K. Bhatnagar, J.
1. This appeal is directed against the judgment passed by the learned Sessions Judge, Bikaner on April 5,1977 by which appellant Jugal Kishore was convicted for the offence under Section 302, IPC and sentenced to imprisonment for life and a fine of Rs. 200/-, in default of payment of fine to undergo six months R.I.
2. The prosecution case is that on August 6, 1976 at 11.00 a.m. appellant Jugal Kishore with a knife in his hand and his clothes stained with blood, went to the Police Station, Sadar, Bikaner and lodged me report Ex. P 32. That report was in a way confession of the appellant for commuting the murder of his wife because of quarrel between the two. Kushal Chand (PW 12), Station House Officer of the Police Station arrested the appellant vide memo Ex. P 8 and recovered Ex. P 2 knife from his possession vide Ex P 9. The accused was kept in custody there. As the appellant had one injury on his knee he was sent to hospital for medical examination. Dr. Bhaira Ram (PW 8), Medical Jurist, P.B.M. Hospital, Bikaner noted one injury with sharp edged weapon on knee of the appellant and prepared the Injury Report Ex. P 12. The SHO sent information to Kalyan Mal Sharma, Dy. S.P. The Dy. S.P. went to the site and proceeded with the investigation. Kushal Chand, SHO also went to the site and assisted in the investigation. The d ad body of Smt. Shanti wife of the appellant was lying in the court yard of her house. She had injuries on her person. The injury report and Panchnama were prepared by the Police. The blood soaked earth and soil were taken from the site. Dr. R.S. Gehlot (PW 7), Medical Jurist, P.B M. Hospital, Bikner conducted the autopsy over the dead of Smt. Shanti on the same day at 3.00 p m. The Doctor noted four stab wounds and three incised wounds on the dead body. In the opinion of the Doctor all the injuries were antemortem in nature. The duration of death was estimated to be between three to six hours prior to the post mortem examination. The cause of death was cumulative effects of all the injuries sustained by the deceased. The post mortem examination report Ex P 11 was prepael. Statements of the witnesses were recorded. In the evening of the same day, the blood stained half pants and shirt which the appellant is said to be wearing at the time when he went to the P.S. were taken in possession vide memo Ex. P. 31. The handle and one paddle of the cycle on which the appellant is said to have gone to the Police Station were suspected of having blood on them and taken in possession. The blood stained clothes of the appellant and the deceased, the knife Ex. 2, the earth taken from the site and the handle and paddle of the cycle were sent for chemical examination. The report of the Chemical Examiner is Ex. P. 34 and that of the Serologist is Ex P 35. According to the Serologist all items except the handle and paddle of the cycle had human blood.
3. Upon completion of necessary investigation charge-sheet against the appellant was filed in the Court of Chief Judicial Magistrate, Bikaner. The learned Magistrate finding it to be a case exclusively triable by the Court of Sessions, committed the case to the Court of the Sessions Judge, Bikaner.
4. The learned Sessions Judge charge-sheeted the appellant for the offence under Section 302, IPC and recorded his plea. On his denial of the indictment, trial proceeded. Prosecution examined 12 witnesses in all. The appellant in his statement under Section 313 of the Code of Criminal Procedure denied the allegations levelled against him and stated that the police caused knife injury to him and then stained his clothes with blood. He has stated that he had very good relations with his wife. That, when he went to the house, he saw his wife lying dead in the court-yard and knife was lying by her side. That, he became grief-stricken and began to weep. That sometime there after Police came with Moolchand PW 10 to his house. Moolchand was annoyed with him for the reason that he had suspected him of having illict relations with his wife. No defence witness was examined. The learned Sessions Judge placed reliance on the prosecution evidence and passed the judgment under appeal.
5. We had Mr. M.M. Singhvi, learned Counsel for the appellant and Mr. R K. Soni, learned Public Prosecutor for the State.
6. At the very outset it may be observed that there is no eye witness to the occurrence and the prosecution case rest on the circumstantial evidence. The circumstances; are (i) his lodging the First Information Report with the Police; (ii) the recovery of the blood stained knife from his possession when he was arrested by the Police; (iii) the the blood stained clothes which the appellant was wearing when he had gone to the Police Station and were taken into possession by the Police, (iv) the recovery of the blood stained handle and paddle of the cycle of the appellant and (v) the extra-judicial confession of the appellant before Moolchand PW 10.
