Criminal Appeal No. 183 of 2001

10th August, 2005

Petitioner Counsel: Mr. A. P. TATHOD
Respondent Counsel: Smt. N. S. JOG

Cases Cited:
Aghnoo Nagesia Vs. State of Bihar, AIR 1966 SC 119 [Para 4,5,11,12,13,14]
Chhote Lal Vs. State, AIR 1968 Allahabad 37 [Para 4,13]
Khatri Hemraj Amulakh Vs. State of Gujarat, AIR 1972 SC 922 [Para 4,13]
Vistari Narayan Shebe Vs. State of Maharashtra, 1978 Mh.L.J. 244 [Para 4,13]
Madhavgir s/o. Gururatangir Vs. State of Maharashtra, 2003 ALL MR (Cri) 2219 [Para 5,14]
AIR 1957 SC 366 [Para 13]

JUDGMENT

A. P. LAVANDE, J.: - The appellant assails the judgment and order dated 02-06-2001 passed by the IInd Additional Sessions Judge, Akola in Session Trial No.80/2000 convicting the appellant for offence under Section 302 of the Indian Penal Code and sentencing him to undergo R.I. for life and to pay fine of Rs.500/-, and in default of payment of fine to undergo further R.I. for two years.

2. Briefly, the case of prosecution is as follows :-

On 18-01-2000 at about 2.00 p.m. the appellant committed murder of his wife Rekha by assaulting her on vital parts of the body with the help of scissors. The offence was committed by the appellant after he saw Gajanan, the brother-in-law of Rekha, indulging in obscene acts with Rekha. The appellant for some time had feeling that Rekha and Gajanan were having amorous relationship. On the day of incident at about 9.00 a.m. Gajanan Londhe, the brother-in-law of Rekha came to their place at Keliveli. They took food together and thereafter Rekha dropped her daughter Jyoti in Anganwadi while Vitthal went to play. The mother of the appellant had gone to the field for work. The accused in order to confirm his doubt about the amorous relationship between Rekha and Gajanan, told Gajanan and his wife that he was going to his field for some work but, in fact, he did not go to the field but hid himself in the bathing place which was having thatched walls. After some time when he peeped into the house through an opening in the thatched wall, he saw Gajanan and his wife indulging in lascivious acts. After some time Gajanan left the house and went away. Thereafter the appellant inquired from his wife about her conduct and also informed her that he had seen her and Gangaram indulging in obscene acts. Rekha told him that he was telling lie and was making insinuation. Thereupon there was physical wrangle and she pushed him aside. Being enraged, the appellant picked up scissors lying on the sewing machine and repeatedly stabbed on her back, buttock, shoulder and private parts. On account of the injuries suffered, Rekha bled profusely and thereafter died on the spot. Vetal went to Police Station, Dahihanda and lodged report (Ex.24) at about 5.00 p.m., which was reduced into writing by Sukhramsingh-ASI (PW-4). Pursuant to the report lodged by the appellant himself, Crime No.7/2000 was registered and the appellant was arrested. At the time of his arrest, the appellant was wearing Paijama and Nehru shirt, which were stained with blood. After registering the offence, a message was conveyed to PSI Bhavsar that offence of murder has been registered against the appellant. At the relevant time, PSI Bhavsar was at Akola. After receiving the message, he proceeded to the spot and asked the Officer-in-charge of Police Station to send case diary directly to the spot. Accordingly, PSI Bhavsar arrived at the spot. He made panchanama of the spot in presence of the witnesses. The articles found at the spot of incident were seized under seizure memo. The dead body was then sent for post-mortem examination, which was conducted by Medical Officer Dr. Amol Ghorpade (PW-5) on 19-01-2000. Dr. Ghorpade found 92 stab injuries on the body of the deceased Rekha. On 19-01-2000 PSI Bhavsar (PW-11) seized clothes worn by the appellant which were stained with blood. After the post-mortem examination, all the articles seized along with clothes of the deceased were sent for chemical analysis. After conducting the investigation, the charge-sheet was filed against the appellant under Section 302 of the Indian Penal Code. The case was committed to the Court of Sessions. In Sessions Trial No.80/2000 the prosecution examined in all 11 witnesses and also produced several documents to prove the case against the appellant. After recording the statement of the appellant under Section 313 of Code of Criminal Procedure and hearing the arguments of both sides, the trial Court convicted the appellant for having committed murder of his wife Rekha and sentenced him as above.

