MATHUR, J. - (1.) THIS appeal is directed against the judgment dated 24. 1. 1998 passed by the Special Judge, N. D. P. S. Cases, Jodhpur convicting the appellant of offence under Section 302 I. P. C. and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-; in default of payment to further undergo three months rigorous imprisonment.
(2.) BRIEFLY stated the prosecution case is that on 17. 08. 1996 at about 8:40 AM PW-8 Corp. Praveen Sethi submitted a written report at the Air Force Police Out Post before Inspector Lal Mohd. stating inter alia that in the morning at about 6:45 AM Sgt. Pote from guardroom informed provost office on telephone to the effect that Sgt. Mrinal Kanti Dass has killed his wife Kakoli Dass as per the telephonic message given by him. On receiving this information, PW-6 Sgt. Sanjeev asked him and PW-9 Sgt. Birbal Vishnoi to proceed to the place of incident. He alongwith PW-9 Sgt. Birbal reached at the house of Sgt. Mrinal Kanti Dass at A- 57, Arvind Nagar. They found the dead body of Smt. Kakoli Dass lying on the double bed. Appellant Sgt. Mrinal Kanti Dass confessed that in the night a quarrel took place between him and his wife and in the quarrel, he killed his wife by strangulation. PW-15 Lal Mohd. proceeded for investigation and sent the report at Police Station for regular registration of First Information Report. The police prepared the inquest and sent the dead body for post mortem. The appellant was arrested on the same day. After usual investigation, police laid chargesheet against the appellant for offence under Section 302 I. P. C. The appellant denied the charges levelled against him and claimed trial. The prosecution in support of the case examined as many as sixteen witnesses and produced certain documents. 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 extra judicial confession of the appellant before PW-8 Sgt. Praveen Sethi, PW-9 Sgt. Birbal, PW-13 Smt. Savitri Pradhan corroborated by incriminating circumstance of sole opportunity to kill his wife Kakoli Dass held the appellant guilty of murder. Accordingly convicted and sentenced the appellant in the manner noticed above. Assailing the conviction it is contended by Mr. Jagmal Singh, learned counsel for the appellant that the conviction of the appellant solely on the basis of evidence of extra judicial confession is not sustainable. Relying on the decision of the Apex Court in the case of Makhan Singh vs. State of Punjab (1), it is submitted that extra judicial confession is a very weak piece of evidence and is hardly of any consequence. As regards the evidence of last seen, it is submitted that there is nothing special of the husband being in the company of wife. It is also submitted that the question involved in the instant case is as to whether it was a case of suicide or murder? On the other hand, it is submitted by the learned Public Prosecutor that there is no rule that extra judicial confession would not be acceptable unless it is corroborated by other evidences. It is submitted that courts very often has convicted on the basis of extra judicial confession. He has placed reliance on the decision of Apex Court in the case of Piara Singh vs. State of Punjab It is also submitted that in the instant case, in addition to the evidence of extra judicial confession, there is evidence of motive, last seen and the conduct of the appellant. Elaborating the circumstance of conduct of the appellant, it is submitted that the appellant has denied to have informed the Air Force Authorities about the death of his wife on 17. 8. 1996, if it is so, the conduct of the appellant not reporting the matter to the police or the Air Force Authorities is an important incriminating circumstance against the appellant. Before averting to rival contentions, we may briefly survey the prosecution evidence. PW-1 A. P. Dass is the father of the appellant. He has stated that on receiving the information of the death of his daughter in law, he arrived at Jodhpur and met his son appellant Sgt. Mrinal Kanti Dass in jail. His son told him that Kakoli Dass committed suicide by tying rope around the neck and hanging from the ceiling fan. He denied the suggestion that his son told him that in the intervening night of 16th and 17th of August, 1996 a quarrel took place between him and his wife and he murdered her. This witness has been declared hostile. Pw-2 Ganpat Singh, Pw-3 Narayan Choudhary are formal witnesses of the recovery of rope. Pw-4 Sushil Kumar is a neighbour. According to this witness, the relations between the couple were normal. In the cross examination he admitted that the appellant made a confession before the Air Force Police that he killed his wife by strangulation. On cross-examination by the defence counsel, he also admitted that said confession was made to the police, however, he further stated that the said statement was made at about 6:40 AM. Pw-5 Har Singh Ram is a formal police witness. Pw-10 Sher Singh is the owner of the house in which the incident took place. He has not supported the prosecution case and as such he has been declared hostile. Pw-12 Sunil runs a S. T. D. booth. He has also not supported the prosecution case and as such he has been declared hostile. Pw-11 Mahipal is a formal police witness. Pw-7 Mr. Pote has stated that on 17. 8. 1996 his duty was on main guardroom. At 6:40 AM he received a telephonic call from Sgt. M. K. Dass. He told him in english that he has killed his wife. On receiving this information, he informed the Air Force Police. The information was given on telephone to Sgt. Sanjeev. Pw-6 Sgt. Sanjeev has stated that on receiving the telephonic information about the murder he directed Pw-8 Sgt. Praveen Sethi and Pw-9 Birbal to proceed to the spot. Pw-8 Sgt. Praveen Sethi and Pw-9 Sgt. Birbal are the witnesses of extra judicial confession. They have stated that when they reached on the spot, the appellant made confession of the crime. Pw-13 Smt. Savitri Pradhan is the mother in law of the appellant. She has stated that when she met the appellant in jail, he made confession of the crime. Similar is the statement of Pw-14 Chandan Pradhan, brother of the deceased, Pw-15 Lal Mohd. is the Investigating Officer.
(3.) IT is true that courts have in number of cases pointed out that confession is a weak piece of evidence. One such case has been referred by the learned counsel being Makhan Singh vs. State of Punjab (supra ). In the said case on appreciation of evidence the court found that there was nothing to indicate that the witness before whom the confession is alleged to have been made by the accused was a person having influence with the police or a person or some status to protect him from harassment. In the said case the learned counsel for the State also conceded that the extra judicial confession is a very weak piece of evidence and is hardly of any consequence. IT appears that the learned counsel appearing for the State did not bothered to invite the attention of the court to earlier decision in Piara Singh vs. State of Punjab (supra ). wherein the Apex Court observed that the trial court was in error in considering that extra judicial confession is a weak type of evidence. The Court observed:- "thus, the learned Sessions Judge regarded the extra judicial confession to be a very weak type of evidence and, therefore, refused to rely on the same. Here the learned Sessions Judge committed a clear error of law. Law does not require that the evidence of an extra judicial confession should in all cases be corroborated. " In Narayan Singh and Others vs. State Madhya Pradesh (3), the court cautioned that the trial court in a criminal case should not start with a presumption that extra judicial confession is always a weak type of evidence. The Apex Court in Madan Gopal vs. Naval Dubey (4), held that the extra judicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration. The Apex Court in Kishore Chand vs. State of H. P. (5), held that an unambiguous extra judicial confession possession high probative value as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. The Apex Court recently in Gura Singh vs. State of Rajasthan (6), held that if the extra judicial confession is true and voluntary it can be relied upon by the trial court to convict the accused for the commission of the crime alleged. The Court further held that despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. After referring to the earlier decision of the Apex Court in Rao Shiv Bahadur Singh vs. State of Vindhya Pradesh (9), Maghar Singh vs. State of Punjab (10), the Court held that the evidence in the form of extra judicial confession made by the accused to witnesses cannot be always termed to be a trained evidence. The court further held that corroboration of such evidence is required only by way of abundant caution. ;