CRL.A./303/2012 of RAVINDER KUMAR CHAUHAN Vs STATE

THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved On: 10.07.2017Judgment Pronounced On: 26.09.2017

CRL.A.303/2012

RAVINDER KUMAR CHAUHAN... PetitionerThrough:Mr. Ajay Verma and Mr. NarsinghNarain, Advocates

versus

STATE

... Respondent

Through:Mr. Ravi Naik, APP for the State

CORAM:HON’BLE MR JUSTICE SIDDHARTH MRIDULHON’BLE MR JUSTICE NAJMI WAZIRI

J U M N T

SIDDHARTH MRIDUL, J.

1.The present appeal instituted under the provisions of section 374 ofthe Code of Criminal Procedure, 1973 (hereinafter referred to as ‘CrPC’),assails the judgment and order on sentence dated 09.08.2011, rendered bythe Ld. Additional Sessions Judge, Delhi, in Sessions Case no.137/09.

2.By way of the impugned judgement and order on sentence dated09.08.2011, Ravinder Kumar Chauhan (hereinafter referred to as 'appellant')was convicted and sentenced under the provision of section 302 of the IndianPenal Code, 1860 (hereinafter referred to as 'IPC') to life imprisonment alongwith fine of Rs.5,000/-. In default of payment of fine, the appellant hasbeen sentenced to undergo simple imprisonment for further period of 3months. However, the benefit of the provision under section 428 CrPC hasbeen granted to the appellant.

3.The fulcrum of the case of the prosecution is that the appellantsuspected the character of his wife, Ms. Madhu (hereinafter referred to as the‘deceased’), and in view thereof committed the murder of the latter on11.08.2009 by strangulating her with an angocha (cloth) [Ex.P1]. Themurder was committed on the second floor of House bearing No.K-115Vijay Vihar, Phase-II, Delhi (hereinafter referred to as the ‘tenantedpremises/crime spot’) where the appellant used to reside with the deceasedand their children as tenants.

4.The appellant after committing the murder of the deceased made anextra-judicial confession to Amarjeet Singh (PW-8), the owner of Houseno.K-115 Vijay Vihar, Phase-II, Delhi (hereinafter referred to as ‘House

no.K-115’). The appellant was perturbed when he confessed to PW-8, that hehad murdered the deceased and was going to the Police Station to report thesame. Thereafter, the appellant confessed to the Duty Officer at the PoliceStation, Head Constable Kailash Chand (PW-7), that he had murdered thedeceased as she was characterless. DD entry no.42A [Ex.PW-7/A] wasrecorded on the basis of the confession made by the appellant, which wasassigned to Sub-Inspector Madan Lal (PW-15).

Pursuant to the recording of the diary entry, PW-15 along withConstable Satbir went to the tenanted premises, where PW-8 was alsopresent. Inspector Sunil Kumar Sharma (PW-11) and Constable Ravinder(PW-13) also reached there. The appellant led the police officials as well asPW-8 to the second floor of the tenanted premises and pointed towards thedead body of the deceased lying in room [vide pointing out memo Ex.PW-28/F]. Thereafter, PW-11 prepared the rukka [Ex.PW- 11/A] and PW-13 wassent to the Police Station for registration of case. An F.I.R. bearingno.259/09 dated 11.08.2009, for the offence punishable under the provisionof section 302 IPC, was registered.

The site plan was prepared [Ex.PW-11/B] and the crime team wascalled. The exhibits including the angocha [Ex.P1] stated to be ligature

material was seized vide seizure memo Ex.PW-8/B; one vegetable cuttingknife vide seizure memo Ex.PW-8/C; and broken bangles vide seizure memoEx.PW-8/A, were seized by PW-11. The appellant was arrested vide arrestmemo Ex.PW-8/D and his personal search was conducted vide memoEx.PW-11/C. PW-11 recorded the disclosure statement of the appellant[Ex.PW-8/E]. After the inquest proceedings, post-mortem on the dead bodyof the deceased was conducted. The post-mortem report is Ex.PW-10/A. Themedical examination of the appellant was also conducted.

5.At the trial, the prosecution examined 16 witnesses in support of itscase. The appellant in his defence has not led any evidence. However, theappellant in his statement under Section 313 of the CrPC, whilst retractingfrom the alleged confession made by him to PW-8 and PW-7, has stated thathe has been falsely implicated in the present case by the police, and PW-8has falsely deposed against him as he wanted to save the real culprit, oneManoj Kumar. It has been further stated by the appellant that he was notpresent with the deceased at the tenanted premises at the time of thecommission of the murder, as he had gone to drop his children off at hisparentshouseat NandNagri,and uponhisreturn hefoundhisdeceased/wife, lying dead.

6.It would be urged by learned counsel appearing on behalf of theappellant that the DD Entry No.42A cannot be read into evidence againsthim.

7.In order to buttress this submission, reliance would be placed on thedecision of the Hon’ble Supreme Court in Aghnoo Nagesia v. State ofBihar, reported as AIR 1966 SC 119.

8.It would be further urged on behalf of the appellant that PW-8 is aplanted witness, inasmuch as, there was no reason for the appellant to make aconfession to him; as they were not friendly with each other. Further, it wasunusual of PW-8 to not report to the police about the confession made to himby the appellant.

9.In order to substantiate this submission, reliance would be placed onthe decision of the Himachal Pradesh High Court in Nirmal Singh v. Stateof Himachal Pradesh, reported as 1987 CriLJ 1644.

10.Learned counsel would then invite the attention of this Court to thearticles recovered at the instance of the appellant, to asseverate that therecoveries so made were tainted, inasmuch as, neither were they evidencedby an independent witness nor were chance prints lifted from the weapon of

offence. Furthermore, the weapon of offence [Ex.P1] was recovered from anopen space, accessible to others.

11.In order to buttress this submission, reliance would be placed on thedecisions of the Hon’ble Supreme Court in Bahadul v. State of Orissareported as (1979) 4 SCC 376; Anter Singh v. State of Rajasthan reportedas (2004) 10 SCC 657; and Dudh Nath Pandey v. State of U.P., reported as1981 AIR 911.

12.Further, learned counsel would urge that no motive can be attributedto the appellant for the commission of the murder of the deceased.

13.Also it would be submitted that the non-examination of the said ManojKumar casts serious doubt on the case of the prosecution. Lastly, it wouldbe contended that conviction cannot be based on the purported extra-judicialconfession made by him to PW-8.

14.In order to support this submission, reliance would be placed on thedecision in Pratap Dehury v. State of Orissa, reported as (2000) 18 OCR633.

15.Per contra, learned Additional Public Prosecutor, whilst supporting theimpugned judgment in its entirety, would urge that the findings of the Ld.Trial Court require no interference. It would be asseverated that there is no

requirement in law that the person to whom the confession has been madeshould be known to the accused for definite period of time. Further, itwould be submitted that the case of the prosecution has been proved beyondreasonable doubt by way of cogent material on record and certain minorlapses on the part of the prosecution, while conducting the investigation,cannot absolve the appellant of his guilt.

16.We have heard the learned counsel appearing on behalf of the partiesand perused the entire case record.

17.There is admittedly no eye witness to the murder of the deceased. Nodirect evidence has been brought to the notice of the Court in the presentcase. The present is case of circumstantial evidence and, therefore, it wouldbe profitable to refer to the legal position with regard to the proving casebased on circumstantial evidence. In Sharad Birdichand Sharda v. State ofMaharashtra, reported as 1984 AIR SC 1622, the Hon’ble Supreme Courtwhilst placing reliance on the five golden principles enunciated in itsdecision in Hanumant v. State of Madhya Pradesh, reported as AIR 1952SC 343, elaborated the nature, character and essential proof required incriminal cases which rest on circumstantial evidence. The relevantparagraphs of the report have been extracted hereinbelow:

“152. Before discussing the cases relied upon by the High Court wewould like to cite few decisions on the nature, character and essentialproof required in criminal case which rests on circumstantialevidence alone. The most fundamental and basic decision of this Courtis Hanumant v. State of Madhya Pradesh [AIR 1952 SC 343 : 1952SCR 1091 : 1953 Cri LJ 129] . This case has been uniformly followedand applied by this Court in large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of UttarPradesh [(1969)3SCC198:1970SCC(Cri)55]and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972SC 656] . It may be useful to extract what Mahajan, J. has laid downin Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 : 1953 Cri LJ129] :

“It is well to remember that in cases where the evidence is ofa circumstantial nature, the circumstances from which theconclusion of guilt is to be drawn should in the first instancebe fully established, and all the facts so established should beconsistent only with the hypothesis of the guilt of theaccused. Again, the circumstances should be of conclusivenature and tendency and they should be such as to excludeevery hypothesis but the one proposed to be proved. In otherwords, there must be chain of evidence so far complete asnot to leave any reasonable ground for conclusionconsistent with the innocence of the accused and it must besuch as to show that within all human probability the act musthave been done by the accused.”153. close analysis of this decision would show that the followingconditions must be fulfilled before case against an accused can besaid to be fully established:

(1) the circumstances from which the conclusion of guilt isto be drawn should be fully established.

