D. P. HIREMATH, J. ( 1 ) THE deceased Neelavva and the accused-appellant were married just five months prior to her death which according to the prosecution occurred on account of fatal blows inflicted by the appellant-accused on 29-8-1988 at about 6. 45 p. m. at Karwar beach near a certain restaurant celled 'sea Beach Restaurant'. Out of persons who happened to be that evening to spend time, PW-1 - Santhosh a student had gone to the beach to play foot-ball. He and some others were playing foot-ball while some of his friends were sitting in front of Sea Beach Hotel on a stone culvert. One Narendra among them informed CW-22 Santhosh that a girl was lying drunk on the sand of the beach and out of curiosity these three persons including PW 1went to the spot where that lady was lying. They saw her dead with bleeding injuries lying face up and about 200 feet away, they saw the present appellant lying with injuries over his stomach. He was lying with face down. He could not immediately go to the Police Station to report the matter as it started drizzling. But at about 7. 15 p. m. he went to the Police Station and informed what he had seen. After this information was reduced to writing as per Ex. P-1, he came back to the spot with Police. The body of the deceased was where it was but the person with bleeding injuries was not there. When search was made to trace him by going through some casuarina trees they found the same person lying by the highway. There was tube lightest above that person. He was non else than the present appellant. The Police took him to the Police Station and perhaps thereafter shifted to the District Hospital for treatment of his injuries. In Ex. P-1 given by PW-1 he alleged that some person for some reasons had murdered the deceased and had even attempted to commit the murder of the male person. This information was received by PW 32 the P. S. I. who registered a case under Ss. 302 and 307. I. P. C. However according to him the injured person was also taken to the hospital along with the deadbody of the deceased. This information was received by PW 32 the P. S. I. who registered a case under Ss. 302 and 307. I. P. C. However according to him the injured person was also taken to the hospital along with the deadbody of the deceased. He gave a requisition to the Doctor to see if he was in a position to make any statement but that was not to be so. Therefore he deputed a police official to keep a watch over the accused in the hospital. The C. P. I. PW 33 who later took over investigation also gave a requisition to the Doctor to record the statement as and when appellant would be in a position to make a statement. ( 2 ) WHEN PW-2 approached the C. P. I. in the hospital at about 10 p. m. to inform that the deceased was his relative, the investigation was directed towards recording the statements of the persons who could speak about the relation between the accused and the deceased, their activities, how they had conducted themselves etc. The investigation reveled that the accused had suspected the fidelity of the deceased and in fact one Ramesh had illicit connection with her. Though the accused is the native of the village in Haveri taluk of Dharwad District, he was living at Kadra with the deceased to earn his livelihood. For about 4 years prior to this incident, the accused was working as a meson and PW-6 Kollappa was also working with him. Though in FIR the P. S. I. suspected that some person might have committed the murder of the deceased and attempted to commit the murder of the accused, after PW-20 the medical officer recorded the statement of the accused as per Ex. P-18 the investigating office with the material on record regarding the relation between the accused and the deceased for some time after the marriage coupled with Ex. P-18 found this case of the accused committing the murder of the deceased and then attempting to commit suicide. Accordingly, the charge sheet was laid for offences. ( 3 ) THE Sessions Court having believed the prosecution evidence and also the contents of Ex. P-18 found this case of the accused committing the murder of the deceased and then attempting to commit suicide. Accordingly, the charge sheet was laid for offences. ( 3 ) THE Sessions Court having believed the prosecution evidence and also the contents of Ex. P-18 found the accused guilty of committing the murder of the deceased under S. 302, I. P. C. and also of attempt to commit suicide under S. 309, I. P. C. and sentenced him to suffer imprisonment for life for the offence of murder and simple imprisonment for three months under S. 309 I. P. C. In challenging his conviction and sentence, it is urged for the appellant that the Sessions Court went wrong in accepting Ex. P-18 as an extra-judicial confession by the accused ignoring the provisions of S. 26 of the Evidence Act and that the defence taken by the accused is quite credible and acceptable in the circumstances. It may be stated here that the accused in his statement u/s. 313 Cr. P. C. stated