Allahabad High Court
Ram Babu vs State Of U.P. on 18 January, 2019
Author: Naheed Ara Moonis
Bench: Naheed Ara Moonis, Shashi Kant
HIGH COURT OF JUDICATURE AT ALLAHABAD ? A.F.R. Reserved Court No. - 46 Case :- CRIMINAL APPEAL No. - 1607 of 1983 Appellant :- Ram Babu Respondent :- State Of U.P. Counsel for Appellant :- A.K.Sachan,Apul Misra,Ashwani Kumar Sachan,Saurabh Sachan Counsel for Respondent :- A.G.A. Hon'ble Naheed Ara Moonis,J.
Hon'ble Shashi Kant,J.
[Delivered by Naheed Ara Moonis. J.] The instant criminal appeal has been preferred on behalf of the accused-appellant against the impugned judgment and order dated 30.5.1983 passed by the learned District & Sessions Judge (NMA) Kanpur whereby the accused-appellant has been convicted and sentenced to serve out life imprisonment in Sessions Trial No. 308 of 1982 (State vs. Ram Babu) under Sections 302 IPC, Police Station Sheorajpur District Kanpur Dehat .
The emanation of facts giving rise to the prosecution in short conspectus is that a first information report was lodged on 10.9.1982 at about 6.30 a.m. with respect to the incident dated 10.9.1982 occurred at about 3.00 to 4.00 a.m. by the appellant complainant Ram Babu about the murder of his wife Smt. Rajkumari who divulged that the marriage of accused appellant was solemnized with Rajkumari about three years prior to the incident. The accused appellant was in service at Kanpur. Ram Charan, the brother of Bhajan Lal the Sarhu of the accused appellant, used to reside at Kanpur in his proximity. Ram Charan, the brother of Bhajan Lal was infatuated in love with Raj Kumari. The wife of the accused appellant had gone at the house of Ram Charan situate in village Sahjora prior to two days of Raksha Bandhan festival. The accused appellant visited the house of Ram Charan situate at village Sahjora to bring his wife Raj Kumari after two days of Raksha Bandhan festival but on the intervention of some kith and kin, she was not allowed to come from there. The accused appellant came back to Kanpur alone. On 23.8.1982, it came in the notice of the accused appellant that Ram Charan had moved an application for performing court marriage with his wife Raj Kumari. The accused appellant contacted with Ram Charan who unfolded that he would keep Raj Kumari in his affiancing on account of which tug of war ensued between the accused appellant and Ram Charan. The Sarhu of the accused appellant namely Bhajan Lal intervened and got the matter assuaged and his wife Raj Kumari came back at the residence of the accused appellant. On account of trepid and panic of Ram Charan, the accused appellant kept his wife at village Bhatpura. Raj Kumari, the wife of the accused appellant was a lady of shoddy and shabby character and had proclivity to associate with Ram Charan which was inviting disrepute and ill fame for him. In the previous evening i.e. 9.9.1982 the accused appellant was going to Kanpur, Ram Charan had contracted some malefactors for his liquidation. They waylaid him in the way. The accused appellant had anyhow been able to save his life fleeing from the said place. The accused appellant arrived at the residence located in the village taking knife from the room at Kanpur in the mid night and got the door unbolted and relaxed in the company of his wife and went on perceiving with respect to the character of his wife. When the accused appellant ensued conversation with his wife with regard to foul act of Ram Charan, his wife Raj Kumari could not digest the word of the accused appellant and confronted by hurling heart-rending and indecent words undermining his respect and dignity. The despicable words of Raj Kumari caused exasperation and vexation to the accused appellant and on the spur of derangement, he attacked upon her throat with knife and dashed her down and disintegrated neck mounting upon her chest as a consequence of which she succumbed to injuries. The accused appellant had serious a doubt about the perverted and squalid character of his wife Rajkumari. The incident was alleged to have occurred at about 3 or 4 'O' clock. The accused appellant submitted the written information vide Ext.Ka.2 with regard to incident before the Station officer concerned.
Further it transpired that the accused appellant went to Brij Kishore Singh (P.W.2) ex.pradhan of Sheorajpur which was adjoining village of Bhatpura and divulged the entire facts to him. The accused appellant requested him to apply his virtues upon the police personnel so as to deter them from using any grilling and thrashing. Brij Kishore Singh Ex.pradhan of village Sheorajpur suggested him to reduce each and everything in writing for communicating to the police with respect to the incident. The accused appellant prepared the written report vide Ext. Ka.2 and went to the police station concerned in association with Brij Kishore and submitted the written report . The Head Moharrir Sri Krishna (P.W.4) received the written report and prepared the chick report vide Case Crime No.121 of 1982 under Sections 302 IPC, Police Station Sheorajpur District Kanpur Dehat Ext.Ka.5 and on its basis registered a case in the general diary Ext. Ka.6.
After registration of the FIR, Om Prakash Ojha (P.W-8), the then Station Officer took up the investigation and swung into action and recorded the statement of the Head Moharrir Shri Krishna (P.W.4). The investigating officer carried out the necessary formalities. He took into possession the underwear of the accused appellant which was saturated with blood from the Head Moharrir and got its Fard prepared Ext. Ka.3 in the presence of Ex. Pradhan Brij Kishore , Sri Krishna and Munsi Lal . The signature of the appellant was taken on the seizure memo.The accused appellant disclosed that he can recover the dead body of his wife and the weapon used in the committing the murder as such the accused appellant was apprehended by them . The investigating officer in association with accused appellant, Brij Kishore Singh and other police personnel rushed towards village Bhatpura. The accused appellant opened the door of his room and pointed towards the corpse of his wife Smt. Raj Kumari lying inside the same. The accused appellant voluntarily handed over the knife from the shrub recovered at the distance of 12 paces from his house which was used by him to disintegrate the head of Raj Kumari. The seizure memo of the knife was prepared as Exhibit Ka.4. whereby the victim succumbed to injuries. On the pointing of the accused appellant the corpse of dead Raj Kumari was taken into custody by the police personnel. The investigating officer held the inquest and prepared the inquest report vide Ext.Ka.9. Photo lash and challan lash were prepared and marked as Ex.Ka.10 and Ex.Ka.11. He got wrapped and sealed the dead body. After conducting the requisite formalities. the copy of chik, copy of report, photo lash, chalan lash, report R.I., report C.M.O. and sample seal along with the sealed dead body was sent to the mortuary for the autopsy vide Ex.Ka.12 to Ka.15.
Postmortem of deceased Raj Kumari was conducted at the District Hospital on 11.9.1982 at 3.00 p.m.by P.W.1 Dr.S.N.Tripathi, Medical Officer, Incharge E.S.I.Raipura Kanpur. The deceased Raj Kumari was aged about 20 years old. She succumbed to injuries about 1'1/2 day before. Rigor mortis was present on half of upper and lower extremities eyes were closed. Mouth was also closed. Following ante-mortem injuries were found on the person of the deceased Raj Kumari.
Incised wound 12 x 4.5 cm on the front on the front and middle neck .
Direction transverse all the structures of the neck cut including tube larynx blood vessels oesophagus x vertebrae. Head is attached with the body only. 4.5 cm wide flap of muscles and skin. Fourth cervical vertebrae was cut.
Faecal matter was present in small and big intestines.
The doctor opined that the death was caused due to shock and hemorrhage as result of injury in the neck. The post mortem report was marked as Ext.Ka.1.
