CHAUHAN, J. - (1.) THE appellant has challenged the judgment dated 9. 01. 2002 passed by the Addl. Sessions Judge No. 1 (Fast Track), Jaipur City, Jaipur, whereby he was convicted for offences under Section 302 and 498-A IPC. He was sentenced to life imprisonment and imposed a fine of Rs. 100/- and to further undergo a simple imprisonment for three months in default thereof.
(2.) THE prosecution story is that on 24. 8. 99 Jagdish (PW. 7) submitted a written report (Ex. P. 16) wherein he claimed that his daughter, Pushpa was married, in the appellant about 17-18 years ago. At the time of marriage he had given the dowry according to his capacity and at the time of `gauna' he gave about Rs. 50,000/- and clothes, utensils and ornaments etc. to his daughter and the appellant. After the marriage, his daughter started living with her inlaws at Kotputli. However, neither the appellant, nor the in-laws were happy with the dowry. THErefore, they started harrasing his daughter for more dowry. THEy verbally abused her and physically assaulted her. Whenever he went to see his daughter. Pushpa would always complain about the in-laws and her husband demanding more dowry. He further alleged that whenever the appellant used to come to a his house, he demanded dowry and cash. His daughter also told him that the in-laws were forcing her to divorce the appellant so that he could re-marry. He further claimed that on 15. 8. 99 his nephew took Pushpa from her paternal home and dropped her at her in-laws'. His nephew also requested the appellant not to beat Pushpa or to make any further dowry demands. He also claimed that in the morning he was informed by Mahaveer Prasad, who is Pushpa's elder brother-in-law (Jeth), that Mahesh and others have killed Pushpa and thrown her body into the gutter. On the basis of this report a formal FIR, FIR No. 329/99 (Ex. P. 17) was registered at P. S. Vaishali Nagar, Jaipur, for offences under Section 302 IPC against the appellant and appellant's relatives. However, after a thorough investigation, the police submitted a charge-sheet only against the appellant for offence under Section 302 and 498-A IPC. In order to prove its case the prosecution examined twenty three witnesses and submitted forty five documents and eighteen articles. The accused examined two witnesses in his defence. After going through the oral and documentary evidence, the learned trial Court was pleased to convict the appellant as aforementioned. Mr. A. K. Gupta, the learned counsel for the appellant has argued that out of twenty-six witnesses, seventeen witnesses have turned hostile including the complainant PW. 7 Jagdish, who is the father of the deceased, PW. 15 Gajendra, who is the brother of the deceased, PW. 22 Santara, who is the sister of the deceased, PW. 23 Sultan, who is the uncle of the deceased. According to the learned counsel the conviction is based on an alleged extra-judicial confession made by the accused to his cousin brother. Mahaveer, PW. 3. However, such an extra-judicial confession cannot be relied upon. Because according to Mahaveer himself, the accused and he were not on talking terms for many years. Although they are related to each other, they being first cousins, he had never visited Mahaveer's house. Thus, Mahaveer was not a confidant in whom the accused would have naturally reposed faith to the extent of making an extra-judicial confession. Moreover, Mahaveer's testimony is full of falsehood. His behavour is also unnatural. Therefore, he is an untrustworthy witness. Hence, the appellant could not be convicted on the basis of his testimony. The learned counsel has further argued that the complainant and his family members have not supported the prosecution case. Even the two eye-witnesses, Kumari Sonu, (PW. 6), and Kumari Monu, (PW. 9), have not supported the prosecution case. According to both these witnesses, who are the appellant's daughters, their mother had died due to a fail. Therefore, the death was accidental and not homicidal. On the other hand Mr. R. P. Kuldeep, the learned P. P. has supported the impugned judgment and has argued that there is sufficient evidence for convicting the appellant. We have heard both the learned counsels and have perused the record as well as the impugned judgment.
(3.) MAHAVEER (PW. 3) is the star witness of the prosecution. In his examination in chief he clearly states that the appellant is his elder uncle's son and both belong to Kotputli. He admits the fact that the appellant and he are not on talking terms and in fact they do not visit each other at all. He further states that on 23. 8. 99 Mahesh had comes to his shop and told him that his wife is not keeping well and needs to be taken to Kotputli. According to him Mahesh's wife was sitting in the back of the jeep and she had a veil on her face. In his cross-examination he tells us that while they were driving to Kotputli, Mahesh told him that his wife has died and yet he neither stopped the jeep nor looked at his wife, who was sitting in the back. According to him, the wife was sitting throughout the journey. He claims that when the wife's body was taken out he was present at Kotputli, yet, he does not know whether she was dead or alive at that time. A critical analysis of his testimony reveals that the appellant and the witness are not very close to each other as they are not on talking terms although both the cousin brothers are living in Jaipur. In fact, they hardly interact. Hence it is difficult to believe that the appellant would have rushed to his cousin brother with whom he has hardly any relationship and make an extra-judicial confession. It is equally difficult to believe that a dead-body would be in a sitting posture from Jaipur to Kotputli, at a distance of about 80 Kms. It is equally difficult to believe that the cloths of the deceased would not show any blood, although allegedly the deceased had received a large number of injuries. Most importantly, an accused is unlikely to make his extra-judicial confession to a person with whom he hardly interacts. Because of these inherent probabilities, it is difficult to trust Mahaveer's testimony. It is well settled principle of law that extra-judicial confession, by its very nature, is a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances its credibility becomes doubtful and it looses its importance. The courts generally looks for independent reliable corroboration before placing any reliance upon an extra-judicial confession (refer to Balvinder Singh vs. State of Punjab AIR 1996 SC 607 ). It is equally well settled that an extra-judicial confession is made to a person in whom the accused has a great amount of faith. In the present case the extra-judicial confession is said to be made to a person who was almost a stranger to the appellant. Unnatural conduct and the unnatural story narrated by Mahaveer also casts doubt about the varacity of his testimony. Furthermore according to Vishamber Dayal, (DW. 1), there is animosity between Mahesh and Mahaveer as Mahaveer has illegally occupied, the house which belongs to the appellant's father. Thus, it is unlikely that the appellant would have made his extra-judicial confession to a person with whom he has a property dispute and with whom he has no relation for the last so many years. Hence, the learned trial Court was not justified in relying upon the extra-judicial confession for convicting the accused. ;