S.S. Byas, J.
1. By the judgment dated September 20,1977 the learned Sessions Judge, Jodhpur convicted the accused Hamira Ram under Section 304 Part I, IPC and sentenced him to rigorous imprisonment for 5-1/2 years. The accused has come up in appeal to challenge his conviction and sentence.
2. Briefly stated, the prosecution case is that accused Hamiraram used to live with his mother Mst. Madu (aged about 50 years) in a Dhani which he had raised in his field situate in Mauja Bhanukalan P.S. Dechu. Mst. Madu became widow nearly 15 years before the occurence took place. The deceased Pepararo Kumbhar aged about 50 years at the relevant time also used to live with his sons in a Dhani which he had raised in his field situate nearly at a distance of one mile from the Dhani of the accused. It is suggested that Peparam developed illicit relations with Mst. Midu Peparam used to visit the Dhani of accused now and then. In the night between 17th and 18th February, 1977, Peparam went secretly to the Dhani of accused but was noticed by the latter. He struck some blows to Peparam with a Lathi. Peparam fell down. There was profuse bleeding from his wounds and he passed away instantaneously on the spot. The deceased's son Lalaram (aged about 16 years) was living with his uncle Gajjaram in village Bhadukalan, where he used to attend a school. At about 6.00 AM on February 18,1977 the accused went to Lalaram and told him that he had killed his (Lalaram's) father by striking the blows with a Lathi to him and that his dead body was lying at his Dhani. Lalaram went to his elder brother Gunaram (PW. 6) and apprised him of the matter. Gunaram took his uncle Dewaram, brother Lalaram and one Malasingh with him and went to the Dhani of the accused. The accused was found there. They asked the accused as to why he had killed Peparam. The accused told them that as Peparam had come to his house in the night, he had killed him. Gunaram (PW. 6) immediately left for Police Station, Shergarh and verbally lodged report Ex. P.7 of the occurrence at about 5.00 PM on the same day. Since the Station House Officer was out of the Headquarters, the case was registered on February 19,1977 on his arrival. The Investigating Officer Vishansingh (PW. 10) who was posted at Police Station, Shergarh sent report Ex. P.7 to the Police Station, Dechu as the offence was committed in the jurisdiction of that Police Station. Thereafter he and the Deputy Superintendent of Police along with a doctor arrived at the spot. The Investigation was taken gup. The autopsy of the victim's dead body was conducted at about 12.30 hours on February 20, 1977 by PW. 13 Dr. Sohansingh, the then Medical Officer Incharge, Primary Health Centre, Balesar. The doctor noticed the following injuries on the victim's dead body:
(1) Bruise with abrasion 3 x 1 cm on the right shoulder
(2) Bruise 5-1/2 cm x 1-1/2 cm just below the right ear
(3) Bruise with abrasions 2 cm x 1/2 cm left side of the neck
(4) Bruise lx 72 cm behind the left ear
(5) Bruise 3 cm x 2 cm on the left eye
(6) Bruise with abrasions 9 cm x 2 cm on the central part of the fore-head
(7) Lacerated wound with depressed fracture of the occipital boue on the back of the head 5-1/2 cm x 1-1/2 cm x 3 cm.
A commuted depressed fracture of the occipital bone. The bone had been broken in eight pieces of different size and shape There pieces had gone deep inside the brain matter injuring the membrains and brain matter with the formation of a large haemotone at the site and oozing of the blood in the cranium and brain tissue. A 5 x 2 x 2 cm deep lacerations of the brain matter of the occipital bone of the brain was found. This internal injury was the result of external injury No. 7.
3. In the opinion of Dr. Sohansingh, the cause of death was injury to the occipital region of the head which caused intensive lacerations of the brain tissues of the occipital lobe and thereby leading to haemorrhage, shock coma and death. The post mortem examination report issued by him is Ex p.13. The Investigating Officer prepared the inquest report of the dead body and seized and sealed the blood-stained soil from the place of occurrence. He also prepered the site plan. The bloodstained clothes of the victim were also seized and sealed. The accused was arrested on February 19,1977 and in consequence of the information furnished by him, a Lathi was recovered lying concealed in the fences of his Dhani, There were blood-stains on this Lothi. It was seized and sealed. The recovered articles were sent for chemical examination. Human blood was found on the clothes of the accused and the Lathi recovered at the instance of the accused. On the completion of investigation, the police submitted a challan against the accused in the Court of Munsif & Judicial Magistrate, Jodhpur District, Jodhpur, who in his turn committed the case for trial to the Court of Sessions The learned Sessions Judge framed a charge under Section 302 I.P.C. against the accused, to which be pleaded not guilty and faced the trial. In support of its case, the prosecution examined 14 witnesses and filed some documents. In defence, the accused examined one witness. In his statement recorded under Section 313, Cr. PC, the accused claimed absolute innocence and alleged that he had been falsely implicated. His mother Mst. Madu had no illicit relations with the deceased. On the conclusion of trial the learned Sessions Jndge found the prosecution case substantially true. He held that Peparem was done to death by the accused. He was, however, of the opinion that it was under grave and sudden provocation that the accused caused the death of the deceased. The accused was consequently convicted and sentenced as mentioned at the very out set.
