JUDGMENT
K.C. Bhargava, J.
1. This appeal arises out of the judgment and order dated 19-2-1980 passed by the Sessions Judge, Kheri convicting the accused-appellant, Srimati Ram Beti, under Section 302 of the Indian Penal Code and sentencing her to life imprisonment. The facts stated in brief are that Chhotey Lal, deceased, and his wife, the present appellant, were not having good relations. It is alleged that Chhotey Lai deceased used to beat his wife and had a suspicision that his wife was not sincere to him. Ram Gopal (P. W. 4) and Ved Prakash (P.W.3) are said to have intervened in the matter and impressed upon Chhotey Lal not to beat his wife. The occurrence took place on 10-5-1978 at about 9.30 p.m. On that day at about 9.30 p.m. a gun shot was fired. At that time Ved Prakash (P.W. 3) was lying on the roof of the shop of his nephew. When he heard the noise he came out of the shop. He along with his nephew came to the house of Chhotey Lal. Ram Gopal (P.W. 4) also reached the spot. They found that the appellant had a gun in her hands and Chhotey Lal was lying on the cot in a pool of blood having gun shot wound on his head. It is the case of the prosecution that Chhotey Lal deceased had a licensed gun. When these witnesses reached the house of Chhotey Lal the appellant along with her daughter boarded a bus and went away from the place of the occurrence. It is alleged that she went to the police station on the same day and gave a report at the police station, a copy of which is Ext. Ka-6.
2. On the basis of this report a chik report was prepared by Head Constable Bhagwati Singh. The investigation was done by Iqbal Singh, Station House Officer. He recorded the statement of Srimati Ram Beti at the police station and reached the place of occurrence and found the dead body of the deceased in the north of the Khoka on a cot. As there was no light therefore the Panchayatnama was prepared on the next day. After completing the investigation a charge-sheet, Ext. Ka-17, was submitted against the appellant under Section 302, I.P.C.
3. Dr. S.C. Agarwal (P.W. 1) conducted the postmortem examination on the body of the deceased Chhotey Lal and found the following ante-mortem injuries:-
1. Gunshot wound of entry 2.5 cm. x 2.4 cm. x cranial cavity deep over left side head, temple region, just above left ear. Margins inverted and irregular. Blackening and tattooing present around the wound. Singeing of hair present.
2. Gunshot wound of exit 7 cm x 6 cm. x cranial cavity deep over right side head. Margins averted and irregular. Brain matter coming out of the wound. Right parietal bone fractured into pieces.
4. In the opinion of the doctor the death was caused due to shock and haemorrhage as a result of gunshot injury. According to him the deceased should have died at 9.00 or 9.30 p.m. on 10-5-1978. There can be a difference of 4 to 6 hours in the time of death.
5. The prosecution examined Dr. S.C. Agarwal (P.W.1) Chhotey Singh Fradhan (P.W.2), Ved Prakash (P.W. 3); Ram Gopal (P.W. 4), Head Constable Mahabir (P.W.5) and Mool Chand S.I. (P.W. 6). Out of these witnesses Chhotey Singh (P.W. 2), Ved Prakash (P.W. 3) and Ram Gopal (P.W. 4) are eye witnesses of the incident. In the statement under Section 313 Cr. P.C. the appellant stated that when she heard the noise of fire she saw that a man was running towards the eastern side. The investigating officer got her thumb impression on the first information report forcibly. She has denied the charge.
6. After considering the entire evidence on the record the learned Sessions Judge came to the conclusion that guilt of the accused-appellant is proved and as such he convicted and sentenced her in the manner aforesaid.
7. Learned counsel for the appellant and the learned Additional Government Advocate have been heard. According to the learned counsel for the appellant the prosecution has utterly failed to prove that it was the appellant who committed the murder of her husband Chhotey Lal in the manner alleged by the prosecution. According to the learned counsel for the appellant Ext. Ka-6 which is said to be the first information report produced by the appellant is inadmissible in evidence and is hit by Section 25 of the Evidence Act. It is said that the first information report, Ext. Ka-6 was lodged by the appellant at the police station soon after the commission of the murder. According to the learned counsel this will amount to confession to a police officer and as such it cannot be proved as evidence.
