JUDGMENT 1. - The learned Sessions Judge, Jalore, has made a reference to this Court for confirmation of sentence of death passed by him on the accused appellant Moda. The accused has also preferred two appeals against his conviction and sentence; one a represented appeal & the other through jail. As all the three cases arise out of the same judgment and order, they are being disposed of by a common judgment. 2. Smt. Tulsi deceased was one of the daughters of the accused appellant, the other daughter being Sushri Jyoti. Deceased Tulsi was married to one Chopa son of Ratna resident of Alpura about fifteen years ago. Out of the wedlock, two sons, namely Kalia aged about five years and Chelia aged about nine years were born. About nine years prior to the occurrence which took place in the night intervening 4th and 5th of May. 1981, Shri Chopa husband of Smt. Tulsi died and since then, she was living with her father, the accused appellant, along with her two above named sons in village Nosara. Like all sins which speak for themselves and cannot be concealed, because of the ever bulging belly of Smt, Tulsi, it was suspected that she had conceived and about four days period to the occurrence in which Smt. Tulsi, Sushri Jyoti daughters and Smt. Nabi wife of the accused and an unborn child of Smt. Tulsi which was still in her womb, were done to death, the accused-appellant suspected that his daughter Smt. Tulsi, a widow was pregnant. He enquired from his wife Smt Nabi as to whether it was fact and he came to know that Smt. Tulsi deceased had illicit relations with one Daliya son of Kana resident of Nosara, Deceased Tulsi also admitted this to her father and gave out that she will enter into a -Nata' marriage with said Daliya. She was persuaded not to do so and on further persuasion, she agreed to lodge a report against Daliya in police station, Smt. Tulsi lodged a report Ex. D1, First Information Report No. 17 of 1981 with the Superintendent of Police, Jalore against Daliya on May 1, 1981. The report actually reached the police station Nosara on May 4, 1981 where a case under section 370 of the Indian Penal Code was registered against Daliya. D1, First Information Report No. 17 of 1981 with the Superintendent of Police, Jalore against Daliya on May 1, 1981. The report actually reached the police station Nosara on May 4, 1981 where a case under section 370 of the Indian Penal Code was registered against Daliya. When Smt. Tulsi deceased was asked to appear as a witness in the police station in support of her report, she refused to appear as a witness In the night intervening May 4th and 5th, 1981, deceased Smt. Tulsi, Sushri Jyoti her sister and their mother Smt. Nabi were sleeping inside the house. The two aforesaid sons of Smt. Tulsi were also sleeping nearby. The accused appellant took axe and went to the place where the above named two ladies and Sushri Jyoti were sleeping on cots, Smt. Tulsi and Sushri Jyoti were sleeping on one cot and Smt. Nabi on the other cot nearby. The accused gave blows with an axe to Smt. Tulsi and also gave an axe blow to Sushri Jyoti who was sleeping with her on the cot. When Smt. Nabi wife of the accused was awakened and wanted to intervene, she too was given blow by an axe by the accused. All three died on the spot, so also the unborn child in the womb of Smt. Tulsi. Accused appellant Moda went to police station Nosara immediately. Chamana P.W. 8 met him in the way to whom he made an extra-judicial confession for having killed the above named three persons. After reaching the police station, the accused appellant lodged a report Ex. P. 24 at 1-30 a.m. He was also armed with the axe which appeared to be blood stained. His clothes also were blood stained and so were his shoes. They were seized and sealed by the S H O and were later on sent to the Chemical Examiner. The report of the Chemical Examiner goes to show that they were stained with blood but the quantity of blood was not sufficient to be forwarded to the Serologist. The police came to the spot, prepared the inquest reports and sent for Dr. Raman Varma p.W. 9 who conducted the autopsy on the dead bodies at the house of the accused. He also took out the unborn child out of the uterus of Smt. Tulsi which was dead and conducted post mortem examination on its dead body. The police came to the spot, prepared the inquest reports and sent for Dr. Raman Varma p.W. 9 who conducted the autopsy on the dead bodies at the house of the accused. He also took out the unborn child out of the uterus of Smt. Tulsi which was dead and conducted post mortem examination on its dead body. The doctor found that there were two external injuries by sharp weapon on the person Smt. Nabi on her head; there were also internal injuries fractures of the skull. In the opinion of the doctor, Smt. Nabi died as result of the head injuries. Dr. Varma further found that there were as many as eight external injuries, all by sharp weapon on the dead body of Smt. Tulsi and opined that she died as a result of the injuries. He also noticed that she was pregnant and the dead body of the child was also taken and opined that the child died as a result of syncope. On examining Sushri Jyoti, the doctor found that she had as many as three injuries by a sharp weapon and she dies as a result of the injuries. During the investigation of the case, the accused-appellant made a confessional statement Ex. P. 22 to Shri Mangilal Gaur P.W. 12. 