3. Mr. Tathod, learned counsel appearing for the appellant submitted that the trial Court ought not to have relied upon the report (Ex.24) since it was a confessional report lodged by the appellant/accused and as such was inadmissible-in-law. He further submitted that the trial Court erred in relying upon the confessional report lodged by the appellant and putting the contents thereof to the appellant/accused in his statement under Section 313 of Code of Criminal Procedure. He further submitted that if the confessional report is excluded from the consideration, there is absolutely no evidence brought on record by the prosecution to prove that the appellant committed murder of his wife Rekha. He further submitted that the explanation given by the appellant/accused by way of answer to question No.31 put to him in the statement under Section 313 of Code of Criminal Procedure, is a plausible explanation and therefore, no adverse inference can be drawn against the appellant/accused for having lodged report at about 5.00 p.m. at Police Station on the day of incident.

4. In support of his submissions, learned counsel relied upon the following authorities :

1. AIR 1966 SC 119 (Aghnoo Nagesia Vs. State of Bihar);

2. AIR 1968 Allahabad 37 (Chhote Lal Vs. State);

3. AIR 1972 SC 922 (Khatri Hemraj Amulakh Vs. State of Gujarat); and

4. 1978 Mh.L.J. 244 (Vistari Narayan Shebe & Anr. Vs. State of Maharashtra & Anr.).

5. Per contra, Smt. Jog, learned Additional Public Prosecutor appearing for the respondent submitted that the evidence on record clearly establishes the offence of murder beyond reasonable doubt against the appellant. She further submitted that the confessional report lodged by the appellant himself can be used to prove his conduct and is admissible to that extent. She further submitted that the circumstance that the clothes worn by the appellant at the time of his arrest on the day of incident had blood stains clearly implicates the appellant in the commission of the offence. She further submitted that considering the entire evidence brought on record by the prosecution, the only conclusion that can be drawn is that appellant had motive to commit the offence and had actually committed the murder of his wife Rekha. In support of her submissions, she relied upon the following authorities :-

1. AIR 1966 SC 119 (Aghnoo Nagesia Vs. State of Bihar); and

2. 2003 ALL MR (Cri) 2219 (Madhavgir s/o. Gururatangir Vs. State of Maharashtra).

6. We have considered the submissions made by learned counsel appearing for the appellant as well as learned Additional Public Prosecutor for the respondent. We have perused the record and gone through the authorities relied upon by both sides.

7. Having regard to the rival submissions, the following points arise for consideration in the present appeal :-

1. Whether the death of Rekha was homicidal?; and

2. Whether the appellant assaulted his wife Rekha with scissors causing her injuries with the intention to cause her death?

8. In so far as the death of Rekha is concerned, the appellant has not seriously challenged the fact of homicidal death of Rekha. On the contrary, in his statement under Section 313 of the Code of Criminal Procedure, he stated that at about 4.30 p.m. on the date of incident when he came home he was told by the people gathered in front of his house that somebody had killed his wife and that he had seen the dead body. The evidence of Dr. Amol Ghorpade (PW-5) also confirms that the death of Rekha was homicidal. Amol Ghorpade (PW-5), who was working as Medical Officer at District Hospital, Akola at the relevant time has deposed that on 19-01-2000 he conducted post-mortem examination on the dead body of Rekha and found 92 stab wounds on the body spread over buttock, shoulder, neck, abdomen, thighs and on the private parts. There were several abrasions on several parts of the body and all the injuries found on the deceased were ante-mortem and caused by sharp and pointed weapon. According to him, the injuries could have been caused by means of scissors (Article 5) which was shown to him. He further deposed that on internal examination he found lacerated injury on left lung and the left lung had collapsed. Left external jugular vein was found punctured with presence of haematoma in the left region. He opined that the multiple stab wounds in the scapular region and in the neck individually were sufficient to cause death. The evidence of this witness clearly establishes that the death of Rekha was homicidal. Dr. Ghorpade in his deposition also gave the details of the injuries found on the dead body of Rekha. The evidence of Dr. Ghorpade is corroborated by inquest panchanama (Ex.52) which has been proved by Ganesh Bhavsar (PW-11) which also confirms that the dead body of Rekha was found in house on 18-01-2000 with several stab injuries. Therefore, we have no hesitation to answer first point in the affirmative.

