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2018 DIGILAW 1253 (ALL)

MAIYADIN v. STATE OF U. P.

2018-05-18

HARSH KUMAR, P.K.S.BAGHEL

body2018
JUDGMENT : (Delivered by Hon'ble Harsh Kumar J.) Heard Sri Rakesh Kumar Singh, Sri S.K. Tiwari advocates for the appellant and Sri A.N. Mullah, Sri Phool Singh Yadav, learned AGA for State and perused the record as well as original record summoned from court below. 2. This appeal has been filed against the judgment and order of conviction and sentence dated 10.08.1983 passed by Additional Sessions Judge, Hamirpur in S.T. No. 178 of 1982 arising out of Case Crime No. 70 of 1982 under Section 302 IPC, Police Station- Mahoba, District- Hamirpur by which learned Additional Sessions Judge has convicted the sole accused-appellant under Section 302 IPC for causing death of his wife and sentenced him with imprisonment for life. 3. The brief facts related to the case are, that on 12.03.1982 upon the written report of accused-appellant Maiyadin which will be referred as Tehrir hereinafter, a FIR was lodged at Case Crime No. 70 of 1982 against the accused-appellant under Section 302 IPC at Police Station- Mahoba, District, Hamirpur. 4. The averments of written report (Tehrir) are as follows : "Sriman Kotwal Sahab, Mahoba, on the last night at about 10 p.m. I have committed murder of my wife inside my house by cutting her with axe. I was having doubt on her illicit relationship with Rajju s/o Ram Charan Basor of the village and for this reason I caused her death because she had gone to attend the call of nature at night and since returned after inordinate delay, I committed her death. When I gave axe blows to her, she caught hold of my neck resulting in nail injuries over my neck. I can get the axe and body of my wife recovered which are lying on the spot. Appropriate steps be taken." Applicant Maiyadin, Scribe Baijnath Chaurasia." 5. Upon lodging of FIR, on the basis of written report, at Case Crime No. 70 of 1982, under Section 302 IPC, Investigating Officer visited the place of occurrence with accused and recovered the dead body of his wife and a small bloodstained axe with handle, the weapon of crime, of which memo of recovery Ext. A-2 was prepared. The Investigating Officer also collected sample of bloodstained and simple earth & BAN of Cot (pkjikbZ ds cku) as well as bloodstained clothes etc. A-2 was prepared. The Investigating Officer also collected sample of bloodstained and simple earth & BAN of Cot (pkjikbZ ds cku) as well as bloodstained clothes etc. of deceased Shyam Bai, prepared memos of recovery, got the accused medically examined at Government Hospital Mahoba, prepared inquest report, sent the dead body for autopsy and after making necessary enquiry and collecting the post mortem report of the deceased, injury report of accused, as well as report from Forensic Lab, completed the investigation and submitted chargesheet against the accused-appellant under Section 302 IPC. 6. The Magistrate committed the case to Sessions and the Additional Sessions Judge after hearing the counsel for accused-appellant framed charges against him under Section 302 IPC on 5.02.1983. The accused-appellant pleaded not guilty and demanded trial. 7. The prosecution in order to prove its case produced Baijnath, Purshottam Das, Rameshwar, Dr. Ghan Shyam Pandey, Phool Singh, Shyam Sundar, Tulsiya, V.K. Singh and Asharam Tripathi as PW1 to PW9. PW1 Baijnath is scribe of the written report (Tehrir) on the basis of which FIR has been lodged, PW2 Purshottam Das is village Pradhan, PW3 Rameshwar and PW5 Phool Singh are witnesses of recovery memos recovering dead body of deceased, as well as weapon of crime, bloodstained and simple earth, BAN, clothes and various other items/articles., PW4 Dr. Ghan Shyam Pandey is the Medical Officer who conducted autopsy of the dead body of Smt. Shyam Bai and medical examination of accused, PW6 Shyam Sundar is Constable who has proved chik FIR Ext. A-8, PW7 Tulsiya is witness of extra judicial confession allegedly made by accused-appellant, PW8 V.K. Singh and PW9 are two investigation officers. 8. The autopsy of the body of Smt. Shyam Bai wife of the accused-appellant was conducted by the Medical Officer, Hamirpur Dr. Ghan Shyam Pandey at 2 p.m. on 13.03.1982 and post mortem report Ext. A-6 has been duly proved by him, in his statement on oath as PW4. 8. The autopsy of the body of Smt. Shyam Bai wife of the accused-appellant was conducted by the Medical Officer, Hamirpur Dr. Ghan Shyam Pandey at 2 p.m. on 13.03.1982 and post mortem report Ext. A-6 has been duly proved by him, in his statement on oath as PW4. He has stated that post mortem examination of the body of 18 year old Shyam Bai wife of Maiyadin was conducted by him at 2 p.m. on 13.03.1982 who had died about 1½ day before the time of post mortem due to shock and haemorrhage as a result of following anti mortem injuries, found on her person; (i) Incised wound 13 cm x 3 cm x muscle deep, spindle shaped, wound was present in right fore arm at middle arm lateral aspect upside down. (ii) Incised wound 1 ½ cm x ½ cm x bone deep transverse between lower lip and chin wound was wider at middle and tapering at ends. (iii) Incised wound 6 cm x 2 cm x bone deep along left mandicular angle oblique at neck muscles and great vessels of left side of neck were cut. (iv) Incised wound 3 cm x 1 cm x bone deep in middle of left mandible oblique. (v) Incised wound 15 cm x 1 ½ cm x muscle deep transverse, starting from base of neck at left towards shoulders, wound tapering at ends and wider and deeper at middle. (vi) Incised wound 11 cm x 2 cm x muscle deep was placed on the same level on shoulder joint side as injury No.5 with same character. (vii) Incised wound 2 cm x ½ cm x bone deep in left fore arm, 4 cm above wrist, lateral aspect, transverse underneath bone cut. (viii) Incised wound 3 cm x 1 cm x bone deep. It was 2 cm above and parallel to injury No.7. Wound was tapering at ends. (ix) Incised wound 3 cm x 1 cm x bone deep, in left hand metacarpal region, outer aspect, oblique at middle, underneath bones were cut. 9. The PW4 has also stated that incised wounds of the deceased were caused by some sharp edged weapon like axe, on account of which, her death could have occurred at about 10 pm on 11.03.1982. 