JUDGMENT : J.B. Pardiwala, J. 1. The present appeal is at the instance of a convict - original accused no. 1 of the offences punishable under Sections-302, 449 and 201 of the Indian Penal Code and is directed against the judgment and order of conviction and sentence dated 31st March, 2015 passed by the Additional Sessions Judge, Jetpur in the Sessions Case No. 10 of 2013. 2. By the aforesaid order, the Additional Sessions Judge, Jetpur found the appellant herein guilty of the offences punishable under Sections-302, 449 and 201 of the Indian Penal Code and consequently, sentenced her to suffer life imprisonment with fine of Rs. 5,000/- and in default of the payment of the amount of fine, to undergo further one year of simple imprisonment. The appellant also came to be convicted for the offence punishable under Section-449 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for a period of ten years with fine of Rs. 2,000/- and in default of the payment of the amount of fine, to undergo simple imprisonment for a period of one year. The appellant has also been convicted for the offence punishable under Section-201 of the Indian Penal Code and has been sentenced to undergo two years of rigorous imprisonment with fine of Rs. 1,000/- and in default of the payment of the amount of fine, to undergo three months of further simple imprisonment. 3. CASE OF THE PROSECUTION:- One Shri N.K. Vyas serving at the relevant point of time as a Police Sub Inspector of the Jetpur Taluka Police Station lodged an FIR dated 11/11/2011 inter alia stating as under:- The accused lady wanted to elope with her paramour and therefore, she killed Jiviben Lakhmanbhai Mandani, an old lady aged about 90-95 years of the village, by strangulating her. The accused, thereafter, brought the dead-body of the lady to her house, poured kerosene on the dead-body and set it ablaze to destroy the evidence and to show that she has died. She burnt her own clothes on the dead-body and thus she committed an offence. Date: 11/11/2011 I, N.K. Vyas, Police Sub-Inspector, Jetpur Taluka Police Station, hereby state that, I am serving as PSI in the Jetpur Taluka Police Station. She burnt her own clothes on the dead-body and thus she committed an offence. Date: 11/11/2011 I, N.K. Vyas, Police Sub-Inspector, Jetpur Taluka Police Station, hereby state that, I am serving as PSI in the Jetpur Taluka Police Station. My duty is to maintain law and order in the Jetpur Taluka Police Station area and to make investigation into the offences taking place within the limit of Jetpur Taluka Police Station. The primary investigation of the offence under Section-498A, 306, 201, 114 of the IPC registered vide C.R. No. 68/11 at Jetpur Taluka Police Station was held by PSI Mr. M.L. Dave and subsequent to his transfer, the said investigation was handed over to me, which is going on. The complainant Mr. Jilubhai Nanabhai Basiya, residing at Galath Barwala, Taluka Bhesan, stated that his daughter namely Manishaben @ Meenaben, aged 25 years, was residing at her matrimonial home at Rupavati Village of Jetpur Taluka with her husband Harsukhbhai Lakhubhai Khuman. On being physically and mentally tortured by her husband, father-in-law's brother Valkubhai and cousin brother-in-law Jayraj, she was compelled to die and therefore, she set ablaze herself in the early morning on 26/06/2011 and succumbed and they completed her final rituals after the death. During the investigation, the Investigating Officer PSI Mr. R.L. Dave drew panchnama on 04/07/2011 between 18 O'clock and 19 O'clock and collected the soil, control sample soil and human relics for the purpose of the investigation in presence of the panchas: (1) Lavjasbhai Pachabhai Palera, residing at: Rupavati and (2) Parbatbhai Keshubhai Dhaduk, residing at: Rupavati and the same were sent to the FSL for medical examination. Moreover, the scene of offence was got examined by the Scientific Officer and under his supervision, white plastic cane smelling with kerosene was also seized. During the investigation in the said case, today on 11/11/2011 at 16:05 