1. By his judgment dated January 21,1980 the learned Sessions Judge, Partabgarh (camp Chittorgarh) has convicted the accused Tulsiram under Section 302, IPC for committing the murder of his wife Mst. Narayani and sentenced him to imprisonment for life with a fine of Rs. 100/- in default of the payment of fine to further undergo one month's rigorous imprisonment. The accused has come-up in appeal to challenge his conviction and sentence.
2. Briefly stated, the case set-up by the prosecution is that the appellant and his wife Mst. Narayani were working on June 28, 1979 in their field situate nearly two furlongs away from their village Rnjgarh P.O. Begun district Chittorgarh. The appellant was addicted to liquor. In the afternoon, while they were still working there, Mst. Narayani requested the accused not to take liquor as much work was still to be done. This enraged the accused. He took-up a stone lying nearby and started hitting Mst. Narayani on her head with it. He continued to hit her till she died. There was profuse bleeding from her wounds. PW 5 Banshi Lal, PW 6 Chuna and PW 7 Hemraj happened to pass in the way situate nearby this field. The accused told them that he had killed his wife. From there the accused went to his younger brother PW I Sangram, who was working in his field. The accused told him that he had killed his wife and he was going to lodge a report at the Police Station. He asked Sangram (PW I) to go to the field where the dead body of Mst. Narayani was lying under a Banyan (Badh) tree. Sangram (PW 1) took his nephew Roopa (PW 2) with him and came to the field of the accused where the dead body of Mst Narayani was lying. They also found a stone and the clothes of the deceased stained with blood. The accused appeared at about 6.00 A.M. on June 24, 1979 at Police Station, Begun and verbally lodged report Ex. P. 8 of the occurrence. In this report he stated he had committed the murder of his wife Mst. Narayani by striking blows on her head with a stone and that her dead body was lying in his field. The Station House Officer Surendra Kumar (PW 9) registered a case under Section 302, IPC and proceeded with investigation. The accused made a disclosure statement recorded in Ex. P 9 at about 6.15 A.M. on the same day in which he stated that he was prepared to get the dead body of his wife and the stone with whieh he killed her, recovered. The investigating officer took the accused and the Motbirs with him and arrived in the field of the occurrence where the dead body of Mst. Narayani was lying and PW 1 Sangram and PW 2 Roopa were sitting nearby. He prepared the inquest report of the victim's dead body and inspected the site. He also took in possession two pieces of stone lying nearby the dead body. The accused was formally arrested thereafter. The post-mortem examination of the victim's dead body was conducted at about 3.40 P.M. on June 29, 1979 by PW 3 Dr. Narendra Kumar, the Medical Officer Incharge, Primary Health Centre, Chechi. The doctor noticed Hie following injuries on the body of the deceased:
1. Lacerated wound 3' 3' on left mastoid region. Behind the left ear few maggots were seen in this wound.
2. Lacerated wound 1' 1/2' size crush injury of upper part of left ear. Some part of the ear has been torn off.
3. Lacerated wound on fore head left side 1' 1/2'.
4. An oblique wound 1/2' 1 1/2' 1' on right side of forehead just above the right eye brow.
5. Lacerated wound 2' 1' on right maxilary prominence.
The right maxillary bone has been fractured and crushed and right maxillary simus was exposed. Some clotted blood was deposited by the sides of sinuses.
6. Lacerated wound 2' 1/2' in front of right eat and the adjoining maxillary bone has been crushed and broken in pieces.
7. A lacerated wound looking an incised wound 1' x 1/4' on right side of anterior part of head.
8. Lacerated wound 4' 2' in the middle of head, 3' above the forehead transverse in direction.
9. Lacerated wound 3' 2' just above the left ear. The left temporal bone became fractured and some of its parts have been crushed.
10. A lacerated wound 2' 1' in the right inquinal region in front of right anterior superior iliac spine.
11. Lacertated wound in left inquinal region 2' x 1' just in front of anterior iliac spine of left ilias bone at its anterior superior spine.
