Chattisgarh High Court
Ram Bhagat vs State Of M P (Now Chhattisgarh) on 25 June, 2010
Author: Dhirendra Mishra
Bench: Dhirendra Mishra
HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No.501 of 1994
Ram Bhagat
...Petitioners
Versus
State of M P (now Chhattisgarh)
...Respondents
! Shri Uttam Pandey, counsel for the appellant
^ Shri Ashish Shukla, Govt. Advocate for the State/respondent
Honble Shri Dhirendra Mishra,Honble Shri R.N. Chandrakar, JJ
Dated: 25/06/2010
: Judgment
J U D G M E N T
(Delivered on 25th June, 2010) The following judgment of the Court was delivered by Dhirendra Mishra, J.
1. This criminal appeal under Section 374 (2) of the Cr.P.C. is directed against the judgment of conviction and order of sentence dated 19-4-1994 passed in S.T. No.107/92 whereby learned 2nd Additional Sessions Judge, Durg after holding the appellant guilty of murder for causing death of his wife Shakun Bai, has convicted him under Section 302 of the IPC and sentenced him to life imprisonment.
2. Case of the prosecution, in brief, as reflected from the report lodged by the appellant himself, is that he kept Shakun Bai as his wife and resided with her in a house situated at Barbaspur. The appellant sold his house and kitchen garden to one Kishan Gond. In the meanwhile, his wife had gone to Rajnandgaon to her parents. After a week she returned Barbaspur and started residing in the same house after breaking open the lock. When the appellant learned about this from Kishan Gond, he returned from Gunderdehi and persuaded her and on her refusal, he picked up a quarrel with her. Shakun Bai resided with her daughter Manju and son Sunil Kumar in the same house. She frequently visited her maternal uncle at Rajnandgaon against the advise of the appellant. On 4-6- 1991, he came to Barbaspur with his wife and children and tried to convince her to live with him, however, she insisted to go to Rajnandgaon, as a result on the date of the incident, he committed her murder and at that time, her daughter Manju was present. She was weeping and was stopping him. After committing her murder, he bolted the house from outside and went to lodge the report with both the children.
3. After registering crime, the police proceeded for the scene of occurrence. After preparing inquest (Ex.-P/12) over the person of the deceased, her dead body was sent for autopsy to Government Hospital, Gunderdehi where Dr. C.B. Gupta conducted postmortem and gave his report vide Ex.-P/8. On the basis of memorandum Ex.-P/3 of the appellant, weapon of offence lathi was taken into possession from the appellant vide Ex.-P/4.
4. After completing usual investigation, charge sheet was filed in the Court of Judicial Magistrate 1st Class, Durg, who in turn committed the case to the Court of Sessions Judge and the same was received on transfer for trial by learned Additional Sessions Judge.
5. The trial Court framed charge under Section 302 of the IPC against the appellant who abjured his guilt.
6. The prosecution in order to establish the charge against the appellant examined 10 witnesses. Thereafter statement of the accused was recorded under Section 313 of the Cr.P.C.. The appellant denied the circumstances appearing against him in the prosecution case and pleaded innocence.
7. The trial Court after hearing learned counsel for the respective parties, convicted and sentenced the appellant as mentioned in paragraph-1 of the judgment.
8. Homicidal death of Shakun Bai is not in dispute. Even otherwise, from the evidence of PW-2 Manju, daughter of the appellant and the deceased, who claims to have seen the incident and further on the basis of evidence of Dr. CB Gupta (PW-7) who has conducted postmortem over the person of the deceased and has found the following injuries and opined that mode of death of the deceased as asphyxia due to throttling and homicidal in nature, homicidal death of the deceased is established.
z "tongue of the deceased was swollen and bitten between teeth;
z eyes protruded and dilated. Injuries were present on the centre of the head and neck and the same were caused by hard and blunt object.