3. After investigation, a Chargesheet was filed against the accused. When a charge under Section 302 of the Indian Penal Code was read over and explained to the accused, he pleaded not guilty to the charge and claimed to be tried. On behalf of the prosecution,as many as 13 witnesses were examined. Thereafter, the accused was examined under Section 313 of the Code of Criminal Procedure to explain the circumstances appearing against him in the evidence of the prosecution witnesses. The accused appellant stands on a bare plea of denial. He set up a case that, he was not inside the house and had left it after taking his meals and that his grandsons Chelia and Kalia had told him that it was Daliya who has committed the murder of Smt. Nabi, their mother and mother's sister and has run away. The accused did not examine any witness in defence. He set up a case that, he was not inside the house and had left it after taking his meals and that his grandsons Chelia and Kalia had told him that it was Daliya who has committed the murder of Smt. Nabi, their mother and mother's sister and has run away. The accused did not examine any witness in defence. The learned Sessions Judge, as already stated earlier, convicted the accused appellant under Sections 302 and 316 of the Indian Penal Code, and passed a capital sentence against the accused under the former count and under the latter count, he sentenced the accused to undergo seven year's rigorous imprisonment and a fine of Rs. 300/-, in default of payment of fine, to further suffer rigorous imprisonment for six months. 4. We have heard the learned public Prosecutor and the learned Advocate for the accused appellant. 5. The learned advocate for the accused appellant has challenged the conviction of the accused appellant under Section 302 and 316 of the Indian Penal Code and according to him, there is not sufficient evidence on record to connect the accused with the crime. He submits that the first Information report Ex. P. 23 which was lodged by the accused contains his confessional statement and, therefore, is not admissible into evidence- It is also contended by him that no part of the report is admissible into evidence. He further contends that the confessional statement Ex. P. 21 of the accused is neither voluntary nor truthful and it is also not corroborated in material particulars by the other evidence on record. Therefore, it cannot form the basis of conviction of the accused. So far as extrajudicial confession of the accused made to Chamana P. W. 8 is concerned, the submission of the learned advocate is that Chamana is not a reliable witness and as such, no reliance can be placed on his statement to the effect that the accused admitted having caused the death of his wife and two daughters. So far as the clothes and the axe is concerned, the contention of the learned advocate is that in the absence of the report of the Serologist, it cannot be said that the clothes and the axe were stained with human blood and as such, axe is not connected with the crime. So far as the clothes and the axe is concerned, the contention of the learned advocate is that in the absence of the report of the Serologist, it cannot be said that the clothes and the axe were stained with human blood and as such, axe is not connected with the crime. The learned public prosecutor, on the other hand,contended that the confessional statement of the accused recorded by Shri Mangilal Gaur P. W. 12 under Section 164 of the Code of Criminal Procedure is voluntary and truthful and it was recorded by the Magistrate as required by law after giving sufficient time to the accused to reflect. He submits that even though the confession is a retracted one, as it is truthful and voluntary, it alone is sufficient for the conviction of the accused. It is also corroborated by extra-judicial confession made by the accused to Chamana P. W. 8 which, according to the learned Public Prosecutor, must be relied upon and is also corroborated by the other circumstances of the case. According to him, the defence of the accused that it was Daliya who committed the murder, has been rightly disbelieved by the learned Sessions Judge. His submission is that it is a case in which, for no reason or rhyme, the murder of two daughters and his wife by the accused and of unborn child of Smt. Tulsi had been committed and therefore, it is a fit case in which capital sentence should be confirmed. 