1. Ram Sajiwan has been convicted under Section 302 I. P. C. and sentenced to life imprisonment for the murder of his wife Smt. Bitti on the morning of the 27th August 1961.
2. Shortly stated, the facts of the case are that the appellant was married to Smt. Bitti about 3 years bach and her gauna was performed some 2 years ago; that the deceased used to run away from the house of her husband to her bahnoi's place; that on the last occasion she had run away to the house of her bahnoi with Rs. 130/-; that her hasband had gone there to call her and brought her back to his house; that some 10 or 12 days before the present occurrence the brother of the deceased came to fetch her but the accused refused to send her; that the accused and the deceased went to their juar field for scraping grass on the morning of the 27th August, 1961; that the deceased asked her husband to send her to her maika but-the accused refused to do so; that the deceased abused her husband and then the accused killed her with a khurpi which he was carrying; that the accused then went by passenger train from Khaga to Fatehpur railway station from where he took a rickshaw and went to the Kotwali police station where he lodged a report of the occurrence; that in the report made by the accusedhe confessed to having committed the murder of his wife; that at the time of the making of the report by the accused he was wearing a blood-stained dhoti which had been taken off from his body by the Head Constable; and that the accused accompanied by the Station Officer of'Kotwali Police Station, Fatehpur, and the Sub-Inspector of Police Station Khaga went to his village and pointed out the dead body to the said police officers. It was on these facts that the prosecution of the accused was based.
3. The post-mortem, examination conducted by Dr. Bhargava, Civil Surgeon, Fatehpur, revealed 9 incised wounds on the dead body, 3 of which were on the left and the back of the neck resulting in cutting of the vertebra and the spinal cord. The Civil Surgeon stated that the injuries appeared to have been caused by some sharp edged weapon like a khurpi.
4. The statement of Hasan Uddin, Head Constable, P. S. Kotwali, Fatehpur, was to the effect that the accused came to the police station Kotwali at 11.15 a.m. on the 27th August, 1961 and got a report written about the murder of his wife. He proved the report made by the accused, Ex. Ka-14. The witness further stated that the accused was putting on a blood-stained dhoti and the same was taken off from his body and sealed at the spot. Azmatullah, Station Officer, P. S. Kotwali, took the accused in his custody and brought him to Police Station Khaga, and accompanied by Iqbal Ahmad, Sub-Inspector of Police Station Khaga, they went to the place of occurrence where the accused pointed out the dead body of his wife lying in the juar field of one Ram Narain. It was claimed by the prosecution that the accused had taken the field of Ram Narain on batai and that on the date of the occurrence the accused and his wife had gone to scrape grass in that field. The dead body was identified by Gulab, a resident of village Baiju-ka-Purwa where the murder was committed. Gulab also identified the two khurpis belonging to the accused and the deceased, as also the dhoti which had been recovered from the person of the accused at the police station. The two khurpis recovered from the spot and the dhoti recovered from the person of the accused were sent to the Chemical Examiner and the Government Serologist for examination and report. The latter found human blood-stains on one of the khurpis as also on the dhoti belonging to the accused.
5. The accused pleaded not guilty. He denied the prosecution allegation that he had made a report at the police station admitting his guilt. He further denied the he had gone with his wife to scrape grass in the field of Ram Narain on the morning of the date of occurrence. His statement was that his wife had gone by herself to the said field in the morning. The defence case was that Smt. Bitti deceased had gone to ease herself at about 4 a. m. When she did not return the accused went in search of her and found her dead body lying in the juar field of Ram Narain. He then went to Police Station Khaga to make a report but did not find the Station Officer there. He therefore went to the bungalow of the Superintendent of Police at Fatehpur. There he met the Station Officer of Khaga who took him to the Police Station Kotwali and got a report written against him, (the accused). He also denied that a blood-stained dhoti (Ex. 9) had been recovered from his person at Police Station Kotwali, Fatehpur.
