Raju, J.
1. The appellant Bai Khatija, widow of Karimad Jiva of Hussenpura, who was accused No. 1 at the Sessions trial, was convicted by the Sessions Judge, Banaskantha District, under Section 302 read with Sections 34 and 109, Indian Penal Code, for having murdered her husband Karimad. Accused No. 2 was acquitted by the learned Sessions Judge.
2. The prosecution case wag that the appellant, who is aged 19 years, was married to the deceased Karimad Jiva about two years before the occurrence, that she stayed in her father's house at Bhagalpepli and that when her father went to 'Haj' pilgrimage for about two months, she contracted illicit intimacy with accused No. 2, who is her cousin brother. After her father's return she was unwilling to go to her husband's house, but a few days prior to this incident she was, persuaded to go to her husband's house. 5 or 6 days lateron the night of 5th October 1959, according to the prosecution, deceased Karimad slept with his wife Khatija in his room, the adjoining rooms being occupied by hi four brothers, Rahim Jiva, Nurmad Jiva, Habib Jiva and Ismail Jiva. All the brothers had attended the Namz at 9.30 p. m., but the next morning at 5.30 a. m., his brothers found that the deceased was absent. Inquiry was thereupon institutfed, and the appellant was asked by Rahim Jiva about the whereabout on the deceased. According to the prosecution, at first, the appellant denied knowledge as the how her husband happened to be missing, and subsequently, it is said, that, she confessed to Rahim Jiva and others that she had committed the murder of her husband by strangulating him. The police patel who was informed, came to the house of Rahim Jiva, saw the dead body ot the deceased and sent an occurrence report to the police station. After the usual investigation, the appellant and two others were pro-secuted. But, accused No. 3 was discharged at the committal inquiry, accused No. 2 was acquitted at the Sessions trial and the appellant (accused No. 1) was convicted by the learned Sessions Judge as stated above.
3. At the Sessions trial, the prosecution mainly relied on the evidence of motive to prove that the appellant was on terms of illicit intimacy with accused No. 2 and was therefore unwilling to live with her husband, the deceased; two extra-judicial confessions said to have been made before Daud Vazir and Rahirn Jiva, the brother of the deceased In the presence of Nurmad Jiva, another brother of the deceased and other persons, and the conduct of the appellant in that although she slept with the deceased on the night of the occurrence and although her husband was found missing, on the next morning she did not inform her relatives or villagers and that she did not search for her husband, but on the contrary, she told Rahim Jiva and others that she did not know anything about the whereabouts of her husband. The learned Sessions Judge also relied on the circumstance that a blood-stained 'Lunghi' was recovered from the room of the deceased. In addition, reliance was placed on a statement made by the appellant during her examination at the committal inquiry in which she is alleged to have stated that on the night in question she opened the back door of the room, when there was a knock at the door by Rahim Taj'u and Nura Amda, who came there for the purpose of murdering her husband, and that after entering the room of the deceased, these two persons had murdered her husband, who was sleeping, by strangulating him, and afterwards lifted the dead body and took it outside the room. In her examination at the Sessions trial she has stated that she had made a statement at the committal inquiry because one Vazir Raje had promised her that it she made such a statement, she would be acquitted. She denied all the allegations made by the prosecution including the allegation that she was on terms of illicit intimacy with accused No. 2. According to her, her husband had not returned home during the night in question and she did not know anything about the whereabouts of her husband. She denied having told Rahim Jiva and Nurmahmad that she had murdered her deceased husband.
4. The learned Sessions Judge held that the death of Karimad Jiva, the husband of the appellant, was homicidal, that the prosecution had succeeded in proving the motive suggested by them, that the statement made by the appellant before the committing Magistrate which amounted to a confession of having committed the offence ot having abetted Rahim, Taju and Nura Amda in the commission of the murder of her husband was admissible in evidence and that although the bloodstained 'Lunghi' had not been produced by the appellant, it was recovered from the room of the deceased. This fact, according to the learned Judge corroborated the statement made by the appellant in her examination that her husband had been murdered by strangulation. The learned Judge also found that the evidence of Nurmad Jiva and Rahim Jiva, to whom extra-judicial confession had been made by the appellant, was reliable and amounted to sufficient corroboration of the confession made by the appellant in the statement made before the committing Magistrate. Although the learned Sessions Judge acquitted accused No. 2 of the charge of the commission of murder, he convicted the appellant for having abetted accused No. 2 in the commission of the murder of the deceased. He, however, also convicted the appellant under Section 302 with Section 34, Indian Penal Code, for having committed the murder of the deceased in furtherance of the common intention of the appellant and accused No. 2, who was acquitted.