It may be noted here that this Court indicated that thecircumstances concerned “must or should” and not “may be”established. There is not only grammatical but legal distinction

between “may be proved” and “must be or should be proved” aswas held by this Court in Shivaji Sahabrao Bobade v. State ofMaharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 CrlLJ 1783] where the observations were made: [SCC para 19, p. 807:

SCC (Cri) p. 1047]

“Certainly,itisaprimaryprinciplethattheaccused must be and not merely may be guilty before courtcan convict and the mental distance between ‘may be’ and‘must be’ is long and divides vague conjectures from sureconclusions.”

(2) the facts so established should be consistent only withthe hypothesis of the guilt of the accused, that is to say, theyshould not be explainable on any other hypothesis exceptthat the accused is guilty,

(3) the circumstances should be of conclusive natureand tendency,

(4) they should exclude every possible hypothesis exceptthe one to be proved, and

(5) there must be chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistentwith the innocence of the accused and must show that in allhuman probability the act must have been done by theaccused.

154.These five golden principles, if we may say so, constitute thepanchsheel of the proof of case based on circumstantial evidence.155. It may be interesting to note that as regards the mode of proof in acriminal case depending on circumstantial evidence, in the absence ofa corpus delicti, the statement of law as to proof of the same was laiddownbyGresson,J.(andconcurredby3moreJudges)in King v. Horry [1952 NZLR 111] thus:

“Before he can be convicted, the fact of death should beproved by such circumstances as render the commission ofthe crime morally certain and leave no ground for reasonabledoubt: the circumstantial evidence should be so cogent and

compelling as to convince jury that upon no rationalhypothesis other than murder can the facts be accounted for.”156. Lord Goddard slightly modified the expression “morally certain”by “such circumstances as render the commission of the crimecertain”.

157. This indicates the cardinal principle of criminal jurisprudence thata case can be said to be proved only when there is certain and explicitevidenceandnopersoncanbeconvictedonpuremoralconviction. Horry case [1952 NZLR 111] was approved by this Courtin Anant Chintaman Lagu v. State of Bombay [AIR 1960 SC 500 :(1960) 2 SCR 460 : 1960 Cri LJ 682] . Lagu case [AIR 1960 SC 500 :(1960) 2 SCR 460 : 1960 Cri LJ 682] as also the principles enunciatedby this Court in Hanumant case [AIR 1952 SC 343 : 1952 SCR 1091 :1953 Cri LJ 129] have been uniformly and consistently followed in alllater decisions of this Court without any single exception. To quote afew cases — Tufail case [(1969) 3 SCC 198 : 1970 SCC (Cri) 55], Ramgopalcase [(1972)4SCC625:AIR1972SC656], Chandrakant Nyalchand Seth v. State of Bombay [ Criminal AppealNo 120 of 1957, decided on February 19, 1958] , DharambirSingh v. State of Punjab [ Criminal Appeal No 98 of 1958, decided onNovember 4, 1958 printed on green papers in bound volumes] . Thereare number of other cases where although Hanumant case [AIR 1952SC 343 : 1952 SCR 1091 : 1953 Cri LJ 129] has not been expresslynoticed but the same principles have been expounded and reiterated, asin Naseem Ahmed v. Delhi Administration [(1974) 3 SCC 668, 670 :1974 SCC (Cri) 198, 200 : (1974) 2 SCR 694, 696] , Mohan LalPangasa v. State of U.P. [(1974) 4 SCC 607, 609 : 1974 SCC (Cri)643, 645 : AIR 1974 SC 1144, 1146] , Shankarlal GyarasilalDixit v. State of Maharashtra [(1981) 2 SCC 35, 39 : 1981 SCC (Cri)315, 318-19 : (1981) 2 SCR 384, 390 : 1981 Cri LJ 325] and M.G.Agarwal v. State of Maharashtra [AIR 1963 SC 200 : (1963) 2 SCR405, 419 : (1963) 1 Cri LJ 235] — five-Judge Bench decision.”

(Emphasis supplied.)

18.In view of the dictum of the Hon’ble Supreme Court in SharadBirdhichand Sharda (supra), the important circumstances which this Courthas to take into consideration for the adjudication of the present appeal are asfollows:

(a)Whether the appellant had the opportunity or occasion tocommit the crime?commit the crime?

(b)Whether the deceased victim died of the injuries caused to her

by the weapon of offence?

(c)Whether the weapon of the offence was recovered from hispossession or at his instance?possession or at his instance?

(d)Whether the appellant had motive to kill his wife, the deceased?

19.Before proceeding to examine the evidence on record, it would bepertinent to examine the legal position qua the evidentiary value of aconfession made by an accused to police officer.

20.In Nisar Ali v. State of Uttar Pradesh reported as AIR 1957 SC 366,the Hon’ble Supreme Court whilst dealing with the objection qua theadmissibility of the First Information Report lodged by the co-accused,observed as follows:

“2. The facts which have given rise to the appeal are that Sabir wasmurdered on May 11, 1951 at about 6.30 p.m. The first informationreport was made by Qudrat Ullah the other accused at 6.45 p.m. thesame day i.e. within about 15 minutes of the occurrence. Theprosecution case was that there was an exchange of abuses between thedeceased and the appellant near the shop of the first informant, QudratUllah. The cause of the quarrel was that on the evening of theoccurrence while Qudrat Ullah was sitting on his shop and thedeceased was sitting just below the shop, the appellant came out of hishouse and on seeing him, the deceased asked him as to why he was insuch “dishevelled condition”, which annoyed the appellant and gaverise to an exchange of abuses. On hearing this noise, the prosecutionwitnesses arrived at the spot and saw the appellant and the deceasedgrappling with each other. The appellant is stated to have asked QudratUllah to hand over knife to him which Qudrat Ullah did; this knife isEx. ‘II’, with which the appellant stabbed the deceased and then fledaway. As result of the injuries the deceased fell down in front ofQudrat Ullah's shop; some witnesses have stated that he fell on thewooden plank in front of the shop. Qudrat Ullah picked up the knifewhich had been dropped by the appellant, put the deceased in arickshaw and took him to the hospital from where he went to the policestation and made the first information report. An objection has beentaken to the admissibility of this report as it was made by person whowas co-accused. first information report is not substantive pieceof evidence and can only be used to corroborate the statement of themaker under Section 157 of the Evidence Act or to contradict it underSection 145 of that Act. It cannot be used as evidence against themaker at the trial if he himself becomes an accused, nor to corroborate”or contradict other witnesses. In this case, therefore, it is not evidence.

(Emphasis supplied.)

21.Whilst distinguishing its decision in Nisar Ali (Ibid.) on the facts; the

Hon’ble Supreme Court in Faddi v. State of M.P. reported as AIR 1964 SC1850, admitted in evidence the First Information Report lodged by the

accused, it being non-confessional in nature. The relevant paragraphs of the

report are reproduced hereinbelow:

“15. The report is not confession of the appellant. It is not astatement made to police officer during the course of investigation.Section 25 of the Evidence Act and Section 162 of the Code ofCriminal Procedure do not bar its admissibility. The report is anadmission by the accused of certain facts which have bearing on thequestion to be determined by the Court viz. how and by whom themurder of Gulab was committed, or whether the appellant's statementin Court denying the correctness of certain statements' of theprosecution witnesses is correct or not. Admissions are admissible inevidence under Section 21 of the Act. Section 17 defines an admissionto be statement, oral or documentary, which suggests any inferenceas to any fact in issue or relevant fact, and which is made by any of thepersons, and under the circumstances, thereafter mentioned, in the Act.Section 21 provides that admissions are relevant and may be proved asagainst person who makes them. Illustrations (c), (d) and (e) toSection 21 are of the circumstances in which an accused could provehis own admissions which go in his favour in view of the exceptionsmentioned in Section 21 to the provision that admissions could not beproved by the person who makes them. It is therefore clear thatadmissions of an accused can be proved against him.

xxxxxxxx xxxx xxxxxxxxxxxx xxxx xxxx17. In Nisar Ali case [AIR 1957 SC 366] Kapur, J. who spoke for theCourt said, after narrating the facts:

“An objection has been taken to the admissibility of thisreport as it was made by person who was co-accused. Afirst information report is not substantive piece of evidenceand can only be used to corroborate the statement of themaker under Section 157, Evidence Act, or to contradict itunder Section 145 of that Act. It cannot be used as evidenceagainst the maker at the trial if he himself becomes anaccused, not to corroborate or contradict other witnesses. Inthis case, therefore, it is not evidence.”