that Ex. P-18 was recorded under police threat in the hospital and as far as incident is concerned when he and his wife were on the beach, some persons assaulted her to death and threw a towel on his face and also assaulted him. Therefore, the main point for our consideration in this appeal is, whether Ex. P-18 can be relied upon as an extra-judicial confession volunteered by the accused and whether by the accused and whether by that circumstances alone the accused could be found guilty for these offences or whether the statement made by him in his defence is reasonably probable under the circumstances. ( 4 ) THAT the deceased died a homicidal death is proved by the medical evidence as well as circumstantial evidence P. W. 14 the Asst. Surgeon in the District Hospital at Karwar has deposed about the deceased having as many as 11 injuries out of which there were eight incised wounds and a punctured wound. P. W. 20, Dr. Krishnappa, Health Officer Class-1 working in the District hospital at Karwar examined the accused at about 8. 30 p. m. on 29-8-1988, found his general condition poor with bleeding injury above the umbilicus. He performed operation over that injury. There were cut injuries on the intestines, mesentry and posterior abdominal wall. He had lost lot of blood. Krishnappa, Health Officer Class-1 working in the District hospital at Karwar examined the accused at about 8. 30 p. m. on 29-8-1988, found his general condition poor with bleeding injury above the umbilicus. He performed operation over that injury. There were cut injuries on the intestines, mesentry and posterior abdominal wall. He had lost lot of blood. Having completed operation, the accused was shifted to the ward. On 29th night he was not in a position to speak. Thus the evidence of PW 1 PW 21 that the accused was lying on the beach with injuries is proved by this medical evidence. ( 5 ) IN addition to Ex. P-18 the prosecution also relied on motive evidence. It may be said at this stage that it is not very clinching in as much as some of the witness who are near relatives of the deceased have deposed that the accused and the deceased were living cordially. PW 2 Bharamappa is the brother of the deceased. After marriage the deceased was living with the accused in a house that the accused had taken at Kadra near Karwar. It was on 28-8-88 that the deceased, accused as well as Kollappa, Durgamma and also Ramesh another brother of the deceased went to his house and Kollappa informed that there were frequent quarrels between the accused and the deceased as the accused had suspected the fidelity of his sister. This Kollappa is PW6. At one time the accused had even attempted to commit suicide by consuming poison. The mother of the deceased had advised both of them not to indulge in quarrels and to live peacefully and they stayed in the house of PW 2 that night. On the 29th nothing unusual happened. The deceased and the accused had gone to the house of another sister of the deceased at 6 p. m. The accused and the deceased were found in front of Maruti Temple and they told that they were going for a movie. As admitted by him it was for the first time that on 28-8-1988 he came to know that the accused and the deceased were quarrelling. When they had visited his house on earlier occasions he found them living cordially. Even PW 6 had not told him about suspicion of the accused about the illicit relation of his wife. As admitted by him it was for the first time that on 28-8-1988 he came to know that the accused and the deceased were quarrelling. When they had visited his house on earlier occasions he found them living cordially. Even PW 6 had not told him about suspicion of the accused about the illicit relation of his wife. Even when the mother of the deceased advised the accused, the accused replied that he was not quarrelling with his wife and had all the love for her. According to PW 3 Hanumawwa the mother of the deceased, her daughter had told her that accused was suspecting her fidelity and was quarrelling with her. Following morning both of them went for tea to the house of her another daughter and returned in the afternoon. In the afternoon they went to the house of her another daughter. After returning from the house of this second daughter Renuka, the deceased dressed herself with bridal saree and both the accused and the deceased left their house saying that they wanted to go for a movie. However, even when she waited till 9 p. m. they never returned. She admitted that even when they visited on three or four occasions earlier there was no complaint from her daughter of any quarrel with her husband or misunderstanding between them. It was only PW 6 who informed about this quarrel. PW 4 Renuka the sister of the deceased also swears about PW 6 telling her about the suspicion of the accused against the deceased. They had visited her house and in the evening, the deceased told her that she and her husband would go for a movie and dressed herself with the bridal saree. Kollappa PW 6 who is