CRIMINAL APPEAL NO. 66 OF 2008

17th February 2020

Petitioner Counsel: Shri P. J. Mehta Shri V. N. Morande
Respondent Counsel: Shri S. D. Sirpurkar
Act Name: Indian Penal Code, 1860 Indian Evidence Act, 1872 Code of Criminal Procedure, 1973

HeadLine : (1) IPC 1860,S.304 Part II – Evidence Act 1872,S.3 – Homicidal death – Proof – Testimony of panch witness shows that at instance of accused, knife was seized from his house
Confession before Police inadmissible - Eye witness hostile - Testimony of wife of deceased, hearsay; sister not examined - No substantive piece of evidence to prove guilt - Acquittal

(2) Evidence Act (1872), S.25 – Confessional statement – Admissibility – Homicidal death – Accused himself is the first informant
Statement contained in FIR furnished by the accused cannot be used if it is inculpatory in nature nor can it be used for the purpose of corroboration or contradiction unless its maker offers himself as a witness in trial - FIR lodged by accused hit by S.25 Evidence Act, cannot be used against him.

Section :
Section 302 Indian Penal Code, 1860 Section 304(II) Indian Penal Code, 1860 Section 8 Indian Evidence Act, 1872 Section 21 Indian Evidence Act, 1872 Section 25 Indian Evidence Act, 1872 Section 27 Indian Evidence Act, 1872 Section 145 Indian Evidence Act, 1872 Section 157 Indian Evidence Act, 1872 Section 154 Code of Criminal Procedure, 1973

Cases Cited :
Para 17: Bherusingh Vs.State of Rajasthan, (1994) 2 SCC 467
Para 18: Bandlamuddi Ramaiah and others Vs. State of A.P., reported in (1996) 11 SCC 133
Para 19: Aghnoo Nagesia Vs. State of Bihar, reported in AIR 1966 SC 119

JUDGEMENT

1. This appeal has been directed against the judgment and order dated 18.12.2007 delivered by the learned Sessions Judge, Gadchiroli in Sessions Case No. 39/2000, convicting the appellant (hereinafter referred to as “the accused” for the sake of brevity) for the offence punishable under Section 304(II) of the Indian Penal Code instead of for the offence under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for the period of three years.

2. The prosecution case, in nutshell, can be summarized as under:
Accused-Madhukar S/o Shankar Margulwar lodged a report at Aheri Police Station on 01.02.2000 stating therein that he was inhabitant of Devalmari and was working as labour. He was in love with Bakkubai daughter of Vyankati Madavi and got married with her, one and half years prior to the incident which had taken place on 01.02.2000. Thus, there was enmity between Vyankati Madavi and the deceased-Vasanta Soyam. Deceased-Vasanta Soyam had once beaten Vyankati Madavi.

3. On 31.01.2020, at about 8 to 9 p.m. while he alongwith his wife Bakkubai were warming themselves by igniting fire in the hearth in the verandah of their house, deceased-Vasanta Soyam alongwith PW6-Shriniwas Telangwar approached to the house of PW5-Shantabai Raut which was adjacent to the house of the accused. Thereafter, they both came to the house of the accused in inebriated condition. Deceased-Vasanta Soyam had burning stick with him and he assaulted by means of that stick to the accused, and therefore, his wife intervened. On this, deceased-Vasanta Soyam pushed her and therefore the accused got enraged. He took out the knife kept in the verandah and assaulted deceased-Vasanta Soyam, due to which deceased-Vasanta Soyam fell down in the courtyard of PW5-Shantabai Raut. Thereafter, the accused immediately proceeded to Aheri Police Station and reported the matter to the Police. On the basis of his complaint PW4-ASI Agewar registered a crime and referred the papers to the Police Station, Devalmari. On receiving those papers, PW9-Addl. S.P. Navinchandra Datta Reddy registered the offence vide Crime No.2/2000 against the informant Madhukar i.e. accused.

4. PW9-Addl. S.P. Navinchandra Reddy visited the place of incident and recorded spot panchnama (Exh.22), so also he recorded inquest panchnama (Exh.23). He seized the articles lying on the spot vide seizure memo (Exh.27). He shifted the dead body of deceased-Vasanta Soyam to the Hospital for autopsy. While in custody, the accused showed willingness before panch that he would discover knife from his house vide memorandum panchnama (Exh.24). The accused led the police and panchas to his house and produced the knife which he had kept below the roof of his house, which was seized under seizure memo (Exh.25). The statement of the witnesses were recorded. After completing the formal investigation, charge-sheet came to be filed in the Court of Judicial Magistrate First Class, Aheri. The case was committed to the Court of Sessions. The learned trial Judge after recording the evidence and hearing both the sides convicted the accused, as aforesaid.