The investigating Officer further ensued the investigation of the case and took into possession plain and blood stained soil vide Ext.Ka.10 and 9 respectively and the same were put separately in sealed container vide Ext.Ka 5. The investigating officer also prepared the site plan vide Ext.Ka.16. The accused appellant was interrogated and was sent at the police station along with incriminating articles which was deposited at the Malkhana. The investigating officer collected clinching and credible evidence against the accused appellant thus after completing the investigation of the case, submitted charge-sheet on 11.10.1982 under Section 302 IPC against the accused appellant which was marked as Ext.Ka.17.
The case was committed to the Court of Sessions for trial. The trial court after hearing the prosecution as well as the defence and also after providing the necessary documents to the accused appellant framed charges against him under Section 302 IPC on 24.3.1983. The charges framed against him was read over and explained to him. The accused abjured the charges and claimed to be tried hence the prosecution was called upon to lead the evidence.
In order to prove guilt of the accused appellant, the prosecution had examined twelve witnesses in support of the same namely Dr. S.M. Tripathi (P.W.1), Brij Kishore Singh (P.w.2), Lalta Prasad (P.W.3), Sri Krishna Head Moharrir (P.W.4), Constable Ganga Saran (P.W.5), Ram Charan (P.W.6), Jamuna Prasad (P.W.7), Om Prakash Ojha, Station Officer (P.W.8), Constable Vishambhar Nath (P.W.9), Constable Raja Ram (P.W.10), S.A.Husain Chief Medical Officer, (P.W.11) and Constable Sughar Singh (P.W.12) in support of the case.
In order to appreciate the factual matrix of the case the statement of the prosecution witnesses and other documentary evidence are necessary to be examined.
Dr. S.M.Tripathi ,Medical Officer E.S.I. Dispensary Raipurwa Kanpur who had conducted the autopsy of the deceased Rajkumari was examined as P.W.1. He deposed that he was posed at E.S.I.Dispensary Raipura Kanpur on 11.9.1982. He had conducted autopsy of Rajkumari wife of Rambabu on 11.9.1982 at about 3.00 p.m. She was brought by constables Ramanand and Ganga Saran. The corpse was duly identified. The deceased Rajkumari was aged about 20 years. The duration of her death was about 1'1/2 days old. The deceased was average built.There was rigor mortis in her hands and feet after death. There was greenish tinge in the part of the stomach. Dr. S.M.Tripathi (P.W.1) confirmed the following ante-mortem injuries on the person of the deceased Rajkumari.
I. Incised found 12 cm x 4 cm on the front & middle of the neck direction transverse. All the structure of the neck were cut including trachea larynx. Blood vessels and oesophagus and vertebrae, head is attached with the body only. 4.5 cm wide flap of muscles and skin. Fourth cervical vertibra is cut.
The faecal matter was present in small and big intestines.
He opined that death was caused due to excessive bleeding, shock and hemorrhage as a result of ante-mortem injuries. The injury was sufficient for causing death instantaneously. On producing the knife before the doctor vide Ext.Ka.1, he disclosed that such injuries can be caused from the knife. He also identified the blouse, petticoat, Sari and other incriminating articles exhibited 2 to 8. In his cross examination, he deposed that there is variation of 6 or 7 hours about the duration of death. The stiffness of the body commences 5 or 6 hours after the death and remains about 24 to 30 hours.
Brijkishore Singh (P.W.2) before whom the appellant is said to have made extra judicial confession had stated on oath that he knew the appellant who was living in the adjoining village Mathura and had come to him prior to six months at about 5.00 a.m. He had divulged that he committed murder of his wife. He enquired why committed so then he told on account of suspicion over her morality and chastity. On his request the incident was reduced in writing by Ram Babu vide Ext.Ka.2. Subsequent thereto they proceeded towards the police station concerned and the same was handed over to the Head Moharrir. The appellant was taken into police custody. The underwear of the appellant which was soaked with blood was taken into possession. A recovery memo was prepared which was signed by Brijkishore (P.W.2). The accused appellant handed over the knife and the corpse of the victim. The accused appellant proceeded towards his house in association with Police Station concerned. The accused appellant opened the door and pointed towards the corpse of victim. The inquest was prepared and was signed by him. The knife was recovered from 10 to 15 paces from the house and was marked as Ex.Ka.1. The knife was saturated with blood and was kept in seal in his presence. The plain and blood stained earth were put in two separate containers and were sealed which was marked as Ex.Ka.5.
In his cross examination the P.W.2 Brijkishore unfolded that he did not ever visit to police station concerned. It was also divulged that he did not ever appear as witness of the police. He showed his ignorance to appear as a witness in the matter of Babu Lal Dhobi in a case under section 25 Arms Act . He confirmed his acquaintance with Babu Lal Dhobi. It was also affirmed by the P.W. 2 Brijkishore Singh that he was a witness in a case under section 399/402 IPC Police Station Sheorajpur.The P.W.2 Brijkishore Singh denied for appearing as a witness in a case under section 116/117 Cr.P.C. He also denied his appearance as a witness in the case of Mahesh Chand alias Raja under section 290 IPC. The P.W.2 Brijkishore Singh further divulged that he used to visit at the police station concerned on the emanation of any necessity. He was holding the licence of gun. P.W.2 Brijkisore Singh had given the charge of village Pradhan to Sub-divisional Magistrate because of declaration of town area and since then no election was held. The house of the P.W.2 Brijkisore Singh was located inside the thickly populated area. He used to get up early morning in the midst of 4'1/3 to 5.00 a.m. P.W.2 Brijkisore Singh divulged that the accused appellant came across at his house. The accused appellant while divulging the incident made supplication with P.W.2 Brijkisore Singh to associate him otherwise he will be subjected to harassment by the police personnel. There was none except P.W.2 Brijkisore Singh P.W.2 Brijkisore Singh had gone at the house of the accused appellant prior to one month of this incident in relation to partition of the house. This dispute was burning amongst Chunni Lal, Subedar and Ram Sewak. After one hour or 45 minutes, the P.W.2 Brijkisore Singh proceeded towards the police station concern with the accused appellant. The police station was situated about one furlong from his house. At the crucial juncture, Incharge of the Police Station Sri Ojha was not available. He had come at the police station after 15 minutes. P.W.2 Brijkishore had disclosed the reason thereafter the accused appellant was handcuffed. The accused appellant had asked to save him from the atrocities and ruthlessness of police personnel. He proceeded with accused appellant and two police with Station Officer at 7.30 a.m. to the place of incidence. His statement was recorded at about 10 , 10.30 a.m. The statement of the accused appellant was recorded prior to his statement (P.W.2 Brijkishore). He had denied the suggestion that the Pradhan came at the police station from Kanpur on getting the information about the murder of his wife. He had also denied that subject matter with regard to the murder was given by the father of the appellant at the police station. It was divulged by P.W.2 Brijkishore that the appellant had three cousin uncles. There are four divisions of the house which are only in one courtyard. The exit of four houses are distinct but they are opening towards the gallery and the members residing in the four houses are passing through that gallery. After performance of matrimonial ceremony, the father of the appellant had given him one room in which he was living with his wife. The room in which dead body was found was given by the father of the appellant. The room of Ram Babu was occasionally used by Ram Sewak. It was stated by him that the appellant had unfolded at the police station with regard to location of knife. There was none at the police station concerned except the P.W.2 Brijkishore. The knife was recovered at the pointing of the accused appellant from the shrub at the distance of 10 to 12 paces from the room. When the knife was recovered, it was saturated with blood. The recovery memo of knife was prepared inside the courtyard. The plinth of the knife was about nine inch. At the time of recovery, in addition to police personnel and the accused appellant, the P.W.2 Brijkishore and Lalta Pradhan (P.W.3) were also present. It is wrong to say that the recovery of knife was shown to be bogus and was not used in the commission of said offence. It is also wrong to say that the accused appellant did not admit the commission of crime before him (P.W.2 Brijkishore). It is also wrong to say that he (P.W.2 Brijkishore) and the police personnel had got the first information report written at the police station forcibly by the accused appellant.
