K.N. Srivastava, J.
1. This is an appeal against the judgment and order passed by the First Temporary Civil and Sessions Judge, Allahabad, convicting Badri appellant under Section 304, IPC and sentencing him to five years' R. I.
2. The facts giving rise to this appeal are as follows:-
Badri Prasad appellant is resident of village Kashia Pachhi Police Station, Kokhraj District Allahabad, Smt. Gulabia (deceased) was his wife. According to the prosecution, Smt. Gulabia had illicit connection with one Nathu. This was resented by the appellant. At about 10.00 p.m. on 13-1-1969 the appellant, his wife and their children were sleeping inside the house. A small child was sleeping on the cot of the deceased. After Smt. Gulabia and the children fell asleep, the appellant placed the aforesaid child on his cot. He then took out a Phaura and gave a number of blows with it on the neck of Smt, Gulabia. Smt. Gulabia then died. The outer door of the house had been chained from inside. The appellant then placed the child cm the cot of his daughter and after scaling I he wall went to the thana and lodged the report there. The appellant was arrested, The Phaura, which had blood stains on it, was taken into custody by the police. There were blood marks on the kurta of the appellant. It was taken into custody by the police and was sealed in a bundle.
3. The police registered a case under Section 302, IPC against the appellant and started the investigation. The investigating officer reached the spot. He took the dead body of Smt. Gulabia in his custody. After appointing Panchas, he prepared the inquest report. The dead body was then sent for post-mortem examination. The blood stained clothes of the deceased were taken into custody. There were blood marks on the ground. Blood stained earth was also taken into custody. All the blood stained articles were sent to the Chemical Examiner and Serologist. The Serologist reported that the Kurta of the appellant and the Phaura as well as the blood stained earth were stained with human blood. After completing the investigation, the police challaned the appellant. He was tried, and convicted and sentenced, as stated above.
4. The appellant is alleged to have made a confessional statement on 20-1-1969. At the trial Court, the appellant retracted the confession and pleaded not guilty.
5. The prosecution examined the Magistrate who recorded the confessional statement of the appellant, and the doctor who conducted the post-mortem examination. One Nathu was examined to prove certain circumstances and extra-judicial confession of the appellant. The statements of the rest of the prosecution witnesses are more or less of a formal nature.
6. Dr. M. J. Siddiqui conducted the post-mortem examination on the dead body of Smt. Gulabia on 15-1-1969 at 3.30 p.m. He found the following ante-mortem injuries on the dead body:-
1. Incised wound, oblique above downwards, 3' x 3' cutting through the jaw bone on the right side of the face from just below the right nostril running on the upper and lower lips upto angle of the lower jaw bone,; cutting through and through the upper jaw bone and upper three teeth on the right side had been brokenThe muscle nerves and vessel were all cut.
2. Incised wound oblique above downwards 2' x 1/2' Jaw bone lower on the right side of the lower lip and lower jaw bone, cutting through and through the lower jaw bone. Four front teeth of the lower set knocked out. The muscle nerves and vessels were cut.
3. Incised wound oblique above downwards, 3'x 1 1/2' bone 3rd carvical vertebras on the front and right side of the neck upper part, from just below the angle of the jaw bone lower upper, 3' below the right ear on the right side of the neck, all through vessels towards nerves to wind pipe oesophagus were cut clean through and through.
4. Lacerated wound bruise 3/4' x2' 4th cavicle vertebrae on the front of the neck on the middle over the thyroid cartilage.
7. In the opinion of the doctor, the deceased had died due to shock and haemorrhage resulting from the injuries. The probable time since death given by the doctor tallied with the time of the occurrence.
8. The learned trial Court held that the confession was voluntarily made by the appellant, and relying on the confessional statement of the appellant and other circumstances, convicted the appellant. It was argued by the learned Counsel for the appellant that neither the first information report, which the appellant lodged at the Thana, nor his confessional statement recorded by the Magistrate were admissible in evidence. There is a recital in the report which the appellant lodged at the thana that he caused injuries on the neck of the deceased with the Phaura, as a result of which she died. He also admitted that he had caused injuries to the deceased with the Phaura and was producing the same before the police. The learned State Counsel argued that this statement of the appellant was an admission and it should be received in evidence under Section 21 of the Evidence Act. On the other hand, learned Counsel for the appellant contended that it was a confessional statement which should not be received in evidence as it was hit by Section 25 of the Evidence Act.
9. In support of his contention, the learned State Counsel relied on a decision of the Supreme Court in Faddi v. State of Madhya Pradesh : 1964CriLJ744 . In this Supreme Court case, the report which the appellant lodged was that he found the dead body of his son lying in a well. No part of the statement was confessional in nature. On the other hand, the appellant put the blame of the murder on some other person. There were other circumstances in this case which went to show that he wrongly made a statement at the thana. This statement was used under Section 21 of the Evidence Act as no part of it was confessional in nature. The Supreme Court relied on a Privy Council decision in Dal Singh v. King Emperor, (AIR 1917 PC 25) : (18 Cri LJ 471). The following observation in this Privy Council case was also relied on by the Supreme Court:-
It is important to compare the story told by Dal Singh when making his statement at the trial with that what he said in the report he made to the police in the document which he signed, a document which is sufficiently authenticated. The report is clearly admissible. It was in no sense a confession. As appears from its terms, it was rather in the naure of an information or charge laid against Mohan and Jhunni in respect of the assault alleged to have been made on Dal Singh on his way from Hardua to Jubbul-pur.