7. The learned Counsel for the appellant strenuously contended that the prosecution case about the appellant himself going to the Police Station and lodging the report mplicating himself for the crime is a manipulation by the Police According to Mr. Singhvi, the delay of 24 hours in sending the report to the Magistrate is in itself to sufficient to discard the prosecution story about the appellant lodging the report at 11.00 a.m. to the Police. It has been stressed that if the appellant would have gone to the Police Station with blood stained clothes on a cycle with blood on it, the Police would not have waited for taking the handle and paddle of the cycle and the blood stained clothes of the appellant till evening. The recovery of these articles in the evening and the effect of this delay we would discuss while dealing with those circumstances against the appellant. Suffice it to say for the present that the FIR whatever it might be containing cannot be taken to be piece of evidence against the appellant. The learned Sessions Judge has also not taken into consideration the facts mentioned in the FIR Ex.P 32. Apart from it, there are circumstances which create a doubt about the FIR being lodged by the appellant at the place and the time prosecution alleges.
8. One such circumstances is the delay in sending the FIR to the Magistrate. It is not in dispute that the report was despatched on August 7, 1976. The explanation given by Kushal Chand PW 12, SHO is that he had directed the Clerk to depatch the report immediately but he could not say why it was not so done. Kalyan Mal Sharma PW 11 Dy. S.P. has stated that he had seen the FIR about 12.30 at the site and then on going to the Police Station at about 6.00 p m. he had again read the FIR. This clearly shows that Kushal Chand had knowledge that the FIR had not been despatched on that day. Delay in sending the FIR is not always fatal to the prosecution. However, the importance of the compliance of the provision of Section 157 of the Code of Criminal Procedure need not be over emphasized. The word 'forthwith' appearing in this Section is of considerable importance. The reason for the Courts insisting upon sending the FIR to the concerned Magistrate forthwith is to eliminate the chances of manipulation and improvement in the facts and circumstances of the case. In the case like the present one where the appellant is said to have been the informant, it was still more essential for the Police to send the FIR to the concerned Magistrate forthwith. It has come on record that the Magistrate's Court was only at a distance of a few furlongs from the Police Station as well as from the house of the appellant. In this regard the statement of Gyan Singh FW 5, the motbir to the memos Ex.P/8 and Ex.P/9 is also note worthy. According to the witness, he had seen the appellant entering the Police Station and immediately within two or four minutes he also went to the Police Station. That, on his reaching there, the SHO handcuffed the appellant and put him behind the bars. He had proved the arrest memes Ex.1/8 and the memo for recovery of the knife Ex.P/9. The witness further stated that when he had reached the Police Station, the appellant was behind the bars and the memos were prepared in his presence. That, immediately after his reaching there the appellant was locked inside. The witness clearly stated that so long as he remained there, neither the SHO had any talk with him nor had the Police any talk with the appellant. Except Kushal Chand there is no other witness to state that the appellant had lodged the information Ex.P/2 at the time. In these circumstances, we find force in the submission of the learned Counsel for the appellant that there is no cogent convincing evidence to substantiate the prosecution case that the report Ex.P/32 was lodged by the appellant at the Police Station Jagdish PW 3 son of the appellant had stated that his father had attended the funeral of his mother. There is no other witness to state that the appellant had attended the funeral of his wife. If Jagdish is to be believed then the prosecution case about the arrest of the appellant on his reaching the Police Station falls flat. However there being no other evidence to point out that the appellant was there at the house when the Police reached, we are of the opinion that the appellant might have gone to the Police Station. It might be he who had informed the Police about the death of his wife and set the Police machinery at motion. It is also important to note that the information even if any by the accused and if it implicates him cannot be taken to be a piece of evidence against him. The only limited purpose sor which it can be used is the recovery if any in pursuance of the information. Even if the infirmity of the investigation is overlooked, all that can be said is that the appellant was arrested at the Police Station and Kushal Chand proceeded to his house.
9. The prosecution cafe is that the appellant when arrested had a blood stained knife Ex. 2 with him which was taken in possession vide memo Ex.P/9 and was scaled then and there. This recovery of knife has not been believed by the learned Sessions Judge for the reason that prosecution has failed to establish that the knife was sealed just after recovery and remained so till it reached the Chemical Examiner. In this regard statement of Harish Chandra PW 4, from whom the appellant is said to have purchased the knife a few days prior to the occurrence has been taken into consideration by the learned Sessions Judge. The statement of this witness was recorded on the next day i.e. on August 7, 1976. Harish Chandra was asked to bring a knife similar to Ex. 2 and he produced the same which was taken in possession. This clearly show that on the day next to the alleged recovery of the knife Ex. 2 from the appellant, the same was shown to Harish Chandra. This leads to the conclusion that the knife was either not sealed there and men and even if sealed, seals were broken on the next day when the same was shown to Harish Chandra.
10. The recovery of the cycle with blood stained handle and paddle has also not been believed by the learned Sessions Judge and rightly so. The blood on the handle and the paddle was not found human blood according the report of the Serologist. Apart from it, it was at the late hours of the day that the cycle is said to have been recovered from out side the Police Station. There is no evidence to suggest that the cycle belonged to the appellant.