5. In appeal, the learned counsel for the appellant has not argued the question whether the death was homicidal or not. The finding of the learned Sessions Judge that Karimad Jiva was murdered as a result of strangulation has not been challenged before us. The points raised by the learned counsel for the appellant are: (1) that the motive has not been proved; (2) that Daud Vazir in whose presence the appellant is alleged to have made an extra-judicial confession, has not been examined; (3) that Karimad Vazir, who is said to have accompanied Rahim Jiva to the police patel, does not corroborate Rahim Jiva; (4) that the name of the appellant had not been disclosed to the police patel; (5) that in the evidence of the police patel there is no reference to the extra-judicial confession said to have been made by the appellant to Rahim Jiva in the presence of Others and (6) that the learned Sessions Judge was wrong in admitting the statement made by the appellant in her examination at the committal trial when no evidence was taken.
6. We will discuss these points in the order in which they have been raised.
7. As regards the motive, the prosecution relied on the evidence of two prosecution witnesses, Habib Daud (P. W. 10) and Alimad Vali (P. W. 11). The first witness merely deposes that he had seen accused No. 1 and accused No. 2 together at times. Merely from the fact that accused Nos. 1 and 2 were seen together at times, it would not be proper to jump to a conclusion that they were on terms of illicit intimacy. According to the other witness Alimad Vali, accused No. 1 had told him that she was in love with two persons, namely, Rahim Taju and Nura Amda and that she wanted to marry accused No. 2. It is difficult to believethe evidence of this witness that accused No. 1 had admitted to him that she was in love with two persons, although she was married to another. Moreover, this witness admits that although he was present in Hussenpura for the first two days when the police were present, his statement was not recorded by the police during those two days. His statement was actually taken by the police more than 20 days atter the incident. It is therefore difficult to hold that the prosecution has proved the motive alleged by them, namely, that accused No. 1 and accused No. 2 were on terms of illicit intimacy and that therefore accused No. 1 wanted to commit the murder of her own husband.
8. As regards the alleged extra-judicial confession said to have been made by the appellant before Rahim Jiva, the brother of the deceased in the presence of Nurmad Jiva, another brother of the deceased and Daud Vazir, who was not examined by the prosecution, it is true that Rahim Jiva and Nurmad Jiva corroborate each other as regards the face of the alleged extra-judicial confession said to have been made by the appellant. The statement said to have been made by the appellant, however, is in conflict with the statement made by her in her examination at the committal trial. In the second statement she stated that the murder was actually accomplished by accused Nos. 2 and 3 while she herself played the minor part of opening the door when there was a knock at night. But according to the extra-judicial confession, it was the appellant herself who committed the murder. If the appellant was sleeping with her husband in the room at night at a time when her husband's brothers were sleeping in the adjacent rooms, it is difficult to imagine that she was able to murder her own husband without awakening the brothers of her husband who were in the adjoining rooms. There is also no reference to the extra-judicial confession in the evidence of the police patel. According to the prosecution witness Rahim Jiva, the extra-judicial confession had been made before he went to the police patel. If that were so, he would have informed the police patel that the appellant had made an extra-judicial confession before him. But he did not do so. In the occurrence report sent by the police patel, it is true, the name of the appellant is mentioned, but it is not stated that the appellant had made an extra-judicial confession. We, therefore, find it difficult to accept the evidence that the extra-judicial confession had been made by the appellant and we must therefore exclude the alleged extra-judicial confession from consideration.