Lalta Prasad was examined as P.W.3. In his statement averred that he is the village Pradhan of Gram Bhatpura. It has come in the notice that a murder had taken place prior to six months in a majra of village Bhatpura .He had also gone there at about 8.00 a.m. on the arrival of police personnel. The distance of majra located in the mid was about two furlongs away from his majra. When he reached there,inquest memo was being prepared and he was also made one of the Panch. He had put his signature on the inquest report. The corpse of Raj Kumari was sealed at about 10.00 "O' clock. Subsequent thereto the accused appellant disclosed with regard to location of the knife. The accused appellant departed from there and he (Lalta Prasad (P.W.3)) in association with police personnel went ahead about 10 to 12 paces towards west. The accused appellant took out the knife from the shrub of Behaya existing on the brink of talab. The knife was saturated with blood. The recovery memo of which was prepared and marked as Ext.Ka.1.
In his cross examination , Lalta Prasad (P.W.3) deposed that the accused appellant used to live in association of his father Sheoram ,two brothers and two sisters. Chunni Lal used to live separately . Subedar and Ram Sewak were also residing separately. All the four houses were existing within one circle. The dead body of Raj Kumari was found in the last room which belongs to Ram Sewak. When the dead body was recovered, the accused appellant was also present there. They had witnessed the recovery of knife. The plinth of the knife was about 9 inches. He had denied that on account of good amity with police personnel, he had given wrong statement. It is also wrong to say that there was any relationship with the deceased therefore, he was giving false statement. He had also unfolded that when the knife was recovered, it was folded and after recovery it was opened .
Sri Krishna Head Morrarir was examined at P.W.4. He deposed that he was posted as Head Moharrir at Police Station Sheorajpur District Kanpur on 10.9.1982. Rambabu (accused) in association with Pradhan Brijkishore came at the police station concerned. The accused Ram Babu presented a written report Ext.Ka.2 on the basis of which Chik Report Ext.Ka. 5A was prepared. It was entered in G.D. report no.7 at about 6.30 a.m. The facsimile copy of the same is Ex.Ka.6.On the basis of this report, S.I. Om Prakash carrying the accused with handcuffed proceeded for investigation qua the recovery of knife and Panchayatnama. It was divulged by the accused at the police station that his under wear was saturated with blood. After taking his underwear into possession, Fard was prepared vide Ext.Ka.3 and the same was signed by him, witnesses and the accused himself. The accused was given copy of Chik FIR and his signature was torn in pieces and thrown away by the appellant.
Special Report No.10 was prepared by constable Onkar Singh at about 8.00 a.m. Constable Vishambhar Nath presented the plain and blood stained soil with report no.16 at about 12.30 (noon).It was entered by him. Original GD was before him. Baburam (accused) had presented the written report voluntarily without any pressure.
In cross examination it was divulged by P.W. 4 Sri Krishna that he did not go to the place of incident. At the moment of registration of the report, Station Officer was present at the police station. G.D.No.7 which is with regard to the registration of the case denotes the presentation of the underwear . Both the witnesses namely Brijkishore and Munshi Lal were present at that moment. No case was registered prior to the registration of this case on that date. No case was also registered later on. The constable carrying the special report had come back at the police station at 20.20 p.m. The distance of police station Sheorajpur was 33 miles from Kanpur and is situated on the G.T.road. It is wrong to say that the Station Officer got this report prepared by dictating to the accused. It was wrong to say that the report was got prepared at about 2'1/2 'O' clock and the G.D.was withheld till then. It is wrong to say that spurious recovery of knife was prepared sitting at the police station. It is also wrong to say that the underwear was not saturated with blood.
The P.W. 4 Sri Krishna was recalled and examined on oath who stated that he had taken in custody the underwear of accused Rambabu vide Ext.IX which was smeared with blood. In his cross examination he denied that at the instance of station officer fake recovery of blood stained underwear has been shown.
Constable Ganga Saran was examined as P.W.5. He deposed that he was posted on 10.9.1982 at Police Station Sheorajpaur District Kanpur Dehat as constable. On the fateful day P.W.5 Ganga Saran in association with Contable Ramanand brought the dead body of Rajkumari with requisite papers at the mortuary Kanpur for autopsy. The corpse of Rajkumari was presented before the post mortem doctor and was duly identified. The seal fixed on the corpse remained intact. The corpse of the deceased was opened by the doctor and the blood stained clothes sealed in a bundle with requisite papers were presented in the police station concerned. The incriminating articles remained safe and preserved while it was in the custody of the P.W.5 Ganga Saran. This witness was not cross examined by the defence.
Ram Charan with whom the infidelity of deceased was suspected was examined as P.W.6 who deposed on oath that he identifies Rambabu who is present in the Court. Ram charan (P.W.6) also divulged that he was knowing to Rajkumari, the wife of the appellant. He disowned any sort of connectivity with Ram Kumari to whom he was knowing from childhood and also after marriage. He also negatived that he had ever performed court marriage with Raj Kumari nor had ever intended to conjoin with her.
In his cross examination, he unfolded that the investigating officer had not recorded his statement during investigation. He exposed that the investigating officer had arrived at his house and enquired as to whether he had liquidated to Raj Kumari , He responded that he was on duty and had not committed any murder. He was engaged on duty in Bommed Packing Company situate at 117/154 G.T.Road Kanpur and was operating plastic crushing machine. The duty hour of him was from 8.00 p.m. to 8.00 a.m. His attendance was noted in the register. Now he had renounced his service from there. He did not have knowledge about the liquidation of Raj Kumari prior to visit of Investigating officer. He was working in the company prior to six years of the incident. He did not visit his home town. The accused appellant was his elder Saroo. He denied that Raj Kumari used to visit inside his room. He showed his ignorance about the contentment or displeasure of the appellant with Rajkumari. He did never propose for marriage with Raj Kumari. He was already leading spousal life. He also gainsaid that Rajkumari had ever associated him and would have presented any application for wedlock. He was married prior to the incident and had a son with the union of his wife. It was also enlightened that the conflict between the appellant and him was pacified by Bhajan Lal. He denied his presence at the village at the crucial juncture of incident. The investigating officer came to him after lapse of 5/6 days of the incident. He also disowned that he was not on duty on the fateful day of incident or there was any conflict between him and the appellant in respect to Raj Kumari . The accused appellant wanted to shift his wife from Kanpur to village which she did not acquiesce. He (Ram Charan P.W.6) also tried to persuade to Raj Kumari to live in the village. His wife was also living there. The quarter of the appellant and Ram Charan (P.W.6) was within the same campus. He affirmed that he was living with his wife. The emanation of dispute between the appellant and him (the P.W. 6 Ram Charan) was only suspicion over his character that he was having extramarital relation with Rajkumari. A conciliation was arrived at between Rajkumari and the appellant and the victim Raj Kumari went at the village in association with appellant.
Jamuna Prasad (P.W.7) deposed that the accused appellant Ram Babu was his brother in law (Bahnoi). The deceased Raj Kumari was his sister. The accused appellant did not allow his sister Raj Kumari to visit her parental house. He showed his ignorance with respect to congenial or strained relation between the appellant and the victim. This witness was not cross-examined by the defence.
