JUDGMENT 1. - The learned Sessions Judge, Udaipur, by his judgment dated 29. 8. 79 convicted the two accused appellants u/s 302 IPC. and sentenced each of them to imprisonment for life and a fine of Rs. 500/-, in default of payment of which, they were further sentenced to undergo six months rigorous imprisonment. They have come up in appeal. 2. During the pendency of this appeal, the accused appellant Deva died. 3. After hearing the learned counsel for the appellants and the learned Public Prosecutor and having examined the record, we passed the following order on 12. 9. 84:- "Learned counsel for the accused-appellants stated that Deva accused appellant expired during the pendency of the appeal. Deva was on bail. Learned Public Prosecutor has verified the fact of death of Deva. As such his appeal abates. Arguments concluded. We allow the appeal, set aside the order passed by the Sessions Judge, Udaipur dated August 29, 1979; the accused Kushala is acquitted of the charge under section 302 IPC. and his conviction and sentence for the aforesaid offence are set aside. He shall be set free if not required in any other case. We shall record our reasons later on." 4. Now we proceed to record our reasons. 5. The prosecution story briefly stated is that accused Deva is the brother of deceased Vala and Kushala is his nephew. On the night between 20th and 21st November, 1978, just after sunset the accused Deva and Kushala went to the house of the deceased Vala, called him out and inflicted injuries on the person of Vala. According to the case put forward by the prosecution, Kushala caused injuries with a gupti and Deva caused injuries with a lathi on the person of the deceased Vala. As a result of which, Vala died at the spot. Valas wife Smt. Logri, who was present in the house and tried to intervene, is also alleged to have been beaten by the accused persons. According to Smt. Logri, she raised hue and cry but nobody came to their rescue at the time of this incident. She however, further states that soon after the incident, Lakhan, Rama, Amara, etc. came there and she informed them of the incident. Later, in the morning, Chatra came there and she informed him also of this incident, the case of the prosecution further is that on 21. 11. She however, further states that soon after the incident, Lakhan, Rama, Amara, etc. came there and she informed them of the incident. Later, in the morning, Chatra came there and she informed him also of this incident, the case of the prosecution further is that on 21. 11. 78 in the noon at about 1, the acucsed Kushala went to Chatra, who is a Panch and told him to come to the Chauraha where he had collected the villagers. He also told him that in the night, there had been a quarrel between Chatra and his uncle Deva on the one hand and Vala on the other which Vala received injuries with a gupti and died. Thereupon Chatra went to village chauraha where other villagers had collected. There again Kushala confessed that on account of the quarrel, Vala received injuries at the hands of Kushala and Deva and died. The prosecution story further goes that then Chatra and others went to the spot and saw the deceased Vala lying covered with a pachhewada and he had injuries on his person. Valas wife Smt. Logri told them that the accused Deva and Kushala had caused injuries to her husband. She also told them that on account of the fear of the accused, she did not raise any hue and cry. Thereupon Chatra went to police station Delvada and lodged a verbal report there vide Ex, PL The police registered a case and after usual investigations, put up a challan against the two accused persons who committed them to the Court of Sessions. The learned Sessions Judge framed charges u/s 302 IPC. against both the accused persons, who pleaded not guilty and claimed to be tried. The prosecution examined 13 witnesses and also proved a number of documents. The accused persons denied their complicity in the offence and produced one witness in defence to show that Smt. Logri used to visit one Dulla Baba during the life time of her husband and on that account, Vala used to quarrel with Smt. Logri and beat her. He further stated that on the third day of Valas death, Smt. Logri went away to Dulla Baba and is living with him as his wife since then. The learned Sessions Judge after trial, convicted and sentenced the accused persons as aforesaid. 6. He further stated that on the third day of Valas death, Smt. Logri went away to Dulla Baba and is living with him as his wife since then. The learned Sessions Judge after trial, convicted and sentenced the accused persons as aforesaid. 6. The prosecution relied upon the following types of evidence in order to connect the accused persons with the aforesaid crime- (i) the eye witness testimony of Mst. Logri. (ii) extra-judicial confession made by the accused Kushala before Chatra P.W. 1, Jagannath P. W. 3, Chena P. W. 4 and Peetha P. W. 5, (iii) the judicial confession of the accused Deva Ex. 17, (iv) the judicial confession of the accused Kushala Ex. 18. (v) the fact that the accused Kushala had injuries on his person when he was arrested, and (vi) the recovery of the gupti. 7. The learned Sessions judge has placed reliance upon the testimony of Smt. Logri, the extra-judicial confession made by the accused Chatra and the judicial confession by the accused Deva. 8. He has, however, not relied upon the judicial confession of the accused Kushala. 9. The learned counsel for the accused-appellant Kushala has strenuously challenged the finding of the learned Sessions Judge and has urged that the learned Sessions Judge has wrongly relied upon the evidence of Smt. Logri who is a totally unreliable witness and her conduct is most unnatural. He further urged that the so called extra judicial confession of the accused Kushala is no confession at all and the judicial confession of the accused Deva is also of no significance or importance against Kushala as it is a retracted confession of the co-accused and is not corroborated by any reliable evidence. He further urged that otherwise also, the prosecution story is highly suspicious and unreliable. The learned Public Prosecutor, on the other hand, supported the findings of the learned Sessions Judge. 