JUDGMENT 1. - The State of Rajasthan has preferred this appeal against the order of acquittal of Mohan Behari accused respondent passed by the learned Addl. Sessions Judge, Bharatpur on 20-1-1971 in Sessions Case No. 63/1970 (63/70). The accused Mohan Behari was tried by the Addl. Sessions Judge for the offence under Section 302 IPC for the murder of his wife Smt. Asha. 2. The prosecution case, in brief, is that on 19-7-70 at 7.00 a.m. the accused Mohan Behari lodged an oral report at Kotwali, Bharatpur that his wife had committed suicide after burning her clothes. However, on 22-7-1970 some informant (Mukhbar) informed the police that Asha was murdered by the accused by strangulation and thereafter burnt her to conceal this fact. The police registered the case and started investigation. During the investigation it was found that the respondent Mohan Behari had love affairs with one Beena of Jaipur & he wanted to marry that girl. In order to materialise that love affair into marriage the accused murdered his wife by strangulation & then burnt her to conceal the offence and lodged a false report or 19-7-70 alleging that it was a case of suicide. It was further alleged that the strangulation was made by pressing a `chimta' on the neck of the deceased and on the information furnished by the respondent that `chimta' was recovered. Thus the prosecution has relied on this recovery under Section 27 of the Evidence Act. It was further alleged that a letter Ex. P/6 written by the respondent confessing his guilt was sent by him to the District Magistrate, Bharatpur which was sent by the District Magistrate, to the Police. It contained the confessional statement of the accused respondent. 3. The prosecution examined as many as 24 witnesses and produced the confessional letter Ex. P/6 and some other documents from Ex. P/1 to to Ex. P/34. Ex. P/1 is the recovery memo of Chimta. Ex P/20 is the post-mortem report. Ex. P/28 is the site plan with description. Ex. P/30 is the information memo given by the accused regarding the iron `chimta'. The writing of the letter Ex. P/6 was got compared with the specimen writings of the accused & the opinion of the Expert is Ex P/31. The accused examined Girraj Sharan DW 1. Certain documents from Ex. D/l to Ex. D/12 were also produced by the accused. P/30 is the information memo given by the accused regarding the iron `chimta'. The writing of the letter Ex. P/6 was got compared with the specimen writings of the accused & the opinion of the Expert is Ex P/31. The accused examined Girraj Sharan DW 1. Certain documents from Ex. D/l to Ex. D/12 were also produced by the accused. They include the statement of prosecution witnesses, some money order receipts and the letter from the accused to the Magistrate Bharatpur dated 11-8-70. 4. The learned Sessions Judge after careful consideration and appreciation of the evidence came to the conclusion that the prosecution has failed to prove the charge against the accused for the murder of his wife Ashsa. He also held that the confessional letter Ex. P/6 was also not proved beyond doubt to have written voluntarily. No mark of injuries was found on the neck of the deceased Asha and the motive of the accused to commit the offence has not also been proved. The medical evidence has not supported the prosecution version and according to the medical evidence the cause of death was burns which were anti-mortem. Admittedly there was no direct evidence of committing the offence and the prosecution case was based on circumstantial evidence. In the opinion of the learned Addl. Sessions Judge, the circumstantial evidence. In the opinion of the learned Addl. Sessions Judge, the circumstances alleged by the prosecution are not found as such to corroborate the version of the prosecution to the extend of excluding the chance of innocence of the accused. He, therefore, acquitted, the accused. 5. We have heard the learned Public Prosecutor and the learned counsel for the respondent and have gone through the record of the case. It may be that it is an admitted case of the prosecution as well as of the accused respondent by strangulation and then was burnt in order to conceal that fact of strangulation. It is the case of accused that Asha herself committed suicide. 6. The only point for determination therefore, is that whether Asha was murdered by the accused and whether the prosecution has been able to prove its case against the accused beyond any reasonable doubt. 7. Admittedly there is no eye-witness in the present case and the case is based on circumstantial evidence only. 6. The only point for determination therefore, is that whether Asha was murdered by the accused and whether the prosecution has been able to prove its case against the accused beyond any reasonable doubt. 7. Admittedly there is no eye-witness in the present case and the case is based on circumstantial evidence only. It may be said that Asha deceased was the daughter of Ganesihi Lal who retired as Home Inspector Police from Bharatpur some months prior to the occurrence. The accused is teacher in some school. 8. It was contended on behalf of the accused respondent before the trial court that the investigation has not been fair due to the fact that father of the deceased was retired Home Inspector of the Police, who retired very recently from the police and that the Dy. S.P. Laxmikant Sharma and the investigating officer were interested in him. The learned trial Judge in his judgment has narrated various circumstances and has come to the conclusion that the factors apparent in prosecution evidence shows that the fear of the accused that the investigation was not conducted fairly as the daughter of the retired police officer was involved in the incident also appears to be not unfounded. In the circumstances he has observed that the prosecution evidence requires to be judged cautiously. 