11. The recovery of the blood stained clothes of the appellant has been taken to be a circumstance against the appellant by the learned Sessions Judge in passing the conviction.
12. It is pertinent to note that the bloodstained clothes which the appellant is said to be wearing were not recovered at the time of his arrest. It was in the evening at about after 6.03 p.m. that vide memo Ex.P/31 those clothes were taken in possession by the Investigation Officer. It is noteworthy that neither of the two motbirs viz. Gyan Singh PW 5 and Ibrahim Khan PW 6 has been examined by the Police. The explanation of Kushal Chand PW 12 for not taking the clothes in possession till evening is that since another set of clothes of the appellant was not available at the time is not satisfactory.
13. Kushal Chand had stated that he had remained at the site from 12 30 p.m. to 3.30 p.m along with Kalyan Mai Sharma PW 11. The statement of the later however is that from 12.30 p.m to 3 pm. Kushal Chand was sent from the site and had reached there only half an hour before the witness left the site which means about 3.00 p.m. Kalyan Mal Sharma PW 11 has also stated that after seeing the FIR he had asked Kushal Chand to send the same to the Police Station. If it was so then Kushal Chand had ample time to take the clothes of the appellant from his house and recover the clothes the appellant was wearing and were suspected to have blood stains on them. The fact of those clothes not being taken in possession till evening, casts a doubt on the fairness of the investigation. Here we may also discuss the prosecution case regarding the injury on the person of the accused. According to Kushal Chand at the time of arrest accused had injury behind his knee. The learned Sessions Judge has disbelieved this part of the case in view of the omission of this injury in the arrest memo Ex.P/8. The defence taken by the appellant is that Police had caused that injury and stained his clothes with blood. The learned Public Prosecutor referred to the note appended on Ex. 32 and argued that there is mention of the injury in that portion. While discussing the point regarding the lodging of the FIR by the accused we have observed that the circumstances discussed above cast doubt about Ex. 32 being lodged at the time and place, the prosecution alleges.
14. The omission of the injury of the accused in the arrest memo Ex.P/8 has led to the argument of the learned Counsel for the appellant that the blood on the clothes of the appellant, even if any, might have been from his injury. It is at 12.30 that Dr. Hanuman Singh PW 8, has examined the injury of the appellant. It shows that at 12 30 there was injury on the persons of the appellant. The injury on the body of the appellant has not in any way been connected with the commission of the crime but it may give support to the version of the accused that the blood on his clothes was from that injury. There is no evidence to point out as to in whose custody the bag containing clothes remained till August 23, 1976 when the same was entrusted to Ibrahim Khan PW 6 for being taken to the Laboratory at Jaipur. This witness has stated that the bags were given to him from Thana Sadar on August 23, 1976 and gave the bags in the office of the Chemical Examiner on August 24, 1976 in the sealed condition as they were entrusted to him. The witness further stated that it was Sub-Inspector, Jagdish Singh who had given the bags to him at the Police Station and that the bags remained in charge of the Head Constable in the Malkhana of the Police Station and the key also remained with him. The Head Constable or Jagdish Singh has not been examined by the Police. Kushal Chand has stated that Jagdish Singh had not remained posted at Thana Police Sadar from July 13, 1976 till January 7, 1977 when the statement of the witness was recorded. If that was so, how Jagdish Singh could have given the bags to Ibrahim Khan on August 23, 1976 There being no evidence to point out in what condition and whose charge the bags one of which was containing the clothes said to have been recovered from the person of the appellant, remained the circumstance of the recovery of the blood stained clothes has no value and we find no jurisdiction in making it as a basis for the conviction of the appellant.
15. The most important circumstance against the appellant on which the learned Sessions Judge has based his conviction on his extra judicial confession before Mool Chand PW 10. Mool Chand has stated that on August 6, 1976 at about 10.30 when he was returning to his house from the Temple of Goddess and had reached near 'Gandanala', Jugal Kishore met him going on a cycle That, Jugal Kishore told him that he had committed the murder of his wife. The witness stated that he did not believe him. But when he proceedeed ahead he saw a number of children and ladies standing outside the house of Jugal Kishore and he the before went inside his house and saw the wife of Jugal Kishore lying dead in the court-yard with wounds appearing to have been caused by knife.
16. The learned Counsel for the appellant vehemently argued that Mool Chand is not a witness of credence and the learned Sessions Judge should not have based conviction on this weak type of evidence. It has been empbasized by Mr. Singhvi that as the relations between Mool Chand and the appellant were strained, it cannot be believed that the appellant would have confessed before his enemy in order to create evidence against him The unnatural conduct of the witness in not catching hold of the accused and taking him to the Police Station has also been taken to be a ground by Mr. Singhvi for discrediting the testimony of the witness.
