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2015 DIGILAW 732 (GUJ)

Chandubhai v. State of Gujarat

2015-07-28

MOHINDER PAL, R.D.KOTHARI

body2015
Judgment R.D. Kothari, J. 1. The appellant is the sole accused in the present case. The appellant after giving 'dharia' blow to his wife on the neck reported the same to the police at the Police Station. The say of the accused was reduced into writing by the PSO. It is registered as C.R. No. I-31 of 2006 and on the basis of this FIR, police started investigation. The wife has died on the spot. Learned advocate Shri Patel at the time of hearing has vehemently submitted that confessional FIR in the present case is not admissible and has no evidentiary value. The learned advocate has mainly placed reliance on the decision of the Apex Court in the case of Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119 . 1.1. To a lay person, nothing more is required when the accused confesses his crime before the Police. Sadly, record of the case shows that the responsible Police Officer appears to hold the view on this line. First facts. 2. The facts lay in fairly narrow compass, the same are thus:-- "2.1. The incident has occurred on 12.12.2006 at about 9:30 a.m., at Ambaliya Vaas, Village Mandal, District : Ahmedabad. It is the case of the prosecution that the accused had come to the Police Station at about 10:15 a.m., and had declared that he had a quarrel with his wife and he had given 'dharia' blow to his wife on her face and neck and has killed his wife. The accused was accompanied by his two children. Shri Vaghela - PSO of Mandal Police Station (PW-14) had reduced the said information in writing and has forwarded the complaint to PSI - Shri Patel (PW-17) for investigation. PSI sent the yadi to Executive Magistrate for inquest panchnama. It is further the case of the prosecution that the accused had accompanied PSI - Patel at his residence. PSI Patel, with the aid of two panchas has carried out the panchnama of the scene of offence and thereafter with the aid of two panchas and one lady panch, inquest panchnama was carried out. After completing inquest panchnama at about 12:20 p.m., PSI, Patel forwarded body for PM. PSI had also in the presence of panchas recovered the clothes of the deceased and the clothes accused was wearing. Muddammal was sent to FSL. Thereafter i.e., at 13:55 p.m., the accused was arrested. After completing inquest panchnama at about 12:20 p.m., PSI, Patel forwarded body for PM. PSI had also in the presence of panchas recovered the clothes of the deceased and the clothes accused was wearing. Muddammal was sent to FSL. Thereafter i.e., at 13:55 p.m., the accused was arrested. 2.2. Upon completion of investigation, the Police had filed the charge sheet. Accordingly, the case was committed to the Sessions Court. Before the Sessions Court, the prosecution has examined 17 witnesses and had also produced relevant documentary evidence. The learned trial Court after considering the material on record and submissions made by the learned advocate for the parties, was pleased to convict the present appellant and imposed sentence under Section 302 IPC." 3. Heard the learned advocate for the parties. "3.1. Learned advocate Shri Patel for the appellant at the time of hearing has submitted that FIR is not reliable in the facts and circumstances of the case and it is also the case of the defence that FIR is not legal and admissible in evidence. The principal submission of learned advocate Shri Patel is confessional FIR has no evidentiary value. In this regard, learned advocate Shri Patel has drawn attention to Aghnoos' case (supra) and other case laws. On the other hand, learned APP Mr. Jani had supported the judgment under appeal and relying on Sucha Singh v. State of Haryana, (2013) 14 SCC 552 and other cases has submitted that no interference is called for in the order of conviction passed by the learned trial Court. 3.2. The objection taken that in the facts and circumstances of the case FIR is not reliable may be considered first. 3.3. The claim that FIR is got up one because it is not recorded as per the say of the complainant and that declaration made before the Police is held back by the Police, is based on the say that on the occurrence of the incident PW-10 with other leading persons of the community had gone to the Police Station to lodge the complaint, however, the Police had not paid any heed to PW-10 or to the other persons of the community. It is also the say of the defence that Police had asked them to bring Chandubhai i.e. the present appellant first. 3.4. Is this say of defence sound natural ? Such case set up by the defence has no substance. It is also the say of the defence that Police had asked them to bring Chandubhai i.e. the present appellant first. 