(1) The appellant Himatsingh Bhadarsingh, a Rajput was tried for the murder of a Bhil girl Jivi on 16th of Aril 1962 and was convicted and sentenced to suffer imprisonment for life by the Sessions Judge at Broach in Sessions Case No. 35 of 1962. He was also convicted for having committed the offence under section 19(e) of the Indian Arms Act and sentenced to suffer rigorous imprisonment for one year. Both the sentences were ordered to run concurrently.
(2) The prosecution case may be briefly stated. The appellant was a resident of village Rampura in Taluka Rajpipla of Broach District. He was employed as a teacher in the primary school at village Nava Vaghpura, which was also known as Jitpara. Between these villages, there was a village of Sengpura in which lived deceased Jivi with her parents Shaikhji Raysng and mother Uji. The appellant used to frequently visit the house of Shakhji Raysang on his way back from school and even occasionally stayed at night with them. He had developed criminal intimacy with Bai Jivi. The appellants was married but still as he was infatuated by the girl Bai Jivi, he had expressed a desire to marry her. It appears that even Jivi was at one stage prepared to accede to his desire. But she was already betrothed to a Bhil boy of village Vadia, one Bhilka Kuber and her parents, therefore, were not inclined to break their promise to marry her to that boy and allow her to be married to the appellant. On April 14, 1962. Which was a Saturday, the appellant, after leaving his school came to the house of Jivi. At that time, He told Shaikhaji that he was going to Baroda on that day and would be returning on the next day evening and his meals may be kept ready. On the 15th evening, he did return from Baroda and came to the house of Shaikaji. That day, he again repeated his demand to marry Bai Jivi to him. But Shikhaji again answered the same way, saying that as she was betrothed, he would get married to that Bhil boy and after that marriage, if her husband showed the desire, according to custom, he can give ''daya' to that Bhil and take her away. Nothing further seems to have happened between he father of Jivi and the appellant. That night, the appellant slept in the 'Parsal' on a cot, and Jivi also slept in the 'Parsal', but on the floor. She was in menses at that time. The other members of the family slept inside the house. Early next morning, Shaikaji heard Velki, wife of Khalpa Rama, residing in the neighbouring 'Vada' shouting that the accused was running away after firing a gun at Bai Jivi and that she was lying dead in her 'Vada'. Shaikhji went to the spot and found his daughter Jivi lying dead on the ground. He also noticed gun shot wounds in her chest. Velki informed him that, whilst she was on her way to answer the call of the nature, she had seen the accused running away towards the 'Khadi' after firing a gun. Shaikhji thereupon rushed towards the 'Khadi' to trace the accused, but he could not be found. He noticed some clothes lying on the bank of the 'Khadi'. Shaikhji then returned back of the 'Vada' and telling Velki to wait near the dead body, proceeded to inform the police patel magan Narottam. It is the prosecution case that Shaikhji told the police patel that Velki had informed him that the accused had run away after firing a gun, killing his daughter Jivi. The police patel then, in company with Shaikhji went to the Sar Panch Jesang Rama and the police patel there repeated the story which Shaikhji had told him. Thereafter, all these three came to the 'Vada' of Bai Velki. Reva Magan, the son of the police patel, also came up to the spot by that time and they all first went to the 'Khadi' towards which the appellant was reported to have run away. They all saw the clothes and other articles lying near the; Khadi' and returned to the 'Vada'. As Magan Narottam' the police patel, was not in a fit state himself, he asked his son Reva to go to the Vavdi police outpost and crime. Reva to go to the Vavdi police outpost and lodge the information about the commission of the crime. Reva started to go to Vavdi; but he received information that the police constables in charge of that outpost had gone to Rajpipla for some work. He thereupon, instead of going to Vavdi, went straight to Rajpipla police station and lodged the first information report with the Police Sub-Inspector Shri Patil at about 8-30 A.M. On receiving this information, the P.S.I. came to Sengpura at about 12-00 noon. He held the inquest panchnama over the dead body of Bai Jivi and sent it to the Rajpipla Civil Hospital for post-mortem examination. At the hospital, it was found that she had suffered eight small wounds caused by pellets in an area of two inches in diameter in the chest and her heart was also ruptured. The panchnamas of the place of offence and of the clothes were then made. Statements of certain witnesses were recorded. As the appellant was not to be found, the P.S.I. directed a police constable to keep a watch and trace out the accused. On the 19th of April 1962, the police constable Sitaram, who was entrusted with that work, got information that the appellant was found concealing himself in the 'Sim' of village Gambhipura and so he, in company with one chhota Chamadia, went to that part of the 'Kotat'. He noticed the appellant sitting at the 'Khadi'. According to Sitaram, the accused fired a shot from his Tamancha which he believed was meant for him, whereupon he proceeded to P.S.I. Shri Patil and requested him to come with police force. When the P.S.I. arrived at that place in company with Deputy Superintendent of Police, he found the appellant lying unconscious on the ground with pellet injuries in his chest and a Tamancha and an empty cartridge lying by his side. It was noticed that, at that time, he had put on a long pyjama, a bush coat and an under-waist as well as an under-pant. On a search being made in the presence of panchas from the pocket of the bush-coat of the appellant, certain articles were found and, amongst these articles, there was one letter, article 39, which was subsequently exhibited as Exhibit 65/A. The said letter was addressed to the District Superintendent of Police and therein the appellant, as he was found injured, was sent to the Civil Hospital for treatment. In the hospital, from the pocket of his under-pant, a live cartridge was recovered. As the appellant had made an attempt to commit suicide with a gun, a complaint under S. 309 of the Indian Penal Code was filed by the P.S.I. against him. We are, however, not concerned with that aspect of the case as, at the stage of the Sessions trial, the said charge and case were separated from the main case. At the hospital, the appellant was asked to prepare copies of the letter, article 39, in the presence of the panchas. This was done with the idea of sending it to the Hand Writing Expert. The Hand Writing Expert had reported subsequently that the handwriting of the copies was of the same person who had written the letter, Article 39. We shall, however, see that in this case there is hardly and necessity for us to go to the evidence of the Hand Writing Expert. After further investigation, on June 14, 1962, the appellant was committed for trial.
