1. Accused Moharsai has been convicted by the learned second Additional Sessions Judge, Bilaspur, for an offence Under Section 302 of the Penal Code and sentenced to undergo rigorous imprisonment for life. The accused has appealed to this Court against this conviction and sentence.
2. the case for the prosecution is that the accused killed his wife by Inflicting blows with a Basula (a mason's sfttrp cutting tool for setting) at about 6.30 a.m. on 27-9-1960 at his house. The motive for the offence is said to b that the accused suspected the character of his wife. The relations between the couple were not very cordial and there used to be frequent quarrels between them.
3. The accused denied his guilt completely.
4. The evidence on which the learned lower Court has convicted the appellant consists of:
(i) Circumstance of his being alone with the deceased in the house at that time of the commission of the offence;
(ii) The fact of his going to the police station shortly after the commission of the crime but not naming anybody else for the act,- and recovery of the dead body of Poonabai and a basula (Article A) the weapon of offence at his instance.
(iii) Extra judicial confession made by the accused to Bisahoo (P.W. 1) and Gopi Chand (P.W. 2), soon after the commissioner of the crime before he went to the Police Station.
5. On the night preceding the offence the housa of the accused was occupied by only three inmates; they being the accused, the deceased and Heeralal (P.W. 5), the nephew of the accused. Heeralal used to sleep in a room on the ground floor of the house while the accused and the deceased used to sleep on the first floor. Heeralal was examined as P.W. 5. He has deposed that he had left the house at about 6 a.m. for his morning ablutions and till then the deceased and the accused were still in their room on the first floor. The accused in his statement Under Section 342, of the Code of Criminal Procedure, in answer to question No. 35 admitted the correctness of this fact. He admitted that at the tints Heeralal went to the river for taking his bath early in the morning of 27-9-1960 both of them, that Is to say, the accused and the deceased alone Were in the house. However, the accused further stated that he had also gone to the river for taking bath after Heeralal had left. Thus, the very fact that at the time of occurrence the accused and the deceased were the only inmates of the house who were in and the accused has given absolutely no explanation as to how his wife was killed constitutes vary strong circumstantial evidence against him and in the absence of anything pointing to the contrary, the only possible conclusion to draw is that it was the accused who killed his wife.
6. The same morning at about 9.30 a.m., the accused went to the police station, Bilaspur, and lodged the first information' report (Ex. P-20) of the incident. This report is proved by Sunderlal Verma (P.W. 15), Assistant Station Officer. The accused, apart from reporting the fact that he had killed his wife and1 narrating the circumstances in which his committed the crime, gave information that the dead body and the basilar were lying in the house and lie could have them recovered. In consequence of that information, the police and the witnesses accompanied the accused to his house where the basula was found near the dead body of Smt. Punabal. The basula was found to be stained with human blood according to the report of the serologist (Ex. P-22).
7. Shri Rajendrasingh, learned Counsel for the appellant, contends that the first Information report was Inadmissible in evidence. Reliance Is placed on the observations of the Supreme Court In Nlsar All v. State of Uttar Pradesh (S) AIR 1957 SO 356 and also In State v. Ramlal : AIR1958MP380 . In Nisar Ali's case, (S) : 1957CriLJ550 , their Lordships observed:
A first information report Is not a substantive piece of evidence and can only be used to corroborate the statement of the maker Under Section 157, Evidence Act, or to contradict it Under Section 145 of that Act. It cannot be used as evidence against the maker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses.
We are unable to accept the argument that the Supreme Court has laid down any such' wide proposition as to exclude the first information report lodged by an accused even for the purposes of Section 27 of the Evidence Act. The observations are authority for the following propositions only:
1. First information report is not a substantive piece of evidence.
2. First information report cannot be used as evidence against its maker at the trial if he himself becomes an accused.
3. First information report can only be used to corroborate a statement of its maker Under Section 157 of the Evidence Act, or to contradict it Under Section 145 of that Act,
4. First information report cannot be used to corroborate or contradict other witnesses.
In that case, the question whether the first information report made by an accused can be used for the purposes of Section 27 of the Evidence Act did not arise, nor did their Lordships express any view on it. If the expression 'it cannot be used against the maker himself for any purposes' is stretched to its literal extreme, the first information report cannot be used even for the purposes of Section 27 of the Evidence Act. But, if we may say so with utmost respect, that could never have been intended by their Lordships.
