JUDGMENT 1. - This is an appeal against the judgment dated 11.1.1991 passed by the learned Additional Sessions Judge, Nohar, by which, the accused-appellant Nathu Ram was convicted for the offence under Section 302 Indian Penal Code and was sentenced to imprisonment of life together with a fine of Rs. 500/-, in default of payment of fine to undergo one month's rigorous imprisonment. 2. The prosecution story as revealed from the first, information report and at the trial is that the accused- appellant Nathu was married to deceased Mst. Guddi about 7 years before the date of occurrence. It is alleged that deceased Mst. Guddi could not give birth to any child and on account of this, the relations between accused Nathu and Mst. Guddi were strained. Occasionally, accused Nathu used to beat Mst. Guddi. Mst. Guddi made a complaint of this cruel treatment to her brother and parents. On this, PW 4 Chhotu Ram and one or two respectable persons of village Nathod went to the accused and tried to amicably settle the matter. The accused assured him that he will not treat Mst. Guddi with cruelty. It is alleged that on the night intervening 24.12.1989 and 25.12.1989, the accused-Nathu Ram committed the murder of Mst. Guddi by strangulating her neck. 3. PW 1 Mst. Shanti, the mother-in-law of the deceased was sleeping in a separate room with Mst. Vimla. Deceased Mst. Guddi was sleeping in another room nearby. When Mst. Guddi did not get up next morning, PW 1 Mst. Shanti went to her room and found that she was sleeping. She suspected that Mst. Guddi was indisposed. She, therefore, called Vaidya Krishnalal and the latter came and examined Mst. Guddi and found her dead. PW 2 Ram Kumar and one Bhagirath also assembled there. PW 2 Ramkumar was deputed to inform about this incident to PW 4 Chhotu Ram. Ram Kumar went to Chhotu Ram and informed him about this incident and asked the latter to accompany him for the purpose of cremation. Thereupon, PW 4 Chhotu Ram, PW 5 Birbal, PW 6 Surjaram and PW 7 Mukhram jointly went to the house of the accused. They reached there at about 9.00 p.m. They saw the dead body of Mst. Guddi lying in the chowk. From appearance, they found that she died as a result of strangulation. 4. Thereupon, PW 4 Chhotu Ram, PW 5 Birbal, PW 6 Surjaram and PW 7 Mukhram jointly went to the house of the accused. They reached there at about 9.00 p.m. They saw the dead body of Mst. Guddi lying in the chowk. From appearance, they found that she died as a result of strangulation. 4. It is alleged that these persons took the accused aside and asked him as to what happened. On this, the accused confessed that he had committed the murder of Mst. Guddi. All the four persons who came from village Nathod stayed during night in the house of the accused. PW 9 Hanuman, Sarpanch of village Chaiya was also summoned. Thereafter, PW 9 Hanuman, PW 2 Ram Kumar and PW 3 Rameshwar went to the house of the accused and found that Mst. Guddi was dead and from her appearance, it appeared that she was done to death by strangulation. He, therefore, advised that the matter be reported to the police. 5. PW 4 Chhotu Ram and PW 5 Birbal then went to the police station Ravatsar and lodged the first information report Ex P. 4 on 26.12.1989 at 4.00 p.m. The distance between the place of the occurrence and the police station is 15 kilometres. 6. The police registered a case under Section 302 Indian Penal Code and started investigation. Some photographs of the dead body were taken. The police also prepared the Inquest Memo Ex. P. 14. As per the Investigating Officer, the deceased died as a result of strangulation. The post-mortem of the dead body was conducted by PW 11 Dr. Bheem Singh. He found the following ante-mortem injuries on the person of deceased Mst. Guddi: 1. Bruise 1/2" x 1/2" on the right side of the chin. 2. Bruise 1/2" x 1/2" in front and left side of the chin. 3. Abrasion 1/2" x 1/4" in front of neck at the level of thyroid cartilage. 4. Abrasion 1/2" x 1/4" on left side of neck just above the thyroid cartilage. In the opinion of the Doctor, the cause of death was asphyxia due to throttling. 7. 2. Bruise 1/2" x 1/2" in front and left side of the chin. 3. Abrasion 1/2" x 1/4" in front of neck at the level of thyroid cartilage. 4. Abrasion 1/2" x 1/4" on left side of neck just above the thyroid cartilage. In the opinion of the Doctor, the cause of death was asphyxia due to throttling. 7. As a result of investigation, it was found that the accused compressed the neck of the deceased with the object to commit her murder and hence, a challan against the accused was filed in the Court of the learned Munsif & Judicial Magistrate, Nohar for the offence under Section 302 Indian Penal Code. The learned Magistrate committed the case for trial to the Court of the learned Addl. Sessions Judge, Nohar. 8. The learned Addl. Sessions Judge framed a charge under Section 302 Indian Penal Code against the accused for causing the murder of his wife Mst. Guddi. The plea of the accused was recorded. He pleaded not guilty and claimed to be tried. 9. During trial, the prosecution has examined as many as 13 witnesses in support of its case. The statement of the accused was recorded and in his statement under Section 313 Criminal Procedure Code., the accused denied all the material allegations levelled against him and alleged that he has been falsely implicated in the case and that at the time of the incident, he was not present in his house but had gone to Floor Mill of Dasuwali and stayed for the night there. The accused did not produce any evidence in his defence. 