(3) The appellant in his statement before the Court admitted most part of the prosecution story and only controverted the allegation that he had murdered Jivi or that he had run away after murdering her and that Velki had seen him so running away. About the death of Jivi, his case was that as Jivi was also inclined to marry him and as Jivi's parents were not agreeable to allow her to marry him, both of them had decided to commit suicide. Therefore, on the16th of April 1962, early in the morning, at about 3-30 A.M. both of them had got up and started to go to the 'Khadi' but, on the way, he had a sensation to answer the call of nature and, therefore, he gave the Tamancha that he was carrying with him to Jivi and asked her to wait till he returned. But, after he left her, he heard a gun report. He thereupon rushed back to the place where Jivi was left by him and he found Jivi lying dead on the ground, having shot herself with the Tamancha which was lying by her side. It was his case that, on seeing this sight, he got confused, became nervous, and ran away with the Tamancha, crossed the 'Khadi', putting off his clothes on the bank of the 'Khadi' and then he concealed himself in the 'Kotar' of Gambhirpura Sim for about four days. Then ultimately he attempted to commit suicide by firing a Tamancha at himself and became unconscious. He recovered his consciousness in the hospital where he was removed. As regards the letter, Article 39, he had a different story to give. He denied that that article was written and kept in his pocket and that it was recovered by the police from his bush-coat, while he was lying unconscious in the Sim of Gambhirpura. According to him, the P.S.I. had come to the Civil Hospital on the 20th of April 1962 to record his statement and, at that time, he had expressed a desire to the P.S.I. had told him to put in writing whatever he wanted to tell him. he was afraid at that time that the police will try to get his confession somehow, and, therefore, he stated in that letter that he had murdered Bai Jivi. About the attempt on his own life, his story was that, as he was disappointed in his love affairs, he had tried to take his own life.
(4) In this case, as observed, most of the facts that matter and as were alleged by the prosecution were not in dispute. the only question that was to be determined by this Court is whether it was a case of murder by the appellant or was it a case of suicide committed by Jivi. The points of controversy before the trial Court in determining this main question were, did witness Velki see the appellant running away from near Jivi soon after the gun report was heard by her? Secondly whether there were any circumstances to prove the charge of murder apart from the direct evidence. On that point, the prosecution relied on the letter, Article 39, Exhibit 65/A, which contained the admission of guilt by the appellant. The admission of this letter in evidence was objected to by the defence on the ground that the said letter was hit by section 25 of the Indian Evidence Act and, therefore, was not admissible. As regards the first contention, the learned Judge, relying upon the evidence given by Bai Velki before him, disbelieved the story of the prosecution that Velki had heard the gun report and soon thereafter she had seen the appellant running away from near Bai Jivi, the deceased. Before the police as well as in the committing Court, she had of course supported the prosecution case. The learned Judge, however, after duly examining the evidence off witness concerned as well as the content s of the first information given to the police, came to the conclusion that in spite of the fact that Velki had tried to support the prosecution case at an earlier stage, the story that she had given out on oath before him was the true story. Under these circumstances, the prosecution has no other evidence which could be said to be direct evidence to connect the appellant with the death of Jivi. As regards the second contention raised before the trial Court, the learned Judge held that Exhibit 65A from the person of the accused while he was lying unconscious, the learned Judge disbelieved the theory put forward by the accused before the Court and accepted the prosecution story. The learned Judge, relying upon the medical evidence of the expert from the Army Headquarters at Kirkee found that the story of the accused about Jivi having shot herself was not at all probable and that the gun must have been fired by some other person and not the deceased herself.
(5) In support of the appeal before us, the appellant has urged that the conviction is bad in law as it is based on inadmissible evidence and further that it is also not justified by the evidence on the record. First then, we will deal with the legal objections raised against the conviction now under appeal.
(6) Mr.B.H.Desai, the learned Advocate for the appellant, firstly contended that the letter, Article 39, Exhibit 65A, was not admissible in evidence as it was hit by the provisions of section 162 of the Criminal Procedure Code. This aspect of the case was not considered at all by the trial Court. He contended that if it is held that the document falls within the prohibition of section 162, Criminal Procedure Code, the Court need not even go to consider the second point of objection that he was raising that the said document was not admissible even under section 25 of the Evidence Act.