It is on these observations that it has been contended for the appellantthat his report was inadmissible in evidence. Ostensibly, the expression‘it cannot be used as evidence against the maker at the trial if hehimself becomes an accused’ supports the appellant's contention. But itappears to us that in the context in which the observation is made andin the circumstances, which we have verified from the record of thatcase, that the Sessions Judge had definitely held the first information-report lodged by the coaccused who was acquitted to be inadmissibleagainst Nisar Ali, and that the High Court did not refer to it at all in itsjudgment, this observation really refers to first information reportwhich is in the nature of confession by the maker thereof. Of course aconfessional first information report cannot be used against the maker-when he be an accused and necessarily cannot be used against co-accused. Further, the last sentence of the abovequoted observation issignificant and indicates what the Court meant was that the first-information report lodged by Qudratullah, the coaccused, was notevidence against Nisar Ali. This Court did not mean — as it had not todetermine in that case — that first information report which is not aconfession cannot be used as an admission under Section 21 of theEvidence Act or as relevant statement under any other provisions ofthat Act. We find also that this observation has been understood in thisway by the Rajasthan High Court in State v. Balchand [AIR 1960 Raj101] and in State of Rajasthan v. Shiv Singh [AIR 1962 Raj 3] and bythe Allahabad High Court in Allahdia v. State [1959 All LJ 340] .”

(Emphasis supplied.)

22.The Hon’ble Supreme Court in Aghnoo Nagesia (supra), whilstapproving the principles of law enunciated in its earlier decision in Faddi(supra), proceeded to determine whether the confessional F.I.R. lodged bythe accused or any portion of it is admissible in evidence. It was observed asfollows:

“9. Section 25 of the Evidence Act is one of the provisions of lawdealing with confessions made by an accused. The law relating to

confessions is to be found generally in Sections 24 to 30 of theEvidence Act and Sections 162 and 164 of the Code of CriminalProcedure, 1898. Sections 17 to 31 of the Evidence Act are to be foundunder the heading “Admissions”. Confession is species of admission,and is dealt with in Sections 24 to 30. confession or an admission isevidence against the maker of it, unless its admissibility is excluded bysome provision of law. Section 24 excludes confessions caused bycertain inducements, threats and promises. Section 25 provides: “Noconfession made to police officer, shall be proved as against personaccused of an offence”. The terms of Section 25 are imperative. Aconfession made to police officer under any circumstances is notadmissible in evidence against the accused. It covers confessionmade when he was free and not in police custody, as also confessionmade before any investigation has begun. The expression “accused ofany offence” covers person accused of an offence at the trial whetheror not he was accused of the offence when he made the confession.Section 26 prohibits proof against any person of confession made byhim in the custody of police officer, unless it is made in theimmediate presence of Magistrate. The partial ban imposed bySection 26 relates to confession made to person other than policeofficer. Section 26 does not qualify the absolute ban imposed bySection 25 on confession made to police officer. Section 27 is inthe form of proviso, and partially lifts the ban imposed by Sections24, 25 and 26. It provides that when any fact is deposed to asdiscovered in consequence of information received from personaccused of any offence, in the custody of police officer, so much ofsuch information, whether it amounts to confession or not, as relatesdistinctly to the fact thereby discovered, may be proved. Section 162 ofthe Code of Criminal Procedure forbids the use of any statement madeby any person to police officer in the course of an investigation forany purpose at any enquiry or trial in respect of the offence underinvestigation, save as mentioned in the proviso and in cases fallingunder sub-section (2), and it specifically provides that nothing in itshall be deemed to affect the provisions of Section 27 of the EvidenceAct. The words of Section 162 are wide enough to include confessionmade to police officer in the course of an investigation. statementor confession made in the course of an investigation may be recordedby Magistrate under Section 164 of the Code of Criminal Proceduresubject to the safeguards imposed by the section. Thus, except asprovided by Section 27 of the Evidence Act, confession by anaccused to police officer is absolutely protected under Section 25 of

the Evidence Act, and if it is made in the course of an investigation, itis also protected by Section 162 of the Code of Criminal Procedure,and confession to any other person made by him while in the custodyof police officer is protected by Section 26, unless it is made in theimmediate presence of Magistrate. These provisions seem to proceedupon the view that confessions made by an accused to police officeror made by him while he is in the custody of police officer are not tobe trusted, and should not be used in evidence against him. They arebased upon grounds of public policy, and the fullest effect should begiven to them.

10. Section 154 of the Code of Criminal Procedure provides for therecording of the first information. The information report as such is notsubstantive evidence. It may be used to corroborate the informantunder Section 157 of the Evidence Act or to contradict him underSection 145 of the Act, if the informant is called as witness. If thefirst information is given by the accused himself, the fact of his givingthe information is admissible against him as evidence of his conductunder Section 8 of the Evidence Act. If the information is non-confessional statement, it is admissible against the accused as anadmission under Section 21 of the Evidence Act and is relevant,see Faddi v. State of Madhya Pradesh [ Criminal Appeal No. 210 of1963 decided on January 24, 1964] explaining Nisar Ali v. State ofU.P. [AIR 1957 SC 366] and Dal Singh v. King-Emperor [LR 44 IA137] . But confessional first information report to police officercannot be used against the accused in view of Section 25 of theEvidence Act.

11. The Indian Evidence Act does not define “confession”. For longtime, the courts in India adopted the definition of “confession” given inArticle 22 of Stephen's Digest of the Law of Evidence. According tothat definition, confession is an admission made at any time by aperson charged with crime, stating or suggesting the inference that hecommitted that crime. This definition was discarded by the JudicialCommittee in Pakala Narayanaswami v. King-Emperor [(1939) LR 66IA 66, 81] . Lord Atkin observed:

“…no statement that contains self exculpatory matter canamount to confession, if the exculpatory statement is of somefact which if true would negative the offence alleged to beconfessed. Moreover, confession must either admit in termsthe offence, or at any rate substantially all the facts which

constitutetheoffence.Anadmissionofagravelyincriminating fact, even conclusively incriminating fact, isnot of itself confession, e.g., an admission that the accusedis the owner of and was in recent possession of the knife orrevolver which caused death with no explanation of anyother man's possession.”

These observations received the approval of this Court in PalvinderKaur v. StateofPunjab [(1953)SCR94,104].In StateofU.P. v. Deoman Upadhyaya [(1961) 1 SCR 14, 21] Shah, J. referred toa confession as statement made by person stating or suggesting theinference that he has committed crime.

12. Shortly put, confession may be defined as an admission of theoffence by person charged with the offence. statement whichcontains self-exculpatory matter cannot amount to confession, if theexculpatory statement is of some fact which, if true, would negativethe offence alleged to be confessed. If an admission of an accused is tobe used against him the whole of it should be tendered in evidence, andif part of the admission is exculpatory and part inculpatory, theprosecution is not at liberty to use in evidence the inculpatory partonly.See Hanumant v. StateofU.P. [(1952)SCR1091,1111]and Palvinder Kaur v. State of Punjab [(1953) SCR 94, 104] . Theaccused is entitled to insist that the entire admission including theexculpatory part must be tendered in evidence. But this principle is of-no assistance to the accused where no part of his statement is selfexculpatory, and the prosecution intends to use the whole of thestatement against the accused.13. Now, confession may consist of several parts and may reveal not

only the actual commission of the crime but also the motive, thepreparation, the opportunity, the provocation, the weapons used, theintention, the concealment of the weapon and the subsequent conductof the accused. If the confession is tainted, the taint attaches to eachpart of it. It is not permissible in law to separate one part and to admitit in evidence as non-confessional statement. Each part disclosessome incriminating fact i.e. some fact which by itself or along withother admitted or proved facts suggests the inference that the accusedcommitted the crime, and though each part taken singly may notamount to confession, each of them being part of confessionalstatement partakes of the character of confession. If statementcontains an admission of an offence, not only that admission but also

every other admission of an incriminating fact contained in thestatement is part of the confession.