1. The mastoid prominence of right temporal bone has been crushed and broken into pieces.
2. The right maxillary bone at its maxillary prominence has been crushed and broken in pieces.
3. Right iliac bone has been crushed and broken in pieces at the right anterior superior iliac spine.
4. Left iliac bone has been crushed and broken in pieces at left anterior superior iliac spine.
3. The clothes which the deceased was wearing were also found stainted with blood. The doctor seized and sealed these clothes. In the opinion of Dr. Narendra Kumar, the causes of death of the victim were (1) haemorrhage and (2) traumatic shock as a result of various injuries sustained by her. The injuries were ante-mortem. The post-mortem examination report issued by him is Ex. P 1. On the completion of investigation, the police submitted a challan against the accused in the Court of Musif & Judicial Magistrate, Begun, who in his turn committed the case for trial to the Court of Sessions. The learned Sessions Judge framed a charge under Section 302, IPC against the accused, to which he pleaded not guilty and faced the trial. He denied that he had committed the murder of his wife. According to him, he has been falsely implicated. He, thus, claimed absolute innocence. In support of its case, the prosecution examined nine witnesses and filed some documents. In defence, the accused adduced to evidence. On the conclusion of the trial, the learned Sessions Judge held that the charge has been satisfactorily brought at the door of the accused. The accused was consequently convicted and sentenced as mentioned at the very out-set.
4. We have heard the learned amicus curiae and the learned Public Prosecutor. We have also carefully gone through the record of the case.
5. The learned amicus curiae did not challenge the opinion of PW 3 Dr. Narendra Kumar relating to the cause of death of the deceased Mst. Narayani. In fact, he was not in a position to do so. We have read the statement of Dr. Narendra Kumar (PW 3) and find no reasons to distrust him for his opinion relating to the cause of death of the victim. The death of Mst. Narayani was not natural but homicidal.
6. Admittedly, there is no eye witness of the occurrence and the entire prosecution case squarely rests on circumstantial evidence which consists of the following sets:
(1) extra judicial confession made by him before PW 1 Sangram, PW 5'Banshi Lal and PW 6 Chuna;
(2) Dhoti EX. 1, which he was wearing at the time of committing the offence; was found stained with human blood; and
(3) the two pieces of stone Ex. P8 found lying near the dead body were found stained with blood.
7. It was vehemently contended by the learned amicus curiae that the extra judicial confession is a weak sort of evidence. In the instant case, the evidence relating to extra judicial confession of the accused was discrepant and unreliable. The three witnesses speaking about the extra judicial confession have given inconsistent stories. The extra judicial confession, thus stands not satisfactorily proved. It was argued that at any rate, even if the extra judicial confession of the accused is taken as proved, it was wholly insufficient to seek the conviction as there was no independent corroboration in support of it. It was, on the other hand, submitted by the learned Public Prosecutor that an accused can be safely convicted on the strength of extra judicial confession. PW 1 Sangram is the real younger brother of the accused while PW 5 Banshi Lal and PW 6 Chuna are independent persons. It is difficult that to conceive that they would falsely implicate the accused for no apparent reasons. Mr. Niyazuddin Khan further submitted that if corroboration is required, there is ample of it in the instant case. We have taken the respective submissions into consideration.
8. The witnesses speaking about the extra judicial confessions of the accused are PW 1 Sangta, PW 5 Banshi Lal and PW 6 Chuna. PW 5 Banshi Lal and PW 6 Chuna deposed that while they were coming in the afternoon of the day of occurrence, they happened to pass in the way situate nearby the field of the appellant. PW 7 Hemraj was also with them. When they came near the field of the appellant, they saw him there and his wife lying in the field. She was covered with an Orna. Seeing them, the accused started abusing them and told that he had killed his wife. Both these witnesses are immature urchins and it is difficult to conceive that they would introduce a false story of extra judicial confession The accused has not suggested anything in their cross-examination that they had any bias against him. Both these witnesses are Kahars by caste whereas the appellant is a Bhil. No reasons were subscribed before us as to why the testimony of these two lads should not be accepted as true, specially when nothing is there to put at discount what they stated.
9. As regards PW 1 Sangram, he is the real younger brother of the appellant. The relations between them do not appear to be strained. This witness deposed that in the evening of the day of occurrence while he was working in his field, his brother (appellant) came to him and stated that he and his wife had fallen out and that he had killed his wife. The accused asked him (witness) to go to the field where the dead body of his wife was lying and to keep a watch on the dead body. The accused further told him that he was going to the Police Station to lodge a report of the occurrence there. Sangram (PW 1) was cross-examined but nothing was suggested that he has any grouse against the appellant or has any axe to grind against him. He is a witness of the mature age of forty years and in absence of any cogent and good reasons, his testimony cannot be discarded. It may be added that on the extra judicial confession made by the accused before him, he along with PW2 Roopa went to the field of occurrence and remained there through-out the night with the dead body till the arrival of the police. The learned Sessions Judge found this witness reliable. We have no good and cogent reasons to take a view different from that taken by the Sessions Judge.
