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CASE NO.: Appeal (crl.)  829 of 2007

PETITIONER: Ajay Singh

RESPONDENT: State of  Maharashtra

DATE OF JUDGMENT: 06/06/2007

BENCH: Dr. ARIJIT PASASYAT & D.K. JAIN

JUDGMENT: J U D G M E N T  (Arising out of S.L.P. (Crl.) No.2954 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.  

2.      Challenge in this appeal is to the order passed by a  Division Bench of the Bombay High Court, Nagpur Bench,  dismissing the appeal filed by the appellant. Appellant faced  trial for alleged commission of offence punishable under  Section 302 of the Indian Penal Code, 1860 (in short the ’IPC’).  He was convicted by learned Ist Additional Sessions Judge,  Nagpur and sentence of life imprisonment and fine of Rs.200/-  with default stipulation was imposed. Appeal filed against the  judgment, as noted above, was dismissed.   

3.      Prosecution version as unfolded during trial is as follows:   The appellant-accused was tried on a charge of having  committed murder of his wife Smt. Latabai (hereinafter  referred to as ’deceased’) by pouring kerosene on her person  and setting her ablaze in the night of 29.4.2003 i.e. at about  1.30 a.m. in the police quarters No. 203/3 at Raghuji Nagar,  Sakkardara at Nagpur. Appellant-accused was residing in the  said quarters along with his wife-the deceased and children.  On the fateful night when the neighbouring residents, mostly  police personnel were in their respective quarters and sleeping  in the courtyards, they heard sound of the tape-recorder,  which was being played by the appellant-accused, at about  1.30 a.m. in the night which awakened them. They heard the  appellant-accused and his wife quarrelling and saw the  appellant-accused dragging the deceased inside the house by  holding her hands and after a short while they noticed the  appellant-accused coming out of his quarters and shouting  "Kaka Lata Mere Hatho se Mar Gai" and fled away. Thereafter,  the neighbours entered the quarters of the appellant-accused  and saw that Lata had caught fire. They tried to extinguish the  fire, but, as she had sustained excessive burns before she  could be removed to hospital, she died on the spot. Due to this  incident, all the people in the neighbourhood had gathered at  the place of’ the incident and report (Exh. 80) in the matter  came to be lodged by Police constable Krishna Sadashiv Lute  (P.W. 1) at Police Station Sakkardara. The said report was  taken down in the proforma prescribed under Section 154 of  the Code of Criminal Procedure, 1973 (in short the ’Code’)  which is Exb. 19, by P.S.I. Kale (P.W. 11). P.S.I. Kale registered

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offence under Section 302 of IPC vide Crime No. 192/93 of  Sakkardara Police Station. Thereafter, he visited the place of  the incident and prepared the spot panchnama (Exb. 40) in  the presence of the panchas. He noticed that deceased Lata  was fully burnt and her neck was stretched towards her  stomach and her hands were crouching, both her legs were  drawn towards abdomen side. He also noticed partly burnt  matters on her person which was little bit wet. In the kitchen,  he noticed that there was a tin, which was containing some  kerosene,  match sticks and other material which he recorded  in the spot panchanama and seized the Articles 1 to 7. P.S.I.  Laxman Tighara (P.W. 9) took over the investigation of the case  on 29.4.1993. He arrested the appellant-accused at about  7.00 p.m, who was found near statute of Tukdoji Maharaj,  prepared the arrest panchanama and seized his clothes. The  appellant-accused was referred to medical officer for his  medical examination. In the course of investigation, the  inquest  Panchanama (Exb. 22) of the dead body of’ Latabai  was prepared and dead body was sent to Department of  Forensic Medicines, Medical College, Nagpur for conducting  post mortem. The Medical Officer conducted the post mortem  and gave the report (Exb. 31), which was admitted by the  appel1ant-accused and, therefore, the prosecution did not  examine any Medical Officer. The police recorded statement of’  witnesses in addition to completing the formalities of  forwarding the articles, seized during the investigation, to the  Chemical Analyser. After investigation was completed, charge- sheet came to be filed against the appellant-accused. His case  was committed to the court of Sessions for trial. As accused  pleaded innocence, he was put to trial.