6. Before we deal with the reference made by the learned Sessions Judge, we will like to see as to whether there is sufficient material on record for holding that it is the accused appellant who committed the murders. The case of the prosecution rests on the extra-judicial confession made to Chamana PW 8, his confessional statement Ex. P. 22 made to Shri Mangi Lal Gaur, his first information report Ex. P. 23 made to the police station immediately after the occurrence and the fact that the murders took place inside the house of the accused and the accused being present inside the house. P. 22 made to Shri Mangi Lal Gaur, his first information report Ex. P. 23 made to the police station immediately after the occurrence and the fact that the murders took place inside the house of the accused and the accused being present inside the house. It has not been disputed by the learned counsel for the accused, and rightly so, that Smt.'Nabi wife of the accused and his two daughters namely Smt. Tulsi and Sushri Jyoti died as a result of injuries and that the injuries were sufficient in the ordinary course of nature to cause death. That apart, from the statement of Dr. Verma PW 9, it is satisfactorily establish that they died as a result of the injuries on their person and the injuries were caused by sharp weapon. Ex. P. 23A is the first information report which was lodged by the accused at 1.30 a.m. in the night intervening 4th and 5th May 1981. A perusal of Ex. P. 23A will show that it contains confessional statement and the circumstances leading to the commission of the crime by the accused. We are of the opinion that no part of the first information is admissible. But even if we `exclude' the first information lodged by the accused immediately after the occurrence, as we shall presently show, there is sufficient material on record to connect the accused with the crime. 7. The accused is none else but the husband of Smt. Nabi and father of Smt. Tulsi and Shushri Jyoti deceased. They were living with the accused in the same house. Though the accused in his statement under Section 313 Cr. P.C, has stated that he was not present in the house and had gone out of the house after taking his meals but there is material on record to say that the accused was present inside the house during the night. PW 1 is Kesu is the real younger brother of the accused appellant. He states that the night the murders took place inside the house, he had gone to a marriage and had left the accused at his house in the night. He returned to his house at midnight and met Modi outside his (Moda's) house. The fact that the murders took place inside the house is an incriminating circumstance which the accused has not been able to explain satisfactorily. He returned to his house at midnight and met Modi outside his (Moda's) house. The fact that the murders took place inside the house is an incriminating circumstance which the accused has not been able to explain satisfactorily. The defence of the accused that it was Daliya with whom Smt. Tulsi was having illicit relations, committed the murder; does not appeal to the learned Sessions Judge. The fact that no report was lodged involving Daliya in the three murders by the accused who was present inside the house at midnight, is sufficient to hold that the defence theory put forward by the accused is not correct. 8. Chamana PW 8 has been relied upon by the learned Sessions Judge The learned advocate for the accused appellant submits that Chamana was a friend of Daliya and he was not close to the accused and that the accused would have been the last man to make a confession to him. Chamana PW 8 was living in the same village, only five or six houses away from the house of the accused. The village is a small one and everyone is known to the other. Chamana PW 8 has stated that he was returning from the marriage and he saw the accused with an axe. Due to darkness, the accused struck with him and told him that he has killed his wife and his daughters Tulsi and Jyoti and that he was going to the police station. We will later on deal with the confessional statement of the accused made to Shri Mangilal Gaur PW 12 but suffice it to say for the present that it is mentioned therein that Chamana met him in the way and merely because Chamana was examined by the police on the third day of the occurrence, it cannot be said that Chamana is such a witness who should not be relied upon, moreso, when not a single question was put on behalf of the accused to the investigating officer Vishnulal PW 13 as to why Chamana was examined the third day of the