UMED SHOBHIT v. STATE OF MADHYA PRADESH — 1978 DIGILAW 558 (MP)

JUDGMENT : ( 1. ) THIS is an appeal from jail by accused-appellant Umed against his conviction under section 302 of the Indian Penal Code and sentence of imprisonment for life passed by the Sessions Judge, Raipur, in Sessions trial No. 68 of 1975. ( 2. ) THE prosecution case against the accused-appellant was that both, he and the deceased Ramu, used to live together in a locality known as Tikrapara of Raipur town and they were working as labourers. At one time deceased ramu stole Rs. 300 and some clothes of the accused-appellant and ran away. It was on 8-1-1975 that the accused-appellant succeeded in tracing him out while he was sitting with some beggars near Gujrathi Dharmshala in the town. When the accused-appellant demanded his money and the clothes, the deceased refused to give them back. In the night, both the accused-appellant and the deceased slept in the outer verandah of a vacant house under construction near that Dharmashala. According to the prosecution, on 19-1-1975 at about 5. 30 A. M. while the deceased was sleeping, the accused-appellant struck him with an axe resulting in his death sometime later The accused-appellant then went to the police-station Ganj carrying with him the axe (Art. A) and himself lodged the first information report (Ex. P-1) at about 6. 15 A. M. and also produced the axe (Art. A ). The police seized the axe from his possession vide seizure memo. (Ex. P-2 ). In pursuance of the statement made in the first information report (Ex. P-1) the police party went to the place of incident and found that deceased Ramu was in an unconscious state and while he was being taken to the hospital he succumbed to the injuries. Dr. J. L. Shrivastava (P. W. 13), who performed the post-mortem examination on the dead body of the deceased, found as many as 9 incised wounds on different parts of the body and one abrasion on the right leg. He was of the opinion that injury nos. 1 to 9 could be caused by means of a hard and sharp object like an axe (Art. A ). As regards the 10th injury he was of the view that it could be by friction against a hard and blunt object. He was further of opinion that the death was due to multiple incised wounds and injury to the brain. As regards the 10th injury he was of the view that it could be by friction against a hard and blunt object. He was further of opinion that the death was due to multiple incised wounds and injury to the brain. His postmortem report is Ex. P-16. The accused-appellant was thus prosecuted for having committed murder of the deceased. ( 3. ) IN defence, the accused-appellant pleaded not guilty. ( 4. ) THE trial Court on the basis of the circumstantial evidence convicted the accused-appellant under section 302 of the Indian Penal Code for having committed murder of the deceased and sentenced him to imprisonment for life. ( 5. ) THE accused-appellant was produced before us from jail and was heard. Shri Hafizulla, Advocate, appeared as amicus curiae and he was heard. We also heard learned counsel for the State. ( 6. ) BEFORE we proceed to determine whether the accused-appellant can be held guilty of the crime, we may like to mention here that it is amply proved that the person who died was Ramu and his death was homicidal. Now, as regards the complicity of the accused-appellant in the commission of the crime, there is no eye-witness to the incident. The case, therefore, rests only on circumstantial evidence. The first information report (Ex. P-1) being confessional is naturally hit by section 25 of the Indian Evidence Act and would be inadmissible in evidence save and except as provided by section 27 of the Act. When the accused-appellant lodged the first information report (Ex. P-1) he also surrendered the weapon of offence, i. e. , the axe (Art. A) which was seized by the police from his possession vide seizure memo. (Ex. P-2 ). That axe was found to be stained with blood and the Serologist vide his report (Ex. P-19) confirmed those stains to be of human origin. Similarly, the trousers (Art. B) and shirt (Art. C), which the accused-appellant was wearing at that time, were also seized by Sub-Inspector Sahi (P. W. 11) from his person after his return from the spot of incident vide seizure memo. (Ex. P-4 ). As per the report of the Serologist (Ex. P-19), both the articles were stained with human blood. On the axe (Art. A) when it was seized, some hairs were found stuck to its blade and they were sent to the Forensic Science Laboratory for examination. (Ex. P-4 ). As per the report of the Serologist (Ex. P-19), both the articles were stained with human blood. On the axe (Art. A) when it was seized, some hairs were found stuck to its blade and they were sent to the Forensic Science Laboratory for examination. According to U. N. Joshi (P. W. 5), Director-cum-Assistant chemical Examiner, Forensic Science Laboratory, the hairs were of the human head. He was unable to give any definite opinion whether the hairs were of the deceased but he found them similar to those of the deceased. In this background of circumstantial evidence, the question that arises for consideration is whether the person directly giving information to the police officer about the crime, which may be used against him, can be deemed to have submitted himself to the custody of the police officer within the meaning of section 27 of the evidence Act or not. ( 7. ) IN the present case, seizure of blood stained axe (Art. A) was made after recording the first information report (Ex. P-1) and there was no actual taking of the accused-appellant into custody by the police officer at that stage. That being so, whether that part of the information in the first information report (Ex. P-1) that he was producing the axe stained