JUDGMENT : Brij Kishore Dube, J. Feeling aggrieved by the judgment of conviction and order of sentence dated 12/04/05 passed by the learned Sessions Judge, Guna in Sessions Trial No.193 of 2004 (State of Madhya Pradesh Vs. Premdas Ahirwar), convicting the appellant under Section 302 of IPC and thereby sentencing him to suffer rigorous imprisonment for life with fine of Rs. 1 ,000/ - and in default f payment of fine to suffer additional rigorous imprisonment for six months, the appellant has preferred this appeal under Section 374 of Code of Criminal Procedure, 1973. 2. The undisputed facts are that the deceased, Radha Bai was wife and Girdhari (P.W.1) and Kala Bai (P.W.2) are the parents of the appellant/accused, Premdas Ahirwar. 3. The prosecution case, in brief, may be narrated as under(i) That, on 29/05/04 at 08.3A.M., the appellant/accused Premdas Ahirwar having blood stained axe reached to the Police Station, Aron and lodged report to the effect that about 1years back he got married with the daughter of Aman Singh Ahirwar, Radha (since deceased). He was living separately from his parents in the same house alongwith his wife. No issue was born out of the wedlock and even after taking medical treatment, his wife has not begotten. On this, his wife off and on quarrels with him as well as his parents. She used to say to him that 1Bigas of land be got transferred in her name and she further used to say to cut off his mother father or herself (the deceased). On account of repeated quarrel, about 8-1months prior to this happening, she herself poured kerosene on her body and set her ablaze as a result of which she sustained serious burn injuries for which about Rs. 50,000/- was spent by him for her treatment and he was compelled to sold his agricultural land for the said purpose. One day prior to this occurrence, she (deceased) made a quarrel with his parents for constructing a house for her and also abused him (accused). He fed up with his wife and at the time of sleeping in the night he planned to put an end to the story of his wife and slept besides her but he was unable to sleep in the whole night except for an hour. He fed up with his wife and at the time of sleeping in the night he planned to put an end to the story of his wife and slept besides her but he was unable to sleep in the whole night except for an hour. At about 04.0A.M., he raised from bed and by taking kulhadi dealt two blows on the neck of Radha as a result of which she had died on the spot. He has no regret of the act done by him. The report was recorded at Crime No.181/04 under Section 302 of IPC (Exhibit P/21) by R. S. Tomar, Station House Officer (P.W.10) against the appellant/ accused himself. R.S. Tomar (P.W.10) seized blood stained axe (Exhibit P119) from the accused and also arrested him (Exhibit P-20). The criminal law was triggered and set in motion. (ii) That, the investigating agency reached to the spot, prepared spot map (Exhibit P/10), seized necessary articles including blood stained earth etc. Prepared inquest (Exhibit P/2) on the dead body and sent it to for post mortem. Investigating agency also recorded the statements of the witnesses who were acquainted with the facts of the offence. Dr. S. P. Sharma Senior Scientist, Scene of Crime Mobile Unit, Guna (PW.8) was also called whereupon he reached and inspected the place of occurrence, prepared spot map and taken photographs (Exhibit P/11 to P/16) and prepared C.D. (Exhibit P/ 17); (iii) That, on 29/05/04 at 01.3P.M., Dr. VS. Raghuvanshi (P.W.6) Medical Officer, Community Health Centre, Aron conducted the post mortem of the deceased and vide report (Exhibit P/7) opined that death was due to shock (neurogenic) on account of injury to spinal cord at the level of cervical vertebrae. Blood stained cloths worn by the deceased were also seized and; (iv) That, on completion of the investigation, a charge sheet was filed against the appellant/accused before the Judicial Magistrate, First Class, Aron, who on its turn, committed the case to the Court of Sessions, Guna from where the accused was tried. 4. The learned Trial Judge on the basis of the material placed on record framed charge punishable under Section 302 of IPC against the appellant/ accused, The appellant denied the charge and claimed to be tried. The defence of the accused person is of false implication, he did not kill his wife and he neither lodged report nor kulhadi was seized from him. The defence of the accused person is of false implication, he did not kill his wife and he neither lodged report nor kulhadi was seized from him. He was taken in custody by the police and committed marpeet upon him and forcibly obtained his signature on some papers and the same defence, he set forth in his statement recorded under Section 313 of the Code of Criminal Procedure, 1973. 5. To bring home the charge, the prosecution has examined as many as 11 witnesses and placed Exhibits P/1 to P/24, the documents on record. The accused has not examined any witness in his defence. 6. The learned Trial Judge on the basis of evidence placed on record came to hold that charge under Section 302 of IPC has been proved against the appellant as a result of which convicted him and passed the sentence as mentioned hereinabove. 7. In this manner, this appeal has been preferred by the appellant assailing the judgment of conviction and order of sentence passed by the learned Trial Court. 