9. The learnd Addl. Sessions Judge has pointed out that there are four types of circumstantial evidence produced by the prosecution against the accused. Before us also those circumstances have been argued. These circumstances are as under : 1. Prosecution has examined PW 12 Ganeshilal, PW 13 Narendra Kumar, PW 17 Nepal Singh and PW 20 Ramsharan to prove the motive of the accused that the murder was committed by the accused Mohan Behari of his wife Asha as he was in love with one Beena Kumari of Jaipur, in order to materialise that love in marriage the murder was committed. 2. In medical evidence PW 19 Dr. D.P. Mishra was examined and his post-mortem report Ex. P. 20 and the letters exchanged Ex. P. 21 to Ex. P. 25 between the doctor and police were produced and proved. From this it was tried to show that the death of Asha took place by strangulation and not by burns. 3. A number of circumstances were given in evidence to corroborate the fact that the death was caused by strangulation. P. 21 to Ex. P. 25 between the doctor and police were produced and proved. From this it was tried to show that the death of Asha took place by strangulation and not by burns. 3. A number of circumstances were given in evidence to corroborate the fact that the death was caused by strangulation. For this PW 2 Girdharlal, PW 12 Ganeshilal, PW 13 Narendra Kumar, PW 15 Amarnath, PW 21 Majuiram Investigating Officer, PW 22 Ram Singh were examined. Besides recovery memo, 'chimta' Ex P/l inspection note of dead body Ex. P/2 inspection of site Ex. P. 3, seizure memo of articles from the place of occurrence, Ex. P/5, site plan Ex. P. 28, information of recovery of chimta Ex. P.30 were also produced. 4. Confessional letter Ex. P. 6 was produced to prove that accused had confessed to have committed the murder of his wife, for this PW. 3 Harendranth PW. 4 Narayanlal, PW 7 Laxmikant Sharma, PW. 9 Umakant Sharma, PW. 16 Shri Binay Vyas were examined and letter Ex.P/6 was produced. PWW 23 Shri Fakir Chand Puri Assistant Director Forensic Laboratory was also examined to prove that the letter Ex. P.6 was in the handwriting of accused Mohan Behari. The accused has also admitted this letter to be in his handwriting but he pleaded that it was got written from him by threat at the house of the Dy. S.P at the instance of the Sub. Inspector Ram Singh, Police Kotwali Bharatpur. This alleged confession was retreated by the accused. Subsequently he wrote an application Ex D/12 from the jail of the Magistrate submitting therein that he was made to write forcibly that letter by the Police on the dictation of the Sub-Inspector at the residence of the Dy. S.P. 10. The learned Addl. Sessions Judge has in his elaborate judgment has narrated all these circumstances and the factors in detail. He has also taken into consideration the evidence produced by the prosecution in support of its allegations. 11. As regards the motive it may be said that motive in some cases may not be of much importance, if it has been proved that the act has been committed by the accused. It may however be used to lend a further support for the conclusion reached by the court as to whether the accused had committed the act. 11. As regards the motive it may be said that motive in some cases may not be of much importance, if it has been proved that the act has been committed by the accused. It may however be used to lend a further support for the conclusion reached by the court as to whether the accused had committed the act. But of this case the prosecution has come with 'a clear allegation that the accused had love affairs with one Beena Kumari and wanted to materialised it into marriage and thus wanted to do away with his wife. The motive in the circumstances of the present case, therefore, has assumed some importance. The prosecution in order to prove this circumstance examined Balkishan PW. 8, Govind Prasad PW 11, Ganeshilal PW 12, Narendra Kumar PW. 13, Nepal Singh PW 17, and Ram Sharan PW 20. The learned trial court has discussed their evidence in detail. The accused has denied love affairs with Beena Kumari. Bal Kishan PW. 8 and Govind PW. 11 also denied this contention. However, they are brother and father of the accused. Ganeshilal P.W. 12 is the father of the deceased Narendra Kumar PW. 13 Nepal Singh PW 17 have also been not believed by the trial court. Ram Saran PW. 20 is the owner of the house in which Prahalad Shanker the brother of the accused with whom the accused used to take meals has been produced. Mohan Behari used to live in a different house belonging to one Nangram. In this house of Ram Sharan, Beena along with her mother Jaidevi was also living. This witness has not supported the prosecution version on the fact that there was any love affairs between Beena and the accused. It was further alleged by the prosecution that certain love letters were found with the accused but none of them have been produced alleging that they were torn by the accused Narendra Kumar PW 13 is the brother of the deceased. They are highly interested. In fact there is no direct evidence as to the alleged love affairs between the accused and Smt. Beena. The