JUDGMENT The appellant namely Prabhakar Vitthal Kamble was charged for committing murder of Sou. Sulbha Prabhakar Kamble on 30/09/2007 at village Khairi (Deshmukh). Learned Ad-hoc Additional District Judge and Additional Sessions Judge. Nagpur. by the judgment and order dated 10/912008 in Sessions Trial No,48 of 2008 convicted the accused for the offence punishable under Section 304-II of Indian Penal Code and sentenced to suffer rigorous imprisonment for 7 years and to pay a fine of Rs.1.000/-. in default of payment of fine, to suffer rigorous imprisonment for 10 days. 2. Being aggrieved by the judgment and order passed by the learned Ad-hoc Additional Sessions Judge-I. Nagpur, the appellant/accused approached this court by filing present appeal. 3. The prosecution case can be summarized as follows: a] That, appellant/accused had lodged oral report at Police Station, Kalmeshwar on 01/10/2007 stating therein that he reside at village Khairi (Deshmukh) along with his wife and son aged 1-1/2 years namely Kanoba. He and his wife were used to do the work of making Fade (type of groom). His wife performed family planning operation and as per the scheme of the Government, one nurse Ramteke offered Rs.500/- for operation. As his wife was not keeping well, she was residing at Khairi village. On 30/9/2007 at about 7.00 p.m. he along with his wife Sulbha and son Kanoba proceeded for village Sawandti and on the way Sulabha stated quarreling with him on the ground of the money received from Ramteke nurse. Because of the quarrel, he got angry and pelted one stone at his wife Sulbha. She got injured and fell down. As she was asking for water, he went to bring water from the tap. When he returned back with the water, he found that his wife was dead. It is f1ll1her stated in the report that he/accused sat near the dead body for whole night and in the early morning, he went to Police Patil Vijay Llnde at Sawandri village and told that two persons dragged away his wife in the night. It is also stated in the report that as he hit his wife with stone, she died. b] On receiving the report, Police Inspector attached to Police Station, Kalmeshwar registered the offence. The appellant/accused came to be arrested on the same day. PSI Mahure reached the spot and prepared the spot panchanama. It is also stated in the report that as he hit his wife with stone, she died. b] On receiving the report, Police Inspector attached to Police Station, Kalmeshwar registered the offence. The appellant/accused came to be arrested on the same day. PSI Mahure reached the spot and prepared the spot panchanama. He seized a small stone having stains of blood, one stick, blood stained earth and plain earth from the spot, prepared inquest panchanama, referred the dead body to Mayo Hospital for post-mortem examination. The probable cause of death was written as "ligature strangulation associated with head injury". The blood stained clothes of the accused were seized. The clothes of deceased i.e. saree, petticoat. blouse, nicker having blood stains were also seized. The seized articles were forwarded to the Chemical Analyzer for examination. The C.A. Report was received. After completion or investigation. charge-sheet was filed against the appellant/accused. The appellant pleaded not guilty. His defence is that he never lodged the report in police station about committing murder or his wife and on 30/9/2007, he reached police station to report that somebody has abducted his wife. c] The learned trial judge, on appreciation or the evidence, found that the appellant/accused in the heat of passion, committed the act and the same would amount to culpable homicide not amounting to murder and convicted the appellant for the offence punishable under Section 304-II of Indian Penal Code. 4. Heard Mr. R. M. Daga. learned Advocate appearing on behalf of the appellant and Mr. Anoop Parihar. learned Additional Public Prosecutor on behalf of the respondent/ State. 5. Mr. R. M. Daga, learned Advocate for appellant/accused challenging the judgment and order of the trial court. submitted that the learned trial judge has committed a serious error and arrived at a wrong conclusion. There is no evidence against the appellant/accused except the report. which was lodged by the accused. Learned Advocate further submitted that the conviction is based on the report lodged by the complainant which itself is not admissible in law and as such the conclusion arrived at by the learned trial court is erroneous. 6. Per contra, Mr. Parihar, learned A.P.P. has supported the judgment and order passed by the learned trial court and submitted that apar1 from the report. there is circumstantial evidence lo connect the appellant with the crime. 