hours, Mr. K.H. Gohil, In-charge P.I., LCB, Rajkot Rural came at the Jetpur Taluka Police Station and made entry in the station diary and he had given report that he himself, PSI Mr. M.B. Jani, PC Mr. Kalubhai Dangal, PC Mr. Bavalal, Woman PC Ms. During the investigation in the said case, today on 11/11/2011 at 16:05 hours, Mr. K.H. Gohil, In-charge P.I., LCB, Rajkot Rural came at the Jetpur Taluka Police Station and made entry in the station diary and he had given report that he himself, PSI Mr. M.B. Jani, PC Mr. Kalubhai Dangal, PC Mr. Bavalal, Woman PC Ms. Ritaben Bhatt and other staff received the information through private sources that the victim - deceased Meena @ Manisha, W/o. Harsurbhai Lakhubhai Khuman, residing at: Rupavati involved in the offence punishable under Section-306 of the IPC registered with the Jetpur Taluka Police Station under C.R. No. 68/11, is alive and has arrived to her native at Rupavati, Ta: Jetpur. On the basis of the said information, I kept a vigil along with the aforementioned staff on the road near the bus stand of Jetalsar village. Meanwhile, one lady in a suspicious behaviour was found on the Rupavati road, and upon interrogating, she told her name to be Meena @ Manisha W/o. Harsurbhai Lakhubhai Khuman, Aged 27 years, residing at: Rupavati, Taluka: Jetpur and presently residing at Village: Miti, Ta. Manavadar, Dist. Junagadh, She further stated during the interrogation that she was in love with Jesa Giga Mer and she intended to live with her paramour, therefore, she eloped. To show to her family members that she has died, she strangulated one Jiviben Sagar, a lady aged about 90-95 years, residing at Rupavati at her home and brought her dead-body near her house, set her on fire and threw her clothes on her dead-body and fled away from that place. She eloped with her paramour Jesa Giga Mer and was residing at Miti, Ta. Manavadar. A panchnama regarding her physical condition was drawn between 13:30 and 14:00 hours in presence of the panchas (1) Jitendrabhai Balubhai Maru, Aged 42 Years, Residing at: Jetalsar Junction and (2) Rameshbhai Lakhmanbhai Dabhi, Residing at: Rupavati. She stated in presence of the said panchas that her name is Meena @ Manisha W/o. Harsurbhai Lakhubhai Khuman, Aged 27 Years, Residing at: Rupavati, Taluka: Jetpur. Upon a search being made of her purse, one original card with a round seal of electoral registration officer in the name of Basiya Manishaben Jilubhai, Date of Birth: 1985, Address: 30, Old Gamtal Galath-1, Ta. Bhesan, was recovered for the purpose of investigation. In the statement before the PI Mr. Upon a search being made of her purse, one original card with a round seal of electoral registration officer in the name of Basiya Manishaben Jilubhai, Date of Birth: 1985, Address: 30, Old Gamtal Galath-1, Ta. Bhesan, was recovered for the purpose of investigation. In the statement before the PI Mr. K.H. Gohel, Meena @ Manisha W/o. Harsurbhai Lakhubhai Khuman, Aged 27 Years, Residing at: Rupavati, Taluka: Jetpur and presently residing at Village: Miti, Ta. Manavadar, Dist. Junagadh, she stated that at about nine months ago at one wedding occasion, she made a call on phone no. 9727223523 of her brother Umed from her phone no. 9925508638, however, it was connected on a wrong number. She, therefore, disconnected the call. However, she received call from the mobile no. 9727223623 twice or thrice, which was dialed by mistake. Thereafter, frequent calls were received from the said mobile number. She, therefore, called on the said number and told him that the number was dialed by mistake. Despite the same, the person continued to contact me frequently. I asked about his name and he stated his name to be Jayesh Mer, residing at: Porbandar. Upon asking my name and address, I gave him the details. Upon frequent conversations, I entered into love-relation with him. I, therefore, decided to flee from my marital home and to live with Jayesh Mer. He was also insisting me to leave the home. Therefore, I decided to kill Jiviben Sagar, who was residing a little far away from my martial home. She