learned Addl. Sessions Judge has held that their statements are not corroborated. In the absence of any material evidence the testimony of all the interested witnesses has not also been relied upon by the learned trial court. In fact there is no direct evidence as to the alleged love affairs between the accused and Smt. Beena. The learned Addl. Sessions Judge has held that their statements are not corroborated. In the absence of any material evidence the testimony of all the interested witnesses has not also been relied upon by the learned trial court. The learned trial court on the other hand referred to Ex. D/7 a letter of the accused, recovered by the Police during investigation vide seizure memo Ex. D/14 that the accused was responsible towards his wife Asha, and that he, was sending money to his wife from time to time and that, money order, coupons Ex. D/3 to Ex. D/6 have also been produced which Ganeshilal has admitted to be in the hand-writing of the accused Mohan Behari. We have also looked into the relevant evidence on this point and we do not feel inclined to, hold a different view than that taken by the learned trial court. The prosecution has, therefore failed to prove the alleged motive for the murder of Smt. Asha against the accused. 12. The next contention of the learned Public Prosecutor is that from the medical evidence it should be inferred that the death of Smt. Asha was caused due to strangulation and thereafter she was burnt conceal this fact. This argument was addressed at length before the trial Court Dr. D.P. Mishra PW. 19 is the Medical Officer, who performed the post-mortem report of the dead body of Smt. Asha and prepared the post-mortem report Ex. P/20. We have gone through the statement of Dr. D.P. Mishra. The learned trial Judge has also discussed in detail his evidence keeping in view the various contentions raised by the prosecution as regards this inference to be drawn. The doctor has specifically and in clear terms stated that the burns were ante-mortem in nature and cause of death was burns and not strangulation. The learned trial Judge has scrutinised this evidence from various circumstances and principles of medical jurisprudence, and has come to the conclusion that the symptoms given by the doctor are that the burns were ante-mortem and there is no evidence that the death of Smt. Asha was caused by strangulation. The learned trial Judge has scrutinised this evidence from various circumstances and principles of medical jurisprudence, and has come to the conclusion that the symptoms given by the doctor are that the burns were ante-mortem and there is no evidence that the death of Smt. Asha was caused by strangulation. There are no marks of injury on the neck of the deceased The prosecution has alleged that the accused strangulated by pressing hard the chimta article 1 on the neck of the deceased and thus caused her death. The absence of any marks of injury on the external side of the neck or internally, goes to rebut this allegation of the prosecution. Even if the external injuries were not visible because of burns, the internal injuries should have been found on the body of the deceased. The learned trial Judge has also looked that had it been a case of strangulation the larynx, traches and bronchial should have also been effected or congested but to such signs were foul d by the doctor in the present case. It was argued before us that in case of burns the tongue would not have come out. The learned Trial Judge has repelled this argument-and we are also not inclined to hold a different view as the tongue was not charred or having vesication. The doctor has given the colour of the tongue as red. If it would have been a case of strangulation the tongue should have been out of mouth prior to the causing of burns to the dead boy and when whole of the face is burnt the tongue should have also been burnt. In Ex. P/2 Inspection, Memo, it has not been mentioned that the tongue which was coming out of the mouth was in burnt condition or was charred or had got vesication marks. When the doctor is of the definite opinion that the burns were ante-mortem and he found the cause of death due to burns, we find no sufficient reason to disbelieve his statement on this point. It cannot be held that the death was caused by strangulation and after death was caused by strangulation and after death the body of the deceased was set a fire to conceal the fact. 13. The third point is that there are certain other circumstances which may go to establish that the accused caused the death of his wife. It cannot be held that the death was caused by strangulation and after death was caused by strangulation and after death the body of the deceased was set a fire to conceal the fact. 13. The third point is that there are certain other circumstances which may go to establish that the accused caused the death of his wife. The learned trial Judge has enumerated those circumstances in his judgment in para No. 22 and has discussed tach point independently and in detail. We have gone through the points and the reasons assigned by the learned trial Judge in rejecting those circumstances. There is nothing in them to connect the accused with the guilt. It is needless for us to detail all those circumstances and reasons given to discard them as the have been elaborately discussed in the judgment of the learned trial court and We do not find any reason to hold a different view in the matter. One of the circumstances is that chimta