14. If proof of the confession is excluded by any provision of law suchas Section 24, Section 25 and Section 26 of the Evidence Act, theentire confessional statement in all its parts including the admissions ofminor incriminating facts must also be excluded, unless proof of it ispermitted by some other section such as Section 27 of the EvidenceAct. Little substance and content would be left in Sections 24, 25 and26 if proof of admissions of incriminating facts in confessionalstatement is permitted.

xxxxxxxx xxxx xxxxxxxxxxxx xxxx xxxx

16. If the confession is caused by an inducement, threat or promise ascontemplated by Section 24 of the Evidence Act, the whole of theconfession is excluded by Section 24. Proof of not only the admissionof the offence but also the admission of every other incriminating factsuch as the motive, the preparation and the subsequent conduct isexcluded by Section 24. To hold that the proof of the admission ofother incriminating facts is not barred by Section 24 is to rob thesection of its practical utility and content. It may be suggested that thebar of Section 24 does not apply to the other admissions, but thoughreceivable in evidence, they are of no weight, as they were caused byinducement, threat or promise. According to this suggestion, the otheradmissions are relevant, but are of no value. But we think that on aplain construction of Section 24, proof of all the admissions ofincriminating facts contained in confessional statement is excludedby the section. Similarly, Sections 25 and 26 bar not only proof ofadmissions of an offence by an accused to police officer or made byhim while in the custody of police officer but also admissionscontained in the confessions statement of all incriminating facts relatedto the offence.

17. little reflection will show that the expression “confession” inSections 24 to 30 refers to the confessional statement as wholeincluding not only the admissions of the offence but also all otheradmissions of incriminating facts related to the offence. Section 27partially lifts the ban imposed by Sections 24, 25 and 26 in respect ofso much of the information whether it amounts to confession or not,as relates distinctly to the fact discovered in consequence of theinformation, if the other conditions of the section are satisfied. Section27 distinctly contemplates that an information leading to discovery

may be part of the confession of the accused and thus fall within thepurview of Sections 24, 25 and 26. Section 27 thus shows that aconfessional statement admitting the offence may contain additionalinformation as part of the confession. Again, Section 30 permits theCourt to take into consideration against co-accused confession ofanother accused affecting not only himself but the other co-accused.Section 30 thus shows that matters affecting other persons may formpart of the confession.

18. If the first information report is given by the accused to policeofficer and amounts to confessional statement, proof of theconfession is prohibited by Section 25. The confession includes notonly the admission of the offence but all other admissions ofincriminating facts related to the offence contained in the confessionalstatement. No part of the confessional statement is receivable inevidence except to the extent that the ban of Section 25 is lifted bySection 27.

19. Our attention is not drawn to any decision of this Court or of thePrivy Council on the question whether apart from Section 27, aconfessional first information report given by an accused is receivablein evidence against him. Decisions of the High Courts on this point arehopelessly conflicting. They contain all shades of opinion rangingfrom total exclusion of the confession to total inclusion of alladmissions of incriminating facts except the actual commission of thecrime.In Harji v. Emperor [AIR1918Lah69]and NoorMuhammad v. Emperor [(1925) 90 IC 148] the Lahore High Courtheld that the entire report formed single connected story and no partof it had in Emperor v. Harman Kisha [(1935) ILR 59 Bom 120] theBombay High Court held that the entire confessional report dealingwith events on the night of the offence was hit by Section 25, and itcould not be said that portions of it dealing with the motive and theopportunitywerenotpartsoftheconfession.In King-Emperor v. Kommoju Brahman [(1940) ILR Patna, 301, 308, 314] thePatna High Court held that no part of the confessional first informationreport was receivable in evidence, the entire report formed singleconnected story and no part of it had any meaning or significanceexcept in relation to the whole, and it would be wrong to extract partsof the statement and treat them as relevant. This case was followedin Adi Moola Padayachi v. State [(1960) MWN 528] and the Courtadmitted only the portion of the confessional first information reportwhich showed it was given by the accused and investigation hadstartedthereon.In StateofRajasthan v. ShivSingh [AIR1952Rajasthan, 3] the Court admitted in evidence the last part of the reportdealing with the movements of the accused after the commission of theoffence, but excluded the other parts of the statement including thoserelating to motive and opportunity. In Legal Remembrancer v. LalitMohan Singh Roy [(1922) ILR 49 Cal 167] the Calcutta High Courtadmitted in evidence the narrative of the events prior to the night of theoccurrence disclosing the motive of the offence. This case wasfollowed by the Nagpur Court in Bharosa Ramdayal v. Emperor [AIR1941 Nag 86] . In Kartar Singh v. State [AIR (1952) Papsu 98] theCourt admitted in evidence the introductory part and the portionnarratingthemotiveandtheopportunity.In RamSingh v. State [(1952) ILR 2 Rajasthan 93] the Rajasthan High Courtheld that where it is possible to separate parts of the first informationreport by an accused from that in which he had made confession, thatpart which can be so separated should be admitted in evidence, and onthis view, admitted part of the report relating to motive andsubsequent conduct including the statement that the accused had leftthe deceased lying wounded and breathing in the tibari and there wasno hope of her surviving and he had come having covered her with acloth. In Lachhuman Munda v. State of Bihar [AIR 1964 Patna 210]the Patna High Court admitted in evidence portions of the firstinformation report relating to the motive, the opportunity and the entirenarrative of events before and after the crime. This case was followedin the judgment under appeal. Some of the decided cases took the viewthat if part of the report is properly severable from the strictconfessional part, then the severable part could be tendered inevidence. We think that the separability test is misleading, and theentire confessional statement is hit by Section 25 and save and exceptas provided by Section 27 and save and except the formal partidentifying the accused as the maker of the report, no part of it couldbe tendered in evidence.

20. We think, therefore, that save and except Parts 1, 15 and 18identifying the appellant as the maker of the first information reportand save and except the portions coming within the purview of Section27, the entire first information report must be excluded from evidence.21. Section 27 applies only to information received from personaccused of an offence in the custody of police officer. Now, the Sub-Inspector stated he arrested the appellant after he gave the firstinformation report leading to the discovery. Prima facie therefore, the

appellant was not in the custody of police officer when he gave thereport, unless it can be said that he was then in constructive custody.On the question whether person directly giving to police officerinformation which may be used as evidence against him may bedeemed to have submitted himself to the custody of the police officerwithin the meaning of Section 27, there is conflict of opinion. See theobservations of Shah, J. and Subba Rao, J. in State of U.P. v. DeomanUpadhyaya [(1961) 1 SCR 14, 21] . For the purposes of the case, weshall assume that the appellant was constructively in police custodyand therefore the information contained in the first information reportleading to the discovery of the dead bodies and the tangi is admissiblein evidence.The entire evidence against the appellant then consists ofthe fact that the appellant gave information as to the place where thedead bodies were lying and as to the place where he concealedthe tangi,thediscoveryofthedeadbodiesandthe tangi inconsequence of the information, the discovery of blood-stainedchadar from the appellant's house and the fact that he had gone toDungi Jharan Hills on the morning of August 11, 1963. This evidenceis not sufficient to convict the appellant of the offences under Section302 of the Indian Penal Code.”

(Emphasis supplied.)

23.The legal position laid down in Aghnoo Nagesia (supra) was notbrought to the notice of the Hon’ble Supreme Court in Bheru Singh v. Stateof Rajasthan reported as (1994) 2 SCC 467, the former being of largerbench.