10. Thus, the extra judicial confessions made by the accused firstly before PW 5 Banshi Lal and PW 6 Chuna and secondly before his younger brother Sangram (PW 1) stand satisfactorily proved. There is nothing to dismiss or discard the evidence of these three witnesses. Their evidence inspires confidence.
11. Then, there is the other piece of circumstantial evidence. When the accused was arrested, he was wearing Dhoti Ex 1. It was seized and sealed. The two stone pieces Ex.8 were found lying near the de id body. They were also seized and sealed. Both these articles on chemical examination, were found stained with human blood as per report (Ex. P 11) ofihe Serologist. The presence of human blood on the Dhoti of the appellant and on the two stones afford a material and independent corroboration to the extra judicial confessions made by the accused.
12. An extra judicial confession, if cogently proved to have been made truly and voluntarily is an efficacious proof of guilt and can be safely made the basis of conviction. It is immaterial whether the extra judicial confession has been retracted later on during trial by the accused. However, in order to base the conviction of an accused on the sole basis of extra judicial confession, the extra judicial confession must successfully pass the three tests viz., (1) it has been really made, (2) it has been made voluntarily and (3) it is true. If the extra judicial confession successfully passes through these three tests, it becomes a free and voluntary confession. A free and voluntary confession deserves highest credit because it is presumed to follow from the highest sense of guilt. Where a confession is made voluntarily and it is also true but is subsequently retracted by the accused, there is no legal bar in basing the conviction on the retracted confession. Even no corroboration is required in such a case. Corroboration, if sought, is only as a rule of caution in such a case. Now, whether an extra judicial confession has or has not been made, depends on the veracity and truthfulness of the witness to whom it is made. If the witness stating about the extra judicial confession has no grouse against the accused, the making of the extra judicial confession stands proved. In the instant case, as discussed above. PW 1 Sangram is the real younger brother of the appellant while the remaining two, viz, PW 5 Banshi Lal and PW 6 Chuna Kahars are independent persons. There were no strained relations between the accused and these three persons. The extra judicial confession, therefore, stands proved. It was also made voluntarily as there are no suspicious circumstances discrediting it. If the accused makes an extra judicial confession before his own brother, it should be taken to have been made voluntarily free from all taints. The extra judicial confession also appears to be true. The dead body of the victim was lying in the field of the accused which fits in the story disclosed by the accused in his extra judicial confession. The extra judicial confession, thus, successfully passes through all these three tests.
13. Then, there is corroboration. As discussed above, this corroboration comes from the fact that Dhoti (EX. 1) and two stones EX. 8 were found stained with blood. We, therefore, entertain no doubt that it was the accused and the accused alone who had perpetrated the crime and killed his wife Mst. Narayani. The accused can be, thus, safely convicted on the basis of his extra judicial confessions.
14. It was next contended by the learned amicus curiae that the offence made out does not fall within the ambit of Section 302, IPC. It was argued that the offence made out falls only within the Second Part of Section 304, IPC. Reliance in support of the contention was placed on Prithvi @ Prithvipal Singh and Anr. v. State of Rajasthan 1982 (Volume 7) Rajasthan Criminal Cases 203, wherein the accused struck blows with a stone to the victim and the offence held was under Section 304 Part II, IPC. We are unable to accept the view subscribed before us. Here in the instant case, the accused inflicted as many as eleven injuries with a heavy and hard stone on the head of the deceased-victim. It is pertinent to note that all the injuries to the victim were caused on her skull. It is in the knowledge of everybody that the head is a delicate and vulnerable part of the human body.
15. The injuries resulted in as much as four fractures of the skull bones. Thus, the head was broken as a coco-nut. It is not the case of single blow. Here is the case of the repetition of blows. The accused continued to hit the head of the victim with a heavy and hard stone till she was dead. The case is, therefore, covered by the first two Clauses of Section 300, IPC. He hit the victim with the intention of causing her death. Further, he hit her atleast with the intention of causing such bodily injuries as he knew to be likely to cause the death of Mst. Narayani. The case directly attracts the applicability of first two Clauses of Section 300, IPC. The offence made out, therefore, falls within the ambit of Section 302, IPC. In the authority relied upon by the learned amicus curiae, all the injuries were not on the head of the victim. The facts in that case were entirely different and have no semblance to the facts of the present case.
15. No other contention was raised.
16. For the reasons stated above, we are of the opinion that the accused Tulsiram was rightly convicted and sentenced under Section 302 IPC. No interference is called for.
17. The appeal of accused Tulsiram is consequently dismissed.