Ajay Singh Vs. State of Maharashtra  Insc 688 (6 June 2007)
Dr. ARIJIT PASASYAT & D.K. JAIN
(Arising out of S.L.P. (Crl.) No.2954 of 2006) Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a Division Bench of
the Bombay High Court, Nagpur Bench, dismissing the appeal filed by the
appellant. Appellant faced trial for alleged commission of offence punishable
under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC').
He was convicted by learned Ist Additional Sessions Judge, Nagpur and
sentence of life imprisonment and fine of Rs.200/- with default stipulation was
imposed. Appeal filed against the judgment, as noted above, was dismissed.
3. Prosecution version as unfolded during trial is as follows:
The appellant-accused was tried on a charge of having committed murder of
his wife Smt. Latabai (hereinafter referred to as 'deceased') by pouring
kerosene on her person and setting her ablaze in the night of 29.4.2003 i.e. at
about 1.30 a.m. in the police quarters No. 203/3 at Raghuji Nagar, Sakkardara
at Nagpur. Appellant-accused was residing in the said quarters along with his
wife-the deceased and children.
On the fateful night when the neighbouring residents, mostly police
personnel were in their respective quarters and sleeping in the courtyards,
they heard sound of the tape-recorder, which was being played by the
appellant-accused, at about 1.30 a.m. in the night which awakened them. They
heard the appellant-accused and his wife quarrelling and saw the
appellant-accused dragging the deceased inside the house by holding her hands
and after a short while they noticed the appellant-accused coming out of his
quarters and shouting "Kaka Lata Mere Hatho se Mar Gai" and fled
away. Thereafter, the neighbours entered the quarters of the appellant-accused
and saw that Lata had caught fire. They tried to extinguish the fire, but, as
she had sustained excessive burns before she could be removed to hospital, she
died on the spot. Due to this incident, all the people in the neighbourhood had
gathered at the place of' the incident and report (Exh. 80) in the matter came
to be lodged by Police constable Krishna Sadashiv Lute (P.W. 1) at Police
Station Sakkardara. The said report was taken down in the proforma prescribed
under Section 154 of the Code of Criminal Procedure, 1973 (in short the 'Code')
which is Exb. 19, by P.S.I. Kale (P.W. 11). P.S.I. Kale registered offence
under Section 302 of IPC vide Crime No. 192/93 of Sakkardara Police Station.
Thereafter, he visited the place of the incident and prepared the spot
panchnama (Exb. 40) in the presence of the panchas. He noticed that deceased
Lata was fully burnt and her neck was stretched towards her stomach and her
hands were crouching, both her legs were drawn towards abdomen side. He also
noticed partly burnt matters on her person which was little bit wet. In the
kitchen, he noticed that there was a tin, which was containing some kerosene,
match sticks and other material which he recorded in the spot panchanama and
seized the Articles 1 to 7. P.S.I.
Laxman Tighara (P.W. 9) took over the investigation of the case on
29.4.1993. He arrested the appellant-accused at about 7.00 p.m, who was found
near statute of Tukdoji Maharaj, prepared the arrest panchanama and seized his
clothes. The appellant-accused was referred to medical officer for his medical
examination. In the course of investigation, the inquest Panchanama (Exb. 22)
of the dead body of' Latabai was prepared and dead body was sent to Department
of Forensic Medicines, Medical College, Nagpur for conducting post mortem. The
Medical Officer conducted the post mortem and gave the report (Exb. 31), which
was admitted by the appel1ant-accused and, therefore, the prosecution did not
examine any Medical Officer. The police recorded statement of' witnesses in
addition to completing the formalities of forwarding the articles, seized
during the investigation, to the Chemical Analyser. After investigation was
completed, charge- sheet came to be filed against the appellant-accused. His
case was committed to the court of Sessions for trial. As accused pleaded
innocence, he was put to trial.
4. The trial Court found the accused guilty primarily on two grounds; (a)
there was extra judicial confession made before PWs 1, 3 and 4; (b) kerosene
was found on the dress which the accused was wearing at the time of occurrence.