(7) Before we consider the purely legal aspect of the contentions raised, it will be convenient to deal with the facts so far as they concern the controversial document. This prosecution case was, as we have seen, that this writing was found in the pocket of the bush-shirt which the appellant had put on when he was still unconscious and it was attached by the police on the presence of the panchas. The appellant, however, had taken up the position before the trial Court that the said allegation was false and that he had written out that statement after he had recovered consciousness in the hospital and he did so because of the fear of the police as stated aforesaid. The fact, therefore, of Ext.65-A being in his own hand-writing was not disputed before us. The learned trial Judge, after examining the evidence before him, came to the conclusion that the say of the accused could not be accepted. We see no reason to differ from his conclusion. Mr.Desai has also very fairly conceded that position and had urged his contentions on the assumption that the said letter was found from the pocket of the appellant when he was still lying unconscious.
(8) There is no manner of doubt that the writing Ext. 65-A contains a clear confession of the appellant, that he had murdered Bai Jivi. It appears that there was some effort made in the lower Court on behalf of the prosecution to urge that it was admissible under S. 8 even though it may amount to confession of guilt. The learned Judge very rightly rejected this submission. The learned Assistant Government Pleader Mr.Vidyarthi has also not made any attempt to support such a submission.
(9) We now pass to the consideration of the contention that this document is hit by S.162, Criminal P.C., and therefore, wrongly admitted in evidence. It is a fact that this point was not considered, nor raised, before the trial Court. Mr.Desai formulated his submissions on the point before us as follows:
(A) The heading of the document Ext.65-A is 'Jubani', meaning, evidence or statement.
(B)It opens with the words 'To the D.S.P. --- My this statement will be of much use to you in preparing the case. I myself Himmatsinhji Badharsinhji do hereby state that I have committed this murder myself in my quite good health and without any intoxicated condition. The reason for the murder is as under. Before this, I may first explain to you how I came into contact with Jivi, which will perhaps make it more convenient to you to grasp the whole history'.
(C)The document then makes clear the object of making a clean breast of things. It was to see that unnecessarily innocent persons and relations on both sides were not harassed by police on suspicion or false allegation.
(D) The writing bears the date 16-3-1962. It is obvious that the figure '3' indicating the month was a slip and the figure should have been '4' instead of '3'.
All these facts indicated, according to Mr.Desai, that the appellant after committing the crime on the 16th on that very day had put his tragic story in writing and he did so with the intention of communicating it to the District Superintendent of Police with the double object of confessing his guilt and also of saving innocent relations and persons from being harassed on suspicion by the police. Mr.Desai urged that the fact of this writing having not been actually put in possession of the police officer by the appellant as he was unconscious made no difference whatever; nor did the fact that it was recovered by the police officer in the presence of the panchas. And the writing was kept ready and intended to be communicated to the police and, as a matter of fact, it was addressed to the District Superintendent of Police and as it reached the hands of the police officer, this writing, stressed Mr.Desai, was nothing short of a statement made to the police officer during the course of investigation in respect of the offence of murder of Jivi and, therefore, according to him, it fell within the four corners of S.162 of the Criminal P.C. and was thus inadmissible in evidence.
(10) The plain reading of S. 162 of the Criminal P.C., as it stands when analysed extends its prohibition to all (1) statements (a) may it amounts to confession or not, reduced to writing or oral; (2) by whomsoever made (a) may be an accused person or not, (b) may be in police custody or not at the time when he made the statement; but (1) the statement must be mace to the police officer; and (2) must be made in the course of an investigation under Clause XIV of Criminal P.C. We have, therefore, no hesitation in accepting that part of the submission on behalf of the appellant that Ext. 65-A is 'a statement' and is a statement 'reduced to writing'. We also accept the fact that, having regard to the evidence on record, this statement may be said to have been made during the course of investigation of the murder of Jivi. We have also no manner of doubt that, under law, now a statement made by an accused person would also be within the mischief of S.162 of the Criminal P.C. It also does not require any arguments to persuade us to hold a statement volunteered or made to a police officer would also be hit by S. 162 of the Criminal P.C. But in our view all these conceded propositions but do not go to resolve the important problem raised for our consideration. What is most important to note is that it is only a statement that is made to a police officer, by any person, that is barred from being admitted in evidence, and no other statement. Therefore, what we are called upon to concentrate on and decide is, what is the true construction of these words 'made to a police officer' and whether Ext. 65-A can be said to a 'statement made to a police officer'.
(11) Mr. Desai submitted that, under the facts and circumstances of this case and particularly in view and particularly in view of the contents of the writing which clearly showed that it was addressed to the District Superintendent of Police and that they were intended to be communicated or it must be held to amount to a statement by the appellant made to a police officer. In order to emphasize his submission Mr. Desai argued that, to bring a statement under S. 1623, it was not at all necessary for an accused or any other person to write the statement in the presence of a police officer and a statement written in the absence of a police officer, but which is given to him by the accused or the person writing it, later, would all the same fall within its purview. We may not have any objection to accept this contention of Mr.Desai. but, Mr.Desai then stretched his argument to submit that, when the accused prepared the written statement, kept it ready, and intended to give to the police and it actually came to be recovered by the police officer in the course of investigation, it must be construed to have been made to a police officer and the fact of his being unconscious at that time cannot ensure for the benefit of the prosecution, not should it take away the protection intended to be given to the accused. This is indeed a point which requires careful consideration before it can be accepted or rejected.