10. The Medical Officer Ghan Shyam Pandey, PW4 has also proved the injury report of 20 years old accused-appellant Ext. 9. The PW4 has also stated that incised wounds of the deceased were caused by some sharp edged weapon like axe, on account of which, her death could have occurred at about 10 pm on 11.03.1982. 10. The Medical Officer Ghan Shyam Pandey, PW4 has also proved the injury report of 20 years old accused-appellant Ext. A-7, prepared by him at the time of his examination at 3:30 p.m. on 12.03.1982 wherein he opined that there were multiple linear abrasions in an area of 6 cm x 5 cm in front of his neck in thyroid cartilage area, length varying from 1 cm to 3 cm in zig zag fashion and above injuries were simple in nature and could have been caused by friction of nails in last half day period and could have been caused at 10 p.m. on 11.03.1982. 11. After completion of prosecution evidence statement of accused-appellant was recorded under Section 313 Cr.P.C., wherein he stated that "at night some miscreants had entered his house upon which he cried and fled away from the house and since the miscreants were wielding axes in darkness, corner of an axe also hit him, while the miscreants caused death of his wife." The accused has not produced any defence evidence and the learned Additional Sessions Judge after hearing the arguments of parties and perusal of records passed the impugned judgment and order of conviction which is under appeal. 12. Upon hearing the parties' learned counsel and perusal of records, we find that the correctness of impugned judgment and order must be tested on following six points as under: (i) Extra judicial confession of the accused before PW2 and PW7 :- It has been contended that accused-appellant Maiyadin made an extra judicial confession of the incident in question about killing of his wife in mid night on 11.03.1982 before Sri Purshottam Das the then Pradhan of Village Daharra in presence of Tulsiya (PW7). The prosecution has produced above Pradhan Purshottam Das as well as Tulsiya as PW2 and PW7. The prosecution has produced above Pradhan Purshottam Das as well as Tulsiya as PW2 and PW7. PW2 Purshottam Das Pradhan has not stated anything regarding alleged extra judicial confession if any of accused-appellant before him, rather has stated that Mangi the grandfather of the accused-appellant had approached him at about 4 a.m. and reported that his grandson Maiyadin has committed murder of his wife with the axe, upon which he asked him to report to police and produce Maiyadin at Police Station. PW7 Tulsiya has also denied of any extra judicial confession by accused-appellant before Sri Purshottam Das Pradhan in his presence. Both the witnesses were declared hostile for not supporting the contention of alleged extra judicial confession of the offence by accused-appellant and in cross-examination by prosecution nothing material about the alleged extra judicial confession has come out. In view of above evidence on record, we find that the prosecution has failed to establish making of any extra judicial confession of the offence by accused-appellant before PW2 and PW7. It is pertinent to mention that extra judicial confession is one of the weakest type of evidence and even if some one states on oath before the Court that accused made an extra judicial confession of offence before him, it may not be made basis of conviction, unless of course corroborated by some other cogent and reliable evidence. In view of the evidence of PW2 and PW7 on record we agree with the findings of trial court that prosecution has failed to establish that the accused-appellant made any extra judicial confession of the offence before Purshottam Das Pradhan PW2 in presence of Tulsiya PW7. However it is noteworthy that PW2 Village Pradhan though has denied of making of any extra judicial confession by accused-appellant before him, in the night of the incident in question, but at the same time he has stated that the grandfather of accused-appellant approached him and reported about murder of his grand daughter-in-law by his grandson Maiyadin upon which he advised him to report to police and produce accused-appellant Maiyadin at police station. He has also stated that he denied to accompany and told him that when police will arrive and call for him, he will come and then Mangi returned. (ii) Extra Judicial Confession of accused before Baijnath PW1 for getting scribed the written report (Tehrir) Ext. He has also stated that he denied to accompany and told him that when police will arrive and call for him, he will come and then Mangi returned. (ii) Extra Judicial Confession of accused before Baijnath PW1 for getting scribed the written report (Tehrir) Ext. A-1 by him :- According to prosecution case the accused made a confession of his guilt before Baijnath for getting scribed a written report (Tehrir) Ext. A-1 on the basis of which chik FIR Ext. A-8 was prepared at P.S.