Farooq Hasan, J. - (1.) The appellant, husband of deceased, Mst. Bhawani Bai, convict under Section 302, IPC, has assailed in this appeal, the sentence of life imprisonment imposed by the Sessions Judge, Jhalawar, under judgment dated the 18th February, 1991.
(2.) A verbal report was lodged on 4.2.90 at 4.45 PM at Police Station Bhawani Mandi (Jhalawar) for the death of Mst. Bhawani Bai, wife of appellant, Kalyan, allegedly caused on 1.2.90 in the afternoon. It had been alleged in the FIR (Ex.P. 2) by Devilal accompanied with Kanwarlal that his uncle Ramaji's daughter, Smt. Bhawani Bai, aged 35 years, was got married to Mangilal Chamar who died, and thereafter, she had been leading marital life with Kalyan for last 5-6 years thereto but, often she had been coming back to her parent's house without informing Kalyan, which annoyed him. 14-15 days before, she had gone to meet her brother at 'Gadiya' village from where she went to Araniya' - place of her maternal uncle's son - Mangilal.
(3.) It had also been alleged that on Friday at 110' clock in the noon, i.e., three days back to the day of lodging of the verbal report (Ex.P. 2), Kanwarlal came to him and gave out that Gopal of Nehrawad told him (Kanwarlal) that Kalyan came to him .(Gopal) and disclosed to him in the presence of Bherulal of Taal and Kalulal of Araniya in the yesternight that when Kalyan was taking back his wife, Bhawani Bai yesterday on Thursday, from village Araniya to Taal then in the way, Kalyan and his wife had squable in the matter of her going to parents place without intimation to him (Kalyan) and in that squable, she used force and exchanged hot words with him culminating into throttling her at-his hands at Taal of Nehrawad. It had then been alleged that after informing them in the night Kalyan had absconded, and however, he (Devilal), Mangilal and Kanwarlal proceeded to Nehrawad so as to search Smt. Bhawani Bai but she could not be searched as she was not found, and so, they returned back to village and stayed at night. Next day thereto again, they started to search at Taal but the corpse of Bhawani Bai was found lying deeply below the Khejra tree towards reverse side of the village Nehrawad. The throat had blackening, besides swelling. It had further been alleged that Bhawani Bai was killed by throttling her, and her corpse was hidden deeply and left unattended, then and there. After usual investigation, challan was filed. After committal proceedings, the appellant was charged with offence punishable under Section 302, IPC. Fourteen witnesses were produced in support of the charge. The appellant was examined under Section 313, Cr.P.C. He admitted the fact of Bhawani Bai's illness and her taking. He further admitted to be true the following version of PW 8 Bhagirath stated in his statement:- ...[VERNACULAR TEXT OMITTED]... 4. After hearing both the parties, the learned trial court convicted the appellant under Section 302 IPC and sentenced him as indicated above. Hence this appeal. 5. Before dealing with the arguments of the parties, we feel it necessary to have a look at the post mortem examination of the deceased. According to the autopsy and the evidence of the doctor who conducted post mortem on the person of the deceased, rigor mortis was all over, the body was stout, decomposed with putrefied smelling, and tongue was protruded. Dr. Rajendra Agrawal (PW 12) further found fracture of larynx, hyoid bone being separated from larynx, and he further found blackish of haematoma in neck musculature. Right and left lungs were found as collapsed. In the column of buccal cavity, teeth, tongue and pharynx, their condition is stated as normal, and it has been stated that there is no evidence of bleeding and injury. The doctor opined that the death was most probably because of the throttling which caused asphyxia death, and no evidence of rape could be detected. There was no evidence of secretion or injury over orifice, ears, nostrils, mouth, anus, urethra and vagina, and the injuries could not be detected. Other parts of the body were stated to be normal. In cross-examination, Dr. Rajendra Agrawal (PW 12) stated that it is true that in cases of throttling, there could be presence of toroid but, in the present case of throttling, the body was totally misshapped/collapsed. 6. Mr. A.K. Gupta learned counsel for the appellant contended that the impugned conviction is based on the weakness of the defence unfolded by the appellant in his statement under Section 313, Cr.P.C. but, it cannot be considered to base the conviction of an accused. Nextly it has been urged by Shri Gupta that in the present case, the first information report is belated by a total of three days with no tenable and sustainable explanation, inasmuch as the explanation given out by the prosecution cannot be relied upon in the totality of the circumstances brought on record, nor they can be acted upon to convict the accused safely in the eye of law. Lastly, Mr. Gupta argued that the conviction cannot entirely be based on extra judicial confession that too of a nature of totally and worthy of uncredence Sic : (totally unworthy of credence) in the entire gamut of circumstances appearing in the prosecution evidence, which smacks of infirmities, incongruities, and inconsistencies lacking of chain of circumstances of the story unfolded by the prosecution agency. The benefit of all the lacunae must go to the accused entitling to an acquittal. 