S.R. Vyas, J.
1. This appeal by the abovenamed appellant is against his conviction and sentence of life imprisonment awarded under Section 302 of the Indian Penal Code.
2. Briefly stated, the facts alleged by the prosecution and accepted by the trial court for convicting the accused are these. The deceased Devilal was the son of Mannu (P.W. 5) and husband of Mst. Mano (P.W. 4). Pancha (P.W. 1) is the maternal uncle-in-law of the deceased Devilal. One of the daughters of Mannu (P.W. 5) was married to Badam Singh, the brother of the accused. Bhag-wati was another daughter of Mannu (P.W. 5). Bhagwati died during the pendency of the trial in the trial Court. The accused frequently used to come and stay at the house of Mannu (P.W. 5). Pancha (P.W. 1) is a Chowkidar of village Dargawan and had on the date of the incident come to the house of Mannu (P.W. 5).
3. (A) On the night intervening 11th and 12th March, 1970, deceased Devilal was sleeping in his house. Mst. Mano (P.W. 4) and Pancha (P.W. 1) were also sleeping in the same house, but at some distance from the deceased. Suddenly, at about 11 P.M., the prosecution witnesses Pancha and Met. Mano heard a gun-fire and rushed to the place where the deceased was sleeping. When they came near deceased Devilal, Pancha (P.W. 1) saw with the help of light from a torch battery that the accused was running away with a muzzle-loading gun in his hand. The accused, however, managed to run away. The deceased then uttered a few words naming the accused as the person responsible for the gun-fire. Other witnesses including the father of the deceased Mannu (P.W. 5) also came on the spot and to them also the name of the accused was mentioned as the person responsible for the firing at the deceased.
(B) The first information report was made by Pancha (P.W. 1) at the Tenduwa Police Station on the following day at about 6 A.M. in which the deceased was alleged to have named the accused as the person responsible for firing the gun. The informant Pancha (P.W. 1) also named the accused in this report as the person running away with the muzzle-loading gun in his hand. ,
(C) On 12-3-1970 the accused appeared before V.S. Yadav (P.W. 6), Additional District Magistrate (Judicial), Shivpuri, with a muzzle-loading gun in his hand.
He made a statement before him that it was he who had fired at the deceased Debilal. The Additional District Magistrate (J.) then called the local Station House Officer and, after making a note of what the accused had stated before him in an order-sheet, handed over the accused to the police. The accused was alleged to have left his shoes at the place of the incident The gun produced by the accused before the A.D.M. (J.), Shivpuri, was borrowed by the accused from Badri (P.W. 8) on the representation that it was required by him for Shikar.
(D) On the information (Ex. P-1) lodged by Pancha (P.W. 1) an offence under Section 302 of the Indian Penal Code was registered. The accused who was arrested at Shivpuri was sent to Police Station, Tenduwa and arrested in the case registered at that Police Station. After investigation the accused was put up for trial and tried for the offence of murder of deceased Devilal in the aforesaid circumstances. In the trial Court the accused denied his guilt and alleged that he was forcibly taken to the Police Station and then to the Court of A.D.M. (J.), Shivpuri, where he was asked to make certain incriminating statement though he was not at all responsible for causing the death of the deceased. The learned trial Judge relying upon the oral evidence of the prosecution witnesses and some documentary evidence came to the conclusion that the accused alone was responsible for causing the death of the deceased. Accordingly, the accused was convicted and sentenced as aforesaid.
4. This appeal was filed through the Jail authority, but Shri Rajeev Gupta voluntarily appeared for the accused. The main contentions of the appellant's learned Counsel were that the evidence given by the prosecution witnesses was not worthy of reliance; that the evidence of confessional statement made by the accused before V.S. Yadav (P.W. 6), A. D.M. (J.), Shivpuri, was inadmissible in evidence and that there was no other evidence on which the appellant's conviction could be sustained. Learned Counsel for the State, however, supported the appellant's conviction on the evidence relied upon and the reasons given by the learned trial Judge.
5. We have examined the evidence in the light of the contentions raised by learned Counsel for both the parties and are of the opinion that the appellant's conviction cannot be maintained.
6. The evidence relied upon by the prosecution in support of the appellant's conviction may be classified as under:
(i) Dying declaration made by the deceased.
(ii) Presence of the accused with a gun soon after the deceased was shot.
(iii) Confessional statement of the accused before the Additional District Magistrate (Judicial), Shivpuri.
(iv) Seizure of a gun from the possession of the accused.
(vi) Recovery of a sword and a pair of shoes.