(12) Section 162 of the Criminal Procedure Code has been one of the most controversial section in the Code which had given rise to conflicting decision as regards its construction and effect thereof which has compelled the Legislature to amend it more than once to make its intention clearly put into effect. It is legislative history that at one stage there was a section of opinion which proposed the complete deletion of that section. But, as late as 1955, this was opposed and the Select Committee felt and, therefore, recommended that its decision would do away with the protection intended to be given to the accused against the possible resort by the police officer to undesirable pressures tactics prejudicial to the accused in obtaining statements from persons to be witnesses in the trial Court or of the accused himself byway of an admission. This made the Legislature to accept the substitution of the new section instead of its deletion. In our judgment, the words 'statement made to a police officer' necessarily connote the idea of communication or, in other words, a statement being communicated to a police officer by any person. The significant words to be noticed are 'made' and 'to' and these should be given the due weight. A statement to attract the prohibition of this section must be 'made to a police officer'. These words, in our view, also definitely imply that there should be some direct or in direct nexus or connection between the person making the statement and the police officer. A statement reduced to writing with no further steps to communicate it to the police, if recovered by the police officer himself, would not, our judgment, amount to a statement made to a police officer. This legislative provision does not contemplate the mere making the of a statement, but it contemplates the making of it to a police officer. It is difficult, therefore, to hold that the mere fact of a written statement containing a writing addressed to a police officer with out anything further being done by that person or without the police having had anything to do with it would amount to a: statement made to a police officer' within the meaning of section 162 of the Criminal Procedure Code. We do not think that the words 'made to a police officer' merely connote the making of a statement in the abstract or only notionally but contemplates some positive element to connect the two; the making of a statement and the police officer.
(13) But Mr. Desai contended that such a construction would be too narrow a construction and a wider construction is possible and that should be accepted. To support this contention, the learned Advocate argued that the words 'statement made by any person to a police officer' should be interpreted to mean that if it is a statement in writing, then, that writing is done by that person, or if is an oral statement, then it must be a statement spoken by such person, or if the statement consists of any gesture or pointing out, then it must be done by that person. In other words, the words 'made by' only connote according to him, the idea as to whether the statement in writing or the oral statement or the action or gesticulation can be ascribed to that particular person, or not. In the instant case, he argued, the writing is not only proved to be admitted to have been done by the appellant but it is also admitted to be so by the appellant himself. Therefore, it must be construed to have been made by him and as it is addressed to the District Superintendent of Police, that must mean that it was made to the police officer. In our judgment, in the first place, it is not correct to say that the way in which the learned Advocate wants us to interpret the words is a wider or a bolder construction. To construe the word 'made' to connote the physical act of writing or speaking of the statement or narration is to narrow down the connotation of the such of words 'statement made by any person to a police officer'. If we are right in this view of ours, then also, under the acknowledged principle of law of interpretation of statutes, the Court should accept the wider construction which would be in consonance with the intent and purport of the particular enactment. Even if two interpretation are possible, then the Court will have to accept the one which would signify or be more compatible with the intention of the Legislature, in designing that section. In our view, the intention of the Legislature, as already mentioned, was only to protect the accused and the other persons from being prejudicially affected by any dishonest or questionable methods of the police officers in forcing or devising or influencing a statement from an accused or from any other person. We cannot read in this provision any legislative intent to debar any statement, though it may addressed to a police officer which is recovered by a police officer during the course of an investigation, with the making of or bringing into existence whereof the police had no direct or indirect hand or connection of any sort till it was so recovered. If that be the intention of the Legislature, and there is no transiency in our mind about that being the legislative intent, then the only reasonable and proper interpretation of the said section would be the one which we are inclined to place.
(14) It was then argued on behalf of the appellant that the words 'statement made to a police officer' given their ordinary connotation, would only indicate that the statement must be addressed or directed to a police officer and imply only an intention on the part of that person to communicate the contents thereof to a police officer and nothing further. When the appellant in this case wrote down the statement and made a clear breast of things, addressed to the District Superintendent of Police, it clearly indicated his intention to communicating that statement to that police officer and, therefore, the statement would be hit by section 162 of the Criminal Procedure Code. Assuming for argument's sake that it is possible to adopt this line of reasoning, whether a particular statement would fall under a class of statements as contemplated by section 162 or not, would still depend on the facts as to whether that statement was definitely and unequivocally intended to be communicated to a police officer or not. In our view, even on the line of that reasoning, there must certainly be a difference to be made between the preparatory stage of the making up of the mind of the person or preparing or writing out a statement and the stage of taking of the ultimate decision by that person definitely intending to communicate the statement or its contention to the police officer and the act of actual communication, either personally or through an agent. The animus to communicate must be shown to be existent in the maker at the point of time when the statement goes to the hands of the police. In the present case, it cannot be said that such was the position. The learned Assistant Government Pleader Mr. Vidyarthi rightly pointed out that, as a matter of fact, though he wrote out this statement on the 16th he did not do anything to communicate it to the police. He, on the contrary, had intended to commit suicide and only kept it in his pocket, so that, after his death, it may be found from him and the police may know ht4 truth. Therefore, it would be justifiable to assume or to communicate this statement to the police during his life-time. The facts, therefore, do no reveal any positive intention on the part of the accused to actually make that statement to the police. Even if, from the language used and the present tense utilized in the language, it were possible to assume that, when he wrote it out, he had an intention to go, to the police and hand it over as his statement or when the police came to arrest him to hand it over, even then the fact that he did not do either would show that he had no intention to make or communicate that statement to the police.