5. I have heard Shri P.J. Mehta, Advocate h/f Shri V.N. Morande, Advocate for the accused and Shri S.D. Sirpurkar, learned APP for the State. With their able assistance, I have gone through the record and proceedings of the case.

6. The learned Advocate P.J. Mehta, vehemently argued that the learned trial court has not assessed the evidence led by the prosecution witnesses in its proper perspective and has erroneously convicted the accused.

7. Per contra, the learned APP supported the judgment passed by the trial court and submitted that the trial court has properly assessed the evidence of the witnesses and has rightly convicted the accused.

8. The prosecution has examined in all ten witnesses. Although the case of the prosecution is based on the direct evidence, the eye witness PW5-Shantabai Raut as well as PW6-Shriniwas Telangwar did not support the case of the prosecution. Although, they were declared hostile by the prosecution, nothing adverse has been elicited by the learned APP from their cross-examination. Thus, there is absolutely no substantive evidence on the point of incident.

9. So far as the testimony of PW1-Baburao Pochalu Soyam, PW2-Jayabai Vasanta Soyam & PW3-Sau. Chhaya Ramesh Karpe is concerned, it is hearsay in nature. The evidence of PW1-Baburao Soyam shows that during the night hours while he was at home, he came to know that the accused assaulted deceased-Vasanta Soyam by means of knife. The testimony of PW2-Jayabai Vasanta Soyam, who is the wife of deceased-Vasanta Soyam demonstrates that while she was in the field on the day of incident, she heard the cry of one Surekha (not examined) who is the sister of her husband. On hearing the said cry, she rushed towards that place. Surekha was found near the house of PW5-Shantabai Raut. PW2-Jayabai Vasanta Soyam noticed the dead body of her husband at that place. Surekha informed her that the accused assaulted her husband by means of knife. Her cross-examination shows that there were 10 to 12 houses in between her house and the house of PW5-Shantabai Raut. It further shows that her husband had good relations with the accused. Thus, the testimony of PW2-Jayabai Vasanta Soyam does not throw any light on the aspect of the incident that when she reached at the place of incident on hearing the cries of Surekha, she found the dead body of her husband deceased-Vasanta Soyam near the house of PW5-Shantabai Raut. Thus, the testimony of PW2-Jayabai Vasanta Soyam is hearsay in nature.

10. It is worthwhile to note that the prosecution had failed to examine Surekha, who was the sister of deceased-Vasanta Soyam and who was the alleged eye witness to the incident, for the reasons best known to the prosecution. The testimony of Surekha would have certainly thrown light on the aspect of the alleged incident. As stated by PW2-Jayabai Vasanta Soyam, it appears that the relations between the accused and deceased were cordial and good. The witnesses had not supported the case of the prosecution and although they were declared hostile, nothing adverse is elicited from their cross-examination.

11. Even the evidence of PW3-Sau. Chhaya Karpe, indicates that deceased-Vasanta Soyam was her brother-in-law i.e. sister's husband. She was residing in the house of deceased-Vasanta Soyam, as she was unmarried at that time. In the evening, deceased-Vasanta Soyam returned back to home, after attending the labour work. She served meals to him. At that point of time, one PW6-Shriniwas Telangwar visited their house and took away the deceased-Vasanta Soyam with him. After 2 to 3 hours, she left the house and proceeded to the field to inform her sister, who is the wife of the deceased-Vasanta Soyam that deceased-Vasanta Soyam was taken away. At that time, she heard the cry. She then improved her version by saying that while returning from the field, she as well as the wife of deceased PW2-Jayabai Vasanta Soyam heard the cry raised by Surekhabai (not examined) who is the sister of the deceased. When they reached to the place of the incident they found Surekha was crying there. They also found dead body of deceased-Vasanta Soyam. Thus, PW3-Sau. Chhaya Karpe is silent on the aspect of presence of the accused at the place of incident or the manner in which the incident had taken place. Thus, the testimony of PW1-Baburao Pochalu Soyam, PW2-Jayabai Vasanta Soyam & PW3-Sau. Chhaya Ramesh Karpe does not throw any light on the aspect of the incident and it shows that they reached to the place of incident after the incident had taken place.

12. As discussed above, PW5-Shantabai Raut and PW6-Shriniwas Telangwar are the hostile eye witnesses and PW4-ASI Mukhru Vistari Agewar & PW7-HC Sanjay Ashokrao Santoshwar are the police witnesses.