8. Section 25 of the Evidence Act deals with the confession to the police officer and says that no confession made to a police officer shall be proved against a person for any offence. The prohibition under Section 25 of the Evidence Act is general. The confession which has been made to a police officer is absolutely inadmissible in evidence. It is also not necessary that when incriminating statement is made the maker thereof should have been an accused person. This statement will become inadmissible if the maker of the statement subsequently becomes an accused. In the case of Aghnoo Nagesia v. State of Bihar the Apex court dealt with the provisions of Sections 24 to 30 of the Evidence Act. It was held that a confession or an admission is evidence against the maker of it, if its admissibility is not excluded by some provision of law. It was further held that Section 25 of the Evidence Act is imperative and a confession made to a police officer under no circumstances is admissible in evidence against file accused. The Section covers a confession made when he was tree and not in police custody, as also the one made before any investigation has begun. The partial ban imposed by Section 26 relates to a confession made to a person other than a police officer. The absolute ban imposed by Section 25 on a confession made to a police officer is not qualified by Section 26. Section 27 is in the form of proviso. It partially lifts the ban imposed by Sections 24, 25 and 26. The words of Section 162 of the Criminal Procedure Code are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under Section 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. When 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. It further lays down that if proof of the confession is excluded by any provision of law, such as Sections 24, 25 and 26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts has also to be excluded unless proof of it is permitted by some other section such as Section 27 of the Evidence Act. It has further been observed in para 18 that where the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession 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. This case law clearly goes to show that a first information report which has been written at the instance of a person who is accused of an offence is inadmissible in evidence under Section 25 of the Evidence Act unless some recovery in pursuance to the statement is made and that part only is admissible in evidence. In the present case, as seen in the earlier parts of the judgment, the first information report, Ext. Ka-6, is said to have been written by Head Constable Bhagwati Singh (P.W. 5) on the dictation of the accused-appellant. In pursuance of this first information report nothing has been recovered at the instance of the appellant. Therefore no part of this statement is admissible in evidence. The entire first information report is hit by the provisions of Section 25 of the Evidence Act. in view of the legal position referred to above. Therefore the contention of the learned counsel for the appellant that this first information report is not admissible in evidence is to be upheld. The learned Sessions Judge has erred by not considering this point and has wrongly admitted the first information report which came into existence on the dictation of the appellant.
9. The prosecution has produced two witnesses which are said to be eye witnesses of the occurrence. The first witness is Ved Prakash (P.W. 3). He has stated that Chhotey Lal deceased and his wife appellant used to fight. Chhotey Lal did not provide food to her and she was also assaulted by her husband. He asked Chhotey Lal not to do so. On the date of incident at about 9.00/9.30 p.m. when he was on the shop of his nephew, Chhotey Lal was lying on the roof. He heard the sound of fire. He came out. The nephew of Chhotey Lal also came there. They went towards the house of Chhotey Lal. In the meantime Ram Gopal (P.W.4) also came, he did not see any thing in the hands of the appellant. He could not reach near Chhotey Lal. The appellant boarded a bus and went away. This witness was declared hostile. The statement of this witness does not throw any light on the commission of the crime. The next witness of fact is said to be Ram Gopal (P.W. 4). He has stated that about 1 1/2 years back Chhotey Lal was murdered at about 9.00 p.m. He was on the shop of his nephew. He heard the sound of gun fire. He shouted by the name of Chhotey Lal but none responded from the house of Chhotey Lal. He reached the house of Chhotey Lal. Srimati Ram Beti, the appellant, was there. She did not utter any word but went inside the Khoka. Ved Prakash (P.W. 3) had also reached there. Thereafter the appellant came out along with a gun. Previously she had responded that she was coming just then. The appellant had come out of the Khoka along with a gun and said that she had committed the murder of her husband. She also disclosed that her husband had doubted her character. Thereafter they saw that Chhotey Lal was lying dead on the cot and gun-shot injury was on his head. Thereafter the appellant went on a bus. The statement of this witness does not appear to be true. At one stage he says that the appellant came out of the Khoka and there was a gun in her hands while in the next breath he says that when the appellant came out of the Khoka she had no gun. In the cross-examination he has stated that he had not told the investigating officer in his statement under Section 161 Cr. P.C. that Chhotey Lal used to say that the appellant is characterless. He again states that when he saw the appellant she had a gun and the appellant asked them to save her. The statement of this witness on the question whether the appellant has a gun when she came out of the Khoka cannot be believed as this witness has changed his statement even in the examination-in-chief. Thus the statement of this witness goes to show that he has not stated the truth. Moreover the statement of this witness also goes to show that he is not an eye witness of the occurrence. He merely saw the appellant with gun in her hands at the place of the occurrence. Therefore none of the eye witnesses produced by the prosecution had seen the occurrence and the case is only based on circumstantial evidence. Now the court has to see as to whether the circumstances put forward by the prosecution are sufficient enough to connect the appellant with the crime of having committed the murder of her husband.
10. The learned Sessions Judge has taken the circumstances into consideration while dealing with the case. These circumstances can be narrated as under :-
1. Motive,
2. Chhotey Lal deceased had a licensed gun and used and unused cartridges were recovered,
3. Smt. Ram Beti, the appellant, was seen at the place of the incident,
4. After the incident the appellant left her house along with her daughter and went to the police station and lodged first information report.
