Criminal Appeal No. 98 of 1998

5th October, 2002

Petitioner Counsel: Shri. R. M. DAGA
Respondent Counsel: Shri. S. J. JICHKAR

Cases Cited:
Shri. Cruz Pedro Pacheco Vs. State, 1999 All Mr (Cri) 477 [Para 4,8,20]
Madhusudan Singh Vs. State of Bihar, AIR 1995 SC 1437 [Para 9]
State of Gujarat Vs. Anirudsingh, 1997 (3) Crimes 82 (SC) [Para 10]
Suresh Pandurang Tigare Vs. State of Maharashtra, 1997 Cri.L.J. 157 [Para 11]
Tahsildar Singh Vs. State of U.P., AIR 1959 SC 1012 [Para 15,20]
Podda Narayan Vs. State of Andhra Pradesh, AIR 1975 SC 1252 [Para 16]
Hazari Lal Vs. The State (Delhi Admn), AIR 1980 SC 873 [Para 17]
Binay Kumar Singh Vs. State of Bihar, AIR 1997 SC 322 [Para 18]
Raghunandan Vs. State of U.P., AIR 1974 SC 463 [Para 19]

JUDGMENT

R. K. BATTA, J.:- The appellant, along with co-accused Habibkhan Pathan, was tried for the murder of Ataullakhan under Section 302 read with Section 34 of the Indian Penal Code. The prosecution had in all examined 11 witnesses in support of the charge. The trial Court, after placing reliance on the evidence of PW-1 (Ismailkhan), father of the deceased Ataullakhan, PW-7 (Julekhabi), mother of the deceased, PW-3 (Nilkanth) as also other evidence on record, convicted the appellant for the offence of murder and sentenced him to life imprisonment as also fine of Rs.5,000/-, in default, R.I. for two years. The co-accused Habibkhan was acquitted of the charge. The appellant who was in jail since 01.05.1995 i.e. the date of commission of the offence, was given benefit of set off under Section 428 of Cr.P.C.

2. The prosecution case, in brief, is that some days before the incident in question, there was exchange of words between the appellant and deceased Ataullakhan on account of construction of wall; that co-accused Habibkhan is said to have given threats to Ataullakhan, deceased in respect of which a complaint was filed by deceased Ataullakhan on 29.04.1995.

3. On 30th April 1995, Ataullakhan had slept in the cattle shed and his father, PW-1 (Ismailkhan) was lying on the bed in the sitting room. At about 11:30 p.m., PW-1 (Ismailkhan) heard shouts, "Oh Bapare Mar Gaya" of Ataullakhan. He immediately got up and took the battery in the hand and lighted the same through window and saw that the appellant giving blow with axe to Ataullakhan. He also saw co-accused standing there. He shouted and rushed towards Ataullakhan and his wife followed him. He saw the appellant running towards western side and the co-accused ran towards northern side. He found that the appellant was running with axe and Ataullakhan was lying in the pool of blood. He, accordingly, went to the Police Station and reported the matter. The appellant was arrested after mid-night and axe was recovered at his instance and his blood stained clothes were attached. The attached items were sent to Chemical Analyser, who found blood on the axe as also on the shirt of the appellant.

4. Learned Advocate for the appellant urged before us that the evidence in this case is only of interested witnesses, PW-1 (Ismailkhan) and PW-7 (Julekhabi), who are the parents of the deceased, besides extra judicial confession which, by itself, is not sufficient unless there is corroboration, that in fact PW-7 (Julekhabi) does not corroborate what has been stated by PW-1 (Ismailkhan); that both of them had gone out of the house together; that the trial Judge has asked a number of questions under Section 313 of Cr.C.P. which are not based upon evidence on record; and that the appellant has absolutely no motive to commit the crime. It is also urged by him that PW-1 (Ismilkhan) does not even state about the part of the body on which the axe blow was inflicted on the deceased. Relying upon the judgment of learned Single Judge in Shri Cruz Pedro Pacheco Vs. State (reported in 1999 ALL Mr (Cri) 477), it is urged by him that though PW-1 (Ismailkhan) was questioned in relation to contradictions/omissions vis-a-vis the First Information Report, yet merely because the same were not put to PW-1 (Ismailkhan), it should not preclude the Court from using the said contradictions/omissions in favour of the accused and the benefit obviously has to go to the appellant. He, therefore, contends that the conviction and sentence of the appellant is required to be set aside.