(15) The necessary result of this trend of reasoning is that the statement Exhibit 65-A does not fall within the scope of section 162 of Criminal Procedure Code if regard be had to the words of the section. We may, however, see whether there is anything in the decided cases relied upon by the learned Advocate for the appellant which would preclude us from accepting this reading of the section: Mr.Desai relied upon Ramkishan Mithanlal Sharma v. State of Bombay : 1955CriLJ196 , Sk.Khabiruddin v. Emperor : AIR1943Cal644 , and Shyamlal Sharma v. King-Emperor : AIR1949All483 . The first case : 1955CriLJ196 , in our view has hardly any bearing on the question in hand and can be of no help to us in the construction of the words 'statement made....to a police officer' used in section 162 of the Criminal Procedure Code. The said ruling dealt with the question as to whether, in the test identification parade, arranged by the police and held in the presence of panch witnesses, the statements involved in the process of identification would be statements made by the identifying witnesses to the panch witnesses and would be outside the purview of section 162 of the Criminal Procedure Code. The question was whether such statements, if made, when the police was present, would be barred by section 162 of the Criminal Procedure Code or not. The learned Judges came to the conclusion that if such statements were made identifying the accused by the witnesses when the police was present, such a statement would be affected by section 162 of the Criminal Procedure Code. It is obvious that, under the facts of that case, when the police is present, and when a statement is made by a witness, it would necessarily be a statement made to a police officer. In the case of : AIR1943Cal644 the question which arose for consideration was as to whether any identification of stolen property in the presence of a police officer during investigation is a statement made to a police officer during investigation, and is, therefore, within the scope of section 162. It was held that the witness should not be allowed to depose to the fact that they had identified the stolen property in the presence of the police and it was immaterial whether the identification was held at the 'thana' or in the village. The facts were that a list of properties was prepared by the villagers as recovered from the possession of the accused person. It was then made over to a particular individual till the police arrived and took charge of it. The articles were taken over by the police in the presence of twelve villagers and a list was drawn up of the articles so seized with the statement of circumstances attending the seizure. The list also contained the summary of statements of those witnesses. This list was held not admissible on the ground that it being a record by a police officer of a summary of statements made to him during the investigation by persons whom he examined could not be proved otherwise than as permitted under section 162. This case can also be of no help because therein also the statements were made to the police officer and, therefore, obviously it was barred under section 162 of the Criminal Procedure Code. Mr.Desai, however, heavily leaned on the Full Bench ruling of the Allahabad High Court in Shyamlal Sharma : AIR1949All483 . In the said case, the High Court of Allahabad dealt with two references in which railway officials were prosecuted for accepting bribe under section 161 of the Indian Penal Code and were convicted. The facts were that that the applicants who were the railway employees were convicted of an offences of receiving illegal gratification. In such the cases, trap was laid to capture the accused red-handed in the commission of the crime. In both the cases, he services of a Magistrate were employed to witness the commission of the crime. The Magistrate recorded a report detailing the events that took place in his presence. In both the cases, they also recorded the manner in which the trap was laid. In both the cases, the Magistrate made free us of the report to refresh his memory while deposing as a witness. A contention was raised in both the cases when they came up for hearing before the appellate Court that the deposition of the Magistrates were inadmissible in evidence because they had made of the reports in contravention of S. 162 of the Criminal Procedure Code and should, therefore, be excluded from consideration. The matter was referred to a Full Bench and one of the questions to be decided by the Full Bench was whether the report prepared by the Magistrate after witnessing the incident and then made over to the Sub-Inspector amounted to a statement to the Investigating Officer contemplated under S.162 of the Criminal Procedure Code. In the course of the judgment the Division Bench, regarding this question, made the following observations:
'It seems desirable to have a clear grasp of the concept by the expression 'statement made to by one person to another', before attempting an answer to the second question set out above.
The word 'statement' has several meanings. Having regard to the context in which it occurs in S.162, Criminal P.C. it means a narration. A statement made to some person connotes the idea that the narration is addressed to that person and implies an animus on the part of the author of the statement, namely, an intention to communicate the subject matter of the statement to the person to whom it is made or addressed. A statement is, therefore, made to such person persons only as are intended to be addressed i.e., for whom the communication is meant and not to all those who may happen to overhear it if it is an oral statement, or to all those who may happen to read it, if it is a written statement. It is for this reason that a statement made to a Magistrate in the presence and hearing of a police officer is not deemed to be a statement to the police officer also. It does not, however, make any difference whether the communication is made on request or unsolicited'.
