SHARMA, J. - (1.) THE accused appellant (herein after referred to as `accused') who faced trial before the learned Additional Sessions Judge No. 1, Alwar, for having killed his wife Dhan Bai and two daughters Lalita and Laxmi, was convicted and sentenced vide judgment dated September 28, 1999, under Sections 302 and 326 IPC to respectively suffer imprisonment for life and fine of Rs. 100/- (indefault to further suffer rigorous imprisonment for fifteen days) and three years simple imprisonment and fine of Rs. 100/- (in default to further undergo fifteen days simple imprisonment ). THE sentences were directed to run concurrently. Against this judgment jail Appeal bearing No. 102/2000 has been preferred by the appellant seeking set aside of the impugned judgment whereas the State of Rajasthan in another appeal No. 748/1999 has prayed to award death sentence to the appellant.
(2.) WE may straightway proceed to state, with brevity, the case of prosecution presented for our scrutiny. On August 19, 1997 the accused and informant (PW. 1) were the tenants in a house belonging to Ramchandra (PW. 5) situated in Vishwakarma Colony Alwar. Around 6. 30 AM on that day Vijay Sing Ward Member (PW. 7) telephnically informed police control room about the murder committed in the house of Ram Chandra. On receiving the information Bhagwan Das SHO PS MIA rushed to the house of Ram Chandra where at 7. 45 AM informant Laxman handed over Bhagwan Das a written report to the effect that on August 18, 1997 around 8. 30 PM while the informant and his co-brother (Sadu) Ananda were sitting in the chowk, the accused came out of the room and started hurling abuses. On being objected by informant, the accused gave knife blow on the head of informant and when Ananda intervened he was also caused injury with knife by the accused. The accused then went back to his room and bolted it from inside. Informant got his injury bandaged and slept in the chowk. At about 3. 30 AM informant heard alarming cries coming out of room of the accused to the effect "mar Diye - Mar Diye (done to death - done to death ). The informant knocked at the door but it was bolted from inside. Around 6 AM many people including Ram Chandra, Ram Kishan, Gokul, Panna, Hazari and Chandra were gathered and implored the accused to open the door. The door got unbolted and accused came out of the room. On being asked by Ram Chandra to enter into compromise about the incident occurred on the previous night, the accused stated that he had done his job and killed his wife and children. All the persons, who were present there, then entered the room and found Dhan Bai (wife of the accused), Lalita and Laxmi (daughters of the accused) lying dead in the pool of blood. Body of Lalita was lying on the cot whereas bodies of Dhan Bai and Laxmi were on the floor. The information about the incident thereafter was communicated to Vijay Ward Member. On the basis of said report the police registered the case under Sections 302 and 323 IPC and investigation commenced. After usual investigation charge sheet was filed and in due course the case came up for trial before the Learned Additional Sessions Judge No. 1 Alwar. Charges under Sections 302, 307 and 323 IPC were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 19 witnesses. In the statement under Section 313 Cr. P. C. , the accused claimed innocence. No witness in defence was however examined. Learned Additional Sessions Judge No. 1 Alwar after hearing final submissions convicted and sentenced the accused as indicated herein above. The fact that the death of Dhan Bai, Lalita and Laxmi was homicidal is not in dispute. As per Post Mortem Report (Ex. P. 21) the deceased Dhanbai received following ante mortem injuries: 1. Incised wound left side forehead 2" x 1/4" x scalp deep 2. Abrasion left side forehead blow injury No. 1 1" x 1/2" with clotted blood present. 3. Incised wound parietal 2 1/2" x 1/4" scalp deep with clotted blood present 4. Incised wound left mastoid rq 2" x 1/2" x bone deep with clotted blood present. 