5. Learned A.P.P., on the other hand, has urged before us that there is ample evidence in the nature of deposition of eye witnesses, extra judicial confession to independent witness PW-3 (Nilkanth), recovery of blood stained clothes as also axe at the instance of the appellant, which in the circumstance, is sufficient to sustain the conviction recorded by the trial Judge.

6. The prosecution evidence consists of two eye witnesses who are parents of the deceased; extra judicial confession made by the appellant to PW-3 (Nilkanth), the recovery of blood stained shirt and axe at the instance of the appellant, besides the evidence of PW-9 (Ananda) and non-explanation of blood by the appellant on his shirt.

7. The prosecution has examined two eye witnesses, namely PW-1 (Ismailkhan) and PW-7 (Julekhabi) who are the parents of the deceased. The incident took place at about 11:30 p.m. and obviously at that point of time to independent witnesses are expected. There is no rule of law that the close relations of the deceased cannot be believed though as a rule of prudence their testimony is required to be scrutinized cautiously and testimony of such witnesses cannot be discarded only on the ground of relationship. Accordingly, we shall first examine the testimony of the eye witnesses.

8. PW-1 (Ismailkhan) has stated that few days prior to the incident , there was exchange of words between the appellant and Ataullakhan on account of construction of wall. Deceased Ataullakhan had also lodged report of threats to the Police Station by the co-accused Habibkhan. The appellant is the son of cousin of PW-1 (Ismailkhan) and his residential house is behind the cattle shed, where the incident in question took place. PW-1 (Ismailkhan) has stated that, he along with his family, had taken meals on 30.04.1995 and was chit-chatting with his family members up to 10:30 p.m. He was lying on the bed in the sitting room, whereas deceased Ataullakhan had slept in the cattle shed. The cattle shed is in front of the sitting room. At about 11:30 p.m., he heard the shouts of deceased, "Oh Bapare Mar Gaya". Immediately, he got up, took battery in the hand and lighted the same through window. At that time, he saw the appellant giving axe blow to deceased Ataullakhan and the co-accused standing there. He has also stated that the appellant thereafter ran with the axe and he saw Ataullakhan in the pool of blood. He immediately reported the matter to the police. In cross-examination, he admitted that it was dark, but he had lighted the battery and he had seen the appellant giving the axe blow to deceased Ataullakhan. He stated that he had told the police that he saw appellant giving blow with axe to Ataullakhan and that he had lighted the battery and saw the appellant in the light of the battery. He has also stated that because of the incident he was very much frightened and was not able to recollect the whole incident when the matter was reported to the police. He, further, confirms that he always used to keep battery with him at night time. He also confirms that the police recorded his additional statement on 02.05.1995. It was suggested to him that the appellant was present in the house of Gulkha where marriage ceremony was scheduled, but the same was denied by this witness. The contention of learned Advocate for the appellant is that though this witness was questioned about the seeing of the axe blow by this witness to Ataullakhan deceased, as also regarding lighting of the battery and seeing the appellant in the light of the battery, yet PW-1 (Ismailkhan) was not confronted with the F.I.R. or with the additional police statement recorded on 02.05.1995. He further contends that on account of these omissions to confront PW-1 (Ismailkhan) with the F.I.R. and additional statement, the benefit should go to the accused and as we have already stated, for this purpose, reliance has been placed by the learned Advocate for the appellant on judgment of learned Single Judge in Shri. Cruz Pedro Pacheco Vs. State (cited supra). Learned Advocate for the appellant has also stated that in fact the said omissions have been put to Investigating Officer (PW-10). The omissions were put to Investigating Officer (PW 10) who stated that Ismailkhan had not stated before him that he saw accused No.1 giving actual blow or he saw accused in the light of battery. Additional statement of PW-1 was recorded by 10 (PW-11) on 02.05.1995. However, after going through he evidence of PW-11 (IO), no such omissions have been put to him and on the contrary PW-11 (IO) has stated that the complainant Ismailkhan (PW-1) had stated before him that he had seen the accused person in the light of battery. Be that as it may, we shall like to examine the submissions made by learned Advocate for the appellant in the light of law on the subject. It is now well settled that F.I.R. is not substantive piece of evidence of facts stated therein, but it is an evidence to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 155 and Section 145 or is admissible under Section 32 (1) of the Evidence Act. The F.I.R. cannot be used as a substantive piece of evidence nor the contents of the report can be used to furnish testimony against the accused.

