JUDGMENT 1. - Appellant Mohan was tried for charges under sections 302 and 309 IPC by the Sessions Judge, Balotra. By the judgment dated March 31, 1980, the learned Sessions Judge acquitted the appellant for the charge under section 309 IPC but held him guilty for the charge of murder of Smt. Panki and sentenced him to imprisonment fur life. 2. Briefly stated the fact of the case giving rise to the trial of the appellant and the present appeal are as under. In the intervening night of May 18, 1979 and May 19, 1979 Tulcharam (PW 6) heard some voice from inside his well. He asked his brother Manaram (PW 3) to call Jeewa and Senwaliya (PW 7). Thereafter Sarpanch of the village was informed and he asked them to report the matter to the Police. Mansingh, Mana and Jeevla went to Police Station Siwana and informed about somebody being there inside the well of Tulcharam. Prabhusingh (PW I) Head Constable of that Police Station made an entry in the Roznamacha and proceeded to the site. Meanwhile villagers had taken out Mohan appellant from the well. It is alleged that Mohan confessed before the villagers that he had committed the murder of his wife and then jumped in the well. Mohan was found unconscious when the Head Constable reached the site. Mohan's condition being serious, he was taken to Sit; ana hospital. Doctor asked Head Constable for recording his dying declaration. The Head-Constable gave a 'tehrir' to the Doctor and requested him to recorded his statement himself. The Doctor recorded the statement of the appellant which is Ex. P 3. The Doctor thereafter examined the injuries of Mohan and prepared the report Ex. P 4. The Doctor noted fracture of left arm near about middle part shaft of humerus and other injuries on the back. Prabhusingh (PW 1) Head Constable, on reaching the Police Station filed a detailed report of the incident which is Ex. P 2. Blood stained 'dhoti' and 'baniyan' were recovered from the person of the appellant. When Mohan got cured of his injuries, he was arrested by the Police. He furnished information for getting recovered an 'axe'. The Police got recovered the 'axe' Ex 6 in pursuance of the information furnished by Mohan from behind his `Jhupa'. P 2. Blood stained 'dhoti' and 'baniyan' were recovered from the person of the appellant. When Mohan got cured of his injuries, he was arrested by the Police. He furnished information for getting recovered an 'axe'. The Police got recovered the 'axe' Ex 6 in pursuance of the information furnished by Mohan from behind his `Jhupa'. When the Police had started investigation, the dead body of Smt. Manki, wife of the appellant was found lying in her house where she is said to be living with her husband, the appellant. Investigation in that concern was also conducted by the Police. The blood stained clothes of deceased Panki were taken in possession and her postmortem examination was conducted by Dr. Ganpatsingh (PW 2) on May 19, 1979. The postmortem examination report is Ex. P 5. The articles recovered during the course of investigation and found to be blood stained were sent for chemical examination. The report of the Chemical Examiner is Ex.P 29 and that of the Serologist is Ex. P 28. 3. Upon completion of necessary investigation, charge sheet against the appellant was tiled in the Court of Munsif and Judicial Magistrate, Balotra. The learned Magistrate committed the appellant Mohan to stand his trial in the Court of Sessions Judge, Balotra. The learned Sessions Judge charge sheeted the appellant for the aforesaid charges and on denying the appellant the charges, proceeded with the trial, The prosecution examined 16 witnesses in all to substantiate its case. Appellant in the statement under section 313 of the Code of Criminal Procedure denied the allegations levelied against him and stated that it was a dark stormy night and passing through the well of Tulcharam he accidentally fell in it. The learned Sessions Judge placed reliance on the statement of Sanwaliya (PW 7) regarding the statement of the appellant given before him at the lime he was taken out and the statement before the Doctor Ex. P 3 and passed the judgment under appeal. No defence witness was examined. 4. The appellant feeling aggrieved by his conviction and sentence preferred this appeal through the Superintendent, Central Jail, Jodhpur. As the appellant was unrepresented Mr. Doongar Singh was appointed Amicus Curiae to plead on his behalf. 5. We heard Mr. Doongar Singh, learned Amicus Curise and Mr. Udawat, learned Public Prosecutor for the State and carefully examined the record of the case. 6. As the appellant was unrepresented Mr. Doongar Singh was appointed Amicus Curiae to plead on his behalf. 