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2012 DIGILAW 1020 (GAU)

Tapash Sarkar v. State of Tripura

2012-08-29

I.A.ANSARI, SWAPAN CHANDRA DAS

body2012
JUDGMENT S.C. Das, J. 1. This criminal appeal under Section 374 of the Criminal Procedure Code, 1973, is directed against the judgment and order of conviction and sentence, dated 03.05.2006 and 05.05.2006, respectively, passed, in Sessions Trial No. 98(WT/A) of 2005, by learned Sessions Judge, West Tripura, Agartala, whereby the learned Sessions Judge has held the appellant guilty of committing an offence punishable under Section 302 of IPC and, accordingly, convicted and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 1,000/- and, in default, to suffer rigorous imprisonment six months. We have heard Mr. R. Datta, learned counsel for the appellant, and Mr. D. Sarkar, learned Public Prosecutor for the State respondent. 2. Facts of the case, in short, are as under: (i) On 10.04.2005, at about 6.30 am, accused Tapash Sarkar, accompanied by his two minor daughters, namely, Kumari Trimon Sarkar(12 years) and Kumari Amrika Sarkar(8 years), arrived at Amtali RS. and reported to the officer, on duty, that he married Dipti Sen (Sarkar), D/O Manmohan Sen of Village-Andhiyacherra, RS. Pecharthal, District- North Tripura, in the year 1993 and, thereafter, they lived and cohabited as husband and wife, his wife was aged about 28 years at that time, they were blessed with two daughters- the elder one, Trimon, was reading in Class-VI and the younger one, Amrika, was reading in Class-II and that after marriage, they used to live at different places as tenant and, in the year 2000, they constructed their own house at Laxmancherra and started living there. Since after they started living in their house at Laxmancherra, his wife often used to go out of the room during night time and he suspected the character of his wife. On the intervening night of 09.04.2005 and 10.04.2005, after taking dinner, they went to bed and fell asleep. At about 12 O'clock, his wife went out of the room and returned after about half an- hour. Again, at about half-past-two, his wife went out of the room and returned at about 3 O'clock. He charged his wife that she had committed vile act on going outside and, then, returned home. On that issue, a quarrel started and it reached its peak. Again, at about half-past-two, his wife went out of the room and returned at about 3 O'clock. He charged his wife that she had committed vile act on going outside and, then, returned home. On that issue, a quarrel started and it reached its peak. At that time, he took out an axe, which was kept below the 'Madia' (a bamboo made platform) of his room and dealt a blow on the head of his wife, Dipti, and as a result, Dipti received fatal injury and died on the spot It was about 3.15 am, when the incident of assault had occurred. (ii) Sub-Inspector, Milan Chandra Datta (PW. 13), the police officer on duty, recorded the statement of the accused as First Information Report and Sub-Inspector, Manindra Ghosh (PW. 14) was entrusted with the investigation of the case. (iii) On taking the charge of investigation, SI Manindra Ghosh(PW. 14) arrested the accused on the basis of what the accused had himself disclosed and, thereafter, along with the accused and his two said minor daughters, left for the place of occurrence i.e. the house of the accused at Laxmancherra. Door of the hut was found closed, but not bolted from inside and the accused opened the door. In the meantime, many villagers had reached the spot and they had found deceased Dipti Sarkar lying dead on the floor of the hut. The accused, in front of the gathered villagers, confessed that he had killed his wife by striking a blow on her head with an axe. The police officer prepared, in presence of witnesses, inquest report over the dead body of deceased Dipti. The accused took out a blood stained axe from the room and it was seized in presence of witnesses. Blood stained napkin of the accused, which he was wearing at the time of the occurrence, and the blood stained pillow, were also seized. Dead body of the deceased was sent to the morgue with a requisition for post-mortem examination and Dr. Jayanta Sankar Chakraborty (PW. 6) conducted post-mortem examination over the said dead body. Blood stained napkin of the accused, which he was wearing at the time of the occurrence, and the blood stained pillow, were also seized. Dead body of the deceased was sent to the morgue with a requisition for post-mortem examination and Dr. Jayanta Sankar Chakraborty (PW. 6) conducted post-mortem examination over the said dead body. The investigating officer examined all material witnesses including the two minor daughters of the accused and the deceased, namely, Kumari Trimon Sarkar and Kumari Omrika Sarkar and recorded their statements under Section 161 Cr.P.C. The investigating officer also produced the minor daughters before the Chief Judicial Magistrate, West Tripura, Agartala, for recording their statements under Section 164 Cr.P.C. and, accordingly, a Judicial Magistrate, First Class, Sri Arindam Pal (PW. 11), recorded their statements