3.4. Is this say of defence sound natural ? Such case set up by the defence has no substance. As per the say of the defence, within 10 - 15 minutes of the incident, PW-10 and other leading persons of the community came to the Police Station. That they had informed the Police that two or three unknown persons were seen with the blood stained clothes and with 'dharia' like weapon. It is their say that reporting of such say to Police was not acted upon by the Police. 3.5. Why say of defence does not sound natural and hence not acceptable ? Instant spirited response of reporting to the Police about occurrence of incident by the public is somewhat unusual. Generally, people try not to involve in the incident and to stay away in such a situation. At the most, people, - say, PW-10 and other persons - may try to inform the appellant about the occurrence of incident or he/they may perhaps come forward to be helpful to give medical treatment to the injured, but instead of that rushing to the Police Station by member of public and that too in the case when the assailants were unknown does not at all sound natural. It may also be bear in mind that as per the say of defence PW-10 and his nephew were busy in agricultural work in the field of PW-10. The natural reaction of average person in general would be to inform the affected person first i.e. the appellant in the present case and not to the police. Defence on this line is difficult to accept. Now assuming for a moment that PW-10 and other persons did approach the police officer instantly for lodging FIR, against unknown persons, and on his/their approaching the Police Official he/they faced with indifferent treatment by the Police or met with unexpected response from the Police namely, not registering FIR as per his/their say - then consistent to their say, their natural reaction in such a situation would be to approach the higher Police Officials - at least later on, if not at that time itself. He/they did not do so at that time or any time later on. He/they did not do so at that time or any time later on. Surprisingly, not even when the concerned Police Officials was implicating the present applicant in the incident. Say of the defence - Police was immediately informed by PW-10 and others, is not possible to accept as subsequent conduct and inaction of PW-10 is not consistent with such say of the defence. 3.6. In this context, it may also be noted that such say of the defence does not answer the question namely, how the Police came to know about the possible "involvement" of the appellant ? The police without knowledge or suspicion about the involvement of a person, would not ask or insist to bring the appellant first before them. Secondly, husband would be seen as important link and material witness to reach to the unknown assailants. The quick response and expeditious working by the Police, in the present case if read with say of defence in this regard, stands in sharp contrast to general reputation of Police. Expeditious working by Police and direction of investigation does not support the say that the police may be unaware and/or may be in dark about the real assailants or that, though the real assailant was really unknown, Police has falsely roped in the husband. 3.7. In view of above, say of defence that, that in the facts and circumstance s of the case, present FIR is unreliable is not possible to accept. 3.8. Now legal plea about the admissibility of the FIR in evidence may be considered. At the outset, we may say that even in cases where the validity of FIR is not in issue, in those cases also, FIR is regarded as corroborative piece of evidence. FIR is not a substantive evidence. The prosecution cannot rely upon the FIR as a basis to believe its case. Attraction of confessional FIR may prove fatal if the police under the mistaken belief considers it as basis. 3.9. The submission of Shri Patel for the appellant that the FIR is inadmissible in evidence is mainly based on Aghnoos' case (supra). 3.10. In Aghnoo's case (supra), the appellant had committed murder of his 'Aunt' and her sons, daughter etc. The appellant himself had given first information to the police at the Police Station. The Sub-Inspector recorded the FIR and took cognizance of the offence and arrested the appellant. 