9. Shri Uttam Pandey, learned counsel for the appellant would argue that conviction of the appellant is mainly based on the evidence of child witness Manju, aged about 6 years. In examination-in-chief, though she has stated that her father killed the deceased by lathi, but from perusal of her cross- examination, it is evident that she is tutored witness. She came to the Court with her maternal uncle and deposed as tutored by her maternal uncle. Thus looking to her age and her version in cross-examination, the trial Court was not justified in relying upon her evidence and benefit of doubt ought to have been extended to the appellant. He further argued that learned trial Court, on the fact that the appellant himself lodged first information report, on the basis of allegation in the report, has held that at the time of the incident Manju and accused alone were present in the house.
Relying upon the decision of the Supreme Court in the matter of Aghnoo Nagesia Vs. State of Bihar {AIR 1966 SC 119}, it was argued that where the first information report is given by the accused to the police officer, the same amounts to confessional statement and the proof of confession is prohibited by Section 25 of the Evidence Act. The confession also includes not only admission of the offence, but all other admissions of incriminating facts related to the offence contained in confessional statement and no part of confessional statement is receivable in evidence.
10. On the other hand, learned counsel for the State supporting the impugned judgment argued that it is a house murder of wife committed by her husband inside the house.
Relying upon the decision in the matter of Bheru Singh, S/o Kalyan Singh Vs. State of Rajasthan {1994) 2 SCC 467}, it was argued that where FIR is given by the accused himself to the police officer, no part of confessional statement can be proved or received in evidence, however, it is admissible to the extent it is permissible under Section 27 of the Evidence Act. Non confessional part of the information would also be relevant under Section 21 of the Evidence Act. In FIR, the appellant mentioned the presence of Manju in the house at the time of the incident. This part of FIR is non confessional and relevant under Section 21 of the Evidence Act. The evidence of child witness is to be appreciated in the backdrop of the aforesaid fact.
11. Heard learned counsel for the parties, perused the record as also impugned judgment.
12. PW-10 Bhikham Singh has deposed that he recorded first information report of Ex.-P/1 on the basis of information given by the appellant. In cross-examination, he has stated that the accused told him that he has murdered his wife, thereafter he recorded the report in the presence of witnesses.
13. PW-1 Itwari has admitted his signature in the FIR (Ex.- P/1), however, he has deposed that he resides at a distance of 100 meter from the police station. On the date of the incident, he was called in the police station and he had put his signature at the instance of head constable. The appellant did not give any information in his presence though head constable informed him that appellant has murdered his wife and lodged the report. The other witness of the FIR namely Om Prakash has not been examined. The appellant has neither examined any witness in his defence nor explained the circumstances in which he lodged the report of Ex.-P/1. In reply to question No.26 of his examination under Section 313 of the Cr.P.C. that Bhikham Singh states that he recorded the report lodged by Ram Bhagat as told by him vide Ex.-P/1 which bears his signatures, he has simply stated that it is incorrect.
The argument of learned counsel for the appellant is that witness Itwari has denied that the appellant lodged the report in Police Station and Om Prakash, the other witness, in whose presence report was lodged, has not been examined and the appellant has denied lodging any report. In these circumstances, the prosecution has failed to prove that the appellant lodged the report.
14. We are unable to accept the above argument and we see no reason as to why PW-10 Bhikham Singh, who registered the FIR and who has proved FIR lodged by the appellant and FIR bears his signatures, should be disbelieved and accordingly, we hold that first information report of Ex.-P/1 was given by the appellant in the Police Station and investigation commenced thereafter.
15. The question for our consideration is - what is the evidentiary value of a confessional first information report by the accused to a police officer?
16. While considering this question, 3 Hon'ble Judges of the Supreme Court in the matter of Aghnoo Nagesia (Supra) held that where the report given by the accused amounts to confessional statement, proof of the same is prohibited by Section 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of Section 25 is lifted by Section 27. It has been further held that except the formal part identifying the accused as the maker of the report and the fact that investigation had started thereon, no other part would be tendered in evidence.
