( 1 ) THIS appeal is directed against the judgment and order dated 1-8-1994 passed by learned Additional Sessions Judge, Nandurbar in sessions Case No. 100/92, whereby, the appellant has been convicted for the offence punishable under section 304 First Part of the Indian Penal Code and is sentenced to suffer R. I. for seven years and to pay fine of Rs. 1000/-, in default, to suffer R. I. for one month. ( 2 ) THE prosecution story, in brief, is as follows - the appellant, original accused, is a police constable serving in the police department since 1978. He has been attached to Visarwadi police station since four years from the date of incident. He was married to Chayabai (deceased) in the year 1980. He has two sons and two daughters from the wedlock. It is stated that his wife deceased Chayabai did not behave well and did not care for the husband and the children. She used to quarrel with the appellant. It was for this reason that the deceased was left to live at Dondaicha with the mother of the appellant. The appellant had been to Dondaicha on 4-5-1992 in connection with a wedding. It was there that his mother persuaded him to take his wife and children with him. The appellant is said to have taken a room in the house of Ramjilal agrawal, examined as PW 3, on rent and brought his wife and children to stay with him on 24-5-1992 in the said house. It is stated by the prosecution that on 5-6-1992, after having meals, the appellant, his wife and children went to bed. On 6-6-1992, early morning at about 5 to 5. 30 a. m. , the appellant asked his wife deceased Chayabai to get up and collect the water from the tap. The wife replied that there was water in the tap until 7 Oclock and that she will fill the water later. The appellant insisted that she should collect the water early. Deceased chayabai, wife of the appellant, not only did not listen to the husband but uttered insulting words and refused to budge. The appellant got enraged and he assaulted his wife with dagger (sura ). Thereafter, he left the house and went to Visarwadi police station with blood stained dagger to lodge report. Deceased chayabai, wife of the appellant, not only did not listen to the husband but uttered insulting words and refused to budge. The appellant got enraged and he assaulted his wife with dagger (sura ). Thereafter, he left the house and went to Visarwadi police station with blood stained dagger to lodge report. Head Constable annasaheb Borse (PW 6), who was present in the police station, took down the report of the appellant. The blood stained dagger (sura), produced by the accused, was attached in presence of panchas vide panchanama - Exhibit 7. On the basis of this F. I. R. , which was given by the appellant himself, offence was registered and P. S. I. Jayram Shinde (PW 12) visited the house of the accused and recorded inquest panchanama. Exhibit 8, at 9 a. m. Spot panchanama was recorded by him and blood stained carpet (Satranji), blood stained earth, etc. were collected from the spot and empty water pot was also found. Dead body was sent for post mortem. Post mortem notes are on record at Exhibit 41. Statements of witnesses were recorded. After completion of the investigation, charge sheet came to be filed. The accused came to be tried for the offence punishable under section 302 of the Indian Penal Code. ( 3 ) BEFORE learned trial Judge, the appellant accused abjured the guilt. In his statement under the provisions of section 313 of the Code of Criminal Procedure, in reply to questions No. 13, 14, 16, 20 and 21, he admitted to have produced dagger (sura) which was attached vide Exhibit 7. In reply to question No. 16, he admitted that he was supposed to be on duty at police station, Visarwadi between 20. 00 hrs. of 5-5-1992 and 8 hrs. of 6-5-1992. But he did not attend the duty. He stated that he was not aware of the duty, that he was not keeping well and he was in the house on that night. He admitted his signature on the F. I. R.- Exhibit 20. ( 4 ) BEFORE learned trial Judge as many as 12 witnesses were examined. Landlord Ramjilal, whose house had been rented in by the accused, was examined to prove that the accused had recently brought his wife and children. He admitted his signature on the F. I. R.- Exhibit 20. ( 4 ) BEFORE learned trial Judge as many as 12 witnesses were examined. Landlord Ramjilal, whose house had been rented in by the accused, was examined to prove that the accused had recently brought his wife and children. Vasant Sali, PW-5, Head Constable of the police station, Visarwadi, where the accused was also working was examined in support of the case that the accused ill-treated his wife. Head Constable Annasaheb Borse, who is said to be present in the police station, stated that the accused arrived with the dagger and lodged the report, came to be examined as PW-6. Police constable Vilas Pardeshi (PW- 11) was examined in order to prove that the accused had not attended duty between 20. 