3.10. In Aghnoo's case (supra), the appellant had committed murder of his 'Aunt' and her sons, daughter etc. The appellant himself had given first information to the police at the Police Station. The Sub-Inspector recorded the FIR and took cognizance of the offence and arrested the appellant. On the next day with the help of the appellant, dead body of the deceased and other muddammal were recovered. The Sessions Court had convicted the appellant and his conviction and sentence was confirmed by the High Court and in further appeal by the accused, Apex Court has considered the scope and ambit of confession (Sections 24 to 30) particularly, confession made before the Police Officials (Section 25). It has also considered the case laws on the point in order to appreciate admissibility of such FIR. The Apex Court has considered each statements of FIR of that case by giving it number 1, 2, 3, 4,....... The FIR in that case consists of 18 statements of fact. Broadly speaking, the Apex Court was of the view that confessional declaration by the accused before the Police is admissible in evidence only to the limited extent i.e., to consider the conduct of the accused under Section 8 of the Indian Evidence Act. In substance, in case of FIR by accused before Police, statement fall under Section 8 or Section 27 of the Indian Evidence Act would be saved, barring those limited exception, other statements must go. 3.11. In Aghnoo's case (supra) it was contended that the accused was not arrested and he was not in police custody when the FIR was registered. Learned advocate Shri Patel referring this part of holding has submitted that even when the accused is not in police custody at the time of registering FIR, he can be considered to be in constructive custody of the Police and, therefore, FIR is not admissible. In this regard reliance was placed on paragraph 21 of the said decision, which reads as under:-- "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. In this regard reliance was placed on paragraph 21 of the said decision, which reads as under:-- "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 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." (emphasis supplied) 3.12. On re-reading of the above quoted paragraph, it would appear that the Apex Court had not laid down what was sought to be urged by Shri Patel. The Apex Court in fact held that the First Information Report leading to the discovery of tangi, dead bodies etc., is admissible in evidence. However, the evidence, in that case was not found sufficient to connect and convict the appellant for offence punishable under Section 302 of the IPC. The Apex Court in fact held that the First Information Report leading to the discovery of tangi, dead bodies etc., is admissible in evidence. However, the evidence, in that case was not found sufficient to connect and convict the appellant for offence punishable under Section 302 of the IPC. In the case of State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125 - referred in the above quoted paragraph in Aghnoo's case (supra), the Court was considering the constitutional validity of Section 27. The Full Bench of the High Court had struck down Section 27 as violative of Article 14, validity of Section 27was upheld by the Hon'ble Supreme Court. 3.13. As to the admissibility of FIR lodged by the accused before the Police, the points to be bear in mind are:-- (a) confessional statement by accused before Police is not admissible. The accused may not have been formally arrested at that time, even then he can be considered to be in constructive custody of the Police. (b) the conduct i.e. previous and subsequent to the incident - of the accused is relevant and that is admissible under Section 8 of the Evidence Act. Prosecution can invoke Section 8 so far as non confessional statement contained in FIR is concerned such statement/s may be helpful to the prosecution, if its relevancy can be linked to the previous or subsequent conduct of the accused. (c) Like conduct, it can be referred and relied on to ascertain motive." 4. Coming to the facts of the present case, we may describe the contents of FIR as under: "(1) Today in the morning at about 9:30 a.m., I was with the children and my wife; (2) At that time my wife - Ushaben ([picked up quarrel) saying why you are not earning and at the same time, she also started beating the children. (3) I said her not to beat the children and also told her why you are picking up quarrel so often. I also told her that her character is not good. (4) Saying so, I brought 'dharia' that was nearby my home. (5) Two blows were given by the 'dharia' on her face and throat. (3) I said her not to beat the children and also told her why you are picking up quarrel so often. I also told her that her character is not good. (4) Saying so, I brought 'dharia' that was nearby my home. (5) Two blows were given by the 'dharia' on her face and throat. (6) By giving two blows, I killed my wife - Ushaben, (7) Then I had gone inside the village with my children, but as I was not able to control myself, without saying to anyone, I came to Chabutara Chowk. (8) I apprehended that killing of wife by me would be known. (9) I have come to lodge the complaint of. (10) Killing my wife by giving two blows to her. (11) At the time of occurrence of this incident, no one was present nearby. (12) Dead body of my wife is in courtyard of my home." 4.1. With possible exception of statements Nos. 7 and 9, statements Nos. 5 to 10 are confessional in nature and they must go. They cannot help the prosecution. 