24.Incongruous with its decision in Aghnoo Nagesia (supra), the Hon’ble

Supreme Court in Bheru Singh (supra) observed as follows:

“17. Where the first information report is given by an accused himselfto police officer and amounts to confessional statement, proof ofthe confession is prohibited by Section 25 of the Evidence Act. No partof 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 first information report recorded under Section 154 CrPC is not

substantive piece of evidence. It may be used to corroborate theinformant under Section 157 of the Evidence Act or to contradict himunder Section 145 of the Evidence Act in case the informant appears asa witness at the trial. Where the accused himself lodges the firstinformation report, the fact of his giving the information to the policeis admissible against him as evidence of his conduct under Section 8 ofthe Evidence Act and to the extent it is non-confessional in nature, itwould also be relevant under Section 21 of the Evidence Act but theconfessional part of the first information report by the accused to thepolice officer cannot be used at all against him in view of the ban ofSection 25 of the Evidence Act.

xxxxxxxx xxxx xxxx

19. From careful perusal of this first information report we find thatit discloses the motive for the murder and the manner in which theappellant committed the six murders. The appellant produced thebloodstained sword with which according to him he committed themurders. In our opinion the first information report Ex. P-42, howeveris not wholly confessional statement, but only that part of it isadmissible in evidence which does not amount to confession and isnot hit by the provisions of Section 25 of the Evidence Act. Therelationship of the appellant with the deceased; the motive forcommission of the crime and the presence of his sister-in-law PW 11do not amount to the confession of committing any crime. Thosestatements are non-confessional in nature and can be used against theappellant as evidence under Section 8 of the Evidence Act. Theproduction and seizure of the sword by the appellant at the policestation which was bloodstained, is also saved by the provisions of theEvidence Act. However, the statement that the sword had been used tocommit the murders as well as the manner of committing the crime isclearly inadmissible in evidence. Thus, to the limited extent as we havenoticed above and save to that extent only the other portion of the firstinformation report Ex. P-42 must be excluded from evidence as therest of the statement amounts to confession of committing the crimeand is not admissible in evidence.”

(Emphasis supplied.)

25.A co-ordinate bench of this Court in Mukesh v. State being Criminal

Appeal No. 615 of 2008, whilst discussing the legal position in relation to

the evidentiary value of confessional F.I.R., took note of the apparentconflict between the decisions in Aghnoo Nagesia (supra) and Bheru Singh

(supra). The relevant portions of the report are extracted hereinbelow:

“27. The legal principle which emerges from Faddi's case (supra) isthat, where the accused himself lodges the first information report, thefact of his giving information of the crime to the police is admissibleagainst him as evidence of his conduct under Section 8 of EvidenceAct and that if the first information report is non-confessionalstatement the same can be used against him as an admission underSection 21 of Evidence Act.

28. What is meant by the word 'confession'?

29. The word 'confession' has not been defined in the Evidence Act.For long time, Courts in India have adopted the definition of'confession' given in Article 22 of Stephen's Digest of Law ofEvidence. According to that definition, confession is an admissionmade at any time by person charged with crime, stating or suggestingthe inference that he committed that crime. However, in the decisionsreported as R v. Jagrup ILR 7 ALL 646 and R v. Santya Bandhu 4Bom LR 633 Allahabad High Court and Bombay High Courtrespectively did not accept such wider definition and gave narrowermeaning to the word 'confession' holding that only statement whichis direct acknowledgement of guilt would amount to confession andthat statement which is merely an inculpatory admission which fallsshort of being admission of guilt would not amount to confession. Theissue as to meaning of word 'confession' was ultimately settled byPrivy Council in the decision reported as Pakala Narayana Swami v.Emperor 66 IA 66 where Lord Atkin observed as under:

“Moreover, confession must either admit in terms theoffence, or at any rate substantially all the facts whichconstitute the office (sic offence). An admission of gravelyincriminating fact, even conclusively incriminating fact, isnot of itself confession e.g. an admission that the accused isthe owner of and was in recent possession of the knife orrevolver which caused death with no explanation of any otherman's possession. Some confusion appears to have beencaused by the definition of confession in Article 22 of

Stephen's Digest of the Law of Evidence, which defines aconfession as an admission made at any time by personcharged with crime stating or suggesting the inference that hecommittedthatcrime.Ifthesurroundingarticlesareexamined, it will be apparent that the learned author afterdealing with admissions generally is applying himself toadmissions in criminal cases, and for this purpose definesconfessions so as to cover all such admissions, in order tohave general term for use in the three following articles:confession secured by inducement, made upon oath, madeunder promise of secrecy. The definition is not contained inthe Evidence Act, 1872; and in that Act it would not beconsistent with the natural use of language to construeconfession as statement by an accused 'suggesting theinference that he committed' the crime.”30. The aforesaid observations of Lord Atkin in Pakala's case (supra)-received the approval of 3Judge Bench of Supreme Court in thedecisionreportedasPalvinderKaurv.StateofPunjabMANU/SC/0038/1952 : 1953 CriLJ 154.xxxxx xxxxx xxxxxxxxx xxxx xxxxx

33. perusal of the decisions of Supreme Court in Aghnoo andBheru's cases (supra) shows that there is an apparent conflict betweenthe two decisions. further perusal of Bheru's case shows thatAghnoo's case (supra) and the legal position laid down therein that theconfession includes not only the admission of the offence but all otheradmissions of incriminating facts related to the offence contained inthe confessional statement was not brought to the notice of SupremeCourt in Bheru's (case) supra.

34. Tested on the aforesaid anvil of law, the learned Trial Judge wasperfectly justified in holding that the fact that the appellant gaveinformation about the crime of the murder of the deceased to the policeis admissible against the appellant as the same is evidence of hisconduct under Section 8 of Evidence Act. However, the learned TrialJudge was not correct in holding that the recording contained in the-DD entry Ex.PW8/A that the appellant informed the police that thedeceased was having illicit relations with his brother-in-law Bhanu isadmissible in evidence for the reason the said recording is anincriminating fact against the appellant and all the incriminating facts

contained in confessional statement are inadmissible in evidence aslaid down by Supreme Court in Aghnoo's case (supra).xxxx xxxx xxxx xxxx

xxxx xxxx xxxx xxxx

45. In the instant case, the appellant came to the police station andmade confessional statement to HC Dilbagh Singh PW-8. From thatvery moment, the movements of the appellant got restricted for surelyhaving told the police that he had murdered his wife, the appellantcould not have left the police station against the wishes of the policeofficer(s) present there. As stated by the Orissa High Court inParamhansa's case (supra), 'police custody' for the purposes of Section26 commences as soon as the movements of the accused get'restricted'; the appellant came into the 'custody' of police officer themoment he made confessional statement to HC Dilbagh Singh.”

(Emphasis supplied.)

26.The legal position in relation to the evidentiary value of confessionmade by the accused to police officer can be culled out as follows:

i. non-confessional first information report can be used as anadmission under Section 21 of the Evidence Act or as relevantstatement under any other provision of that Act.

ii. confession is an admission of the offence by person chargedwith the offence.with the offence.

iii. If 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 is not

permissible in law to separate part of such statement in order to

admit it as non-confessional statement.

iv. If proof of the confession is excluded by any provision of law, theentireconfessionalstatementinallitspartsincludingtheadmissions of minor incriminating facts must also be excluded,unless proof of it is permitted by some other provision of law.entireconfessionalstatementinallitspartsincludingtheadmissions of minor incriminating facts must also be excluded,unless proof of it is permitted by some other provision of law.

v. If an admission of an accused is exculpatory and part inculpatory,the prosecution is not at liberty to use in evidence against theaccused the inculpatory part only. The whole of the admissionshould be tendered in evidence.the prosecution is not at liberty to use in evidence against theaccused the inculpatory part only. The whole of the admissionshould be tendered in evidence.

However, this principle is of no assistance where no part of thestatement of the accused is self-exculpatory.statement of the accused is self-exculpatory.

vi. confessional first information report cannot be used against themaker, the co-accused, or to corroborate or contradict otherwitnesses.maker, the co-accused, or to corroborate or contradict otherwitnesses.

vii. If the confession is caused by an inducement, threat or promise, ascontemplated under the provision of Section 24 of the EvidenceAct, the whole of the confession is liable to be excluded.contemplated under the provision of Section 24 of the EvidenceAct, the whole of the confession is liable to be excluded.

viii. In terms of the provision of Section 25 of the Evidence Act,

confession made to police officer under any circumstance is notadmissible in evidence against the accused. It covers personaccused of an offence at the trial whether or not he was an accusedof the offence when he made the confession.admissible in evidence against the accused. It covers personaccused of an offence at the trial whether or not he was an accusedof the offence when he made the confession.

ix. Section 26 prohibits proof against any person of confession madeby him in the custody of police officer, unless it is made in theimmediate presence of Magistrate.by him in the custody of police officer, unless it is made in theimmediate presence of Magistrate.