occurrence. To us, Chamana appears to be an independent witness and we place reliance on him to the effect that the accused made an extra-judicial confession to him in the night immediately after the occurrence. The extra-judicial confession of the accused made to Chamana is corroborated by his confessional statement Ex. To us, Chamana appears to be an independent witness and we place reliance on him to the effect that the accused made an extra-judicial confession to him in the night immediately after the occurrence. The extra-judicial confession of the accused made to Chamana is corroborated by his confessional statement Ex. P. 22 made to Shri Mangilal Gaur. it will be seen from a perusal of Ex. P. 22, a confessional statement of the accused that an application was filed before the Magistrate on May 8, 1981 that the accused was to make a confessional statement and the learned Magistrate ordered that the accused should be produced before him on May 11, 1981 and a production warrant should be sent to jail. The Magistrate even did not record the confessional statement of the accused on that day and ordered on 11-5-81 that the accused should be produced before him on May 12, 1981, It was only on 12-5-1981 that after putting preliminary questions to the accused, the learned Magistrate, after being satisfied that the accused was voluntarily making the statement, proceeded to record the confessional statement of the accused. Thus, sufficient time was given to the accused to reflect by the learned Magistrate and the learned advocate for the accused could not show any infirmity in the confessional statement of the accused. The confessional statement has been proved to have been recorded in accordance with law by the statement of Shri Mangilal Gaur PW 12. We are satisfied that the confession Ex. P. 2) of the accused was free and voluntary and that it was not secured by any inducement threat or promise to the accused held by a person in authority. In Shankaria v. State of Rajasthan, AIR 1978 SC 1248 , their Lordships observed that it is well settled that a retracted confession, if voluntary and truthfully made, is an efficacious proof of guilt, It was further observed that the court in such cases must apply a double test: "(a) Whether the confession was perfectly voluntary ? (b) If so, whether it is true and trustworthy ? Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise such as is mentioned s. 24, Evidence Act, it must be excluded and rejected brevi manu. (b) If so, whether it is true and trustworthy ? Satisfaction of the first test is a sine qua non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat or promise such as is mentioned s. 24, Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test, does not arise. If the first test is satisfied, the Court must, before acting upon the confession reach the finding that what is stated therein is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid canon of universal application. Even so, one broad method which may be useful in most cases for evaluating a confession may be indicated. The court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test. A reference may also be made to Shankaria v. State of Rajasthan, AIR (1978) SC 1399 . 9. In the instant case, after having gone through the confessional statement Ex. P. 22 of the accused, we are satisfied that it fulfils both the required tests. It was perfectly voluntary and trustworthy. We have also seen the confessional statement in the light of the available material on record. We have already said earlier that the murders took place at midnight in the house of the accused where the accused was present and where the three deceased, the wife and the two daughters of the accused were also residing with the accused. We have also referred to the statement of Chamana P.W. 8 to whom the accused made an extra-judicial confession. Their Lordships of the Supreme Court have observed in Mulak Raj v. State of U.P., AIR 1959 SC 902 , in head-note (b) that an extrajudicial confession, if voluntary, can be relied upon by the court along with other evidence in convicting the accused. The confession will have to be proved just like any other fact. Their Lordships of the Supreme Court have observed in Mulak Raj v. State of U.P., AIR 1959 SC 902 , in head-note (b) that an extrajudicial confession, if voluntary, can be relied upon by the court along with other evidence in convicting the accused. The confession will have to be proved just like any other fact. The value of the evidence as to the confession just like any other evidence, depends upon the veracity of the witness to whom it is made. It is for the Court having regard to the credibility of the witness, his capacity to understand the language in which the accused made the confession, to accept the evidence or not. In Pyarasing