4.2. Statement Nos. 1 to 3 are non confessional in nature and therefore, they are admissible as they come within the sweep of Section 8. In Bheru Singh son of Kalyan Singh v. State of Rajasthan, (1994) 2 SCC 467 , it was held that if motive is possible to culled out from FIR filed by the accused, then such statement of motive is admissible. In the present case, later part of statement No. 3 is in the nature of motive. While considering the admissible part of FIR which is filed by the accused, reference may also be made to Khatri Hemraj Amulakh v. The State of Gujarat, AIR 1972 SC 922 , on which learned advocate Shri Patel has placed reliance and to which reference is made hereafter, therein, it was held that FIR by the accused can be used to identify the accused as a maker of report. (para 14). 4.3. Now oral evidence on record may be considered. 5. The appellant also said to have made extra judicial confession before PW-8, PW-9, PW-10 and PW-12. They are all residents of same village, in fact they are from, same or nearby locality. They have turned hostile and they do not support the case of the prosecution. PW-11 is the brother of the deceased. He resides at Surat. 5. The appellant also said to have made extra judicial confession before PW-8, PW-9, PW-10 and PW-12. They are all residents of same village, in fact they are from, same or nearby locality. They have turned hostile and they do not support the case of the prosecution. PW-11 is the brother of the deceased. He resides at Surat. He partially supports the case of the prosecution. However, as the case is based on circumstantial evidence and at the time of incident, he was at Surat, his evidence can be of limited help to the prosecution. 6. PW-8 says that he knows the accused. He identifies the accused person in the Court at the time of deposition. PW-8 says that he is doing the business and having cabin at Chabutra Chowk. That the incident has occurred about five -six months back. Since village people has gathered at the Police Station -he says - I had also gone there. There, he came to know that some unknown person has killed the wife of the appellant. As per his statement before the Police, during investigation - on that day, the accused with his children has passed through his cabin. PW-8 had stopped him and asked why he is not coming even to pass the time. On saying so, the appellant had said to have made confessional declaration before the witnesses. The say of PW-8 to the police during investigation is proved in the evidence of Investigating Officer. This witness is not cross-examined by the defence. 6.1. Similarly, PW-12 says that he has a cabin at Chabutra Chowk and he is doing painting work. He opened his cabin at about 8:30 in the morning and about 7:00 p.m., he closed the cabin. He knows the appellant and his wife. The appellant's wife has died and the accused is in custody for killing his wife. That incident has occurred about seven to eight months back. On that day, he has left his residence for his business. At that time, one leading member of their community was going towards the residence of appellant. PW-12 also accompanied him. At the residence of the appellant, he had seen the dead body of the appellant's wife. The leading member of the community had informed the Police. On that day, there was also declaration of results of the election of Mandal Gram Panchayat. PW-12 also accompanied him. At the residence of the appellant, he had seen the dead body of the appellant's wife. The leading member of the community had informed the Police. On that day, there was also declaration of results of the election of Mandal Gram Panchayat. Therefore, - he says - I had also gone there. I do now know anything else about the incident. He came to know that some unknown person had killed the appellant's wife. His statement before the Police during investigation is on the line as the statement of PW-8. The say of this witness during investigation is proved in evidence of Investigating Officer and this witness is also not cross-examined by the defence. 