Police custody for the purpose of Section 26 commences as soon asthe movements of certain person are restricted.the movements of certain person are restricted.

x. Save and except as mentioned in the proviso, the provisions ofSection 162 of the CrPC forbids for any purpose, the use of anystatement made by any person to police officer in the course of aninvestigation; at any enquiry or trial in respect of the offence underinvestigation.Section 162 of the CrPC forbids for any purpose, the use of anystatement made by any person to police officer in the course of aninvestigation; at any enquiry or trial in respect of the offence underinvestigation.

xi. Confessional or non-confessional information received from aperson accused of an offence and in the custody of police officer,insofar as, it relates distinctly to the fact discovered in consequenceperson accused of an offence and in the custody of police officer,insofar as, it relates distinctly to the fact discovered in consequence

thereof, may be proved in terms of the provision under Section 27of the Evidence Act.

xii. The fact of the first information report being given by the accusedhimself is admissible against him as evidence of his conduct underthe provisions of Section 8 of the Evidence Act.

27.PW-7 was posted as duty officer at Police Station Vijay Vihar, on11.08.2009, from 5 P.M. till 1 A.M. of the following morning. It has beendeposed by PW-7 that the appellant came to the police station at about 6:05P.M. and informed him that he has strangulated his wife to death, as his wifewas characterless. DD No.42A was recorded on the basis of the confessionso made to PW-7. After recording the diary entry, PW-15 and ConstableSatbir were sent to the crime spot.

28.On 11.08.2009, PW-15 was posted as Sub-Inspector at Police StationVijay Vihar. It has been deposed by PW-15 that DD no.42A was recorded bythe appellant to the effect that he has murdered the deceased. It has beenfurther deposed by PW-15 that the appellant was perturbed when he came tothe police station.

29.Insofar as the admissibility of the DD entry No.42A is concerned, theTrial Court has observed as follows:

The information given by the accused that his wife wascharacterless is inadmissible in law in order to attribute to theappellant the motive for the commission of the crime.

The incriminating part of the said DD entry is not admissiblebut the part showing the conduct of the appellant is admissible.

Therefore, the information given by the appellant to PW-7 thathe had strangulated his wife to death is admissible to show theconduct of the appellant immediately after the commission ofthe offence.

30.The information given by the appellant to PW-7, reduced into writingas DD entry no.42A and forming the basis of the registration of the F.I.R., isan admission by the appellant of the commission of the murder of thedeceased. As soon as the appellant gave the said confessional statement toPW-7, the movements of the appellant were restricted and the appellant wasin the ‘custody’ of the police.

31.The information given by the appellant to Head Constable KailashChand (PW-7) being an admission of the commission of the murder of thedeceased;theadmissionalongwitheveryotheradmissionofan

incriminating fact is liable to be rejected and is not admissible under theprovisions of the Evidence Act.

32.In view of the foregoing, the Trial Court erred in holding that the DDentry no.42A, insofar as it relates distinctly to the information that he hadstrangulated his wife to death, is admissible to show the conduct of theappellant immediately after the commission of the offence.

33.However, the fact that the appellant gave the information to PW-7, isadmissible towards his conduct under the provision of Section 8 of theEvidence Act. Further, the statement made by PW-8 that when the appellantmade the extra-judicial confession to him he was perturbed; PW-15 that theappellant was perturbed when he came to the police station; PW-11 that theappellant was perturbed when he first saw him i.e. at the tenanted premises,are also relevant to show the conduct of the accused.

34.When the investigation in case is highly defective, it is to beexamined as to whether there is any lapse by the I.O. and whether due tosuch lapse any benefit should be given to the accused. The law on this issueis well settled that the defect in the investigation by itself cannot be groundfor acquittal. If primacy is given to such designed or negligent investigationsor to the omissions or lapses by perfunctory investigation, the faith and

confidence of the people in the criminal justice administration would beeroded. Where there has been negligence on the part of the investigatingagency or omissions, etc. which resulted in defective investigation, there is alegal obligation on the part of the court to examine the prosecution evidencede hors such lapses, carefully, to find out whether the said evidence isreliable or not and to what extent it is reliable and as to whether such lapsesaffected the object of finding out the truth. Therefore, the investigation is notthe solitary area for judicial scrutiny in criminal trial. The conclusion of thetrial in the case cannot be allowed to depend solely on the probity ofinvestigation. [Ref: State of Himachal Pradesh v. Jeet Singh, reported as(1999) 4 SCC 370]35.PW-11 has deposed that the appellant led PW-15, PW-8 and him tothe tenanted premises and pointed out towards the dead body of the deceasedlying in room [Ex.PW-8/F]. Broken bangles and one angocha of white andred color [Ex.P1] were seized from the spot vide seizure memos Ex.PW-8/Aand Ex.PW-8/B, respectively. Thereafter, the appellant got one vegetablecutting knife on the handle of which one small cloth was tied recovered fromthe roof of the tenanted premises, which was seized vide seizure memoEx.PW-8/C.

36.PW-15 has also deposed on the same lines as PW-11 with respect tothe recoveries of the broken bangles, angocha and the vegetable cuttingknife.

37.It has been deposed by PW-8 that the appellant led him and the policeofficials to the tenanted premises where the deceased was lying dead. Policetook into possession the bangles of the deceased of green and red colour andone towel type cloth/gamcha [Ex.P1] vide seizure memos Ex.PW-8/A andEx.PW-8/B, respectively. However, PW-8 in his cross-examination hasstated that he could not say whether Ex.P1 was having red colour.

38.In the post-mortem report it has been stated that death was due toasphyxia consequent upon ligature strangulation. An application was alsomade by PW-11 seeking subsequent opinion regarding the angocha [Ex.P1],as to whether it could have been used for strangulation [Ex.PW-11/J]. It wasopined by PW-10 that injury on the body of the deceased could have beencaused by Ex.P1 [Ex.PW-10/B].

39.PW-8 is an independent witness as neither was he interested in theoutcome of the case nor was he in any way related with the appellant. PW-8has attested, inter alia, all the recoveries made at the instance of theappellant, including the recovery of the weapon offence [Ex.P1] made from

the crime spot. PW-8 has also attested the pointing out memo [Ex.PW-8/F].The recoveries were made and the pointing out memo was drawn on the dateof the commission of the offence itself, viz. 11.08.2009. The discrepanciesfound in the ocular account of PW-8, PW-11 and PW-15, whilst speaking onthe details of the colour of Ex.P1, are neither vital nor material in dimension.Moreover, the account of these witnesses qua the incident were recordedmore than one and half years after the date of the commission of themurder and cannot be expected to be corroborated with mathematicalniceties. There may be minor variations, but that won’t render the evidenceof these witnesses unreliable. [Ref: Leela Ram v. State of Haryana, reportedas (1999) 9 SCC 525]40.The argument advanced on behalf of the appellant that the weapon ofoffence [Ex.P1] was recovered from an open space, which was accessible toothers as well, is self-serving, inasmuch as, the weapon of offence wasrecovered from the tenanted premises of the appellant, viz. neither publicnor an open place accessible by others.41.Insofar as the failure of the police to lift chance prints from the crimespot and the recoveries made therefrom is concerned; the recovery of the

broken bangles, angocha [Ex.P1] and the vegetable cutting knife has beenproved beyond reasonable doubt de hors the report of the finger print expert.

42.In view of the foregoing, the recoveries made at the instance of theappellant cannot be termed as tainted.

43.The decision in Anter Singh (supra) is distinguishable on the facts ofthe present case, inasmuch as, in that report the recovery of the weapon ofoffence was made almost after 3 weeks, from the open place where the deadbody was found; which was accessible and visible to anyone passing by.Moreover, in that case the witness to the recovery had turned hostile.

44.The reliance placed on the decision in Bahadul (supra) is alsomisplaced, inasmuch as, in that report the only circumstance left forconsideration before the Hon’ble Supreme Court was the production of thecot by the appellant, all others having been rejected as unreliable.

45.Even the reliance placed on the decision in Dudh Nath Pandey(supra) is misplaced and is distinguishable on the facts of the present case.In that report the statement accompanying the discovery of the weapon ofoffence(pistol)waswoefullyvaguetoidentifytheauthorshipofconcealment; the pistol was stated to have been concealed in broad daylight

on public thoroughfare; and the discovery was witnessed by witness whohad already deposed in seven different cases in favour of the prosecution.