was impaired by vision and hearing, single body and an old lady. So I thought of setting her on fire so that her dead-body cannot be identified and my family members would believe that I died due to burning and therefore I may not face any difficulty. I firmly determined to do so. Hence, on 26/06/2011 at about 4 O'clock in the morning, I went to the house of Jiviben, who was sleeping on a cot. I gagged her mouth and strangulated her. Thereafter, I carried her dead-body to a godown and from there, I dragged it to a plot behind my home. I poured kerosene on her dead-body and set her on fire. Thereafter, I threw my clothes on to the dead-body and set it on fire. Thereafter, I went to Junagadh via Ranuja Mandir and Umrala and telephoned Jayesh, who was in Rajkot. I poured kerosene on her dead-body and set her on fire. Thereafter, I threw my clothes on to the dead-body and set it on fire. Thereafter, I went to Junagadh via Ranuja Mandir and Umrala and telephoned Jayesh, who was in Rajkot. I went to Rajkot and met him. He told his original name to be Jesabhai Gigabhai Kadsa Mer, and said that everybody calls him Jayesh. He took me with him alongwith a truck cleaner to Porbandar from Rajkot via Jamnagar. I entered into a friendship contract with him through an advocate in Manavadar and I was residing at Miti village. As she was remembering of her son, she went to meet him. Meanwhile, Hiraben Gangabhai Rabari inquired of her and she stated the fact of the incident. Thus, upon further interrogation of Meenaben @ Manishaben W/o. Harsurbhai Lakhubhai Khuman, Aged 27 Years, Residing at: Rupavati, she stated before the PI, LCB that her statement is true and correct. The fact was disclosed during the investigation of the offence punishable under Section-306 of the IPC declared at C.R. No. 68/11 at Rupavati village. An old lady, namely Jivuben Lakhmanbhai Mandani, aged 90 years, who was residing alone at Rupavati Village, was not found to the postman who went to pay the amount of money order to the lady. The said fact was declared by the Talati-cum-Mantri, Rupavati and the Sarpanch, Rupavati, on letter-pad dated 29/06/2011 of the Rupavati Gram Panchayat through Post, which was recorded in the station diary on 02/07/2011. Thus, as Meena @ Manisha W/o. Harsurbhai Lakhubhai Khuman, Aged 27 Years, Residing at: Rupavati, Taluka: Jetpur, in order to elope with her paramour, strangulated an old lady, namely Jiviben Lakhmanbhai Mandani, aged about 90-95 years, on 26/06/2011 in the early morning and destroyed the evidences. She set her on fire by pouring kerosene and thus, she committed an offence punishable under Sections-449, 302, 201 of the IPC. I lodge this complaint against her. My witnesses are the IO, PSI Mr. R.L. Dave, PI Mr. K.H. Gohel, FSL Officer Mr. _____ and others whosoever found during the investigation. This is my complaint. 13. (a) Registered the offence and took up the investigation. (b) Mr. N.K. Vyas, Designation: PSI, B. No. -- (c) Refused investigation due to:-- (d) Transferred to P.S.:---- District:--City: ___________ The complainant has been read over to the complainant and he placed his signature on it. _____ and others whosoever found during the investigation. This is my complaint. 13. (a) Registered the offence and took up the investigation. (b) Mr. N.K. Vyas, Designation: PSI, B. No. -- (c) Refused investigation due to:-- (d) Transferred to P.S.:---- District:--City: ___________ The complainant has been read over to the complainant and he placed his signature on it. A copy given to the complainant at free of cost. 14. Signature/Thumb impression of the Complainant:- In Gujarati (N.K. Vyas) 15. Date and time of dispatch to the concerned court: 11/11/2011 to the Jetpur Court. Sd/- (Illegible) Signature of PSO Name: R.B. Yadav Rank: CHC, B. No. 330 Admitted in Evidence in S.C. No. 10/2013 vide Exh-121, proved by Exh-119. Sd/- (Illegible) Add. Sessions Judge Jetpur. 4. Thus, it appears from the materials on record that the appellant is a married lady. She is married to one Harsurbhai Khuman [P.W.