JUDGMENT 1. - Accused-appellant was tried by the learned Addl. Sessions Judge, Bundi under Section 302 and 309 I.P.C. for committing the murder of her Natayat husband Devilal. She was found guilty of the offences charged with and was convicted under Section 302 I.P.C. and 309 I.P.C. She was sentenced to suffer imprisonment for life and to pay a fine of Rs. 200/ under the first count and to suffer rigorous imprisonment for six months and pay a line of Rs. 500/- under the Second count, and in default to payment of fine to undergo further rigorous imprisonment for two months. 2. The facts giving rise to this appeal are that Mst. Nand Kanwari (Nand Kishori) P.W. 3 was the married wife of Devilal (since deceased). He contracted Nata marriage with the accused nearly 8 or 10 months prior to the dated of occurrence. It is alleged that Devilal reconciled with Mst. Nand Kanwari which created a heart-burning in the heart of the accused. In the night of 4th and 5th May, 1974 Mst. Nand Kanwari and Parasram were sleeping on separate cots of both the sides of Devilal Since deceased. At near about 11.30 p.m. Mst. Mathuri Bai accused-appellant inflicted a dagger blow or. the left side of the neck of Shri Devilal as a result of which Devilal turned his side and fell upon Nand Kishoris cot and the accused stealthily left the house. The prosecution case further is that both Mst. Nand Kanwari and her brother-in-law saw the accused going out of the room armed with the dagger. Mst. Nand Kanwari and other relatives seeing Devilal dead started weeping. In the meantime the accused ran towards the well and fell into it. Hearing the cries of Mst. Mathuri for help P.W. 5 Ramchander and other villagers gathered near about the well and drew her out. Written report Ex. P. 1 was sent to the police station by Dhulilal Patwari P.W. 2 on 5.5.1974. The police during investigation arrested the accused on 7th May, 1974. At the time of arrest she was found bearing blood-stained cloths and the same were seized vide seizure memo Ex P. 13. She expressed her desire to make a confession and as such she was produced before the Magistrate Shri Mangal Chand Tailor P.W. 9 on 8.5.74, and she was remanded to judicial lock up. At the time of arrest she was found bearing blood-stained cloths and the same were seized vide seizure memo Ex P. 13. She expressed her desire to make a confession and as such she was produced before the Magistrate Shri Mangal Chand Tailor P.W. 9 on 8.5.74, and she was remanded to judicial lock up. On 9.5.74, she was produced before the learned Magistrate and the learned Magistrate recorded her confessional statement Ex.P. 17. The prosecution case further is that prior to her arrest accused made extrajudicial confession in presence of P.W. 5 Ramchander and P.W. 6 Chhitar. The police after usual investigation, submitted challan and on commitment she was tried by the learned Addl. Sessions Judge, Bundi who convicted and sentenced her as already mentioned above. 3. Learned counsel appearing on behalf the accused-appellant has vehemently urged that the conviction of the accused is based on the following evidence: 1. Extra judicial confession made to P.W. 5 Ramchandra and PW 6 Chhitar. 2. Confessional statement Ex.P. 7 made by her before learned Magistrate PW 9 Mangal Chand Tailor. 3. Just after the occurrence she was found missing from the house and was recovered from a well. 4. As regards extra judicial confession, it would suffice to say that according to PW 4 Parasram accused Mathuri was arrested by the Sub-Inspector on 5th May, 1974. It has also come in the evidence that she was recovered from the well on the night of the occurrence itself. It does not stand to reason why the Sub-Inspector would have kept her free upto 7th May, 1974 if the evidence had already appeared against her. The Sub-Inspector wants us to believe that though she was suspected for committing the murder of her husband, but he left her free just to be watched by Patwari Dhulilal PW 2. This portion of his statement cannot be relied upon. It appears that such was under custody of the Sub-Inspector even though a formal arrest memo was not prepared and as such extra indicias confession, if any, made by her in the presence of PW 5 Ramchandra and PW 6 Chattar on 7th May, 1974 cannot be held to be admissible in evidence, as it stands hit by section 26 of the Indian Evidence Act. Apart from that PW 6 Chittar in cross-examination stated that Mst. Apart from that PW 6 Chittar in cross-examination stated that Mst. Mathrui made a confessional statement before him at 9 a.m. in the morning. In the same breath, he state that she made confession at 3 p.m. When his attention was drawn towards the apparent contradiction in the above statement by the learned Magistrate, the witness failed to give any reasonable explanation. PW 5 Ramchandra admitted that before leaving, the S.H.O told him that he should keep a watch over Mathuri as, the former was not taking her with him. It appears that this story has been introduced just to make a extra judicial confession admissible. The witness further goes on the state that at the time when he was talking with Mst. Mathuri, Sub-Inspector was sitting at a distance of 15 feet. Thus, there is sufficient evidence on record to hold that the so-called extra judicial confession made, if any, by the accused was made in the presence of the Sub-Inspector when she was in custody. 5. Coming to the confessional statement Ex.P. 17, it is worth mention that the accused was produced before the learned Magistrate on 9th May 1974 at 10.30 a.m. The learned Magistrate asked her certain preliminary questions and thereafter stated recording the statement without giving any time to reflect. Besides that, as already held above, accused Mst. Mathuri was apprehended by the Sub-Inspector on 5th May, 1974. Preparation of arrest memo on 7th May, 1974 thus lends sufficient support to the suspicion that this time must have been utilised by the Investigating Officer for coercing the accused. No explanation his been given as to where the accused was kept and for what purpose in between 5th to 8th till she was remanded to judicial custody by the learned Magistrate. It is the duty of the prosecution to establish that the confession relied upon is voluntary and for that purpose it was necessary to prove the circumstances under which the accused was kept in between 5th and 7th May, 1974. Not giving sufficient time to the accused for reflection by the learned Magistrate is serious infirmity in the prosecution case and it would be very unsafe to place reliance on such a confessional statement. Not giving sufficient time to the accused for reflection by the learned Magistrate is serious infirmity in the prosecution case and it would be very unsafe to place reliance on such a confessional statement. After discarding the evidence of confusion the remaining evidence regarding the recovery of the accused from the nearby well or missing away from the house cannot be held to be sufficient to convict the accused for murder. There is no evidence on record to hold that she had any intention to commit suicide and for that purpose she fell into the well. 6. The net result of the above discussion is that the appeal filed by the accused appellant is accepted. Her conviction and sentence awarded by the trial court is set aside. She is ordered to be released forthwith if not required in any other case.Appeal accepted. *******