10. We have carefully examined their contentions and find considerable force in them. 11. To besin with the evidence of Smt. Logri, we are clearly of the opinion that she does not appear to be a reliable witness and her conduct is most unnatural. She states that when the accused persons came to her house and after calling Vala outside the house, started giving him with a gunti and lathi, both Vala and she raised hue and cry but no neighbours came to the spot. She states that when the accused persons came to her house and after calling Vala outside the house, started giving him with a gunti and lathi, both Vala and she raised hue and cry but no neighbours came to the spot. It is most unnatural that when such an incident was place outside the house just after sua-set in a populated locality, the neighbours would not at all be attracted towards the scene of the occurrence. For the sake of arguments, even if it is accepted that the neighbours did not come to the rescue of the deceased and Smt. Logri they would certainly have been attracted towards the scene of the occurrence and witnessed the same from their houses as according to Smt. Logri the beating was given outside the house. In that event, they could depose to the incident later on but no neighbour has come forward to support the prosecution story as an eye witness. Then if the accused persons were determined to do away with Vala, they would not have left Smt. Logri to give evidence against them and would have allowed her to escape with minor injuries. Further Smt Logri states that immediately after the incident, some of the villagers including the Panch Chatra, Chena, Lala, Jeta, Rama, Amra, Nathu, Peetha etc, had come to her house and she had narrated the story to them but none of them came forward to support her in this respect. On the other hand, she herself admits that when in the morning, Chatra again came and enquired from the neighbours Lakhma, Amra, Rama, Dalla etc. they showed their ignorance about this incident. Not only this, Chatra P. W, 1, who is said to be a Panch, does not corroborate her in as much as he does not state that he had gone to the spot in the night or in the morning nor does he state that he had made any enquiries from the neighbours in morning. On the other hand, he states that it was only in the noon that Kushala came to him and made the confession and it was then that the villagers collected in the village compound where again Kushala made a confession and then they went to the house of the deceased and Smt. Logri told them of the incident whereupon he lodged the report. Thus, not only Smt. Logris evidence is contradicted by Chatra, Chatra's evidence also become highly suspicious as both of these witnesses state quite contrary to each other about the arrival of chatra and his getting the information about the incident. 12. Smt. Logris conduct further appear to be unnatural when she states that in the night, she did nothing and sat silent at her house. Such a conduct cannot be expected of a Hindu widow whose husband had been murdered in her very presence. She would not thus sit quiet at her house but would move heaven and earth for the rescue of her husband and would throw herself over her husband in order to protect him. Even if it is assumed that on account of the fear of the accused, she did not raise any hue and cry in the night after the accused had already left, which in itself appears to be most unnatural; in the morning, she would not have waited for people to come but would have at least raised hue and every to collect them. According to her, when Chatra came in the morning and enquired from the neighbours and they pleaded ignorance about the incident, she would have asked Chatra at least to report the matter to the police or to go to the other villagers for help but nothing of this sort happened. 13. Then it also appears from the prosecution as well as the defence evidence that soon after Valas death Smt. Logri contacted Nata with Dalla and started living with him as his wife. The possibility that she was carrying on with Dalla even during the life time of Vala cannot be ruled out as has been stated by D. W. 1 Nathu. P. W. 1 Chatara did not have the courage to deny this but he only pleads ignorance although he clearly admits that after Valas death she contacted Nata with Dalla. This conduct of Smt, Logri further not only makes her evidence doubtful but also leads support to the theory that she and Dalla may have done away with Vala and now wanted to involve the brother and nephew of Vala in this offence. 14. Thus we are clearly of the opinion that no reliance can be placed upon the testimony of Smt. Logri. 15. 14. Thus we are clearly of the opinion that no reliance can be placed upon the testimony of Smt. Logri. 15. Now we may examine the extra-judicial confession said to have been made by the accused Kushala to PW 1 Chatara, PW 3 Jagannath, PW 4 Chena and PW 5 Peetha. We have carefully gone through the evidence of these witnesses in respect of the alleged so called extra-judicial confession. We may at once state that as a matter of fact there is no extra-judicial confession by Kushala to the effect that the accused Kushala or for the matter of that Kushala and Deva had murdered the deceased Vala. All that these witnesses state is that the accused Kushala had told them that in the night there had been a quarrel between the accused persons Deva and Kushala on the one hand and Vala on the other hand that he was killed. The accused persons are not alleged to have told them as to how the quarrel started and what was the reason thereof. PW 1 Chatara states that Kushala had told him that in the night, they had a lathi and a gupti. He, however, does not specify as to who was holding the gupti and who was holding the Lathi. PW 5 Peetha, however, states that Kushala had told them that he had struck Vala with a gupti and Deva had struck him with a lathi. However, Chena PW 4 does not corroborate them in this respect. He does not state that Kushala had given any description of the weapons or had told them who had struck with what weapon. Be that as it may, the mere fact that the accused