on 11.04.2005. The investigating officer also made a prayer before the learned Chief Judicial Magistrate for passing appropriate order to accommodate the minor children of the deceased in any destitute home and accordingly, order was passed by the learned Magistrate and the minor children were kept in a destitute home. On completion of investigation, the investigating officer submitted charge-sheet against accused, Tapash Sarkar, for commission of offence punishable under Section 302 of IPC. (iv) Learned Sessions Judge, West Tripura, Agartala, framed, on 01.10.2005, charge against the accused for commission of offence punishable under Section 302 of IPC. To the charge, so framed, the accused pleaded not guilty and claimed to be tried. (v) In course of trial, prosecution examined as many as 14 witnesses. Out of them, P W 12 is one of the daughters of the accused and the deceased and an eye witness to the occurrence. PWs. 5 and 9 are the brothers of the deceased, who, on receipt of information of the death of their sister, Dipti Sen(Sarkar), came to the place of occurrence and found the dead body of Dipti and they were informed about the occurrence by PW. 12, Trimon Sarkar. As far as PWs. 1, 2, 3, 4, 7 and 8 are concerned, they are all neighbours of the accused and they arrived at the place of occurrence (i.e. at the house of the accused), when police brought the accused along with his daughters. PW.6 is the Surgeon, who conducted post-mortem examination over the said dead body. PW. As far as PWs. 1, 2, 3, 4, 7 and 8 are concerned, they are all neighbours of the accused and they arrived at the place of occurrence (i.e. at the house of the accused), when police brought the accused along with his daughters. PW.6 is the Surgeon, who conducted post-mortem examination over the said dead body. PW. 11 is the Judicial Magistrate, who recorded the statements of minor daughters of the accused under Section 164 Cr.P.C. PWs. 13 and 14 are police officers and out of them, PW. 13 recorded the FIR and PW. 14 investigated the case and filed the charge sheet. (vi) After closure of the prosecution evidence, accused was examined under Section 313 of Cr.P.C. The accused adduced no evidence, the case of the defence being that of denial. 3. Learned counsel, Mr. Datta, appearing for the convict appellant, has submitted that the accused used to suspect the character of his wife and, on the night of occurrence, she went out of their bedroom twice and, on that issue, there was a quarrel and, in the midst of quarrel, the accused dealt one blow on the head of his wife, which suggests that the accused did not intend to commit murder and that the offence, in the facts and circumstances of the case, shall come under the purview of Exception 4 of Section 300 IPC and the accused may, therefore, be held guilty of culpable homicide not amounting to murder punishable under Section 304 (Part-II) IPC and he may be released from custody, for, he has already suffered long detention, in the meantime, which is commensurate with the gravity of the offence committed by him. 4. On the other hand, learned P.P., Mr. Sarkar, has submitted that a blow with an axe on the head was sufficient to cause death in the ordinary course of nature and the deceased died instantaneous death. The motive of the accused to commit murder is clear from the facts and circumstances of the case inasmuch as he used to suspect the character of his wife, though suspicion had no basis, because there is not even an iota of evidence in support of such suspicion. The learned Public Prosecutor, therefore, submits that the accused has been rightly convicted and sentenced and no interference is called for. 5. The learned Public Prosecutor, therefore, submits that the accused has been rightly convicted and sentenced and no interference is called for. 5. It is not disputed that the accused, along with the unfortunate deceased Dipti Sen(Sarkar) and their two minor daughters, Trimon Sarkar(PW. 12) and Amrika Sarkar, used to reside in a hut, at Laxmanpara, under Amtali Police Station and, on the intervening night of 09.04.2005 and 10.04.2005, after taking dinner, the accused and his wife went to sleep on the floor of the hut and their daughters on the 'Macha' (Bamboo made platform) of the same hut. 6. Crux of the prosecution's case is that the accused appellant used to suspect the character of his wife. On the fateful night of 9/10.04.2005, wife of the accused allegedly went out of the hut for the reason best known to her, once at about 12 O'clock and returned after about half-an-hour and, again, at about 2.30 O'clock and returned at about 3.00 O'clock and at that time, the accused, suspecting that she might have committed some vile act by going out of the hut of the accused, charged her with act of infidelity and a quarrel between the husband and wife ensued. In the midst of quarrel, the accused picked up an axe, which was lying under the bamboo made cot, and inflicted a blow on the head of his wife and, having received fatal injury on her head died instantaneously. Thereafter, at dawn, with his daughters, the accused went to Amtali Police Station and lodged the FIR as mentioned above. 