4. I have heard the learned Counsel for the accused and the learned Public Prostcutor. I have also gone through the case file carefully.
5. The learned Counsel appearing for the accused appellant did not challenge the opinion of Dr. Sohansingh (PW. 14) about the cause of death of the victim I have also gone through the testimony of Dr Sohansingh and find no good and cogent reasons to distrust his opinion. It therefore stands proved that the death of Peparam Kumbhar was not natural but homicidal.
6. Admittedly, there is no eye witness of the occurrence. The prosecution case rests squarely on the circumstantial evidence which consists of three sets namely, (1) the extra-judicial confession made by the accused before PW. 4 Malamsingh, PW. 5 Lalaram, PW. 6 Gunaram & PW. 7 Dewaram (2)tlie dead body of the victim was found lying in the Dhani of the accused and the blood-stained Lathi was recovered in consequence of the information furnished by the accused.
7. In assailing the conviction of the accused, it was contended by Shri N.N. Mathur, learned Counsel for the appellant that the conviction was wholly bad and unsustainable. It was argued that the witnesses speaking about the extra judicial confession were the close relatives of the deceased-victim. PW. 4 Malamsingh was found unreliable by the Court below. In these circumstances, the testimony of remaining three witnesses viz., PW. 5 Lalaram, PW. 6 Gumaram and PW. 7 Dewaram should not be taken as sufficient to convict the accused. It was argued that extra-judicial confession is a weak type of evidence and unless very convincing evidence to prove the extra judicial confession is forth coming from the prosecution side, it should not be acted upon. It was also argued that there was no occasion for the accused to make an extra-judicial confession or to voluntarily go to PW. 5 Lalaram. It was further argued that the mere fact of the victim's dead body being found in the Dhani of accused is not sufficient to connect him with killing of the victim So also, in respect of the Lathi, it was argued that this fact is not of much significance and furnishes no formidable evidence against the accused. In reply, the learned Public Prosecutor supported the findings of the Court below and submitted that the testimony of the relative witnesses should not be disbelieved specially when they had no enmity against the accused. The circumstances that the victim's dead body was lying in the Dhani of the accused speaks volumes against him. The recovery of the blood-stained Lathi at the instance of the accused affords a material corroboration to the extra-judicial confession. 1 have taken the respective submission into consideration.
8. It would be proper first to take up the prosecution evidence relating to the extra-judicial confession of the accused. The prosecution has examined four witnesses, namely PW. 4 Malamsingh, PW. 5 Lalaram, PW. 6 Gunaram and PW. 7 Dewaram, before whom the accused is said to have made the extrajudicial confession. The learned Sessions Judge did not put reliance on, the testimony of PW. 4 Malamsingh and in my opinion rightly so. This witness has not disclosed the extra-judicial confession in his police statement Ex. D 1 recorded during investigation. It may be pointed out that he was examined by the police on February 28, 1977 that is to say, nearly after ten days of the occurrence. His testimony is, thus, of no help to the prosecution.
9. Out of the remaining three witnesses PW. 5 Lalaram & PW. 6 Guna Ram are the sons of the deceased Peparam while PW. 7 Dewaram is his brother. PW. 5 Lalaram deposed that at about 5 00 or 6.00 AM on February 18, 1977. the accused came to him and told that his father had come at his (accused's) Dhani in the foregoing night and that he had killed him by striking blows with a Lathi The accused further told him that the dead body of his (witness) father was lying in his Dhani. The dead body should be removed from there. The witness further stated that he went to his brother Gunaram and uncle Dewaram and told them what the accused had stated to him. They all along with one Malamsing went to the Dhani of the accused and found him there. The dead body of the victim was lying in the Dhani of the accused. The accused was asked as to what he had done. The accused thereupon told them all that Peparam had come to his Dhani in the night He struck blows to him with a Lathi and thus finished him. P.V 6 Gunaram stated that his brother Lalaram (PW. 5) came to him and told him that accused had come to him and told him that he had finished Peparam is his Dhani in the preceding night. The witness further stated that he, Lalaram, Dewaram and Malamsingh went to the Dhani of the accused and found him there. His father's dead body was lying there in the Dhani. They asked the accused as to what had taken place. The accused told them all that Pepa Ram had come to his Dhani in the preceding night and that he had killed him. The witness further stated that he went to the Police Station, Shergarh and verbally lodged report Ex. P.7. PW. 7 Dewaram stated the same facts. He went with Lalaram and Gunaram to the Dhani of the accused. The accused was found there. They asked the accused as to what had taken place. The accused thereupon told them that Peparam had come to his Dhani in the preceding night and that he had killed him by the striking blows to him. The dead boby of the victim was lying there in the Dhani.