6. There are no eye-witnesses in the case and the prosecution case rests solely on circumstantial evidence. The circumstances sought to be proved against the accused are these :
(1) That the relations between the accused and his wife were strained as the latter used to frequently run away from his house to her bahnoi's place and that the accused had refused to send her to her maika when her brother came to fetch her some 10 or 12 days before the date of the occurrence. It is alleged that there used to be frequent quarrels between the accused and his wife on this score. This is said to be the motive for the crime.
(2) That on the morning of the date of the incident the accused went to the field of Ram Narain in the company of his wife to scrape grass and committed her murder when she abused him for refusing to send her to her father's place.
(3) That after committing the crime the accused went to Kotwali Police Station and lodged a report wherein he admitted his guilt
(4) That on the way to the police station he made an extra-judicial confession to one Hira Lal, a rickshaw driver, that he had committed the murder of his wife,
(5) That the accused was putting on a blood-stained dhoti when he arrived at the police station.
(6) That the same day the accused pointed out the dead body of his wife to the Station Officer, Police Station, Kotwali, and the S. I., Police Station Khaga in the field of Ram Narain in village Baiju-ka-Purwa.
7. On the question of motive we have the evidence of P. W. 15 Ram Sajiwan, Sarhu of the accused, and P. W. 16 Ram Kripal, brother of the deceased. Both these witnesses stated about the escapades of the deceased from the house of her husband and testified to the fact that the husband had brought her in Jeth last from the house of Ram Sajiwan P. W. 15. Ram Kirpal, brother of the deceased, deposed that he had gone to the house of the accused some 10 or 12 days before and asked the accused to send his sister to her maika but the accused refused to do so, whereupon there was a quarrel between the accused and the deceased. We have no reason to disbelieve the evidence of these two witnesses and nothing has been shown to discredit their testimony. It must, therefore, be held that the motive for the crime had been established by the prosecution.
8. The second circumstance, namely, that the accused and the deceased had gone to their field on the morning of the occurrence to scrape grass, is deposed to by Gulab P. W. 12. This witness is a boy aged 17 years. He said that he was going to ease himself about 2 hours after sunrise when he saw the accused and his wife going from their house in the direction of the fields. He further stated that both of them were carrying khirrpis and that the accused had also a lathi with him. When the police arrived in the village on the evening of the 27th August, 1962 they sent the Chaukidar to bring someone to identify the dead body. The Chaukidar is said to have found this boy in the village and took him to the soot. He not only identified the dead body but also identified the two khurpis belonging to the accused and the deceased, respectively, as also the dhoti which the accused is said to have been wearing at the time when he reached the Police Station Kotwali, Fatehpur. It was stated by him that on that day a woman had died and several persons of the village had gone for the cremation of the dead body. The difficulty in accepting the statement of Gulab P. W. 12 is that he has given a very unusual hour for going to ease himself. It is also not without significance that in his statement to the police he did not state that at the time when he saw the accused and the deceased going to the field he was going to ease himself. It was because of this omission in the statement of the witness that the investigating officer did not show the pond where the witness is said to have gone to ease himself in the site plan prepared by him. The prosecution did not adduce evidence to show that no adult person was present in the village on the evening of the occurrence who could have gone to the spot to identify the dead body. The circumstances in which this witness came to see the accused and the deceased together appear to us to be very suspicious and we are not, therefore, prepared to place implicit reliance on his testimony. Consequently, it must be held that the prosecution had failed to establish that the accused and the deceased were together in the field when the murder was committed.
