MODA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THESE are two connected appeals by the convicts Moda and Vagha Vagha has been convicted under section 302 I P. G. and sentenced to imprisonment for life whereas Moda has been convicted under section 302 read with Section 34 I. P. C. , and also sentenced to imprisonment for life.

(2.) THE facts of the case lie within a narrow compass:

(3.) WE shall first take up the evidence regarding extra judicial confessions. P. W. I Sarupsingh has stated that both the accused came to the field of his brother Modsingh and stated in his presence as well as in the presence of Modsingh, Amra, Uda and Vagta Dangi that they had killed their brother Mana in the Ghata. Thereupon Modsingh sent Nanga (P. W. 2) to the police station and after about two hours the Station House Officer came to the spot. He has further stated that both the accused voluntarily made this statement. It is also stated by him that the accused Moda said that he had inflicted an injury with a lathi to the deceased and that Vagha had also said that he had murdered him by inflicting an injury with an axe on his face. In the course of cross-examination the witness has stated that he had narrated the entire story to the Investigating Officer including the extra-judcial confession by the accused but on being confronted by his statement recorded by the police (Ex. D. 1) he admitted that there was no mention of extrajudicial confession in the statement Ex. D. 1. P. W. 3. Amara, P. W. 6 Uda and P. W. 20 Modsingh have however not said a word about the extra judicial confession even though P. W. 1 Sarupsingh has stated that they were present at the time the accused confessed the guilt. P. W 18 Vagta Dangi has stated that he, Sarupsingh, Modsingh, Nanga and Uda had gone to the place of occurrence on getting information from Nanga and Moda that some-body had murdered Mana, and on the next day the witness went to Thakur Modsingh's well but since Modsingh was not there he went towards the well of Rebaries and met both the accused on the way. At that time both the accused said that they had murdered their brother. The witness goes on to state that the accused Vagha said there was a quarrel about some land and also about the engagement of his daughter between him and the deceased. The witness further states that at that time Sarupsingh also arrived and the accused confessed their guilt before him also. In the course of cross-examination the witness has admitted that the talk had taken place before the arrival of Sarupsingh but he expressed his inability to give the time when the alleged talk took place, and states that he cannot say whether it was morning or noon or evening. The witness has further stated that the accused had voluntarily called him and confessed their complicity in the crime to him. There is apparent discrepancy in the statement of this witness and the evidence of P. W. 1 Sarupsingh regarding the place where the extra judicial confession was made. Apart from that, the witness is not even able to mention the time when the alleged confession was made by bath the accused. WE are also unable to accept the version of this witness that without being asked any thing about the death of Mana, the accused had voluntarily confessed their guilt to him. In this connection we may also refer to statement of P. W. 20 Modsingh, who has deposed that both the accused came to his house in the morning and told him that some one had killed their brother Mana and his dead body was lying in Dhundhawali Ghati. This shows that the accused were not in a remorseful and repentant mood and were not prepared to make a clean breast of the whole thing. WE are, then, unable to under stand how the accused could have made a voluntary statement about their guilt before any of these witnesses. According to the evidence of PW. 1 Sarup Singh, before Nanga was sent to lodge the First Information Report, the extra judicial confession had already been made and if it was so there is no reason why there should not have been a reference to the extra judicial confession in the First Information Report itself. In our opinion, the evidence adduced by the prosecution regarding the alleged extra judicial confession of the accused is not at all reliable and consequently we reject it.