5. Extra judicial confession of the appellant before Ram Gopal (P.W.4).
11. Now we may also scrutinise the evidence of the prosecution in order to see as to whether the circumstances taken by the learned Sessions Judge connect the appellant with the crime or not. Before we enter into discussion of the evidence it will be necessary to see as to what are the essentials which need to be proved in the case of circumstantial evidence. In the case of Kundulabala Subhrahmanyam v. State of Andhra Pradesh, (1993 SCC (Cri) 655) the Apex Court, in para 10, observed as under:-
“Admittedly there is no eye witness in the case. The case is so sught to be established by the prosecution from circumstantial evidence. In a case began on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and these circumstances must be conclusive in nature. Moreover, all the established circumstances should be complete and there should be no gap in the chain of evidence. The proved circumstances must be consistent only with the hypothesis of the guilt of the accused alone and totally inconsistent with his innocence. The courts have, therefore, the duty to carefully scrutinize the evidence and deal with each circumstance carefully and thereafter find whether the chain of the established circumstances is complete or not before passing an order of conviction it is in the light of the above principles that we shall deal with various circumstances relied upon by the prosecution.”
12. It was further observed in para 11 that in a case based on circumstantial evidence, motive assumes great significance as its existence is an enlightening factor in a process of presumptive reasoning.
13. In the case of Gokaraju Venkataparase Raju v. State of A.P., (1993 Supp (4) SCC 191) it was observed in para 10 that in cases depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take place of legal proof, but it has been indicated that the gravity of the offence cannot by itself overweigh so far as legal proof is concerned. It has further been observed that when the main link goes, the chain of circumslances gets snappad and the other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubts. It is at this juncture, the court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof. At times it can be a case of ‘may be true’ and not ‘must be true’ and the same divides conjectures from sure conclusions.
14. Similarly in the case of Surinder Pal Jain v. Delhi Administration (1993 Supp (3) SCC 681) it has been observed that in a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof.
15. In the case of Chandmal v. State of Rajasthan, the Hon’ble Supreme Court, in para 15 of the report, held as under:-
“It is well settled that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly, those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. That is to say the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused’s guilt.”
16. Taking the same view the Hon’ble Supreme Court in the case of Charan Singh v. State of Uttar Pradesh, held as under:-.
“It is well established that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established, and the circumstances so established should be consistent only with the hypothesis of the guilt of the accused person; that is, the circumstances should be of such a nature as to reasonably, exclude every hypothesis but the one proposed to be proved. To put it in other words, the chain of evidence must be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused person.”
17. Thus from a perusal of the case law cited above it is clear that in the case of circumstantial evidence the chain must be complete and if it is not so the guilt of the accused cannot be said to be proved. In the light of this principle we scrutinise the evidence which has been produced by the prosecution against the appellant.
18. We first take up the motive. The only motive for the commission of the crime is alleged to be the dispute between the appellant and her husband. Besides the admission of the appellant made by her in the first information report, Ext-Ka-6, we find that there is no evidence on record to show that there was any motive for the commission of the crime. This statement cannot be read in evidence. The statement of the two witnesses, namely Ved Prakash (P.W.3) and Ram Gopal (P.W.4) only indicate that the appellant and her husband were not on good terms and used to fight. The deceased used, to assault her and sometimes also did not provide food to her. This motive is insufficient to commit the murder. Thus the prosecution has failed to prove any motive for the commission of the crime.
19. The next circumstance is that Chhotey Lal deceased had a licensed gun and used cartridges were recovered by investigating officer. No doubt, it is true that Chhotey Lal deceased had a licensed gun and when the gun was recovered from the house of Chhotey Lal used cartridges were also recovered from the barrel of the gun but the evidence on the record does not disclose that the gun was freshly fired or that the gun was used by the appellant to commit the murder of her husband. The evidence on record shows that the investigating officer reached the place of occurrence at 12.30 in the night while the incident took place at about 9.30 p.m. If the gun was used by the appellant then it was the duty of the investigating officer to take the gun and by smelling it he could have come to the conclusion that the gun was freshly fired and if the gun was freshly fired within few hours then smell would have come from the barrel of the gun. This itself would have given an indication as to whether the gun was fired or not. The other lapse on the part of the investigating officer is that he did not send the gun to the forensic expert in order to see as to whether the gun had the finger prints of the appellant or not. These lapses on the part of the investigating officer go to show that the gun was not freshly fired or was not used as it is alleged. Therefore the recovery of the licensed gun at the house of the deceased and an empty cartridge in the barrel of the gun does not in any way implicate the appellant in the commission of the crime.