9. To prove the complicity of the appellant in the commission of the crime, the prosecution has mainly relied upon two circumstances i.e. the confessional report lodged by the appellant/accused himself at Police Station, Dahihanda at about 5.00 p.m. on 18-01-2000 and that the clothes worn by the appellant at the time of his arrest on 18-01-2000 which were seized on 19-01-2000 were stained with blood of "B" group which is the blood group of the deceased.

10. In so far as the confessional report lodged by the appellant is concerned, the trial Court has relied upon the same and held that although the confession made by the appellant to the police is not admissible, in so far as the admissions made in the report are concerned, the same can be used against the appellant/accused. The trial court has held that since the appellant/accused cannot be examined as witness to prove the report (Ex.24), the evidence given by Sukhramsingh (PW-4) and recitals in the report can be used as evidence against the appellant/accused as the maker of it, disclosing all other factors that disclosed his conduct, his mental set up, the motive etc. In the report lodged by the appellant, he has, inter alia, stated that his wife Rekha used to go to Akola on some pretext to the house of Gajanan Londhe, her sister's husband. He had suspicion about illicit relations between them and the suspicion was based on exchange of talks and glances between his wife and Gajanan. In the said report he has further stated that on 18-01-2000 in the morning said Gajanan came to his house at Keliveli. Both of them had dinner together at about 10.00 O'clock his wife reached daughter Jyoti at Anganwadi and at that time son Vitthal had gone out for playing and mother had gone to the field for work. At that time he told his wife that he was going to the field for work but actually did not go to the field but remained at home and kept watch on both of them and after some time when he looked through crevice of the wall of bath-room, he saw both of them indulging in obscene acts. After some time Gajanan left and thereafter he entered the house and asked his wife about her conduct. Rekha denied her involvement. Thereafter scuffle took place between them in which she pushed the appellant. The appellant picked up scissors kept on the sewing machine and gave blows on different parts of the body like back, buttock, shoulder, and private parts of his wife which caused serious injuries resulting in her death.

11. The question, therefore, which arises for consideration is whether the trial Court was justified in placing reliance on the report to prove the complicity of the appellant in the commission of the crime. At this stage, it will be appropriate to refer to the judgment of the Apex Court reported in AIR 1966 SC 119 (Aghnoo Nagesia Vs. State of Bihar). In the said case, the Apex Court has considered the scope of the admissibility of confessional report lodged by the accused. It would be appropriate to reproduce paragraphs 11 to 18 of the said judgment. They are as under :-

"11 : The Indian Evidence Act does not define "confession". For a long time, the Courts in India adopted the definition of "confession" given in Art.22 of Stephen's Digest of the Law of Evidence. According to that definition, a confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. This definition was discarded by the Judicial Committee in Pakala Narayanaswami Vs. Emperor, 66 Ind App 66 at p.81 : (AIR 1939 PC 47 at p.52). Lord Atkin observed :

"no statement that contains self exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession."

These observations received the approval of this Court in Palvinder Kaur Vs. State of Punjab (1), 1953 SCR 94 at p.104 : (AIR 1952 SC 354 at p.357). In State of U.P. Vs. Deoman Upadhyaya, (1961)1 SCR 14 at p.21 : (AIR 1960 SC 1125 at pp.1128-1129), Shah, J., referred to a confession as a statement made by a person stating or suggesting the inference that he has committed a crime."

"12 : Shortly put, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. If an admission of an accused is to be used against him, the whole of it should be tendered in evidence, and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only. See Hanumant Govind Vs. State of M.P., 1952 SCR 1091 at p.1111 : (AIR 1952 SC 343 at p.350) and 1953 SCR 94 : (AIR 1952 SC 354). The accused is entitled to insist that the entire admission including the exculpatory part must be tendered in evidence. But this principle is of no assistance to the accused where no part of his statement is self-exculpatory, and the prosecution intends to use the whole of the statement against the accused."