7. We propose to consider the prosecution evidence as relied upon.
8. Pancha (P.W. 1) who is admittedly a close relative of the deceased, has stated that while he and the deceased were sleeping at some distance in the same house, at about 11 P.M. he heard firing from a gun. Thereafter, according to him, the deceased told that it was Shrilal who had fired at him. The witness also says that while he was going to or was near the deceased he saw the accused running away from near the place where the deceased was sleeping. Though the night was dark, the witness says, he could identify the accused with the help of light from the torch battery in his hand. Mst. Mano (P.W. 4), the widow of the deceased, has also stated that no sooner she heard the gun-fire, she heard her deceased husband saying that it was Shrilal who had killed him. Thereafter, according to her, a couple of persons including her father-in-law Mannu (P.W. 5) and Bhagwan Singh (P.W. 3) came there and to them also the deceased told that it was Shrilal who had fired at him. Bhagwan Singh (P.W. 3), when examined, did not say anything about any statement made by the deceased, but after his cross-examination was over he was recalled and then he stated that after he went to the deceased, then in the presence of Mannu (P.W. 5) the deceased named the accused Shrilal as the person who fired at him. Mannu (P.W. 5), the father of the deceased has stated that while he was in his Khalyan (threshing floor) about a furlong away from the place of incident he heard a gun-fire and children were shouting that it was accused Shrilal who had run away after firing at the deceased. Thereafter, this witness stated that he went home and when he enquired from his son, he was told that it was Shrilal who had fired at him. Lohare (P.W. 10) stated that when he also went there, Pancha (P.W. 1) told him that it was the accused who had run away after firing at the deceased.
9. Thus, according to the aforesaid witnesses, it was the deceased who had named the accused Shrilal as the person responsible for firing at him. The deceased, according to the medical examination report by Dr. G. D. Agrawal (P.W. 12), had received gun-shot injuries on his person. The injuries were on the liver, spleen and kidney and all were; in the ordinary course of nature, sufficient to cause the death. One of the injuries was a through and through injury. The Doctor was not questioned as to whether after receiving such extensive injuries to the vital organs of the body, the deceased died instantaneously or survived for some time to enable him to name the culprit. We have, therefore, to fall back on the oral evidence given by the aforesaid witnesses to determine as to whether any power of speech was left with the deceased before he succumbed to his injuries shortly after receiving the gun-shot injuries.
10. The first information report (Ex. P-1) was made by Pancha (P.W. 1) in which it was stated that simultaneously with the firing of the gun he heard the deceased shouting that it was Shrilal who had fired at him. He also stated in this report that when he reached the place where the deceased was lying down he found that he was unable to speak. The version given by this witness in the trial Court is that after he went to the deceased, it was the deceased who had named the accused as the assailant. This is, therefore, definitely an improvement upon the first version given by this witness to the Police in the first information report. In the trial Court the witness was asked to explain the aforesaid statement marked 'A to A' in Ex. P-1. But instead of explaining it, he denied to have made such a statement to the Police in that report. In his statement Pancha (P.W. 1) does not say that even after the arrival of the prosecution witnesses Mst. Mano, Bhagwan Singh, Mannu and others, the deceased made any further statement naming the accused as the culprit. As against this statement of Pancha (P.W. 1), Bhagwan Singh (P.W. 3), Mst. Mano (P.W. 4) and Mannu (P.W. 5) stated that till after the arrival of Mannu (P.W. 5) from the Khalyan, the deceased was still in a position to speak and name the accused as the person responsible for firing at him.
11. If the aforesaid evidence is considered in the light of the admission made by Pancha (P.W. 1) in the first information report, then it would be evident that the deceased had no power of speech and was much less in proper senses to name the accused till after his father covered a distance of about 1 1/2 furlongs and rushed home after hearing the gunfire. There can, therefore, be no doubt that not only Pancha (P.W. 1) but the other witnesses also have not only improved upon the statement of Pancha but have tried to implicate the accused on some suspicion only. If it was a fact that the deceased was in a position to speak till the time his father arrived from the Khalyan, there was no reason for Pancha (P.W. 1) to specifically mention in the first information report (Ex. P-1) that by the time he covered a couple of paces to go to the deceased he found that the deceased was unable to speak.
12. Another question that arises for consideration is as to whether the deceased himself was in a position to know as to who had fired at him. The deceased, admittedly, was sleeping when he was fired at either by the accused or by some one else. The night was dark. In these circumstances, it was not possible for a man, who was asleep, to know and identify anyone who had come armed with a fire-arm. Admittedly, no shouts were raised by the deceased before the actual firing took place. How could the deceased know and identify the assailant after the gun was fired and he himself had received extensive injuries to the stomach, the liver, spleen and other vital parts of the body? with these injuries received by the deceased there was absolutely no possibility of his knowing as to who had fired at him. The evidence of the witnesses discussed above is that it was the deceased who had named the accused. They do not say that they actually saw the accused firing at the deceased. If the deceased himself was not in a position to know and identify the accused, then how could he disclose his name to those who had come to attend on him after the firing actually took place? In our opinion, it was quite impossible for the deceased to know the identity of the culprit much less to name him to anyone who might have come to him soon after the firing was done. In the aforesaid circumstances, we are not at all inclined to believe the statements of the prosecution witnesses when they say that it was the deceased who had named the accused as the person responsible for firing the gun at him.