Om Prakash Station Officer Sheorajpur District Kanpur Dehat who had investigated the case was examined as P.W.8. It was divulged by him that he was posted as Station Officer Sheorajpur in September 1982. The present case was registered in his presence. He took over the investigation. The appellant who is present in the Court came at the police station concerned and got the case registered after handing over the written report. After preparing the written chik FIR, he had recorded statement of Head Moharrir. Head Moharrir had taken into custody blood stained under wear which was sealed and the memo was prepared. He entered the memo in the case diary. The accused appellant Ram Babu had disclosed about the corpse of his wife and the knife with which she was done to death by him. The accused appellant was taken into custody. He in association with other police personnel and the witness Brijkishore arrived at village Bhatpura and the accused appellant proceeded ahead and pointed towards the corpse of his wife unlatching the bolt of the room. After nominating the witness of inquest, inquest was conducted. The inquest was prepared, signed marked as Ex.Ka.9. Photo lash and challan lash were marked as Ex.Ka.10 and 11 respectively . Letter to R.I.Ext Ka.12, memo of cloth Ext. Ka.13 and letter to Chief Medical Officer Ext.Ka. 14, letter to Chief Medical Officer for taking cloths Ext.Ka.15. were was prepared by him. Rest of the letters were scribed by S.I. Ram Sewak Bhadoriya on the dictate of investigating officer (P.W.8) upon which he had also put the signature. Blood stained and plain earth were kept in two separate containers and were sealed. Memo was prepared by S.I.Ram Sewak Singh Bhadoriya on which he had put signature. The memo of plain and blood stained earth were marked as Ext. Ka. IX and X. Subsequent thereto the accused appellant took out the knife from the shrub which was marked as Ext.Ka.1.At the crucial moment witnesses Brijkishore and Lalta Prasad Pradhan were present. The knife was sealed before them and was marked as Ex.Ka.4. The signatures of the witnesses were also put on the same. The site plan was prepared and signed by the investigating officer which was marked as Ext.Ka.17 and was proved by him. The statement of the accused appellant was recorded inside the house. The accused appellant in the vigil of constable Vishambhar Nath was sent at the police station along with incriminating articles and blood stained earth as well as knife. The dead body was sent to the mortuary after carrying out necessary formalities with requisite papers for autopsy in the lookout of constable Gangasaran and constable Ramanand. The statement of the witnesses Brijkishore Singh and Lalta Prasad Singh were recorded at the place of occurrence . On 11.9.1992, it came to his notice that the victim Raj Kumari had submitted an application at the police station Kalyanpur in opposition to her husband appellant (Ram Babu). It was searched out by him but nothing could be recovered. It came to his notice that an application was moved by the victim at Rawatpur Chauki which was investigated by S.I. Shabbir Khan. Later on it came to his notice that an application was moved by the victim of which investigation was done by S.I.Shabbir Khan. Another application was moved by the victim which entered in the G.D no.16 on 14.8.1982 and the same was also entered in the Order Book No. 16. The details of which could not be found. On 15.9.1982, he got the copy of the post mortem report at the police station which was entered in the case diary and the statement of other witnesses were recorded. The statement of Jamuna Prasad, the brother of the victim was recorded on 6.10.1982.The statement of Ram Charan (P.W.6) and other witnesses were also recorded. After carrying out the investigation, charge shet was submitted against the appellant which was marked as Ex.Ka.17. In his examination the investigating officer divulged that he had sent the knife for chemical examination after submission of the charge sheet . He had sent a special messenger to bring the report from Agra. It was divulged by him that the first information report of the present case was registered in his presence. The witness Brijkishore had met him at the police station but the statement of the accused appellant and Brijkishore was not recorded at the police station concerned. He had gone from police station to the place of occurrence by Tempo because he was under bounden duty to have vigil over the corpse. The accused and the witnesses were also associated with him. He had submitted a report for recording the statement of the accused in camera. He had submitted a report for recording the statement under section 164 Cr.P.C. which was incorporated in the case diary. The statement of the accused under section 164 Cr.P.C. was recorded , copy of which was not sent with the charge sheet. The statement under section 164 Cr.P.C. was not on the court file.
In his cross examination he had stated that the corpse of the victim was found in the room of Ram Sewak but Ram Babu was living in the same room. Ram Sewak was living elsewhere but he was not aware about his whereabouts. Ram Sewak was not living in the village therefore, he did not come across. It is wrong to say that Ram Babu had fictitiously been shown to be living in the room of Ram Sewak. The door existing in the gallery was broken. There was no lock in the room where the corpse was placed. The southern portion of the boundary of the house was broken to some extent. He denied that the information with regard to murder of victim was given by the father of the accused Sheoram. He also denied that the appellant Ram Babu was called from Kanpur after the murder of victim. He also denied that he got the general diary kept at the police station. He also denied that he had detained Sheoram at the police station and had reached at the police station concerned with force.He also disowned for placing in lock up to Sheoram (father), brothers and the wives of his brothers at the police station concerned. He had also denied the question put to him when Rambabu came to his house, he came to know that his family members are kept in lock up as such he went at the police station along with some persons. He had also denied that he was taken into custody when he had asked why he is torturing his family members. He had also denied that he had assured to set free to his family members after payment of some ransom. He had also denied that he had brought the underwear of Ram Sewak after saturating with blood. He had also disowned that recovery of knife has falsely been planted after soaking with blood. It is wrong to say that the knife was not imbued with blood. He also disowned that the statement of the witnesses was recorded spuriously at the police station.
Constable Vishambhar Nath was examined as P.W.9. He had filed an affidavit stating that he was posted as constable at police station concerned on 11.10.1982 and had gone at the place of occurrence i.e. the house of the accused Rambabu with the Station Officer. He had produced sealed bundle containing knife and two containers separately filled with plain and blood stained earth. The sealed articles were deposited in the Malkhana and remained intact. Defence had not cross examined this witness as such genuineness of affidavit has not been doubted.
Constable Rajaram was examined at P.W.10. He had filed an affidavit stating that he was posted at police station Sheorajpur District Kanpur Dehat on 11.10.1982. He had sent five sealed bundles by Sughar Singh (constable) taking out from Malkhana for chemical examination at Agra. This witness was also not cross examined by the defence as such genuineness of the affidavit has not been doubted by the defence.
Mr. S.A.Husain clerk who was posted in the office of Chief Medical Officer Kanpur on 11.10.1982 was examined as P.W.11. And filed an affidavit deposing that sealed bundles in a wooden box were sealed in the presence of Chief Medical Officer Kanpur and was dispatched on the same very day to Chemical Examiner Agra. Those bundles remained in his office and nobody was allowed to have access with these bundles. This witness was not cross-examined by the defence.
Constable Sughar Singh P.W.12 who was posted at Police Station Sheorajpur on 11.10.1982 filed an affidavit deposing that the articles relating to section 302 IPC was produced before the Chemical Analyst at Agra in sealed condition. He had also presented the articles with the report in the police station concerned. He did not allow any one to have access with the articles and the report. This witness was not cross examined by the defence.
Thereafter the statement of the accused appellant was recorded under section 313 Cr.P.C. He had denied with regard to congenial term with deceased Rajkumari and Ram Charan. He also disavowed the illicit relation between Rajkumari and Ram Charan. He denied the suggestion that he was keeping his wife at village Bhatpura due to trepidation of Ramcharan. The incriminating circumstances which were put by the appellant in the first information report was denied by him in the statement recorded under section 313 Cr.P.C. He admitted his signature over the report but stated that he not written himself. He had denied the seizure memo prepared with regard to blood stained underwear at the police station . He had pointed about the corpse of the victim while he was in police custody. He denied that he got the blood stained knife recovered from Besaram shrub 12 paces away from his house. He showed his ignorance about seizure of knife. He showed his ignorance about the autopsy of the deceased and the injuries caused on her person as well as recovery of blood stained earth from the place of incident. He has been implicated in the present case on account of tricky device of the police. Lastly he divulged that a constable and his uncle Sheo Prasad had informed him at Kanpur from where he was taken at the police station where his parents and brothers were locked. They were liberated and he was taken into custody. He was entangled in the present case because he could not grease their palm with Rs.5000/-.