9. The Apex Court in Madhusudan Singh and another Vs. State of Bihar (reported in AIR 1995 SC 1437) has laid down in para 5, that the F.I.R. by itself is not a substantive piece of evidence; it can be used to either contradict or to corroborate the maker thereof in the manner provided under the Evidence Act. The Apex Court found that there was nothing on record from where it was possible to hold that the allegations made in the F.I.R. were at all substantiated at the trial by any oral evidence and as such it was held that the allegations contained in the F.I.R. had not been proved at the trial.

10. The Apex Court in State of Gujarat Vs. Anirudsingh and another (reported in 1997 (3) Crimes 82 (SC) has also laid down that F.I.R. is never treated as substantive piece of evidence. In para 21, it has been laid down by the Apex Court:-

"It is now well settled position of law vide this Court's decision is Nizar Ali Vs. State of U.P. that the first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 157 of the Evidence Act or to contradict it under Section 145 of that Act. It cannot be used as evidence against the maker at the trial, if he himself becomes an accused; nor to corroborate or contradict other witnesses. In Dharma Rama Bhagare Vs. The State of Maharashtra, the same principle was reiterated. It was held therein that the first information report is never treated as substantive piece of evidence. It can only be used for corroborating or contradicting its maker when he appears in Court as a witness. Its value must always depend on the facts and circumstances of a given case. The first information report can only discredit the testimony of the maker thereof. It can by no means be utilised for contradicting or discrediting the other witnesses who obviously could not have any desire to spare the real culprit and to falsely implicate an innocent persons. Prosecution case cannot be thrown out on the mere ground that in the first information report an altogether different version was given by the informant."

11. A Division Bench of this Court in Suresh Pandurange Tigare Vs. State of Maharashtra (1997 Cri.L.J.157) has also laid down that it is well settled that the F.I.R. can be used to contradict or corroborate the maker and is not substantive evidence. The substantive evidence are the statements of the witnesses in the Court.

12. We shall, at this stage, refer to the position of statements recorded by the police under Section 161 of Cr.P.C. Section 161 Cr.P.C. empowers the police to examine witnesses in the course of investigation and to record their statements. Section 162 provides the mode in which the statements recorded by the police may be used at the trial. Section 162 of Cr.P.C. reads as under:-

162. Statements to police not to be signed: Use of statements in evidence. (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any inquiry or trial in respect of any offence under investigation at the time when such statement was made.

Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.

Explanation. - An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."

Section 162 Cr.P.C. lays down that when any witness who was examined by the police is called for the prosecution at an enquiry or trial in respect of any offence under investigation, his previous statement or record thereof shall not be used for any purpose except;

(i) the contradiction of such witness by the accused under Section 145 of Evidence Act;

(ii) the contradiction of such witness also by the prosecution, but with the leave of the Court; and

(iii) the re-examination of witness, if necessary.

Thus, Section 162 of Cr.P.C. absolutely bars the use of the statements of witnesses before the Police except for the limited purpose of contradiction of prosecution witnesses.

13. The expression, "if duly proved" in the proviso to Section 162(1) Cr.P.C. clearly shows that the record of the statements cannot be admitted in evidence straightaway but they must be proved for purpose of contradiction either by eliciting admission from witness during cross-examination or that the officer before whom the statements were made should ordinarily be examined as to any alleged statement or omitted statement that is relied upon by the accused for the purpose of contradicting the witness.