7. Let us, now, travel through the evidence on record. 8. PW. 12 is the sole eye witness of the occurrence. Thereafter, at dawn, with his daughters, the accused went to Amtali Police Station and lodged the FIR as mentioned above. 7. Let us, now, travel through the evidence on record. 8. PW. 12 is the sole eye witness of the occurrence. In her deposition, she has stated that on 09.04.2005, she along with her sister Amrika, and their parents were sleeping in their dwelling hut and while he (PW 12) and her sister were sleeping on a 'macha' (bamboo made cot), their parents were sleeping on the floor of the hut and at dead hours of the night, hearing shouts they woke up and on being so woken up, she found her father hurling a blow on the head of her mother by an axe, and, on being so hit, her mother fell down on the floor and that after having killed her mother, her father took them to Amtali Police Station and her father made a statement to the police officer. PW12 has clarified that the axe, generally, used to be kept under the bamboo made cot and her father killed her mother taking out the axe. 9. The evidence, so given by PW12 is found to be very cogent, natural and truthful. It is not disturbed in any manner in the cross examination. Her solitary evidence is sufficient to hold that the accused did give blow with an axe on his wife's head and she died instantaneously. 10. PWs. 5 and 9 are the brothers of the deceased. They made categorical statements that on the day following the night of incident, they were informed by Pechartal P.S. about the murder of their sister, Dipti Sarkar, and they rushed to Agartala and found her dead body in the morgue, they met Trimon (PW. 12) and Amrika, who narrated to them the occurrence to the effect that their sister, Dipti, was murdered by the accused on the previous night by striking a blow with an axe on her head. 11. In fact, PW. 12, in her deposition, stated that her maternal uncles, Swapan Sen(PW. 9) and Ratan Sen (PW.5), had visited Amtali P.S. on the following day and met her in the hospital and she had narrated the whole incident to her maternal uncles in respect of the murder of her mother. Thus, the evidence of PWs. 5 and 9 is corroborated by the evidence of PW. 9) and Ratan Sen (PW.5), had visited Amtali P.S. on the following day and met her in the hospital and she had narrated the whole incident to her maternal uncles in respect of the murder of her mother. Thus, the evidence of PWs. 5 and 9 is corroborated by the evidence of PW. 12, and we find no reason to discard the evidence of PWs. 5 and 9. Their evidence has also not been shaken in any manner in cross-examination. 12. PW. 6 conducted post-mortem examination over the dead body of the deceased Dipti and he has stated that on examination he found, lacerated injury on the right parieto occipital region, situated 2 cm right to midline and 12 cm above the level of occipital protuberance, size of the injury being 5 cm X 0.8 cm X bone depth. The doctor (PW6) opined that such injury was sufficient to cause death of a person, and he has also opined that the injury might have been caused by a hard substance like blunt side of the axe. There was no cross-examination of the witness by the defence. 13. The evidence, as discussed above, is sufficient to hold that "Dipti", wife of accused/appellant, died on receipt of a head injury inflicted by the accused with an axe on the intervening night of 9-10.04.2005 at about 03.15 hours and such injury was sufficient, in the ordinary course of nature to cause death of a person. 14. Certain interesting points surfaced before us in the course of hearing of the appeal. These are-(i) Whether the FIR, lodged by the accused, is admissible in evidence against him? (ii) How far the conduct of the accused, in the facts and circumstances of the present case, is relevant? (iii) Whether the discovery of the dead body and the weapon of offence (axe) from the hut of the accused, based on the confessional statement made by the accused in the FIR, is admissible? (iv) Whether the statements of the witnesses, in respect of previous conduct of the accused, are admissible? 15. Let us, now, discuss the above points hereunder: Whether the FIR lodged by the accused is admissible in evidence against him? 16. Admittedly, the FIR, in this case, was lodged by the accused stating the facts, in detail as reproduced at the very inception of this judgment. PW. 15. Let us, now, discuss the above points hereunder: Whether the FIR lodged by the accused is admissible in evidence against him? 16. Admittedly, the FIR, in this case, was lodged by the accused stating the facts, in detail as reproduced at the very inception of this judgment. PW. 12 has, in her deposition, stated that after killing her mother, her father (the accused) had taken them to Amtali Police Station, and made a statement to the police officer. The FIR is marked as Exbt.9. It is elaborate and exhaustive, containing the marital status, place of residence, motive, circumstances, whereunder the offence was committed, the weapon of offence used and the intention behind the