13. The next circumstance relied upon against the accused is that soon after the firing was heard by the prosecution witnesses, Pancha (P.W. 1) was the first to go to the deceased and before he went to him he saw with the help of the light from the torch battery that it was the accused who was running away with a gun in his hand. Even according to Pancha (P.W. 1) the accused, when seen by him, was running away. Admittedly, the running away must have been in the opposite direction and not in the same direction in which the witness was standing. Even if, as claimed by this witness, he had a torch battery in his hand, even then the witness could not have seen the face of the person running away ahead of him. The witness does not say that with the gun in his hand the accused was running in the same direction in which he was standing. If that was so, how could this witness in a dark night identify the person whose face was not visible and who was actually in the process of running away from the place of the incident? In our opinion, therefore, the claim of this witness that he was able to identify the accused while he was running away cannot be accepted.
14. As already stated above, the incident took place on 11-3-1970 which was the fourth night of the bright fortnight according to lunar month. At that time the moon would not be in the sky and would not enable any one to identify a running man. It is, therefore, evident that the story of a torch light has been deliberately introduced to support the version of identification of the culprit.
15. Having thus considered the evidence given by the prosecution witnesses, we are clearly of the view that neither the deceased was in a position to identify the culprit nor after he received the fatal injuries on his person he was in a position to name the culprit and that, in these circumstances, the prosecution witnesses also could not have learnt from the deceased that it was the accused who had fired at him.
16. Accordingly, all the evidence given by the prosecution witnesses about the statement made by the deceased regarding the identity of the culprit cannot be accepted as worthy of reliance.
17. V.S. Yadav (P W. 6), Additional District Magistrate (Judicial), Shivpuri, has stated that on 12-3-1970. i.e., a day following the night of the incident, the accused appeared in his Court with a muzzle-loading gun in his hand and stated that he had brought the gun with which he had fired at Devilal son of Mannu of village Ruhani. He, therefore, called the S.O., Police Station, Shivpuri, and, after making a note of what the accused had stated before him in an order-sheet (Ex. P-5), handed over the accused to the Police Officer. In Ex. P-5 it has been mentioned that Shrilal appeared in the Court of Additional District Magistrate (Judicial), Shivpuri with a muzzle-loading gun and stated that he had shot at Devilal (deceased) and that the gun brought by him belonged to one Gidde son of Daula. The question is how far the oral evidence given by V.S. Yadav (P.W. 6) and the note (Ex. P-5) are admissible in evidence as evidence of confessional statement made by the accused.
18. Admittedly, the first information report of the incident (Ex. P-1) was lodged at the Tenduwa Police Station at about 6 A.M on 12-3-1970. On this report investigation was taken up by Deodatt Tripathi (P.W. 13) who proceeded to the spot and made the inquest, etc. The inquest memo is Ex. P-2 prepared on the morning of 12-3-1970. The investigation, therefore, had commenced on the morning of 12-3-1970, a couple of hours before the accused approached P.W. 6 V.S. Yadav in his Court-room at Shivpuri. The Additional District Magistrate (J.) V.S. Yadav (P.W. 6), admittedly, did not record the statement of the accused in the manner prescribed by Section 164 of the Code of Criminal Procedure. Instead, he only made a note of what transpired in his Court-room and then handed over the accused to the Police. No doubt, his evidence shows that the accused appeared before him voluntarily and made an incriminating statement, but the question is that if this statement is not recorded as required by Section 164, Cr. P.C., whether any oral or documentary evidence, which is not in conformity with the mandatory requirements of Section 164, Cr. P.C., can be admitted in evidence as a piece of voluntary statement made by the accused.
19. The investigation in this case, as indicated above, had commenced on the morning of 12-3-1970. It is true that the accused till he appeared before V.S. Yadav (P.W. 6) was not apprehended by the Police and was not put up before any Magistrate for making the aforesaid statement. But, as held in Nika Ram v. The State of Himachal Pradesh : 1972CriLJ1317 , the discovery and arrest of the accused being one of the essential steps in the course of investigation, the confessional statement may be taken to have been recorded during the course of investigation within the meaning of Section 164, Criminal Procedure Code, 189-8. In Nika Ram's case (supra) the accused after committing the offence went to the residence of a 2nd Class Magistrate and confessed about his guilt. The Police was called and the accused was arrested. The Magistrate then recorded the confessional statement of the accused. The Magistrate who was exercising only second class magisterial powers was not specially empowered under Section 164 to record a confessional statement. It was held that since the confessional statement was recorded in the course of investigation by a Magistrate who was not authorised to record it, the evidence about the confessional statement was not admissible.