46.In relation to the motive for the commisison of the murder of thedeceased, it would be relevant to note that it is sound principle that everycriminal act is done with motive but its corollary would not be that, nocriminal offence has been committed if the prosecution fails to prove theprecise motive of the accused to commit it. When the prosecution succeededin showing the possibility of some ire for the accused towards the victim, theinability to further put on record the circumstances in which such ire wouldhave swelled up in the mind of the offender; to degree so as to impel him tocommit the offence, cannot be construed as fatal weakness in the case ofthe prosecution. [Ref: State of H.P. v. Jeet Singh, reported as (1999) 4 SCC370]

47.PW-16 is the owner of House no.C-100, Vijay Vihar, Delhi and hadlet out the rooms therein to the tenants. One of the room was given to ManojKumar, who was resident of Uttar Pradesh. It has been deposed by PW-16that Manoj Kumar was residing therein with the deceased for about 1-1.5months. After about 1 or 1.5 months the appellant came to PW-16 with girlaged 10-11 years and told the latter that the deceased was his wife and she

was living illegally with Manoj Kumar in the room rented out by him. Theappellant met the deceased in the room and requested her to go with him;and after about 1-2 days Manoj Kumar and the deceased left the roomsecretly without informing PW-16.

48.A suggestion was even put to PW-8 that the appellant had disclosed tohim and the police that one Manoj Kumar with whom his wife was havingillicit relation had committed the murder of the deceased. The suggestionwas denied by PW-8.

49.Even otherwise, the appellant in his statement under the provision ofSection 313 of the CrPC has admitted that the deceased (appellant’s wife)developed some relations with Manoj Kumar and went on to live with him.However, after persuasion by the appellant, the deceased came back to theformer and started avoiding Manoj Kumar. Thereafter, the appellant anddeceased started to live happily.

50.The Trial Court in relation to the motive for the commission of thecrime, has observed as follows:

“The testimony of PW-16 Mukesh Kumar, cross examination ofPW-11 Inspector Sunil Kumar, suggestion given to PW-8 AmarjeetSingh during cross examination and statement of the accused u/s313 Cr.P.C. combined together proved that accused was suspectingthe character of his wife and this was the motive of the accused incommitting the murder of the deceased.”

51.In view of the aforesaid deposition by PW-16 and the statement of theappellant under the provisions of Section 313 CrPC, it emerges that the TrialCourt was not in error in holding that that the appellant suspected thecharacter of the deceased, and that could have served as the motive for thecommission of the crime. Therefore, the bald assertion of the appellant thatthere was no reason for him to commit the murder of the deceased is baselessand ought to be rejected.

52.Factors which need to be considered by the Courts before attachingvalue to an extra-judicial confession are, inter alia, whether it was madevoluntarily; whether it was inspired by any improper or collateralconsideration; the veracity of the witness before whom it is made and hisposition in relation to the person making the confession; time lapse betweenthe occurrence and of making the confession; time and place of making it;circumstances in which it has been made; and the actual words of theconfession. [Ref: Nirmal Singh (supra) and Thimma v. State of Mysore,reported as AIR 1971 SC 1871]

53.According to normal human psychology person, unless he is ahardened criminal, has natural tendency to unburden himself and share histerrible secrets with somebody else, after the commission of grave offence,

especially, murder. However, having given time to ponder over it, the fear ofconsequence of conviction may start acting in restraint of one’s naturalimpulse to confess. The desire to confess may also evaporate with thepassage of time. [Ref: Nirmal Singh (Ibid.)]54.PW-8 was running DJ shop and used to reside at B-59, Vijay Vihar,Phase-II, Delhi and portion of House no.K-115 was being used by PW-8for the purpose of storage. PW-8 has testified that it takes 5 minutes fromHouse no.K-115 to reach the police station or his residence. Furthermore,PW-8 has deposed that the appellant used to reside along with his wife andchildren on the second floor of the House no.K-115 and was the only tenantin the entire three-storey building. It has been further deposed by PW-8 thatthe appellant was not known to him prior to the creation of the tenancy andthe appellant along with his wife and two children met him when the tenancywas created. Neither was any written agreement executed between theappellant and PW-8 nor was any rent paid, as the tenancy was created only7-8 days prior to the date of the incident.

It has been further deposed by PW-8 that on 11.08.2009, at about6/6:30 P.M., he was passing through the building comprising of the tenantedpremises to check on his labour, when the appellant met him. PW-8 has

deposed that the appellant was perturbed and upon asking him as to where hewas going, the latter himself disclosed that he had killed his wife and wasgoing to the police station to inform about the same. It has been furtherdeposed by PW-8 that he did not see any other person going to the tenantedpremises. PW-8 has also denied the suggestion put to him that he came to thecrime spot after being called by the police.

Further, PW-8 has deposed that when he was about to leave from thesaid house bearing no.K-115, Vijay Vihar, Phase-II, Delhi, the appellantreached there along with police personnel. Thereafter, the appellant, policeofficers and PW-8 went to the tenanted premises on the second floor; wherethe body of the deceased was found. The testimony of PW-8 was recordedby the police officials on the date of the incident itself.

55.PW-11 has deposed that on 11.08.2009, at about 6:15 P.M., afterreceiving information that murder has been committed at House no.K-115,he reached there; where he found the appellant, PW-15 and PW-8 to bepresent.

56.PW-15 has also deposed that when he received DD entry no. 42A, hereached House no.K-115, and PW-8 was already present there.

57.Per contra, the appellant in his statement under the provision ofSection 313 CrPC has deposed that, PW-8 has falsely implicated him as hewanted to save Manoj Kumar, the real culprit.

58.In relation to the extra-judicial confession allegedly made by theappellant to PW-8, the Trial Court has observed as follows:

“36. …There is nothing in evidence suggesting that PW-8 AmarjeetSingh was having any ill will even remotely towards the accused orhis testimony was motivated by improper purposes. The accused inclear, unambigouous words made extra judicial confession to thePW-8 Amarjeet Singh. The extra judicial confession made by theaccused to PW-8 Amarjeet Singh conveyed that the accused was theperpetrator of the crime. The extra judicial confession made to PW-8 Amarjeet Singh is not weak type of evidence. The accused instatement u/s 313 Cr.P.C stated that PW-8 Amarjeet Singh deposedagainst him as PW-8 Amarjeet Singh wanted to save real culprit.The defence as taken by the accused does not inspire anyconfidence. No suggestion was given to PW-8 Amarjeet Singh thathe wanted to save real culprit Manoj. The testimony of PW-8Amarjeet Singh inspire confidence and can be safely relied upon toprove the extra judicial confession made by the accused to PW-8Amarjeet Singh. There is nothing in the testimony of PW-8Amarjeet Singh which can dilute the credibility of the testimony ofPW-8 Amarjeet Singh. The prosecution proved that the accusedmade extra judicial confession to PW-8 Amarjeet Singh which canbe safely relied upon.”

59.On conjoint reading of the testimony of PW-11 and PW-15, it cannot

be disputed that PW-8 was present at House no. K-115, when the policeofficials reached there alongwith the appellant, subsequent to the recording

of the DD entry No.42A. PW-8 has deposed that he did not notice any other

person going to the tenanted premises. According to the post-mortem reportthe time of death is around 5:30 P.M. The extra-judicial confession is statedto have been made by the appellant to PW-8 around 6-6:30 P.M and the DDentry No.42A has been recorded around 6:05 P.M.

60.Therefore, it can be reasonably inferred that the alleged confession hasbeen made by the appellant to PW-8 immediately after the commission ofthe crime, as he was perturbed after strangulating the deceased to death.

61.The testimony of PW-8 that the appellant made confession to himqua the commission of the murder of the deceased, has remained consistentand unshattered, despite having been cross-examined at length; and inspiresconfidence.

62.It shall be borne in mind that different witnesses react differentlyunder different situations and there cannot be any set pattern or uniform ruleof human reaction. [Ref: Leela Ram (supra)]. The mere fact that the PW-8did not inform the police about the confession made to him by the appellantwould not render his testimony liable to be discarded.

63.Furthermore, neither has any evidence been adduced by the appellantto show any reason for PW-8 to falsely implicate the appellant nor was anysuggestion so given to him. There is also no evidence on record to show that

the appellant knew anyone else in the neighborhood, as he had shifted in thetenanted premises only 7-8 days prior to the commission of the offence.However, the appellant was acquainted with PW-8, the latter being thelandlord of the tenanted premises.