17. Extra Judicial Confession is a very weak type of evidence and the courts ordinarily look for other corroborative evidence before passing conviction on the circumstance of extra-judicial confession. However, if the witness to the extra-judicial confession is of credence then there is no bar for placing reliance on that evidence and passing conviction on it alone. But in order to do so courts should be vigilant to see that the witness is of sterling worth and there is no escape from the inference that it is the accused none else who had committed the crime. With this principle in view, we would now discuss the evidence of Mool Chand.
18. Mr. Singhvi, learned Counsel for the appellant have submitted that if the appellant had confessed before the witness, the witness should have detained him or would have informed the Police The learned Public Prosecutor submitted that the witness has given the explanation that he had not believed what Jugal Kishore had stated and therefore, he did not accompany him. That, when the appellant had told Mool Chand that he was going to the Police Station where was the necessity for the witness to go to the Police Station.
19. Mool Chand in our opinion, for the reasons we would presently discuss, is not a witness of such sterling worth that on the solitary circumstance of extra-judicial confession coming forth from his statement the conviction of the appellant may be justified. Mool Chand has stated in examination-in-chief that he was acquainted with Jugal Kishore because of their houses being nearby. In cross examination he has admitted that the appellant was his nephew in relation. He has also admitted that the two were not on visiting terms. The appellant in his statement under Section 313 of the Code of Criminal Procedure has stated that as Mool Chand was suspecting illicit relations between him and his wife and as such was against him. The appellant has also stated that because of such suspicion Mool Chand had once fractured his wife's hand. This suggestion has been denied by Mool Chand. He has admitted the fracture his wife's hand but according to him that was on account of a fall. Be it as it may, it has been admitted by Mool Chand that he and appellant though closely related were not on visiting terms. If the relations were strained, the evidence of this witness will require a close scrutiny. A culprit's confessing the guilt before any one is either due to repentance or with a hope of being helped by the person before whom he confesses. Both these things are missing in the present case. The appellant could not have any expectation of help from Mool Chand with whom his relations were strained nor was there any necessity for him in prosecution case about his going to the Police Station to set the Police machinery into motion is taken to be correct. Mool Chand has stated that he had seen blood stained knife with the appellant and his clothes were stained with blood when he had confessed before him. If that was so, then the statement of the witness that he did not believe Jugal Kishore regarding his utterance cannot be believed.
20. It is important to note that Mool f hand was in the Police Service and had recently retired. If the appellant had informed him about his committing the murder of his wife, in the natural course of events, the witness having remained in Police Service should have caught hold him or atleast should have immediately rushed to the Police Station. Even if he is believed to the extent that he had not done so and had proceeded ahead to ascertain what had actually happened, still it was expected of him to go to the Police Station to lodge the report. According to the witness it was at 10 30 a.m. that the appellant had a talk with him. Police had reached the site at 12.30 p.m. after full two hours. The witness did not make any effort to inform the Police. The Police Station was at a distance of 10-15 houses from the place where the appellant is said to have met the witness. When the Police has not reached the site after two hours, that must have raised suspicion in the mind of the witness that the appellant instead of going to the Police might have gone else where and in that circumstance, the natural conduct of the witness would have been to go to the Police Station. If the witness did not believe the appellant when he told him about the murder of his wife, then how could he believe that the appellant must have gone to the Police Station. Yet another important factor for consideration is that Mool Chand had remained with the Police throughout the period of the investigation on the day. He was motbir of all the memos prepared by the police. Despite his having strained relations with the appellant no other motbir to the memos prepared by the Police had been examined by the Police. Not only this till his statement was recorded at about 2.30 p.m. he bad not told the police or anybody else that Jugal Kishore had told him that he had murdered his wife.
21. The learned Counsel for the appellant has emphatically argued that if there was extra-judicial confession before Mool Chand, in the natural course of events he should have told this fact immediately to the police without waiting for his statement after the investigation of the day was over. The argument has force.
22. In these circumstances, when all other circumstances, except the recovery of the blood stained clothes and the extra-judicial confession have been disbelieved by the learned Sessions Judge and as discussed above and we have declined to place reliance on the circumstance of recovery of blood stained clothes of the appellant, the conviction of the appellant cannot be justified on the solitary circumstance of the so called extra-judicial confession before Mool Chand, a witness of no credence, and, having strained relations with the appellant. In view of the above discussion, we are of the opinion that prosecution has not succeeded in establishing the guilt of the appellant. We, therefore, find no justification in his conviction.
23. Consequently, the appeal of Jugal Kishore is allowed. The conviction and sentence under Section 302 FPC are set aside and he is acquitted of the charge. He is on bail, his bail bonds stand discharged. The order of the learned Sessions Judge regarding the dispoial of the property is how ever maintained.