ARORA, J. - (1.) THIS appeal is directed against the judgment dated 2. 11. 87, passed by the Sessions Judge, Pali, by which the learned Sessions Judge convicted the accused-appellant for the offences under Sections 302 and 201 I. P. C. and sentenced his to undergo imprisonment for life and a fine of Rs. 1000/- and in default of payment of fine further to undergo one month's simple imprisonment for the offence under Section 302 I. P. C. and two years' rigorous imprisonment and a fine of Rs. 500/- and in default of payment of fine further to undergo fifteen days' rigorous imprisonment for the offence under Section 201 I. P. C.
(2.) APPELLANT Sattar Khan, alongwith his father Hakim, was tried by the learned Sessions Judge, Pali, for the offences under Section 302 and 201 I. P. C. The case of the prosecution is that on 14. 4. 84, appellant Sattar Khan, in the company of his father Hakim Khan, committed the murder of his wife Smt. Kamla and daughter Sahida by throttling them. The prosecution, in support of its case, examined sixteen witnesses. The accused, in defence, examined two witnesses. The case of the accused, as put in the defence, was that both the accused were not inside the house when the incident took place and Smt. Kamla committed suicide by burning herself as well as her daughter Sahida. The learned Sessions Judge did not place reliance over the defence version and accepted the prosecution case and by the judgment dated 2. 11. 87, convicted and sentenced the accused-appellant, as stated above. It is against this judgment that the appellant has preferred this appeal. There is no eye witness to the occurrence and the case of the prosecution mainly rests upon the circumstantial evidence. The circumstantial evidence, believed by the learned trial Court, are: (i) that the relations of the appellant with the deceased were not cordial and to resolve the dispute between them, a Panchayat was held and the deceased was sent with the accused ; (ii) the accused suspected the chastity of his wife as she became pregnant while she was living with her parents; (iii) on the earlier day of the incident, i. e. , on 14. 4. 84, the accused-appellant gave beatings to his wife by a hollo-iron-road (Bhoongli); (iv) immediately after his conduct, he was seen washing his hands which was an abnormal conduct; (v) extra-judicial confession made by the accused immediately after the occurrence; and (vi) the accused did not give any information of the death to any of his close relative and did not inform to the police. Now, it has to be seen: whether the circumstances which have been believed by the learned Sessions Judge, have fully established the case against the accused and whether these circumstances show a definite tendency pointing towards the guilt of the accused and the facts established from these circumstances are consistent only with the hypothesis of the guilt of the accused and are of conclusive nature and excludes every possible hypothesis except that of the guilt of the accused, and whether the chain of the circumstances conclusively lead to the conclusion that the accused-appellant is the perpetrator of the crime and nobody other than him has committed the crime ? The first circumstance relied upon by the prosecution and believed by the learned trial Court was that the relations between the appellant and his wife were strained and the accused used to give beatings to the deceased. To prove this circumstance, the prosecution has produced PW 1 Daya Ram, PW 2 Nathu, PW 8 Roshan and PW 9 Dhagla. The learned trial Court did not believe PW 8 Roshan and PW 9 Dhagla on this point. We have gone through the statements of these two witnesses and we are, also, of the opinion that the evidence of these witnesses do not inspire confidence and they have been rightly disbelieved by the trial Court. Now coming to the statement of PW 1 Daya Ram, he has stated that the relations between accused Sattar Khan and his wife Smt. Kamla were not good. He is not related to the accused nor had he any relations either with the family of the accused or his in-laws. He has stated that he is the Sarpanch of the village. What is the source of his knowledge about the strained relations between the accused and his deceased wife, he has not been able to show. The evidence of this witnesses cannot be relied-upon merely on the ground that he is the Sarpanch of the village, particularly in the circumstances when there is no such complaint made to him either by the wife or any other person. The next evidence relied upon by the prosecution on this point is that of PW 2 Nathu Khan - the father of the deceased Kamla. This witness has stated that the marriage of Kamla with the accused took place three years before and out of this wed-lock she gave birth to one daughter, viz. , Sahida. Sattar Khan used to mal-treat Mst. Kamla and, therefore, mostly she used to live with him. Last time Mst. Kamla was sent with the accused and she remained with him for about 1 1/2 to 2 months. About eight days before he went to village Sandiya and when he was sitting in an hotel, Kamla and Shahida came there and Kamla wanted to say something to him but could not say. He has further stated that no talk took place between the accused and him regarding mal-treatment of the accused towards Mst. Kamla. She was living with her husband for last 1 1/2 to 2 months. During this period, no complaint regarding the mal-treatment was made either to this witness or to any other person by the deceased. In the cross-examination this witness has even admitted that before the police he had stated that the relations between the deceased and the appellant for ten-eleven months after the marriage were cordial and it has not been disclosed in his earlier statement given before the police that the accused forcibly left Mst. Kamla to his house and according to him he stated so to the police but cannot say why it has not been mentioned in his police statement. A thorough reading of the evidence of this witness clearly shows that the relations of the appellant with the deceased were cordial and not strained. The learned trial Court was, therefore, not justified in placing reliance over this circumstance against the accused- appellant. The next circumstance, which though not relied upon by the prosecution but still believed by the learned trial Court is that deceased Smt. Kamla got pregnancy while she was living with her parents. There is no evidence, produced by the prosecution, on this point. Merely because the doctor stated that at the time of post-mortem examination the deceased was found having a pregnancy of three months, does not give an occasion to the learned trial Court to believe that the deceased conceived while she was living with her parents. The learned trial court was, therefore, not justified in placing reliance on this circumstance.
