LODHA, J. - (1.) THE appellant Bhuta has been convicted by the Additional Sessions Judge, Jalore under sec. 302 I. P. C. for causing the murder of his wife Smt Paru and has been sentenced to imprisonment for life.
(2.) THE prosecution case is that the accused was married to the deceased Paru in Samwat 2016 and two daughters were born to her. One of them is Varju. THE accused Bhuta suspected her (Paru's) fidelity. It is alleged that she went to her father's place sometime in the month of March 1970 and the accused went there to bring her back. On 3rd May, 1970 while both of them and their daughter Varju were coming from Sanchore, there was a verbal altercation between them while they were a little away from their village Janvi. THE accused, it appears, could not control his temper and dealt blows with a 'dhariya' on her head, neck, temple and various others parts of her body as a result of which she instantaneously died and the accused buried the dead body in the field of one Bhema Ghanchi. THEreafter he took his daughter Varju aged about a year and a half to the village and left her in the company of small children who were plying in the locality of Bheels to which community the accused also belongs. Perturbed on account of the crime committed by him he went back in the Jungle and passed the next day and night in the precincts of village Galife. However, he could not contain himself and wanted to make a clean breast of the whole thing. With that end in view he left for Police Station Sanchore on the 3rd day of the murder and produced himself before P. W. 10 Padam Singh Station House Officer, Police Station, Sanchore with a 'dhariya' in his hand and narrated the whole incident to him. THE information given by the accused was reduced into writing and the same has been marked Ex, P. 13 which has been treated as the F. I. R. in the case. Since the place of occurrence fell within the jurisdiction of Police Station Sarvana, Padam Singh sent the report to the Police Station Sarvana. He immediately arrested the accused vide arrest memo Ex, P. 2 and also took in his custody the 'dhariya' produced by the accused. THE seizure memo of the 'dhariya' is Ex. P. 3 He noticed that the 'dhariya' was stained with blood and a few hair were also stuck to it. On the following day i. e. 6-5-1970 he went to the place of occurrence accompanied by the accused and found blood stained earth, and pieces of bangles scattered in the field of Bhema Ganchi in village Janvi. He also took in his possession the string used by ladies for tying their hair and a pair of shoes used by females along with other articles. THE seizure memo of these articles is Ex. P. 4 THE accused then pointed out the place where he had buried the dead body of Paru. THE body lay concealed under the earth which was removed by the accused and the dead body was dug out. THE seizure memo of the dead body is Ex. P. 5. Certain ornaments besides clothes were found on the dead body which were also seized by the police. It may be pointed out, here, that there was an ear top only on one ear and the other ear-top was missing. THE dead body was identified by the accused, his brother Mobata and other motbirs. At that time the accused further gave information that he had concealed the spade nearby with which he had dug the ground for burying the dead body. THE recovery memo of the spade is Ex. P. 7. About four days thereafter the accused also got recovered at his instance the handle of the spade vide recovery memo Ex. P. 10 dated 10-5-70. THE post-mortem examination of the dead body of Smt. Paru was conducted by P. W. 7 Dr. S. C. Mathur who has deposed to the presence of the following injuries on her person: - (1) Incised wound 3" x 2" x bone deep. Left arm and elbow with fracture of ulna and radius-posteriorly bone deep. (Muscles cut clean with muscles decomposing. Bones cut sharply at upper end humerous Floating at the joint end. (2) Incised wound 6" x 3/4" x bone deep forehead and face left side starting just above and lateral to left eye extending and cutting left ear and extending upto 1" behind left ear. (3) Incised wound 2" x 1/2 x muscle deep left mollar region 1/2" below left eye transversely placed. (4) Incised wound 5" x 1" x bone deep obliquely placed 1/2" below injury No. 3 extending