CASE NO.: Appeal (crl.) 829 of 2007 PETITIONER: Ajay Singh RESPONDENT: State of Maharashtra DATE OF JUDGMENT: 06/06/2007 BENCH: Dr. ARIJIT PASASYAT & D.K. JAIN JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (Crl.) No.2954 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a
Division Bench of the Bombay High Court, Nagpur Bench,
dismissing the appeal filed by the appellant. Appellant faced
trial for alleged commission of offence punishable under
Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’).
He was convicted by learned Ist Additional Sessions Judge,
Nagpur and sentence of life imprisonment and fine of Rs.200/-
with default stipulation was imposed. Appeal filed against the
judgment, as noted above, was dismissed.
3. Prosecution version as unfolded during trial is as follows:
The appellant-accused was tried on a charge of having
committed murder of his wife Smt. Latabai (hereinafter
referred to as ‘deceased’) by pouring kerosene on her person
and setting her ablaze in the night of 29.4.2003 i.e. at about
1.30 a.m. in the police quarters No. 203/3 at Raghuji Nagar,
Sakkardara at Nagpur. Appellant-accused was residing in the
said quarters along with his wife-the deceased and children.
On the fateful night when the neighbouring residents, mostly
police personnel were in their respective quarters and sleeping
in the courtyards, they heard sound of the tape-recorder,
which was being played by the appellant-accused, at about
1.30 a.m. in the night which awakened them. They heard the
appellant-accused and his wife quarrelling and saw the
appellant-accused dragging the deceased inside the house by
holding her hands and after a short while they noticed the
appellant-accused coming out of his quarters and shouting
“Kaka Lata Mere Hatho se Mar Gai” and fled away. Thereafter,
the neighbours entered the quarters of the appellant-accused
and saw that Lata had caught fire. They tried to extinguish the
fire, but, as she had sustained excessive burns before she
could be removed to hospital, she died on the spot. Due to this
incident, all the people in the neighbourhood had gathered at
the place of’ the incident and report (Exh. 80) in the matter
came to be lodged by Police constable Krishna Sadashiv Lute
(P.W. 1) at Police Station Sakkardara. The said report was
taken down in the proforma prescribed under Section 154 of
the Code of Criminal Procedure, 1973 (in short the ‘Code’)
which is Exb. 19, by P.S.I. Kale (P.W. 11). P.S.I. Kale registered
offence under Section 302 of IPC vide Crime No. 192/93 of
Sakkardara Police Station. Thereafter, he visited the place of
the incident and prepared the spot panchnama (Exb. 40) in
the presence of the panchas. He noticed that deceased Lata
was fully burnt and her neck was stretched towards her
stomach and her hands were crouching, both her legs were
drawn towards abdomen side. He also noticed partly burnt
matters on her person which was little bit wet. In the kitchen,
he noticed that there was a tin, which was containing some
kerosene, match sticks and other material which he recorded
in the spot panchanama and seized the Articles 1 to 7. P.S.I.
Laxman Tighara (P.W. 9) took over the investigation of the case
on 29.4.1993. He arrested the appellant-accused at about
7.00 p.m, who was found near statute of Tukdoji Maharaj,
prepared the arrest panchanama and seized his clothes. The
appellant-accused was referred to medical officer for his
medical examination. In the course of investigation, the
inquest Panchanama (Exb. 22) of the dead body of’ Latabai
was prepared and dead body was sent to Department of
Forensic Medicines, Medical College, Nagpur for conducting
post mortem. The Medical Officer conducted the post mortem
and gave the report (Exb. 31), which was admitted by the
appel1ant-accused and, therefore, the prosecution did not
examine any Medical Officer. The police recorded statement of’
witnesses in addition to completing the formalities of
forwarding the articles, seized during the investigation, to the
Chemical Analyser. After investigation was completed, charge-
sheet came to be filed against the appellant-accused. His case
was committed to the court of Sessions for trial. As accused
pleaded innocence, he was put to trial.