8. Legality and propriety of the impugned judgment of conviction has been challenged by the appellant on the ground of mis-appreciation of the evidence on records as well as misapplied the law to the case. Learned counsel for the appellant, Shri N. P. Dwivedi, has submitted that the appellant has been falsely roped in the case. There was no direct evidence against the accused/ appellant. The chain of the circumstances which prove the guilt of the accused was not complete. The FIR, which is alleged to have been lodged by the appellant himself, being confessional statement of the accused is hit by Section 25 of the Evidence Act and, hence, cannot be used against the maker of it i.e., the appellant and is totally inadmissible in evidence. There was no cogent evidence to establish the ingredients of offence under Section 302 of IPC against the appellant. The learned Trial Court erred in convicting the appellant, hence, this appeal be allowed and the appellant be acquitted from the charge. The learned counsel has placed reliance on the case of Sanwat Ram v. State of Rajasthan, 2006(1) Acquittal 252, Rajasthan High Court, Mukesh v. State, 201(2) Crimes 441 (Del.) and Bheru Singh S/o Kalyan Singh v. State of Rajasthan, (1994) 2 SCC 467 . 9. The learned counsel has placed reliance on the case of Sanwat Ram v. State of Rajasthan, 2006(1) Acquittal 252, Rajasthan High Court, Mukesh v. State, 201(2) Crimes 441 (Del.) and Bheru Singh S/o Kalyan Singh v. State of Rajasthan, (1994) 2 SCC 467 . 9. On the contrary, Shri Prabal Solanki, learned Public Prosecutor supported the impugned judgment and findings arrived at by the learned Trial Court and submitted that the conviction in question is well merited. 10. In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to advert to the evidence available on record. 11. According to Sub-Inspector, R.S. Tomar (P.W.10); he performed inquest (Exhibit P/2), on the dead body of Radha Bai and then sent it to the hospital for post-mortem examination. Autopsy Surgeon, Dr. VS. Raghuvanshi (P.W.6) by proving the post-mortem report (Exhibit P/7) of the deceased, Radha Bai, found the following injuries on her person:- 1. Incised wound right upper part of neck having dimensions 8 cm x 3 cm x 4 cm (horizontally placed) (Bony deep) caused by sharp and hard object, having duration 12-24 hrs. Upper IIIrd IVth cervical vertebrae fractured on right side with injury to spinal cord. 2. Incised wound lower one cm below the above one, horizontally placed, dimensions 4 cm x 1 cm x cm, caused by sharp and hard object duration within 12-24 hrs. According to Dr. VS. Raghuvanshi (P.W.6), the death was due to shock (neurogenic) on account of injury to spinal cord at the level of cervical vertebrae. The nature of death was homicide. 12. Admittedly, Girdharilal (P.W.1) is father, Kala Bai (P.W.2) is mother, Sukhram (P.W.4) is brother and Hanumant Singh (P.W.3) is the uncle of the appellant/accused, Premdas Ahirwar, while, Alam (P. W.7) is father of the deceased, Radha Bai. 13. Girdharilal (P.W.I), Kala Bai (P.W.2), Hariumant Singh (P.W.3), Sukhram (P.W.4) and Mannulal (P.W.5) have not supported the prosecution case and, therefore, they were declared hostile. 14. Alam (P.W.7) deposed that on receiving the information from the police that his daughter Radha Bai has been killed, he went to in-laws house of his daughter and found dead body of his daughter having wounds over her neck. People present there told him that Premdas Ahirwar killed Radha Bai by inflicting axe injuries on her neck and gone to Police Station. People present there told him that Premdas Ahirwar killed Radha Bai by inflicting axe injuries on her neck and gone to Police Station. Alam (P. W.7) has failed to disclose the name of person/people from whom he got the aforesaid information, therefore, the aforesaid statement of Alam (P. W.7) comes within the purview of hearsay evidence. 15. Learned counsel for the appellant, Shri N.P. Dwivedi contended that the approach of the learned Trial Court by dividing F.I.R. (Exhibit P/21) into 2parts and except part No.17, which has been treated as confession and self- exculpatory in nature, treating other parts of the FIR as admission of the appellant, is against the well settled principle of law and is totally bad in law. According to settled principle of law when the statement in the FIR given by an accused contains incriminating material and it is difficult to shift the exculpatory portion therefrom, the whole of it must be excluded from evidence. 16. There is no eye-witness of the occurrence. The main evidence against the appellant/accused consists of the FIR (Exhibit P/21) which contains a full confession of guilt by the appellant/accused. If this FIR is excluded, the other evidence on record is insufficient to convict the appellant. The core question in this appeal is whether the appellant's statement (FIR) or any part of it is admissible in evidence. XXX XXX XXX 17. The FIR (Exhibit P/21) reads as under- 18. In the case of Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119 , a three Judge Bendh of the Apex Court 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 of the Evidence Act. The confession includes not only the admission of the offence, but all other admissions of incriminating facts relating to the offence contained in the confessional statement. No part of the confessional statement is admissible in evidence except to the extent that the ban of Section 25 is lifted by Section 27 of the Evidence Act. The observations made in para Nos. 18 and 21 of the judgment reads as under: 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 observations made in para Nos. 18 and 21 of the judgment reads as under: 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. 