17. In Bheru Singh (Supra), the Hon'ble Supreme Court, while considering the above issue, held thus:-
"Where the FIR is given by an accused himself to a police office 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 FIR 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 FIR, 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 FIR 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. If we examine the facts of the present case in the light of the aforesaid judgments, we are of the opinion that from the evidence of Bhikham Singh (PW-10), who has proved first information report of Ex.-P/1, it is established that report of the offence in question was lodged by the appellant and investigation was set into motion after registering the crime vide Ex.-P/1. The other facts mentioned in the first information report i.e. the appellant kept the deceased as his wife and he sold the house in which they were residing to one Kishan Gond and his wife broke open the lock of the same house and started residing there; he tried to persuade his wife to leave that house and reprimanded her for not leaving; there were frequent quarrels with his wife on various pretexts and thereafter he committed her murder in presence of his daughter Manju and left the deceased and the daughter in the house and after bolting the door from outside; cannot be read into evidence as all these evidence amounts to confession and its admission in evidence is prohibited under Section 25 of the Evidence Act.
19. PW-2 Manju is 6 years old daughter of the deceased and the appellant. The trial Court after putting her some preliminary questions recorded her statement without administering oath. This witness has deposed that her mother is dead. She was murdered by her father (Babu). He assaulted her with lathi. She has identified the appellant in the Court as her father.
20. In cross-examination, in reply to question whether she has come with her maternal uncle, she has answered in affirmative. In reply to another question as to what her maternal uncle has told her, she replied that he has told her to narrate about the incident. To another question whether her maternal uncle told her that her father murdered her mother by pressing her neck and pulling her leg, she answered that he told this to her. To the question whether she is deposing as tutored by her maternal uncle, she has answered in affirmative. On re-examination by the prosecution that whether she has witnessed the incident, she answered in affirmative and stated that she is deposing what she has seen and her maternal uncle has also told this. To the suggestion by the defence in further cross-examination that "she has not witnessed the incident", she has replied "I was awoke", however, to the other two suggestions by the defence that she is deposing as tutored by her maternal uncle, she has answered in affirmative.
21. The question for our consideration is - whether the trial Court was justified in convicting the appellant by placing implicit reliance on the evidence of child witness?
22. Indisputably, PW-2 Manju, is the daughter of the appellant and the deceased. She was residing with her mother at the time of incident. The defence has not suggested her in her cross-examination that the appellant was not present in the house at the time of incident. To the suggestion by the defence that she has not witnessed the incident, she has stoutly denied and stated that she was awoke at that time. The version of child witness is to be appreciated in the light of the fact that the appellant himself gave first information report to the police and on his report, crime was registered and investigation commenced thereafter. The appellant has not explained the circumstances in which he went to the police station and lodged the report and how his wife died.
23. Thus, if we examine the evidence of child witness in the background of this fact, the appellant himself gave report to the police about the crime in question and he has offered no explanation about the circumstances in which he went to the police station and lodged the report either in his statement under Section 313 of the Cr.P.C. or by way of examining any defence witness. He has also not denied his presence on the spot. The only defence of the appellant is that PW-2 Manju is a tutored witness. On close scrutiny of the evidence of PW-2 Manju and overall conduct of the appellant, we have no hesitation in accepting the testimony of the child witness even though she has stated that she has been tutored by her maternal uncle and overall evidence of this witness inspires confidence.
24. For the aforesaid reasons, we are of the opinion that the trial Court was wholly justified in acting upon the evidence of PW-2 Manju and convicting and sentencing the appellant under Section 302 of the IPC.
25. In the result, we find no substance in this appeal, the same deserves to be and is accordingly dismissed. The appellant is on bail. His bail bonds are cancelled and he is directed to surrender before the trial Court forthwith to serve the sentence imposed upon him.
J U D G E J U D G E