Article-1 was covered on the information given by the accused. One blade of the chimta is said to be slightly bent and it was suggested by the prosecution that by the use of the force to press the neck this bent might have occurred. The circumstances in no way help the prosecution firstly the chimta is an article which is used daily in domestic use and there is no evidence that it did not contain bent previously to the alleged occurrence and secondly it has been recovered from the chowk on 23-7-70 vide recovery memo Ex. P./1. It may be said that the site was already inspected on 19-7-70 and at that time no chimta was recovered from this place though this plate i.e. chowk was also inspected. Therefore, this recovery has no meaning. Moreover Balkishan PW. 6 has stated that by the aid of chimta bolt of inner room was opened and therefore, it bent slightly. This statement of Balkishan has been relied upon by the learned trial-Judge. It also finds support from the Ex. 17 report lodged by the accused; In that report it has been narrated that the dead body "as found in the room locked from the inner side and the same was opened. In these, circumstances, the recovery of chimts does not assif the prosecution. 14. It also finds support from the Ex. 17 report lodged by the accused; In that report it has been narrated that the dead body "as found in the room locked from the inner side and the same was opened. In these, circumstances, the recovery of chimts does not assif the prosecution. 14. The most important "piece of evidence in favour of the prosecution is the letter Ex. P.6 containing the confession of the accused. This letter was addressed by the accused to the District Magistrate, Bharatpur.In this letter Ex. P.6 it has been mentioned that on the night of the occurrence some quarrel took place in which Asha enraged the accused. The accused gave two or three fist blows on the mouth of Asha which resulted in the breakage of bangles and mouth began to bleed. Thereafter she abused and he took a `chimta' and compressed her throat which resulted in her death Admittedly this letter has been written in the hand writing of the ace used and the accused has admitted it. However, he has plea led that it was e of written at the house of Dy. S.P. at the dictation of Ram Singh under threat. He was called on 20-7-70 at Kotwali and was detained there till his formal arrest on 23-7-70 He was mal-treated and was forced to write this letter. In support of this, he has produced DW. 1 Giraj Sharan who has said that the accused war in custody of police from 20-7-70 till he was shown in arrest on 23-7-70. This so called confession has been retracted by the accused even when he was in jail by writing a letter Ex. D.12 to the Magistrate alleging that it was got written by him by the police under threat. The learned trial Judge after discussing the circumstances in detail held that it cannot be said that the letter of confession was written by the accused voluntarily. Moreover, he has also held that it has not corroborated in material particulars by other evidence. We have our selves examined the circumstances on record and we are constrained to find ourselves unable to take a different view from that taken by the learned Trial Judge The occurrence is said to have taken place on 19-7-70. The accused lodged a report in the police about the suicide on that very day. This letter Ex. We have our selves examined the circumstances on record and we are constrained to find ourselves unable to take a different view from that taken by the learned Trial Judge The occurrence is said to have taken place on 19-7-70. The accused lodged a report in the police about the suicide on that very day. This letter Ex. P. 6 is also alleged to be dated 19-7-70 but it is strange that it was not posted till 22-7-70 as is revealed from the postal stamp over this inland letter. There are also contractions in the statement of prosecution witnesses as to when it reached the Kotwali. It reached the office of the Collector on 22-7-70 and it was delivered for transmission to the Dy. S.P. on that very day to the police but when it reached the Kotwali is a doubtful matter. Harender Nath Singh has stated that it was delivered to him by the Dy. S.P. on that 3-7-70 to enter it in receipt and then to despatch it to Kotwali. It was done by him between 11 30 a.m. and 12 noon on 23-7-70 and later on it was delivered to Kotwali through Shri Nihal Singh Constable. Against this version Ram Singh PW. 22 has admitted that the receipt of the letter was not entered in the Kotwali. It was received in Kotvali between 7 and 10 A. M. in the morning of 23-7-70. It is strange to note that the letter was despatched from the office of the Dy. S. P. between 11.30 and 12 and it reached the Kotwali prior to its despatch i.e. between 7. a.m and 10. a.m. 15. It was also argued that the accused might have felt sorry for his action and in order to unburden from his actions he must have written this letter and it should be treated to have written this letter and it should he treated to have been written in the ordinary course of nature. This argument was also pressed before the learned trial Judge and he has repelled the same having considered the some being against the human conduct. When the motive to do away with Asha was to materialise the marriage with Beena Kumari it seems ordinarily improbable that some sense of repentance might have occurred, which might have compelled the accused to write the letter. When the motive to do