00 hrs. of 5-6-1992 to 8 hrs. of 6-6-1992 and proved an entry in this regard taken in the station diary. PSI Jairam Shinde, PW-12, is the Investigating officer. Learned trial Judge accepted the evidence of the prosecution. Learned trial Judge, mindful of the legal position that the report at Exhibit 20, which was lodged by the accused himself, was not admissible in evidence, went on to discuss the other evidence which was adduced in this case including the conduct of the accused and the seizure of blood stained dagger (sura) found with him and the fact that his presence in the house was proved, proceeded to convict the accused. Learned trial Judge, however, held that there was grave and sudden provocation and, therefore, proceeded, to convict the accused for culpable homicide not amounting to murder and sentenced him in the manner stated in the initial para of this judgment. Hence this appeal. ( 5 ) I have heard Shri V. G. Gangapurwala, learned Counsel and learned additional Public Prosecutor in the matter. The oral evidence of the witnesses as also the documents proved and accepted in this case have been perused. I have gone through the judgment which is impugned in this case as also the statement of the accused recorded under the provisions of section 313 of the Code of criminal Procedure. ( 6 ) THERE is no controversy that the contents of first information report, which is said to have been lodged by the accused are not admissible. Learned trial Judge was also mindful of this position. The reasons are plenty. ( 6 ) THERE is no controversy that the contents of first information report, which is said to have been lodged by the accused are not admissible. Learned trial Judge was also mindful of this position. The reasons are plenty. The first information report is, first of all, not a substantive piece of evidence. The contents of F. I. R. can only be used for corroboration or contradiction or the evidence of the informant in the Court. Since the informant in this case is accused and he has not been examined, the contents of F. I. R. are of no use. Secondly, since the contents of F. I. R. are confessional in nature and since this statement has been made before the police officer, it is clearly hit by the provisions of section 25 of the Indian Evidence Act. This Court, therefore, need not take into account the contents of F. I. R. , Exhibit 20. It is pertinent to note, however, that the defence did not dispute the genuineness of panchanama dated 6-6-1992 at Exhibit 7 regarding the seizure of blood stained dagger (sura) on production by the accused in the police station. The inquest panchanama dated 6- 6-1992, vide Exhibit 8, the spot panchanama dated 6-6-1992, Exhibit 9, of the house of the accused, post mortem report, Exhibit 54 and the certificates by chemical Analyser, Exhibits 48, 49 and 50 were admitted by the defence and accepted during the trial. ( 7 ) THERE is evidence of landlord, Ramjilal, examined as PW-3, and Zhulal, examined as PW-4 and Vasant Sali, examined as PW-5 are the neighbours of the accused, who stated that the accused had recently started residing in part of house of Ramjilal as tenant. He had recently brought his wife and children and had been staying there. On perusal of the evidence of these three witnesses, there remains no doubt that the accused had been staying with his wife deceased Chayabai in rented house of Ramjilal, P. W. 3 in Visarwadi. ( 8 ) THERE is evidence of Vijay Khairnar (PW-7), a Head Constable attached to Visarwadi police station and the evidence of police constable Vilas Pardeshi, examined as PW-11 that the accused was also attached to Visarwadi police station. Police Constable Vilas Pardeshi has stated that accused, constable, had not attended the duty between 20. 00 hrs. of 5-6-1992 and 8 hrs. of 6-6-1992. Police Constable Vilas Pardeshi has stated that accused, constable, had not attended the duty between 20. 00 hrs. of 5-6-1992 and 8 hrs. of 6-6-1992. It is also testified that entry in this regard about the absence of accused has been taken in the station diary. There is evidence of this constable and the Head Constable annasaheb Borse, examined as PW-6, that the accused constablearrived in the police station at about 7. 15 a. m. on 6-6-1992 with a dagger (sura) in his hand, to lodge the report and the report was reduced into writing at Exhibit 20. As stated earlier, the accused in his statement recorded under the provisions of section 313 of the Code of Criminal Procedure, did not dispute that he did not attend the duty on the night between 20 hrs. of 5-6-1992 and 8 hrs. of 6-6-1992 and that he informed to the police station at 7. 