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. 21. Section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Now, 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 Section 27, there is conflict of opinion. See the observations of Shah, J. and Subba Rao, J. in. 1961 (1) SCR 14 , AIR 196SC 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 11.08.1963. This evidence is not sufficient to convict the appellant of offences under Section 302 of the Indian Penal Code. 19. In Bheru Singh (supra), the Apex Court has observed as under: 17. This evidence is not sufficient to convict the appellant of offences under Section 302 of the Indian Penal Code. 19. In Bheru Singh (supra), the Apex Court has observed as under: 17. Where the first information report is given by an accused himself to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act. No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by Section 27 of the Evidence Act. The first information report recorded under Section 154 CrPC is not a substantive piece of evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him, under Section 145 of the Evidence Act in case the informant appears as a witness at the trial. Where the accused himself lodges the first information report, the fact of his giving the information to the police is admissible against him as evidence of his conduct under Section 8 of the Evidence Act and to the extent it is non-confessional in nature, it would also be relevant under Section 21 of the Evidence Act but the confessional part of the first information report by the accused to the police officer cannot be used at all against him in view of the ban of Section 25 of the Evidence Act. 20. Reiterating the same principle in the case of Bandlamuddi Atchuta Ramaiah and others v. State of A.P., (1996) 11 5CC133, the Apex Court has held as under:- A statement in an FIR can normally be used only to contradict its maker as provided in Section 145 of the Evidence Act, 1872 or to corroborate his evidence as envisaged in Section 157 of the Act. Neither is possible in a criminal trial as long as its maker is an accused in the case, unless he offers himself to be examined as a Premdas Ahirwar vs. State of M.P. 2012 (III) witness (vide Nisar Ali v. State of U.P., AIR 1957 SC 366 ) Kapoor J. speaking for the three- Judge Bench in that decision has observed A first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 157, Evidence Act, or to contradict it under Section 145 of that Act. It cannot be used as evidence against the maker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses. In this case, therefore, it is not evidence. 21. In Sanwat Ram (supra), it has been held that FIR given by accused to police amounts to confession if accused/informant pleaded guilt in it and would be admissible under Section 27 of Evidence Act. In Mukesh (supra), the Delhi High Court has also held that report lodged by accused with police which was confession would not be admissible against him. 22. In the instant case as already discussed, the appellant/ accused came to the Police Station Aron and made a confessional statement to Sub-Inspector R. S. Tomar (P.W.10) which would be inadmissible under Section 25 of the Evidence Act against him. 23. On bare perusal of the evidence of Head Constable Hainam Singh (P.W.9), Sub-Inspector R.S. Tomar (P.W.10) and seizure memo Exhibit (P/ 19), we find that a blood stained axe which was brought by the appellant/ accused at Police Station was seized by R.S. Tomar in the presence of Head Constable Harnam Singh and Constable Rajendra from appellant/accused after recording FIR on 29.05.2004 at 8.4AM. According to FSL report (Exhibit P/24), it is apparent that the concerned chemical examiner has only opined about the presence of blood on the article i.e. on an axe alleged to be seized from the possession of the appellant. Unless and until the chemical examiner opined about the presence of human blood on the article and that too belongs to the group of the deceased, Radha Bai, then only any inference against the appellant/accused can be drawn that it is the appellant/accused who had caused the death of the deceased, Radha Bai. 24. Unless and until the chemical examiner opined about the presence of human blood on the article and that too belongs to the group of the deceased, Radha Bai, then only any inference against the appellant/accused can be drawn that it is the appellant/accused who had caused the death of the deceased, Radha Bai. 24. For the reasons stated here-in-above and the principle laid down by the Apex Court, we are unable to uphold the findings recorded by the learned Trial Court convicting the appellant under Section 302 of IPC and we set-aside the same. 25. Resultantly, this appeal succeeds and is hereby allowed. The judgment of conviction and order of sentence passed by the learned Trial Court is set-aside. The appellant is acquitted from the charge under Section 302 of IPC. The appellant is in jail, he be set at liberty forthwith, if not, required in any other case. The amount of fine, if deposited be refunded to the appellant.