13. The testimony of PW8-Girma Durga Talandi shows that police recorded the spot panchnama (Exh.22) in his presence, so also inquest panchnama (Exh.23) was also recorded. The accused-Madhukar showed his willingness to point out the place where he has kept the knife. Accordingly, memorandum panchnama (Exh.24) was drawn. The accused led the police and panchas to his house and handed over the knife to the police which had taken charge by the police vide Exh.25.

14. No doubt, the testimony of PW8-Girma Durga Talandi shows that at the instance of accused the knife was seized from the house of accused. However, such evidence can be treated as corroborative piece of evidence and in the absence of substantive piece of evidence, the said evidence is of no assistance to the prosecution case.

15. It is not disputed that the deceased-Vasanta Soyam died homicidal death. The Post Mortem Report (Exh.45) shows that the cause of death is of Hemorrhagic shock due to stab injuries.

16. The overall assessment of the evidence on record shows that there is absolutely no evidence on record to show that the accused committed the offence. No doubt, in the present case, the accused himself is the first informant. However, in this regard, it is well settled that a statement contained in the FIR furnished by the accused cannot be used if it is inculpatory in nature nor can it be used for the purpose of corroboration or contradiction unless its maker offers himself as a witness in the trial.

17. With regard to the confession made by the accused vide F.I.R. (Exh.48), an useful reference can be made to the judgment reported in (1994) 2 SCC 467 in the case of Bherusingh vs.State of Rajasthan, wherein the Hon’ble Apex Court observed thus:-
“17. Where the first information report is given by an accused himself to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act. No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by Section 27 of the Evidence Act. The first information report recorded under Section 154 CrPC is not a substantive piece of evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Evidence Act in case the informant appears as a witness at the trial. Where the accused himself lodges the first information report, the fact of his giving the information to the police is admissible against him as evidence of his conduct under Section 8 of the Evidence Act and to the extent it is non-confessional in nature, it would also be relevant under Section 21 of the Evidence Act but the confessional part of the first information report by the accused to the police officer cannot be used at all against him in view of the ban of Section 25 of the Evidence Act."

18. The Hon’ble Supreme Court in Bandlamuddi Ramaiah and others vs. State of A.P., reported in (1996) 11 SCC 133 observed thus,
“17. The legal position, therefore, is this: A statement contained in the FIR furnished by one of the accused in the case cannot, in any manner, be used against another accused. Even as against the accused who made it, the statement cannot be used if it is inculpatory in nature nor can it be used for the purpose of corroboration or contradiction unless its maker offers himself as a witness in the trial. The very limited use of it is as an admission under section 21 of the Evidence Act against its maker alone unless the admission does not amount to confession.”

19. The Hon’ble Apex Court in Aghnoo Nagesia vs.State of Bihar, reported in AIR 1966 SC 119, in paragraph no.10 observed thus:
“10. Section 154 of the Code of Criminal Procedure provides for the recording of the first information. The information report as such is not substantive evidence. It may be used to corroborate the informant under s. 157 of the Evidence Act or to contradict him under s. 145 of the Act, if the informant is called as a witness. If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under s. 8 of the Evidence Art. If the information is a non-confessional statement, it is admissible against the accused as an admission under s. 21 of the Evidence 139 Act and is relevant.”

20. In the instant case, on applying the principles laid down by the Hon’ble Apex Court in the above-mentioned cases, it is found that from the FIR the only circumstance which can be utilized against the appellant is the motive in the crime. The other facts disclosed in the FIR are in nature of confession made to the police which cannot be used against the appellant. Thus, the FIR lodged by the accused is hit by Section 25 of the Evidence Act and cannot be used against the appellant.

21. Apart from the complaint lodged by the accused which is not admissible under Section 25 of the Indian Evidence Act, the prosecution has failed to produce any convincing evidence on record to show that the accused committed the offence punishable under Section 304(II) of the IPC. Thus, the learned trial Judge has committed an error in convicting the accused. The judgment, therefore, needs to be quashed and set aside. Hence the following order would meet the ends of justice.
ORDER
(1) Criminal Appeal No. 66/2008 is allowed.
(2) The impugned judgment of conviction dated 18.12.2007 delivered by the learned Sessions Judge, Gadchiroli in Sessions Case No. 39/2000 for the offence punishable under Section 304(II) of the Indian Penal Code is hereby quashed and set aside.
(3) The appellant-accused is acquitted of the offence punishable under Section 304(II) of the Indian Penal Code.
(4) The bail bonds of the accused shall stand cancelled.

22. Criminal Appeal is disposed of accordingly.

Decision : Appeal allowed