7. 6. Per contra, Mr. Parihar, learned A.P.P. has supported the judgment and order passed by the learned trial court and submitted that apar1 from the report. there is circumstantial evidence lo connect the appellant with the crime. 7. The prosecution evidence is in the form of (i) panch witnesses i.e. P.W.I Suresh Gotemare. P.W.II Dashrath Nimbulkar, P.W.14 Suryabhan Gaikwad. (ii) the villagers to advance "last seen theory" and ill treatment at the hands of accused to his wife i.e. P.W.3 Gomaji Warkhede, P.W.4 Sukhdeo Salam, P.W.5 Bakubai Salam. P.W.6 Sudhakar Salam, P.W.7 Mahadeo Salam. P.W.9 Udaram Kourathi. P.W. 10 Ganpat Salam and (iii) medical evidence - P.W.S Dr. Santosh Bhoi and (iv) Investigating Officers - P.W.12 PSI R. G. Mahure and P. W. 13 PSI A. R. Ayyar. 8. To establish that deceased Sulbha died homicidal death. the prosecution has relied upon the medical evidence i.e. post-mortem report (Exh.24). proved by P.W.S Dr. Santosh. P.W.S Dr. Sanlosh deposed that on 01/10/2007, the dead body of Sulbha was brought by PC Nilesh. On examination. he found following injuries :- 1] Ligature mark present round the neck, single brown. dry, hard. horizontal, complete at the elver of thyroid cartilage, running horizontal backwards: on the right side 7.5 cm. below the tip of right mustoid, on anterior 10 cm. below the tip of chin, on the left side 7.5 cm. below the tip of left mastoid and on posterior aspect of neck 10.5 cm. below the occipital protrubcranc. Total length of mark is 27 cm. Maximum breadth is 3 cm. on right side of neck. 2] Contusion present over left arm, forearm and dorsum of left hand of size 45 cm. x 8 cm. red. 3] Lacerated wound present over right eyebrow region horizontal, of size 3 cm. x 0.5 cm. x bone deep. 4] Lacerated wound present over right cheek of size 4 cm. x 1 cm. x muscle deep. 5] Lacerated wound present over left zygomajatic region, oblique of size 2 cm. x 0.5 cm. x bone deep. 6] Lacerated wound present over left side of face, 2 cm. below left eye, size 3 cm. x 0.5 cm. bone deep, oblique. 7] Lacerated wound present over face, 2 cm. below the angle of mouth on left side, oblique, size 2.5 cm. x 0.5 cm. x bone deep. 8] Lacerated wound present over face, 4 cm. x bone deep. 6] Lacerated wound present over left side of face, 2 cm. below left eye, size 3 cm. x 0.5 cm. bone deep, oblique. 7] Lacerated wound present over face, 2 cm. below the angle of mouth on left side, oblique, size 2.5 cm. x 0.5 cm. x bone deep. 8] Lacerated wound present over face, 4 cm. below the angle of mouth on right side, oblique, size 3 cm. x 0.5 cm. x bone deep. 9] Contusion present over right side of chin of size 5 cm. x 3 cm. red. 10] Lacerated wound present over inner aspect of lower lip size 4 cm. x 1 cm. x muscle deep. 11] Lacerated wound over inner aspect of upper lip, size 3 cm. x I cm. x muscle deep. 12] Multiple abrasion three in number, crescentic shaped of size varying from 1 cm. x 0.2 cm. to 0.7 cm. x 0.1 cm. red present over right side of neck. 13] Multiple abrasion (six in number present over abdominal wall on right side, size varying from 4 cm. x 3 cm. to 2 cm. x 1 cm. red. 14] Multiple abrasion (ten in number present over tip of right shoulder, size varying from 1 cm. x I cm. to I cm. x 0.5 cm. red. 15] Multiple Abrasion (thirteen in number) present over back of trunk sizes varying from 5 cm. x 2 cm. to 2 cm. x 1 cm. red. 16] Multiple abrasion (17) in number present over left buttock sized varying from 5 cm. x 1.5 cm. to 1 cm. to 0.5 cm. red. 17] Multiple abrasion (27 in number) present over right lower limb sizes varying from 6 cm. x 2 cm. to 0.5 cm. to 0.5 cm. red. 18] Multiple abrasion (29 in number) present over left lower limb, sizes varying from 5 cm. x 1.5 cm. to 1 cm. to 1 cm. red. 19] Multiple abrasion (six in number) present over back of right elbow, seizes varying from I cm. x I cm. to 0.5 cm. x 0.5 cm. red. 20] Multiple abrasion (four in number) present over back of left elbow seizes varying from 1 cm. x 1 cm. to 0.5 cm. to 0.5 cm. red. He further deposed that on intell1al examination, he found the following: a] Head - Underscalp haematoma present over both parital region size 12 cm. x 10 cm. x 0.5 cm. red. 20] Multiple abrasion (four in number) present over back of left elbow seizes varying from 1 cm. x 1 cm. to 0.5 cm. to 0.5 cm. red. He further deposed that on intell1al examination, he found the following: a] Head - Underscalp haematoma present over both parital region size 12 cm. x 10 cm. red. Meninges congested. Subdural haematoma present over right patiral region