commission of the offence as well as the subsequent conduct of the accused. This FIR is to be read as a whole and severability is not permitted by law. 17. In the case of Aghnoo Nagesia Vs. State of Bihar reported in AIR 1966 SC 119 , the Supreme Court had the occasion to discuss about the admissibility of an FIR lodged by an accused with exculpatory statement. It was almost a similar case as that of the case at hand. In Aghnoo Nagesia case (supra), the accused committed murder of four persons (close relatives) and, thereafter, produced himself before the Officer in-charge of the police station and narrated the occurrence, in detail, as to his motive, preparation, opportunity, weapon of offence used, the intention and concealment of the weapon and the subsequent conduct, etc. and his statement was reduced into writing by the police officer and his said statement was relied upon by the prosecution at the trial. The Supreme Court, in Aghnoo Nagesia case (supra), has divided the statement, made by the accused, into 18 parts and has observed that the statement disclosed the motive for the murder, the movement and opportunities of the appellant before the murder, the intention behind the murder, the actual execution of the offence of murder and the concealment of the dead body as well as the weapon of offence, etc. The Court has observed that the statement, made by the accused in Aghnoo Nagesia case (supra) before the police officer, was a confession and proof of confession, made before a police officer or in the presence of the police officer, is excluded by Sections 24, 25 and 26 of the Evidence Act as a matter of public policy and, therefore, the entire statement, with all its particulars including the admission of minor incriminating fact, has also to be excluded unless proof of it is permitted by some other Sections, such as, Section 27 of the Evidence Act. Little substance and content would be left in Sections 24, 25 and 26 if proof of admission of incrirninating facts is permitted to be used as a confessional statement. In paragraph 13 of its decision in Aghnoo Nagesia case (supra), the Court held thus: 13. Now, a confession may consist of several parts and may reveal 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 a 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. 18. In paragraph 18 of Aghnoo Nagesia case (supra), the Court held thus: 18. If 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 S 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. If 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 S 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 S. 25 is lifted by S. 27. 19. In paragraph 19 of Aghnoo Nagesia case (supra), the Court held- ....We think that the separability test is misleading, and the entire confessional statement is hit by S. 25 and save and except as provided by S. 27 and save and except the formal part identifying the accused as the maker of the report, no part of it could be tendered in evidence. 20. In the case of Faddi Vs. State of Madhya Pradesh reported in AIR 1964 SC 1850 , wherein the accused had killed his stepson and, thereafter, put the dead body in a well and, subsequently., lodged an FIR informing about the incident to the police officer making some exculpatory statement, the Supreme Court, under such circumstances of the fact held that the First Information Report, being neither a confession nor a statement made to a police officer during the course of investigation, not barred either under Section 25 of the Evidence Act or Section 162 of Cr.P.C. The Court observed that where the person, who lodges the first information report regarding the occurrence of a murder, is subsequently made accused of the offence and tried, and the report, lodged by him, in the form of First Information Report, is not a confession, but an admission by him of certain facts, which have a bearing on the question to be determined by the Court, viz., how and by whom the murder was committed or whether the statement of the accused, in the court, denying the correctness of certain statements of the prosecution witnesses is correct or not, the first information report is admissible to prove his admissions, which are relevant under Section 21. 21. 21. The principle of law, laid down by the Supreme Court, in the case of Aghnoo Nagesia (supra), is applicable to the present case and the statement, made by the accused, which is recorded as an FIR by the police officer, is inadmissible, because the FIR contains a confessional statement of the accused and various statements made in the said confession, cannot be separated from each other and cannot be read in evidence against him except to the extent as may be covered by Section 27. How far the conduct of the accused, in the facts and circumstances of the case, is relevant? 