( 1 ) DOES the fortune smile at. the appellant-accused? The fate of the conviction appeal is inevitably founded upon our extensive assessment of the facts and intensive appraisal of our legal survey of evidence on record.

( 2 ) SHORTLY and simply stated, the facts of prosecution case have been that the appellant and the wife of deceased accused No. 2 Manjula Patel had illicit intimacy and relationship and deceased Dinubhai was pushed back from behind by accused No. 1 as a result of which, deceased Dinubhai fell in the well while he was taking water from the said well on 28. 3. 1989 between 3 and 3. 30 early morning (a. m. ). The incident occurred in a field situated at village Vayad in district Sabarkantha.

( 3 ) THE informant Kantilal S. Patel, the uncles son of the deceased had informed the police and pursuant to the information given by him, initially the police recorded incidental death being Case No. 5/89 under Sec. 174 of the Code of Criminal Procedure, 1973. Upon investigation, it was found that there was a case of murder. There was also a motive for commission of the offence. Therefore, an offence came to bed registered under sec. 302 read with Sec. 34 of the I. P. Code against the appellant accused No. 1 and the wife of the deceased Manjula, being original accused No. 2 who came to be acquitted by the Trial Court.

( 4 ) THE defence of the accused persons was of total denial. The prosecution placed reliance on the oral evidence of the following witnesses :1. Kantibhai Shankerbhai, Ex. 202. Bhikhabhai Saburbhai, Ex. 223. Babubhai Shankerbhai, Ex. 234. Bachubhai Ramchandbhai Ex. 245. Mulsinh Mansinh, Ex. 256. Bhikhabhai Sankalbhai Ex. 267. Dr. Ishwarbhai Revandas, Ex. 288. Haribhai Prabhudas, Ex. 299. R. D. Marathe, Ex. 30. to substantiate the charge of murder against both the accused. The prosecution also placed reliance on the following documentary evidence :1. Inquest panchnama Ex. 92. Panchnama of Scene of offence, Ex. 33. Panchnama Ex. 154. Complaint, Ex. 27

( 5 ) THE Trial Court, upon assessment of the facts emerging from the record of the case found the appellant-accused No. 1 guilty for the offence under Sec. 302 of the IPC and sentenced him to suffer imprisonment for life and acquitted accused No. 2 wife of the deceased giving benefit of doubt. The Trial Court, therefore, reached the conclusion that there was murder of deceased Dinubhai by accused No. 1, the appellant herein by giving him a push from behind when he was taking water from the well after harvested wheat crop was collected in the tractor hired by both as there was joint interest in view of partnership in sharing the crop. As a result of the push, deceased Dinubhai who was aged 23 fell in 20 deep well. It was also found by the Trial Court that there was motive for commission of the crime of murder. The Trial Court mainly placed reliance on the evidence in the form of extra judicial confession in absence of any direct evidence. It may be stated at this juncture that the venue of the offence is the field wherein the well is situated and the time of offence was between 3 and 3. 30 a. m. early morning. The Trial court, after evaluating the evidence of prosecution, placed reliance on the extra judicial confession made by the appellant and other supporting circumstances. It may also be mentioned at this juncture that the Trial Court found that accused No. 2, wife of the deceased Manjula is entitled to the benefit of doubt and therefore, she came to be acquitted from the charge under Sec. 302 read with Sec. 34, IPC. No acquittal appeal is filed by the State. Original accused No. 21, partner of the deceased in sharing crop, has come up before this Court challenging the legality and validity of the impugned judgment and order of sentence recorded in Sessions Case No. 37 of 1990.

( 6 ) A short but interesting question which, therefore, arises for our consideration is as to whether the evidence in the nature of extra judicial confession made by t