10. It may be stated here that in proving the offence under Section 302 Indian Penal Code, the prosecution has alleged that the accused made an extra-judicial confession of committing murder of his wife to PW 4 Chhotu Ram, PW 5 Birbal, PW 6 Surjaram and PW 7 Mukhram as also PW 9 Hanuman. Regarding motive, the allegation of the prosecution is that the accused was ill- treating Mst. Guddi presumably for the reason that she did not give birth to any child. The accused was, therefore, contemplating another marriage and this was resented by Mst. Guddi. PW 4 Chhotu Ram, the brother of the deceased and one or two responsible persons of the village approached the accused and tried to settle 4he matter amicably. The accused promised to keep Mst. Guddi properly. The accused was, therefore, contemplating another marriage and this was resented by Mst. Guddi. PW 4 Chhotu Ram, the brother of the deceased and one or two responsible persons of the village approached the accused and tried to settle 4he matter amicably. The accused promised to keep Mst. Guddi properly. 11. The learned trial Judge, after discussing the evidence regarding extrajudicial confession came to the conclusion that the witnesses who deposed about this happening are reliable. He also believed the prosecution story that the relations between the accused and the deceased were strained. He, therefore, found the accused guilty of the offence under Section 302 Indian Penal Code and passed the sentence as stated above. 12. We have heard Mr. Bhagwati Pd., the learned counsel appearing for the accused-appellant and Mrs. Chandralekha, the learned Public Prosecutor for the State and have carefully gone through the record of the case. 13. Mr. Bhagwati Pd., the learned counsel for the accused-appellant has vehemently challenged the conviction and sentence of accused Nathuram. He has submitted that on the fateful night, the accused was not available in his house. PW 1 Mst. Shanti was sleeping with Mst. Vimla in another room. Mst. Shanti found the deceased dead when she saw her in the morning. He has contended that even the extrajudicial confession is often a very weak piece of evidence. There may be circumstances in which it may be of more probative value than it usually is. The first disability is that whenever there is an extrajudicial confession, by the time it comes to the Court, one is.not in a position to know in what actual words, the accused has spoken. If the extrajudicial confession is in ambiguous and unmistakeably convey that the accused is the perpetrator of the crime, it can be acted upon but before acting upon it, such evidence must be subjected to a rigorous test on the touch stone of credibility and if it passes the test, the extrajudicial confession can be accepted and can even be the basis of conviction. 14. It was submitted by Mr. Bhagwati Pd. that in the present case, the witnesses are all interested ones. PW 4 Chhotu Ram is the real brother of the deceased and other witnesses were from his village. 14. It was submitted by Mr. Bhagwati Pd. that in the present case, the witnesses are all interested ones. PW 4 Chhotu Ram is the real brother of the deceased and other witnesses were from his village. He has further submitted that a perusal of that testimony would show that these interested witnesses have given a different version as regards the confessional statement made by the accused. He led us through the prosecution evidence and pointed out many contradictions. He also pointed out that certain material facts which the witnesses have given in their deposition before the Court are totally missing in their statements recorded under Section 161 Criminal Procedure Code. The witnesses are, therefore, guilty of making substantial improvements in their depositions before the Court. 15. The most important factor for weighing the evidence of these witnesses is that even after knowing the fact that the accused committed the murder of Mst. Guddi, these witnesses stayed at the house of accused Nathuram for the night and did not lodge any report in the night. It is a matter of common knowledge that if these witnesses and more particularly PW 4 Chhotu Ram were convinced that the accused Nathuram was the murderer, these witnesses would have never preferred to stay in the house of accused Nathuram in the night. Thus, the only inference that can be drawn from this important circumstance is that accused had not made any confession before these witnesses. 16. It was next contended by Mr. Bhagwati Pd. that since Mst. Guddi did not give birth to any child, she might have committed suicide on account of frustration. He has tried to attack prosecution evidence regarding motive. He submitted that the witnesses made material improvements in their statements. In their statements recorded by the Investigating Officer under Section 161 Criminal Procedure Code., they did not state about the quarrel between the accused and the deceased. On the contrary, from their evidence it is clear that immediately preceding the murder of Mst. Guddi, the accused and Mst. Guddi were living peacefully. 17. Lastly, it was argued by Mr. Bhagwati Pd. that the accused was not available at his house at the time of the occurrence but he was sitting at the floor Mill of Dasuwali. 