22. PW. 12, the minor daughter of the accused, who is an eye witness to the occurrence, has stated that after killing her mother, her father (the accused), had taken her to Amtali RS. and made a statement to the police officer. Exbt.9 is the statement of the accused recorded by PW. 13. In his deposition, PW. 13 stated that on 10.04.2005, at about 6.30 am, he had recorded the statement of one Tapas Sarkar as FIR, because it had disclosed a cognizable offence. No part of the statements, contained in the FIR, is admissible because each part is linked with the other, no part is severable and, hence, no part of the statements, so contained in the FIR, is admissible in evidence, though it is a fact that by making the said statement, the accused had initiated the investigation of the offence alleged against himself 23. In Aghnoo Nagesia (supra), under almost similar facts and circumstances, the Supreme Court has further held- Section 154 of the Code of Criminal Procedure provides for the recording of the first information. The information report as such is not substantive evidence. It may be used to corroborate the informant under S. 157 of the Evidence Act or to contradict him under S. 115 of the Act, if the informant is called, as a witness. If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under S. 8 of the Evidence Act..... 24. Section 8 of the Evidence Act provides thus- 8. Motive, preparation and previous or subsequent conduct.- Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. 24. Section 8 of the Evidence Act provides thus- 8. Motive, preparation and previous or subsequent conduct.- Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1.-The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2.-When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant. 25. In the case at hand, evidence of PW. 12 makes it clear that after commission of crime, the accused, along with PW. 12 and her younger sister, appeared at Police Station and narrated the occurrence and, thereafter, he led the police party to his house and, in presence of PWs. 1, 2, 3, 4, 7 and 8, opened the door of his hut, showed the dead body of his wife and produced the weapon of offence before the police officer, who seized it by preparing seizure list in presence of the witnesses. This conduct of the accused and his surrender before the police officer at the Police Station with his daughters and his subsequent leading to recovery of the dead body and the weapon of offence are admissible as a conduct of the accused relevant for consideration of the Court as provided under Section 8 of the Evidence Act. In the facts and circumstances of this case, appearance of the accused at the police station and his giving of the information is admissible against him as evidence of his conduct. Whether the discovery of the dead body and the weapon of offence (axe) from the hut of the accused, based on the confessional statement made by the accused in the FIR is admissible? 26. PW. Whether the discovery of the dead body and the weapon of offence (axe) from the hut of the accused, based on the confessional statement made by the accused in the FIR is admissible? 26. PW. 13 recorded Exbt.9 (FIR) and PW. 14 was entrusted with the investigation of the case. PW. 14 stated that he arrested the accused at the Police Station and, thereafter, along with the accused, left for the place of occurrence (i.e. the house of the accused). PWs. 1, 2, 3, 4, 7 and 8, the co-villagers of the accused, also assembled in the house of the accused, when the police arrived with the accused. The accused opened the door, which was closed, but not bolted from inside. All the witnesses have stated that they found wife of the accused lying on the floor of the hut in a pool of blood and that the accused, taking out the weapon of offence from the hut, handed over the same to P W. 14 and the axe was seized by preparing a seizure list. In his examination under Section 313 Cr.P.C., in answer to question No. 6 about the seizure of the weapon of offence (axe), the accused admitted that he did hand over the axe to the police officer. 27. In Aghnoo Nagesia (supra) the Supreme Court observed that the statement, made by the accused, recorded as FIR by a police officer, is excluded in view of the provisions contained in Sections 24, 25 and 26 of the Evidence Act; but, to the extent that the statement led to discovery of the fact, in consequence of such information given by accused, the confession is admissible in evidence. In paragraphs 14 and 17 of its decision in Aghnoo Nagesia (supra), the Supreme Court held thus: 14. If proof of the confession is excluded by any provision of law such as S. 24, S. 25 and S. 26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section such as S. 27 of the Evidence Act. Little substance and content would be left in Ss. 24, 25 and 26 if proof of admissions of incriminating facts in a confessional statement is permitted..... 17. A little reflection will show that the expression "confession" in Ss. Little substance and content would be left in Ss. 24, 25 and 26 if proof of admissions of incriminating facts in a confessional statement is permitted..... 