We have detailed those observations in extenso as, according to the learned Advocate for the appellant, this case directly helps him in the interpretation of S.162of the Criminal Procedure Code as made by him. in our judgment, these observations must be read in context of the main question which that Court was called upon to decide. The whole emphasis or concentration of the Court was on the question as to whether the report prepared by the Magistrate made at he direction of and meant for the District Magistrate of what he had observed at he trap laid by the police to catch the railway employees accepting bribes, but which report was directed by the District Magistrate to be handed over to the police, would be a statement made to a police officer within the meaning of S.162 of the Criminal Procedure Code. There was no question before the Court as is the one raised before as to whether a statement in writing, addressed to a police officer and which was not communicated in any manner to the police officer or with the preparation whereof the police had no connection but which was recovered from the possession of an accused person while he was unconscious, would amount to a statement made to a police officer within the meaning of S.162. These observations, therefore, made by the learned Judge in the said decision must be read in the context of the facts and the problem before that Court and the principle which Mr.Desai tries to canvass for the appellant before us cannot be deduced from that case unless the above stated passage is wrested from the context in which the aforesaid observations were made. But in our opinion, even as the observations stand in that judgment they would not conflict with the conclusion that we have reached in the instant case on the concept denoted by the expression 'statement made by one person to another'. As a result of the above quoted observation, at best, it may be said that the learned Judges came to the conclusion that the determination of the question whether a statement has been made to a particular person depended on the intention of the author of the statement. But the important thing to note is that the main question which the learned Judges were called upon to determine there was as to whether a statement though intended to be communicated to the District Magistrate, only amounts to a statement to the police or not. The conclusion they reached was that it would not. They were not then called upon to examine the question further as we have hereinabove in the light of the facts as they exist before us. In our view the said case cannot help the accused before us.
(16) Both the sides tried to make use of a recent decision of the Supreme Court in Baleshwar Rai v. State of Bihar, reported in (1963) 2 S C J 128. The learned Assistant Government Pleader submitted that, in the light of the decision, the confessional statement is not hit by S.162. He relied upon the following observations made in the said decision :
'Section 162 of the Criminal Procedure Code only bars proof of statements made to an investigating officer during the course of investigation. Section 162 does not say that every statement made during the period of investigation is barred from being proved in evidence. For a statement to come within the purview of S.162, it must not merely made during the period of investigation. The two things, that is, 'the period of investigation' and the course of investigation' are not synonymous. Section 162 is aimed at statements recorded by a police officer while investigating into an offence. This is clear from the opening words of S.162. They speak only of statements made to a police officer during the course of investigation. This implies that the statement sought to be excluded from evidence must be ascertainable to the enquiry conducted by the investigating officer and not one which is dehors the enquiry.
They ultimately held that the letter to the police officer which was a murder of controversy in that case was not hit by section 162 of the Code. The facts that are relevant for the purposes of this point in that case were that certain persons were convicted of murder. The question arose as to whether Exhibit 6 which was anonymous written to Senior Sub-Inspector Khasinath, of which only a portion which had been admitted in evidence could beheld to be admissible in law. The objection was raised that it was hit by section 162. The learned Judges, however, came to the conclusion that it was not hit by section 162 on the reasoning stated above. It is obvious that this case cannot help the prosecution in the instant case because, as we have already held above, in the present case, there is no manner of doubt that the statement Exhibit 56/A must be held to have been made during the course of investigation. Mr.Desai, however, tried to rely upon this decision on the ground that it impliedly held that if it was found to be a statement made during the course of investigation, then it would have been hit and as the statement with which we are concerned was made during the course of investigation, it is debarred. We are, however, not able to accept this submission of Mr.Desai for the obvious reason that in that case the statement which was objected to was actually communicated to the police officer investigating that offence. Therefore, this case, in our view, does not help either side, nor does it shed any light on the problem before us. Under these circumstances, we hold that Exhibit 65/A is not barred under the provision of section 162 of the Criminal Procedure Code.
(17) That brings us to the consideration of the contention raised that, even if section 162 of the Criminal Procedure Code is not a hurdle in the way of the prosecution, section 25 of the Evidence Act was in the way of the prosecution in making use of Exhibit 65/A. Section 25 is as follows:
'No confession made to a police officer shall be proved as against a person accused of any offence.'
Once again, even with regard to this section, the material words therein, on which the decision would turn, are similar to those used in section 162 of the Criminal Procedure Code, that is to say, confession made to a police officer which is barred from being admitted into evidence. The intention of the Legislature in enacting this section is the same as in the case of section 162 of the Criminal Procedure Code. The material words used are the same. There are no other factors or ingredients pointed out to us which would make us come to any other conclusion than the one which we have reached in respect of section 162. Unless it is shown that the confessional statement contained in Exhibit 65/A can be said to have been made to a police officer, there will arise no bar to its admissibility in evidence and taking it into consideration in coming to a conclusion in this case.