4.      The trial Court found the accused guilty primarily on two  grounds; (a) there was extra judicial confession made before  PWs 1, 3 and 4; (b) kerosene was found on the dress which the  accused was wearing at the time of occurrence.  Placing  reliance on these two aspects, the trial Court found the  accused guilty.  High Court concurred with the conclusions.

5.      In support of the appeal, learned counsel for the  appellant submitted that there was no extra judicial  confession as claimed. Admittedly, PW-1 had animosity with  the accused because the said witness used to peep in the  bathroom of the accused when his wife-deceased was taking  bath. This aspect has been admitted by not only PW-1 but also  PW-3. The latter being the wife of PW-1 was bound to support  the statement of PW-1. There is great difference in the  language the accused is supposed to have stated. It was  admitted by PWs 1 and 3 that accused is supposed to have  addressed the utterances towards "Kakaji" and this reference  could be not only to PW-1 but also another neighbour of the  accused. The officer who had given the FSL report was not  examined as a witness.

6.      Learned counsel for the respondent submitted that the  Trial Court and the High Court have examined in detail the  evidence and come to the conclusion about guilt of the  accused.

7.      We shall first deal with the question regarding claim of  extra judicial confession. Though it is not necessary that the  witness should speak the exact words but there cannot be  vital and material difference. While dealing with a stand of  extra judicial confession, Court has to satisfy that the same  was voluntary and without any coercion and undue influence.  Extra judicial confession can form the basis of conviction if

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persons before whom it is stated to be made appear to be  unbiased and not even remotely inimical to the accused.  Where there is material to show animosity, Court has to  proceed cautiously and find out whether confession just like  any other evidence depends on veracity of witness to whom it  is made. It is not invariable that the Court should not accept  such evidence if actual words as claimed to have been spoken  are not reproduced and the substance is given. It will depend  on circumstance of the case. If substance itself is sufficient to  prove culpability and there is no ambiguity about import of the  statement made by accused, evidence can be acted upon even  though substance and not actual words have been stated.  Human mind is not a tape recorder which records what has  been spoken word by word. The witness should be able to say  as nearly as possible actual words spoken by the accused.  That would rule out possibility of erroneous interpretation of  any ambiguous statement. If word by word repetition of  statement of the case is insisted upon, more often than not  evidentiary value of extra judicial confession has to be thrown  out as unreliable and not useful. That cannot be a  requirement in law. There can be some persons who have a  good memory and may be able to repost exact words and there  may he many who are possessed of normal memory and do so.  It is for the Court to judge credibility of the witness’s capacity  and thereafter to decide whether his or her evidence has to be  accepted or not. If Court believes witnesses before whom  confession is made and is satisfied confession was voluntary  basing on such evidence, conviction can be founded. Such  confession should be clear, specific and unambiguous.  The  evidence of PWs 1, 3 and 4 is not consistent as to where the  accused is supposed to have made the statement. While PW-1  said that he was inside the house, interestingly PW-3 stated  that accused did not come out of the house and thereafter he  did not utter a statement which is taken to be the extra  judicial confession. So far as PW-4 is concerned the trial Court  had disbelieved his evidence, the High Court found the same  to be credible. Significantly, he stated that the accused came  near his courtyard and shouted "Kakaji Daudo Lata Jal  Gayee". In contrast, PW-1 stated that "Kakaji Lata Mar Gaye  mere hathse". PW-3 in contrast said "Kakaji Mere hathse Lata  Jal Gayee". It would, therefore, be not safe to place any  reliance on the so called extra judicial confession.  