6.2. PW-10 is cross-examined by the defence. In his cross-examination, he has tried to support the case of the prosecution. It is the say of PW-10 that at the time of incident, the appellant was not at his home. PW-10 was at his field and on hearing the shouts of one lady at about 9:30 a.m., PW-10 and his nephew who were cutting the grass at their field, had gone towards the house where they have heard shouts of the lady. He has seen that one person was going out of that house. The said person is unknown to PW-10. At the said house, they had seen the dead body of the deceased. Then PW-10 and his nephew had informed the leading member of the community and thereafter they had gone to inform the police at the Police Station. The Police has come to the place of incident. Thereafter PW-10 had left the place. It is specific assertion of PW-10 that the appellant was not at his home at the time of incident. He also says that the Police has not recorded his statement. 6.3. As to the evidentiary value of the evidence of hostile witnesses, in the case of Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202 , it was held that there is no legal bar to record conviction on the basis of the testimony of the hostile witnesses. Other important cases on this are State of Gujarat v. Anirudh Sing & Anr., 1997 (3) GLR 2245. Other important cases on this are State of Gujarat v. Anirudh Sing & Anr., 1997 (3) GLR 2245. In Gurpreetsing's case ( 2002(8) SCC 18 ), it was held as well settled proposition that declaring a witness hostile does not mean or imply total rejection of evidence of such witness. (para 19). 6.4. Similarly, it is well settled that extra judicial confession if it is true and reliable, the same can be basis for conviction. In Gura Singh v. State of Rajasthan (2001) 2 SCC 205 , it was held that if extra judicial confession is true and voluntary, it can be relied upon by the Court to convict the accused for commission of crime alleged. In paragraph No. 6 in Gura Singh's case (supra), the Court has considered various earlier case laws on the point beginning with Rao Shiv Bahadur Singh and another, v. States of Vindh-P, AIR 1954 SC 322 to Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204 and has concluded that extra judicial confession can be basis for conviction. It should be true and voluntary. When it can be said to be true and reliable ? Extra judicial confession which is not obtained by coercion, by promise of doing any favour or by giving false hope or by such like circumstance, is reliable. Similarly, it should be voluntary and it should not have been made at a belated stage. In the present case, extra judicial confession is almost immediate. It is not made at a belated stage. Nor it is possible to doubt in the facts and circumstances of the case that it is not voluntary. PW-8, PW-9, PW-10 and PW-12 are of the same community and all claim to know the appellant. It is also not possible to say that such confession is tainted by any other vitiating factor. It may also be noted that such confession are made by the appellant before his arrest by the Police. 6.5. It is interesting to note that in Gura Singh's case (supra) the appellant had made extra judicial confession before PW-2, PW-5, PW-6 and PW-7. The principal submission of learned advocate for the appellant was PW-2, PW-5 and PW-7 are declared hostile, while PW-6 is a interested witness, therefore, the evidence of these witnesses cannot help the prosecution. The Apex Court had agreed that PW-5 has turned hostile. The principal submission of learned advocate for the appellant was PW-2, PW-5 and PW-7 are declared hostile, while PW-6 is a interested witness, therefore, the evidence of these witnesses cannot help the prosecution. The Apex Court had agreed that PW-5 has turned hostile. It had also held that extra judicial confession made before PW-7, after the appellant was arrested, therefore his evidence cannot help the prosecution. However, the evidence of PW-6 and PW-2, was found reliable. PW-6 was near relative of the deceased. However, extra judicial confession before him and PW-2 was held reliable. (para 14). 6.6. In Gura Singh's case (supra) the Court had relied on Sat Paul v. Delhi Administration, AIR 1976 SC 294 , wherein, it was held that granting of permission to the prosecution to cross-examine their own witness does not amount to adjudication as to the veracity of the witnesses. In Sat Paul's case (supra), it was held "... granting of such permission does not amount to adjudication by the Court as to the veracity of the witnesses. Therefore, in the order granting such performing it is preferably to avoid use of such expression such as declaring hostile, declaring unfavorable. Significance of which is still not free from history of cobweb....". (emphasis supplied). In Gura Singh's case (supra) the Court has held that PW-2 was wrongly declared hostile and the extra judicial confession made before the appellant and the evidence of PW-2 and PW-6 was held reliable. (paragraph Nos. 10, 13 and 14). 