17. A little reflection will show that the expression "confession" in Ss. 24 to 30 refers to the confessional statement as a whole including not only the admissions of the offence but also all other admissions of incriminating facts related to the offence. Section 27 partially lifts the ban imposed by Ss. 24, 25 and 26 in respect of so much of the information whether it amounts to a confession or not, as relates distinctly to the fact discovered in consequence of the information, if the other conditions of the section are satisfied. Section 27 distinctly contemplates that an information leading to a discovery may be a part of the confession of the accused and thus fall within the purview of Ss. 24, 25 and 25. Section 27 thus shows that a confessional statement admitting the offence may contain additional information as part of the confession. Again, S. 30 permits the Court to take into consideration against a co-accused a confession of another accused affecting not only himself but the other co-accused. Section 30 thus shows that matters affecting other persons may form part of the confession. 28. Section 27 of the Evidence Act is an exception to the preceding provisions, particularly, Sections 25 and 26. Section 27 of the Act provides thus: 27. How much of information received from accused may be proved.-Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 29. Question arises whether the voluntary appearance of the accused, at Amtali Police Station, amounts to his surrender to the police officer or not. In Aghnoo Nagesia. (supra) the Supreme Court, in paragraph 21 of the judgment, has observed thus: Section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Mow, the Sub-Inspector stated he arrested the appellant after he gave the first information report leading to the discovery. In Aghnoo Nagesia. (supra) the Supreme Court, in paragraph 21 of the judgment, has observed thus: Section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Mow, the Sub-Inspector stated he arrested the appellant after he gave the first information report leading to the discovery. Prima facie, therefore, the appellant was not in the custody of a police officer when he gave the report, unless it can be said that he was then in constructive custody. On the question whether a person directly giving to police officer 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 S. 27, there is conflict of opinion. See the observations of Shah, J. and Subba Rao, J. in (1961) 1 SCR 14 : ( AIR 1960 SC 1125 ). For the purposes of the case, we shall assume that the appellant was constructively in police custody and therefore the information contained in the first information report leading to the discovery of the dead bodies and the tangi is admissible in evidence. The entire evidence against the appellant then consists of the fact that the appellant gave information as to the place where the dead bodies were lying and as to the place where he concealed the tangi, the discovery of the dead bodies and the tangi in consequence of the information, the discovery of a blood-stained chadar from the appellant's house; and the fact that he had gone to Dungi Jharan Hills on the morning of August 11, 1963. This evidence is not sufficient to convict the appellant of the offences under S. 302 of the Indian Penal Code. 30. In the case of Ganesh Bora Vs. State of Assam reported in 2004 (Suppl.) GLT 651, one of us (Ansari, J) under similar circumstances, relying on the principles laid down in of Aghnoo (supra) and State of U.P. Vs. Deomond Upadhaya, reported in AIR 1960 SC 1125 , observed, at paragraph 28, thus: 28. 30. In the case of Ganesh Bora Vs. State of Assam reported in 2004 (Suppl.) GLT 651, one of us (Ansari, J) under similar circumstances, relying on the principles laid down in of Aghnoo (supra) and State of U.P. Vs. Deomond Upadhaya, reported in AIR 1960 SC 1125 , observed, at paragraph 28, thus: 28. What becomes abundantly clear from the law laid down in Deomond Upadhaya (supra) is that when a person, not being in custody, approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, which has a bearing on the charge, which may be made against him, he may be deemed to have surrendered himself to the police and may be deemed to be in the "custody" of the police officer within the meaning of Section 27 of the evidence Act and such a person can be assumed to be constructively, in police custody. 31. In Rajiv Phukan & Anr. Vs. State of Assam reported in 2009(2) GLT 414, one of us (Ansari, J), while speaking for the Full Bench on the scope of Section 27 of the Evidence Act, observed thus- While considering the scope of Section 27, the first condition, is that there must be discovery of a fact, albeit a relevant fact, in consequence of information received from a person, who is accused of an offence. The second condition is that the discovery must be deposed to. This, means that the factum of discovery has to come on record by way of evidence and not otherwise. The third condition is that at the time of receiving the information, the accused must have been in police custody. The fourth, but, perhaps, the most important condition is that only "so much of the information", as relates 'distinctly' to the 'fact thereby discovered', is admissible. The rest of the information, which an accused person might have given, must be kept excluded. The expression, 'so much of the information', means only that part of the information, supplied