14. It is pertinent to note that Section 145 of the Evidence Act deals with contradiction of a witness during his cross-examination by the previous inconsistent statement. Section 145 of the Evidence Act in clear terms provides that the witness can be cross-examined without the statement being shown to the witness but if the previous statement is to be used for the purpose of omissions or contradictions then his attention must be drawn to that part of the statement which deals with contradictions/omissions amounting to contradictions. The witness must, therefore, be given opportunity of explaining or reconciling his statement and if this opportunity is not given to him, the contradictory writing cannot be placed on record as evidence.

15. The question of contradicting witnesses by confronting them with their previous statement as also procedure thereof has been laid down in detail by the Apex Court in Tahsildar Singh and another Vs. State of U.P. (reported in AIR 1959 SC 1012), as under:-

"The procedure prescribed for contradicting a witness by his previous statement made during investigation, is that, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The proviso to S.162 only enables the accused to make use of such statement to contradict a witness in the manner provided by S. 145 of the Evidence Act. It would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of S.145 of the Evidence Act. The argument that it would not be possible to invoke the second part of S.145 of the Evidence Act without putting relevant questions under the first part thereof cannot be accepted. The second part of S.145 of the Evidence Act clearly indicates the simple procedure to be followed. To illustrate: A says in the witness-box that B stabbed C; before the police he had stated that D stabbed C. His attention can be drawn to that part of the statement made before the police which contradicts his statement in the witness-box. If he admits his previous statement, no further proof is necessary; if he does not admit, the practice generally followed is to admit it subject to proof by the police officer. On the other hand, if the witness is asked "did you say before the police officer that you saw a gas light?" and he answers "yes", and then the statement which does not contain such recital is put to him as contradiction, the procedure involves two fallacies; one is, it enables the accused to elicit by a process of cross examination what the witness stated before the police officer. If a police officer did not make a record of a witness's statement, his entire statement could be brought on record. This procedure, therefore, contravenes the express provision of S. 162 of the Code. The second fallacy is that there is no self contradiction of the primary statement made in the witness box, for the witness-box, for the witness has yet not made on the stand any assertion at all which can serve as the basis. The contradiction, under the section, should be between what a witness asserted in the witness-box and what he stated before the police officer, and not between what he said he had stated before the police officer and what he actually made before him. In such a case the question could not be put at all; only questions to contradict can be and the question here posed does not contradict; it leads to an answer which is contradicted by the police statement.

Section 145 of the Evidence Act indicates the manner in which contradiction is brought out. The cross-examining Counsel shall put the part or parts of the statement which affirms the contrary to what is stated in evidence. This indicates that there is something in writing which can be set against another statement made in evidence. If the statement before the police officer and the statement in the evidence before the Court are so inconsistent or irreconcilable with each other that both of them cannot co-exist, it may be said that one contradicts the other.

The word "cross examination" in the last line of the first proviso to S. 162 cannot be understood to mean the entire gamut of cross-examination without reference to the limited scope of the proviso, but should be confined only to the cross-examination by contradiction allowed by the said proviso." (emphasis supplied).

16. The Apex Court in Podda Narayan and others Vs. State of Andhra Pradesh (reported in AIR 1975 SC 1252) has dealt with the question of use of statements recorded by police during investigation under Section 162 of Cr.P.C. The procedure for the same has been dealt with by the Apex Court in para 10 of the said judgment, wherein it is laid down that the statement recorded by the police during investigation is not at all admissible in evidence and the proper procedure is to confront the witnesses with the contradictions when they are examined and then ask the Investigating Officer regarding those contradictions. Thus, in order that part of the police statement becomes admissible, it is essential that the attention of the witness must be drawn to that part of the statement and he should be given an opportunity to explain the same and then ask the Investigating Officer regarding those contradictions/omissions amounting to contradictions.

17. The Apex Court in Hazari Lal Vs. The State (Delhi Admn.) (reported in AIR 1980 SC 873) has laid down as under:

"Statements made by witnesses in the course of investigation cannot be used as substantive evidence. Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, expect, for the purpose of contradicting the witness in the manner provided by Section 145 of the Evidence Act. Where any part of such statement is so used any part thereof may also be used in the re-examination of the witness for the limited purpose of the explaining any matter referred to in his cross-examination. The only other exception to this embargo on the use of statements made in the course of any investigation relates to the statements falling within the provisions of Sec. 32(1) of the Evidence Act or permitted to be proved under Section 27 of the Evidence Act. The definition of "proved" is Section 3 of the Evidence Act does not enable Court to take into consideration matters, including statements, whose use is statutorily barred."