6.7. In the present case, the learned trial Court has referred the evidence of PW-8, PW-9, PW-10 and PW-12. Barring the evidence of PW-10, it appears that it has not appreciated the evidence of PW-8, PW-9 and PW-12. It has considered in detail - at quite some length the evidence of PW-10. However, all the discussion of evidence of PW-10 is without any reference to evidentiary value of extra judicial confession. Further, the learned trial Court at the end in the judgment has formulated grounds "a" to "h" which in its opinion makes the case of the prosecution believable. Therein, also there is no reference to extra judicial confession made before these witnesses. We are of the view that evidence of PW-8, PW-10 and PW-12 can be partly relied on by the prosecution. Their evidence need not be discarded totally. We may discard the evidence of PW-9. Therein, also there is no reference to extra judicial confession made before these witnesses. We are of the view that evidence of PW-8, PW-10 and PW-12 can be partly relied on by the prosecution. Their evidence need not be discarded totally. We may discard the evidence of PW-9. Prosecution cannot derive any support from evidence of PW-9. If the other circumstance of the case are in favour of the prosecution then extra judicial confession before PW-8, PW-10 and PW-12 can certainly press into service as partly corroborating case of prosecution. 7. At this stage, reference may be made to the case of Khatri Hemraj Amulakh's case (supra) on which also learned advocate Shri Patel has placed strong reliance. It is true that in that case also, the deceased was wife and the accused was husband. FIR was lodged by the husband himself. In that way, this case comes closer to the present case. Therein, the Sessions Court had acquitted the accused. However, the High Court had reversed the judgment of the learned trial Court and has convicted him. The Apex Court allowed the appeal of the accused. As to the inadmissible nature of the confessional FIR, it is discussed herein above. Fact of acquittal of the accused in that case by itself would not be helpful to the appellant herein. Every case depends upon the facts and circumstances of that given case more so in criminal case. It is principle or ratio that binds the Court and not beyond that. Khatri Hemraj Amulakh's case (supra) is possible to distinguish at least on two counts; one in that case, the accused had given fairly elaborate explanation of his blood stain clothes etc., in his further statement (FS). This, the explanation by the accused had weighed with the Court. In the present case, the appellant has remained content by formal denial. In his FS, he has neither elaborated nor he has sought to explain the circumstances against him. Secondly, in that case, the Hon'ble Supreme Court has found that there was no motive on the part of the accused to kill the deceased. The circumstances of the case on hand are different. The case of the prosecution is not likely to fail on this ground. 7.1. Learned advocate Shri Patel has also placed reliance on the case of Vijaysingh Dharmdas Thakkar v. The State of Gujarat, 1996 (1) GLH 971 . The circumstances of the case on hand are different. The case of the prosecution is not likely to fail on this ground. 7.1. Learned advocate Shri Patel has also placed reliance on the case of Vijaysingh Dharmdas Thakkar v. The State of Gujarat, 1996 (1) GLH 971 . In that case, the Division Bench of this Court had allowed the appeal of the accused. The deceased was brother-in-law (sister's husband) and the accused was sister's brother. It was the case of the prosecution that the accused was suspecting that the deceased had illicit relationship with his wife. In that case also, FIR was lodged by the accused. The status of such FIR is discussed herein above. We may add that we are unable to agree with the view expressed in that case in paragraph No. 10 in respect of the possible reason of lodging FIR by the accused. In the facts of that case, the Court was pleased to allow the appeal of the accused. Vijaysingh's case (supra) cannot help the appellant. 8. Shri Jani, learned APP at the time of hearing, has drawn attention of the Court to the case of Sucha Singh v. State of Haryana, (2013) 14 SCC 552 . The Apex Court was pleased to dismiss the appeal of the accused. The Court had believed that there was a motive namely to steal the mule cart and for that purpose murder was committed. This case was also a case of circumstantial evidence. The Apex Court had believed the extra judicial confession along with other circumstantial evidence in the case. 8.1. Learned APP Shri Jani, has also relied on the decision of the Apex Court in the case of Budhuram v. State of Chhattisgarh, (2012) 11 SCC 588 . The accused in that case had killed his wife/It was the case of circumstantial evidence. Besides, extra judicial confession before PW-2 and PW-5, there was recovery of dead body, blood stain clothes from the place of occurrence and other recoveries. All these were read in favour of the prosecution. Budhuram's case (supra) helps the State. 