- Mahoba, District- Hamirpur. PW1 Baijnath has stated on oath that above Tehrir was written by him on the dictation of accused-appellant Maiyadin, which bears his signature (signature of Baijnath scribe) and was read over to Maiyadin, whereafter he put his thumb impression over the same and left for Police Station. The above witness during his cross-examination has stated that Tehrir was written by him on the dictation of another person who was accompanying accused-appellant but has not disclosed the name of alleged persons. Upon being declared hostile, in his cross-examination by State he has stated that he could not clarify this fact during his examination-in-chief and further stated that after writing the Tehrir, he read it over to accused-appellant as well as the person accompanying him, who put the thumb impression of accused on the report and that upon hearing report and putting his thumb impression, the accused did not raise any objection. In view of the above evidence on record, we find that there is nothing to show that when Tehrir Ext. A-1 was scribed by PW1, any other unnamed person, (as introduced by PW1 in his cross examination) was present there. It is pertinent to mention that there is no whisper by accused-appellant that written report (Tehrir) Ext. A-1 was not written on his dictation or it does not bear his thumb impression and no such suggestion was ever put to PW1 or any other prosecution witnesses or Investigation Officer that Tehrir Ext. A-1 was written by Baijnath beyond his instructions and his thumb impression was obtained forcibly by him or by police or anybody else. A-1 was not written on his dictation or it does not bear his thumb impression and no such suggestion was ever put to PW1 or any other prosecution witnesses or Investigation Officer that Tehrir Ext. A-1 was written by Baijnath beyond his instructions and his thumb impression was obtained forcibly by him or by police or anybody else. In view of above evidence on record, we find that the learned trial court has rightly held that prosecution has successfully proved that: (i) Written report (Tehrir) of incident in question was written by Baijnath at the dictation/instructions of accused Maiyadin, upon hearing/understanding which he put his thumb impression accepting the same, (ii) Upon submission of written report (Tehrir) Ext. A-1 by accused-appellant Maiyadin at the Police Station Mahoba, District Hamirpur, chik FIR Ext. A-8 was prepared at Case Crime No. 70 of 1982. (iii) Lodging of FIR :- The prosecution evidence on record shows that upon submission of Tehrir Ext. A-1 by accused-appellant Maiyadin at Police Station, chik FIR Ext. A-8 was prepared after registering Case Crime No. 70 of 1982 under Section 302 IPC at 6:15 a.m. on 12.03.1982, of which entry was made in General Diary Ext. A-9, duly proved by PW6 constable Shyam Sundar. According to G.D. Ext. A-9 upon submission of Tehrir Ext. A-1 by Maiyadin himself duly scribed by Baijnath. FIR Ext. A-8 was lodged. There is nothing to disbelieve above G.D. entry and statement of PW6 that FIR was lodged by accused-appellant himself. In agreement with the findings of trial court, we are also of the considered view that it is fully proved from the evidence on record that the accused-appellant got the Tehrir scribed by Baijnath on his dictation and by submitting above Tehrir Ext. A-1 at P.S. Mahoba, District Hamirpur himself lodged the FIR Ext. A-8. (iv) Recovery of dead body of Shyam Bai deceased (wife of accused) and the weapon of crime, Kulhari (axe) in question at pointing of accused-appellant :- PW8 S.I. V.K. Singh in his statement on oath has proved the chik FIR as Ext. A-8, memo of recovery of dead body and bloodstained axe as Ext. A-2, memo of recovery of bloodstained and simple earth as Ext. A-3, memo of recovery of bloodstained and simple BAN of the cot as Ext. A-8, memo of recovery of dead body and bloodstained axe as Ext. A-2, memo of recovery of bloodstained and simple earth as Ext. A-3, memo of recovery of bloodstained and simple BAN of the cot as Ext. A-4 and memo of recovery of bloodstained clothes of the deceased as Ext A-5, apart from other documentary evidence on record. Ext. A-2 memo of recovery of dead body of Shyam Bai wife of accused, alongwith recovery of a small bloodstained axe with handle, the weapon of crime shows that Investigating Officer came at the spot along with constable and accused Maiyadin in presence of witnesses Phool Singh and Rameshwar and recovered the dead body of his wife from the western room alongwith a bloodstained axe with handle at the pointing of accused-appellant and prepared recovery memo in their presence. He has also stated that at the same time he also prepared memo Ext. A-3, A-4 and A-5 for recovery of bloodstained and simple earth from the spot, bloodstained & simple BAN of cot as well as bloodstained clothes, dhoti and blouse of the deceased, in their presence which bear thumb impression/signature of accused appellant Maiyadin, Phool Singh and Rameshwar. The two witnesses of above recovery, Rameshwar and Phool Singh have been produced as PW3 and PW5. PW3 Rameshwar in his statement on oath has stated that dead body of wife of accused and the bloodstained axe were recovered by the Investigating Officer in his presence and he had put his thumb impressions over the recovery memos after hearing above recovery memos and Phool Singh also put his signatures in his presence. He has also stated that bloodstained and simple earth, bloodstained and simple BAN of the cot and bloodstained clothes of the deceased were also taken into possession by the Investigating officer in his presence. PW5 Phool Singh has also stated on oath that from inside the room of house of Maiyadin the dead body of his wife and bloodstained axe were recovered by Investigating Officer in his presence and being educated he signed memo of recovery though without reading the recovery memos. It is noteworthy that PW3 and PW5 have corroborated the recovery as well as signing of memos mentioned above executed