Placing reliance on these two aspects, the trial Court found the accused
guilty. High Court concurred with the conclusions.
5. In support of the appeal, learned counsel for the appellant submitted
that there was no extra judicial confession as claimed. Admittedly, PW-1 had
animosity with the accused because the said witness used to peep in the
bathroom of the accused when his wife-deceased was taking bath. This aspect has
been admitted by not only PW-1 but also PW-3. The latter being the wife of PW-1
was bound to support the statement of PW-1. There is great difference in the
language the accused is supposed to have stated. It was admitted by PWs 1 and 3
that accused is supposed to have addressed the utterances towards
"Kakaji" and this reference could be not only to PW-1 but also
another neighbour of the accused. The officer who had given the FSL report was
not examined as a witness.
6. Learned counsel for the respondent submitted that the Trial Court and the
High Court have examined in detail the evidence and come to the conclusion
about guilt of the accused.
7. We shall first deal with the question regarding claim of extra judicial
confession. Though it is not necessary that the witness should speak the exact
words but there cannot be vital and material difference. While dealing with a
stand of extra judicial confession, Court has to satisfy that the same was
voluntary and without any coercion and undue influence.
Extra judicial confession can form the basis of conviction if persons before
whom it is stated to be made appear to be unbiased and not even remotely
inimical to the accused.
Where there is material to show animosity, Court has to proceed cautiously
and find out whether confession just like any other evidence depends on
veracity of witness to whom it is made. It is not invariable that the Court
should not accept such evidence if actual words as claimed to have been spoken
are not reproduced and the substance is given. It will depend on circumstance
of the case. If substance itself is sufficient to prove culpability and there
is no ambiguity about import of the statement made by accused, evidence can be
acted upon even though substance and not actual words have been stated.
Human mind is not a tape recorder which records what has been spoken word by
word. The witness should be able to say as nearly as possible actual words
spoken by the accused.
That would rule out possibility of erroneous interpretation of any ambiguous
statement. If word by word repetition of statement of the case is insisted
upon, more often than not evidentiary value of extra judicial confession has to
be thrown out as unreliable and not useful. That cannot be a requirement in law.
There can be some persons who have a good memory and may be able to repost
exact words and there may he many who are possessed of normal memory and do so.
It is for the Court to judge credibility of the witness's capacity and
thereafter to decide whether his or her evidence has to be accepted or not. If
Court believes witnesses before whom confession is made and is satisfied
confession was voluntary basing on such evidence, conviction can be founded.
Such confession should be clear, specific and unambiguous. The evidence of PWs
1, 3 and 4 is not consistent as to where the accused is supposed to have made
the statement. While PW-1 said that he was inside the house, interestingly PW-3
stated that accused did not come out of the house and thereafter he did not
utter a statement which is taken to be the extra judicial confession. So far as
PW-4 is concerned the trial Court had disbelieved his evidence, the High Court
found the same to be credible. Significantly, he stated that the accused came
near his courtyard and shouted "Kakaji Daudo Lata Jal Gayee". In
contrast, PW-1 stated that "Kakaji Lata Mar Gaye mere hathse". PW-3
in contrast said "Kakaji Mere hathse Lata Jal Gayee". It would,
therefore, be not safe to place any reliance on the so called extra judicial
8. The expression 'confession' is not defined in the Evidence Act,
'Confession' is a statement made by an accused which must either admit in terms
the offence, or at any rate substantially all the facts which constitute the
offence. The dictionary meaning of the word 'statement' is "act of
that which is stated; a formal account, declaration of facts etc." The
word 'statement' includes both oral and written statement. Communication to
another is not however an essential component to constitute a 'statement'. An
accused might have been over-heard uttering to himself or saying to his wife or
any other person in confidence. He might have also uttered something in
soliloquy. He might also keep a note in writing. All the aforesaid nevertheless
constitute a statement.
It such statement is an admission of guilt, it would amount to a confession
whether it is communicated to another or not.
