IMPORTANT POINT
The confessions were not true and voluntary so acquittal for offences under Sections 302/34 and 498-A IPC is justified. For acquittal from offence under Section 304B IPC read with Section 113B Evidence Act, defence version that a false case was made about dowry demand and that death was due to accidental fall in the well is rightly believed by Trial Court.

JUDGMENT

Hansaria, J.-The State has felt aggrieved at the acquittal of the respondent by the High Court on appeal being preferred to it by him against the judgment of the Sessions Judge by which he was found guilty, along with two others, under Sections 302/34 IPC and 498-A. Though the High Court had acquitted all the three convicts, notice was issued by this Court only against the respondent.

2. Shri K.C Bajaj, learned counsel appearing for the appellant, has contended that the case against the respondent stands established by the judicial confession as well as the extra-judicial confession deposed by P.Ws.2, 4 and 5. The prosecution case also stands corroborated, according to the learned counsel, by the injuries which were found on the person of the deceased. It has been urged that a charge was framed under Section 304-B, and as the death of Vidya was within seven years of her marriage and the same having nexus with demand for dowry, it has to be presumed, in view of what has been stated in Section 113-B of the Evidence Act, that the respondent had caused dowry death.

3. Shri H.S. Rai, Senior counsel appearing for the respondent, has first submitted that the trial court having not convicted the respondent under section 304-B, and there having been no appeal by the State against this acquittal even to the High Court, the case of the respondent qua commission of offence under this section is not open to be examined. On our stating, during the course of hearing of the appeal, that we would be justified in doing so inasmuch as there having been a charge under this section, the respondent was put to notice as regards this offence also, Shri Rai addressed us on the merits of the case under this section as well. We heard him on the merit of the acquittal too as ordered by the High Court.

4. In so far as the acquittal under Sections 302/34 and 498-A are concerned, we find that the High Court disbelieved the making of the extra-judicial confession because the same had been allegedly made even to the father of the deceased and that too in presence of two co-villagers. The High Court has, therefore, observed, and rightly, that it is not acceptable that the respondent would make a confession of such a heinous crime in presence of so many persons. The statement recorded by the learned Magistrate which has been characterised judicial confession is really not so because a perusal of the same shows that the appellant had not admitted his guilt in terms inasmuch as the statement as recorded states about assault on the deceased by mistake. It may, however, be that the statement is not true. Now, if a statement is not true, that cannot be used even if the same were to be confessional in nature because the settled law is that for a confession to be used against the maker in a criminal trial the same has to be both true and voluntary.

5. Coming to the case under Section 304-B, Shri Rai has brought to our notice the statement as recorded by the police on 28th March, 1989 itself - the occurrence being on 27th March - when two brothers of the deceased were present during the time of inquest. The two brothers happened to be so present because soon after the death of Vidya news has been sent to Vidya s father who had sent his two sons, named, Chotu and Tarachand. Chotu s statement then was that his sister Vidya had died by falling into the well due to loss of balance at the time of drawing water from it. It may be pointed out that the dead body had been recovered from inside the well ; and the prosecution case is that the same had been thrown therein after causing the death of Vidya by assaulting her with lathi on various parts of her body. Chotu had, however, stated as above after having enquired from the neighbours. This is also the statement of Tarachand, another brother, according to whom the cause of death was falling of Vidya in the well due to loss of balance. He too had stated that nobody was at fault. Tarachand s further statement was that there