persons told them that there was a quarrel in the night and as a result thereof, Vala had died does not necessarily mean that he had admitted that he murdered Vala. He had not stated as to how the quarrel arose and does not rule out the possibility that the deceased Vala was an aggressor and they had acted only in their right of private defence. The question of right of private defence assumes importance specially in view of the circumstance that according to the evidence of Smt. Logri the gupti belonged to her and it is an admitted case of the prosecution that Kushala also had injuries on his person when he was arrested. The question of right of private defence assumes importance specially in view of the circumstance that according to the evidence of Smt. Logri the gupti belonged to her and it is an admitted case of the prosecution that Kushala also had injuries on his person when he was arrested. The prosecution has not explained how the gupti belonging to Smt. Logri or her husband came to the hands of the accused. The prosecution has also not explained how Kushala happened to be injured and in these circumstances, this so called extra judicial confession by the accused to these persons looses all its significance even if it were to be believed that the accused persons had told these witnesses that there had been a quarrel in the night resulting into the death of Vala. 16. This brings us to judicial confession said to have been made by the accused persons, so far as the judicial confession of Kushala vide Ex. 18 is concerned, the learned Sessions Judge himself has not placed any reliance upon it and in our opinion, he was perfectly justified in doing so. This is no statement much less a confession because all that the Magistrate has recorded is that the accused Kushala bad stated before him that he had heard the statement of the accused Deva, which had been just recorded and his statement was also to the same effect and that he had nothing to add. To say the least, this is no way of recording a statement much less a confession. The learned Magistrate should have taken care to record the statement of the accused touching the occurrence if he wanted to say anything about it and should not only have obtained the endorsement of the statement of a co-accused. There was no justification for him either to record the statement of the accused Deva in the presence of the co-accused or to read over the same to him. Therefore, so far as Kushala is concerned, it must be concluded that he never made any confession ; before the learned Magistrate. 17. Deva has retracted the confession attributed to him vide Ex. 17 and a retracted confession of co-accused is not of much help to the prosecution in respect of the accused Kushala. Therefore, so far as Kushala is concerned, it must be concluded that he never made any confession ; before the learned Magistrate. 17. Deva has retracted the confession attributed to him vide Ex. 17 and a retracted confession of co-accused is not of much help to the prosecution in respect of the accused Kushala. Further even if we were to consider the confession of the accused Deva, it also does not show that the accused persons had committed the murder of the deceased Vala.On the other hand it goes to show that Vala and Smt. Logri were the aggressors and the accused persons were only defending themselves and even in this defence, they did not cause any fatal injury to Vala. According to this confession, Vala had fallen down on the stones and had died. The accused Deva stated in this alleged confession that there was some dispute going on between him and his brother Vala. Vala had beaten him twice or thrice. He knew some witchcraft and used to harass him (Deva). He (Deva) used to remain ill and had to spend a lot on his treatment. He had left the house in which Vala used to live but he used to tether his cow there. On the night of the occurrence, he had gone to tether his cow and its young one. The young one went away into the court-yard where upon Vala came from behind and fell upon him and gave beating. In the meantime, Kushala reached there to his rescue. Where upon Vala who was armed with a gupti gave a gupti blow to Kushala. He further states that Valas wife had a lathi and she gave blow on the hand and feet of Deva. Then he states that in this scuffle, Vala came to be hit by them and he fell upon the stones and died. He further stated that they snatched the gupti from his wife and added that if they had not beaten Vala, he would have killed them. Thus this confession of the co-accused Deva cannot in any way show that Kushala had killed Vala or that Kushala and Deva had any common intention of killing Vala. On the other hand, this clearly goes to show that Vala and Smt. Logri were the aggressors and the accused persons were only acting in their private defence. Thus this confession of the co-accused Deva cannot in any way show that Kushala had killed Vala or that Kushala and Deva had any common intention of killing Vala. On the other hand, this clearly goes to show that Vala and Smt. Logri were the aggressors and the accused persons were only acting in their private defence. Then this so called confession is not at all corroborated by any evidence, so as to lead support to it and, therefore, we are unable to believe it and base the conviction of Kushala on it. Therefore, even if this confession is taken into consideration, it is wholly insufficient to hold the accused Kushala guilty for the murder of Vala. 18. The fact that injuries were found on the person of Kushala when he was arrested is of no consequence in as much as there is no explanation of these injuries by the prosecution except by the so called confession of Deva which as stated above is not at all reliable. 19. So also the fact of the recovery of the gupti cannot help the prosecution. The prosecution has failed to establish how the gupti admittedly belonging to Smt. Logri came to the bands of Kushala. The only explanation is contained in the aforesaid retracted judicial confession of Deva which is already stated above is of no use. 20. In this circumstances the conviction of Kushala could not be maintained, Hence his acquittal. *******