9. We are not prepared to believe that the appellant is innocent and in fact crime is committed by some unknown person and the appellant is falsely implicated in the case of killing of appellant's wife. 10. Our conclusion is based on the following circumstance:-- "(1) The death of the deceased is homicidal. Budhuram's case (supra) helps the State. 9. We are not prepared to believe that the appellant is innocent and in fact crime is committed by some unknown person and the appellant is falsely implicated in the case of killing of appellant's wife. 10. Our conclusion is based on the following circumstance:-- "(1) The death of the deceased is homicidal. It is not natural or accidental or suicidal. (2) The dead body was recovered from the house of the appellant. (3) In view of Khatri Hemraj Amulakh's case (supra) it is possible to held that FIR is lodged by the accused. The presence of accused at his residence and other non-confessional statements in complaint are admissible. The motive is also possible to believe. (4) Extra judicial confession before PW-8, PW-10 and PW-12 is possible to read as corroborating say of prosecution to some extent. (5) FSL report supports the say of the prosecution. The blood group of deceased was found on the clothes of the deceased as well as on the clothes of the appellant. Serological report links the appellant with crime. In this regard see Rajput Jabbarsingh Malaji v. State of Gujarat case (2011) 6 SCC 308 . (6) The medical evidence does supports the case of the prosecution. (7) Failure to make satisfactory explanation in further statement under Section 313 of the Code of Criminal Procedure and remain content with bare and formal denial of evidence and the circumstances that is brought on record by the prosecution is not sufficient. It does not make the case of the prosecution as unacceptable. In the case based on circumstantial evidence, statement under Section313 of Code of Criminal Procedure can be used as evidence for reducing the burden of prosecution. (Brajendrasingh v. State of Madhya Pradesh, 2012 (4) SCC 289 )." 10.1. In addition to above, we may also note that the deceased had filed a criminal complaint for offence under Section498A, 323, 504, 506(2) of the Indian Penal Code against the present appellant at Surat. A copy of it is produced at Exhibit-85. The learned trial Court has held that appellant's attention was drawn to this pending criminal case in the question asked in FS. In reply to it, the appellant has made formal denial. A copy of it is produced at Exhibit-85. The learned trial Court has held that appellant's attention was drawn to this pending criminal case in the question asked in FS. In reply to it, the appellant has made formal denial. Secondly, inability of the prosecution to examine the elder child of the deceased as a witness - who was at the relevant time aged 5 years had also weighed with the learned trial Court. An attempt made by the prosecution at a later stage - although it was during recording of evidence, - to examine the elder son of the deceased/appellant as witness was stalled by the appellant by approaching this Court. This conduct of the appellant and the circumstance had weighed with the learned trial Court. At the time of hearing of appeal, the learned advocate for the appellant has not shown how this finding of the learned trial Court is bad or erroneous. This finding and circumstance recorded by the learned trial Court, apart, conclusion recorded in above para 10 is sufficient to dismiss the appeal. 10.2. The guilt of the accused is possible to believe. The facts and circumstances of the case do not show that the appellant should be held guilty for offence under Section 300 of the IPC. In the facts and circumstances of the case, it is possible to say that the appellant acted on heat of moment - the wife had provoked him. There is germs for this in the complaint itself. Further, two blows were given by the appellant and as per the medical evidence one blow is fatal. The appellant is the husband. In the facts and circumstances of the case, we held that the appellant has committed offence under Section 304 Part-I IPC. (See : Bangaru Venkat Rao v. State of Andhra Pradesh, 2008 (9) SCC 707). Ends of justice would meet, if the appellant is asked to undergo rigorous imprisonment for ten years. 