"13 : Now, a confession may consist of several parts and may reveal that not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non-confessional statement. Each part discloses some incriminating fact, i.e., some fact which by itself or alongwith other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also, every other admission of an incriminating fact contained in the statement is part of the confession."

"14 : If proof of the confession is excluded by any provision of law such as S.24, S.25 and S.26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section such as S.27 of the Evidence Act. Little substance and content would be left in Ss.24, 25 and 26 if proof of admission of incriminating facts in a confessional statement is permitted."

"15 : Sometimes, a single sentence in a statement may not amount to a confession at all. Take a case of a person charged under S.304-A of the Indian Penal Code and a statement made by him to a police officer that "I was drunk; I was driving a car at a speed of 80 miles per hour; I could see A on the road at a distance of 80 yards; I did not blow the horn; I made no attempt to stop the car; the car knocked down 'A'." No single sentence in this statement amounts to a confession, but the statement read as a whole amounts to a confession of an offence under S.304-A of the Indian Penal Code, and it would not be permissible to admit in evidence each sentence separately as a non-confessional statement. Again, take a case where a single sentence in a statement amounts to an admission of an offence. 'A' states "I struck 'B' with a tangi and hurt him". In consequence of the injury 'B' died. 'A' committed an offence and is chargeable under various sections of the Indian Penal Code. Unless he brings his case within one of the recognised exceptions, his statement amounts to an admission of an offence, but the other parts of the statement such as the motive, the preparation, the absence of provocation, concealment of the weapon and the subsequent conduct, all throw light upon the gravity of the offence and the intention and knowledge of the accused, and negatives the right of private defence, accident and other possible defences. Each and every admission of an incriminating fact contained in the confessional statement is part of the confession."

"16 : If the confession is caused by an inducement, threat or promise as contemplated by S.24 of the Evidence Act, the whole of the confession is excluded by S.24. Proof of not only the admission of the offence but also the admission of every other incriminating fact such as the motive, the preparation and the subsequent conduct is excluded by S.24. To hold that the proof of the admission of other incriminating facts is not barred by S.24 is to rob the section of its practical utility and content. It may be suggested that the bar of S.24 does not apply to the other admissions, but though receivable in evidence, they are of no weight, as they were caused by inducement, threat or promise. According to this suggestion, the other admissions are relevant, but are of no value. But we think that on a plain construction of S.24, proof of all the admissions of incriminating facts contained in a confessional statement is excluded by the section. Similarly, Ss.25 and 26 bar not only proof of admissions of an offence by an accused to a police officer or made by him while in the custody of a police officer but also admissions contained in the confessional statement of all incriminating facts related to the offence."

"17 : A little reflection will show that the expression "confession" in Ss.24 to 30 refers to the confessional statement as a whole including not only the admissions of the offence but also all other admissions of incriminating facts related to the offence. Section 27 partially lifts the ban imposed by Ss.24, 25 and 26 in respect of so much of the information whether it amounts to a confession or not, as relates distinctly to the fact discovered in consequence of the information, if the other conditions of the section are satisfied. Section 26 distinctly contemplates that an information leading to a discovery may be a part of the confession of the accused and thus fall within the purview of Ss.24, 25 and 26. Section 27 thus shows that a confessional statement admitting the offence may contain additional information as part of the confession. Again, S.30 permits the Court to take into consideration against a co-accused a confession of another accused affecting not only himself but the other co-accused. Section 30 thus shows that matters affecting other persons may form part of the confession."

"18 : If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by S.25. The confession includes not only the admission of the offences but all other admissions of incriminating facts related to the offence contained in the confessional statement is a receivable in evidence except to the extent that the ban of S.25 is lifted by S.27."