15 a. m. He also stated in his statement under the provisions of section 313 of Code of Criminal Procedure that he slept in his house as he was not keeping well and admitted that he did not attend the duty. Apart from this, there is oral evidence of Hirkanbai, neighbour of the accused, examined as PW-9. She stated to have got up in the morning at about 5 a. m. and had seen the accused leaving his house in the morning. ( 9 ) THE blood stained dagger (sura), which was produced by the accused, came to be attached at Exhibit 7. It was attached by Head Constable Annasaheb borse, PW-6. As stated earlier, the documents, panchanama of seizure of blood stained sura at Exhibit 7 and panchanama of the house of the accused, post mortem report and certificates by the chemical analyser were admitted by the defence and duly accepted during trial. ( 10 ) THOUGH contents of F. I. R. cannot be looked into for the reasons hereinbefore stated, the fact that the accused went in the police station with blood stained dagger and lodged the report at Exhibit 20 is relevant and admissible in evidence as contemplated under the provisions of section 8 of the Indian evidence Act. This fact of lodging the report and going to the police station has not been denied by the accused. The accused has further admitted to have signed the report, Exhibit 20. This fact of lodging the report and going to the police station has not been denied by the accused. The accused has further admitted to have signed the report, Exhibit 20. The dagger (sura) which was attached from the accused had blood stains on it when it was attached. Later in the Chemical Analysers report, which is again admitted at Exhibit 49, the blood on the dagger was human blood and was of B group. Since the blood stained carpet and sample of earth, sari and blouse of the deceased, which were attached, were found to contain human blood group B, there is no difficulty in holding that the dagger which was produced was used for commission of the offence. ( 11 ) THE post-mortem report of deceased Chayabai is on record at Exhibit 54. The following were incised injuries on the person of deceased Chayabai :-1. Incised wound over left forehead, obliquely placed, edge sharp, spindled shaped, bone dects. 5 cm. x 2 cm. x cm. 2. Incised wound over lower front side of the neck - 8 cm. x 4 cm. x cm. edges sharp, blood clot seen, muscles are cut, oesophagus, trachea are cut, nerves, vessles are cut, carotid arteries are cut, cervical vertestae are seen. 3. Incised wound over right clavicular area, dried blood clots seen - 6 cm. x 2 cm. x Vz cm. 4. Incised wound over left cheek, edges sharp 3 cm. x 1 cm. x cm. 5. Incised wound over breech of nose, left edges sharp, dried blood clots seen 2 cms. x Vz cm. and in the post-mortem report, the cause of death is stated to be haemorrhagic shock due to cutting of both vital vessels corotid artery with cutting of trachea oesophagus and vagus nerve. ( 12 ) LEARNED Counsel for the appellant, accused, Shri Gangapurwala, cited certain cases in support of his arguments. Case law which is cited to show that the contents of F. I. R. are not admissible, may not be referred to in view of the fact that neither the trial Court nor this Court has any doubt with regard to the legal position. The contents of F. I. R. are absolutely irrelevant when it is confessional in nature and has been filed by the accused himself. The contents of F. I. R. are absolutely irrelevant when it is confessional in nature and has been filed by the accused himself. ( 13 ) LEARNED Counsel, Shri Gangapurwala, has cited a case between harnam Kisha vs. Emperor, AIR 1935 Bombay 26. In this case, the accused has handed to police dharia stained with human blood and the clothes which he was wearing were also stained with human blood. It was explained by the accused in that case that when he came back from his field, he found his wife murdered and he took dharia which was lying beside her and got blood stains on the clothes while attending to her body. In the reported case, which to some extent is similar to the one in hand, the accused also had gone and lodged report in the police station himself. The trial Court had convicted the accused taking into account the motive which was stated in the F. I. R. That portion was treated by learned trial judge as not confession and was taken into account. In appeal, the High Court acquitted the accused in view of the fact that no part of the F. I. R. was admissible and that the only evidence available in that case was the production of blood stained dharia and the fact that the clothes on the person of the accused