7. Learned Public Prosecutor has merely supported the findings of conviction arrived at by the learned trial Court. He added that the learned trial court has given cogent reasons to base conviction against the appellant, as there are circumstances which form a chain to hold the accused guilty for the murder of his wife by throttling. 8. We have carefully examined the evidence on record. Dr. Rajendra Agrawal (PW 12) who medically examined the dead body of the deceased under autopsy report (Ex.P. 7), as taken note of above, testified the cause of death on account of throttling. The defence was pleaded that the deceased died due to sickness, i.e. fever. 9. We are of the view that it is a case where there was no eye-witness of the actual occurrence. The prosecution has placed reliance upon circumstances and extra judicial confession. As to the circumstances of the motive, there was no evidence except that of Lala (PW 3) brother of the deceased, that the accused wanted to inherit the property in the name of the deceased. But that piece of evidence is neither corroborative nor does tend to establish the motive. Only one witness, Lala brother of the deceased, being relative, who is interested has been produced. That apart, Lala in his police statement (Ex.D. 1) did not say anything as to motive as the dispute of inheritance or sale, of the land. He has exaggerated and improved the version in order to get the accused held guilty. What he said before the trial court during examination in chief is totally different rather he completely smashed the evidence during cross examination. He initially stated upon questions put by the Public Prosecutor, that he has given 10 bighas of land to his sister (deceased). In next breath he deposed that he got entered 10 bighas of land in the name of Kalyan during 'nata' marriage of his sister, and that, Kalyan was but, Smt. Bhawani Bai was not prone to dispose of that land and that was the motive for death of the deceased. 10. However, in cross examination he has given out version that he had stated before the police that accused Kalyan had got 10 bighas of land entered in the name of his sister (witness's) while she was being 'nata' married to Kalyan, and Kalyan was but Bhawani Bai was not prone to dispose of that land. However, the aforesaid version stated in cross-examination did not find place in the police statement. Moreover, he in his police statement admitted that since his sister was insane, she used to leave her in laws without intimating anybody. In this view of The evidence, it cannot be said that the evidence as to the motive is established. At one point of time he deposed that the land was given to the deceased but in next breath it was stated that it was got entered in the name Of Kalyan and moreso, in view of the deposition in the cross examination that the accused had sold the land, it cannot be said that the land was got entered in the name of the deceased during nata marriage. 11. No revenue record has been produced that the land was got entered in the name of the deceased or that it was in her/his name or that it was given by her father or brother (PW 3 Lala). Had the land been in the name of the accused, and when the deceased is admitted to have been an insane, she could not have been expected to raise any dispute regarding inheritance in the property Neither any oral or documentary evidence nor the witness (Lala) adduced anything to establish that the accused has sold the land, but to whom ? Thus, in our view, there was hardly any motive on the part of the appellant to commit the murder with which he was charged. 12. There is no doubt that it is for the prosecution to establish by reliable evidence the motive on the part of the appellant in case the prosecution considered it necessary to bring home the charge against the accused. But, failure to do so, and in the absence of any worthwhile evidence, no such inference that the appellant had such motive as has been put forward by the prosecution evidence, could legally be drawn. 13. As regards the aspect of the said extra judicial confessional or mere confessional statement, we may say at the outset, that a mere perusal of the points and findings illuminated by the learned trial court will indicate the futile endeavour made by it by treating the aspect of confessional statement as factor for establishing to the hilt. The prosecution case on the aspect of confessional statement rests and its evidence consists of the statement of Kalu (PW 13), Gopal (PW 14), and Bheru (PW 5) before whom the present accused is said to have made confessional statement. 14. Firstly, we may have a brief resume of the law on the aspect of extra judicial confession, before dealing with the evidence adduced on record. No doubt, the scheme of the Evidence Act is to treat confessions prima facie as relevant but it cannot be forgotten that extra judicial confession even otherwise is considered a weak evidence. It is settled law that as far as possible, the Court should be told what the accused had said. Similarly, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact, which, if true, would negative the offence alleged to be confessed. If an admission of an accused is to be used against him, the whole of it should be tendered in evidence and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only. However, in order to use the confession against the accused, the Court must be satisfied that it was voluntary and was true account of the statement given by the accused. But it cannot be disputed that it is the right of the accused to have confession excluded even suo moto if the vitiating circumstances appear. Moreover, it is for the prosecution to show affirmatively to the satisfaction of the Court that the confession was voluntary. If there is the slightest doubt or suspicion of its voluntary nature, the scale will be turned in favour of the accused and the burden is therefore on the prosecution and there is no onus on the accused. We lend (sic) (borrow) support from the decisions in Hemraj v. State of Ajmer (AIR 1954 S.C. 462) Palvinder Kaur v. State of Punjab (AIR 1952 SC 354) and State of Punjab v. Bhajan Singh (AIR 1975 SC 258). 