8.      The expression ’confession’ is not defined in the Evidence  Act, ’Confession’ is a statement made by an accused which  must either admit in terms the offence, or at any rate  substantially all the facts which constitute the offence. The  dictionary meaning of the word ’statement’ is "act of stating;  that which is stated; a formal account, declaration of facts  etc." The word ’statement’ includes both oral and written  statement. Communication to another is not however an  essential component to constitute a ’statement’. An accused  might have been over-heard uttering to himself or saying to his  wife or any other person in confidence. He might have also  uttered something in soliloquy. He might also keep a note in  writing. All the aforesaid nevertheless constitute a statement.  It such statement is an admission of guilt, it would amount to  a confession whether it is communicated to another or not.  This very question came up for consideration before this Court  in Sahoo v. State of Uttar Pradesh, AIR 1966 SC 40: (1966 Cr1  U 68). After referring to some passages written by well known  authors on the "Law of Evidence" Subba Rao, J. (as he then  was) held that "communication is not a necessary ingredient  to constitute confession". In paragraph 5 of the judgment, this  Court held as follows:

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...Admissions and confessions are exceptions  to the hearsay rule. The Evidence Act places  them in the category of relevant evidence  presumably on the ground that as they are  declarations against the interest of the person  making them, they are probably true. The  probative value of an admission or a  confession goes not to depend upon its  communication to another, though, just like  any other piece of evidence, it can be admitted  in evidence only on proof. This proof in the  case of oral admission or confession can be  offered only by witnesses who heard the  admission pr confession. as the case may be....  If, as we have said, statement is the genus and  confession is only a sub-species of that genus,  we do not see any reason why the statement  implied in the confession should be given a  different meaning. We, therefore, hold that a  statement, whether communicated or not,  admitting guilt is a confession of guilt

                                                       (Emphasis supplied)

9.      So far as the prosecution case that kerosene was found  on accused’s dress is concerned, it is to be noted that no  question in this regard was put to the accused while he was  examined under Section 313 of the Code.  

10.     The purpose of Section 313 of the Code is set out in its  opening words- ’for the purpose of enabling the accused to  explain any circumstances appearing in the evidence against  him.’ In Hate Singh, Bhagat Singh v. State of Madhya Pradesh  (AIR 1953 SC 468) it has been laid down by Bose, J that the  statements of accused persons recorded under Section 313 of  the Code ’are among the most important matters to be  considered at the trial’. It was pointed out that the statements  of the accused recorded by the committing magistrate and the  Sessions Judge are intended in India to take the place of what  in England and in America he would be free to state in his own  way in the witness box and that they have to be received in  evidence and treated as evidence and be duly considered at  the trial. This position remains unaltered even after the  insertion of Section 315 in the Code and any statement under  Section 313 has to be considered in the same way as if Section  315 is not there.  11.     The object of examination under this Section is to give  the accused an opportunity to explain the case made against  him. This statement can be taken into consideration in  judging his innocence or guilt. Where there is an onus on the  accused to discharge, it depends on the facts and  circumstances of the case if such statement discharges the  onus.  

12.     The word ’generally’ in sub-section (1)(b) does not limit  the nature of the questioning to one or more questions of a  general nature relating to the case, but it means that the  question should relate to the whole case generally and should  also be limited to any particular part or parts of it. The  question must be framed in such a way as to enable the  accused to know what he is to explain, what are the  circumstances which are against him and for which an  explanation is needed. The whole object of the section is to  afford the accused a fair and proper opportunity of explaining

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circumstances which appear against him and that the  questions must be fair and must be couched in a form which  an ignorant or illiterate person will be able to appreciate and  understand. A conviction based on the accused’s failure to  explain what he was never asked to explain is bad in law. The  whole object of enacting Section 313 of the Code was that the  attention of the accused should be drawn to the specific points  in the charge and in the evidence on which the prosecution  claims that the case is made out against the accused so that  he may be able to give such explanation as he desires to give.   

13.     The importance of observing faithfully and fairly the  provisions of Section 313 of the Code cannot be too strongly  stressed. It is not sufficient compliance to string together a  long series of facts and ask the accused what he has to say  about them. He must be questioned separately about each  material substance which is intended to be used against him.  The questionings must be fair and couched in a form which an  ignorant or illiterate person will be able to appreciate and  understand. Even when an accused is not illiterate, his mind  is apt to be perturbed when he is facing a charge of murder.  Fairness, therefore, requires that each material circumstance  should be put simply and separately in a way that an illiterate  mind, or one which is perturbed or confused, can readily  appreciate and understand.  

14.     Above being the position, the inevitable conclusion is that  the prosecution has failed to establish the accusations. The  conviction is set aside. The appeal is allowed. The appellant be  set at liberty forthwith if not required in any other case.