12. In the present case, the report lodged by the appellant/accused referred to the circumstances which led to the commission of the crime. The trial Court has excluded inculpatory confessional part and used other part of the report against the accused. Having regard to the observations made by the Apex Court, which have been quoted in the aforesaid paragraphs, it is clear that the confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. The Apex Court has clearly held that if the confession is tainted, the taint attaches to each part. It is not permissible in law to separate one part and to admit it in evidence as a non-confessional statement. Each part discloses some incriminating fact, i.e., some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, although each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes the character of a confession. If a statement contains an admission of an offence, not only that admission but also, every other admission of an incriminating fact contained in the statement is part of the confession. These observations made by the Apex Court are squarely applicable to the facts in the present case. In the confessional report lodged by the appellant, he has given details as to why he was suspecting the relationship between his wife Rekha and Gajanan. He has also mentioned the motive for assaulting his wife Rekha with the scissors causing her severe injuries, which resulted in her death. Perusal of the confessional report discloses that no part of the report is self-exculpatory. Therefore, the trial Court was not entitled to rely upon the contents of the confessional report lodged by the appellant. In our view, the trial Court committed a serious error in relying upon the confessional report lodged by the appellant and also in putting the contents thereof to the appellant in his statement under Section 313 of Code of Criminal Procedure. In our view, the ratio of the judgment in Aghnoo Nagesia's Case (supra) is squarely applicable in the present case and therefore we are unable to uphold the approach of the trial Court in relying upon the contents of the confessional report lodged by the appellant. We are unable to accept the finding of the trial Court that there are many admissions made by the appellant in his report which can be considered against him, since the entire report is confessional and no part of it is non-confessional. We are, therefore, of the view that the proof of the confessional report lodged by the appellant is clearly prohibited by Section 24 of the Evidence Act. No doubt, the report lodged by the appellant is admissible for limited extent of proving the fact of giving information by the accused himself as evidence of his conduct under Section 8 of the Evidence Act.

13. In the authorities relied upon by the appellant namely AIR 1968 Allahabad 37 (Chhote Lal Vs. State); AIR 1972 SC 922 (Khatri Hemraj Amulakh Vs. State of Gujarat) and 1978 Mh.L.J. 244 (Vistari Narayan Shebe Vs. State of Maharashtra & Anr.) (supra) the ratio laid down by the Apex Court in Aghnoo Nagesia's case (supra) has been followed. Therefore, it is not necessary to refer in detail to these authorities. In AIR 1957 SC 366 (supra) the Apex Court has held that 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 the Evidence 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.

14. Now, we shall deal with the authorities cited by the learned Additional Public Prosecutor appearing for the respondent. Firstly, the learned Additional Public Prosecutor has relied upon the judgment of the Apex Court in Aghnoo Nagesia's case (supra). The said authority does not advance the case of prosecution any further but on the contrary comes to the rescue of the appellant.

In so far as the judgment reported in 2003 ALL MR (Cri) 2219 (Madhavgir s/o. Gururatangir Vs. State of Maharashtra) is concerned, the same also does not help the prosecution. In the said judgment the Division Bench of this Court has held that Section 25 of the Evidence Act prohibits the proof of first information report given by accused to a Police Officer which amounts to confessional statement and the confession includes not only the admission of the offence but all other admissions of incriminating facts contained in the confessional statement. However, such a report can be used in favour of the accused. The facts in the present case are not similar to the facts in the said case and, therefore, the ratio of the judgment in the said case also does not help the prosecution.

15. The next circumstance relied upon by the prosecution is that the clothes of the accused i.e. paijama (Article 8) and Nehru shirt (Article 9) which were seized on 19-1-2000 had blood stained on them and the blood found thereon was of "B" group. The prosecution to prove these facts examined two panchas Gajanan Londe (PW-6), Haribhau Patkar (PW-7). Both the witnesses have turned hostile and have not supported the prosecution. However, the said clothes have been identified by Sukhramsingh Thakur (PW-4) as the said clothes worn by the appellant at the time of his arrest on 19-1-2000. Ganesh Bhausar (PW-11) the Investigating Officer has deposed that these clothes were seized on 19-1-2000 under seizure memo (Ex.55). Having regard to the evidence of these three witnesses, we find it difficult to believe the circumstance that the clothes of the appellant had blood of "B" group since admittedly, the appellant was arrested on 19-1-2000 at 5.00 p.m. and according to prosecution the clothes worn by him which had blood stained on them were not seized at the time of his arrest. No doubt, the appellant was in custody of the police from 19-1-2000 but in the absence of any explanation coming from the prosecution as to the reason for delay in seizing the blood stained clothes of the appellant, we find it difficult to believe that the appellant was wearing blood stained clothes at the time when he lodged report at the Police Station, Dahihanda. We, therefore, hold that the prosecution has not been able to prove that the clothes of the accused i.e. paijama and Nehru shirt worn by the appellant at the time of his arrest had blood of "B" Group.