In support of defence Sheo Prasad Singh was examined as D.W.1. Sheo Prasad Singh Kushwaha (D.W.1) stated that the incident which took place in the intervening night of 9/10 September 1982 pertains to the murder of wife of Rambabu (the appellant). The murder was committed inside the house of Ram Sewak.The residence of Rambabu was distinct in the village. Rambabu was doing service in Kanpur. He used to live in Geetanagar at Kanpur. When the murder was committed, at that moment, Rambabu was present at Kanpur. The information with regard to the incident was given by Sheo Prasad Singh (D.W.1) in conjunction with Ram Sewak, Sheoram Subedar and Chunni Lal. He (Sheo Prasad Singh D.W.1) with aforesaid persons were detained at the police station concerned and enquired about the whereabouts of Rambabu. It was informed by them that Rambabu was at Kanpur. Constable Ganga Saran in association with him (Shiv Prasad Singh D.W.1) proceeded for Kanpur at about 6 'O' clock to bring Rambabu. He and the police constable arrived the quarter of Rambabu and came across to him. The appellant Rambabu was brought at the police station in the company of constable Ganga Saran along with him (Sheo Prasad Singh D.W.1).On arrival at the police station concerned, they found that Ram Sewak, Sheoram, Chunni Lal and Subedar were locked in the custody. It was enquired by Rambabu why they were confined in the lock up, the Station officer concerned divulged that a murder has been committed inside the house, in case the name of the perpetrator of the crime is not divulged, all of you will remain confined. Brijkishore Singh (P.W.2) was also present at the police station concerned. It was uttered by the Station Officer concerned, in case it may be confessed by you, they will be set at liberty. Rs.5000/- was paid to the Station Officer through Brijkishore. The station officer got the report written through Rambabu on his own term. Rambabu was confined and other persons confined in the lockup in relation to that offence were set at liberty. He further stated that he was well familiar with Ram Charan the Sarhoo of the appellant. He was seen in the village on the previous evening. In his cross examination he has stated that the dead body was found at the house of Ram Sewak. Ram Sewak was cousin of the appellant Rambabu. The wife of Rambabu (appellant) was living with his mother and grand mother. His house was situated at the distance of 200 yards. He had gone there after hearing the turmoil and clamour. It was around 5.45 a.m. The police personnel had not arrived there till then. He admitted that he was present at the time of autopsy of the victim. He had denied that any dacoity took place at the residence of Ram Sewak or in the village Bhatpura. He denied that he had not seen the incident nor had he been sent to bring Rambabu (appellant).He disavowed that he was deposing incorrect on account of hailing to the same community.
On the aforesaid material on record, the learned Sessions Judge found the appellant guilty for committing the murder of his own wife Rajkumari and held that the prosecution has been able to prove the guilt beyond the shadow of reasonable doubt thus convicted under section 302 IPC him as narrated in the opening paragraph.
Heard S/Sri A.K.Sachan & Ashwani Kumar Sachan, the learned counsel for the appellant and learned AGA Sri Vikas Sahai on behalf of State and have been taken through the material on record.
The main thrust of the argument of learned counsel for the appellant is that the basis of prosecuting the appellant is alleged confessional statement of the accused which is hit by usage of sections 24,25 and 26 of the Evidence Act which contemplate as under :
A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
Section 24 : Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding:
A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
Section 25 stipulates that no confession made to a police officer, shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him.?No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
It is submitted by the learned counsel that the policy behind Section 25 is to exclude all confessional statements made by the accused to the police officer under the circumstances while he is in custody of the police except as is provided in Section 27. Section 25 was enacted to put a stop to the extortion of confession. It was, therefore, enacted to sub-serve a high purpose.
The basic object of this section and Section 26 is to prevent practices of torture by the police officers for the purpose of extracting confessions from the accused persons. Although both sections seek to achieve same purpose they operate in different fields. It is well known that the police officer to secure confession uses short cut methods even by putting the arrested person into third degree so that the arrested person confesses. "The principle upon which the rejection of confession made by an accused to a police-officer or while in the custody of such officer (Section 26) is founded that a confession thus made or obtained is untrustworthy." This is the reasons for which no confession made to a police officer shall be proved under section 25 as against person accused of an offence.
It is next contended that recovery of knife and the underwear is not legally proved. The extrajudicial confession made before Brijkishore Singh (P.W.2) is not worthy of credence as he is the sympathizer of the police personnel. To corroborate the extra judicial confession the prosecution has failed to prove on record the statement of the appellant under section 164 Cr.P.C. when it was the legal requirement to produce him to show that the confessional statement made by him is free from any inducement, coercion,duress or influence and that he had made the extrajudicial confessional statement voluntarily. The first information report which is the basis of prosecution of the appellant is confessional one hence it cannot be used against him. Learned counsel for the appellant further stated that recovery of knife is also hit by the provision under section 27 Evidence Act as the disclosure of the statement of the appellant was not reduced in writing. The report of the Serologist report does not confirm that blood existing on the knife and the underwear were same while Group "AB" was shown only on the underwear. The incident is of 10.9.1982 whereas the knife and other articles were sent after one month for chemical examination and after one month mentioning about the group of blood 'AB" which cannot be possible hence the reports of the chemical analyst /Serologist create serious doubt about its verity and veracity. The medical report also does not corroborate with the recovery of weapon of assault i.e. knife. The statement of the family members of the accused appellant was recorded under section 161 Cr.PC. Subedar, the uncle of the appellant was not examined during the course of trial. Ram Charan has implicated the appellant as the appellant was suspecting extra marital relation with his wife. There is no strong motive behind the commission of the crime. This motive only raises suspicion against the appellant for committing the murder of his wife. Any suspicion cannot take place of concrete evidence. The law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession, even if it is admissible in evidence. The learned Sessions Judge committed manifest error placing reliance on the extra judicial confession which is very feeble and fragile type of evidence under the law.
To buttress his submission learned counsel for the appellant has relied upon the decision of Apex Court in re Aghnoo Nagesia versus State of Bihar AIR 1966 (SC) 119 that a 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. 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 along with 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. 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. The burden lies on the prosecution to prove that the offence was committed by the accused alone beyond all reasonable doubt. In a murder case when the prosecution fails to discharge this burden that the accused alone was guilty of the offence and there was no direct evidence to connect him with the crime then the manner and circumstances in which the murder took place becomes doubtful . The conduct of the witnesses was unnnatural and the incriminating articles remained uncorroborated by an independent witness. The accused appellant cannot be held liable and the conviction of the appellant may be set aside as from the evaluation of entire facts and circumstances of the case, it emerges out that the testimony of all the prosecution witnesses is tainted with malice and animus. The prosecution witnesses had already been nurturing animus against the appellant-accused so as to wreak their vengeance and they have succeeded in their filthy and nefarious design hence their testimony cannot be trusted upon. The judgment & order passed by the learned Sessions Judge NMA Kanpur dated 30.5.1983 basing on their testimony and other uncorroborated incriminating materials does not sustain and deserves to be set aside and the life and the liberty of the appellant who has been facing false accusations since long may be set aside.
