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Learned counsel Mr. Pritam Solanki, representing the appellant, submits that the entire prosecution case is false and fabricated. The appellant has been convicted on the basis of the extra-judicial confession allegedly made before the prosecution witnesses Pahad Singh (P.W.1), Bhagwanaram (P.W.2), Ummed Singh (P.W.5) and Khemaram (P.W.7). He urges that even if the evidence of these witnesses is accepted to be true on the face (2 of 5) [CRLA-76/1994] value, all that can be inferred from their testimony is that the appellant herein and the two deceased women Chhoti and Bhaga were indulged in a quadruple incestuous love affair. Their relations were exposed in the Society, on which Bhirmaram, his wife Bhaga, his sister-in-law Chhoti wife of Bholaram and the accused- appellant decided to voluntarily end their lives through a suicide pact. Bhirmaram, Bhaga and Chhoti succeeded in ending their lives, whereas the accused appellant could not do so. He urges that even if this theory set up by the prosecution is accepted to be true on the face of the record, then also, no inference can be drawn that it was the accused appellant who instigated or abetted the three deceased persons, namely, Bhiramram, Bhaga and Chhoti, to commit suicide. He urges that the suicides were committed by the three deceased persons because of the ignominy and humiliation which they were facing after exposure of their incestuous relationship in the Society. He further submits that the so-called extra-judicial confession of the accused was made in the presence of the S.D.M. and the police officers and as such, the same cannot be relied upon for any purpose. He, thus, urges that the impugned judgment is bad on facts as well as in law and the appellant deserves to be acquitted of the charge under Section 306 IPC.

I have given my thoughtful consideration to the submissions advanced at bar and gone through the material available on record.

The incident involves suicidal deaths of Bhirmaram S/o Bhagwanaram, his wife Bhaga and his sister-in-law Chhoti which took place on 05.10.1987. The matter was immediately reported to the police and an enquiry under Section 176 CrPC was undertaken by the SDM, Phalodi Mr. Chandrashekar, who allegedly recorded the statement of the accused appellant during the course of this enquiry (though not exhibited), wherein he gave out his age to be 19 years and stated that he, Bhirmaram, his wife Bhaga and Chhoti wife of Bholaram were indulged in an amorous affair with each other. Their affair was exposed in the Society, on which all four of them felt humiliated and mutually decided to end their lives. They made repeated attempts to commit suicide by jointly consuming poison by jumping into the well etc., but could not succeed for one reason or other. Finally they purchased a rope. He divided the same into 4 pieces, recorded their last words in a (4 of 5) [CRLA-76/1994] cassette recorder and went to the tree, where all the four climbed up. Initial attempt to end their lives proved abortive. Bhirmaram suggested to the appellant that he should go and meet his mother, upon which, he went to meet his mother. She did not permit him to go back. In the morning, he received news that the other three had ended their lives. The enquiry report was submitted by the SDM, Phalodi to the SHO, Police Station Jamba on 16.10.1987. The FIR (Ex.P/6) came to be registered on 13.10.1987, wherein, for the first time, the allegation regarding the appellant having made the extra-judicial confession was disclosed. Manifestly, by this time, a criminal enquiry/investigation had already been initiated into the three deceased. A threadbare appreciation of the evidence of all the four material prosecution witnesses, i.e. Pahad Singh (P.W.1), Bhagwanaram (P.W.2), Ummed Singh (P.W.5) and Khemaram (P.W.7), makes it clear that the enquiry from the accused, in which, he allegedly made the extra-judicial confession, was undertaken in the presence of the SDM as well as the police officials. Therefore, the extra-judicial confession, if any made by the accused, would be hit by Sections 25 and 26 of the Evidence Act. Furthermore, even if the tenor of the so-called extra-judicial confession is appreciated, apparently, it reflects that a voluntary suicide pact was planned by the three deceased and the accused appellant because their incestuous/amorous relationship had been exposed to society and they felt humiliated thereby. Therefore, ingredients of instigating/abetting the three deceased persons to commit suicide cannot be imputed to the accused appellant even by a remote probability.