11. The investigation carried out in the present case does call for criticism. It is surprising, that the appellant - accused when approaches the responsible police officials and declares about the commission of crime, it did not occur to the concerned PSO/PI to get the statement of the appellant recorded as per Section 164 of Code of Criminal Procedure. The appellant ought to have been taken before the Magistrate. It is surprising, that the appellant - accused when approaches the responsible police officials and declares about the commission of crime, it did not occur to the concerned PSO/PI to get the statement of the appellant recorded as per Section 164 of Code of Criminal Procedure. The appellant ought to have been taken before the Magistrate. The worse is, none of the witness before whom, according to the say of the prosecution, the appellant had made extra judicial confession were taken before the Magistrate. The defence has drawn attention of PSO and Investigating Officer in their cross-examination by questioning that why they have not resorted to Section 164 of the Code of Criminal Procedure. We may say that the answer of PSO and Investigating Officer is not satisfactory. Further, the Investigating Officer also seems to be unaware about the importance of Section 27 of the Evidence Act. It is so because, 'dharia' is recovered without carrying out any panchnama. It is the say of the prosecution that while carrying out panchnama of the scene of offence, 'dharia' was lying there and, therefore, the police has recovered the 'dharia', simultaneously - while carrying out panchnama of the scene of offence. Strange way of investigating case of homicidal death. Unsatisfactory nature of recovery of weapon and not resorting to Section 164 of Code of Criminal Procedure for recording of confession and statement of witnesses, - shows serious lapse on the part of the Investigating Officer. Almost, causal approach is adopted by the Investigating Officer in investigating such a serious offence. We hope that higher officials in the Home Department would impress upon the responsible police officer in the State about the need and importance of recording the statements under Section 164 of the Code of Criminal Procedure, in cases where the facts and circumstances call for recording of such statements. Admission of guilt by accused before Police Official has no value in the eye of law. Admission of guilt by accused before Police Official has no value in the eye of law. We may also clear the possible misplaced apprehension that the police may be entertaining, namely, after giving statement before the Magistrate under Section 164 of Cr.P.C., such accused and/or witness disowns or resile from their such earlier statement, at the later stage or at the time of trial - such apprehension hardly does any good to I.O. would be depriving himself benefit of important piece of evidence, when he fail to avail opportunity to produce the accused or witness, as the case may be, before magistrate to record his/their statement. Possibility of accused/witness resiling or disowning their statement at later stage ought not to weigh with police authority at that stage. 11.1. Lastly, one important aspect also requires reference. The marriage span of the deceased and appellant is less than seven years. The deceased had filed a complaint against the appellant and others under Section 498A, 323, 506(2) etc., IPC. In the facts and circumstances of the case, it is odd and surprising that it did not occur to the Investigating Officer that offence under Section 304B IPC be registered and investigated in the present case. At the time of hearing when attention was drawn to this fact, neither the learned advocate for the appellant nor learned APP was able to explain about non-invocation of Section 304B of IPC. 12. With the above observations and directions, the appeal is partly allowed. We alter the conviction to one under Section304 Part-I of IPC and reduce the sentence from life imprisonment to 10(ten) years (R.I) rigorous imprisonment. The appellant is on bail and, therefore, we direct that the appellant shall surrender before the jail authority, Ahmedabad within a period of two weeks from the date of pronouncement of this order. If the appellant fails to surrender within a period of two weeks from today, non-bailable warrant be issued against the appellant. We may also clarify that the period of imprisonment undergone by the appellant till now may be adjusted against the sentence imposed by us. We have not interfered with the fine imposed by the learned trial Court. The fine imposed by the learned trial Court and sentence of imprisonment in lieu of non-payment of fine imposed by it remains as it is.