were found with blood stains. In that case, after excluding the F. I. R. , it was held that there was nothing except that the body of the wife of the accused was found in his hut in the early morning, that she has obviously been murdered with dharia or similar weapon, that the accused handed over to the police dharia stained with blood and the clothes he was wearing were also stained with human blood. The high Court in that case, looking to the explanation given by the accused, did not find the material sufficient to justify the conviction. ( 14 ) IN the present case, the prosecution has established that accused, police constable, was attached to Visarwadi police station, for the last four years, that he had recently brought his wife and children and started living in the rented premises, that the accused was not happy with the behaviour of his wife and there used to be quarrels; that the accused was supposed to be on duty between 20 hrs. of 5-6-1992 till 8 hrs. of 6-6-1992 and that he did not attend his duty. Admittedly, he was at home in the night between 5-6-1992 and 6-6-1992, that his wife died homicidal death and he went in the police station with a dagger and lodged the report in the police station at Exhibit 20. The dagger, which came to be attached and which was produced by the accused in the police station, contained human blood of group B, which is shown to be that of his wife. In view of this, even if the contents of the F. I. R. are not looked into, the accused cannot escape the conviction. On the basis of the aforesaid circumstances, most of which are admitted, there remains no difficulty in holding the accused guilty of the offence of culpable homicide. ( 15 ) IT would be necessary to mention here that learned trial Judge, instead of convicting the accused for the offence punishable under section 302 of the indian Penal Code, has convicted him for the offence punishable under section 304 First Part of the Indian Penal Code. Learned trial Judge observed that the accused caused death of his wife in the heat of passion. The crime was committed without premeditation. It was mentioned that the deceased Chayabai had abused her husband calling him to be a base-born person and since this abuse was addressed by wife had provoked the accused in commission of such a crime and, therefore, learned trial Judge, in view of the provisions of Exception I to section 300 of the Indian Penal Code, convicted the accused for the offence punishable under section 304 First Part of the Indian Penal Code. ( 16 ) THOUGH section 25 of the Indian Evidence Act prohibits the proof of first information report given by accused to a police officer which amounts to confessional statement and the confession includes not only the admission of the offence but all other admissions of incriminating facts contained in the confessional statement - law permits, however, the perusal of contents of first information report for the accused. The explanation for murder in a confession by the accused to the police in a first information report may be relied on to prove motive or provocation with a view to extenuate the offence or sentence. The explanation for murder in a confession by the accused to the police in a first information report may be relied on to prove motive or provocation with a view to extenuate the offence or sentence. In other words, there is no bar to a confession in first information being used in favour of the accused. In a case between Murli vs. State of Rajasthan, 1995 SCC (Crimes) 57, the Supreme Court has held that where the accused has made first statement which formed first information report, the confession therein may not be proved against the accused but the admissions therein are relevant to prove whether the case comes within exception 1 to section 300 of Indian Penal Code. Again a confessional statement that the accused killed his wife on receiving provocation from her was held to be admissible for use, not against the accused, but in his favour to mitigate his offence. (In re Thandavan 1973 Cri. LJ. 1041 ). ( 17 ) THERE is no State appeal in this case for enhancement of the punishment. For the reasons stated above, this Court does not find strong reasons to interfere with the order of acquittal of the offence punishable under section 302 of the Indian Penal Code. The learned Judge has given reasons for holding the appellant guilty for the offence punishable under section 304 of the Indian penal Code and I do not see gross error or perversity in this regard. There is no merit in the appeal filed by the accused against the conviction. ( 18 ) IN the result, criminal appeal is dismissed. The accused shall surrender to bail to serve out the remaining sentence. Appeal dismissed.