(3.) THE next circumstance relied upon by the prosecution and believed by the learned trial Court giving beating by the accused to Mst. Kamla with the Bhoongli (a hollow iron-pipe) on 14. 4. 84 at about 10. 00 a. m. THE prosecution, to prove this circumstance, has produced PW 3 Alladdin. PW 3 Alladdin has stated that one day, in the month of Chetra, he heard the cries of "kute RE KUTE RE". THE cries were raised by Smt. Kamla and her mother-in-law and they were seeking help to be rescued. He went to the house of the accused and saw that the accused was giving beatings to Mst. Kamla. He rescued her. According to him, the accused was beating his wife with the Bhoongli. In the evening, at about 4. 00 to 5. 00 p. m. , he was informed that fire took place at the house of the accused. Hajim and Bhoor Khan were, also, sitting at that time by his side. He remained sitting there but Hajim and Bhoor Khan left his house. According to him, he cannot say how Smt. Kamla and her daughter died, as he was not present at the scene of the occurrence. In the cross-examination he has stated that he never informed the police regarding this incident. He, also, admitted that he had no relations with them. He went there merely on hearing the cries of the deceased and her mother-in-law for rescuing and when he reached there he saw the accused giving beatings to Mst. Kamla by Bhoongli on her chest and thigh. He did not try to take away the Bhoongli from the accused. When this witness was confronted with has earlier statement made by him before the police and asked why this fact has not been mentioned in his statement EX. D. 8, he stated that he narrated so to the police but why it has not been mentioned, he cannot say. When he was confronted with his statement EX. D. 8 (portion A to B) that he heard the voice of Rashul Khan at that time Hajim was sitting by his side, who after hearing the voice of Rashul Khan went away and he, also, heard the voice of Sattar Khan regarding the fire, he stated that he stated so to the Poilice he heard the voice of Rashul Khan and not that of Sattar Khan but why it has not been mentioned in his earlier statement, he cannot say. THE fact of giving beating by the accused to his wife was not disclosed by this witness in his earlier statement and when confronted, he- stated that he said so to the police but why it is not mentioned in his earlier statement, he cannot say. He has, also, stated during the investigation that Sattar Khan was, also, raising alarm that the fire had taken place but he denied to have made such statement before the Court. This witness has tried to make improvement from his earlier statement and tried to give such statement which is suited to the prosecution and which is in accordance with the prosecution story. No other witness of the locality has been produced to prove this circumstance. During the post-mortem examination, no injury was found on the person of deceased Mst; Kamla on her thigh or chest by PW 7 Dr. Anand Prakash. Even otherwise, this circumstance" itself is of no assistance to the prosecution because no conviction can be based on this solitary statement even if it is believed to be true. The next circumstance relied upon by the prosecution and believed by the learned trial Court is the conduct of the accused after the incident. According to the learned trial Court the accused was present in the house and was washing his hands. Merely because the accused was washing his hand in his house, cannot be said to be circumstance which can be read against the accused. After the incident, different person act in a particular circumstance in the different manner and the fact that the accused was washing his hands at that time, cannot be an incriminating circumstance against him. The last circumstance relied upon by the prosecution and believed by the learned trial Court is the extra-judicial confession made by the accused before PW 16 Devi Singh. PW 16 Devi Singh has stated that on the day of the incident the accused came to his house, made a disclosure before him that he had killed his wife and the daugher by throttling them and sought his help. According to this witness, the murder was committed by the accused 0because she was living with her parents but conceived. The evidence of extra-judicial confession is a very weak type of evidence but the conviction of the accused can be based on it provided it is true, voluntary and inspires confidence and is made before a person who had either intimate relations with the accused or who is a person or authority who could do something to save the accused. It is not expected from an accused, who had committed the murder, to go and confess his guilt before an unknown person and making the disclosure of his guilt before him, particularly in the circumstance when he was not known to him nor he was a person having influence or authority. It has been held by the Supreme Court in : Manohar Vs. the State of Rajasthan (1), as under : - "there is nothing on record to show that the, appellant had any reason to take PW 11 into confidence and believe that he can save him from the trouble after getting him arrested if he confessed the guilt to him. We are not impressed with PW 11 that the appellant made extra-judicial confession to him. " ;