18. The Apex Court in Binay Kumar Singh Vs. State of Bihar (reported in AIR 1997 SC 322) has dealt with the question that the credit of a witness can be impeached by proof of any statement which is inconsistent with any part of his evidence in Court. In this respect, the Apex Court has laid down:-

"... This principle is delineated is Section 155 (3) of the Evidence Act and it must be borne in mind when reading Section 145 which consists of two limbs. It is provided in the first limb of Section 145 that a witness may be cross-examined as to the previous statement made by him without such writing being shown to him. But the second limb provides that "if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." There is thus a distinction between the two vivid limbs, though subtle it may be. The first limb does not envisage impeaching the credit of a witness, but it merely enables the opposite party to cross-examine the witness with reference to the previous statements, made by him. He may at that stage succeed in eliciting materials to his benefit through such cross-examination even without resorting to the procedure laid down in the second limb. But if the witness disowns having made any statement which his inconsistent with his present stand his testimony in Court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of Section 145. In the instant case the attention of the witness was not drawn to the statement attributed to him as recorded by a member of the Board of Revenue of the State of Bihar who conducted an official enquiry into the administrative lapses involved in this incident. The evidence of the witness that he gave statement at the venue of occurrence and that he had not given any other statement earlier thereto,cannot be rejected." (emphasis supplied).

19. At this stage, we may also refer to judgment of the Apex Court in Raghunandan Vs. State of U.P. (reported in AIR 1974 SC 463) which deals with powers of the Court under Section 165 of Evidence Act vis-a-vis Section 162 of Cr.P.C. The Apex Court has laid down :-

"It is true that the ban imposed by Section 162, Cr.C.P. against the use of a statement of witness recorded by the Police during investigation, appears sweeping and wide. But, at the same time,the powers of the Court, under Section 165 of the Evidence Act, to put any question to a witness,are also couched in very wide terms authorising the Judge "in order to discover or to obtain proper proof of relevant facts" to "ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant". The language of Section 162, though wide, is not explicit or specific enough to extend the prohibition to the use of the wide and special powers of the Court to question a witness, expressly and explicitly given by S.165 of the Evidence Act in order to secure the ends of justice. A narrow and restrictive construction put upon the prohibition in S.162 so as to confine the ambit of it to the use of statements by witnesses by parties only to a proceeding before the Court, would reconcile or harmonize the two provisions and also serve the ends of justice. Section 162 Cr.P.C. does not impair the special powers of the Court under S.165, Evidence Act.

Therefore, where the trial Court considered evidence of a particular witness important enough to examine him under Section 540, Cr.P.C., it could and should have itself made use of the statement made by him during the course of the investigation for testing its worth putting alleged contradiction to the witness on a matter of some importance in the case." (emphasis supplied).

20. In the light of the above position of law, the submission made by the learned Advocate for the appellant, which is based upon the judgment of the learned Single Judge of this Court in Cruz Pedro Pacheco Vs. State (cited supra) has to be examined. From the above position of law, it is crystal clear that if any part of previous statement of the witness recorded under Section 162, Cr.P.C. or any part of the F.I.R. recorded under Section 154 Cr.P.C. is to be used for the purpose of contradicting witness/informant, the attention of the witness or the informant as the case may be shall be drawn to the said part by the Advocate for the accused in terms of Section 145, Evidence Act and in terms of observations of the Apex Court in Tahsildar's case (supra). The same is also required to be put to the Investigating Officer. Unless this procedure is followed, the previous statement cannot be used for any purpose on account of ban contained under Section 162, Cr.C.P. The proposition laid down by the learned Single Judge that if this procedure is not followed, it does not mean that the contradictions can be ignored, is not a correct proposition. The learned Single Judge has, of course, pointed out the witness must not only be confronted with the contradiction but his attention should also be drawn to the relevant portion and his explanation should also be obtained in that regard. In the case before the learned Single Judge neither the witness was confronted with the contradictory portion nor was he given opportunity to explain the same, but the same was proved thought I.O. There is no doubt that under Section 165 of the Evidence Act, this Court has ample powers but unless the same are exercised, the part of the statement which is not proved cannot be utilized for any purpose and not even for the purpose of benefit to the accused. Under proviso to Section 162 read with Section 145, it is primarily the duty of the Advocate for the defence to put the contradictions/omissions amounting to contradictions in the previous statement of the witness. Besides Section 162, Cr.P.C., a reading of Section 145 of Evidence Act also lead us to the same conclusion. Section 145 of the Evidence Act reads as under:

