LODHA, J. - (1.) THESE are two connected appeals by the convicts Moda and Vagha Vagha has been convicted under section 302 I P. G. and sentenced to imprisonment for life whereas Moda has been convicted under section 302 read with Section 34 I. P. C. , and also sentenced to imprisonment for life.
(2.) THE facts of the case lie within a narrow compass: Both the accused-appellants Vagha and Moda are brothers and the deceased Mana was their third brother. It is alleged by the prosecution that there was a quarrel between Mana and the accused Vagha in respect of the engagement of the latter's daughter Mst. Motadi, who had been first betrothed to a boy at village Umerda and then the accused Vagha subsequently broke (hat engagement without paying the 'jhagra' money. This act of the accused Vagha was resented by Mana. Another cause of dispute between Vagha and Mana was with respect to a certain joint well. What was the exact nature of the dispute, and when did it arise have not been brought out by the prosecution. According to the prosecution on the night between 14th and 15th April, 1969 both the accused gave a severe beating to the deceased Mana on the way leading to the Village Budal, Police Station, Kurawad, as a result of which Mana lav dead on the road. Vagha was armed with an axe and Moda had a 'lathi'. One Nanga (PW. 2) having come to know from Nanda (PW. 15) that the dead body of Mana was lying on the road, lodged the First Information Report at the Police Station, Kurawad, situate at a distance of about 4 miles from the place of occurrence at 9 A. M. on April 15, 1969. P. W. 22 Sangram Singh, Station House Officer, Kurawad proceeded to the spot and sent the dead body for post-mortem examination. He also arretted both the accused on April 16, 1969 vide arrest memos Ex. P. 6 and Ex. P. 7. After his arrest Vagha gave information to the Investigating Officer as to the place where he had concealed the axe The information was reduced to writing and is marked Ex. P. 18a. The axe was recovered at the instance of the accused Vagha, the same day from the house of the accused. The recovery memo is Ex P. 10. Since the axe was suspected to be stained with blood it was sealed and sent for chemical examination. The report of the Chemical Examiner is Ex. P. 21, and that of the serologist is Ex, P. 22. The axe was found to be stained with human blood. Both the accused remained in the police custody upto April 28, 1969, on which date they were transferred to the Judicial custody. On 28-4-1969 the Investigating Officer made an application to the First Class Magistrate, Udaipur praying that the confes-sianal statements of both the accused may be recorded and the learned Magistrate recorded the statements of both the accused under section 164 Cr. P. C. on April 30, 1969. The confessional statement of Vagha is Ex. P. 19 and that of the accused Moda is Ex. P. 18. On medical examination the following injuries were found on the dead body of Mana: - 1. Incised wound about 6" to 8"x 3"x bone deep with fracture of mandible left side extending from the angle of mandible to the front below the lower lip. 2. Contusion 3"x3" on the left shoulder. 3. Contusion 3"x2" on the occipital region left side. Contusion multiple 3' x2" diffused mixing with each other left side of the abdomen. Contusion 4"x3" on the left buttock. 4. In the course of trial the prosecution relied upon (1) confessional statement of both the accused, (2) extra judicial confessions alleged to have been made by both of them before PW. 20 Mod Singh, P. W, 1 Sarupsingh, P. W. 3 Amra, P. W. 6 Uda, P. W. 18 Vagta Dangi, and (3) recovery of blood stained axe on the information supplied by and at the instance of the accused Vagha. 5. It may be relevant to state here that both the accused retracted their confessions on 10-6-1969 when their statements were recorded by the Committing Court. They also denied their complicity in the crime, in their statements under section 342 Cr. P. C. before the Sessions Court. The learned Sessions Judge, held that the statements made by the accused under section 164 Cr. P. C. were voluntary and true and even though the accused had retracted their confessions, the same had been amply corroborated by the recovery of the blood stained axe and extra judicial confessions. In this view of the matter the learned Judge convicted both the accused and sentenced them as stated above. Mr. Dalveer Bhandari who has volunteered his services to argue on behalf of both the accused submitted that there is enough material on the record from which it can be inferred that the confessions made by the accused are neither voluntary nor true. He has further argued that the evidence regarding extra judicial confessions is wholly untrustworthy and so also the recovery of the blood stained axe.