by Investigating Officer PW8, V.K. Singh Sub Inspector. It is noteworthy that PW3 and PW5 have corroborated the recovery as well as signing of memos mentioned above executed by Investigating Officer PW8, V.K. Singh Sub Inspector. The Investigating Officer PW8 has stated that he came on the spot along with accused-appellant and made recovery on the pointing of accused-appellant Maiyadin. PW2 the then Pradhan has also stated that in morning Investigating Officer came to his house with accused in his custody and upon being asked by Investigating Officer; he accompanied him upto the house of accused where the dead body of wife of accused was lying and a bloodstained axe was also lying near the cot with blood on the bed as well as clothes. The statement of PW5, an educated person that he signed the memo of recovery without reading it over has no significance and may not be believed Istly because he signed Exts. A-2 to A-5 knowing them to be recovery memos, IIndly because PW3 Rameshwar has stated on oath that he had put his thumb impressions on the recovery memo Ext. A-2 after it was read over to him in presence of PW5 and IIIrdly because memo of recovery Ext. A-2 clearly mentions that Investigating Officer reached the spot with two constables and accused Maiyadin. Hence presence of accused-appellant Maiyadin at the time of recovery as well as recovery of the dead body of his wife as well as bloodstained axe, the weapon of crime etc., at his pointing may not be disbelieved. In view of statements of PW2 and PW8, the contention of PW3 and PW5 about absence of accused-appellant at the time of recovery and preparation of recovery memos are self-contradictory and may not be believed particularly when PW3 admits that memo were read over to him. Upon careful consideration of above evidence on record, we are of the considered view that the prosecution has successfully established by reliable and cogent evidence that the dead body of wife of accused-appellant as well as the weapon of crime etc. were recovered at the pointing of accused-appellant from the room inside his house. The trial court has not committed any mistake in his findings on above point. were recovered at the pointing of accused-appellant from the room inside his house. The trial court has not committed any mistake in his findings on above point. (v) Injuries on the neck of accused-appellant :- As per averments made in the FIR during the incident in question when the accused wielded axe on his wife, she grappled him by neck and caused injuries over his neck by frictions of her nails. After completion of prosecution evidence, the accused-appellant in his statement under Section 313 Cr.P.C. has tried to make a defence and explain his injuries by stating that, "on the fateful night some miscreants entered in his house, who were wielding axes in the darkness, upon which he cried and came out, but corner of one axe hit him, while miscreants caused death of his wife. In view of the medical evidence as well as other evidence on record, it is fully proved that injuries on the neck of accused-appellant were caused by the deceased by her nails when she grappled him by his neck and the allegations to the contrary of entry of miscreants causing of death of his wife and axe injury on his neck are absolutely wrong and incorrect." It is pertinent to mention that after completion of prosecution evidence on 30.09.1983, the contention of entry of miscreants on the fateful night and causing of death of his wife by them as well as causing of axe injury to him has been raised by accused-appellant for the first time in his statement under Section 313 Cr.P.C. on 01.08.1983 and no such suggestion was ever put to any of the prosecution witnesses. PW2 Purshottam Das Pradhan has stated in his cross-examination dated 5.03.1983 that dacoity was committed at the house of grandfather of accused-appellant about two years ago i.e. in or around March 1981, just one year before the incident in question dated 12.03.1982. PW2 Purshottam Das Pradhan has stated in his cross-examination dated 5.03.1983 that dacoity was committed at the house of grandfather of accused-appellant about two years ago i.e. in or around March 1981, just one year before the incident in question dated 12.03.1982. It is also pertinent to mention that the accused-appellant is a potter/Kumhar and is alleged to be person of meagre means and the allegations of committal of dacoity by some miscreants at his house on the date of incident is highly unbelievable particularly in view of the fact that Istly dacoity had taken place at his house on previous year, IIndly dacoity was not an annual event, IIIrdly accused-appellant had no enmity with someone, IVthly in the alleged incident of dacoity no loot is alleged to have been made by alleged miscreants, Vthly it is highly improbable that all of a sudden, few miscreants or dacoits would have attacked at the house of accused-appellant and after letting him to flee away, would have caused murder of his wife without making any loot or without causing any injury to any other member, while evidence on record shows that there were brothers, parents and grandfather of the accused-appellant, VIthly the allegations of entry of miscreants with axes and wielding axes (Kulharies) is also highly improbable. VIIthly accused-appellant sustained multiple linear abrasions in zig zag fashion over an area of 5 c.m. x 6 c.m. over neck, which may not be caused by axe blow, under any imagination. The contention of accused-appellant that before managing to flee away, he was hit by corner of an axe, wielded by miscreants may also highly unbelievable as his medical report states of multiple linear abrasions in zig zag fashion over 5 c.m. X 6 c.m. area of his neck, which