S.S. Dewan, J.
1. Banarsi Dass appellant was brought to trial for the murder of Ajit Singh before the Court of Session at Jullundur. The learned Sessions Judge, Jullundur, by his judgment dated March 18. 1980 held the appellant guilty on the charge of murder and sentenced him to life imprisonment.
2. The brief facts of the prosecution case are like this;
That Ajit Singh (deceased) was the husband of Smt. Rattan Kaur P.W. He was addicted to poppy-heads. About two days prior to the present occurrence. Banarsi Dass accused came to Ajit Singh and complained to him that he got poppy-heads recovered from him. The deceased denied this allegation. It is alleged that on September 2, 1979 at about 9. p.m. the appellant took Ajit Singh along with him saying that there was some work. Thereafter, Ajit Singh did not return nor he was seen alive. On September 3, 1979 at about 1.30 p. m.. Banarsi Dass appellant went to the tea-shop of Bakhsi Ram, situated opposite Police Station Phillaur and told the latter that Ajit Singh deceased act poppy-heads recovered from him and that he served him poppy-heads and then murdered him. At that time, the appellant was holding an axe. the handle of which was bloodstained. Bakhshi Ram then took the appellant to the police station and produced him before Shri Gurparkar Singh, Sub-Inspector, who took his axe into possession. The appellant made statement, Exhibitt P.F. and on its basis the case was registered against him under Section 302. Indian Penal Code at 2 p. m. on the same day. He also told the Sub-Inspector that he had kept the dead body of Aiit Singh in a maize field in the area of village Ats. In pursuance of that statement the dead body of Aiit Singh was recovered from that field. The Sub-Inspector held inquest and sent the dead body to the mortuary for autopsy.
3. Dr. Amariit Singh conducted autopsy on the dead body of Ajit Singh on 3-9-1978 at 6.05 p.m. and found 11 injuries, including eight incised wounds, as detailed in the copy of the postmortem report. Exhibit P.A. Death was opined to be due to shock and haemorrhage resulting from iniuries which were sufficient to cause death in the' ordinary course of nature. The time between the iniuries and death was stated to be a few minutes and between death and post-mortem within 24 hours. After necessary investigation, the accused was challaned and committed.
4. To connect the accused with the crime, the prosecution examined Bakhshi Ram, P.W. 2, Smt. Rattan Kaur P. W. 3, Head-Constable Kartar Singh. P. W. 4 and Sh. Gurparkar Singh, Sub-Inspector. P.W. 5.
5. When examined under Section 313, Criminal Procedure Code, the accused denied the prosecution allegations and pleaded false complicity in the case. He examined constable Bhupinder Singh in his defence.
6. The learned trial Court held that the confession was made voluntarily by the appellant and relying on the confessional statement of appellant and other circumstantial evidence, convicted the appellant.
7. There are no eye-witnesses in the case and it rests solely on circumstantial evidence. The circumstances sought to be proved against the appellant are:
(i) that the appellant had a motive to be annoyed with the deceased as the latter had got pappy-heads recovered from him;
(ii)' that on the fateful day the appellant took away Ajit Singh deceased from his house on the pretext of some work;
(iii) that on the way to the police station, the accused made an extra-iudicial confession to Bakhshi Ram P. W.;
(iv) that the appellant went to the police station and lodged a report wherein he admitted his guilt; and
(v) that the dead body of Ajit Singh was recovered at the instance of the appellant. The law is well settled that where conviction of an accused person is founded on the basis of circumstantial evidence alone, the circumstances must, in the first instance, be firmly and cogently established. Secondly, the circumstances thus established should be of a determinative or conclusive tendency. Thirdly the established circumstances taken collectively should exclude every reasonable possibility of the innocence of the accused.