with human blood and discovery of the injured body of the victim would be deemed to be a statement made while under custody. If that part of the statement in the first information report (Ex. P-1) can be held to be made under custody, then the judgment of the trial Court has to be affirmed as then it has to be held that the prosecution has succeeded in proving the guilt of the accused-appellant by clinching circumstantial evidence. In the case of Bharosa Ramdayal v. Emperor (1960 NLJ 623 = AIR 1947 Nag. 86), a Division Bench of this Court has held that statement resulting in the discovery of the dead body and the blood-stained lathi on the basis of the statement made in that case by the accused to the police officer are the statements, though made in the case of an inadmissible confession, cannot, however, be excluded for purposes of section 27 of the Evidence Act. The reason assigned by the learned Judges was that if a person makes a statement to the police officer voluntarily admitting to have committed an act which is an offence under the penal Code he is clearly submitting himself to the custody within the meaning of section 46 (1) of the Code of Criminal Procedure and such a statement would be deemed to be a statement made by the accused as if in custody to a police officer under section 27 of the Evidence Act. In the case of State of U. P. v. Deoman Upadhayaya ( AIR 1960 SC 1125 ), their Lordships of the Supreme Court had an occasion of considering the point, as in the present case, whether such a statement can be held to have been made under custody or not which ultimately leads to a discovery of a fact. The relevant para reads as under: "when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody; submission to the custody by word or action by a person is sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the custody of the police officer within the meaning of section 27 of the Indian Evidence Act. . . . . . ". In the case of Aghnoo Nagesia v. State of Bihar (1966 MPLJ 49= air 1966 SC 119 .), their Lordships of the supreme Court had again an occasion of considering whether the first information report given by the accused to a police officer leading to certain discoveries on the basis of the statement contained therein, which may be used against him, can be covered under section 27 of the Evidence Act. Their Lordships have held that "where the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by section 25. Their Lordships have held that "where the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by section 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of section 25 is lifted by section 27. " Their Lordships further observed that "save and except the portions coming within the purview of section 27, the rest of the first information report must be excluded from the evidence" and on the question whether a person directly coming to police officer and giving information which may be used as evidence against him, held that he may be deemed to have submitted to the custody of the police officer within the meaning of section 27 of the Evidence Act. In another later case of Onkar v. State of m. P. (1974 Cr. L. J. 1200), a Division Bench of this Court has held as under: "on the basis of the aforesaid statement it was urged that since the accused was permitted to go home, it would appear that he was not under restraint and as such was not in custody of the police. We are not, however, impressed by this argument. The aforesaid statement seems to have been made merely to emphasise that the accused had not been arrested on 7th January. There is a distinction between custody and arrest. " "custody does not mean formal custody but includes any sort of surveillance or restriction or restraint by the police. In Chhotelal v. State of U. P. ( AIR 1954 All 687 =1954 Cr. LJ 1445), it was held that the word custody in section 27, Evidence Act does not mean formal custody and the accused can be said to be in custody when he is under surveillance of the police. A similar view was expressed in Allah Ditta v. Emperor (AIR 1937 Lah. 620=0937) 38 Crlj 1082.) and Maharani v. Emperor (AIR 1948 All. 7= (1947) 48 Crlj 939 ). A similar view was expressed in Allah Ditta v. Emperor (AIR 1937 Lah. 620=0937) 38 Crlj 1082.) and Maharani v. Emperor (AIR 1948 All. 7= (1947) 48 Crlj 939 ). In the Allahabad case it was held that the word custody in section 27, Evidence Act does not mean formal custody but includes such state of affairs in which the accused can be said to have come into the hands of a police officer or can be said to have been under some sort of surveillance or restriction: vide paragraph 17. In Shiv Charan v. State of M. P. (1968 Civ. App. R. 268 (S Q)), their Lordships construed the expression custody in section 27, Evidence Act as connoting some restraint on the freedom of movement of the person whether by word or action. It was held that it did not mean custody after formal arrest The following observations of their lordships at p. 271 are pertinent: as soon as a person is suspected of the commission of an offence, and the police officer in charge of the investigation exercises some control over his movements, for the purpose of the investigation, in the absence of clear evidence to the contrary, he is no longer at liberty and may be taken to be in custody within the meaning of section 27. When a person is called to the police station and is interrogated as an accused in connection with the investigation of a crime, he must be deemed to be in the custody of the police while he is so interrogated and no formal arrest is necessary. In the instant case it is clear that when the accused made the aforesaid statement (Ex. P-7) he was being interrogated as an accused person. In fact, in paragraph 50 of his