-21]. In the wedlock, two children were born; a son and a daughter. The appellant got into an illicit-affair with the original accused no. 2 [acquitted] viz. Jesabhai Gigabhai Mer. The appellant wanted to abandon her husband and children so as to live the rest of her life with her paramour viz. Jesabhai Gigabhai Mer. It appears that the appellant found difficult to run away from her matrimonial home and in such circumstances, she conceived a very deadly idea in her mind. She decided to kill one old lady aged 90, residing in the same locality and thereafter, stage a show as if the appellant herself had committed suicide. It is the case of the prosecution that the appellant committed murder of Jiviben @ Jivumaa Lakhmanbhai Mandan Sagar and burnt her body to the extent that it was reduced to ashes. While burning the body of Jiviben, the appellant threw her clothes in the fire to create an impression as if she herself had committed suicide. This is a case in which the corpus delicti was not recovered. What could be recovered was just few remains of Jiviben. The DNA test also could not been undertaken from the remains of the body of Jiviben reduced to ashes. The father of the appellant herein being misled by the burnt clothes of his daughter lodged an FIR at the police station for the offences punishable under Sections-306, 498A r/w. 114 of the IPC. The DNA test also could not been undertaken from the remains of the body of Jiviben reduced to ashes. The father of the appellant herein being misled by the burnt clothes of his daughter lodged an FIR at the police station for the offences punishable under Sections-306, 498A r/w. 114 of the IPC. The husband and his family members were arrested as if the appellant had committed suicide on account of the harassment caused to her. While the investigation of the FIR lodged by the father of the appellant herein was in progress, the police got some clue that the appellant was very much alive. In such circumstances, the police intercepted the appellant herein and upon interception, recorded her statement dated 11/11/2011 [Exh. 88]. 5. The statement of the appellant herein recorded by the appellant dated 11/11/2011, Exh. 88 is in the nature of confession. The true English translation of the statement is as under:- My name is Manishaben @ Meenaben w/o Harsurbhai Kakhubhai, Caste - Kanthi Darbar, Surname - Khuman, daughter of Jilubhai Nanabhai Basiya, Age - 27, Occupation - Household chores, Residing - presently at Miti, Taluka - Manavadar, District - Junagadh, Originally from - Rupavati village, Taluka - Jetpur, District - Rajkot. On being personally asked, I state that, I was living at my matrimonial home at the above said address in Rupavati village and I used to do household chores. My parental home is at Galath Barvala, Taluka-Bhesan. My parents and my brother Umed live there. My elder sister, namely Shilpaben, is married to Gatubhai Vala of Umrala village near Bilkha and lives there. Umed is younger to me and he is also married. I have studied upto standard 8th at our village Galath Barvala. As my elder sister got married and my mother was suffering from chest pain, I left my study and engaged in the household chores. After getting married in January, 2006 with Harsurbhai Lakhubhai Khuman of Rupavati village, I came to live at my matrimonial home in Rupavati. In Rupavati, I used to live with my in-laws and husband Harsurbhai, who works in a college at Bilkha and does farming since he has about 25 bigha of land. I have three sisters-in-law who all got married before my marriage. My husband has no brother. I have a son named Harpal who was born in 2008 in the wedlock. In Rupavati, I used to live with my in-laws and husband Harsurbhai, who works in a college at Bilkha and does farming since he has about 25 bigha of land. I have three sisters-in-law who all got married before my marriage. My husband has no brother. I have a son named Harpal who was born in 2008 in the wedlock. My husband Harsurbhai used to go for his job at around half past six in the morning and return home at around half past one or two in the afternoon. He used to