4. The trial Court found the accused guilty primarily on two
grounds; (a) there was extra judicial confession made before
PWs 1, 3 and 4; (b) kerosene was found on the dress which the
accused was wearing at the time of occurrence. Placing
reliance on these two aspects, the trial Court found the
accused guilty. High Court concurred with the conclusions.
5. In support of the appeal, learned counsel for the
appellant submitted that there was no extra judicial
confession as claimed. Admittedly, PW-1 had animosity with
the accused because the said witness used to peep in the
bathroom of the accused when his wife-deceased was taking
bath. This aspect has been admitted by not only PW-1 but also
PW-3. The latter being the wife of PW-1 was bound to support
the statement of PW-1. There is great difference in the
language the accused is supposed to have stated. It was
admitted by PWs 1 and 3 that accused is supposed to have
addressed the utterances towards “Kakaji” and this reference
could be not only to PW-1 but also another neighbour of the
accused. The officer who had given the FSL report was not
examined as a witness.
6. Learned counsel for the respondent submitted that the
Trial Court and the High Court have examined in detail the
evidence and come to the conclusion about guilt of the
accused.
7. We shall first deal with the question regarding claim of
extra judicial confession. Though it is not necessary that the
witness should speak the exact words but there cannot be
vital and material difference. While dealing with a stand of
extra judicial confession, Court has to satisfy that the same
was voluntary and without any coercion and undue influence.
Extra judicial confession can form the basis of conviction if
persons before whom it is stated to be made appear to be
unbiased and not even remotely inimical to the accused.
Where there is material to show animosity, Court has to
proceed cautiously and find out whether confession just like
any other evidence depends on veracity of witness to whom it
is made. It is not invariable that the Court should not accept
such evidence if actual words as claimed to have been spoken
are not reproduced and the substance is given. It will depend
on circumstance of the case. If substance itself is sufficient to
prove culpability and there is no ambiguity about import of the
statement made by accused, evidence can be acted upon even
though substance and not actual words have been stated.
Human mind is not a tape recorder which records what has
been spoken word by word. The witness should be able to say
as nearly as possible actual words spoken by the accused.
That would rule out possibility of erroneous interpretation of
any ambiguous statement. If word by word repetition of
statement of the case is insisted upon, more often than not
evidentiary value of extra judicial confession has to be thrown
out as unreliable and not useful. That cannot be a
requirement in law. There can be some persons who have a
good memory and may be able to repost exact words and there
may he many who are possessed of normal memory and do so.
It is for the Court to judge credibility of the witness’s capacity
and thereafter to decide whether his or her evidence has to be
accepted or not. If Court believes witnesses before whom
confession is made and is satisfied confession was voluntary
basing on such evidence, conviction can be founded. Such
confession should be clear, specific and unambiguous. The
evidence of PWs 1, 3 and 4 is not consistent as to where the
accused is supposed to have made the statement. While PW-1
said that he was inside the house, interestingly PW-3 stated
that accused did not come out of the house and thereafter he
did not utter a statement which is taken to be the extra
judicial confession. So far as PW-4 is concerned the trial Court
had disbelieved his evidence, the High Court found the same
to be credible. Significantly, he stated that the accused came
near his courtyard and shouted “Kakaji Daudo Lata Jal
Gayee”. In contrast, PW-1 stated that “Kakaji Lata Mar Gaye
mere hathse”. PW-3 in contrast said “Kakaji Mere hathse Lata
Jal Gayee”. It would, therefore, be not safe to place any
reliance on the so called extra judicial confession.
8. The expression ‘confession’ is not defined in the Evidence
Act, ‘Confession’ is a statement made by an accused which
must either admit in terms the offence, or at any rate
substantially all the facts which constitute the offence. The
dictionary meaning of the word ‘statement’ is “act of stating;
that which is stated; a formal account, declaration of facts
etc.” The word ‘statement’ includes both oral and written
statement. Communication to another is not however an
essential component to constitute a ‘statement’. An accused
might have been over-heard uttering to himself or saying to his
wife or any other person in confidence. He might have also
uttered something in soliloquy. He might also keep a note in
writing. All the aforesaid nevertheless constitute a statement.