9. The learned Sessions Judge relied on the recovery of a blood-s'ained Limght in the room of the deceased. The learned Judge himself has not accepted the prosecution case that Lunghi had been produced by the appellant. The mere find of a blood-stained Lunghi in the room of the deceased would at the most prove that the deceased was murdered by strangulation with the Lunghi but it would not help in deciding the question as to the identity of the offenders. The find of the Lunghi does not implicate the appellant in the commission of the crime.
10. As regards the circumstances that the deceased was in his room with the appellant onthe night of the occurrence, according to the appellant, however, her husband had not returned home atter the Namaz at 9-30 p. m. that night. Even if the prosecution evidence on this point is beiieved, it would only prove that the deceased was in his room with the appellant at night. That cir-cumstances, even if taken along with the conduct of the appellant, is not sufficient to warrant the inference that the deceased had been murdered by the appellant. The dead body, in fact, was found outside the room .and not in the room of the deceased. The exact place, where the murder was committed, is not, therefore, satisfactorily proved, and the mere fact that the blood-stained Lunghi was found in the room of the deceased does not necessarily prove that the murder must have been committed in the room. If the murder had been committed in the room of the deceased, the brothers of the deceased, who were in the four adjacent rooms, must have come to know that very night of the occurrence. It is true that the appellant did not inform anybody the next morning that her husband was missing nor did she search for her husband. On the contrary, according to the prosecution, when the brothers of the deceased questioned her, she replied that she did not know the whereabouts of her husband. It is doubtful if this statement is admissible in evidence as it is a statement which does not accompany and explain an act other than the statement. Explanation 1 of S. S. Evidence Act provides that the word 'conduct' in that section docs not include statements unless those statements accompany and explain acts other than statements. Now, these pieces of the conduct of the appellant are not the conduct expected of an affectionate wife. It may be that the appellant was not really sorry for the death of her husband. But, these pieces of conduct would not warrant the inference that she had committed the murder of her husband.
11. Then remains the most important piece of evidence relied on by the prosecution, namely, the statement made by the appellant at the committal inquiry. At the committal inquiry, the prosecution did not examine any witnesses nor was any documentary evidence adduced by the prosecution. The committing Magistrate questioned the appellant on 18th December 1959 as to whether she had received the copies of the police statements etc., and she replied in the affirmative. The Roznama shows that on that day the case was adjourned to 24th December 1939. On 24th December 1959, the learned Magistrate put the following question to the appellant: 'Do you want to say anything regarding the present case?' The learned Magistrate recorded the answer given by the appellant. In the course of that answer, the appellant stated that she had known that Rahim Taju and Nura Amda would come to her room for murdering her husband and she was to open the door when there was a knock at the door. She stated that 4 or 5 days after she went to her father-in-law's house, at midnight she opened the back door on hearing a knock, and then Rahim Taju and Nura Amda came inside the room and murdered her husband. It is contended before us by the learned counsel for the appellant that as no evidence whether oral or documentary was adduced by the prosecution, it was not open to the learned Magistrate to examine the accused and that therefore the answers recorded by the learned Magistrate do not form part of a proper examination of the accused and are therefore not evidence in the case. The learned Government Pleader contends that even if no evidence had been adduced by the prosecution at the committal inquiry, it was open to the learned Magistrate to examine the accused under Section 342, Criminal Procedure Code, and it was also open to the learned Magistrate to record the answers given by the accused when he gave her an opportunity to be heard.
12. The procedure of commitment which is found in Section 207-A, Criminal Procedure Code, contemplates the following stages; (1) At the commencement of the inquiry, when the accused appears or is brought before the Magistrate, the Magistrate should satisfy himself that the documents referred to in Section 173 have been furnished to' the acgused, and if he finds that the accused has not been furnished with such documents or any of them, he should cause the same to be so furnished; (2) the Magistrate should then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the aetu.al commission of the offence alleged; and if the Magistrate ts of the opinion that it is necessary in the interests, of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also; (3) the Magistrate may examine the accused, if necessary, for the purpose of enabling him to explain any circumstances appearing in the evidence against him; f4) the Magistrate should give an opportunity to the prosecution and the accused of being heard; and' (5) the Magistrate should either commit the accused for trial or discharge him or to try the accused himself or send him for trial to another Magistrate.