referred to by some of the witnesses as working with the accused deposed that on 27-8-88 the accused had brought five Rakhis and handed over to his wife and out of them two were tied to his sons Suresh and Ramesh and to his other children. In the evening, the accused and the deceased quarrelled. When he had gone to the house of Lokappa his son Ramesh went and told that the accused had assaulted the deceased. The only reason for this assault was that the deceased had tied Rakhi to C. W. 21 Ramesh. Therefore the accused had suspected Ramesh. In the evening, the accused and the deceased quarrelled. When he had gone to the house of Lokappa his son Ramesh went and told that the accused had assaulted the deceased. The only reason for this assault was that the deceased had tied Rakhi to C. W. 21 Ramesh. Therefore the accused had suspected Ramesh. Following day the deceased went to his house and told that the accused had brought a bottle of Tik20 and was trying to remove its lid with an intention to consume it to commit suicide. Immediately he rushed to his house and snatched the bottle from his hands. He admitted he did not file any complaint against the accused regarding the attempt of the accused to commit suicide by consuming Tik20. He also admitted that the accused had paid Rs. 1,000/- to bring about his marriage but not Rs. 700/- as suggested. He is a close relative of PW 6. ( 6 ) PW 7 was a boy of 16 years when he gave evidence in 1989. Thus he could have attained 15 years of age when this incident occurred. It is this Ramesh who is the son of Kollappa PW 6 who was tied Rakhi by the deceased on the previous day. He comes out with the version that at 9. 30 p. m. on 27-8-88 his father told that the accused was quarrelling with his wife suspecting that this boy had illicit connection with her. As one understands in common parlance, Rakhis are tied to the persons whom the lady considers as her brother or brothers. The age of this boy which was not more than 15 at the time of the incident makes this imputation rather very difficult to accept as we find from the autopsy report thee the deceased was 20 years of age. His age given as 16 at the time of the evidence could be taken so and therefore unless there is strong evidence in this behalf this evidence referred to above alone casts serious doubt about the truth of the imputation. The accused has denied it. Excepting that incident even according to this witness there was no complaint of the accused treating the deceased cruelly suspecting in any manner. The accused has denied it. Excepting that incident even according to this witness there was no complaint of the accused treating the deceased cruelly suspecting in any manner. Even according to PW 6 because of the only fact that the deceased tied Rakhi to the wrist of this boy PW 7 the accused suspected the fidelity of his wife and quarrelled with her on that night alone. Therefore it is rather difficult to believe that without nothing more it could have been a ground for the accused to suspect the fidelity of his wife-deceased. At any rate, the motive evidence placed by PW 3 is not strong in the absence of any other material in this behalf. ( 7 ) WE now go to material point whether Ex. P-18 could be accepted to base conviction on the accused. The Sessions Court finds that extrajudicial confession is reliable not suspicious and voluntary. The condition of' the accused and the circumstances under which it is said to have been made are relevant for this purpose. It should be noted at the out set that the accused did not go to Hospital voluntarily nor any of his relatives or friends removed him to the hospital. While according to PW 1 the accused was taken to the Police Station according to PW 32 the P. S. I. , he was taken to the Hospital along with the dead body. His condition was perhaps so critical that he needed immediate operation in view of the internal injuries to the intestines, measentry and posterior abdominal wall. Due to loss of lot of blood he must have been very weak. Even according to PW 20 he was in a confused state of mind when he was taken to the hospital and he was not fully conscious. Thus under this serious condition, operation was performed to him at about mid-night of 29-8-1988. Ex. P-1 itself did not suspect anyone as the assailant. Perhaps even the C. P. I. had his own doubt about his survival. Therefore he gave a requisition to PW 20 as per Ex. P17 that his dying declaration may be recorded. This was given on the night of 29-8-1988 at 22-30 hours i. e. 10-30 p. m. PW 20 who recorded the statement of the accused as required by the C. P. I. did so at 9. 30 a. m of 30-8-1988. Therefore he gave a requisition to PW 20 as per Ex. P17 that his dying declaration may be recorded. This was given on the night of 29-8-1988 at 22-30 hours i. e. 10-30 p. m. PW 20 who recorded the statement of the accused as required by the C. P. I. did so at 9. 