"145. Cross-examination as to previous Statements in Writing - A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing,his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

Section 145 provides for cross-examination as to the previous statement in writing or reduced into writing which obviously is required to be done by Advocate for the accused. Therefore, the broad proposition laid down by the learned Single Judge that even if contradictions/omissions amounting to contradictions are not proved in accordance with procedure contemplated in law, the same can be used for the benefit of the accused, is with due respect not correct and we are unable to subscribe to the said view point.

21. The evidence of PW-1 (Ismailkhan), therefore, cannot be rejected inasmuch as he has stated in the Court that he has seen the appellant giving axe blow to his son Ataullakhan and that the appellant ran with the axe. The evidence of this witness not only gate corroboration from evidence of his wife PW-7 (Julekhabi) but also from the evidence of PW-3 (Nilkanth) before whom the appellant has made extra judicial confession as also recovery of blood stained clothes and axe at the instance of the appellant.

22. PW-7 (Julekhabi) has stated that prior to the incident, there was quarrel between them and the appellant about construction of wall. The said quarrel had taken place two-three days prior to the incident. She also speaks of his son Ataullakhan having reported the matter to the police about the threats given to him. She also confirms that her husband PW-1 (Ismailkhan) was sleeping in the sitting room of the house and Ataullakhan, deceased had slept in the cattle shed. She was sleeping in the room adjacent to sitting room. She heard the shouting of her husband and got up. Her husband opened the door and came out of the house and she followed him. According to her, she saw the appellant holding axe in the hand and running towards the house of Raja. Learned Advocate for the appellant has stated that if PW-1 (Ismailkhan) and PW-7 (Julekhabi) had gone together then both of them should have seen the incident, whereas only PW-1 (Ismailkhan) says that he saw the assault of axe by the appellant on the deceased, but PW-7 (Julekhabi) does not say so. Both PW-1 (Ismailkhan) and PW-7 (Julekhabi) have stated that PW-7 (Julekhabi) had followed her husband. Even if it was stated that they had gone together,it cannot be taken as a military march that both of them were exactly going step by step together. In the case under consideration, PW-7 (Julekhabi) has followed her husband. Moreover, PW-1 (Ismailkhan) has stated that he saw the incident through the window that is to say before going out of the house and obviously when they went out they saw the appellant holding axe in his hand and running towards western side. There is thus no merit in the contention of the appellant. The evidence of this witness, therefore, cannot be discarded.

23. The prosecution case gets further support from the evidence of PW-3 (Nilkanth), who has stated that prior to two to two and half years, the appellant was in his service. On the date of the incident, at about 11:30 p.m., he had slept in the sitting room of his house and somebody knocked the door and he opened the door and saw the appellant who told him that he had committed murder and four five persons were chasing him. According to PW-3 (Nilkanth), the appellant was talking in frightened condition. He told the appellant to go towards the side of chowky and he closed the door. In cross-examination, he reiterated that the appellant was saying that he had committed the murder. Learned Advocate for the appellant has urged before us that the evidence of this witness was recorded after two-three days of the incident, but this witness has stated that on the next morning at about 8:30 to 9:00 a.m., he had to go to Mahagaon and he had returned back after two days. The evidence of this witness relating to extra judicial confession made by the appellant could not be shaken during cross-examination. In fact, a false suggestion was given to this witness that the appellant was never in the service of PW-3 (Nilkanth). The appellant in answer to question 15 in his 313 statement, in fact admits that it is true that he was in service of PW-3 (Nilkanth).