The reason why we say so is this. Suppose an accused without making a report to the police (that is to say, without lodging the first information report within its legal acceptation) were to give Information to the police when he is in its custody, it is undoubted law that such information, if it leads distinctly to a fact discovered, then so much of the information, whether It amounts to a confession or not, is admissible Under Section 27 and this fact can be deposed to by a witness. Now, if such information is admissible and that Is the real purpose and the only purpose of enacting Section 27, we see no reason why the first information report containing such information Is not admissible under that Section. It will be too late in the day to argue that an accused is not under custody of the police officer when he makes the first information report. The distinction between persons in custody and persons not In custody In the matter of the admissibility of their statements made to a police officer has little practical significance. Their Lordships observed in State of U. P. v. Deoman : 1960CriLJ1504 :
When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered him' self to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. A person directly giving to a police officer by word of mouth Information which may be used as evidence against him, may be deemed to have submitted himself to the 'custody' of the police officer within the meaning of Section 27 of the Evidence Act: Legal Remembrancer v. tallt Mohan Singh ILR 49 Cal 167 : AIR 1921 Cal 111, Santokhl Beldar v. Emperor ILR 12 Pat 241 : AIR 1933 Pat 149 (SB). Exceptional cases may certainly be imagined in which a person may give information without present-ing himself before a police officer who is investigating an offence. For instance, he may write a letter and give such information or may send a telephonic- or other message to the police officer.
We, therefore, see no reason not to hold that if the first information report contains information which satisfies the requirements of Section 27 of the Evidence Act, It can be used for that purpose.
8. As to the observations in : AIR1958MP380 , relied upon by the learned Counsel, we say it with all deference that those observations are found in the differing judgment of Mr. Justice Khan. In that case, there was difference of opinion between him and Mr. Justice Krishnan. The case was then referred Under Section 429 of the Code of Criminal Procedure to a third Judge. In the 'opinion' of Mr. Justice Bhutt, no such observations are to be found. That 'opinion' of the third Judge was the judgment of the case. It cannoti therefore, be said that the observations of Mr. Justice Khan were a decision of a Division Bench of this Court. It Is, therefore, not necessary to refer this matter to t larger Bench.
9. The conduct of the accused in going to the police station shortly after the crime was committed and the recovery of the basula and also of the dead body in consequence of the information given by him are again strong pieces of evidence against him.
10. Shri Rajendraslngh, learned Counsel for the appellant, contended that it was not proved that the accused was the owner of Article 'A'. It has been established that he got this article recovered from his house and it was used for the commission of the crime. The only other person in the house was Heeralal (P.W. 5). No cross-examination was directed to him to establish that Article A was owned by him or he was in any way responsible for the crime. In these circumstances, no advantage can be given to the accused on the ground that the ownership of the basula was not proved.
11. The learned Counsel for the appellant then contended that the lower Court had erred in relying Upon the statement of Bisahoo (P.W. 1) and Gopichand (P.W. 2) who stated that soon after the incident the accused had met them and stated to them individually that he had killed his wife and that her dead body was lying in his house. The testimony of Bisahoo (P.W. 1) Is attached on the ground that according to the admission of the witness himself, she was called by the Sub Inspector on the day when his statement was to be recorded in the committing Court and after hearing from the witness what he was going to say, the Sub Inspector had Instructed him to state the facts in the same manner in Court. The witness also admitted that before his statement was recorded in the Sessions Court, the Sub Inspector had called him again and stated to him that he should give the very same statement which was made by him in the lower Court. The learned Counsel has submitted that in these circumstances, the statement that he has ultimately made could not be accepted as an independent statement and cannot, therefore, be acted upon.
He drew our attention to Section 171 of the Code of Criminal Procedure where it is provided that no witness on his way to the Court of the Magistrate shall be required to accompany a police officer or shall be subjected to unnecessary restraint, etc. In our opinion, however the facts aforesaid are not sufficient in the present case to disbelieve his testimony which is completely unshaken in his cross-examination. The witness has not stated that the Sub Inspector desired him to say something which was not witnessed by him. He has made a very candid statement about his being called twice by the Sub Inspector and If the case for the defence was that the witness was tutored to say something, it was quite easy to put that case to the witness. That has not been done. The witness was not kspt under surveillence and was, therefore, not put to any unnecessary restraint within the meaning of Section 171, Criminal Procedure Code. The witness has also not stated that he was required to accompany the police officer. In our view, therefore, reference to the provisions of Section 171 of the Code of Criminal Procedure does not help the appellant. We, however, strongly disapprove of the practice of calling witnesses to the Police Station before offering them as witnesses in Court and hope that this shall not be repeated.