go to work at the farm on holidays. I used to live in Rupavati alongwith my husband and in-laws. My father-in-law's brother Valkubhai Dadubhai and his son Jayraj, who is married and lives separately along with his wife, live near our house. They do farming. They have been living separately for many years before my marriage. My father-in-law Lakhubhai, whom I address as 'mama' (maternal uncle), suffers from respiratory problem since my marriage and he suffered a paralytic attack after my son's birth and since then, he is bed-ridden. We had a mobile phone bearing number - 9925508638 at my matrimonial home. I was also using the said mobile and sometimes I used to make phone calls from it to my relatives. On being personally asked with respect to the complaint lodged by my father Jilubhai Nanabhai Basiya, residing at Galath Barvala, before the police on 04/07/11, I state that; When I was at my matrimonial home at Rupavati village, I had developed relationship with one Jayesh Mer through telephonic conversation. Since I wanted to live with him, I left my matrimonial home at around four o'clock in the morning on 26/06/11 when my mother-in-law whom I call 'fai', my father-in-law, whom I call 'mama', my husband and my son were sleeping. Thereafter, I went to the house of Jivuben Sagar, aged about 90 to 95 years, who lived alone at the outskirt of our village. Thereafter, I gagged her with a cloth and killed her when she was sleeping on a cot in her house. Thereafter, I carried her near my house and I set her ablaze after pouring kerosene on her. When she was burning, I threw my clothes on her and I ran away from there. Thereafter, I eloped with my paramour Jayesh Mer. Thereafter, I carried her near my house and I set her ablaze after pouring kerosene on her. When she was burning, I threw my clothes on her and I ran away from there. Thereafter, I eloped with my paramour Jayesh Mer. I killed Jivuben Sagar and set her ablaze and went to my paramour on my own. I burnt Jivuben and threw my clothes on her, and therefore, my relatives believed that I had died. Therefore, my father might have lodged the complaint before the police. But, in fact I am not dead. I had run away. I got married five years ago and till that time, I lived at my in-laws' home at Rupavati village. During my married life, no any harassment was caused to me by my in-laws, my husband or my father-in-law's brother Valkubhai or his son Jayrajbhai, who is my brother-in-law. I never went to my paternal home being displeased or neither I stayed there for a long period of time. I was not harassed by my in-laws. But, since I was believed to be dead, my father was in grief, and therefore, he might have lodged this complaint. There is no any other reason. I have no complaint against my husband, my father-in-law's brother or his son. It is true that, my father-in-law's brother had sold his land. It is not true that he had occupied the land of my in-laws forcefully. However, there were general discussions about the land. As the facts mentioned above are true and correct, I put my signature below. 6. The Police after recording the statement referred to above, realized that the appellant herein had staged a show of having committed suicide, but in fact, the appellant had committed murder of Jiviben and thereafter, the body of Jiviben was burnt. 7. On registration of the FIR by the Police Officer, the investigation had commenced. The scene of offence panchnama Exh. 28 was drawn in presence of the panch-witnesses. The remains of the body of Jiviben were collected by drawing a panchnama Exh. 24. The articles collected from the place of occurrence were sent to the Forensic Science Laboratory for the serological test. Many other panchnamas were drawn. The statements of various witnesses were recorded. At the end of the investigation, chargesheet was filed in the Court of the JMFC, Jetpur. 