10. In the present case, the position is quite otherwise. The report which the appellant lodged at the thana is a confession by the appellant that he committed the murder of his wife. Therefore, the statement being a confessional statement is hit by Section 25 of the Evidence Act.
11. In a Division Bench case of this Court Ram Sajiwan v. The State of U. P., : AIR1964All447 . the following observation was made by the Bench :-
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 m 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.
12. In the instant case, in the first information report the appellant narrated as to in what manner he committed the murder and how the murder was committed by him. Therefore, no part of it can be separated and treated as admission. The entire statement appears to be a confession and no part of it can be used as admission under Section 21 of the Evidence Act.
13. The other evidence against the appellant is the confessional statement which he made before the Magistrate. There are serious objections to the admission of this statement recorded by the Magistrate under Section 164, Criminal P. C. It appears that the Magistrate did not comply with all the requirements of Section 164 of the Code of Criminal Procedure. What Section 164, Criminal P. C. requires is that the statement shall be recorded by a Magistrate so empowered by the State Government as is best suited to the circumstances of the case. It shall be signed and recorded in the manner mentioned in Section 364, Criminal P. C. Further, a Magistrate before recording a confession has to explain to the accused that he is not bound to make the statement and that is before a Magistrate of First Class, and if he makes a statement it may be used as evidence against him add he may be convicted on the same. He has also to satisfy himself that the confession is voluntarily made. After the confession is recorded he has to record a certificate at the foot of the statement in the words given in the section. If these conditions are not fulfilled, certainly the statement being not recorded in accordance with the provisions of Section 164, Criminal P. C. cannot be used as a confessional statement.
14. What the Magistrate did in the present case was that he did not mention anywhere before recording the statement that the statement was voluntarily made. The Magistrate stated that he had put certain questions to the appellant to satisfy himself that the statement was being voluntarily made. If that was a fact it should have been put down on the record. The omission would not go to fill up the lacuna by the oral statement of the Magistrate.
15. He had further to record a certificate as given under Clause (3) of Section 164, Criminal P. C. But, what the Magistrate did in this case was that he had signed the printed instructions given in the left side margin of the printed form. This was not the compliance of the above provision. It was only an instruction to the Magistrate that he had to give a certificate in the words given in the margin and this certificate should have been given at the foot of the statement so as to show that the provisions of Section 164, Criminal P. C. had been complied with. It was argued on behalf of the appellant that later on realising that the statement had not been recorded in strict compliance of Section 164, Criminal P. C, the learned Magistrate subsequently signed that instruction portion on the margin. There was no space left at the foot of the statement, and, therefore, this argument has some, force in it. This statement too, therefore, cannot be used as confessional statement.
16. There is yet another factor which clearly goes to show that this contention is not correct. According to the prosecution, the appellant killed his wife because he suspected that she was having illicit connection with Nathu and, therefore, in the confessional statement the appellant stated that he saw somebody was lying on a cot in a compromising position with his wife and when he entered the Angan that man ran away. This circumstance also makes the case very doubtful.
17. The other circumstance against the appellant is the statement of Nathu. According to the prosecution, the appellant made an extra-judicial confession to Nathu, Nathu had enmity with the appellant. This fact was admitted by Nathu. I do not think that Nathu would have met the appellant in the manner alleged by him. It is also highly improbable that the appellant would make a confessional statement to his enemy Nathu, specially when he was suspecting that Nathu was carrying on with his wife. Had Nathu met the appellant in the manner alleged by him, the possibility was that the appellant would have assaulted Nathu.
18. The last circumstance against the appellant was the recovery of the Phaura and the Kurta which had blood stains on them. The Phaura was recovered at the thana. The Kurta was taken from the appellant at the thana. Therefore, these two recoveries would not come under Section 27 of the Evidence Act which says that the recovery could not have been made but for the information given by the accused. This is not the case in this appeal. It is true that Smt. Gulabia was murdered. But, on the evidence which has been recorded in this case the appellant cannot be convicted as there is no legal evidence against him. Besides this, the confessional statement was also retracted by the appellant later on and this also goes to diminish the value of the confession made by the appellant.
19. After giving my anxious thought to the facts and circumstances of the case, I think that the appellant cannot be convicted.
20. In the result, the appeal is allowed. The conviction and sentence of the appellant under Section 304, IPC are set aside and he is acquitted of the charge. The appellant is on bail. He need not surrender to his bail bonds which shall stand cancelled.