(18) On behalf of the appellant, however, it was further contended that, even if Exhibit 65/A is admitted in evidence it should not be raised upon to base conviction on it, without due corroboration from other evidence on record and particularly so, as it is a retracted confession. The questions, therefore, that arise for our consideration are, firstly, whether the confession was voluntary and whether it was true and, secondly, whether the confession could be relied upon without corroboration and if not whether there was such corroboration to be found from the evidence as would entitle the conviction to be based thereon. As regards the question of the statement being voluntary, there can hardly be any doubt. There are no facts or circumstances which would show any pressure or inducement from any one to have been brought on the appellant when he prepared the statement Exhibit 65/A. He was a primary school teacher and he prepared that statement when he was quite alone, after he left the place where Bai Jivi was found murdered. On the question of the confession being true or not, also we have no hesitation to hold that it is a true confession. No doubt, Mr.Desai pointed out to us particularly one point from that statement and urged that the appellant had obviously not stated the truth as regards the manner in which he came into possession of the 'Tamancha.' As regards this 'Tamancha', the appellant has said that the 'Tamancha' with twelve number cartridges was given to him by some unknown person, whom he did not know. But, this he had obviously said with a view to protect the person from whom he must have obtained the 'Tamancha' and the ammunition. The fact remains that the appellant on that day was out to make a statement to see that no one else suffered at the of the police. It was, therefore, a natural reaction on his part to see that he did not make any statement with regard to the 'Tamancha' which would put anybody in trouble. From this, it cannot be said be said that it indicated that the appellant was not prepared to make a statement or a true contention of his guilt as he recorded in Exhibit 65/A. Therefore, no such infirmities pointed out or facts established as would induce us to believe or even make us suspect that it was not true connotation of guilt.
(19) But, then, it was contended by Mr. Desai that, in any case, the prosecution to prove any facts as can said to corroborate the main factum of murder as confessed by him in Exhibit 65/A so as to eliminate the possibility of the story of suicide by Jivi. Mr. Desai argued that, under law, even if it was not a rule of law, it was a rule of unimpeachable practice laid down even by the Supreme Court that no Court shall convict an accused person only on the basis of his confession, even if it were found to be true and voluntary, unless it was corroborated by some facts. He urged that, in this particular case, there is not an iota of evidence which can be said to lend any corroboration to the confession of the accused of having killed Jivi. As regards the position of law, he relied upon decisions of the Supreme Court to support his contention. We need not go through them in details as the law that stands crystalized now by these decisions is to be found in the latest decision of the Supreme Court reported in the case of Pyare Lal Bargava v. State of Rajasthan : 1963CriLJ178 . In the said order, it has been observed as follows :
'A retracted confession may form the legal basis of a conviction if the Court is satisfied that it was true and was voluntarily made. But it has been held that a Court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a Court may, in a particular case, be convicted of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the Court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars'.
In law, therefore, there is nothing as a rule of law to prohibit reliance being placed on an uncorroborated confession to convict a person confessing. But, only as a rule of prudence or practice, it is recommended that no conviction may be based only on the confession without any corroboration from other evidence on record. This decision even shows that there may be cases where the conscience of the Court may be convinced as regards the absolute truth or the voluntary nature of a confession where it may be prepared to act upon without corroboration. Therefore, as a mater of law, there is no prohibition. It is left to the conscience of the Court as to what corroborate it will speak if at all, to rely upon a confession and convict the accused. There is no measure as such that can be laid down of the extent of corroboration which a Court would expect before it will act upon the confession and convict the accused. It will all depend upon the particular facts of the each case. In this case, we are fully satisfied that the confession was absolutely voluntary and true. There is not an iota of doubt in our mind that he did want to make a true statement in Ext.65/A as regards the fact as to who killed Jivi and that he wanted to make a clean breast of the fact and put it down there that it was this hand that killed Jivi, it may be that he made this statement while he was labouring under great emotion and that when his feelings cooled down and after he survived his attempt to kill himself, love of life increased and discretion took the upper hand and he retracted the confession , putting up a story of suicide by Jivi. But, that would be no reason to reject the confession. It was argued, we may mention in passing here, that the appellant had only under despair and when he was thinking of committing suicide himself that he had given out this story of his having murdered Jivi and it may not be true. But, in our view, it is significant to note that a man in such emotional stress would hardly concoct a story of murder if really Jivi had committed suicide, then it would have been more natural for the appellant to give out the true story at that stage. In the light of all these extraordinary, clear and convincing facts and circumstances, this may be even one of those exceptional cases where the Court would be justified in relying upon the confession as contemplated by the Supreme Court ruling and to convict the accused. However, in this case, in our judgment, there is some evidence to be found which, in our opinion, would be sufficient to be considered as corroborative of the facts stated in the confession. The learned trial Judge tried to seek corroboration from certain circumstances and evidence which was challenged by the learned Advocate for the appellant. The learned Judge tried to rely upon the fact that Jivi was a Bhil girl and it would be reasonable to find that she did not knew how to operate a fire arm like 'Tamancha' and this would be a fact corroborating the story of the prosecution that it was not the hand of Jivi that ended the life, but it was the appellant who murdered her. It was contended that there was no evidence on record for the learned Judge to make such an inference. There was no basis made, according to the learned Advocate, for coming to the conclusion that Jivi could not have made use of the 'Tamancha:'. He also pointed out that there is nothing on record to show that the 'Tamancha' was an extraordinary fire-arm or that it could not be fired unless and until a particular safety catch was removed. It is a fact that the 'Tamancha' was loaded and, therefore, this inference was wrongly made by the learned Judge. We do find substance in this submission of Mr.Desai and we may not use this inference made by the learned Judge as a corroborative factor. The second circumstance which was tried to be made use of by the trial Judge was the conduct of the appellant in absconding after the death of Jivi. Mr.Desai urged that the conduct of appellant in running away after Jivi's death is consistent with his having murdered Jivi as equally with the possibilities of Jivi having committed suicided and his having left the place as he was alarmed and confused. It is true that this fact may with some stretching be consistent with the story of suicide. But that does not mean that this fact cannot be considered as lending support to the theory of murder. If the appellant was confused or alarmed, he would not ordinarily have picked up and carried the 'Tamancha' which was lying on the ground. He would naturally be distracted at seeing his loved one dead and if there was a suicide pact as suggested, he would have killed himself there and then. There was hen no reason at all to runaway from there and hide himself for four days. In our view, this conduct is consistent with his having committed the crime rather than Jivi having committed suicide.