9. The learned State Counsel wanted us to treat certain portions of the statement of the accused contained in the first information report as admissions. It was said that the statement of the accused in the F.I.R. to the effect that he was scraping grass with his wife on the morning of the occurrence was admissible under Section 21 of the Indian Evidence Act as being not a confession relating to the commission of the crime. The following observations of Bhandari, J. in State of Rajasthan v. Shiv Singh, , were relied upon by the learned State Counsel in support of his argument:
'If the first information report is a document containing not only the confession of the accused for committing the crime with which he is charged, but also relates to several other matters which are relevant to the trial, there is nothing in the provisions of the Evidence Act making the latter inadmissible. Care must of course be taken that such statements are severable from the confessional part.'
10. In judging whether a statement made by on accused in the F.I.R. amounts to a confession or not it has, first, to be seen whether it is self-inculpatory as a whole or whether it contains some exculpatory matter relating to a fact which, if true, would establish his innocence, vide Pakala Narayana Swami v. Emperor . Secondly, it has to be considered whether the portion of the statement sought to be relied upon is severable from the rest of the statement which is self-inculpatory. If the first information report made by an accused person contains facts relating to motive, preparation and opportunity to commit the crime with which he is charged, and the facts recited therein are self-inculpatory in the sense that the narrative describing the relations between the accused and the deceased gives the motive for the crime with which the accused is charged, the whole statement must, in our opinion, be treated is a confession made to a police officer and would be hit by Section 25 of the Evidence Act. In the above, quoted observation of Bhandari, J. the law appears to us to he stated a little too broadly, but the generality of the observation is modified in another passage of the judgment That passage, which in our opinion states the true legal position, is as follows :
'If there is a confession of the accused pure and simple in the first information report made by him the entire first information report Is inadmissible in evidence. If in addition to the confession It contains certain other matters which are relevant to the inquiry in the crime they may be taken into evidence as admissions of the accused, but care must be taken to see that such statements are not a part of the narrative of confession. A confessional statement does not mean only that portion of the statement in which the commission of the actual offence is referred to. If the accused has made a confession admitting that he had committed an offence and at the same time further given the details of the preparation which he had made for the commission of the offence and the manner in which he had committed the offence, it cannot be said that the portion that relates to the preparation of the offence or other activities of the accused in the matter of the commission of the offence can be read in evidence and only that portion which relates to the actual commission of the offence is inadmissible. The entire narrative in such a case is inadmissible.'
11. The view expressed by the Calcutta High Court in Emperor v. Lalit Mohan AIR 1921 Cal 111, was cited before us in support of the contention that the first information report in so far as it speaks of the events preceding the occurrence was admissible in evidence. The above case is clearly distinguishable. The Calcutta High Court was considering a case in which the accused had spoken of events prior to the night of the occurrence in the F.I.R. made by him. It was held that that portion of the statement of the accused in the F.I.R. which was part of the history or narrative of events preceding the night of occurrence was admissible as statements or admissions not being confessions. In the present case the first information report deals only with the events occurring in the field on the morning of the occurrence and cannot be treated as a narrative or history of events that took place on a day previous to the occurrence. The Calcutta case is, therefore, distinguishable on facts from the present one. But it seems to us that if an accused gives a narrative disclosing strained relations between him and the deceased and refers to events that occurred several days before the occurrence as evidence of his strained relations with the deceased, that part of the statement would be hit by Section 25 because it is a statement disclosing motive for the crime. We, therefore, very respectfully differ from the view expressed by the Calcutta High Court in the two (?) cases referred to above.
12. A similar point arose before the Bombay High Court in Harnam Kisha v. Emperor AIR 1935 Bom 26. The facts of that case were these: The accused was sleeping with his wife on the night in question and had a quarrel with her because she refused to have sexual intercourse with him. He then beat her to death with a 'dharia'. After killing his wife he proceeded to the police station where he made a report early next morning. The gist of the report, as succinctly put by Beaumont, C. J., was in these terms :
'I was sleeping with my wife on the night in question; I quarreled with her; and I killed her.'