(3.) WE shall first take up the evidence regarding extra judicial confessions. P. W. I Sarupsingh has stated that both the accused came to the field of his brother Modsingh and stated in his presence as well as in the presence of Modsingh, Amra, Uda and Vagta Dangi that they had killed their brother Mana in the Ghata. Thereupon Modsingh sent Nanga (P. W. 2) to the police station and after about two hours the Station House Officer came to the spot. He has further stated that both the accused voluntarily made this statement. It is also stated by him that the accused Moda said that he had inflicted an injury with a lathi to the deceased and that Vagha had also said that he had murdered him by inflicting an injury with an axe on his face. In the course of cross-examination the witness has stated that he had narrated the entire story to the Investigating Officer including the extra-judcial confession by the accused but on being confronted by his statement recorded by the police (Ex. D. 1) he admitted that there was no mention of extrajudicial confession in the statement Ex. D. 1. P. W. 3. Amara, P. W. 6 Uda and P. W. 20 Modsingh have however not said a word about the extra judicial confession even though P. W. 1 Sarupsingh has stated that they were present at the time the accused confessed the guilt. P. W 18 Vagta Dangi has stated that he, Sarupsingh, Modsingh, Nanga and Uda had gone to the place of occurrence on getting information from Nanga and Moda that some-body had murdered Mana, and on the next day the witness went to Thakur Modsingh's well but since Modsingh was not there he went towards the well of Rebaries and met both the accused on the way. At that time both the accused said that they had murdered their brother. The witness goes on to state that the accused Vagha said there was a quarrel about some land and also about the engagement of his daughter between him and the deceased. The witness further states that at that time Sarupsingh also arrived and the accused confessed their guilt before him also. In the course of cross-examination the witness has admitted that the talk had taken place before the arrival of Sarupsingh but he expressed his inability to give the time when the alleged talk took place, and states that he cannot say whether it was morning or noon or evening. The witness has further stated that the accused had voluntarily called him and confessed their complicity in the crime to him. There is apparent discrepancy in the statement of this witness and the evidence of P. W. 1 Sarupsingh regarding the place where the extra judicial confession was made. Apart from that, the witness is not even able to mention the time when the alleged confession was made by bath the accused. WE are also unable to accept the version of this witness that without being asked any thing about the death of Mana, the accused had voluntarily confessed their guilt to him. In this connection we may also refer to statement of P. W. 20 Modsingh, who has deposed that both the accused came to his house in the morning and told him that some one had killed their brother Mana and his dead body was lying in Dhundhawali Ghati. This shows that the accused were not in a remorseful and repentant mood and were not prepared to make a clean breast of the whole thing. WE are, then, unable to under stand how the accused could have made a voluntary statement about their guilt before any of these witnesses. According to the evidence of PW. 1 Sarup Singh, before Nanga was sent to lodge the First Information Report, the extra judicial confession had already been made and if it was so there is no reason why there should not have been a reference to the extra judicial confession in the First Information Report itself. In our opinion, the evidence adduced by the prosecution regarding the alleged extra judicial confession of the accused is not at all reliable and consequently we reject it. Coming to the confessions Ex. P. 18 and Ex. P. 19. the first point that calls for determination is whether they are voluntary and true and in case they are found to be so, whether they find corroboration from other evidence. As we have pointed out above that the accused were arrested on 16-4-1969 and soon after their arrest Vagha gave information about the axe and Moda too gave informations about the 'lathi'. So far as the 'lathi' is concerned it was not found stained with blood and does not connect the accused with the crime. The recovery of the 'lathi' need not therefore detain us any more. The axe was recovered the same day i. e. April 16, 1969 and to all intents and purposes the investigation against both the accused was completed with the recovery of the axe. It has been argued and not without plausibility that there was no need for the police to keep the accused in their custody after 16-4-1969 and the accused should have been sent to Judicial-lock-up after the recovery of the axe. It is suggested that they were detained in police custody for the purpose of persuading them to make a confessional statement. We have given our anxious thought to this contention. It is true that no investigation remained to be carried out after 16-4-1969. The Station House Officer has no doubt stated that he used to enquire from the accused daily between 16 4 1969 to 23-4-1969 whether they had changed their clothes after the alleged crime and the accused were saying that they were putting on the same clothes which had been washed. He has further stated that he used to make this querry to the accused always once a day and obtained two remands first from 17-4-69 to 18-4-69 and from 18-4-69 to 27-4-1969 and on 28th April, 1969 he sent the accused to Judicial Lockup. We are not satisfied with this expiation. Besides that, it is significant that on the very day that accused were sent to Judicial Lock up, the Station House Officer made an application to the First Glass Magistrate, Udaipur that the confessional statements of the accused may be recorded under section 164 Cr. P. C. but the Magistrate postponed recording of their statements to 30 4 1959. It is also pertinent to point out that the accused were not produce before the Magistrate alongwith the application and consequently the Magistrate had no opportunity to warn the accused that day that they were not bound to make a confession and they may peacefully think over the matter. While retracting their confessions in their statements under Sec. 342 Cr. P. C. the accused have stated that they were given a beating by the police on account of which they had made the confessional statements. It is true that no evidence has been led to show that any beating was given to them, yet, in the circumstances of the case we are of the opinion, that the prosecution has failed to dispel our doubt as to the voluntary nature of the confession. In the confessional statement of Vagha Ex. P. 19 it is stated that there was a dispute between him and Mana regarding a joint well. When did the dispute take place, the confession is silent. He has further stated that the other accused Moda came to him and he asked Moda to accompany him to Dhunda-ki-Ghati: It is not clear as to whether they had formed a common intention to kill Mana as that time. All that is stated is that they went and sat in the Ghati, and when Mana passed by that way, he gave two blows on his neck and Mana fell down and thereafter Moda gave two or three blows with a 'lathi' on him and then both of them went to Limdiya well and washed their clothes and shoes and then slept in the 'bakhal'. However, there is no mention in this statement that he had thrown the blood stained axe in his house. The statement, in our opinion, is rather unnarural. The medical evidence shows that there was only one incised wound which could have been caused by an axe whereas in the confession it is mentioned that two blows were given with an axe on the neck. The medical evidence further shows that there was no injury on the neck. It is stated that Moda gave 2 or 3 blows with a 'lathi* whereas from the medical evidence it appears that there were 4 blows by a blunt weapon. Thus there is contradiction on the point of injuries between the medical evidence and the version given in the confessional statement by Vagha. ;