by the accused, which is the direct and immediate cause of the discovery. The rest of the information, which an accused person might have given, must be kept excluded. The expression, 'so much of the information', means only that part of the information, supplied by the accused, which is the direct and immediate cause of the discovery. The idea behind use of a confessional statement made by a person accused of any offence to the police is that if a fact is actually discovered in consequence of the information given by the accused, it provides some guarantee of truth to that part of the information, which was the clear, immediate and approximate cause of discovery. The word 'distinctly', appearing in Section 27, means 'directly', 'indubitably', 'strictly' and 'unmistakably'. The word has been advisedly used to limit and define the scope of the provable information. The phrase 'distinctly' relates 'to the fact thereby discovered' and is the linchpin of the provision. This phrase refers to that part of the information, supplied by the accused, which is the direct and immediate cause of the discovery. A fact discovered is not same as the recovery of an incriminating material or object, such as, a weapon of assault, etc. The discovery fact is not to be confused or equated with the recovery of incriminating material object, such as, weapon of assault, etc. The fact discovered embraces the place from where the object was produced/recovered and the knowledge of the accused as regards such subject matter. The expression, 'fact discovered', includes not only the physical object produced, but also the place from where it was produced and the knowledge of the accused as to such fact. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which "distinctly relates to the fact thereby discovered"; but the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information, which is sought to be admitted into evidence, must be such as would make the information understandable to a man of ordinary prudence. Mere statement that the accused led the police and the witness to the place, where he had concealed the articles is not indicative of the information given. The extent of information, which is sought to be admitted into evidence, must be such as would make the information understandable to a man of ordinary prudence. Mere statement that the accused led the police and the witness to the place, where he had concealed the articles is not indicative of the information given. Section 27 would, therefore, not be attracted to a case, wherein no witness deposes that the accused person, while in the custody of the police, gave information, which, on being acted upon, led to the discovery of a fact. In view of the fact that Section 27 makes only "so much of the information, as relates distinctly to the fact thereby discovered" provable, it clearly follows that a court is required to know as to what exactly the accused had stated to the police so that the court before acting upon the evidence given knows as to how much of the information given by the accused relates 'distinctly' to the fact thereby discovered. The word, 'distinctly' has been used in order to define the scope of provable information. 32. In the case at hand, the accused voluntarily appeared at Amtali P.S. before PW. 13 and made a statement, recorded as Exbt. 9 (FIR) confessing to have killed his wife. The moment the accused appeared before the police officer, at the police station, narrated the occurrence and his statement was recorded as Exbt.9, it is presumed that the accused presented and/or surrendered himself to the custody of the police officer. Hence, for all practical purpose, the accused was in the custody of police, when his statement was recorded as FIR. The statement, so made, though confessional statement, is admissible in evidence inasmuch as based on the statement, the dead body of the wife of the accused and the weapon of offence were recovered and seized. Thus, the accused knew that his wife was dead; he knew what was the weapon of offence and where the weapon was. 33. The extra-judicial confession, alleged to have made by the accused to the neighbours, was in presence of the police and, therefore, to that extent, it is not admissible in evidence; but the recovery of the weapon of offence, at the instance of the accused from his hut, is an admissible piece of evidence. 33. The extra-judicial confession, alleged to have made by the accused to the neighbours, was in presence of the police and, therefore, to that extent, it is not admissible in evidence; but the recovery of the weapon of offence, at the instance of the accused from his hut, is an admissible piece of evidence. The accused has stated, in his examination under Section 313 of Cr.P.C., that the axe was taken out by him and handed over to police, which was seized. 34. The evidence on record, therefore, is enough to hold that the accused had killed his wife on the intervening night of 09.04.2005 and 10.04.2005. Whether the statements of this witnesses in respect of previous conduct of the accused are admissible? 