13. Sub-section (6) of Section 207-A provides that the Magistrate may, if necessary, examine the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him. Sub-section (7) of Section 207-A provides as follows;
'When, upon such evidence being taken, such documents being considered, such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the. Magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged'.
14. The wording in sub-section (6) is similar to that found in sub-section (1) of Section 342, Criminal Procedure Code, which reads thus;
'For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused put such questions to him as the Court considens necessary, and shall, far the purpose aforesaid, question him generally on the case after the witnesses' for the prosecution have been examined and before he is called on for his defence'.
It is clear both from Sub-section (1) of Section 342 andSub-section (6) of Section 207-A, Criminal Procedure. Code, that in a committal inquiry the accused has to be examined only for the purpose of enabling him to explain the circumstances appearing in the evidence against him. The fact that the documents referred to in Section 173, Criminal Procedure Code have| been furnished to the accused does not make them evidence. Only copies are furnished to the accused vide Sub-section (4) of Section 173. Such copies can never be evidence. In fact, Section 207-A makes a clear distinction between the evidence and the documents referred to in Section 173 and given to the accused. No doubt, for the purpose of deciding whether the accused should be committed, for trial or discharged, the Magistrate may consider those documents in addition to the evidence, if any, adduced by the prosecution. The Criminal Procedure Code has made a special provision in allowing the Magistrate to refer to certain documents which are not evidence, but only for the purpose of deciding the question whether to commit the accused for trial or to discharge him. Such a special procedure has been made to expedite criminal inquiries and to reduce the delay caused by recording evidence at the stage of the criminal inquiry which precedes regular trial. Sub-sections (6) and (7) of Section 207-A emphasise the distinction between the evidence and the documents referred to in Section 173. It is therefore, clear that merely because the prosecution has given copies of certain documents to the accused, it cannot be said to have adduced evidence so as to enable the Magistrate to examine the accused under Section 342, Criminal Procedure Code or under Section 207-A (6). Section 342 makes it clear that the Court may put questions to the 'accused for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him. It is important to note the words used by the Legislature, namely, 'for the purpose of enabling him to explain any circumstances appearing in the evidence against him'. In view of the clear distinction made in Section 207-A between evidence and copies of documents referred to in Section 173 which may be given to the accused even before the inquiry commences, it is difficult to accept the view that for the purpose of examining the accused under Section 342, the copies of the documents, which may have been given to the accused before the commencement of the committal inquiry, are to be treated as evidence. Under Section 342, Criminal Procedure Code, it is obligatory to examine the accused after the witnesses for the prosecution, have been examined. This part of Section 342 would not apply where the prosecution has not examined any witness. The first part of Section 342 which permits the examination of an accused at any stage comes into play only where there are circumstances appearing in the evidence against an accused and cannot come into play where there is no evidence against the accused.
15. Sub-section (3) of Section 342 provides that when an accused person is examined, the answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, Or trial for any other offence which such answers may tend to show be has committed. It is also provided in Section 287, Criminal Procedure Code that theexamination, of the accused, if any, recorded by or before the committing Magistrate shall be tendered by the prosecutor and read as evidence at the trial.
16. In the instance case, no evidence, has been led by the prosecution. After, full and careful consideration of the question, my learned brother and myself are of the view that the examination of the accused under Section 342 is not permitted, at the Committal inquiry in cases, where no evidence has been led by the prosecution.