30 a. m of 30-8-1988. On the night of 29-8-1988 he could not do it as the accused was not in a position to give statement. The witness also speaks about the accused putting his thumb impression below it. In the cross-examination he no doubt stated he tested and questioned him about his general condition before he recording the statement. But denies that that he was still in a confused state of mind and had neverousness. His further answer to a question in the cross-examination reveals that there were police constables 'on duty' but he adds that they stated outside the ward perhaps when it was recorded. A clear suggestion was made that the constables were present when this statement was recorded but he denies it. However, he admits that when he entered the ward, constables were in the gate of the ward. As already pointed out PW 32 states that he had deputed a police official to keep watch over the accused in the Hospital. The accused in his statement under Section 313, C. P. C. stated that in the Hospital when he regained consciousness Police were present and he stated that he had assaulted his wife and got injury self-inflicted because the Police assured that he would be sent to his mother. ( 8 ) AS far as the incident in question he stated that he had never suspected his wife nor did he quarrel with her. That evening they could not get tickets at Gitanjali talkies to witness a movie and therefore took his wife to the beach and having made his wife sit under a tree he went to answer call of nature. When he came back he saw his wife was not there. Some one threw a towel over his face dragged him and assaulted him. He did not know what happened later. Whether this defence taken by the accused should be believed or whether could be considered at least as probable depends on the value to be attached to Ex. P18 and its admissibility or otherwise. Some one threw a towel over his face dragged him and assaulted him. He did not know what happened later. Whether this defence taken by the accused should be believed or whether could be considered at least as probable depends on the value to be attached to Ex. P18 and its admissibility or otherwise. ( 9 ) WE have referred earlier to the circumstances under which the accused was taken to the Hospital and the condition in which he was undergoing treatment. His condition at the time of admission to the Hospital was in a confused state of mind and not much time was lost between the time of operation and recording of statement Ex. P-18. There is ample evidence to show that he was being watched by the police. Section 26 of the Evidence Act states "no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person". ( 10 ) SECTION 26 envisages two contingencies viz. the statement sought to be used in evidence should be a confession and secondly, it should not be while in the custody of a police officer. That the statement is a confession admits of no controversy. It clearly states how the accused assaulted the deceased to death and how he himself attempted to commit suicide. "custody" contemplated under S. 26 of the Act in our view does not refer necessarily to a formal arrest of an accused. Admittedly the accused was not arrested at that time. PW 33 deposed that on 12-9-1988 he arrested the accused in the District Hospital at Karwar. Section 46 of the Code of Criminal Procedure does not require any specific act on the part of a police officer who arrests an accused person. However, in making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action. In the instant case when PW 33 states that he arrested the accused on 12-9-1988 i. e. , nearly 12 days after his statement was recorded we have to take from the evidence of PW 32 that the accused was not actually arrested when he was admitted in the hospital. In the instant case when PW 33 states that he arrested the accused on 12-9-1988 i. e. , nearly 12 days after his statement was recorded we have to take from the evidence of PW 32 that the accused was not actually arrested when he was admitted in the hospital. But what S. 26 contemplates is not the arrest of an accused but he being "in custody" of a police officer when the confession is made. To go to the "custody" of a police officer it is not necessary that he should be formally arrested. There may be many good reasons for the police officer to take the accused into custody. For instance detaining to question him and to elicit some information and the like. Even then if a confessional statement is made that is hit by S. 26 of the Evidence Act. ( 11 ) A decision of Orissa High Court in the case of Paramhansa Jadab v. The State, AIR 1964 Orissa 144 : (1964 (1) Cri LJ 680), deals with a situation of like nature. At para 13 of the report the learned Judges of the Division Bench observed that it is now settled that 'police Custody' for the purpose of Section 26 of the Evidence Act does not commence only when the accused is formally arrested but would commence from the moment when his movements are restricted and he is kept in some sort of direct or indirect police surveillance. In Lay Maung v. Emperor, AIR 1924 Rang 173 : (1925 Cri LJ 