35. Regarding the motive behind the murder, let us examine the evidence, on record, a little more closely. 36. PW. 1, in his examination-in-chief, has stated that the relation between Tapash and his wife was strained and Tapash used to assault his wife regularly. In cross-examination, he stated that Tapash used to suspect his wife and relating to this, he used to assault her. 37. PW. 3, in cross-examination, has stated that the relation between Tapash and his wife was strained and Tapash used to suspect his wife. 38. PW. 4 has deposed, in her evidence that Dipti used to weep in her presence and used to tell her that her husband, regularly, used to torture her. 39. In his evidence, PW5 has stated that the relation between his sister (deceased) and Tapash was strained, Tapash used to assault his sister and in his cross-examination, he stated that Tapash used to suspect his wife's character and the matter was settled. 40. It is the evidence of PW. 7 that on many occasions, Dipti told her that the accused (i.e. Tapash), regularly assaulted her, Dipti had two daughters, they were brilliant students and used to get place in the school examinations and that Dipti used to show keen interest in the studies of her daughters. 41. In his evidence, PW.9 has stated that Dipti, as and when visited their house, told them that her husband regularly commit torture on her. In his cross-examination, PW9 has stated that accused Tapash used to suspect Dipti without any basis. 42. The evidence, discussed above, makes it clear that the appellant used to suspect the character of his wife. 41. In his evidence, PW.9 has stated that Dipti, as and when visited their house, told them that her husband regularly commit torture on her. In his cross-examination, PW9 has stated that accused Tapash used to suspect Dipti without any basis. 42. The evidence, discussed above, makes it clear that the appellant used to suspect the character of his wife. Even if we presume that the deceased went out of the hut twice on the fateful night, this, in itself, could not have been a ground to kill his wife. 43. The evidence on record, as have been discussed above, shows that the accused suspected the character of his wife and, on the night of the occurrence, when the wife of the accused went out twice and returned after about half an hour, his suspicion obviously became stronger, for, he (accused) formed the view that his wife had gone astray, he charged his wife of having done vile act and this accusation gave rise to a quarrel between the two. Following the quarrel, the accused picked up the axe, which used to lie, ordinarily, under their cot and gave a blow with the blunt edge of the same, on his wife's head, causing her death instantaneously. In the background of the act of causing death by giving blow on the head of the deceased by a weapon as dangerous as axe and, on a part of the body as vital as head, there can be no escape from the conclusion that the accused did intend causing death of his wife. What is, however, important and impossible to ignore is the fact that the accused, who was already boiling inside with anger, lost his self control, because of the sudden quarrel, which took place between him and his wife and, without premeditation, caused his wife's death as described above. 44. In the circumstances mentioned above, the act of killing of the said deceased by the accused-appellant was, in our considered view, culpable homicide not amounting to murder. 45. However, since the culpable homicide not amounting to murder was caused with the intention of causing death of the said deceased, the offence falls under Section 304 (Part-I) IPC, which is punishable by imprisonment for life or imprisonment of either description for a term, which may extend to 10 years and shall also liable to fine. 46. 45. However, since the culpable homicide not amounting to murder was caused with the intention of causing death of the said deceased, the offence falls under Section 304 (Part-I) IPC, which is punishable by imprisonment for life or imprisonment of either description for a term, which may extend to 10 years and shall also liable to fine. 46. In the case at hand, as the act of killing of his wife by the accused-appellant was not premeditated and is, as already held above, under severe mental strain and when two of his minor daughters are required to be taken care of, we are of the view that neither his conviction under Section 302 IPC nor his sentence of imprisonment for life can be sustained. 47. While, therefore, the conviction of the accused-appellant under Section 302 IPC and his sentence of imprisonment for life are hereby set aside by holding him not guilty of the offence of murder and he is acquitted of the same, he is hereby held guilty and accordingly convicted of the offence, under Section 304 (Part-I) IPC and sentenced to suffer rigorous imprisonment for seven years and pay a fine of Rs. 1,000/- and, in default of payment of fine, suffer rigorous imprisonment for a further period of one month. 48. With the above observations and directions, this appeal stands partly allowed. Send back the L.C. records along with a copy of the judgment. Appeal allowed