5. Incised wound left side occipital rq. 3" x 1 x bone deep with clotted blood present. 6. Incised wound Rt. side fronto parietal rq. 1 1/2" x 1/4 x bone deep with clotted blood present. 7. Incised wound Rt. side occipital blood mastoid 1 1/2" x 1/2" x M. deep with clotted blood present. 8.Incised wound Rt. lat side neck below mandible 4 1/2" x 1 1/2" x Muscle deep with clotted blood present. 9. Two Incised wounds parallel on Rt. side mandible just above injury No. 8 2" x linear x skin deep with clotted blood present. 10. Linear Incised wound on lower Inj. 8 Rt. lat side neck 4" x skin deep. 11. Two abrasions on Rt. elbow lat & part 1" x 1/2" & 1/2" x 1/2" respectively. 12. Incised wound spinal shape 1 1/2" x 1/2" x muscle deep. 13. Incised wound Rt. Hypochondria 1 1/2" x 1/2" Spinal shape skin deep. 14. Incised wound Rt. Abd Ant. Just below injury No. 12 1" x 1/4" x muscle deep. 15. Incised wound Rt. lat side 4 1/2" x 1 1/2" with 7" long omentam laying out side Abd. with clotted blood present. 16. Incised wound mid thigh medially 1 1/2" x 1/2" x muscle deep with clotted blood present. 17. Incised wound left thigh Ant. 1 1/2" x 1/2" x muscle deep spindle shape. 18. Incised wound left lat. side thigh 1 1/2" x 1/2" x muscle deep spindle shape. 19. Incised wound left knee Ant. 1" x 1/2' muscle deep. 20. Incised wound left lat. side mid 1 1/2" x 1/2" x muscle deep. The cause of death was due to injury to neck, veins & artery, vital organs liver, haemorrhage & shock. Ante mortem injuries received by deceased Lalita vide Post Mortem Report (Ex. P. 22) were as under: 1. Four Incised wounds 3 x 1/2 x 1/2 on finger of left hand. palmer aspect transversally placed with red clotted blood. 2. Three Incised wound Rt. hand on last three fingers, palmer aspect 3" x 1 x 1/2" bone deep with red clotted blood. 3. Two Incised wounds Rt. hand palm and wrist 7" x 4 cm x bone deep fracture of III & IV metacarpal bone with red clotted blood longitudinally. 4. Two Incised wounds Rt. side neck 66" x 2 cm x muscle deep. 5. Two Incised wound 4 x 1 x 1 1/2 and 3 x 1/2 x 1/2 = muscle deep. 6. Incised wound 7 cm x 2 cm x lower lip. 7. Incised wound 5 x 1 cm x just below Inj. No. 6. 8. Incised wounds 5 x 2 x 1/2 x bone deep fracture of left side hand with cut structure of Lt. side neck mural, liver enters 4 pelvis with healing. 9. Incised wound 5 x 2 1/2 cm Lt. side face. 10. Incised wound 7 x 2 cm Lt. side face. 11. Incised wounds Lt. side skull 3 1-4 x 1 cm x scalp deep 2-3 x 1 x do 3-2 x 1 x do with healing 12. Incised wound (3) lower lip 3 x 2 x 2 with over size. 13. Incised wound Lt. side chest spindle shape with red clotted blood. 14. Incised wounds 4 on left side. 4 x 1 cm 3 x 1 cm 3 x 1 cm 2 x 1 cm small intestine deep with healing 2 Incised wounds on Rt. side. 5 x 2 cm 3 x 2 cm small intertine deep The cause of death was due to injuries to neck, veins to intestine lastly to haemorrhage & shock. As per Post Mortem Report (Ex. P. 23) the deceased Laxmi received following ante mortem injuries: 1. Incised wound 6 x 1cm x muscle deep (L) hand, obliquely placed. 2. Incised wounds 4 x 1 x 1/4 L. side with muscle deep red clotted blood. 3. Incised wound Lt. side neck and anteriorly neck clear cut of hands and neck veins with red clotted blood 10 x 1/2 size transversally placed 4. Incised wound left side abdomen 10 x 4 x indiblinal deep. The cause of death was due to injury to intenstine and neck & shock. Learned Amicus Curiae vehemently canvassed before us that the accused has been convicted only on the basis of suspicion. The prosecution did not choose to examine eye witness Dinesh and another eye witness Phool Singh (PW 17) was declared hostile since he did not to the line of the prosecution. According to learned counsel the circumstantial evidence produced by the prosecution is very feeble in character. The evidence of extra judicial confession lacks plausibility and does not inspire confidence. Reliance is placed on C. K. Raveendran vs. State of Kerala (AIR 2000 SC 369), Jagta vs. State of Haryana (AIR 1974 SC 1545) and State