In support of his contention, learned counsel for the appellant has placed reliance on a catena of decisions which are delineated hereunder :
1. Khatri Hemraj Amulakh versus State of Gujarat AIR 1972 (SC) 92
2. Ram Beti Versus State 1996 Cr.L.J.1512
3. Ram Sajiwan Versus State AIR 1964
4. Gopal versus State 1977 Cr.L.J.358
5. Bodhraj alias Bodha & others Vs. State of Jammu & Kashmir (2002) 8, SCC 45
6. Anter Singh Vs. State of Rajasthan (2004) 10,SCC 657
7. Jackaran Singh versus State of Punjab AIR 1995 SC 2345 Learned counsel for the accused-appellant concluded that the judgment and order passed by the learned trial judge is per se illegal and erroneous whereby the appellant has been awarded life imprisonment merely on suspicion which cannot take the place of proof when there are serious irregularities and lapses on the part of the prosecution. All the witnesses produced by the prosecution are highly interested and inimical who succeeded in accomplishing their evil design. There are material inconsistency in the prosecution version and the statement of the witnesses which itself creates suspicion about the incriminating circumstances framed against him. The first information report had been lodged putting pressure upon the accused appellant and the explanation given by the prosecution does not unravel about its verity and truthfulness. There is no independent witness to support the prosecution version. No strong motive has been attributed for committing the said incident. The motive assigned to the appellant for committing the gruesome and barbarous murder of his wife does not inspire any confidence corroborating its truthfulness and probity. The accused-appellant is absolutely innocent and had been made escape goat on account of conspiracy of the witnesses. The testimony of prosecution witnesses cannot be taken into account for the purpose of reliability and credibility of the prosecution version as there is embellishment in the testimony of prosecution witnesses.. The story narrated in the first information report is highly fatal to the prosecution version casting shadow on its correctness and faultlessness. The prosecution has failed to prove its case beyond reasonable doubt against the accused appellant. The impugned judgment and order dated 30.5.1983 which does not stand on justifiable and valid ground may be set aside and the appellant may be allowed setting at liberty.
Per contra learned AGA contended that the entire case rests on the circumstantial evidence. No-one has seen the actual perpetrator of the crime by whom the wife of the appellant was murdered. Since the murder has been committed inside the house of the appellant burden lies upon him in view of section 106 Evident Act. Section 106 Indian Evident Act contemplates that where any fact is especially within the knowledge of any person the burden of proving the fact lies on that person. The fact may be of affirmative or negative character. The prosecution is not bound to prove motive of any offence in a criminal case, inasmuch as motive is known only to the perpetrator of the crime and may not be known to others. The moot point for consideration is that the dead body was found in the room which was used by the appellant and merely by showing in the site plan that the room is of Ram Sewak would not absolve the accused appellant from his liability. It is not the case of the appellant that some other person had committed the murder of his wife. In case any stranger had eliminated to the wife of the appellant ,no-one has come forward to approach the police station concern to lodge the first information report against unknown persons. We also find that the appellant had stated in his statement under section 313 Cr.P.C. that he was at Kanpur and he was brought from Kanpur but he failed to adduce any evidence to prove this fact. The accused appellant had made extra judicial confession before Raj Kishore (P.W.2) on the basis whereof report was handed over at the police station. Confessional statement while in custody can only be hit by section 24 & 25 Evidence Act. The written report was submitted by the appellant. He was not at all in custody of the police. The trial court has rightly accepted the evidentiary value of the extra judicial confession . The knife was recovered at the instance of the accused appellant. The underwear of the appellant stained with human blood was seized from him of which memo was prepared itself is sufficient to prove that the appellant had committed the relentless and fiendish murder of his wife. It is ultimately a matter of appreciation of evidence and, therefore, each case rests on its own facts. The victim was found dead in her room in the matrimonial home therefore, it cannot be said that it is a case where two views are possible. Evidence of witnesses was duly corroborated by medical evidence The plea of alibi of the appellant has also been found false. The fact of his giving information is admissible under section 8 of Indian Evidence Act. On 10.9.1982 Brijkishore (P.W.2) produced the appellant before the police station concerned and uttered that the appellant had made extra judicial confession about the killing of his wife because the latter was suspecting her chastity with Ram Charan (P.W.6). It cannot be said that the first information report is the pressure or threat of the police. The written report had been produced at the police station by the appellant himself in writing. There is no dispute about the identity of the deceased. The learned trial court has rightly found the appellant guilty of committing the murder of his own wife in an inhuman manner by slitting her throat with knife. The conviction and sentence has been awarded to the accused appellant by the learned trial court after appreciation of entire evidence on record hence the conviction and sentence awarded to the accused appellant may be maintained.
We have considered the submission canvassed by the learned counsel for the appellant and the learned AGA appearing on behalf of the State.
It is pertinent to mention here that all the witnesses were put to lengthy cross-examination, but nothing could be elicited by way of cross-examination so as to create doubt about their testimonies. All the prosecution witnesses have supported the prosecution case. Their testimonies have been well supported by the medical evidence. The first information report is admittedly in the hand writing and the signature of the accused appellant. There is complete consistency and coherence in the examination-in-chief and cross-examination of the aforesaid prosecution witnesses. The place, time and date on which the offence was committed and by whom the offence was committed, has been revealed in the FIR, There is nothing on record to show if the prosecution witnesses had any animus against the appellant-accused so as to implicate him falsely in the present case. Considering the entire facts and circumstances of the case, we are of the considered view that the testimony of aforesaid prosecution witnesses are cogent, credible and trustworthy and have a ring of truth and deserves acceptance. There appears no justification to disbelieve the statements of the aforesaid prosecution witnesses.
On the issue of extra judicial confession, Brijkishore Singh (P.W.2) deposed that he was the ex.pradhan of Sheorajpur. The accused appellant approached him and disclosed that he had committed murder of his wife and he should be taken to the police station. He deposed that he along with appellant approached to the police station concerned. It is neither the defence version that the appellant was arrested earlier nor has it been challenged that he was not produced before the police personnel, nor it is the case of the defence that the appellant had been arrested from somewhere else . In his statement Brijkishore (P.W.2) under section 161 Cr.P.C. also disclosed that the appellant had informed him that due to terror and tremor of police personnel, he may be allowed to accompany him as Brijkishore (P.W.2) had good rapport with police personnel because of being Pradhan. In the case of Rajasthan versus Rajaram (2003) (8) SCC 180 SC. the Hon'ble Apex court held as under :-
An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it.
After going through the evidence of Brijkishore (P.W.2) we arrive at irreversible and inescapable conclusion that Brijkishore (P.W.2) being an independent witness and by no means could be held to be biased or inimical to the accused appellant. There is nothing on record to indicate that he had any motive to falsely implicate the accused appellant nor had any prior meeting of mind to level false accusations against the accused appellant by making untrue and biased statement. He made crystal clear statement that the accused appellant disclosed to him that he had liquidated his wife by committing her murder. This Court does not find any cogent reasons to disbelieve the deposition of Brijkishore (P.W.2) in respect of extra judicial confession made by the appellant on the score of which first information report was registered. This confessional statement made before Brijkishore (P.W.2) who entered in the witness box and offered himself for cross examination therefore, the confessional statement so made cannot be doubted. Such a confessional statement cannot be treated to come within the periphery of section 24 & 25 of the Indian Evidence Act to denote that it was made for the first time before the police while in custody under any kind of threat,duress or promise about committing the murder of his wife. The celebrated decision of the Apex Court in Nisar Ali Vs. State of U.P. 1957 SC 550 observed that if the FIR lodged by the accused is non-confessional, it may be admissible in evidence against the accused as an admission under Section 21 of the Evidence Act regarding certain facts.