15. In the present case, there are only three witnesses as stated above, namely Bheru (PW 5) who has been declared hostile to the prosecution as he supported the defence of the accused; Kalu (PW 13) and Gopal (PW 14), about the extra judicial confession. A bare perusal of the statements of PW 13 and PW 14 show that they do not corroborate each other and have given out different versions given in their police statements, by not corroborating it. 16. Statement of Devilal (PW 4) who lodged verbal report (Ex.P. 2) is based on .the version given out by Kanwarlal. But, Kanwarlal has not been produced though he was present while giving report to the police. His statement seems to have not been recorded by the police nor adduced in evidence. So, his statement as to the allegation involving the appellant in the commission of the impugned murder cannot be accepted as true and is discarded. However, he admitted during cross examination the factum of the deceased being insane, constantly sick, and her leaving without intimating Kalyan or anybody in her inlaws' house. The three witnesses (PWs 13, 14 and 5) state not only in their version before the police but before the Court also that the appellant has blurted out version before them when they were warming themselves before the fire, But, all of them have given out different versions blurted out allegedly by the accused, and they do not corroborate each other on material particulars. This creates grave doubt on the veracity of their versions. 17. Gopal (PW 14) in his statement before the Court stated that when he was at the well, the accused came to him and blurted out that when he was coming back with Bhawani Bai, who was having fever, he slapped her twice and she died. According to him, appellant blurted out only version that two slaps were given by him to the deceased but, the post mortem report does not state that there were marks of ligature or injury by slapping on the cheek or any other parts of her body. He in cross-examination admitted that his statement was recorded by the police, but his police statement does not indicate that Kalyan had come to him and blurted out version that his wife died at his hands. In his cross-examination he confirmed and reiterated the fact blurted out allegedly by Kalyan, having slapped his wife twice. However, the witness deposed in cross examination that Kalyan had come to him in the afternoon, whereas his police statement does not indicate so. In his police statement he stated that Kalyan had come in the night when he, Bheru, and Kalu, were warming themselves before the fire in the mohallah, and Kalyan told them that in the way when he was coming back with Bhawani Bai he gave two or three stick (danda) blows to her who was having fever. 18. Similarly, Bheru (PW 5) has stated that Kalyan came to him and told that his wife died on account of fever. According to his examination in chief, brother of Bhawani Bai came and told him that Kalyan killed Bhawani Bai, and Kalyan had not blurted out confession of killing Bhawani Bai. He resiled from his earlier version given to the police. Rather he confirmed that before three days when he was warming before the fire, Kalyan had come back with his wife but his wife (Kalyan's) fled away on the very day. 19. Now there remains only evidence of Kalu Chamar (PW 13). He stated in examination in chief that at about 8 or 9 0' clock in the night when he had gone to Mangilal at Taal village and where he, Gopal and Bheru were warming before the fire, Kalyan came and told them that his wife has died at his hands, and she has been lying at Nerawad. But, if we look at his police statement, we find a different verion than blurted out before the Court.-According to his police statement, Kalyan came and told them that his wife is dead at his hands, she was having fever, and one two dandas blows were given to her whereas before the Court the witness (PW 13) did not state as to the fact of confession blurted out by Kalyan about the infliction of danda blows on the deceased. 20. In cross-examination, firstly, the witness (PW 13) deposed that Kalyan had not blurted out that Bhawani Bai was ever before ill but in next breath he stated that Kalyan had told that Bhawani Bai had fever, and in fever she was fetched. 21. PW 13 has given different time before the court. According to his court statement, Kalyan came at 8 or 90' clock in the night whereas his police statement indicates time as that of 10 0' clock in the night. According to Court statement, Kalyan came when he, Gopal and Bheru were sitting at 8 or 9 0' clock in the night at the place of Mangilal whereas as per his police statement when Kalyan came they were sitting in the mohalla before the fire. 22. If we look at the verbal report (Ex.P. 2), we find that Kalyan had blurted out the following version to Gopal who passed on it to Kanwarlal. and Kanwarlal did say so to Devilal . "On thursday when he (Kalyan) was coming back to Taal from Araniya then in the way, on the context of going to parents' house without intimation, he had a squabble with his wife and during that squabble he had throttled his wife." 23. But,.curiously enough, as discussed above, none of the witnesses, even the informant did not state as is mentioned in the verbal report (Ex.P. 2) about the above quoted confessional statement blurted out by the accused to Gopal. 