down-wards and backwards upto nape of the neck cutting lower Jaw. (5) Incised wound 6" x 1/2 x brain deep left parietal region (hairs peeled off) extending from frontal region to 1" anterior to occipital region (cutting bone piece ). (6) Incised wound 6-1/2" x 1/2" x bone deep face right side right lower jaw, lips and gums and teeth lour absent, right three mollars, and 1 upper third mollar - extending backwards and upwards upto occipital region - vertebrae exposed. (7) Lacerated wound 3" x 1" x muscle deep - nape of the neck - and J" below injury No. 4. (8) Lacerated wound 1' x 3/4 x muscle deep back at level of first thoracic vatabrae. (9) Incised wound 4-1/2" x 2" x muscle deep back left mid axillary and posterior axillary region, just below inferior angle of left scapulae - No injury to lung or ribs. Scapula floating in the wound. " The Doctor opined that the death was due to coma, resulting from the head injury aggravated by syncope due to shock and haemorrhage. He has stated that all the injuries were ante mortem, and except injuries No. 7 and 8 all the rest of the injuries could be caused by 'dhariya' Ex. 1. He further stated that injuries No. 5 and 6 were alone sufficient in the ordinary course of nature to cause death and all the injuries cumulatively were also sufficient to cause death in the ordinary course of nature. The various articles recovered at the instance of the accused were sent for chemical examination but the serologist's report is that the origin of marks of blood found present on some of the articles could not be traced. One more important recovery was made at the instance of the accused and that was of the other ear-top which was missing from the corpse of Smt. Paru. The information memo in respect of this recovery is Ex. P. 18. It is alleged that the accused while in police custody gave information that one of the ear-tops which had fallen from the person of Paru at the time of the incident was picked up by the accused and he had concealed the same in his hut. The ear-top was recovered at the pointing of the accused and its recovery memo is Ex. P. 9. Thus having collected the necessary material, the police prosecuted the accused in the court of Munsif Magistrate, 1st Class, Sanchore, who committed him for trial to the court of Additional Sessions Judge, Jalore. The prosecution examined 12 witnesses. The accused denied his complicity in the crime and produced three witnesses in defence whose evidence is that the dead body had been discovered by the police of its own accord and he had not furnished any information leading to its recovery. The learned Additional Sessions Judge accepted the prosecution case and sentenced the accused as stated above. We have heard Mr. Rajeshwar Singh Parihar on behalf of the accused appellant and Mr. Sishodiya on behalf of the State. Mr. Parihar has urged that the First Information Report in the present case is a confessional statement made by the accused to the Police and, therefore, it is inadmissible by virtue of sec. 25 of the Evidence Act and as such cannot be used against him. He has also contended that the dead body of Smt. Paru was not recovered on the information supplied by the accused and at his instance. Learned counsel has submitted that the accused had been convicted by the court below on suspicion otherwise the case against him was not proved beyond doubt. It is a matter beyond dispute that Smt. Paru wife of the accused died on account of injuries inflicted on her and her dead body was recovered from the field of Bhema Ghanchi situated in the precincts of village Janvi. The only question for determination is whether the accused was the perpetrator of this crime ? Admittedly there is no direct evidence of the crime. The case against the accused rests on extra judicial confession alleged to have been made by him to P. W. 8 Gumana, recovery of one of the ear tops on the information supplied by him and at his instance. Another circumstance found proved against him is that the deceased was last seen with him. The prosecution also relies on the first information report lodged by the accused himself at the police station, Sanchore. Lastly, recovery of the various articles at the instance of the accused is also being pressed into service against the accused.