10. All these witnesses were cross-examined at length but nothing could be elicited from them which may make their testimony suspicious or unworthy of belief. It is true that they are the sons and brother of the deceased victim but that in itself is not sufficient to straight way dismiss their testimony. A free and voluntary confession whether judicial or extra judicial deserves credit because it is presumed to flow from the highest sense of guilt. It is wrong to presume that extra-judicial confession is a weak type of evidence. If the confession is voluntary and free and has been actually made, it is in itself sufficient to seek the conviction of the accused. The value of the evidence as to the extra-judicial confession depends upon the veracity and truthfulness of the witness who comes forward to prove it. If the witnesses examined to prove the extrajudicial confession are dependable and found trustworthy, there is no reason to reject the extrajudicial confession. These three witnesses, though closely related to the deceased-victim had no enmity against the accused before the occurrence. They, therefore, had no motive to implicate the accused falsely. The learned Sessions Judge accepted their testimony as credible and I find no good and cogent reasons to take a different view. The extra-judicial confession of the accused is consistent with the facts and circumstances which have come up on record. the accused has been unable to being any material on record to show or suggest that these three witnesses speaking about the extra-judicial confession were interested in falsely implicating him for the killing of Peparam. In Hardayal v. State of Uttar Pradesh AIR 1978 SC 2055 their Lordships observed that an extra judicial confession, if cogently proved to have been made truly and voluntarily, is a efficacious proof of guilt. In Maghasingh v. State of Punjab 1975 (1) SC WR 625 their Lordships observed that the evidence furnished by the extra-judicial confession made by the accused to the witnesses cannot be termed to be a tainted evidence. If the Court believes the witness, before whom confession is made& it is sufficiently proved that the confession was voluntary then in such a case, conviction can be founded on such evidence alone. Having throughly examined the testimony of these three prosecution witnesses Lalaram, Gunaram and Dewaram, it can be safely said that the accused made an extra judicial confession before them that he had killed the deceased Peparam. This confession alone is sufficient to seek his conviction.
11. The other set of evidence against the accused is that the victim's dead body was found lying in his Dhani. He could furnish no explanation as to how the victim's dead body, if he was not killed there, was found at that place. There is no suggestion from the accused's side that the dead body of the victim was planted there by anybody else. This fact of the victim's dead body being found lying in his Dhani affords a very valuable Link in the chain of evidence against him.
12. The accused was arrested on February 19,1977 vide arrest memo Ex. P.4. Afver his arrest, the accused made the disclosure statement Ex. P.10 before the Investigating Officer Vishansingh (PW 10). The disclosure statement is that he had concealed a Lathi in the fences of his Dhani which he would get recovered. Thereafter the accused took the Investigating Officer and the Mothirs in the back side of his Dhani and took out Lathi (Article 8) lying concealed in the fences there. It was seized and sealed and seizure memo Ex. P 5 was prepared. PW. 1 Jogsingh and PW. 3 Udaisingh are the Mothirs of this recovery of Lathi, Both of them stated that the accused took them and the Investigating Officer in the back side of his Dhani and took out Lathi (Article 8) lying concealed in the fences. It was seized and sealed and seizure memo Exp. 5 was prepared, on which they appended their signatures. This Lathi was sent for chemical examination As per report Ex. P.12 of the Serologist, human blood was found on it. The recovery of the blood-stained Lathi in consequence of the information furnished by the accused and at his instance furnishes a very valuable piece of corroborative evidence against the accused.
13. Thus, taking the three sets of evidence together namely (1) the extra-judicial confession of the accused, (2) the fact that the victim's dead body was found lying in his Dhani and (3) the recovery of the bloodstained Lathi in consequence of the information furnished by him and at his instance, the irresistible conclusion is that Peparam was done to death by the accused and the accused alone.
14. The learned Sessions Judge has held that the case was covered by the First exception of Section 300, IPC He held that while killing the victim, the accused was deprived of the power of self-control by grave and sudden provocation. He has, therefore, held that the offence made out falls within the ambit of Part I of Section 304, IPC. This finding of the learned Sessions Judge is final as the State has not filed any appeal against it.
15. It was lastly argued that the accused is a young man and the sentence awarded in excessive. In my opinion, the sentence of 5-1/2 years rigorous imprisonment for an offence under Section 304 Part I, IPC cannot be said to be excessive or unduly harsh. No reduction of sentence is called for.
16. For the reasons stated above, I find no force in this appeal of accused Hamiraram. It is consequently dismissed. Accused Hamiraram was on bail during the pendency of appeal. He is not present today. He will surrender before the learned Sessions Judge, Jodhpur within one month, failing which the learned Sessions Judge will get him arrested and commit him to jail to serve out the unexpired portion of his sentence.