deposition Sujansingh (P. W. 23) made it clear that the statement in question was recorded after taking the accused into custody. The fact that he was not formally arrested till 10th January, 1973, would be of no consequence. It is, no doubt, true that Onkar was permitted to go home after he made the statement; but it is obvious that after he made the statement leading to the discovery of the dead body, he must have been under the police eye throughout. It is, no doubt, true that Onkar was permitted to go home after he made the statement; but it is obvious that after he made the statement leading to the discovery of the dead body, he must have been under the police eye throughout. We, therefore, hold that the statement in question was made while the accused was in custody of the police and as such it is admissible in evidence," The latest decision of this Court on the point is the case of Kadori v. State of m. P. ( 1978 MPLJ 706 = 1978 JLJ 347 ), where a Division Bench of this Court had an occasion of interpreting the word custody with reference to section 27 of the Act and held that that word does not mean formal custody but includes such state of affairs in which the accused can be said to have come into the hands of a police officer or can be said to have been under some sort of surveillance or restriction. In the case of Kanhiya v. State of Rajasthan (1976 Crlj 1652), the Rajasthan High Court has held as under : "the Investigating Officer in the witness box was not questioned by either party to explain the anomaly in the timings recorded in Ex. P-15 and Ex. P-16, but if we take it that the timings recorded by him in these two documents were correct even then it is difficult for us to accept Mr. Agarwals contention that the accused was not in constructive custody of the police at the time when he passed on inform tion when Fx. P-16 was prepared, because it was in the presence of the police that the information was given by him and therefore even if formal arrest had not been made and he was formally arrested after half an hour when the information was passed on to the Police Authorities it shall be deemed that the accused was in the constructive custody of the police and, therefore, the information recorded in Ex. P-16 in pursuance whereof discoveries of the silver articles were made shall be relevant in evidence and is admissible under section 27 of the evidence Act. " ( 8. ) THUS, it is clear that the word custody cannot be said to mean only when the accused is actually taken into custody by the police officer. P-16 in pursuance whereof discoveries of the silver articles were made shall be relevant in evidence and is admissible under section 27 of the evidence Act. " ( 8. ) THUS, it is clear that the word custody cannot be said to mean only when the accused is actually taken into custody by the police officer. That being so, in view of the decisions referred to above, we are of opinion that in the present case when the accused appellant himself lodged the first information report at the police-station (Ex. P-1) he would be deemed to be under custody of the police and as such that part of his statement in the report (Ex. P-1) leading to the discovery of the axe (Article A) and subsequent discovery of the body of the injured from the place of incident would be the statements made while under police custody and as such those statements would be admissible under section 27 of the Evidence Act. In that view, the said evidence would be important incriminating circumstance against the accused-appellant. ( 9. ) LEARNED counsel appearing amicus curiae tried to contend before us that mere recovery of blood-stained axe (Article A) from the possession of the accused-appellant cannot be a circumstance for sustaining the charge of murder and in this connection he referred to a decision of the Supreme Court in the case of Narainhhai Haribhai Prajapati etc. v. Chhattarsingh and others (1977 (2) Cri. LJ 1144) But the facts of that case are entirely different from the present one. Here, there is a chain of circumstances to prove the complicity of the accused-appellant in the commission of the crime. Then, it was also tried to be contended that in the absence of microscopic examination of the hail which were found on the blade of the axe (Article A) it was not possible to say whether they were of the same or of different colours or sizes. On a perusal of the evidence of U. N. Joshi, (P. W. 5), Director-cum-Assistant Chemical Examiner, Forensic Science laboratory, Sagar, we find that it was not possible for him for want of facilities in the laboratory to do nuclear activation analysis with a view to find out whether the hair was of the same human being, although the hair, according to him, did belong to human head. Thus, according to U. N. Joshi (P. W. 5), mere similarity in the colour, texture, length, adhering matter, root and tip end, medulla and medullary index could not help to arrive at an opinion about their origin from the one and the same individual as mentioned in his report (Ex. P-7 ). In this view of the matter, the contention of the learned counsel in this regard is well founded. The recovery of hair, which were stuck to the axe (Article A), therefore, cannot by itself be said to be an incriminating evidence against the accused-appellant. But, as mentioned earlier, the other circumstantial evidence is so clinehing that it leaves no manner of doubt that the accused-appellant alone was the author of the crime. In this view of the matter, we fully agree with the finding in that regard of the trial Court. ( 10. ) FOR the reasons stated above, this appeal fails and is dismissed. The conviction and sentence of the accused-appellant under section 302 of the indian Peaai Code are hereby maintained. Appeal dismissed.