and others v. State of Punjab, AIR 1977 SC 2274 , it has been held that law does not required that the evidence of extrajudicial confession should, in all cases, be corroborated. Where the extra-judicial confession is proved by an independent witness who is a responsible man and who bears no animus against the accused, there is hardly any justification to disbelieve the evidence of such a witness. On the evidence of extra-judicial confession which was made by the accused to Chamana PW 8 an independent witness and on the confessional statement of the accused to PW 12 Mangilal Gaur, though retracted, was voluntary and trustworthy. We are of the opinion that it is established that it is the accused and accused alone who committed the murders of his wife and his two daughters. The three died on the spot and it can straightaway be said that the accused intended to cause their death. There is one more circumstance which makes the above confessional statement a probable one. Ex. D2 is a document which is signed by the accused. It was written at the police station and a perusal of its contents shows that the accused made arrangements for administration of his property for the benefit of his two grand children P.W. 3 Kalia and P.W. 4 Chalia. After having made an extra-judicial confession to Chamena P.W. 8 and perhaps feeling that he may be sent to jail for having murdered his wife and two daughters, the accused made the above arrangements for the administration of his property. The accused admits in his statement to have made those arrangements. This conduct of the accused is also consistent with the guilt. 10. The accused admits in his statement to have made those arrangements. This conduct of the accused is also consistent with the guilt. 10. The accused, therefore, has rightly been convicted under Section 302 I. P. C. 11. Now the question is as to whether we should confirm the sentence of death passed by the learned Sessions Judge on the accused. The learned Sessions Judge has taken into consideration the crime, and not the criminal, in awarding the death penalty. He has observed that there might have been some justification for awarding lesser sentence for the murder of Smt, Tulsi who was suspected by the accused of having illicit relation with Daliya but there was no justification for the accused to have caused the death of his wife and other daughter Sushri Jyoti. The learned Sessions Judge has, therefore, awarded the capital sentence to the accused. But it may be stated by us that the accused is the father of Smt. Tulsi, a widow, who was living with the accused for the last nine years after the death of her husband. Seeing that she was pregnant during her widowhood, the accused lost his mental balance. He all the more lost his balance when after having lodged report u/s. 376 IPC only a few days prior to the occurrence, Smt. Tulsi refused to appear as a witness in P. S. against Daliya with whom she was having illicit relations. Thinking that his reputation and the reputation of the family was at stake, it occurred to the accused during the night to kill his daughter Smt. Tulsi and because Sushri Jyoti was also sleeping on the same cot, in a state of mental imbalance, the accused caused her death also. When his wife came to intervene, she too was killed. In the circumstances of the case, to us, it does not appear to be such a case that a capital sentence should be awarded to the accused, a man about 60 years of age. To us, it does not appear to be rarest of the rare case to award a capital sentence. Reference may be made at this stage to Namu Ram Bora v. State of Assam, A.I.R. 1975 S.C. 762 , a case of murder of wife and two minor daughters by the accused, the crime having been committed in a state of imbalance of mind. Reference may be made at this stage to Namu Ram Bora v. State of Assam, A.I.R. 1975 S.C. 762 , a case of murder of wife and two minor daughters by the accused, the crime having been committed in a state of imbalance of mind. A reference may also be made to State of Rajasthan v. Mani Ram, I.L.R. 1980 Raj. P. 66 . 12. We will, therefore, answer the reference accordingly and do not confirm the death sentence. While dismissing the appeals of the accused and maintaining the conviction of the accused appellant under Section 302 I P.C. we will commute the sentence of death for imprisonment of life. 13. So far as the offence under Section 316 of the Indian Penal Code is concerned, it may be observed by us that no charge under Section 316 I.P.C. was framed and the accused could not have been convicted for an offence with which he was not charged. We, therefore, set aside the conviction of the accused under S. 316 of the Indian Penal Code. 14. Let a Copy of this order be sent to the Sessions Judge, Jalore, without delay.Reference not Confirmed. *******