JUDGMENT 1. - Appellant Dalu has challenged his conviction through this jail appeal. Learned Sessions Judge vide his judgment dated 9.11.1979 convicted the appellant Under section 302 Indian Penal Code and sentenced him to undergo imprisonment for life and pay a fine of Rs. 500/-, in default one year R.I. 2. The prosecution case as disclosed in the FIR Ex. P/1 lodged by Bhanwarlal brother of deceased on 1.3.1979 was that his sister Kanku had performed Nata with Dalu some 4-5 years back and that Kanku thereafter started living in Nathdwara and Dalu used to live with her. On that day his son went to the house of Kanku but the house was bolted and when he entered the house after opening it he found Kanku lying in bad shape and so he came back to him. He thereupon went there and found that his sister Kanku was lying dead. In the report it was stated that the occurrence must have taken place some 3-4 days back. On this report a case Under section 302 IPC was registered. The police inspected the site, interrogated the witnesses and arrested the accused on 3.3.1979. Post-mortem of the body of Kanku was done by Medical Officer, Nathdwara on 1.3.1979. After the completion of the investigation a challan was submitted. A charge Under section 302 IPC was framed against the accused who pleaded not guilty. The prosecution explained PW 1 Bhanwarlal, PW 2 Gopilal, PW 3 Madanlal, PW 4 Sawa, PW 5 Natwarlal, PW 6 Naru, PW 7 Mohan, PW 8 Rameshwarlal and PW 9 M.K. Siroya. The accused in his statement under Section 313 Criminal Procedure Code denied having committed any offence. His version was that he was not there in the house on the date of occurrence and he had gone to Gudli village some 10-12 days back. He did not produce any evidence in defence. The learned Sessions Judge after hearing the learned counsel for the parties held that Kanku had met homicidal death. It was, further, found that the accused used to quarrel with Kanku and he made extrajudicial confession before three witnesses and, therefore, the offence against the accused was amply proved. He, therefore, convicted the accused as said above. 3. We have heard learned counsel for the appellant and the learned Public Prosecutor appearing for the State respondent. 4. The contention of Mr. He, therefore, convicted the accused as said above. 3. We have heard learned counsel for the appellant and the learned Public Prosecutor appearing for the State respondent. 4. The contention of Mr. Doongar Singh was that the trial Court has committed error in believing the so-called extrajudicial confession. He has taken us through the evidence of the witnesses in order to show that on the day the confession is said to have been made by the accused he was not there in Nathdwara. His further submission was that the evidence of extrajudicial confession is very weak evidence and on the basis of it conviction should not be maintained. 5. Mr. Bohra, learned Public Prosecutor on the other hand has contended that the persons before whom the accused had made confession were his neighbours and, therefore, the evidence of extrajudicial confession should not be lightly brushed-aside. 6. We have given the matter our thoughtful consideration. The only stock with the prosecution is the so-called extrajudicial confession made by the accused before three witnesses. 7. FIR was lodged on 1.3.1979. Statement of Sawa PW 4 indicates that the police had gone to the spot when they made the report and the police had directed to visit Police Station at 8. a.m. and when they were going to the Police Station they noticed the accused Dalu sleeping at his house and, therefore, they asked him to accompany them to the Police Station and at that time accused was nervous and he told them that he had killed Kanku by putting his leg on the throat of Kanku and they should help him in the matter. Natwarlal, PW 5 has also deposed that when they were going to the Police Station in the morning as they were directed to do so, they had noticed Dalu sleeping outside his house and when they accosted him he was nervous and on their asking he told that he had throttled Kanku and they should help him. Naru, PW 6 has stated that the police had directed them to visit the Police Station in the morning and when they were going to the Police Station they had noticed the accused sleeping outside his house and when they accosted the accused he told that he had killed Kankuri and they should help him, and on this they had taken the accused to the Police Station. If we read the statements of these three witnesses with reference to the FIR Ex. P/1 and the preliminary investigation documents, it becomes clear that according to these witnesses the accused was found sleeping outside the house or inside the house on the next day the police visited the site i.e. on 2.3.1979 and at that very time the accused made the confession before them and they took him to the Police Station. However, arrest memo Ex. P/9 indicates that the accused was arrested on 3.3.1979 at 1 p.m. It is significant to point out that in this arrest memo it has not been stated that the three witnesses had produced the accused before the police. In the list of Motbirs of the arrest memo, name of any of these three witnesses does not appear. It has also come in the statement of PW 8 Rameshwarlal, Investigating Officer that the accused was not available on 1.3.1979 and 2.3.1979. In examination-in-chief Rameshwarlal does not state that the witnesses had produced the accused in the Police Station and when there is no mention of this fact in the arrest memo Ex. P/9 that the witnesses had produced him it has to be presumed that the accused was not produced by the witnesses and whatever they have deposed is incorrect. Had they produced the accused before the police on 2.3.1979, the arrest memo would have been prepared on that very day. Of course Rameshwarlal in his cross-examination has stated that villagers had produced the accused in the Police Station, however, this part of the statement of Rameshwarlal cannot be relied upon in view of the fact that this fact is not stated in the document Ex. P/7. He has obviously given this statement in order to corroborate the version of the three witnesses, who have deposed regarding extrajudicial confession. 