It was argued before the Bombay High Court that that part of the accused's statement which related to his sleeping with his wife and to the quarrel with her was admissible in evidence but the portion which related to the actual commission of the murder was inadmissible. The learned Chief Justice delivering the judgment held-
'the confession shows opportunity for the offence, motive for the offence and commission of the offence, and it seems to me impossible to say that the portion of it which deals with opportunity or the portion of it which deals with motive, can be treated as no part of the confession. If the confession is suspect as having been induced by improper means, it is obvious that the whole confession may have been so induced, and that the truth may be that the accused was never in the house at all. Therefore, In my opinion, we must exclude from the evidence the whole of Ex. 16. If that is so, we are left with nothing, but this, that the body of the accused'swife was found in his hut in the early morning, that shehad obviously been murdered with a 'dharia' or somesimilar weapon, that the accused handed over to the policea 'dharia' stained with human blood and the clothes hewas wearing were also stained with human blood.If one excludes the confessional statement, it seems tome obvious that the evidence which remains is not sufficient to justify conviction.'
13. We respectfully agree with the view expressed above. It seems to us that the version given by the accused in his report to the police recited facts which impelled the accused to commit the murder of his wife, and also the opportunity to commit the crime. Thus the whole of the first information report made by the accused was in the nature of a confessional statement and could not be separated from that portion of it which dealt with the recovery of the dead body at the pointing of the accused. No portion of the F.I.R. was, therefore, admissible in evidence at the trial.
14. The prosecution further sought to place relianceon the extra-judicial confession alleged to have beenmade by the accused to one Hira Lal, a rickshaw puller,who is 'Said to have taken him from the railway stationto the Kotwali. It is sufficient to say that the testimonyof Hira Lal is not worth the paper it was written on. Heis an old convict and had admittedly no licence to ply arickshaw. He admitted in cross-examination that a casaagainst his 'bahnoi' was being investigated by Kotwalipolice. It is not surprising, therefore, that the policefound a convenient witness in him to depose against theaccused. The circumstances in which the alleged confession came to be made by the accused are most revealing,According to Hira Lal when the accused boarded his rickshaw he found a sad look on the accused's face and enquired about the reason. Then the accused disclosed thathe had committed the murder of his wife. Hiralal stated that on reaching the police station the accused paidup the fare, but the witness stayed on at the gate ofthe police station. Some time later the Station Officerspotted him and immediately recorded his statement. Howthe Station Officer came to know that this witness wasin possession of some vital information concerning thecrime is something of a mystery. There can, be littledoubt that Hira Lal was a creature of the police, andthe learned Sessions Judge was right in discarding histestimony.
15. The evidence relating to- the recovery of a blood-stained 'dhoti' from the person of the accused consists of the statement of P.W. 9 Hasanuddin, Head Constable, who had it taken off from the body of the accuse at the police station. The recovery of the blood-stained article was attested by P.W. 10 Ranjit Singh, Head Constable, and P.W. 18 Gulam Rasool, a milkman. It is further proved from the report of the Government Serologist that the said dhoti was stained with human blood. This part of the prosecution case has been fully established.
16. As regards the recovery of the dead body at the pointing of the accused, we do not think it is of any material consequence in the case because the fact of recovery is equally consistent with the defence story that the accused had discovered the dead body lying in the 'haar' when he went there in search of his wife.
17. It will be noticed that the most important link in the chain of the prosecution evidence which is wanting in the case is that there is no admissible evidence toprove that the accused and the deceased had been seengoing to their 'batai' field on the morning of the date ofoccurrence. The evidence of P.W. 12 Gulab being outof the way, it is not possible to hold that the accusedwas last seen in the company of the deceased. Thusthere was no legal evidence connecting the accused withthe offence charged. The circumstances that have teenproved are not of a conclusive nature; they might createstrong suspicion against the accused but by themselvesare not sufficient to sustain a conviction on a charge ofmurder.
18. We accordingly allow the appeal and set asidethe conviction and sentence of the appellant. He is onbail. He need not surrender. His bail bonds are discharged.