9. Circumstances Nos. 1 and 2 have not been very cogently established even by accepting the bald statement of Rattan Kaur. P. W. 3, who is the widow of Ajit Singh deceased, that about two days prior to the present occurrence, the appellant came to the house of the deceased and complained to him that he had got recovered poppy husk from him, but the deceased denied that allegation. She further stated that the appellant took away the deceased along with him on the pretext of some work and thereafter the deceased never re-turned to his house. In the first place fehie witness is a self-confessed liar. She stated that her statement was recorded by the police on the following day but she stands falsified by Gurparkar. Singh, Sub-Inspector. P. W. 5. who stated that her statement was recorded for the first time on 24-9-1979 Le, after about 21 days of the occurrence. The conduct of this witness is also assailable. She did not inform any person whatsoever before making a statement to the police. It is an admitted fact that she stated for the first time at the trial that the appellant came to the house of the deceased and blamed him that he got poppy husk recovered from him. In this state of affairs no implicit reliance can be placed on the testimony of Rattan Kaur. Consequently it must be held that the prosecution has failed to establish that the appellant took away the deceased from his house on the pretext of some work. No motive on the part of the appellant to murder Ajit Singh can consequently be held to have been proved.
10. Now coming to the extra-judicial confession we find the same to be highly improbable and lacking in credence. According to Bakhshi Ram. P.W. 2, the appellant came to him at about 1.30 p. m. and confessed having committed the murder of Ajit Singh. Bakhshi Ram is admittedly a dubious character. Firstly he denied to have appeared as a witness for the police but after some equivocation he admitted that he appeared as a prosecution witness in one case but long time back. In this context we may advert to the statement of Bhupinder Singh, Constable. D. W. 1, who deposed from the record, of Police Station Phillaur that Bakhshi Ram son of Gurditta had appeared as a prosecution witness in four cases. There was no question of the appellant confessing his guilt before Bakhshi Ram and taking him into confidence for such a heinous crime. If the appellant was to surrender himself to the police he could do so even without the help of Bakhshi Ram, P. W. As observed in State of Punjab v. Bhajan Singh : 1975CriLJ282 persons who commit such murders after taking precautions of secrecy are not normally likely to become garrulous after the commission of the offence and acquire a sudden proneness to blurt out what they were at pains to conceal and that the evidence of extra-judicial confession in the very nature of things is a weak piece of evidence. Keeping in view the observations of their Lordships of the Supreme Court and the circumstances noted above, we feel that the evidence adduced to prove extra-judicial confession lacks plausibility and does not inspire confidence. Once extra-judicial confession is ruled out, the disclosure statement and the pursuant recovery of dead body of Ajit Singh at the instance of the appellant would hardly be sufficient to sustain conviction of the appellant.
11. The learned State counsel wanted us to treat certain portions of the statement of the appellant contained in the first information report as admissions. It was said that the statement of the appellant in the first information report to the effect that the deceased got poppy husk recovered from him and on that account he had a grudge against him and that in order to take revenge from him took away Ajit Singh from his house, was admissible under Section 21 of the Indian Evidence Act as being not a confession relating to the commission of the crime, We find slender force in his argument. In judging whether a statement made by an accused in the first information report amounts to a confession or not, it is first to be seen whether it is self-inculcator as a whole or whether it contains some exculpatory statement relating to a fact which, if true, would establish his innocence vide Naravana Swami v. Emperor AIR 1939 PC 47 : 40 Cri LJ 364. 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 as a confession made to a police officer and would be hit by Section 25 of the Evidence Act. A similar point arose before the Bombay High Court in Harnam Kisha v. Emperor AIR 1935 Bom 26 : 36 Cri LJ 539. The facts of that case were these:
The accused was sleeping with his wife. On the night in question and had a auarrel 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 quarrelled 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. P. 16. If that is so, we are left with nothing, but this, that the body of the accused's wife was found in his hut in the early morning, that she had obviously been murdered with a 'dahlia' or some similar weapon, that the accused handed over to the police a 'dharma' stained with human blood and the clothes he was wearing were also stained with human blood...if one excludes the confessional statement, it seems to me obvious that the evidence which remains is not sufficient to justify conviction.
12. We respectfully agree with the view expressed above. 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. 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 to prove that the appellant and the deceased had been seen together on the fateful night. The evidence of Smt. Rattan Kaur, P.W. being out of the way, it is not possible to hold that the appellant was last seen in the company of the deceased. Thus there was no legal evidence connecting the appellant with the offence charged. The circumstances that have been proved are not of a conclusive nature. They might create strong suspicion against the appellant but by themselves are not sufficient to sustain a conviction on a charge of murder.
14. We accordingly allow the appeal and set aside the conviction and sentence of the appellant. He is on bail. He need not surrender and his bail bond is discharged.