381),to which a reference was made by the Division Bench it was pointed out that 'police custody' in S. 26 of the Evidence Act should not be confined to a more narrow technical sense as commencing from the time when the accused is formally arrested. The learned Judge in that case observed that if such a view be taken it will be very easy for the police to evade that Section. The observations of the learned Judge in that case were quoted with approval which we find it unnecessary to repeat here. The learned Judge in that case observed that if such a view be taken it will be very easy for the police to evade that Section. The observations of the learned Judge in that case were quoted with approval which we find it unnecessary to repeat here. A similar view was taken by Andhra Pradesh High Court In Re Mannem Edukondalu, AIR 1957 Andh Pra 729 : (1957 Cri LJ 1086), in which the learned single Judge pointed out that it is possible without even a formal arrest being made, for a person to be in the custody if a restraint has been placed upon his movement by the police. In the case before the Allahabad High Court quoted by the learned single Judge in the case of Babbu v. State, AIR 1954 All 633 : (1954 Cri LJ 1341), the learned Magistrate who had recorded dying declaration of the accused on his subsequent survival had not complied with the provisions of S. 164, Cr. P. C. and therefore non-observance of the same affected its admissibility. As early as in the year 1917 in the case of Emperor v. Mallangowda Parawatgowda, (1917) 19 BLR 683 : (1918 Cri LJ 981), a Division Bench of Bombay High Court held that even when the accused was in custody and was taken to the hospital and was examined inside the dispensary by the doctor and the accused made confession of his guilt to another patient who happened to be there within the hearing of the doctor, it cannot be said that the accused was not in custody though the police men were standing outside on the verandah. ( 12 ) OBJECT of Section 26 is clear and unambiguous. A dying declaration made by a witness cannot be used as substantive evidence if he survives. It could be used only for the purpose of contradicting him and not for any other purpose as contemplated under Section 162, Cr. ( 12 ) OBJECT of Section 26 is clear and unambiguous. A dying declaration made by a witness cannot be used as substantive evidence if he survives. It could be used only for the purpose of contradicting him and not for any other purpose as contemplated under Section 162, Cr. P. C. However there is no question of an accused person submitting himself for cross-examination or giving evidence and therefore a confession could be used as substantive evidence against him for which the Court must be satisfied that there was absolutely no pressure on his mind, that it was involuntary and that there is no single circumstance which would at least remotely make it possible that the accused was not making a statement voluntarily and without there being any inducement or pressure on his mind. In the instant case P. W. 20 was rather in a hurry to comply with the requisition given by the C. P. I. inasmuch as having performed operation on the accused during midnight he -recorded the statement at 9. 30 a. m. the following morning. Even according to him when he was taken to the hospital he was in a confused state of mind and there was loss of lot of blood and therefore when Ex. P-18 was recorded we are rather doubtful if he had regained his composure and was free front confusion and could make such a statement voluntarily. Under the circumstances what the accused had stated in his statement under Section 313, Cr. P. C. becomes probable. He has also taken defence as already pointed out that some person threw a towel on his face and assaulted him and that his wife was not there. If such inference is also possible then this benefit should go to the accused. It was pointed out to us by the Additional State Public Prosecutor that this murder was not for gain in view of the fact that none of the valuable articles on her person however sparcely she had decorated herself had disappeared. That is besides the point if the version of the defence now taken by the accused under the circumstances could also be probable. In our view therefore, the Sessions Court was wrong in placing reliance on Ex. P-18 which is the only material on which the accused could be found guilty and convicted. That is besides the point if the version of the defence now taken by the accused under the circumstances could also be probable. In our view therefore, the Sessions Court was wrong in placing reliance on Ex. P-18 which is the only material on which the accused could be found guilty and convicted. The accused is entitled to the benefit of reasonable doubt and consequent acquittal. For the aforesaid reasons, we allow this appeal and set aside his conviction and sentence passed by the Sessions Court and acquit him of the charge. He shall be set at liberty forthwith. Appeal allowed. --- *** --- .