may not be sustained by an axe blow. Undisputedly, Axe or Kulhari is a sharp edged weapon with wooden handle and by its single blow, single deep cut wound or incised wound will be sustained and even in case of light blow, multiple abrasions may not be caused. PW4 Dr. Ghan Syam Pandey, the Medical Officer of Government Hospital, Mahoba who has also proved the injury report of accused-appellant as Ext. PW4 Dr. Ghan Syam Pandey, the Medical Officer of Government Hospital, Mahoba who has also proved the injury report of accused-appellant as Ext. A-7 has stated that on 12.03.1982 at 3:30 p.m. he examined the accused-appellant, who had sustained multiple linear abrasions over an area of 6 c.m. x 5 c.m. in front of neck in thyroid cartilage, length varying 3 c.m. to 1 c.m. in zig zag fashion which could have been sustained at 10 p.m. on 11.03.1982 by frictions of nails. The above witness has not been suggested that above injuries could have been sustained with the corner of an axe. In absence of any reliable, cogent and trustworthy evidence, the superficial and simple nature of injuries caused to accused-appellant, may not be believed to have been sustained by an axe blow, as stated by accused-appellant in his statement under Section 313 Cr.P.C. It is also noteworthy that there is no whisper of accused-appellant having enmity with someone, who may have committed the alleged dacoity and even in such case there can be no reason for accused-appellant for sparing the real culprits and getting the written report (Tehrir) Ext. A-1 scribed from Baijnath. None of the prosecution witnesses of facts PW1, PW2 and PW3 or Investigating Officer PW8 have been suggested that any such incident was committed by miscreants or dacoits at the house of accused-appellant on the date of incident. There is no suggestion even to Investigating Officer PW8 that any such incident had occurred and the police instead of lodging FIR against the real culprits, lodged it against first informant himself. We find force in the argument of learned A.G.A. that had any such incident by the miscreants, been occurred, naturally FIR would have been lodged either by the accused-appellant or by his family members or at least by his neighbours, and in absence of any such report, the contention of accused-appellant about alleged dacoity by miscreants, in his statement under Section 313 Cr.P.C. is wrong, concocted and incorrect and may not be relied. In view of the discussions made above, we are of the considered view that the prosecution has fully established by reliable, cogent and trustworthy evidence that the injuries on the neck of accused-appellant were sustained by frictions of nails of the deceased in scuffle during the incident, when she grappled the accused by his neck in an attempt to save her life. (vi) Motive :- As per prosecution case, in view of the averments made in the F.I.R. and other evidence on record since the accused had suspicion over fidelity of his wife, (who was in advanced stage of six months pregnancy, as per post mortem report Ext. A-6) and on the fateful night when she returned from call of nature with inordinate delay, due to suspicion over her character, he caused indiscriminate axe blows on vital parts of her body resulting in her death on the spot. The post mortem report of Shyam Bai Ext. A-6 states that the deceased sustained 9 incised wounds, mostly over head, neck and other vital parts of the body which were sufficient in ordinary course to cause her death. We find that suspicion on fidelity of wife was sufficient to form motive of accused-appellant for committing murder of his wife. 13. We fully agree with the findings of trial court on point that accused-appellant had sufficient motive to cause death of his wife. 14. Upon careful consideration of evidence on record as discussed above, we find that the prosecution has successfully proved its case against the accused-appellant by independent, trustworthy and cogent evidence beyond any shadow of doubt that the accused-appellant committed murder of his wife due to suspicion over her illicit relationship with Rajjoo and by making a confession of his guilt before Baijnath he got the Tehrir Ext. A-1 scribed and further submitted the same at Police Station, Mahoba for lodging F.I.R. Ext. A-8. Thereafter, he made a statement in police custody for getting the body of deceased as well as weapon of crime recovered at his pointing, in furtherance of which recovery of the dead body of his wife and weapon of crime, bloodstained axe with handle etc. were made from the room of his house at his pointing. It is also proved from the evidence on record that accused-appellant sustained multiple linear abrasions over his neck in the scuffle with deceased during the incident in question by frictions of nails of his wife, the deceased, when she grappled him by his neck. 15. In the last, learned counsel for accused-appellant raised a new point for the first time in appeal. 15. In the last, learned counsel for accused-appellant raised a new point for the first time in appeal. He contended that the lodging of F.I.R. by accused-appellant amounts to his confessional statement before Police Officer which is not provable against him in view of provisions of Section 25 of Indian Evidence Act, 1872. In support of his arguments he has placed reliance upon the pronouncement of Apex Court in the case of Aghnoo Nagesia vs. State of Bihar, AIR 1966 SC 119 . 16. It is pertinent to mention that in the case of Aghnoo Nagesia (supra) relied by the accused-appellant, FIR of offences was lodged by the Sub-Inspector at Police Station upon the oral information given to him by the accused himself and the Apex Court held that it amounts to a confession made by accused to police officer which cannot be proved as against the person accused of the offence. In para 9 of above judgment, the Apex Court has observed as under: "9. Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found under the heading "Admissions". Confession is a species of admission, and is dealt with in Sections 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides : "No confession made to a police officer, shall be proved as against a person accused of an offence." The terms of s. 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by s. 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by s. 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by Sections 24, 25 and 26. It provides 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. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-s (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of s. 27 of the Evidence Act. The words of s. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under s. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. The words of s. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under s. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by s. 27 of the Evidence Act, a confession by an accused to a police office is absolutely protected under s. 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by s. 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by s. 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them." 17. Per contra learned A.G.A. Submitted that above case law is not applicable to the different facts of this case and appellant is not entitled to any benefit in view of law laid down in above pronouncement by Apex Court. 18. In respect with the above argument advanced by learned counsel for accused-appellant, we find it appropriate to reproduce the provisions of Sections 24 to 27 of the Indian Evidence Act, 1872, as to which confessional statements can be proved or cannot be proved before law, as follows:- "24. 18. In respect with the above argument advanced by learned counsel for accused-appellant, we find it appropriate to reproduce the provisions of Sections 24 to 27 of the Indian Evidence Act, 1872, as to which confessional statements can be proved or cannot be proved before law, as follows:- "24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. 25. Confession to police officer not to be proved- No confession made to a police officer, shall be proved as against a person accused of any offence. 26. Confession by accused while in custody of police not to be proved against him.- No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. 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." 19. In framing above provisions of Sections 24 and 27 of the Indian Evidence Act with regard to possibility of various confessional statements, the enactment has taken care of any foul play if any on the part of police, however in view of above provisions mere lodging of FIR by accused himself, may not be considered to be a boon providing him absolute immunity against conviction as well as wide passage for escaping from punishment in each and every case. 20. 20. It is pertinent to mention that in the case of Aghnoo Nagesia (supra) F.I.R. was lodged by the police inspector/officer upon the oral information given to him by the accused himself which falls in the category of confession under Section 25 of the Indian Evidence Act. As against it, in the case in hand a written report (Tehrir) Ext. A-1 was got scribed by the accused-appellant from Baijnath PW1 and same was taken and submitted by him at Police Station for lodging of FIR on the basis of which Tehrir Ext A-1 chik F.I.R. Ext. A-8 was lodged at Case Crime No. 70 of 1982. In the circumstances, facts of this case are entirely different from the case of Aghnoo Nagesia and the allegations made in Tehrir Ext. A-1 may at the most may amount to a confessional statement of accused-appellant made to Baijnath PW1, which falls in the category of a confessional statement under Section 24 of the Indian Evidence Act and not under Section 25 unlike the case of Aghnoo Nagesia (supra). 21. The evidence on record shows that after incident in question in which accused-appellant committed murder of his wife, his grand father, Mangi approached the Village Pradhan, Purshottam Das PW 2 who advised him for lodging of the report and surrender by accused-appellant before the police and in furtherance of the advice of Village Pradhan accused-appellant appears to have approached Baijnath, PW1, got scribed the Tehrir Ext. A-1 by dictating and narrating the incident to him and then taken and submitted the same before the Police Inspector at Police Station-Mahoba for lodging of FIR where Case Crime No. 70 of 1982 was registered and chik FIR Ex. A-8 was lodged against the accused-appellant, first informant himself under Section 302 IPC for causing murder of his wife. 22. There is nothing in evidence on record to indicate that the confessional statement of accused-appellant before Baijnath PW1 for getting Tehrir (Ext A) scribed which falls under Section 24 of the Indian Evidence Act was taken by any inducement, threat or promise, so it can safely be proved and relied against the accused-appellant and since it does not fall in category of a confessional statement under Section 25 of the Act the bar provided under Section 25 of the Evidence Act does not come in the way and is not applicable in this case. It is also pertinent to mention that after lodging of FIR the accused was taken into custody and in consequence of the disclosure made by him in his statement to the police officer, the recovery of dead body of Shayam Bai, wife of accused-appellant as well as the bloodstained axe, the weapon of crime etc. were made from the room inside his house on his