MATHUR, J. - (1.) THE appellants Champalal and Smt. Mathra have been convicted for offence under Section 302 I. P. C. and sentenced to imprisonment for life and to pay a fine of Rs. 1000/-; in default of payment of fine to further undergo 6 months rigorous imprisonment. THEy have also been convicted for offence under Section 201 I. P. C. and sentenced to 1 year rigorous imprisonment and to pay a fine of Rs. 500/ -.
(2.) THE prosecution case, as it emerges from the record is that the appellants Smt. Mathra and Champalal are the wife and younger brother of the deceased Lumba Ram. Lumba Ram about five days prior to Deepawali of the year 1996 disappeared. PW. 12 Rana Ram received two Inland letters purported to be from Lumba Ram, informing about his welfare. While one letter was delivered by post, another by a messenger. THEre was no address of the addressee. Lumba Ram was an illiterate person. Rana Ram and others suspected some foul play in the matter. P. W. 5 Laka Ram expressed suspicion as to illicit relations between Champa Lal and Mathra. PW. 12 Rana Ram apprised his brother PW. 1 Geprram of missing of Lumba Ram. THE search by all the members of the family did not yield anything. Thus, the matter was reported to village Sarpanch PW. 4 Smt. Radha. On 18. 12. 96 Champa Lal and Mathra were produced before PW. 4 Smt. Radha. On interrogation by Radha Devi in presence of PW. 3 Hema Ram both of them made a confession to the effect that they killed Lumba Ram and buried in the filed. Under the instruction of Smt. Radha Devi, a written F. I. R. was lodged by PW. 1 Geprram at Police Station, Kerla. Police registered a case for offence under Section 302 & 201 IPC and proceeded with investigation. Both the accused persons were arrested. THE accused persons gave information pointing out the place where the dead body of Lumba Ram was buried, which was exhumated in presence of the S. D. M. Miss Praghya Kevalani, the Dy. Superintendent of Police Ashok Kumar and three doctors. THE autopsy was conducted on the spot by a Board of three doctors. In pursuance of the informations given by the accused persons incriminating articles were recovered. After usual investigation, police laid charge-sheet against both the appellants for offence under Sections 302 & 201 I. P. C. The appellants pleaded not guilty and claimed trial. The prosecution in support of its case examined 15 witnesses. The appellants denied correctness of the evidence appearing against them. The defence examined D. W. 1 Dr. Dinesh Kumar Sharda. The appellant Smt. Mathra examined herself as D. W. 2. The trial court found the prosecution case proved. Accordingly he convicted and sentenced both the appellants as indicated above. We have heard Mr. Sandeep Mehta learned counsel for Smt. Mathra and Mr. Sachin Acharya learned counsel for Champalal and the learned Public Prosecutor. We have also carefully perused the record and re-appreciated the evidence. It is contended by the learned counsel for the appellants that the circumstances relied upon by the prosecution have not been firmly established and in any case they are not enough to bring the offence home against the appellants. It is also contended that there is no reliable evidence on record that Lumba Ram has in fact died. On the other hand the learned Public Prosecutor has supported the judgment of the trial court. We shall first deal with the last contention raised by the learned counsel with respect to the homicidal death of Lumba Ram. It is well established that the conviction for an offences of murder does not necessarily depend upon the corpus delicti. Corpus delicti in some cases may not be possible to trace it for recovery. In many cases the accused may manage to see that the body of a deceased is destroyed and that would afford a complete immunity to guilt from being punished and would escape even when an offence of murder is proved. Therefore, what is required in a case of murder that there should be reliable and acceptable evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence that the man has died of homicidal death although the dead body may not be traced. In this regard reference may be made to a decision of the Apex Court in Sevak Ram vs. State (1 ). However, in a case where a dead body is recovered the prosecution is required to establish its identity. We shall deal with this aspect while dealing with the incriminating circumstances of recovery of the dead body at the instance of the accused appellants. The trial court has relied upon the following piece of circumstances to connect the appellants with the alleged crime :- (1) Extra judicial confession of the guilt by the appellants in presence of PW. 1 Geprram, PW. 4 Smt. Radha, PW. 9 Pokar and PW. 3 Hema Ram; (2) The recovery of the dead body of Lumba Ram in pursuance of the information given by the appellants; (3) Recovery of the incriminating articles in pursuance of the information given by the appellants; (4) Misled the family of deceased by sending letters purpoting to be in the name of deceased Lumba Ram; (5) Motive;
(3.) WE shall deal with the each circumstance in seriatum :- EXTRA JUDICIAL CONFESSION OF THE GUILTY BY THE APPELLANTS: Evidence of oral confession of guilt to one who is not a person in authority is known as extra judicial confession, if voluntary can be relied upon by the court along with other evidence in convicting the accused. Thus, extra judicial confession if free from any suspicion as to its voluntary character and has also a ring of truth, it is admissible in evidence against the accused and can be acted upon. Reference may be made to the decision of the Apex Court in Thimma vs. The State of Mysore It is held by the Apex Court in Narayan Singh & Ors. vs. State of M. P. (3), that while considering the admissibility of the extra judicial confession, it is not open to the court to start with the presumption that such evidence is a weak type of evidence. Since its admissibility would depend upon the nature of the confession, the time when the confession was made and the credibility of the witnesses who testify to such evidence needs to be closely examined. Law does not require that evidence of extra judicial confession should in all cases be corroborated where the extra judicial confession is proved by an independent witness, who is responsible officer and who bears no animus against the accused person. There is no justification for the trial court to disbelieve the evidence of such a witness particularly when the extra judicial confession is corroborated by the recovery. It must also be satisfied that there was no pressure or threat and the extra judicial confession was made freely. Suffice it to say that as a matter of caution the court requires some material corroboration to an extra judicial confessional statement, corroboration, which connect the accused person with the alleged crime. In the instant case the prosecution has produced four witnesses to prove the incriminating evidence of extra judicial confession. P. W. 1 Geprram is the uncle of deceased Lumba Ram as well as of the appellant Champa Lal. He deposed that his elder brother Rana Ram reported to him that his son Lumba Ram was missing. He was also told that two Inland letters addressed to Rana Ram were received. Name of deceased Lumba Ram was shown as sender's name. The sender's address was not given. The two letters gave rise to some suspicion. There was murmuring in the family about the illicit relations between the appellant Champa Lal and second appellant Mathra the wife of deceased Lumba Ram. He brought Champa Lal and Mathra to Mandawas. On inquiry by PW. 4 Smt. Radha the Sarpanch of Gram Panchayat, Mandawas in presence of PW. 3 Hema Ram Ward Panch, PW. 5 Laka Ram and PW. 9 Pokar Up Sarpanch, both the accused Champa Lal and Mathra made a confessional statement to the effect that they killed Lumba Ram and buried the dead body under the earth. However, they did not disclose the place of burial. The relevant portion is extracted as follows :- Rc Fkksm+h nsj ckn paikyky o efkjk us lp cksyk vksj gesa crk;k fd ge nksuksa us feydj yweckjke dks ekj fn;k gsa vksj fev~vh esa xkm fn;k gsa dgka ij fd txg xkmk ;g gesa ugha crk;ka** ;