This very question came up for consideration before this Court in Sahoo v.
State of Uttar Pradesh, AIR 1966 SC 40: (1966 Cr1 U 68). After referring to
some passages written by well known authors on the "Law of Evidence"
Subba Rao, J. (as he then was) held that "communication is not a necessary
ingredient to constitute confession". In paragraph 5 of the judgment, this
Court held as follows:
...Admissions and confessions are exceptions to the hearsay rule. The
Evidence Act places them in the category of relevant evidence presumably on the
ground that as they are declarations against the interest of the person making
them, they are probably true. The probative value of an admission or a
confession goes not to depend upon its communication to another, though, just
like any other piece of evidence, it can be admitted in evidence only on proof.
This proof in the case of oral admission or confession can be offered only by
witnesses who heard the admission pr confession. as the case may be....
If, as we have said, statement is the genus and confession is only a
sub-species of that genus, we do not see any reason why the statement implied
in the confession should be given a different meaning. We, therefore, hold that
a statement, whether communicated or not, admitting guilt is a confession of
guilt (Emphasis supplied)
9. So far as the prosecution case that kerosene was found on accused's dress
is concerned, it is to be noted that no question in this regard was put to the
accused while he was examined under Section 313 of the Code.
10. The purpose of Section 313 of the Code is set out in its opening words-
'for the purpose of enabling the accused to explain any circumstances appearing
in the evidence against him.' In Hate Singh, Bhagat Singh v. State of Madhya
Pradesh (AIR 1953 SC 468) it has been laid down by Bose, J that the statements
of accused persons recorded under Section 313 of the Code 'are among the most
important matters to be considered at the trial'. It was pointed out that the
statements of the accused recorded by the committing magistrate and the
Sessions Judge are intended in India to take the place of what in England and
in America he would be free to state in his own way in the witness box and that
they have to be received in evidence and treated as evidence and be duly
considered at the trial. This position remains unaltered even after the
insertion of Section 315 in the Code and any statement under Section 313 has to
be considered in the same way as if Section 315 is not there.
11. The object of examination under this Section is to give the accused an
opportunity to explain the case made against him. This statement can be taken
into consideration in judging his innocence or guilt. Where there is an onus on
the accused to discharge, it depends on the facts and circumstances of the case
if such statement discharges the onus.
12. The word 'generally' in sub-section (1)(b) does not limit the nature of
the questioning to one or more questions of a general nature relating to the
case, but it means that the question should relate to the whole case generally
and should also be limited to any particular part or parts of it. The question
must be framed in such a way as to enable the accused to know what he is to
explain, what are the circumstances which are against him and for which an
explanation is needed. The whole object of the section is to afford the accused
a fair and proper opportunity of explaining circumstances which appear against
him and that the questions must be fair and must be couched in a form which an
ignorant or illiterate person will be able to appreciate and understand. A
conviction based on the accused's failure to explain what he was never asked to
explain is bad in law. The whole object of enacting Section 313 of the Code was
that the attention of the accused should be drawn to the specific points in the
charge and in the evidence on which the prosecution claims that the case is
made out against the accused so that he may be able to give such explanation as
he desires to give.
13. The importance of observing faithfully and fairly the provisions of
Section 313 of the Code cannot be too strongly stressed. It is not sufficient
compliance to string together a long series of facts and ask the accused what
he has to say about them. He must be questioned separately about each material
substance which is intended to be used against him.
The questionings must be fair and couched in a form which an ignorant or
illiterate person will be able to appreciate and understand. Even when an
accused is not illiterate, his mind is apt to be perturbed when he is facing a
charge of murder.
Fairness, therefore, requires that each material circumstance should be put
simply and separately in a way that an illiterate mind, or one which is
perturbed or confused, can readily appreciate and understand.
14. Above being the position, the inevitable conclusion is that the prosecution
has failed to establish the accusations. The conviction is set aside. The
appeal is allowed. The appellant be set at liberty forthwith if not required in
any other case.