8. The fact remains that the prosecution story that the accused was produced by the three witnesses on the next day of the lodging of the FIR is incorrect, and, therefore, this fact also cannot be believed that the accused had made confession before these witnesses on that day. 9. Apart from this, this fact cannot be lost sight of that all the three witnesses have explained the so-called confession in three different manners. 9. Apart from this, this fact cannot be lost sight of that all the three witnesses have explained the so-called confession in three different manners. According to one the accused had only stated that he had killed his wife while according to the other he had also disclosed the manner in which the accused had committed the offence. Here it is relevant to state that the statements of the witnesses were recorded just within six months of the occurrence. 10. Now the next question that arises for consideration is as to whether the accused could make confession before these persons. Normally accused bursts out confession to the persons well known to him and who can help him in the matter. All the three witnesses have admitted, what to talk of friendly relation with the accused, that even they never talked to the accused. PW 4 Sewa has deposed that he was not familiar with the accused and he did not talk to him. Natwarlal, PW 5 has also deposed that he had never talked to the accused. So also Naru, PW 6 has stated that before this incident he had no occasion to take to the accused. The three persons were neither relations of the accused nor his friends. It cannot be believed that the appellant would be willing to repose confidence in them. 11. It is well settled that extrajudicial confession is a weak type of evidence and it cannot be safe to convict the accused on the basis of this evidence alone; vide Makhan Singh v. State of Punjab, AIR 1988 SG 1705 and Kalyan v. State of Rajasthan, 1993 Cr.L.R. (Raj.) 51 . In our opinion, the learned Sessions Judge has erred in relying on the extrajudicial confession. 12. The trial Court has also considered this aspect of the matter that the accused did not have good relations with the deceased. A perusal of the site plan shows that the house of Sawa was situate some 100 steps away from the house of Kanku and there was one more house of Sawa which was situate some 45 steps away from her house. However, between this house of Sawa and the house of Kanku there was one house of some Dhurdha. Thus, the immediate neighbour of the deceased was Dhurdha. This Dhurdha has not been examined. However, between this house of Sawa and the house of Kanku there was one house of some Dhurdha. Thus, the immediate neighbour of the deceased was Dhurdha. This Dhurdha has not been examined. Be that as it may only on the basis of the exchange of hot words between husband and wife it cannot be inferred that the accused could intend to kill his wife. In this connection it is relevant to state that according to Naru who is also of the same caste to which the accused belongs, in his community the quarrel of husband and wife is usual feature. In this situation on the basis of so-called exchange of words between the deceased and the accused it is difficult to presume that the accused could have thought of murdering his wife. 13. What was the cause of quarrel between the husband and wife appears in the statement of PW 2 Gopilal who has deposed that when Dalu worked on his `Tall', Kanku used to come there and tell her husband that he should bring money otherwise there would be nothing to eat. According to him the accused was getting Rs. 5/- per day. It is obvious that the financial position of Dalu was not good and there might be some difficulty in running the kitchen by Kanku, so she used to tell the accused to bring money but on that count it cannot be presumed that the accused could murder his wife. 14. The important point for consideration is as to whether the accused was there in the house on the day or night Kanku was murdered. The case of the accused is that he was away and village Gudli to look after his field and cattle and he was there for the last about 10-12 days. There is no evidence worth the name of the prosecution that the accused was seen in Nathdwara within 3-4 days prior to the lodging of the FIR rather it has come in the statement of PW 4 Sawa that the accused had gone to village Gudli a week before Kanku died. Sawa has not stated that thereafter the accused had returned. Thus, the defence version is supported even by the star prosecution witness. Sawa has not stated that thereafter the accused had returned. Thus, the defence version is supported even by the star prosecution witness. When it is not established that the accused was there in his house in the preceding 3-4 days, it is not possible to raise any inference against him simply because he is the husband of the deceased. As a result of foregoing discussion we are unable to find that the prosecution has established the guilt of the accused beyond all reasonable doubts. The trial Court has erred in convicting the appellant on the weak and unreliable evidence. In any case the case is not free from doubt and the benefit of doubt goes to the accused. 15. Consequently, this appeal deserves to be allowed. We accept, the appeal, set aside the conviction and sentence and acquit the accused of the offence Under section 302 Indian Penal Code He is already on bail, he shall not surrender and the bail bonds stand canceled.Appeal Allowed. *******