24. The articles collected from the place of occurrence were sent to the Forensic Science Laboratory for the serological test. Many other panchnamas were drawn. The statements of various witnesses were recorded. At the end of the investigation, chargesheet was filed in the Court of the JMFC, Jetpur. The filing of the chargesheet culminated in the Criminal Case No. 467 of 2012. As the case was exclusively triable by the Sessions Court, the same came to be committed by the JMFC to the Court of the Sessions Judge, Jetpur under the provisions of Section-209 of the Code of Criminal Procedure. The committal of the criminal case culminated in the Sessions Case No. 10 of 2013. By order dated 28/06/2013, the trial Judge framed charge Exh. 13 against the appellant herein and the co-accused. The appellant and the co-accused pleaded not guilty and claimed to be tried. 8. The prosecution examined the following witnesses. (1) Deposition of witness Dr. Mansukhbhai Chhaganbhai at Exh. 19. (2) Deposition of witness - Dr. Jainikbhai Pankajbhai Shah at Exh. 21. (3) Deposition of P.W. Parbatbhai Keshubhai Dhaduk at Exh. 27. (4) Deposition of P.W. Valjibhai Virjibhai Karena at Exh. 31. (5) Deposition of P.W. Jagubhai Jadavbhai Borisagar at Exh. 34. (6) Deposition of P.W. Jitendrabhai Babulal Maru at Exh. 36. (7) Deposition of P.W. Mansukhbhai Malabhai Rathod at Exh. 44. (8) Deposition of P.W. Rambhai Bhayabhai Bandhiya at Exh. 46. (9) Deposition of P.W. Lakhabhai Naranbhai Rathod at Exh. 48. (10) Deposition of P.W. Jethabhai Rajabhai Mori at Exh. 49. (11) Deposition of P.W. Chhaganbhai Punabhai Kher at Exh. 51. (12) Deposition of P.W. Lakhmanbhai Devabhai Parmar at 52. (13) Deposition of P.W. Dineshbhai Trikambhai Rathod at Exh. 54. (14) Deposition of P.W. Javidbhai Sultanbhai Sandhi at Exh. 55. (15) Deposition of P.W. Hematbhai Muljibhai Rathod at Exh. 57. (16) Deposition of witness Anilkumar Prabhudas Gatha, Notary at Exh. 58. (17) Deposition of Sureshbhai Khimjibhai Gondaliya, Talati-cum-Mantri at Exh. 61. (18) Deposition of witness Jayrajbhai Valkubhai Kuman at Exh. 67. (19) Deposition of witness Valkubhai Maansurbhai Khuman at Exh. 68. (20) Deposition of Viravala Hathiyavala Vala, Sarpanch at Exh. 70. (21) Deposition of witness Harsurbhai Lakhubhai Khuman at Exh. 78. (22) Deposition of witness Jilubhai Nanabhai Basiya at Exh. 94. (23) Deposition of witness Umedbhai Jilubhai Basiya at Exh. 98. (24) Deposition of witness Hareshbhai Amrutlal Joshi at Exh. 103. (19) Deposition of witness Valkubhai Maansurbhai Khuman at Exh. 68. (20) Deposition of Viravala Hathiyavala Vala, Sarpanch at Exh. 70. (21) Deposition of witness Harsurbhai Lakhubhai Khuman at Exh. 78. (22) Deposition of witness Jilubhai Nanabhai Basiya at Exh. 94. (23) Deposition of witness Umedbhai Jilubhai Basiya at Exh. 98. (24) Deposition of witness Hareshbhai Amrutlal Joshi at Exh. 103. (25) Deposition of witness Hiriben Nathabhai Garchar at Exh. 104. (26) Deposition of witness Shantaben Gordhanbhai Sagar at Exh. 105. (27) Deposition of witness Madhuben Kanjibhai Sagar at Exh. 106. (28) Deposition of witness Lakhmanbhai Rambhai Garchar at Exh. 107. (29) Deposition of witness Kanjibhai Bhagwanjibhai Jogiya at Exh. 108. (30) Deposition of witness Mashribhai Virambhai Kadchha at Exh. 110. (31) Deposition of witness Ajitbhai Nagjanbhai Mer at Exh. 111. (32) Deposition of witness Arjanbhai Parbatbhai Met Odedara at Exh. 112. (33) Deposition of witness Tansukhbhai Nathalal Aashra, FSL Officer at Exh. 116. (34) Deposition of Ramjitsinh Buddhansinh Yadav, ASI at Exh. 119. (35) Deposition of Krushnakumar Himmatsinh Gohil, P.I. at Exh. 125. (36) Deposition of Shirishchandra Vinodrai Raval, Scientific Officer at Exh. 131. (37) Deposition of Kashmiraben Shaileshkumar Desai, Scientific Officer at Exh. 140. (38) Deposition of Balvantrai Dahyabhai Bera, Circle Inspector at Exh. 143. (39) Deposition of Dr. Nikunjbhai Narharibhai Brahmbhatt at Exh. 148. (40) Deposition of witness Gordhanbhai Kanabhai Karena at Exh. 170. (41) Deposition of witness Surendrabhai Suragbhai Basiya at Exh. 171. (42) Deposition of witness Parsottambhai Popatbhai Karena at Exh. 172. (43) Deposition of witness Ravjibhai Becharbhai Karena at Exh. 173. (44) Deposition of witness Vipulbhai Dhirubhai Ajani at Exh. 175. (45) Deposition of Sangitaben Meghjibhai Rathod, PSO at Exh. 178. (46) Deposition of Arjanbhai Karsanbhai Chauhan, PI at Exh. 185. (47) Deposition of Devjibhai Kurjibhai Mer, Head Constable at Exh. 200. (48) Deposition of Nitinkumar Kantilal Vyas, PSI at Exh. 203. (49) Deposition of Rameshchandra Laljibhai Dave, PSI at Exh. 226. 