5. We heard Mr. Doongar Singh, learned Amicus Curise and Mr. Udawat, learned Public Prosecutor for the State and carefully examined the record of the case. 6. At the very outset it may be observed that there is no direct evidence against the appellant. The circumstantial evidence is his version before the villagers when he was taken out of the well and the statement Ex. P 3 recorded by Dr. Ganpatsingh (PW 2). Mr. Doongarsingh, learned Amicus-Curiae strenuously contended that the learned Sessions Judge has erroneously considered the statement before the Doctor as the dying declaration of appellant. According to the learned Amicus-Curiae dying declaration is used as a substantial piece of evidence only in cases where the deponent expires. In the present case, the learned counsel stressed, that, Mohan is an accused and when the statement was recorded be was in custody of the Head Constable and it was in the presence of the Head-Constable that the statement was recorded. As such the learned counsel emphasised, the learned trial Judge should not have taken help of this dying declaration to convict the appellant. 7. Regarding the alleged oral statement of the appellant when he was taken out of the well, the argument of the learned Amicus-Curiae is that all the witnesses on that point except Sanwaliya (PW 7) have been disowned by the prosecution as they have categorically stated that when Mohan was taken-out of the well, he was not fit to talk. That by the time Mansingh, Mana and Jeewa left for the Police Station the man was crying which was heard by Tulcharam. It was in their absence that the appellant was taken out of the well. Statements of Chuniya (PW 4), Poonam (PW 5) and (PW 6) are uniform on the point that when Mohan was taken. out of the well he was not in a position to speak. True it is that all these witnesses being near relatives of the appellant might have tried to help him but as we would presently discuss, even from the statement of Sanwaliya (PW 7), it cannot be said that the appellant when taken out of the well had made an extra-judicial confession regarding his committing any crime. True it is that all these witnesses being near relatives of the appellant might have tried to help him but as we would presently discuss, even from the statement of Sanwaliya (PW 7), it cannot be said that the appellant when taken out of the well had made an extra-judicial confession regarding his committing any crime. In his examination-in-chief, Sanwaliya (PW 7) has stated that when Sawaji, father of Mohan enquired of him as to why he jumped into the well, he stated that he had murdered his wife and had jumped in the well to meet death. It is pertinent to note that Sawaji has not been examined. We agree with the learned Public Prosecutor that even if the Sawaji would have been examined, chances of his supporting the prosecution case would not have been there and for that reason alone we are not prepared to discard the testimony of Sanwaliya (PW 7). However, when we turn to the part of the cross-examination of the witness regarding the extra-judicial confession, we find that he is not a witness of credence and his presence at the site before the arrival of the police becomes doubtful. In his cross-examination, the witness admitted that he had not gone near the appellant and was rather seeing from a distance. He admitted that he had not talked with Mohan. Not only that, the witness has further stated that Police had reached the well before Mohan was taken out. This single sentence of this witness Sanwaliya (PW 7) falsifies his total evidence. Prabhusingh (PW 1) the Head I Constable has stated that when he alongwith Mana (PW 3), Jiwa (PW 8) I and Mansingh (PW 11) reached the well, Mohan had already been taken out I and at that time he was not in a position to talk. This grave discrepency I between the statement of Sanwalia (PW 7) and Prabhusingh (PW 2) is sufficient to brush aside the evidence of Sanwalia (PW 7). 8. We are now left with the statement Ex. P 3 recorded by Doctor Ganpatsingh (PW 2). The learned Sessions Judge pressed that statement into service as dying declaration. We are constrained to observe, that, Ex. P 3 does not fall within the definition of dying declaration. 8. We are now left with the statement Ex. P 3 recorded by Doctor Ganpatsingh (PW 2). The learned Sessions Judge pressed that statement into service as dying declaration. We are constrained to observe, that, Ex. P 3 does not fall within the definition of dying declaration. A statement given by a person on the verge of his death or his condition being serious may be used as substantive piece of evidence in case the deponent expires. In case the deponent survives, the statements gets out from the definition of dying declaration. In that case, that statement would become the previous statement of the deponent and can be used to contradict the deponent as any other previous statement of a witness. in the present case, the statement Ex. P 3 being that of the accused himself and the accused having survived it ceases to be a substantive piece of evidence. 