It such statement is an admission of guilt, it would amount to
a confession whether it is communicated to another or not.
This very question came up for consideration before this Court
in Sahoo v. State of Uttar Pradesh, AIR 1966 SC 40: (1966 Cr1
U 68). After referring to some passages written by well known
authors on the “Law of Evidence” Subba Rao, J. (as he then
was) held that “communication is not a necessary ingredient
to constitute confession”. In paragraph 5 of the judgment, this
Court held as follows:
…Admissions and confessions are exceptions
to the hearsay rule. The Evidence Act places
them in the category of relevant evidence
presumably on the ground that as they are
declarations against the interest of the person
making them, they are probably true. The
probative value of an admission or a
confession goes not to depend upon its
communication to another, though, just like
any other piece of evidence, it can be admitted
in evidence only on proof. This proof in the
case of oral admission or confession can be
offered only by witnesses who heard the
admission pr confession. as the case may be….
If, as we have said, statement is the genus and
confession is only a sub-species of that genus,
we do not see any reason why the statement
implied in the confession should be given a
different meaning. We, therefore, hold that a
statement, whether communicated or not,
admitting guilt is a confession of guilt
(Emphasis supplied)
9. So far as the prosecution case that kerosene was found
on accused’s dress is concerned, it is to be noted that no
question in this regard was put to the accused while he was
examined under Section 313 of the Code.
10. The purpose of Section 313 of the Code is set out in its
opening words- ‘for the purpose of enabling the accused to
explain any circumstances appearing in the evidence against
him.’ In Hate Singh, Bhagat Singh v. State of Madhya Pradesh
(AIR 1953 SC 468) it has been laid down by Bose, J that the
statements of accused persons recorded under Section 313 of
the Code ‘are among the most important matters to be
considered at the trial’. It was pointed out that the statements
of the accused recorded by the committing magistrate and the
Sessions Judge are intended in India to take the place of what
in England and in America he would be free to state in his own
way in the witness box and that they have to be received in
evidence and treated as evidence and be duly considered at
the trial. This position remains unaltered even after the
insertion of Section 315 in the Code and any statement under
Section 313 has to be considered in the same way as if Section
315 is not there.
11. The object of examination under this Section is to give
the accused an opportunity to explain the case made against
him. This statement can be taken into consideration in
judging his innocence or guilt. Where there is an onus on the
accused to discharge, it depends on the facts and
circumstances of the case if such statement discharges the
onus.
12. The word ‘generally’ in sub-section (1)(b) does not limit
the nature of the questioning to one or more questions of a
general nature relating to the case, but it means that the
question should relate to the whole case generally and should
also be limited to any particular part or parts of it. The
question must be framed in such a way as to enable the
accused to know what he is to explain, what are the
circumstances which are against him and for which an
explanation is needed. The whole object of the section is to
afford the accused a fair and proper opportunity of explaining
circumstances which appear against him and that the
questions must be fair and must be couched in a form which
an ignorant or illiterate person will be able to appreciate and
understand. A conviction based on the accused’s failure to
explain what he was never asked to explain is bad in law. The
whole object of enacting Section 313 of the Code was that the
attention of the accused should be drawn to the specific points
in the charge and in the evidence on which the prosecution
claims that the case is made out against the accused so that
he may be able to give such explanation as he desires to give.
13. The importance of observing faithfully and fairly the
provisions of Section 313 of the Code cannot be too strongly
stressed. It is not sufficient compliance to string together a
long series of facts and ask the accused what he has to say
about them. He must be questioned separately about each
material substance which is intended to be used against him.
The questionings must be fair and couched in a form which an
ignorant or illiterate person will be able to appreciate and
understand. Even when an accused is not illiterate, his mind
is apt to be perturbed when he is facing a charge of murder.
Fairness, therefore, requires that each material circumstance
should be put simply and separately in a way that an illiterate
mind, or one which is perturbed or confused, can readily
appreciate and understand.
14. Above being the position, the inevitable conclusion is that
the prosecution has failed to establish the accusations. The
conviction is set aside. The appeal is allowed. The appellant be
set at liberty forthwith if not required in any other case.