20. The third circumstance is that Srimati Ram Beti, appellant, was seen with the gun immediately after the occurrence. This circumstance is contained in the statement of Ram Gopal (P. W. 4). He has stated in the examination-in-chief that he reached the place of occurrence where the appellant came out with the gun. In the next sentence be states that the appellant came out of the house after putting the gun inside. This statement shows that the appellant had no gun in her hands when she came out. This contradiction between the two statements given by the witness in the examination-in-chief does not prove that the appellant had gun in her hands immediately after the commission of the crime. This fact is also belied when this witness says that the deceased used to say that his wife is not chaste but this fact is not mentioned in the statement under Section 161 Cr.P.C. given by him to the investigating officer. If the deceased had made such a disclosure to this witness then this fact would have also been indicated by him to the investigating officer in his statement under Section 161 Cr. P.C. Ved Prakash (P.W.3) has been declared hostile. He has not stated that when the appellant came out of her house she had a gun in her hands. Thus we find that the prosecution has failed to establish this circumstance also.
21. The fourth circumstance which has been taken against the appellant is that after the incident she left the place of occurrence along with her children and went away in a bus. Besides the statements of two witnesses, namely Ved Prakash (P.W. 3) and Ram Gopal (P.W. 4) there is no evidence on record to show that the appellant went away from the place of occurrence in the bus. According to the case of. the prosecution after the incident the appellant with her children boarded a bus and went to the police station and lodged the first information report, Ext-Ka-6. There is no evidence on record to show that any bus goes from the place where the appellant lives up to the police station. There is also no evidence whether the police station falls in between the house of the appellant and the place of destination of the bus. It has also not been shown as to what was the route of the bus and what was the timing of the bus. The bus conductor or any other witness was also not produced by the prosecution to say that there is bus service from the village where the appellant lives up to the police station. It has also not been shown as to how many stoppages are there between the house of the appellant and the police station. The incident is alleged to have taken place at 9.30 p.m. The first information report was lodged at 10.15 p.m. There is only a gap of 45 minutes during which time the appellant is said to have reached the police station and lodged the first information report. The fact that the appellant went away from the village and reached the police station at the time of lodging the first information report has not been proved. Therefore this circumstance is of no importance and no adverse inference can be drawn against the appellant.
22. The last circumstance taken by the learned Sessions Judge against the appellant is about her extra judicial confession before Ram Gopal (P.W. 4). Ram Gopal (P.W. 4) has stated that when the appellant came out of her house she disclosed that she had committed the murder of her husband. At that time Ved Prakash (P.W. 3) is also alleged to have been present. Ved Prakash (P.W. 3) has not stated anything about it. Thus there is solitary statement of Ram Gopal (P.W. 4) on this point which does not find corroboration from any evidence on record. The appellant has denied having given such a statement. She has even denied having committed the murder. Therefore the prosecution has not been able to prove this circumstance against the appellant and it is not possible to place reliance on the extra judicial confession.
23. Thus the prosecution has failed to establish any of the circumstances against the appellant in order to prove that the apellant has committed the murder of her husband. There are certain other facts which go to show that the incident did not happen in the way as alleged by the prosecution. According to the prosecution the appellant left her house after committing the murder and reached the police station and lodged the first information report, Ext. Ka-6. According to the prosecution this first information report contained the admission of the appellant that she had committed the murder of her husband. The investigating officer, Iqbal Singh, was present at that time at the police station. According to him he recorded the statement of the appellant. There is no evidence on record to show that she was arrested at the police station. If it was so then she should have been taken into custody at that time and the gun should have been recovered at the instance of the appellant. If the gun would have been recovered at the instance of the appellant then that part of her statement would have become admissible in evidence tinder Section 27 of the Evidence Act. The investigating officer did not take any precaution on this point and did not recover the gun after recording her statement, under Section 27 of the Evidence Act and in view of her admission in the first information report, Ext. Ka-6. The fact that the investigating officer reached the place of the occurrence at 2.30 in the night but did not record the statements of the two alleged eye witnesses also creates doubt about the presence of those two eye witnesses at the place of the occurrence.
24. From a perusal of the post-mortem report it will be found that no direction has been given in injury No, 1. According to the prosecution the deceased was lying on a cot and the lady shot dead the deceased in that position. If that was so then the gun would have been held in downward position and as injury No. 1 is an entry as wound over left side of the head, the direction of the injury No. 1 would have been from upwards to downwards. But the perusal of this injury goes to show that it is not so. The exit wound is also in the same direction in which the entry wound is. This goes to show that the shot was fired keeping the barrel of the gun at the right angle and not in downward position. This does not corroborate the story as set up by the prosecution.
25. In view of what has been discussed above it is clear that the prosecution has failed to prove that the appellant committed the murder of her husband Chhotey Lal. The findings of the learned Sessions Judge cannot be upheld.
26. The appeal is allowed. The conviction and sentence imposed on the appellant under Section 302, I.P.C. are set aside. The appellant is acquitted of the charge under Section 302 I.P.C. She is on bail. She need not surrender. Her bail bonds are cancelled.