18. Mrs. Chandralekha, the learned Public Prosecutor has supported the judgment of the learned Addl. Sessions Judge. Guddi, the accused and Mst. Guddi were living peacefully. 17. Lastly, it was argued by Mr. Bhagwati Pd. that the accused was not available at his house at the time of the occurrence but he was sitting at the floor Mill of Dasuwali. 18. Mrs. Chandralekha, the learned Public Prosecutor has supported the judgment of the learned Addl. Sessions Judge. She referred to the prosecution evidence and submitted that the above-named four witnesses fully prove that the accused made an extrajudicial confession before PW 4 Chhotu Ram and others and the same has been proved against the accused beyond doubt. The accused was not happy with Mst. Guddi as the latter did not give birth to any child. The accused intended to marry another lady and, therefore, the relations between accused and Mst. Guddi were strained. 19. We have considered the rival submissions made at the bar and have perused the evidence. 20. Firstly, we may state that from the evidence of PW 11 Dr. Bheemsingh, it is proved that Mst. Guddi died of asphyxia due to throttling. The Medical Officer in his statement clearly opined that it was not a case of suicide. Looking to the injuries sustained by the deceased, he suggested the possibility of compressing the neck with homicidal object. From the above, it is, therefore, clear that the death of Mst. Guddi was homicidal. 21. Now, the question for determination is whether the accused committed the above crime ? It was a case where there is no eye-witness. First, we may deal with extrajudicial confession. PW 4 Chhotu Ram is the real brother of Mst. Guddi. He has stated that PW 2 Ramkumar, who happens to be the uncle of accused Nathuram came to him and informed him that Mst. Guddi had died and her cremation was to be performed, whereupon, he and his brother PW 7 Mukhram, PW 5 Birbal and PW 6 Surjaram went to the house of accused Nathuram and reached there at about 9.00 p.m. They saw the dead body of Mst. Guddi lying in the chowk. He has stated that when they asked the accused about the death of Mst. Guddi, the latter stated that he had committed the murder of Mst. Guddi by throttling and that it was his mistake. Guddi lying in the chowk. He has stated that when they asked the accused about the death of Mst. Guddi, the latter stated that he had committed the murder of Mst. Guddi by throttling and that it was his mistake. In his cross-examination, PW 4 Chhotu Ram has stated that when they reached the house of accused Nathuram, many persons were present there. He contacted two persons and they informed him that the accused has committed the murder of Mst. Guddi. He has further stated that he alongwith Mukhram, Surjaram and Birbal interrogated the accused confidentially in a Kotha and at that time, PW 2 Ram Kumar was also present. PW 5 Birbal has given the similar statement. In his cross-examination, he has also stated that he alongwith PW 4 Chhotu Ram and PW 2 Ramkumar interrogated the accused in a Kotha. In his words, Nathuram stated that "MAINE GUDDI KO MAR TO DIYA HAI AAB MUJHE MARO YA CHHODO." He could not explain as to why these material facts were not recorded in his statement Ex. D. 2 recorded by the Investigating Officer. 22. PW 2 Ramkumar further stated that when PW 9 Sarpanch Hanuman came next day, he also interrogated the accused in the presence of several residents of the village and there also, the accused admitted his guilt. PW 6 Surjaram has stated that he took the accused aside and asked about the incident. At that time, many persons of the village were present and in their presence, the accused admitted to have committed the murder. The number of persons present at that time were either twenty or twenty five. His statement was recorded by the Investigating Officer three days after the date of the occurrence. 23. The another witness is PW 7 Mukhram. He has given a different version According to him, PW 4 Chhotu Ram and PW 2 Ramkumar took the accused aside and then interrogated him. PW 4 Chhotu Ram came and told him that accused Nathu had committed the murder of Mst. Guddi. He has also stated that PW 9 Sarpanch Hanuman also interrogated the accused separately. However, PW 9 Sarpanch Hanuman has not supported the prosecution case. He has stated that he was summoned and when he reached the place of the occurrence, the accused was not there and was at the flour Mill of Dasuwali. He summoned the accused from there. He has also stated that PW 9 Sarpanch Hanuman also interrogated the accused separately. However, PW 9 Sarpanch Hanuman has not supported the prosecution case. He has stated that he was summoned and when he reached the place of the occurrence, the accused was not there and was at the flour Mill of Dasuwali. He summoned the accused from there. 