JUDGMENT
V.A. Mohta, J.
1. Appellant-original accused Alluri Ramayya Mondi has been convicted by the Sessions Judge, Chandrapur, under Ss. 302 and 201 of the Penal Code and aggrieved by the said conviction, the present appeal has been filed.
2. The victim of the crime is Alluri Malladu, uncle of Ramayya. Ramayya and Malladu were living separately in the same village. Ramayya was living with his wife and children. Ramayya is a liquor addict and used to mercilessly beat his wife. On 12th August, 1982 his wife left the house and did not return up to the night. Malladu went to Ramayya at 8 or 9 p.m. to advice Ramayya to behave property. Ramayya was enraged and gave blows with axe (Art. 4) on his head and face which proved to be fatal. Malladu fell in the verandah. It was raining, Ramayya dragged Malladu’s body for about 300 feet and left in a pit near a temple. In the morning the dead body was found. Samayya, the son of the deceased learnt from Shankar son of Ramayya about the incident. Police Patil Shinod Kankaiyya (P.W. 1) went to the place. On the basis of signs of dragging and blood, police patil went to the house of Ramayya where Ramayya was found wearing Dhoti (Art. 7), Vest (Art. 6), Pancha or Kurta (Art. 5). They were stained with blood, police patil found bloodstains on the floor and the bamboo matting in a verandah of the house. The floor was found smeared with dung. Police Patil and Sarpanch of the village went on foot to Sironcha. They reached police station at about 5 p.m. and lodged a complaint. P.S.I. Wasalwar registered an offence and went to the village for investigation. He drew inquest panchanama of the place where the dead body was lying. It was dark by that time. On the next day, investigation was continued. Ramayya was already detained by the villagers. Wasalwar kept him under surveillance. On the next day, that is on 14th August, 1982, statements of witnesses were recorded when it was discovered that the accused had made extra-judicial confession before Shioral Pocham (P.W. 8) and Onam (P.W. 9) of having killed Malladu. The accused was arrested. He told that he had kept the axe in his house and offered to produce the same. He took the police party to his house and from the loft produced the axe which was bloodstained near the butt. The doctor noticed the following external and internal injuries on the dead body.
External injuries
(1) Constitution over the right temporal region, size 2 c.m. x 2 c.m.
(2) Lacerated wound near the right zygote bone, size 2 c.m. x 1/4 c.m. by bone deep.
(3) Abrasion over the back in the middle, size 8 c.m. x 2 c.m.
(4) Lacerated wound on the right mandible near injury No. 2, size 2 c.m. x 1/2 c.m. by bone deep.
Internal injuries
(1) Fracture of right maxillary bone.
(2) Fracture of right zygote.
(3) Fracture right side frontal bone of the skull.
He opined that death was due to those injuries. Chemical Analyser reported that the earth (Art. 2), Bamboo mat (Art. 1), Axe (Art. 4), Lungi (Art. 5) and Vest (Art. 6) were stained with human blood.
3. As many as 12 witnesses were examined in the Sessions trial. That Malladu met with a homicidal death is duly proved by the evidence of Medical Officer Dr. Kailasham (P.W. 5) and panch Dandella (P.W. 2). There is not and cannot be any challenge to this conclusion. The trial Court relying on the extra-judicial confession and circumstantial evidence of existence of blood stains on the floor and mats in the house, the clothes of the accused, the existence of marks of blood from the house of the accused up to the place where the dead body of Malladu was lying, convicted the accused, Shioral (P.W. 8) and Onam (P.W. 9) deposed about the extra-judicial confession. They had gone near the dead body on learning that it was lying near the temple. Onam says that when he asked the accused, the accused said that he had killed Malladu and whatever happened, happened and it was his bad luck. Witness admits that when this statement was made, the police patil was present in the crowd Shioral also gives similar version.
3A. The first point is whether the confession is inadmissible under section 25 of the Evidence Act, because it was made when police patil was present in the crowd. That a police patil appointed under he Maharashtra Village Police Act 1967 is a ‘police officer’ within the meaning assigned to the term in section 25 of the Evidence Act is not disputed before us. There was, however, considerable debate on a point as to whether presence of a police officer in a crowd when confession is made by the accused to someone else attracts the bar of section 25. We do not think so. To hold that way would amount to re-writing the provision and to substitute the word “to” by “in presence of”. Such interpretation would be also against the spirit of the provision. Imagine a situation where accused makes a voluntary and instantaneous confession of his crime to his bosom friend standing in a crowd which consists also of a police officer (whose presence the accused may or may not know), who has in no manner either influenced the accused or taken any part in bringing about the confession. Imagine further that confession is not made within the hearing of the police officer. Is it the letter and sprit of the provision that even confession made in such a situation is hit by section 25 ? Answer has to be in the negative. It is, therefore, not possible to accept the submission that mere physical presence without anything more makes the confession inadmissible.