pointing and so this part of information given by him is also admissible and provable in evidence as against him, under the provisions of Section 27 of the Indian Evidence Act. 23. It is pertinent to mention that in the case of State of U.P. vs. Deoman Upadhyaya AIR 1960 SC 1125 the Constitutional Bench of the Apex Court considered the scope and applicability of provisions of Sections 24, 25, 26 and 27 of the Evidence Act. The observations made by Constitutional Bench in para 9 and 10 of the above judgment are as under: "(9) On an analysis of Ss. 24 to 27 of the Indian Evidence Act, and S. 162 of the Code of Criminal Procedure, the following material propositions emerge:- (a) Whether a person is in custody or outside, a confession made by him to a police officer or the making of which is procured by inducement, threat or promise having reference to the charge against him and proceeding from a person in authority, is not provable against him in any proceeding in which he is charged with the commission of an offence. (b) A confession made by a person whilst he is in the custody of a police officer to a person other than a police officer is not provable in a proceeding in which he is charged with the commission of an offence unless it is made in the immediate presence of a Magistrate. (c) That part of the information given by a person whilst in police custody whether the information is confessional or otherwise, which distinctly relates to the fact thereby discovered but no more, is provable in a proceeding in which he is charged with the commission of an offence. (d) A statement whether it amounts to a confession or not made by a person when he is not in custody, to another person such latter person not being a police officer may be proved if it is otherwise relevant. (d) A statement whether it amounts to a confession or not made by a person when he is not in custody, to another person such latter person not being a police officer may be proved if it is otherwise relevant. (e) A statement made by a person to a police officer in the course of an investigation of an offence under Ch. 14 of the Code of Criminal Procedure, cannot except to the extent permitted by S. 27 of the Indian Evidence Act, be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when the statement was made in which he is concerned as a person accused of an offence. (10) A confession made by a person not in custody is therefore admissible in evidence against him in a criminal proceeding unless it is procured in the manner described in S. 24, or is made to a police officer. A statement made by a person, if it is not confessional, is provable in all proceedings unless it is made to a police officer in the course of an investigation, & the proceeding in which it is sought to be proved is one for the trial of that person for the offence under investigation when he made that statement. Whereas information given by a person in custody is to the extent to which it distinctly relates to a fact thereby discovered, is made provable, by S. 162 of the Code of Criminal Procedure, such information given by a person not in custody to a police officer in the course of the investigation of an offence is not provable. This distinction may appear to be somewhat paradoxical. Sections 25 and 26 were enacted not because the law presumed the statements to be untrue, but having regard to the tainted nature of the source of the evidence, prohibited them from being received in evidence. It is manifest that the class of persons who needed protection most where those in the custody of the police and persons not in the custody of police did not need the same degree of protection. It is manifest that the class of persons who needed protection most where those in the custody of the police and persons not in the custody of police did not need the same degree of protection. But by the combined operation of S. 27 of the Evidence Act and S. 162 of the Code of Criminal Procedure, the admissibility in evidence against a person in a criminal proceeding of a statement made to a police officer leading to the discovery of a fact depends for its determination on the question whether he was in custody at the time of making the statement. It is provable if he was in custody at the time when he made it, otherwise it is not. " 24. It is pertinent to mention that since the accused-appellant was having doubt over fidelity of his wife and her illicit relationship with Rajju S/o Ram Charan Basor of the village, it was quite natural for him also to doubt the parentage of child in womb of deceased, as nobody may be expected to accept the pregnancy of his wife through another person. In such circumstances on the fateful night of 11.03.1982 when the deceased went to attend the call of nature in the night and returned with inordinate delay his suspicion was further strengthened, following which quite naturally he would have been filled with anger. The material on record also shows/ indicates that on her coming back with inordinate delay, some hot talks would have exchanged between the husband and wife during which deceased appears to have grappled accused-appellant by his neck, causing nail injuries and multiple linear abrasion over his neck which caused sudden and grave provocation to him by the deceased deriving him power of self control and in a fit of anger, by taking out the axe he gave multiple axe blows to his wife causing grievous injuries on vital parts of her body resulting in her death on the spot. 25. 