about 500 ml red. Brain congested. b] Thorax - Haematoma present posterior wall of chest on left side, size approximately 10 cm. x 10 cm. red. Fracture of 3rd and 4th ribs present on both sides, on posterior corresponding plura torn. Both lungs congested. On dissection of neck, haematoma found in neck muscles. c] Abdomen - Haematoma present in public region of wall of size 8 cm. x 7 cm. and blood present in buccal cavity stomach contains about 150 ml. brownish fluid. No peculiar odour. Mucosa congested. Organs of generation congested. Uterus non-pregnant. P.W.8 Dr. Santosh opined that the cause of probable death is "ligature strangulation associated with head injury". According to him, the injuries could be possible if assault is made having a stone in the palm and dealt continues blows thereof on different parts of the body. He further opined that if the saree is tied around the neck and pulled from both sides, the injuries like ligature marks as mentioned above could be possible. If blows are dealt repeatedly on face by means of hiwar stick, injuries mentioned on the face of the deceased could be possible. The medical evidence is not seliously challenged by the appellant/accused. 9. P.W.2 Vinaya Deshpande is the Additional Nursery Midwife (A.N.M.) and was attached to Primary Health Centre, Sawandri. She deposed that the family planning operation was performed at the request of deceased Yashoda Kamble and an amount of Rs.150/- was given to her as per the Government scheme. A certificate was also issued to deceased Yashoda. 10. P.W.3 Gomaji Warkhade is the witness on the relations between the accused and his wife, who has not supported the case of the prosecution and was declared hostile. Similar is the case ofP.W.4 Sukhdeo Salame, P.W.S Bakubai Salam, P.W.6 Sudhakar Salam and P.W.? Mahadeo Salam. 11. P.W.9 Udaram Kawarati is the witness examined by the prosecution on the point of accused last seen with his wife. Similar is the case ofP.W.4 Sukhdeo Salame, P.W.S Bakubai Salam, P.W.6 Sudhakar Salam and P.W.? Mahadeo Salam. 11. P.W.9 Udaram Kawarati is the witness examined by the prosecution on the point of accused last seen with his wife. This witness also has not supported the prosecution case and was declared hostile. In the cross-examination by learned APP, he has stated that he saw the accused with his wife and son proceedings towards village Sawandri. At that time, one Chandu Yuvnate was with him. On enquiry with the accused, as to where they are proceeding, the wife of accused Yashoda replied that they are going to attend function arranged for Ganesh festival. 12. P.W.10 Ganpat Salam is the witness on the point of relations between accused and his wife. But this witness is of not much help as he turned hostile. 13. P. W.I2 PSI Raghunath Mahure is the Investigating Officer. He gives details about the investigation such as seizure of articles namely stone stained with blood, stick stained with blood, inquest panchanama, arrest of the accused, seizure of clothes, recovery of stone at the instance of accused and recording of the statements of the witnesses. P.W. L3 PI Ashok Ayyar is the witness who registered the report lodged by the appellant accused. He deposed that accused lodged report on 01/10/2007 about killing his wife by assaulting by means of stone. 14. P.W.14 Suryabhan Gaikwad is a panch witness on seizure memo of stone and memorandum statement. But, he has supported the prosecution case and turned hostile. 15. The case of the prosecution is that the accused raised quarrel with his wife on account of an amount, which received towards family planning operation and appellant was enraged and committed murder of his wife by tying saree around her neck and pelting stone on her head. To prove the fact that deceased Sulabha @ Yashoda Kamble died homicidal death, the prosecution has relied upon the medical evidence. The medical evidence is not seriously challenged by the appellant/accused. The evidence of P.W.8 Dr. Santosh Bhoi clearly establishes the death of Sulabha being homicidal death. 16. The next important question for consideration is the complicity of the appellant/ accused in the said offence. The prosecution heavily relied on the recovery of stone at the instance of accused, the blood stained clothes, the C.A. Report and the report lodged by the accused. 17. Santosh Bhoi clearly establishes the death of Sulabha being homicidal death. 16. The next important question for consideration is the complicity of the appellant/ accused in the said offence. The prosecution heavily relied on the recovery of stone at the instance of accused, the blood stained clothes, the C.A. Report and the report lodged by the accused. 