4. There is long line of judgments preferring the above view. To take few examples (i) Dal v. Emperor, AIR 1914 Oudh 414 : (1915-16 Cri LJ 62) in which confession made to a stranger though within hearing of the police officer was held admissible, (ii) Emperor v. Shankar, AIR 1934 Oudh 222 : (934-35 Cri LJ 894), where confession to a private individual in presence of a police officer was held admissible because he took no part in its bringing about, (iii) Mt. Maharani v. Emperor where confession made to village people in the course of enquiry about the deceased was held admissible even though made in the presence of a police officer and (iv) Jagjitsingh v. State, AIR 1956 Kutch 1 : (1956 Cri LJ 217) in which it is held that S. 25 refers to confession made to a police officer and not to confession made within his hearing.
In Sitaram v. State of U.P., AIR 1966 SC 1906 : (1966 Cri LJ 1519) following significant observations are made from which it is clear that legal position is crystallised :
“The presence or absence of the police officer near the accused is not decisive on the question whether the confession is hit by S. 25. A confession to a stranger though made in presence of a police officer is not hit by S. 25.”
5. Our attention was invited to the case of Hira v. Emperor, Air 1919 Bom 162 : (1919-20 Cri LJ 681) and Vistari v. State, 1978 Mah LJ 244 : (1978 Cri LJ 891) in which Hira has been merely followed. We are not prepared to accept as ratio of Hira that mere presence of a police officer without anything more makes the confession to a stranger inadmissible. No doubt there are some observations but they will have to be read in the whole context. We must at this stage hasten to clarify that it is not our view that in every case, confession made to a private individual in the presence of a police officer is admissible. Many factors such as part played and influence wielded by the police officer in bringing about a confession though to a third person would determine the question of applicability of S. 25.
6. Thus in our view confession to Shioral (P.W. 8) and Onam (P.W. 9) was not hit by S. 25. Evidence is clear and reliable. Words used in the confession are reproduced by the witness and he had no axe to grind against the accused. In the cross-examination no reason is suggested as to why they should involve an innocent person in a serious crime. No doubt in a statement under S. 313 of the Cr.P.C. the accused for the first time states about enmity but that clearly appears to be an afterthought.
7. Presence of blood marks and signs of dragging of body from the house of the accused to the pit is significant. Finding of the bloodstains on the floor and on the matting is still more significant. It is true that the P.S.I. did not find any such marks when he visited the spot; but this is possible on account of heavy rains on the earlier night. There was no reason for the police patil to make a false statement. It is not clear as to how the body was dragged. Only because there were no serious injuries on the back, buttock or other parts of the body, the conclusion cannot be drawn that no dragging had taken place. All depends upon the manner in which dragging took place. Abrasion on the back was noticed and that does corroborate the evidence of dragging. This injury is said to be ante mortem. But that does not help the defence because the doctor had opined that in such a case death may occur instantaneously or may take place even within 12 hours during which time the victim can be in a coma.
8. Prosecution witnesses Panch Bundelle, P.S.I. Wasalwar, police patil Sheoral Kanhaiyya have proved the existence of blood stains on the floor and the matting of the house of the accused. The panch witness is a school teacher. There was no reason for him to involve the accused falsely. The suggestion that school teacher was enraged because accused was not sending his children to school, does not appear to be convincing. Even the Chemical Analyser has found human blood on earth and the mat which was used as a wall for the verandah. All these are strong circumstances against the accused and they also corroborate the extra-judicial confession.
9. Then there is evidence of Kaveri Narayan (P.W. 10) who deposed that on that night he heard the cry “Avva Avva” (Mother) from the house of the accused. This witness is also independent. No suggestion is put in the cross-examination and the suggestion of enmity shown for the first time in a statement under section 313, Criminal Procedure Code, does not appear to be genuine. Only because the witness did not come out of his house, it does not mean that he was telling a lie. It was raining heavily.
10. Clothes of the accused were stained with human blood. There is no reason to disbelieve the P.S.I. who has proved this fact. It is unfortunate that the clothes were not put to the panch witnesses in evidence for identification. For the reasons stated in paragraph 18 of his judgment, the learned trial Court has not accepted the evidence of discovery and we endorse the said finding. It is thus clear that the finding recorded by the learned Sessions Judge about the accused having committed murder of Malladu is absolutely correct. So is the case with conviction under section 201 of the Indian Penal Code.
11. Under the circumstances, we see no reason to interfere either with the conviction or with the sentence. In the result, the appeal is dismissed.
12. Appeal dismissed.