24. All the four witnesses i.e. PW 4 Chhotu Ram, PW 5 Birbal, PW 6 Surjaram and PW 7 Mukharam have categorically stated that they stayed for the night in the house of the accused. In our opinion, the testimony of above witnesses containing material discrepancies and infirmities does not quality the strict test for the purpose of basing conviction of the accused for the commission of murder of Mst. Guddi on the basis of the extrajudicial confession made by him before these witnesses. These witnesses could not explain that after knowing the fact that the accused had committed the murder of Mst. Guddi, as to why they have stayed in the house of accused for the night ? PW 4 Chhotu Ram is the real brother of deceased Guddi and it is impossible that after knowing the fact that the accused was the perpetrator of such a heinous crime, they would have stayed at the house of the murderer of his own sister. It appears that no extra-judicial confession was made to these witnesses by the accused otherwise they would not have stayed at the house of accused Nathuram for the night. 25. It may be stated that it is well settled that in cases of extrajudicial confession, as far as the words used by the accused must be proved. A perusal of the testimony of these witnesses shows that they have stated about extra-judicial confession in different terms. PW 4 Chhotu Ram has stated that first he ascertained the cause of death from two residents of the village but this fact was not stated by him in his police statement Ex. D. 1 and the FIR Ex. P. 1. He even did not ask why the accused committed the murder of Mst. Guddi. When PW 4 Chhotu Ram first interrogated the accused, his brother PW7 Mukhram, PW 5 Birbal and PW 6 Surjaram were present. The accused stated "MENE GALA GHOTA, GALTI HO GAYI". D. 1 and the FIR Ex. P. 1. He even did not ask why the accused committed the murder of Mst. Guddi. When PW 4 Chhotu Ram first interrogated the accused, his brother PW7 Mukhram, PW 5 Birbal and PW 6 Surjaram were present. The accused stated "MENE GALA GHOTA, GALTI HO GAYI". According to him, PW 9 Sarpanch Hanuman also interrogated him separately and at that time, PW 2 Ramkumar was also present. 26. PW 5 Birbal has not substantially supported PW 4 Chhotu Ram. According to him, when the accused was asked about the incident, he, Chhotu Ram and Ramkumar were present. He has not stated the presence of PW 6 Surjaram and PW 7 Mukhram. He did not state this fact in his police statement Ex. D. 2. According to him, when Sarpanch Hanuman asked the accused, many persons of the village were present. Thus, he has contradicted PW 4 Chhotu Ram. However, his police statement Ex. D. 2 does not contain the statement that Sarpanch Hanuman interrogated the accused and the latter accepted his guilt. 27. PW 9 Hanuman has stated that he alone interrogated the accused by taking him aside and at that time, many persons of the village were present there. In other words, according to him, the accused confessed his guilty publicly. According to him, accused Nathu only stated : "MENE GALA GHOT DIYA" 28. PW 7 Mukhram has given a different version. According to him, PW 4 Chhotu Ram interrogated accused Nathuram: He further stated that Nathuram was interrogated by Chhotu Ram and Ramkumar separately and then Chhotu Ram came and informed that the accused had admitted to have committed the murder of Mst. Guddi. 29. From the above discussion, it is clear that the evidence of these four witnesses regarding extra-judicial confession is not composite and trustworthy. There are contradictions as regards the facts as to who interrogated the accused and who were present at that time. PW 4 Chhotu Ram not only stayed at the house of the accused even after knowing that the accused had committed the murder of his own sister, but also dined at the house of the accused alongwith his brother PW 7 Mukhram and his uncle PW 6 Surjaram. Thus is very unnatural conduct and renders the evidence regarding extra-judicial confession doubtful. Thus is very unnatural conduct and renders the evidence regarding extra-judicial confession doubtful. The another factor which caused doubt about their version is as top why after knowing the fact that the accused had committed the murder of Mst. Guddi, they did not lodge the report about this incident at the police station in time. There was no plausible reason for waiting till the morning. 30. Regarding motive, it may be stated that the prosecution evidence in this respect is very weak and unreliable. Only once the deceased complained about the accused to her brother PW 4 Chhotu Ram and the latter came to accused and tried to pacify him. However, these witnesses have not made this part of the statement in their police statements. 31. It is also very surprising to note that when it was alleged that the accused was not present in the house at the time of the occurrence and had gone to the floor Mill of Dasuwali, the Investigating Officer did not concentrate himself to verify this fact. PW 12 Manoharlal in his statement admitted that when he went to the site, the accused was not there. He admitted that he made no efforts to find out the accused. He rather arrogantly stated that he had no much time to find out about the accused. The Investigating Officer PW 12 Manoharlal cannot be credited to have investigated the case truly and impartially. 32. For the reasons stated hereinabove, we hold that the prosecution has failed to prove the offence under Section 302 Indian Penal Code against the accused-appellant Nathuram. 33. We, therefore, allow this appeal, set aside the judgment of the learned Addl. Sessions Judge, Nohar dated 11.1.1991 and acquit the accused-appellant Nathu Ram for the offence under Section 302 Indian Penal Code. The accused Nathu Ram is directed to be released forthwith, if his detention is not required m any other case.Appeal allowed. *******