12. The statement of Gopichand (P. W, 2) has been commented on the ground that in his police statement (Ex. D-3) he had not stated about the fact of extra. judlcial confession of the accused made to him. This omission does not amount to a contradiction in view of the principle laid down by their Lordships of the Supreme Court in Tattsildar Singh v. State of U. P. : 1959CriLJ1231 . Another reason which was advanced for discrediting the witness is that tie did not Inform anyone about the incident after he came to know about It from the accused. Indeed, he has admitted in his statement that he by himself did not inform anyone else about the offence, but the cross-examination was not pursued further and he was not asked to explain the reasons for his silence. It may be that the fact was already so well-known in the locality that it was not necessary for him to inform others about what the accused had told film. We do not find anything in his cross-examination to shake his veracity. Thus, we agree with the lower Court that in the circumstances of this case, the extra judicial confession made by the accused to Bisahoo (P. W. 1) and Gopichand (P. W. 2) can be relied upon as being voluntary and true. It is fully supported by the surrounding circumstances and finds corroboration in the conduct of the accused himself as we have already shown.
13. Having already said that it was the accused mo killed his wife at the time and place and In the manner stated by the prosecution, the further question that we are required to consider is as to whether the accused committed an offence Under Section 302 of the Indian Penal Code. Shrl Rajendraslngh, learned Counsel for the appellant, argued before us that considering the facts of this case, the accused is entitled to the benefit of the first exception to Sec, 300 of the Indian Penal Code. He has urged that in the report Under Section 173 of the Code of Criminal Procedure, which forms the very basis of the cognisance of the offence being taken by the magistrate, It was stated that on the date of occurrence In the morn-Ing, there was a quarrel betweeni the accused and the deceased. The deceased abused him and the accused assaulted her with the basuia and gave her five or six blows on her head. As a result of these blows, she sustained deep wounds and died instantaneously. He has urged that though there is no other evidence given by the accused In the case to actually prove the provocation that he received from the deceased, yet the prosecution cannot pitch the case higher than what it was stated to be In the report Under Section 173 of the Code of Criminal Procedure. We find ourselves unable to agree with the submission made. It is true that in the report Under Section 173, the facts stated above are mentioned but the first exception Under Section 300 applies only when an offender Is shown to haw been deprived of the power of self-control by grave and sudden provocation which was caused by the person whose death is caused or when the death of some other person is caused by mistake or accident.
14. The Supreme Court discussed the question tit grave and sudden provocation in K. M. Nanavati v. The State of Maharashtra : AIR1962SC605 . In paragraph 85, it has been observed that the test of grave and sudden provocation Is whether a reasonable man belonging to the same class of the society as the accused placed In the situation in which the accused -was placed would be so provoked as to lose his self-control. The provocation must be such as will upset not merely a hot tempered or hyper-sensitive person but one of ordinary sense and calmness. There is, however, nothing on record to suggest an inference of grave and sudden provocation having been caused to the accused by the deceased at the time of commission of the crime.
15. All that has been said In the report Under Section 173 is that the deceased had abused the accused.) The circumstances in which provocation was caused have not at all been brought on record. The accused has in fact chosen in his statement under Sec, 342, Code of Criminal Procedure, to deny all the facts stated by the prosecution. The report submitted Under Section 173 it no evidence in the case. The statement of the accused, Under Section 342, Code of Criminal Procedure, is absolutely silent on the; question of any provocation, much less of Its being sudden and grave. There is no eye witness to the occurrence and so it is futile to expect any evidence with regard to provocation which may have been caused to the accused at that time. In these circumstances It Is not possible for us to hold that the case falls within the first exception to Section 300, Indian Penal Code.
16. The nature of the Injuries inflicted on Mat. poonabai and their sufficiency in the ordinary course of nature to cause death has not been disputed by the learn ed counsel for the appellant before us and in our opinion rightly so. Dr. Thakur Ser Singh (P. W. 8) has proved the six incised wounds which were caused to her by a sharp edged weapon. The injuries were sustained on head and face. The death, In his opinion, was due to shock snit coma as a result of compression of the brain due to the fracture of the skirl I. Offence Under Section 302 of the Penal Code is clearly made out against the appellant.
17. As a result of our findings the appeal entirely fails and is hereby dismissed. The conviction of the accused Under Section 302 of the Indian Penal Code and the sentence of imprisonment for life passed on him by the learned Additional Sessions Judge are maintained.