0. 5 cm near right angle on neck; 2 Abrasion 1cm x 0. 2 cm right side of neck 2. 5 cm below injury No. 1; 3. Abrasion multiple of 0. 1 cm x 0. 1 cm x 4cm above medial and of right clavicle; 4. Abrasion 0. 2 cm x 0. 2 cm at middle of neck; 5. Abrasion 1. 5 cm x 0. 2 cm just ahead to midline of neck on left side of neck; 6. Abrasion 3cm x 0. 2 cm extending upwards & laterally on left side of neck just lateral to injury No. 5; 7. Abrasion 1cm x 1cm, 1cm above injury No. 6; 8. Bruise inner side of lower lip 3. 5 cm x 0. 5 cm on right side; 9 . Abrasion 2cm x 0. 2 cm oblique on middle of forehead extending upwards & laterally on right side upto 2cm below hair line; 10. Abrasion 1cm diameter left elbow posterio laterally; 11. Abrasion 1. 5 cm x 1cm left leg antero laterally 5cm below left knee joint; 12. Bruise 4cm x 1cm on left anterior side of iliac spine; 13. Abrasion 1. 5cm x 1cm, two in number just lateral to injury No. 12; 14. Bruise 3cm x 2cm left leg anteriorly, 7cm below left knee joint; 15. Bruise 3cm x 2cm, right leg anteriorly 7cm below right knee joint; 16. Abrasion 2cm x 1cm at 10th intercostal space 5cm midline on right side on back. '' He has proved the post mortem report Ex. P. 1. He also stated that the Board found fracture of thyroid bone in the middle. In the opinion of the doctor, Mst. Santosh died of asphyxia due to throttling. He also stated that if the neck is pressed with force, it may cause injury resulting into death. He also stated that other injuries must have been sustained by the deceased on account of struggling at the time of throttling. Pw-2 Sampat is a photographer, who has taken the photographs of the deceased. Pw-3 Gula Ram is a formal witness. Pw-4 Dunga Ram is the father of appellant Jai Narain. He has stated that deceased Smt. Santosh was his daughter-in-law being wife of appellant Jai Narain. He also stated that he used to reside in the village, whereas his son and his wife used to stay in the field. He was informed by Girdhari that Mst. Santosh has died. On receiving this information, he went to the field. The Sarpanch was already on the spot. He was advised to inform the police. He submitted a written report before the police vide Ex. P. 8. He admitted his signatures `a to B' on Ex. P. 8. In the cross- examination, he admitted that he had not submitted any written report at the police station but had only lodged an oral report. Ex. P. 8 was read over to him but he disowned the same. Pw-5 Kumbha Ram has stated that he was informed about the death of Smt. Santosh. He instructed Girdhari to report the matter to the police. He denied to have seen the dead body of Santosh. This witness has been declared hostile by the prosecution.
(3.) PW-6 Parma Ram is the grant father of deceased Smt. Santosh. He stated that about 12 or 13 days prior to the death of Santosh, appellant visited their house to collect Smt. Santosh. The appellant told him that presence of his wife Smt. Santosh was necessary in the house as his examinations are approaching fast. Thus, on the request of the appellant, they sent Santosh alongwith him. On 29th at about 4. 45 A. M. brother-in-law of Santosh arrived and informed about the sudden serious illness of Smt. Santosh. He enquired if she was alive or dead. He answered in affirmative. Thereafter, he went to Uda Ram, whose daughter was also married in the same village. Thereafter he alongwith Uda Ram went to the house of appellant Jai Narain. There, they found the dead body of Smt. Santosh and noticed marks of nail scratches on both sides of neck. He reprimanded them for giving the false information. He told them that they informed only about the illness of Santosh, whereas she has been murdered. On this, Jai Narain disclosed that Smt. Santosh has been killed by him. On further enquiry, appellant stated that he sat over the chest of Smt. Santosh and pressed the neck with both the hands. The accused further gave out the reason for killing Smt. Santosh that she was not educated and he wanted to bring an education lady. The witness further stated that he lodged the report Ex. P. 10. In the cross-examination, he admitted to have reached at village Nagwada at 11 A. M. He was also confronted with his earlier statement Ex. D. 1 in which the name of the person, who gave him the information, has been mentioned as `girdhari'. He stated that he had given the name of Rameshwar. He pleaded ignorance as to how the name of Girdhari was mentioned therein. He also admitted that deceased Smt. Santosh after marriage and before death never made any complaint against the accused appellant. Pw-7 Uda Ram has stated that Pw-6 Parma Ram visited his house and asked to accompany him to village Nagwada to attend his grand daughter Smt. Santosh, who was reported to be sick. He went to village Nagwada alongwith Pw-6 Parma Ram. He found that Smt. Santosh was dead. She was killed by strangulation. There were scratches by nails on her neck. On enquiry from appellant Jai Narain, he confessed stating that he killed Mst. Santosh as she was not educated. He further stated that incident was reported by Pw-6 Parma Ram at the Police Station. Nothing substantial has been elicited in the cross-examination to discredit the testimony of this witness. Pw-8 Bhanwar Singh has stated that he was Head Constable at Police Station, Chatava on 29. 4. 92. He has stated that Pw-4 Dunga Ram submitted a written report at the Police Station in the early morning of 29. 04. 1992. In the cross-examination, he has admitted that the police reached on the spot at about 9 A. M. He also stated that when necessary enquiry was being done by the police on the spot, Pw-6 Parma Ram and Pw-7 Uda Ram also arrived. He further admitted that they had reached on the spot on the basis of report submitted by Dunga Ram. The information by Parma Ram was submitted later on. ;