It is also necessary to be emphasized that the witnesses before whom confessional statement has been made i.e. P.W.2 Brijkishore is also witness of recovery of knife along with P.W.3 Lalta Prasad and P.W.8 Om Prakash Ojha as such recovery cannot be doubted. The recovery will become more acceptable and would gain credibility as the witnesses who have heard confessional statement would also have opportunity to see what was confessed has resulted in the discovery of dead body ,blood stained underwear and knife in terms of the confession which corroborate certain potion of FIR lodged by the appellant.
It has also been argued by the learned counsel for the accused appellant that confessional statement of the appellant has no evidentiary value because it was extracted from the accused under duress, inducement, threat or promise by the police. The Evidence Act clearly provides that any person not being in the custody of police if makes such statement which reveals to some information leading to the recovery of incriminating articles or discovery of any facts concerning alleged offence such statement can be proved against him. It is compatible at this stage to have a look on section 27 of the Evidence Act. 27. How much of information received from accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
The recovery of knife and the dead body of the deceased Rajkumari at the disclosure of the accused appellant which corroborates his confessional statement and proves his guilt therefore, the confessional statement of the accused appellant stood proved and satisfied the test of section 27 of the Act. Each and every admission of an incriminating fact contained in the confessional statement is part of the confession.
It was on the basis of disclosure made by the appellant the recovery of the knife saturated with human blood was found from the shrub. It will be within the knowledge of the perpetrator of the crime who will be present at the the moment of crime and should have known about the commission of the offence. The appellant had exclusive knowledge about the place of occurrence. The Panchnama drawn on the basis of his disclosure has been corroborated by independent witnesses . The court below on analyzing the entire factum of case as well as the material evidence has reached on inescapable and irretrievable conclusion that the accused appellant is the perpetrator of the said crime.
It is true that there are some minor contradictions in the depositions of the prosecution witnesses of facts that too in regard to the subsequent events and not to the actual incident. Considering the entire facts. and circumstances of the case, we are of the considered opinion that contradictions are not so material which goes to the root of the case and materially affect the core of the prosecution case. Therefore, minor contradictions cannot be taken to be a ground to reject the testimony of the prosecutions witnesses of facts. In the deposition of witnesses there are always normal discrepancies due to normal errors of observation, loss of memory, mental disposition of the witnesses and the like. Unless, therefore, the discrepancies are "material discrepancies" so as to create a reasonable doubt about the credibility of the witnesses, the Court will not discard the evidence of the witnesses. If the evidence is untrustworthy and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect prosecution case but not every contradiction or omission which has been settled by the Hon'ble Apex Court in State of U.P. Versus M.K.Anthony 1985 (22) ACC 50 SC , Appabhai and another versus State of Gujarat 1988 (25) ACC 168 SC.
Bearing in mind the principles regarding appreciation of evidence, it is required to be appreciated to find out what part out of the evidence represents the true and correct states of affairs. It is for the Court to separate the grain from the chaff. The Court cannot draw adverse inference only because all the witnesses have not been examined, if the evidence of the witnesses produced are trustworthy, the Court can rely on the said evidence to convict the accused. This is because it is quality and not the quantity of evidence that is material. There are catena of decisions of the Apex Court that extra judicial confession of accused need not in all case be corroborated. Conviction of an accused can be based even on uncorroborated extra judicial confession if it transpires confidence. No question was put to P.W-2 Brijkishore that extra judicial confession was an outcome of any threat, inducement or allurement. The confession made by the appellant was voluntary hence no ground for warranting interference.
The appellant Rambabu took the plea of alibi and in support of proof D.W.1 Sheo Prasad Singh Kushwaha was examined who stated that at the time of occurrence ,the appellant was present at Kanpur as such he was sent along with constable to bring him at the police station where his father, brothers and their wives were detained in custody.
We have considered the testimony of the defence witness in the light of the arguments canvassed by the learned counsel for the appellant.
In law "alibi" is used to express that defence in a criminal prosecution, where the accused in order to prove that he could not have committed the crime charged against him, offers evidence that he was in a different place at that time. The plea taken should be capable of meaning that having regard to the time and place when and where he is alleged to have committed the offence, he could not have been present. The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of occurrence by reason of his presence at another place.
The Apex Court in the case of Jayantibhai versus State of Gujarat ,2002 (45) ACC 1026 (SC) has considered the law of plea of alibi and held as under :-
"The plea of alibi flows from section 11 and is demonstrated by Illustration (a) Sarkar on Evidence (Fifteenth Edition, p. 258) states the word 'alibi' is of Latin origin and means "elsewhere". It is a convenient term used for the defence taken by an accused that when the occurrence took place he was so far away from the place of occurrence that it is highly improbable that he would have participated in the crime. Alibi is not an exception (a special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. The burden of proving commission of offence by the accused so as to fasten the liability of guilt on him remains on the prosecution and would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plead of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily. If the prosecution has failed in discharging its burden of proving the commission of crime by the accused beyond any reasonable doubt, it may not be necessary to go into the question whether the accused has succeeded in proving the defence of alibi. But once the prosecution succeeds in discharging its burden then it is incumbent on the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligations is cast on the Court to weigh in scales the evidence adduced by the prosecution in proving of the guilt of the accused and the evidence adduced by the accused in proving his defence of alibi. If the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the place and time of occurrence, the Court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. The burden of the accused is undoubtedly heavy. This flows from Section 103 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. However, while weighing the prosecution case and the defence case, pitted against each other, if the balance tilts in favour of the accused, the prosecution would fail and the accused would be entitled to benefit of that reasonable doubt which would emerge in the mind of the Court.
In the case of plea of alibi the burden is on the accused appellant to prove with certainty so as to exclude the possibility of his presence at the place and time of occurrence. The prosecution in this case has successfully proved its case beyond reasonable doubt.
The blood stained knife was recovered at the instance of accused appellant and the same was sent for forensic science laboratory. The reports of the chemical examiner and the serologist demonstrate that the said knife was stained with human blood. The blood stains were disintegrated on the knife and the other articles which were examined by the forensic science laboratory. Human blood was found on the underwear of the appellant. Mere mentioning of the blood group AB , any inference that blood of some other person was obtained on the underwear is only a far fetched imagination. The recovery of knife smeared with blood having been made at the pointing of the accused appellant, the complicity of the accused appellant cannot be doubted.
It is fully established that the victim succumbed to unnatural death with blow of knife. The recovered blood stained underwear from the accused appellant Ram Babu is another circumstance to connect him with the crime as the accused appellant did not explain as to how his underwear was saturated with human blood. The report of the Serologist demonstrates that the underwear of the accused appellant and the knife were stained with human blood. The effort of the criminal court should not be to prove for imaginative doubts. The seized articles in consequence of the disclosure made by the appellant were found stained with human blood. No question was ever put in cross-examining any of the prosecution witnesses hence the hyper technical approach as projected by the defence would defeat the ends of justice and have disastrous effect.
The appellant has been prosecuted for the murder of his wife which took place inside the room as such when the death had occurred in his custody, the appellant is under obligation to give a plausible explanation for the cause of her death in his statement under section 313 Cr.P.C. The principle of law is that when incriminating circumstances is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of the circumstances to make it complete. The accused appellant by virtue of his special knowledge must offer an explanation which might lead the Court to draw a difference inference. This view has been taken in a catena of decisions by the Apex Court in re State of Tamil Nadu versus Rajendra 1999 (39) ACC 754 (SC) , State of U.P. Versus Dr. Ravindra Prakash Mittal AIR 1992 SC 2045, State of Maharastra versus Suresh 2000 (40) ACC 224 (SC), Ganesh Lal versus State of Rajasthan 2002 (44) ACC 131 (SC) and Gulab Chand versus State of M.P. (1995) 3 SCC 574.