17. The learned Government Pleader has however, drawn out attention to the case, of Ramdas Kikabhai v. State, 61 Bom. LR 1173: (AIR 1960 Bom 124). That was also a case, where, while, answering a question put by the committing Magistrate, the accused stated that he had killed the deceased. The learned Chief. Justice, of the Bombay High Court observed that the provisions in Section 207-A draw a distinction, between, evidence and the documents referred to in Section 173, which also the Magistrate has to consider before deciding whether the accused should be committed for trial and that the expression 'evidence.' referred to is the evidence, if any, taken under Sub-section (4) and cannot include the documents referred to in Section 173. With great respect, we concur in this view. The learned Chief Justice of the Bombay High Court expressed the view that the section contemplates an examination of the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, that is, in the evidence, if any, taken under Sub-section (4) of Section 207-A. With great respect, We are of the same view. But, the learned Chief Justice of the Bombay High Court went further and observed that the statement made by an accused person when, he is given an opportunity of being heard and which, may have been recorded by the Magistrate would also be evidence. It was observed that the Magistrate, who is bound to give an opportunity to the accused of being heard, may for this purpose question the accused and may record his answers, and that therefore it is implicit in Section 207-A that, the Magistrate may examine the accused also for the purpose of enabling him to explain any circumstances appearing against him in the documents referred to in Section 173. The learned Chief Justice Of the Bombay High Court therefore concluded that while the Magistrate is not bound to question the accused and to ask him to explain any circumstances appearing in the documents referred to in Section 173, he may do so if he deems it proper, or necessary in the interests of justice and that if he examines the accused for this purpose and records' his statement, that statement would be admissible in evidence under Section 287, Criminal Procedure Code. After giving our very careful consideration and with profound respect and in all humility my learned brother and I are unable to concur, in this view.
18. Sub-section (6) of Section 207-A provides that both the prosecution and the accused should have an opportunity of being heard. Both the prosecution and the accused are in the same position in this matter. Both of them should have an opportunity of being heard and there is no reason to hold that the answers given, which may be mainly by wayof arguments, would have to be treated as evidence in the case of accused and not in the case of prosecution. Surely, the statement made by the prosecution when it is given an opportunity of being heard cannot become evidence in the case; nor can the statement made by the accused when he is given an opportunity of being heard be treated as evidence. When an opportunity is given to the prosecution and the accused of being heard, they generally argue the case. Sometimes, the accused may be represented by a pleader and an opportunity of being heard may be given to the pleader of the accused. It is also open to the accused when he is given an opportunity to be heard to address lengthy arguments on questions of law. It is, therefore, difficult to hold that the answers given by the accused when he is given an opportunity of being heard under Sub-section (6) of Section 207-A would be part of the examination of the accused. Section 287, Criminal Procedure Code, which refers to the examination of accused persons obviously has reference to the examination under Section 342. The reference in Section 207-A to the examination of the accused has also reference to the examination under Section 342, Criminal Procedure Code. To give the accused an opportunity to be heard is not the same thing as to examine the accused. Section 207-A provides that both the prosecution and the accused must be given an opportunity to be heard. When such opportunity is given, lengthy arguments may be addressed on facts and also on law. Presumably, the opportunity is first given to the prosecution and then to the accused. The opportunity given to the prosecution is clearly an opportunity to argue and to show that there is a prima facie case against the accused. After hearing the arguments of the prosecution, an opportunity is given to the accused. There cannot be an examination of the accused after hearing the arguments of the prosecution. Sub-section (7) of Section 207-A in terms provides that the opportunity to be heard is after the stage of the examination of the accused is over. It does not contemplate the examination of the accused at the committal inquiry in two stages. In fact, it shows clearly that the opportunity given to an accused person to be heard is different from and comes after the examination of ihe accused. With very great and profound respect and after giving most careful consideration, my learned brother and myself cannot accept the view that the statement made by an accused person when the Magistrate gives him an opportunity to be heard would form part of the evidence. It is not necessary to refer this question to a Full Bench, as we are satisfied that the guilt of the appellant has not been proved beyond reasonable doubt.
19. The appellant has stated that she had made a statement at the committal inquiry at the instance of one Vazir Raje, who told her that if she made a statement, she would be acquitted. The appellant was on bail during the committal inquiry and it may be that she was persuaded by Vazir Raje. The statement made at the committal inquiry conflicts with the alleged extra-judicial confession. She is an illiterate woman aged about 19 years. On the evidence, the guilt of the appellant is not proved beyond reasonable doubt and we feel that this is not a case where it would be safe to convictthe appellant. We, therefore, allow the appeal and set aside the conviction and sentence passed on the appellant. She should be set at liberty forthwith in this case.