17. Learned Advocate Mr. Daga submitted that the court below has proceeded to appreciate the evidence of the prosecution on the backdrop of the report lodged by the accused/appellant. He further submitted that learned trial court has placed reliance on the report and proceeded that there was a quarrel between the accused and his wife on the ground of the amount of family planning operation and on that ground the accused has committed murder of his wife. To support its case. the prosecution has relied on the evidence of P.W.2 Vinaya Deshpande, P.W.9 Udaram Kawarti, who is witness on last seen theory of the prosecution, the recovery of blood stained stone at the instance of accused, blood stained clothes of the accused as well as the victim. Learned Advocate Mr. Daga submitted that though the CA. Report was received with remarks that stone and the clothes of deceased was having human blood, the group of the blood was not detected. Mr. Daga submitted that the CA. Report is not supporting to the case of the prosecution. 18. I have gone through the record and the evidence. I find considerable merit in the submission of learned Advocate Mr. Daga. The learned trial Judge while considering the evidence, observed that the accused reached in police station and lodged repol1 regarding killing of his wife by means of stone and thereupon registered offence vide Crime No. 190/2007. The learned trial Judge has observed that" 13. ..... It is pertinent to note at this juncture that defence docs not dispute about the signature of accused on report Exh.59. What has been challenged in the cross-examination was regarding genuineness of report Exh.59 by suggesting that signature of accused was obtained on blank paper. It is not worth of acceptance that the police officer would obtain such extra judicial confessional statement from the accused that too in the night of 30.09.2007 as suggested during the course of cross-examination. What has been challenged in the cross-examination was regarding genuineness of report Exh.59 by suggesting that signature of accused was obtained on blank paper. It is not worth of acceptance that the police officer would obtain such extra judicial confessional statement from the accused that too in the night of 30.09.2007 as suggested during the course of cross-examination. It was also suggested to this witness that in the night of 30.09.2007 accused reached to P.S. Kalmeshwar and informed about abduction of his wife which is denied by this witness. Had there been abduction of wife of accused, he definitely would have informed about this fact to neighbourer and others but such evidence is wanting in this case. It is further to be noted that in fact as per the report Exh.59 accused was all the while present at the place of incident and there Fore, the suggestion put during the course of cross-examination that in the night of 30.09.2007 accused reached to police station is not worth of acceptance. 14. It is further to be noted that there was no reason for P.W.9 Udaram Kawarati to depose against the accused by stating that he and Chandu Yuvnate had seen the accused proceeding along with his wife and son to Sawandri and they had a dialog with this witness. There is nothing in his evidence even to point out that he had made exaggeration in his evidence. On the very next day, according to him. it was reported that Sulabha is dead. As stated above, even accused did not whisper about abduction of his wife in the night of 30.09.2007 to anybody. The conduct of accused appears to be unnatural. I n the light of such facts on record I am of the view that only because police statement was read over by this witness on the day of recording of his evidence that in itself would not take away his evidence." 19. The observations of the learned trial Judge clearly indicate that the learned Judge has proceeded to consider the evidence on record by placing implicit reliance on the report lodged by the accused. It is well settled position of the law that the trial court is not entitled to rely upon the contents of the confessional report lodged by the accused. The observations of the learned trial Judge clearly indicate that the learned Judge has proceeded to consider the evidence on record by placing implicit reliance on the report lodged by the accused. It is well settled position of the law that the trial court is not entitled to rely upon the contents of the confessional report lodged by the accused. Proof of confessional report lodged by the accused is prohibited by Section 24 of the Evidence Act and the report is admissible for a limited extent