(20) Mr,.Desai then criticised that the learned Judge had gravely erred incoming to the conclusion that the evidence of the medical officer and the ballistic expert lend support to the prosecution case and also corroborated the fact of murder by the appellant. He pointed out that the medical officer in his evidence had not definitely said that Jivi could not be said to have been murdered. The evidence of this witness was further criticised on the ground that his opinion that the shot must have been fired from a distance of three to six feet from Jivi should also not be relied upon because he had admitted in his cross-examination that he had never used or handled any fire-arms, nor had he never used any forensic science. He even admitted that he had not seen the 'Tamancha' which had caused the death of Jivi, nor did he have any other information from which he could say with any definiteness as regards the distance from which the shot killed Jivi could have been fired. In our opinion, the criticism advanced by the learned Advocate cannot be said to be unjustified so far as the evidence of the medical officer goes. But, there is another piece of evidence on record. The Resident Foreman in the office of the Chief Inspector of Armaments at Kirkee had been examined in this case. He had deposited that, considering the area in which the injuries have been caused and also the area of blackening of the soot and also considering the size of the pellets and the 'Tamancha' which had got very short barred and the barrel bore with uneven surface, the distance of fire, in his opinion, was likely to be within about five feet. In cross-examination, this witness was asked as to whether he had studied about suicidal or homicidal injuries which could be caused by fire-arms. He then agreed that the gun shot wounds inflicted in the mouth or on the forehead temple or heart are, as a rule, suicidal when the skin in the neighborhood is blackened. In the re-examination, the witness said that, in this case, it was difficult to make out whether the death is suicidal or homicidal. He also said that the blackening of the object hit depended upon various factors, viz., type and conditions of the cartridge used, the length and condition of he barrel of the weapon, the condition of the object and partly atmospherical condition. Then he made a statement that in the shot gun, the pellets have got the tendency to travel in a mass, ordinarily up to five feet and then to spread in a small circumference when they travel beyond five feet and up to ten feet. These were all general observations to which these can be exceptions. From this evidence, Mr.Desai urged upon us that this was evidence, which was not positive evidence, which would go to prove that it was a case of murder. At best, according to witness, it may be a case of murder or it may be a case of suicide and this evidence, therefore, cannot be used as a corroborative evidence to support the confession made by the appellant. Now, as we have already observed, the extent of corroboration which would carry conviction to the conscience of a Court in the given facts of a case under the confession was made and then it was retracted. If the circumstances and facts of a case leave no manner of doubt whatsoever in the mind of the Court of the confession being true and voluntary, then, even very little corroborative evidence would be sufficient to base the conviction of the appellant on the confession. Confession by itself is direct evidence. It is only as a rule of precaution or prudence that the Courts are recommended, as a rule of practice, to try and seek corroboration to the fact stated in the confession of an accused. It also depends upon the facts and circumstances established under which such a confession is restricted. It is obvious here that the appellant had made an effort to retract the confession by putting out a false story. He tried to explain away the finding of Exhibit 65/A from his person in order to take away the reliability of the statement made in the Exhibit 65/A by saying that he had not kept it ready and that it was not found from his pocket, but that he had written it out in order to save himself from the possible undesirable methods that the police may adopt in order to get a confession from him. therefore, the mode of in which he tried to retract this confession and the manner in which he tried to explain away or minimize the evidentiary value of that confession is significant and must weigh with us in weighing the evidentiary value of the contents of that statement. As we have already observed, there is no manner of doubt that Exhibit 65/A was written out by him when there was no possibility at all or pressure or under influence from any one concerned. In these circumstances, if once we are convicted about the truth of the voluntary nature of the confession made by this appellant, then the evidence of the ballistic expert which is to the effect that it could be a case of murder should be considered as sufficient corroboration to base the conviction of the appellant on his own admission of guilt in Exhibit 65/A. In the light of these observations of ours, we are not prepared to come to the conclusion that, in this case, there is no evidence whatsoever as could justifiably be considered as a corroborative fact or circumstances to support a confession of this nature.
(21) These are all the material contentions that are raised, on behalf of the appellants to challenge the order, of conviction. We are satisfied that, in spite of one or two possible infirmities that were pointed out in the judgment of the learned trial Judge on the whole, we agree with him that this was a case of murder by the appellant and the appeal must fail.
(22) Appeal stands dismissed.
(23) Appeals dismissed.