Section 27 of the Evidence Act is based on the doctrine of confession by subsequent event. The PW 8 Om Prakash Ojha, I.O. discovered the fact that the accused appellant had thrown the knife. The statement of the appellant to the police that he had thrown the knife near his house, therefore, gets extricated from the ban contained in Sections 25 & 26 of the Evidence Act as it became admissible under section 27.
The Hon'ble Apex Court in this regard observed succinctly in State of Rajasthan Vs. Bhup Ram; 1997 ACC (34) 418 (SC) as follows:
It is clear from the above evidence that PW12 discovered the fact that respondent had buried Article 4 - pistol. His statement to the police that he had buried the pistol in the ground near his house, therefore, gets extricated from the ban contained in Sections 25 & 26 of the Evidence Act as it became admissible under Section 7. The conditions prescribed in Section 27 for unwrapping the cover of ban against admissibility of statement of the accused to the police have been satisfied. They are: (1) A fact should have been discovered in consequence of information received from the accused; (2) He should have been accused of an offence; (3) He should have been in the custody of a police officer when he supplied the information; (4) The fact so discovered should have been deposed to by the witness. If those conditions are satisfied, that part of the information given by the accused which led to such discovery gets denuded of the wrapper of prohibition and it becomes admissible in evidence. It is immaterial whether the information was supplied in connection with the same crime or a different crime. Here the fact discovered by the police is not Article 4 - pistol, but that the accused had buried the said pistol and he knew where it was buried. Of course, discovery of said fact became complete only when the pistol was recovered by the police.
In this context, we think it appropriate to quote the celebrated words of Sir John Beaumont in Pulukuri Kottaya vs. Emperor: (AIR 1947 PC 67):
"The their Lordships' view it is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact.... Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; Knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant."
(emphasis supplied) The ratio therein has become locus classicus and even the lapse of 71 years after its pronouncement has not eroded its forensic worth. We may point out that this court has approvingly referred to the said ratio in a number of decisions, [e.g. Jaffer Husain Dastagir vs. The State of Maharashtra, AIR 1970 SC 1934; K. Chinnaswamy Reddy vs. State of Andhra Pradesh & anr., AIR 1962 SC 1788; Earabhadrappa alias Krishnappa vs. State of Karnataka, 1983, (2) SCC 330; Ranbir Yadev vs. State of Bihar, 1995 (4) SCC 392; Shamshul Kanwar vs. State of U.P., 1995 (4) SSC 430) Thus applying the aforesaid observation in the present case, the conditions prescribed in section 27 for unwrapping the cover of ban against admissibility of statement of the accused appellant to the police have been fully satisfied. For the sake of repetition, they are: (1) A fact should have been discovered in consequence of information received from the accused; (2) He should have been accused of an offence; (3) He should have been in the custody of a police officer when he supplied the information; (4) The fact so discovered should have been deposed to by the witness. If those conditions are satisfied, that part of the information given by the accused which led to such discovery gets denuded of the wrapper of prohibition and it becomes admissible in evidence. Here the fact discovered by the police is not knife, but that the accused had buried the said knife and he knew where it was buried. Of course, discovery of said fact became complete only when the knife was recovered by the police."
The confession of the accused appellant Rambabu consisted of several parts and revealed not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapon used, the intention, the concealment of the weapon and his subsequent conduct . It is not permissible in law to ignore one part so as to admit it in evidence as a non- confessional statement. Each part of his statement disclosed some incriminating fact which by itself proved that the accused appellant committed the said crime. If a statement contains an admission of an offence, not only that admission but also other admission of an incriminating nature contained in the statement is a part of the confession.
Section 161 Cr.P.C provides for oral examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. The purpose for and the manner in which the statement recorded by police under Section 161 Cr.P.C can be used at any trial are indicated in Section 162 Cr.P.C. Section 162 Cr.P.C reads as under:
"162. Statements to police 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 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 and is used by the accused, and with the permission of the court, by the 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 shall 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."
The statement of the accused appellant sought to be excluded from evidence must be ascribable to the enquiry conducted by the investigating officer and not one which dehors the enquiry. In case on the basis of the information , the Officer In-charge is prima facie satisfied about the commission of a cognizable offence and he proceeds from the police station after recording such information to investigate such offence then any statement made by any person in respect of the said offence including the appellant shall be deemed to be a statement by a person to the police officer in the course of investigation covered by section 162 Cr.P.C..
Learned counsel for the appellant has made a feeble attempt that if the prosecution case (thought not admitted) is taken to be true, would not travel beyond offence under Section 304 IPC as there was no intention to cause death of his own wife or to cause such bodily injury as would likely to cause death. It could be for the reason that he was deprived of self control by grave and sudden provocation which compelled him to cause her death.
The overt act of the accused appellant at the relevant moment is fully established and is unimpeachable beyond a shadow of doubt consistent with the hypothesis of the guilt of the accused appellant that within all human probability the act has been done by the accused appellant alone. The appellant himself taking knife from Kanpur in the mid night arrived at his residence shows that as he was suspecting his wife's infidelity he took the drastic step in slitting her throat by giving a single blow. The manner in which the victim was done to death with knife has portrayed very inhuman and gruesome state of mind of the accused appellant. The occurrence is fully supported by the testimony of eye witnesses and the medical evidence which cannot be overclouded by any stretch of imagination or suspicion. In the course of cross examination, the defence side has tried to evolve a story of false implication in order to overshadow the testimony of the eye witnesses. There is no doubt that the accused appellant had not perpetuated the crime in a very relentless and devilish manner. The motive for committing murder cannot be anything else but one suggested by the prosecution. In fact it is an admission by the accused appellant and the prosecution has to do nothing in the matter since all the material was supplied by the accused appellant himself showing his conduct which is admissible under section 8 of the Evidence Act. The decisions supplied by the learned counsel for the appellant does not have any applicability with the present set of facts. The submission made by the learned counsel Shri Sachan is that prosecution of the accused's innocence as a golden thread running through the web of criminal law is merely worth taking note of and not worth consideration under the circumstances, as the chain of events is complete and on a cumulative consideration of each event leads to the conclusion that the said crime was committed by the accused appellant and none else.
On the basis of verbose and prolix discussions made above and also considering the material evidence on record, we are of the considered opinion that findings of conviction for the offence punishable under Section-302 of the Indian Penal Code recorded by the Trial Court against the appellant Ram Babu are well substantiated by the evidence on record. The Trial Court has appreciated the evidence in the right perspective, as such we do not find any justification to interfere with the findings, therefore, judgment and order dated 30.5.1983 passed by the learned Sessions Judge, Kanpur under section 302 IPC is hereby maintained and affirmed . The appeal is accordingly dismissed.
If the appellant Ram Babu is on bail, then his bail bond is hereby cancelled and he is directed to surrender before the court concerned forthwith, failing which the learned Sessions Court shall take appropriate steps to put the appellant back in jail to undergo the sentence as awarded to him.
Let a copy of the judgment along with the lower court record be immediately sent to the court below for compliance and necessary entries be maintained in the relevant register.
(Naheed Ara Moonis.J.) I agree.
(Shashi Kant.J.) Order Date :- 18.1.2019 Naim