of proving the Fact of giving in Formation 'as an evidence of his conduct under Section 8 of the Evidence Act. The scope of admissibility of confessional report lodged by the accused is considered by the Apex Court in of tenly referred case of Aghnoo Nagesia Vs. State of Bihar ( AIR 1966 SC 119 ). The Apex Court in Aghnoo Nagesia's case observed that" 13. Now. a confession may consist of several parts and may reveal that not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as an non-confessional statement. Each part discloses some incriminating fact i.e. some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence. not only that admission, but also every other admission of an incriminating fact contained in the statement is part of the confession." 20. Learned Advocate Mr. Daga further placed reliance on the judgment of this Court in the case of Vetal Bhagwan Manelle Vs. State of Mahamshtra, reported in 2006 ALL MR (Cri) 367. He submitted that the view taken by this court in the said case is squarely applicable to the present case. I have gone through the said case and] find considerable merit in the submission of learned Advocate Mr. Daga. State of Mahamshtra, reported in 2006 ALL MR (Cri) 367. He submitted that the view taken by this court in the said case is squarely applicable to the present case. I have gone through the said case and] find considerable merit in the submission of learned Advocate Mr. Daga. In reply, learned APP submitted that apart From the report lodged by the accused, the prosecution case is also based on the circumstantial evidence i.e. witness establishing last seen theory. recovery of blood stained stone. stick and blood stained clothes of the deceased as well as blood stained scarf recovered at the instance of the accused. It is the well settled principal of the law that in case of circumstantial evidence, the circumstances arc to be proved independently. In the present case. the circumstances on which the prosecution has placed reliance are the circumstances in furtherance of the report lodged by the accused i.e. motive, opportunity, provocation. the weapon used and the intention which are dependent upon the report lodged by appellant/accused. Once the report lodged by the accused, which is inculpatory and inadmissible, the other circumstances fall too shalt to connect the appellant/accused with the crime. 21. The learned trial court has observed that because of the quarrel, the accused got enraged and in the heat of passion said act was committed by the accused and therefore, it would amount to culpable homicide not amounting to murder. Learned trial curt further observed that the appellant/accused had no intention to commit murder of his wife. however implicating injuries more specifically inflicting ligature mark of strangulation by means or saree of deceased would prove that the accused had knowledge that it may result to death and, therefore, accused is liable to be convicted of the offence punishable under Section 304. Part-II of Indian Penal Code. These observations of the trial court are based on placing implicit reliance on the report lodged by the accused. 22. The record also discloses that the incriminating material of strangulation on which learned trial court is recording conviction. is not put to the accused in his statement under Section 313 of Cr.P.C., which causes serious prejudice to the accused. Such course adopted by the learned trial court is not sustainable. 23. 22. The record also discloses that the incriminating material of strangulation on which learned trial court is recording conviction. is not put to the accused in his statement under Section 313 of Cr.P.C., which causes serious prejudice to the accused. Such course adopted by the learned trial court is not sustainable. 23. In the light of above discussion and after considering the entire evidence led by the prosecution, I have no hesitation to hold that the prosecution has failed to bring home the guilt against the accused beyond reasonable doubt and the trial court committed an error in holding that the act committed by the accused could amount to culpable homicide not amounting to murder. 24. In the result. the appeal is allowed. The conviction of sentence in Sessions Trial No.48/2008 is hereby quashed and set aside. The appellant/accused Prabhakar Vithal Kamble is acquitted of the charge of having committed an offence punishable under Section 304, Part-II of Indian Penal Code. The appellant/accused is ordered to be set at liberty forthwith. if not required in any other case. The amount of fine, if paid by the appellant, be returned to the appellant. Appeal allowed.