25. We find that in view of material on record the accused-appellant is not a hardcore criminal rather is a poor potter/Kumhar and it appears that upon death of his wife Shyam Bai, in fit of anger due to sudden and grave provocation, when he realized that an offence of murder has been committed by him, upon advice of his grandfather, Village Pradhan Purshottam Dass PW2 and family members, he opted to get the Tehrir Ext A-1 of incident scribed by Baijnath and submitted the same at police station for lodging FIR of the incident and simultaneously surrendered himself before the Police, so that he make seek mercy under the circumstances. 26. In view of the discussions made above, we are of the considered view that the facts of the case in Aghnoo Nagesia (supra) are totally different from the facts of this case and neither the FIR Ext. A-8 lodged by accused-appellant is incapable of being proved against him in view of provisions of Section 25 of the Indian Evidence Act nor the accused-appellant is entitled to get any benefit under above case law. 27. All the prosecution witnesses though have corroborated the committal of incident as mentioned in FIR, but all of them appears have shown a soft corner towards the accused-appellant. It appears that realizing the truth of the incident and correctness of allegations about illicit relationship of deceased with Rajjoo with a feeling that in the circumstances the accused-appellant was not unjustified in committing death of his wife, the prosecution witnesses having pity on him have tried to deviate to some extent, and make minor charges so that accused-appellant may get mercy under law. 28. Though it has not been argued by the learned counsel for the accused-appellant but after considering the totality of facts and evidence on record, we find that as per prosecution case, accused-appellant was having suspicion over illicit relationship of his wife with Rajju as well as her pregnancy by him, and on fateful night when she returned from the call of nature with inordinate delay his suspicion was strengthened further. From the averments made in FIR and medical examination report of accused-appellant Ext. From the averments made in FIR and medical examination report of accused-appellant Ext. A-7 it can be safely inferred that the return of deceased from call of nature with inordinate delay, enhanced anger in the mind of accused-appellant, resulting in exchange of hot-talks and scuffle between them during which the deceased grappled accused by neck causing nail injuries (multiple linear abrasions) over his neck, which added fire and caused grave and sudden provocation to the accused-appellant, and consequently upon being deprived of the power of self-control, he by taking out axe, gave multiple axe blows causing grievous and fatal injuries on vital parts of the body of deceased resulting in her death on the spot. 29. Considering the totality of facts and evidence on record, we find that the accused-appellant is not alleged to be a person of criminal antecedents, and has been honest in reporting the incident correctly, we are of the considered view that his case is covered by exception (1) to Section 300 IPC and he is entitled to the benefit under above provisions of law for holding that the committal of incident in question by him resulting in death of his wife falls within the category of culpable homicide not amounting to murder and he is liable to be convicted for the offence of committing culpable homicide of his wife punishable under Section 304 IPC and not liable to be convicted for the offence of committing murder punishable under Section 302 IPC. The learned trial Court has failed to appreciate this aspect in the incident in question and has acted wrongly and illegally in convicting the accused-appellant for the offence punishable under Section 302 IPC. 30. In view of the discussions made above, we find that the appeal is liable to be allowed and the impugned judgment and order of conviction and sentence under Section 302 IPC are liable to be set aside and modified by convicting the accused-appellant for the offence punishable under Section 304 Part I IPC and sentencing him with rigorous imprisonment for a period of 7 years and fine of Rs. 5,000/- 31. The appeal is allowed. The impugned judgment and order of conviction under Section 302 IPC is set aside and accused-appellant is held guilty and convicted for the offence of committing culpable homicide punishable under Section 304 IPC. The sentence is also modified accordingly. 5,000/- 31. The appeal is allowed. The impugned judgment and order of conviction under Section 302 IPC is set aside and accused-appellant is held guilty and convicted for the offence of committing culpable homicide punishable under Section 304 IPC. The sentence is also modified accordingly. The conviction of accused-appellant under Section 302 IPC is set aside and by modification is converted in conviction for offence of culpable homicide punishable under Section 304 IPC. The sentence of accused-appellant of life imprisonment u/s 302 IPC is accordingly set aside and he is sentenced with rigorous imprisonment for a period of 7 years and fine of Rs. 5,000/- u/s 304 IPC and in case of default in payment of fine he will have to undergo simple imprisonment for an additional period of two months. Pending appeal on issuance of N.B.W. the appellant has surrendered to custody on 12.2.2018 and is in custody. He shall be released after undergoing complete sentence. 32. It is made clear that the period of his imprisonment during trial or during this appeal shall be deducted from total period of imprisonment and he will have to undergo only remaining period of sentence. 33. Let the lower court record be sent back to the court below along with a copy of this judgment for ascertaining necessary compliance. The material exhibits, if any, shall be disposed of in accordance with rules after expiry of period of limitation for appeal or after disposal of appeal, as the case may be.