of Punjab vs. Bhajan Singh (AIR 1975 SC 258 ). Per contra, learned Public Prosecutor supported the impugned judgment and urged to impose capital punishment on the accused in view of the fact that in the preceding night the accused made attempt to kill Laxman, thereafter the accused brutally murdered three innocent women. It is contended that Phool Singh (PW. 17) being the son of the accused although did not support the prosecution story, the guilt of the accused is established by circumstantial evidence beyond reasonable doubt. Having pondered over the submissions and on scanning the material on record we find that in the absence of eye witnesses account of the occurrence, the prosecution has relied upon the extra judicial confession made by the accused to the witnesses. Reliance has further been placed by the prosecution upon the fact that the accused was present in the room where three dead bodies were lying in a pool of blood and group of blood found on the blood stained clothes of the accused matched with the blood group of the three deceased.
(3.) WE may first deal with the evidence about the extra judicial confession. The evidence in this respect consists of the testimony of Laxman (Pw. 1) Arun Gogna (PW. 2), Ram Chandra (PW. 5), Hazari (PW. 6), Vijay Singh (PW. 7) and Rajni (PW. 8 ). Supporting the facts stated in the written report Laxman deposed that on the day of the incident around 8 PM while he was sitting near the boundary of his rented room, the accused who was also the tenant, threatened him and inflicted knife blow on his head. When his co-brother Ananda intervened, the accused gave knife blow on his head also. Around 3. 30 AM, he heard cries to the effect "mar Diya Re-Mar Diya Re". At 6 AM his land lord Ram Chandra, brother Hazari and other persons gathered and purusaded the accused to open the door. The accused then opened the door and came out of his room and said that he had killed his wife Dhan Bai and daughters Lalita and Laxmi, Arun Gogna (PW. 2), Ram Chandra (PW. 5), Hazari (PW. 6), Vijay Singh, Ward Member (PW. 7) and Rajni (PW. 8) corroborated the testimony of Laxman. At this juncture it will useful to recapitulate the legal position about the extra judicial confession. Confession may be either "judicial" or `extra - Judicial". `judicial Confessions' are those which are made before the Magistrate or in Court, in the due course of legal proceedings. `extra Judicial Confessions' are those which are made by the party elsewhere than before a Magistrate or in Court; the term embracing not only express confession of crime, but all those admissions and acts of the accused from which guilt may be implied. All voluntary confessions of this kind are receivable in evidence on being proved like other facts. It is well settled that the evidence of extra- judicial confession in the very nature of things is a weak piece of evidence but it is not open to the court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Having closely analysed the evidence of Laxman, Arun Gogna, Ram Chandra, Hazari, Vijay Singh and Rajni from the point of view of trustworthiness we find ring of truth in their statements. All these witnesses had no enmity with the accused. Presence of Ram Chandra, being the land lord, Vijay Singh, being the Word Member, and Hajari, Rajni and Arun Gogna at that point of time when the accused opened the door and came out of his room was quite natural. The evidence of extra judicial confession does not lack plausibility and it inspires confidence. When the accused opened the door these witnesses had seen him coming out of the room where dead bodies of Dhan Bai, Lalita and Laxmi were lying in a pool of blood. A look at the FSL report (Ex. P. 20) further goes to show that the clothes of deceased and the accused were stained with human blood. Gudri, Petikot and Blouse (Articles 4 and 5) and Bushirt of the accused (Article 12) were found stained with blood group `a'. Whereas Salwar Kurta (Article 9) and Pant of the accused (Article 13), were found stained with blood group `b'. ;