(3.) WE may observe, at the very outset, that the first information report is a self inculpatory statement wherein the accused has admitted that he had committed the murder of Smt. Paru. The statement contained in the F. I R. is therefore, hit by sec. 25 of the Evidence Act,, It is apparent from the bare reading of the F. I. R. Ex. P. 13 that it is a confessional statement made to a Police Officer and as such we are clearly of the opinion that it cannot be used against him in view of sec. 25 of (he Evidence Act. It is also not possible to sever that part of the statement which is un-confessional from the strictly confessional part and the entire confessional statement contained in the F. I. R. cannot be proved on account of the ban of sec. 25 of the Evidence Act. However; there is no bar against using that part of the statement which falls under sec. 27 of the Evidence Act We may also point out, here, that the fact of the accused giving the information can at any rate be used against him under sec. 8 of the Evidence Act. There is a clear statement of P. W. 10 Padam Singh that the information incorporated in the F. I. R. was supplied by the accused and he got the same reduced to writing by Bhera Ram Head Constable. It has been further deposed by him that the accused had a 'dhariya' with him when he came to the Police Station to lodge the report. The prosecution has succeeded in proving that the police got information regarding the commission of the crime from the accused himself and thus the conduct of the accused in lodging the F. I. R. is admissible under sec. 8 of the Evidence Act. Further we have it from the statement of Padam Singh that it was the accused who informed him as to the place where the dead body of Smt Paru had been buried and it was at the instance of the accused that the dead body was recovered. He has stated that the accused pointed out the place where the dead body was buried. Learned counsel for the appellant has submitted that though the dead body is alleged to have been recovered on 6-5-70, the police, as a matter of fact, had found the dead body in the evening of the 5th May, 1970 as deposed to by P. W. 4 Bhawani Singh, D. W. 1 Rai Mal, D. W. 2 Bhura and D. W. 3 Chela. It does appear to us that P. W. 10 Padam Singh had gone to the place of occurrence in the evening of 5th May, 1970. However, Padam Singh has given a forth-right statement that thought he had gone to village Janvi in the evening of 5th May, 1970, the dead body was actually recovered at the instance of the accused the next day. PW. 4 Bhawani Singh is a Motbir to this recovery. He has attested the recovery memo Ex. P. 5 and has supported the prosecution case in examination-in-chief. But in the cross examination he made an unfavourable statement to the prosecution and stated that the dead body had been noticed and had been identified by face before it was actually taken out on 6 5-70. This witness was permitted to be cross examined by the prosecution. He has tried to introduce the presence of defence witnesses D. W. 1 Rai Ma! and DW,2 Bhura in order to support the defence version. After having gone through his statement, we have come to the conclusion that the witness has been discredited and no reliance can be placed on him. We are also not prepared to accept the evidence of the defence witnesses that the dead body had been found on 4th May, 1970. The evidence of these defence witnesses is that Mobata had found and identified the dead body but he has not been produced to support the defence version. We are, therefore, of opinion that the dead body was located and seized as a consequence of the information supplied by the accused. This is another circumstance proved against the accused. We may now come to the extra judicial confession: P. W. 8 Gumana has stated that he knew the accused and about 5 months before the date of his statement the accused met him in Sanchor near the court-building and asked him where the police station was, as he wanted to go there and tell the police that he had murdered his wife and thereupon the witness showed the accused the way to the police station The accused was very well known to the witness as the witness is the uncle-in-law of Kastura brother of the deceased Smt. Paru. The statement of Gumana is corroborated by P. W. 9 Kastura, Paru's brother, who states that Gumana had told him that Bhuta had confessed before Gumana that he had murdered Smt. Paru and was going to make a report to the police. Learned counsel has urged that both the witnesses are inimical to the accused and should not be relied upon. Gumana is related to Kastura on his wife's side in a distant degree. He had no animus against the accused and we are not prepared to hold that without any reason or rhyme he has falsely implicated the accused. Kasthura's statement is only a corroborative evidence in support of Gumana's statement and we are not prepared to reject the testimony of Kastura merely on the ground that he is the brother of the deceased. There was no love-lost between the accused and his in-laws otherwise they would not have agreed to send Smt. Paru with the accused. We are therefore, of opinion that the accused did make an extra judicial confession to P. W. 8 Gumana that he had killed his wife. ;