away with Asha was to materialise the marriage with Beena Kumari it seems ordinarily improbable that some sense of repentance might have occurred, which might have compelled the accused to write the letter. To make a confession relevant it must be shown that it was made by an accused person and that it is made voluntarily. In order to make it a foundation for conviction it must be further shown that it is true. Confessions which are not made voluntarily are rigidly excluded. The law is so strict that a confession not voluntary is rejected even if it be true. If it appears to the Judge that the confession has been voluntarily induced he is bound to exclude it. Only a confession made voluntarily is admissible against the maker of it. In case of any doubt it is for the prosecutor to prove that the confession was free and voluntary and not obtained by improper, means. If upon a review of facts and surrounding circumstances it `appears to the court' that it is not perfectly voluntary but emanated from sonic inducement or promise or threat, however, slight, proceeding from a person in authority the confession is to be totally rejected. The admissibility or rejection of a confessions rests solely on the discretion of the Judge, which must necessarily vary with the circumstances. It should be remembered that in coming to a decision on the point, it is not necessary that there should be positive proof of improper inducement or threat or promise. Such a requirement would nullify the object of the section as it would be absured to expect in most cases, Positive proof of the inducement etc. Section 24 of the Evidence Act has, therefore, been advisedly worded in a manner which admits the exercise of the fullest discretion by the court from suspicion to positive evidence. The evidence of such confession must be as closely scrutinised as all other evidence in a case of murder. It may also be mentioned as a rule of prudence and caution that the courts usually require some material corroboration to an extra judicial confession. The learned trial Judge has also come to the conclusion that the Letter Ex. The evidence of such confession must be as closely scrutinised as all other evidence in a case of murder. It may also be mentioned as a rule of prudence and caution that the courts usually require some material corroboration to an extra judicial confession. The learned trial Judge has also come to the conclusion that the Letter Ex. P. 5 is not corroborated materially by other evidence rather it stands contradicted by the statement of doctor who has given the cause of death due to burns and not by strangulation. It was also contended that two or three fist blows were given to Smt. Asha and her mouth began to bleed. There is no mark of connection on the face where the fists were said to have been given. He, has, therefore, exercised his discretion looking to the facts and circumstances of the case, not to act upon his confessional letter Ex. P. 6 and to convict the accused for the offence of murder. We cannot say that the learned trial Judge has arbitrarily exercised his discretion and we do not find any sufficient reason to differ from the findings and the discretion of the learned Trial Judge. 16. A voluntary confession of guilt proceeds only from penitence and remorse or a desire to make reparation for the crime and it usually comes from a person who commits a crime in a fit of passion or for what he imagines a righteous cause but experience of human nature shows how few people are actuated by such feelings and it has been found in numerous cases in this country that confessions have been made as a result of inducement or threat or torture or hope of some preferment or a desire to implicate others. Most of these so-called concessions are retracted at the trial causing endless embarrassment and anxiety. If human beings have so great a tendency not to acknowledge or avow mangy petty offences or acts of indiscretion. How can it be a feeling of penitence. Looking to the facts and circumstances of the case it cannot be said that this letter Ex.P. 6 proceeded with a desire to make a reparation for the crime. The learned trial Judge has rightly held that it was not voluntarily written by the accused. 17. How can it be a feeling of penitence. Looking to the facts and circumstances of the case it cannot be said that this letter Ex.P. 6 proceeded with a desire to make a reparation for the crime. The learned trial Judge has rightly held that it was not voluntarily written by the accused. 17. It has been observed in Kaliram v. The State of Himachal Pradesh, ( AIR 1973 SC 2773 ) that in a criminal trial the onus is upon the prosecution to prove the different ingredients of the offence & unless it discharges that onus it cannot succeed. The court may of course presume as mentioned in Section 114 of the Evidence Act, the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events human conduct and public and private business, in their relation to the facts of the particular case. Another golden threat which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused. It is also a accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused. The accused must have the benefit of that doubt. 18. Looking to the facts and circumstances of the case and in view of the aforesaid discussion we do not find any adequate reason to differ from the finding arrived at by the learned trial judge. The appeal has no force and the same is, therefore, dismissed.Appeal dismissed. *******