64.In view of the foregoing, it cannot be said that PW-8 is plantedwitness and no confession was made to him by the appellant, inasmuch as, i)the testimony of PW-8 has remained consistent and unshattered; ii) thepresence of PW-8 at House no.K-115 has been established by the testimonyof PW-11 and PW-15; iii) there was no reason for PW-8 to falsely implicatethe appellant; iv) the confession was made immediately after the commissionof the offence; v) save and except PW-8, the appellant was not acquaintedwith anyone else in the neighbourhood; and vi) the confession, insofar as theappellant disclosed to PW-8 that he was going to the police station to confessabout the commission of the murder of the deceased, has been corroboratedby the factum of registration of DD entry no.42A.65.The reliance placed on Nirmal Singh (supra) is distinguishable on thefacts of the present case, inasmuch as, in that case multiple confessions weremade by the accused, firstly, to the person who arranged the marriagebetween him and the deceased after travelling distance of 80-90 miles;

secondly, to person who was completely unknown to him; and thirdly, toan omnibus witness who was present on every occasion. The confessions somade were discarded; they being not reliable.

66.Juxtaposed with the decision in Nirmal Singh (supra), the Hon’ble

Supreme Court in R. Kuppusamy v. State, reported as (2013) 3 SCC 322,relied upon the extra-judicial confession made by the accused to theAdministrative Officer of the village after the commission of the offence.

67.With regard to an extra-judicial confession, the following principles

have been enunciated by the Hon’ble Supreme Court in Sahadevan v. State

of Tamil Nadu, reported as 2012 (5) SCALE 415:

“22.…The Principles(i) The extra judicial confession is weak evidence by itself. It has tobe examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra judicial confession attains greater credibility andevidentiaryvalue,ifitissupportedbyachainofcogentcircumstances and is further corroborated by other prosecutionevidence.

(v) For an extra judicial confession to be the basis of conviction, itshould not suffer from any material discrepancies and inherentimprobabilities.

(vi) Such statement essentially has to be proved like any other factand in accordance with law.”

Furthermore, the Hon’ble Supreme Court observed qua the evidentiary value

of an extra-judicial confession in case based on circumstantial evidence, as

follows:

“12. In case of circumstantial evidence, the onus lies upon theprosecution to prove the complete chain of events which shallundoubtedly point towards the guilt of the accused. Further more, incase of circumstantial evidence, where the prosecution relies upon anextra judicial confession, the court has to examine the same with agreater degree of care and caution. It is settled principle of criminaljurisprudence that extra judicial confession is weak piece ofevidence. Wherever the Court, upon due appreciation of the entireprosecution evidence, intends to base conviction on an extra judicialconfession, it must ensure that the same inspires confidence and iscorroborated by other prosecution evidence. If, however, the extrajudicial confession suffers from material discrepancies or inherentimprobabilities and does not appear to be cogent as per theprosecution version, it may be difficult for the court to base aconviction on such confession. In such circumstances, the courtwould be fully justified in ruling such evidence out of consideration.”

68.A plain reading of the above principles would make it abundantlyclear that an extra judicial confession can be safely made the basis for theconviction of an accused, in the event the same, (i) is made voluntarily; (ii)inspires confidence; (iii) is corroborated by chain of cogent circumstancesand prosecution evidence; and (iv) does not suffer from any materialdiscrepancies and improbabilities.

69.In the present case, the confession voluntarily given by the appellantto PW-8 inspires confidence and does not suffer from any materialdiscrepancies and improbabilities. Furthermore, the extra-judicial confessionmade by the appellant is corroborated by other cogent circumstances andprosecution evidence, as discussed hereinbefore.

70.The reliance placed on the decision in Pratap Dehury v. State ofOrissa, reported as (2000) 18 OCR 633 is misplaced, inasmuch as, in thatreport the statements of the witnesses, before whom the purported extra-judicial confession was made, were contradictory.

71.In relation to the contention raised on behalf of the appellant that, non-examination of Manoj Kumar raises serious doubt on the prosecution story,it would be relevant to note that the appellant was residing alongwith thedeceased and his children at the tenanted premises. As per the testimony ofthe police officials and PW-8, when the appellant led them to the crime spot,the children of the deceased and the appellant were not present there. PW-8,who is reliable witness and was present at House no.K-115 to check on hislabour; around the time of the commission of the offence, has deposed thathe had not seen any other person going to the tenanted premises. There wasno sign of forcible entry either. Furthermore, PW-8 has denied thesuggestion put to him that the appellant had disclosed to him that ManojKumar had committed the murder of the deceased.

72.In this behalf, the Ld. Trial Court has observed as follows:

“The testimony of PW-8 Amarjeet Singh has proved that the accusedwas present along with the deceased in the tenanted premises at thetime of incident. There is no evidence to reflect the presence of anyother third person at the time of incident in the tenanted premises. The

deceased was the wife of the accused. The accused was not happy withhis wife i.e. the deceased due to her relation with Manoj Kumar. Thedeceased was found dead inside the house. There was no possibility ofany external intruder. It is not explained by the accused under whatcircumstances the deceased has died. It is not explained how the threeligature marks came on the neck of the deceased. The cause of death isopined as strangulation by ligature excluding the possibility of anysuicide. These facts are relevant under Section 106 of Evidence Actand are indicative of the fact that the accused has strangulated hiswife.”

73.A perusal of the testimony of PW-8 would reveal that neither ManojKumar nor any third person, apart from the appellant, was present with thedeceased at the tenanted premises at the time of the commission of theoffence and was liable to be examined by the prosecution.

Even otherwise, in catena of decisions it has been held that in casesof non-examination of person as witness, the investigating-officer mustbe questioned to elicit the reasons and in the absence thereof, such anargument would not be entertained. [Ref: Dahari and Ors. v. State of U.P.,reported as (2012) 10 SCC 256; Onkar and Another v. State of UttarPradesh, reported as (2012) 2 SCC 273; Manjit Singh and Another v. Stateof Punjab and Another, reported as (2013) 12 SCC 746]. No such questionswere put to PW-11/Investigating-officer.

74.Therefore, non-examination of Manoj Kumar by the prosecution doesnot raise suspicion against the version of the prosecution and does not

absolve the appellant of the criminal liability for the commission of themurder of the deceased; which is otherwise established by cogent material onrecord.

75.The burden of proving an alibi which may absolve the accused fromthe criminal liability lies upon the accused itself [Ref: Gurcharan Singh v.State of Punjab, reported as AIR 1956 SC 460].

76.In this behalf, it has not been deposed by Savita (PW-5), the mother inlaw of the deceased, that the appellant came to their house at Nand Nagri, onthe day of the commission of the incident, to drop off his children.

77.Furthermore, the alibi raised by the appellant in his statement underthe provision of Section 313 CrPC, that on the day of the commission of themurder of the deceased he had gone to drop off his children at his parents’house seems to be an afterthought, inasmuch as, it has not been proved bythe evidence on record.

78.Therefore, the onus placed on the appellant, by virtue of the provisionunder Section 106 of the Evidence Act, to disclose as to what transpired inthe tenanted premises leading to the death of the deceased due to asphyxia;being especially within the knowledge of the appellant, does not standdischarged; thus, providing an additional link in the chain of circumstances

which complete the chain, that the Appellant committed the murder of hiswife by strangulation using an angocha [Ex.P1], as she was allegedly ofloose morals.

79.The five golden principles expounded by the Hon’ble Supreme Courtin Hanumant (supra) have been duly satisfied in the instant case. As alogical corollary, it follows that the murder of the deceased cannot beexplained on any other hypothesis except the appellant’s guilt. In otherwords, the prosecution has fulfilled all the essential requirements of acriminal case, which rests purely on circumstantial evidence.

80.In view of the foregoing, there appears to be no circumstance thatwarrants an interference of this Court with the finding of the Ld. Trial Court,save and except, to the extent an inference is sought to be drawn by the TrialCourt from the conduct of the appellant; as discussed hereinbefore.

81.Consequently, the conviction of the appellant as recorded in theimpugned judgment as well as the sentence awarded to him by way of theorder on sentence, are upheld.

82.The present appeal is accordingly dismissed, with no order as to costs.

83.Copy of the judgment be supplied to the appellant through theSuperintendent, Central Jail, Tihar and also be sent for updation of therecords.

SIDDHARTH MRIDUL, J.

NAJMI WAZIRI, J.

SEPTEMBER 26, 2017dn/ap