24. The prosecution case also gets further support from the evidence of PW-9 (Ananda), who has stated that on the date of incident at about 11:00 to 11:30 p.m., he head shouts "Mar Gaya Re Bap". The shouts were of Ataullakhan. He got up after hearing the shouts saw complainant and his wife were shouting and weeping. According to this witness, the cattle shed of the complainant is in front of his house. He has further stated that the complainant was shouting and saying that the accused No.1 murdered his son and rushed towards Police Chowky. This evidence is relevant under Section 6 of the Evidence Act. This evidence cannot be discarded and there is no reason to disbelieve this witness.

25. The deceased was examined by PW-4 (Dr. Laxman), who found four injuries on his person and his observations are as under:-

1. Bony deep injury 2 and ½" x 1" V shaped above right ear.

2. Bony cut injury 2" x ½" above injury No.1 on right parietal bone.

3. Bony deep cut injury on right parietal bone above wound No.2 of size 2 and ½" x ½".

4. Bony deep cut injury on right temporal bona above wound No.3 of size 2" x ½".

There are multiple fractures of right parietal and right temporal bona and brain matter was coming out from injury.

All injuries were ante mortem and their age is about ¼th to half hour before death. The above injuries were caused by sharp and hard weapon. In my opinion the probable cause of death due to hemorrhagic and neurogenic shock with cardio respiratory arrest caused by multiple injuries on right side of head and brain matter."

26. According to the doctor injuries are possible by axe (Article 1) which was sent to him for giving opinion. He had also collected blood sample from the body of the appellant and handed over the same to the police. According to him, the injuries described in the post-mortem are necessarily the effect of giving blow with great force.

27. In addition to this, there is recovery of axe at the instance of the appellant and also the attachment of clothes from the person of the appellant. The appellant was arrested on the same night at about 12:30 a.m. and from his person, shirt was attached, upon which blood stains were found. According to the Chemical Analyser, the said shirt (Exh.2) had few blood stains ranging from about 0.1 to 2 cm in diameter located mostly on front portion and the blood group of the same was "AB". It may be mentioned that the blood group of the deceased was "AB", but the blood group of the appellant was "B". Therefore, presence of "AB" group on the clothes of the appellant, which were attached immediately after the incident within an hour or so having blood stains of "AB" group, connects the appellant with the crime. The appellant in his 313 statement has denied that his shirt (Exh.2) had any blood stains whereas the Chemical Analyser has found blood stains of "AB" group on the same. The appellant has thus taken a false defence which is an additional link to prove his culpability in the matter. The appellant has also taken plea of alibi which was not substantiated by him.

28. The police had also recovered the axe at the instance of the appellant and in this respect Panch PW 2 (Prakash Jaiswal) has been examined who has stated that on interrogation by the police, the appellant agreed to produce the axe. Accordingly, he took the police party to open space where heap of cow dung was lying. In the light of the battery, the axe was found lying there and were blood stains over the axe. There were also stains of cow dung over the axe. According to PW-4 (Dr. Laxman), injuries are possible by the said axe (Article 1). The said axe was sent to the Chemical Analyser who found that the same was stained with the blood on blade and handle. The blood group on the same could not be determined. Nevertheless, the existence of blood on the axe which was used in this assault by itself is an incriminating circumstance against the appellant.

29. The above evidence, in our opinion, proves beyond any iota of doubt that the appellant has murdered the deceased. The trial Court has, therefore, rightly found him guilty under Section 302 of I.P.C. and sentenced him to life imprisonment. Nevertheless, in default of payment of fine of Rs. 5,000/-, he has been sentenced to suffer further R.I. for two years which, in our opinion, is highly excessive and calls for interference. Therefore, in default payment of fine of Rs. 5,000/-, we order that the appellant shall undergo simple imprisonment for six months. The fine, if recovered, shall be paid to the complainant Ismailkhan (PW.1). Except for the modification in default of payment of fine, we do not find any merit in this appeal. The appeal is accordingly dismissed with the modification referred to above. The conviction and sentence of the appellant is confirmed except for the modification in default of payment of fine, which is deduced from two years' R.I. to six months simple Imprisonment.

Appeal dismissed