20. A similar view was taken in State of Uttar Pradesh v. Singhara Singh : 4SCR485 where also a confessional statement recorded by a Second Class Magistrate not specially empowered by the State Government to record a statement or confession under Section 164, was held to be inadmissible,
21. There are two other cases of the Allahabad High Court where on facts identical with the facts of the present case, it was held that any confession recorded by a Magistrate otherwise than in accordance with the requirements of Section 164 would not be admissible. In the case of Noor Uddin v. State of U.P. : AIR1965All40 the accused surrendered before a Magistrate and made a confessional statement which was recorded. The recording of the confession was, however, not in accordance with the provisions of Section 164. The question that arose for consideration was as to whether the confession though made independently of the Police investigation could or could not be taken into consideration, it was held that-
Where the Magistrate has recorded a confession without following the precautions mentioned in the section it is not a proper confession and no evidence can be given regarding it and it cannot be taken into consideration at all even though the confession was made by the accused independently of the police investigation at a time when it was not even known to the investigating officer who was making the investigation that the accused would surrender himself before the Magistrate and make a confession.
22. A similar view was taken in Shital Singh v. State of Uttar Pradesh 1975 Cri LJ 699 (All) where also a confessional statement in similar circumstances was made before a Magistrate but was not recorded in the manner prescribed by Section 164, Cr. P.C.
23. In all the aforesaid four cases reliance was placed on the decision in Nazir Ahmad v. King Emperor AIR 1936 PC 253 (2) : 37 Cri LJ 897 where it was held that when a Magistrate of the First Class records a confession under Section 164 but does not follow the procedure laid down in that section, oral evidence of the confession is inadmissible and that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden.
24. Following the principles laid down in the aforesaid cases, we are clearly of the view that in the instant case oral evidence given by the Addl. District Magistrate (J.) V.S. Yadav (P.W. 6) and the documentary evidence (Ex. P-5) cannot be held as admissible in evidence and, accordingly, cannot be considered against the accused as incriminating piece of evidence. All this evidence has, therefore, to be excluded from consideration against the accused.
25. There is evidence given by V.S. Yadav (P.W. 6) that the accused when appeared before him, had a gun with him and this gun was seized by Raghubar Dayal Mishra (P.W. 11). Badri alias Gidde (P.W. 8) has stated that in the month of Phalgun the gun seized in this case was taken from him by the accused for Shikar, Even if this evidence is accepted it does not help the prosecution, as there is no other evidence that this was the gun which was used by the culprit who shot at the deceased while he was sleeping. Even if it be assumed that this is an incriminating piece of evidence against the accused, even then that would not prove the important fact of identity of the culprit
26. Motive. It is in the evidence of Pancha (P.W. 1), Mst. Mano (P.W. 4) and Mannu (P.W. 5) that Bhagwati, one of the sisters of the deceased, was sought to be kept by the accused as his wife. The accused had actually kidnapped her once and was keen in taking her back with him. Unfortunately, Bhagwati died a few days before the evidence in this case was recorded in the trial Court and was, therefore, not available for giving her statement. It is said that though the deceased was inclined to keep his sister with the accused, but his father Mannu (P.W. 5) was not so inclined. The accused, according to Mst. Mano (P.W. 4), the widow of the deceased, had threatened her that since Bhagwati was kept away from his company, the accused would see that she becomes a widow We do not attach any particular importance to such type of evidence relating to motive on the part of the accused. Even if the accused can be treated as having had any motive that would not by itself be sufficient to find the accused guilty, more particularly, when we have come to the conclusion that on other important issues the prosecution evidence is insufficient and unreliable.
27. Evidence has been given that on the spot a sword and a pair of shoes have been seized by the investigating officer and they were put up before Radha-charan Shukla (P.W. 7) for identification. Though Exhibit P-7 is the record of the identification proceedings held by him, but there is no evidence given by any of the prosecution witnesses that either the sword or the pair of shoes seized from the spot belonged to the accused. In these circumstances, there is no evidentiary value about the seizure of these articles so far as the guilt of the accused is concerned.
28. Having thus considered the evidence, we are clearly of the view that in this case the prosecution has not succeeded in proving beyond any reasonable doubt that it was the accused who had committed the murder of the deceased. The evidence given by the prosecution witnesses may raise a strong suspicion against the accused about his complicity with the murder of the deceased but suspicion alone would not be sufficient.
29. Accordingly, for the reasons given above, we allow this appeal, set aside the conviction of appellant Shrilal under Section 302 of the Indian Penal Code and the sentence of life imprisonment awarded thereunder and acquit the accused. We further direct that accused Shrilal shall be set at liberty so far as his imprisonment in this case is concerned.