16. The prosecution has also examined Prakash Shivarkar (PW-1), Kishor Paldiwal (PW-2) and Kisan Mankar (PW-3) to prove extra-judicial confession made by him to these witnesses. However, these witnesses have turned hostile and they have not supported the prosecution case. The prosecution has also examined Gajanan Adhe (PW-8) to prove spot panchanama (Ex.33) and seizure panchanama (Ex.34). The said witness has also turned hostile. However, the spot panchanama has been proved by the Investigating Officer (PW-11), who conducted the spot panchanama. The evidence of Ganesh Bhausar (PW-11) which is corroborated by the spot panchanama clearly establishes that at the spot i.e. in the room of the house of the appellant several articles which includes pillow cover, broken bangles, shawl, white scarf and iron scissors with blood stains on them were found at the spot and the same were seized. It is pertinent to note that the appellant/accused has also not seriously disputed that his wife Rekha was murdered by causing her several stab injuries and therefore the proof of spot panchanama also does not advance the prosecution case against the accused.

17. Upon close scrutiny of the entire prosecution evidence, it is clear that the prosecution has not been able to establish any incriminating circumstance against the appellant except the fact that he lodged report at 5.00 p.m. at Police Station, Dahihanda. The said report as stated above can be looked into in order to find out the conduct of the appellant/accused. Therefore, at this stage, it would be pertinent to state the defence of the appellant in the statement under Section 313 of the Code of Criminal Procedure. When the appellant/accused was asked as to whether he wanted to say anything more, he answered thus :-

"I am falsely prosecuted. I had been to my field at about 10.30 or 11 in the morning. I came house at about 4.30 p.m. and saw crowd in front of my house. I asked them what happened and they told me somebody has killed my wife. I saw the dead body of Rekha and went to police station to lodge report but police arrested me."

18. From perusal of the answer given by the accused, it is clear that his defence is that when he came home at about 4.30 p.m., he saw crowd in front of his house and on inquiry he was told that somebody had killed his wife. The prosecution has established that the accused/appellant himself lodged report at 5.00 p.m. It is pertinent to note that the accused has stated in the report that he came home at about 4.30 p.m. and therefore, lodging of report by him at Police Station, Dahihanda at 5.00 p.m. cannot be said to be absolutely impossible. Although prosecution has not led any evidence about the distance between Police Station, Dahihanda from the spot of scene of offence in the FIR (Ex.25) lodged by the appellant himself the distance between village Keliveli and Police Station, Dahihanda has been mentioned as 10 kms. Even after considering the distance between the place of occurrence and the Police Station, it cannot be said that the appellant could not have lodged report at 5.00 p.m. The fact remains that the time mentioned in the statement under section 313 of Code of Criminal Procedure is an approximate time and therefore, we hold that the defence taken by the appellant is probable one. In any event, in the absence of any cogent evidence against the appellant being led by the prosecution, the conviction of the appellant for having committed an offence under Section 302 of the Indian Penal Code cannot be sustained.

19. In the light of above discussion and after considering the entire evidence led by the prosecution as well as defence taken by the appellant/accused, we have no hesitation to hold that the prosecution has not been able to prove beyond reasonable doubt the offence of murder of Rekha against the appellant.

20. In the result, therefore, the appeal is allowed. We quash and set aside the conviction and sentence passed by the learned IInd Additional Sessions Judge, Akola, in Session Trial No.80/2000 vide his judgment and order dated 2-6-2001 and acquit the appellant of the charge of having committed offence under Sections 302 of the Indian Penal Code. The appellant is ordered to be set at liberty forthwith if not required in any other case. Fine, if paid by the appellant, shall be returned to the appellant.

Appeal allowed.