24. However, it is clear that in the present case, extra-judicial' confession blurted out allegedly by the accused to the witnesses is not acceptable for the reasons that the prosecution had led a colourful, retracted, contradictory and uncorroborative besides different evidence, as to what the accused had said. All the witnesses have blurted out different confessional statement of the accused, not only as to the time, place where the accused had allegedly blurted out the confession, but also as to the kind of infliction and number of blows. At one stage, the confession alleged is as to the slapping while at the earliest point of time, i.e. before the police, it is as to the blows of dandas. But, part of the body where such slapping or blows of dandas were made has not been told or blurted out by the accused nor disclosed by any of the witnesses. Contrarily, medical evidence does not establish the allegation of slapping or inflicting any kind of blows on any part of the body of the deceased. The medical evidence indicates that the cause of the death of the deceased was throttling. But, confessional statement allegedly blurted out by the accused to the witnesses as discussed above, does not indicate that the accused confessed blurting out that he has killed the deceased by throttling. What some of the witnesses disclosed the confession of the accused consists of the two retracted versions. One disclosed the confession consisting of the fact of slapping the deceased, and the other disclosed the confession consisting the fact of inflicting dandas. None of them disclosed the confession consisting the fact of throttling. Thus, as discussed above, we find the present case as of an evidence not corroborating. the extra judicial confession and as to what exactly the accused had blurted out the version. As a matter of prudence and practice, a Court would not ordinarily act upon a retracted confession without the strongest and fullest corroboration as to the crime and the connection of the accused. Our view -lends support from the decision in Ram Prakash v. State of Punjab (AIR 1959 SC p. 1). 25. In this view of the matter, we find the extra judicial confessions to be improbable and lacking in credence. The resume of the facts given above would go to show that according to the prosecution case, Kalyan has blurted out confession that the deceased has died at his hands. It is surprising when the accused had blurted out that the deceased has died at his hands, we fail to understand as to why he failed to blurt out about the cause of her death/murder. Persons who' commit murders likely to become garrulous after the commission of offence and acquire a sudden proneness to blurt out what to they were at pains to conceal. If Kalyan blurted out confession about the murder of his own wife, we fail to understand as to why any further enquiry about the manner and cause of death/murder, was not made from the accused and why he should not disclose any more facts about the death. 26. Kalu (PW 13) has admitted in cross-examination that Kalyan has no acquittance with him, but the parents' persons of the deceased were well known to him. Similarly, Gopal (PW 14) has denied his relationship with Kalyan. He stated that Kalyan never came to him before the impugned incident. He admitted that Kalyan belongs to other village than his. Therefore, it is significant that these three witnesses namely Kalu (PW 13), Gopal (PW 14) and Bheru (PW 5), had no particular relationship or connection with Kalyan and the witnesses were also not in such a position that the appellant would be willing to repose their confidence in them. Contrarily, there was no occasion for the accused to have blurted out confession atleast to the person well known to the parental family of the deceased and the present three witnesses in the entire gamut of facts and circumstances of the case. Thus viewed, the evidence of extra judicial confession in the very nature of things' is a weak piece of evidence. The evidence adduced in this respect in the present case lacks plausibility and it does not inspire confidence. In our opinion, the learned trial court committed grave error in having placed reliance on such evidence of extra judicial confession. 27. The evidence of the prosecution opening up so many options, one fails to see how they can claim to have salvaged their case from the shambles into which it had been reduced to, with crucial witness like PW 5 having withdrawn his support. Therefore, seemingly the trial court was in error in accepting the prosecution case as having been so fully and completely established justifying the conviction of the appellant for the offence of murder. For that reason, the appellant without sufficient evidence cannot suffer the agony of conviction and life sentence, and we are unable to sustain the impugned judgment of conviction. 28. Accordingly, we hold that the prosecution was unable to prove the charge under section 302 IPC against the accused appellant who is not guilty and is acquitted. He be set at liberty forthwith. The appeal is allowed. Appeal Allowed. .;