9. The most important question emerging for determination would be whether the statement Ex. P 3 can be taken help of as an extra-judicial confession of the appellant. The learned Amicus-Curie has raised a number of points to convince that the statement Ex. P 3 was not properly recorded and should not be given any importance. All these points we need not discuss because this statement in our opinion does not deserve any credence because as stated by Dr. Ganpatsingh (PW 2) it was recorded in the presence of the Head Constable. There may be cases in which more presence of a police officer may not be sufficient to discard any oral or documentary statement recorded as extra-judicial confession but the situation in the present case is different. Though accused was formally arrested on June 23, 1979 he was in police custody since the intervening night of 18th and 19th May, 1979. Section 26 of the Evidence Act makes a provision for a confession by accused while in custody of police to he inadmissible unless it is made in the immediate presence of a Magistrate. The term custody has a wide connotation. The custody does not mean a person being in actual custody. The custody actually means the control of a person's movement. If there is any restrain on the free movement of a person, by another, he is considered to be in custody of that person. The term custody has a wide connotation. The custody does not mean a person being in actual custody. The custody actually means the control of a person's movement. If there is any restrain on the free movement of a person, by another, he is considered to be in custody of that person. In the present case but for the serious condition of the appellant, the Police would have arrested him on 19-5-1979 in itself. Till 23-6-1979 the appellant was in the hospital as an indoor patient. It was the Head Constable Prabhusingh who took appellant Mohan to the hospital and got his injuries examined and got him admitted there. It was in his presence and at his request that the Doctor recorded the statement Ex. P/3. All these facts clearly indicate that Mohan was in custody of the Head-Constable when he in his presence is said to have stated something to the Doctor. In this view of t he matter, the learned Sessions Judge was not correct in taking into consideration the statement Ex. P 3 against the appellant. 10. Another circumstance which the learned Sessions Judge has taken into consideration while convicting the appellant is that Mohan appellant and deceased Smt. Panki being husband and wife, were living together and it was the appellant and nobody else who could have committed the murder of Smt. Panki. There is no evidence on this point. There is of course evidence of the father and brother of the deceased that the relations between the husband and wife were quite cordial. In the absence of any evidence connecting the appellant with the commission of the crime of murder of his wife and also there being no evidence that they were last seen together, we find ourselves unable to agree with that finding of the learned Sessions Judge based on surmises and conjunctures. 11. So far as the recovery of the axe is concerned, there is no material to connect that weapon with the commission of the crime. It has been recovered from the open place behind the `jumpa' after more than a month of the occurrence. Shambhoo (PW 14) motbir of the recovery of the axe has admitted that in case this axe is mixed with another axe of similar size, he would not be able to identify it. It has been recovered from the open place behind the `jumpa' after more than a month of the occurrence. Shambhoo (PW 14) motbir of the recovery of the axe has admitted that in case this axe is mixed with another axe of similar size, he would not be able to identify it. The origin of the blood on the axe could not be detected by the Serologist. The learned Sessions Judge has also not placed any reliance on this circumstance against the appellant and in our opinion rightly so. 12. So far as the blood on 'dhoti' and `baniyan' of the appellant is concerned, there is not much to say. He had injuries on his person when he was taken out of the well and )t was natural for his clothes to be stained with human blood. We may also mention that the learned Sessions Judge has not relied on the extra-judicial confession of the appellant for the charge under section 309 IPC. There is force in the argument of the learned Amicus-Curiae that the learned Judges should not have placed reliance on that very evidence regarding the charge under section 302 IPC. 13. From the above discussion, we are of the opinion that there is no credible evidence to bring home the guilt against the appellant for the charge of murder of Smt. Panki. 14. Consequently, the appeal filed by Mohan is allowed and he is acquitted for the offence under section 302 IPC. He is in Jail. He shall be set forth to liberty if not required in any other case.Appeal allowed. *******