9. The prosecution also led the following pieces of documentary evidences. Sr. No. Particulars of the Documents Exhibit No. 1 Refer Note (Yadi) 20 2. Yadi received from Marnottar Form 22 3. Letter written by Taluka Police Station, Jetpur 23 4. Yadi forwarded for the analysis of the pieces of bones. 24 5. Yadi forwarded by the concerned Medical Officer about the aforementioned bones which were earlier sent to the Medical Officer of Government Hospital, Jetpur. 25 6. Yadi received from Marnottar Form 22 3. Letter written by Taluka Police Station, Jetpur 23 4. Yadi forwarded for the analysis of the pieces of bones. 24 5. Yadi forwarded by the concerned Medical Officer about the aforementioned bones which were earlier sent to the Medical Officer of Government Hospital, Jetpur. 25 6. Forwarding Letter of Medical Officer, Jetpur. 26 7. Panchnama of the scene of offence. 28 8. Panchnama of the scene of offence vide C.R.No.68/2011 of Taluka Police Station, Jetpur 32 9. Slip bearing the signatures of the Pancha regarding the Panchnama of the seizure of muddamal. 33 10. Panchnama about producing of Marriage Invitation Card. 35 11. Cover along with Marriage Invitation Card which was taken out by opening the cover. 36 12. Two slips bearing the signatures of the Pancha. 37, 38 13. Panchnama. 43 14. Panchnama of accused no.1 about his willingness to show something on being detaining him. 45 15. Panchnama about the seizure of the articles from the scene of offence. 47 16. Panchnama of the seizure of the amount which the accused no. 2 had received by selling the ornaments. 50 17. Panchnama of the seizure of ornaments, which the accused no.2 had sold. 53 18. Panchnama about producing the mould of the ornaments. 56 19. Copy of the abstract of Notary Register (Entry no.1018 & 1019) 59 20. Photocopy of document related to Livein Relationship 60 21. Certificate of the Death note/entry of accused no.1. 62 22. Abstract of the Register of Death entries. 63 23. Letter written to the Taluka Police Station, Jetpur informing about missing of Jivima. 64 24. Election Card and Order about the Relief for helpless older persons of Jivima. 65 25. Application submitted by Harsukhbhai to get the Certificate of Death entry. 66 26. Report submitted in the Respected Court about not constituting the offence. 79 27. Complaint of (sections) 306, 498A, 114. 80 28. Certificate regarding the information about making the death entry to be done. 81 29. Arrest Panchnama drawn for their detention in the case of section 306. 82 30. Police yadi submitted for their surety. 83 31. Report u/s. 169 of Cr.P.C. 87 32. Statement saying not causing any harassment to accused no.1. 88 33. Purshish of the complainant declaring that he does not have any dispute against the procedure of the Police. 89 34. Arrest Panchnama drawn for their detention in the case of section 306. 82 30. Police yadi submitted for their surety. 83 31. Report u/s. 169 of Cr.P.C. 87 32. Statement saying not causing any harassment to accused no.1. 88 33. Purshish of the complainant declaring that he does not have any dispute against the procedure of the Police. 89 34. Form of the blood sample taken by the Government Hospital, Jetpur. 95 35. Vakalatnama of the Advocate engaged in the case of Summery demanded by the Police in the complaint lodged regarding death of Manishaben. 96 36. Pursis submitted on behalf of the original complainant in the Summery case. 97 37. Police yadi received from the Police Control Room, Rajkot. 117 38. Report of the inspection of the place of offence. 118 39. Depute Order for investigation. 120 40. F.I.R. Form no.154. 121 41. Email of serious offence. 122 42 Yadi forwarded to Dy. S.P. Along with the email of serious offence. 123 43 Abstract of the entry made in Station Diary. 124 44 Abstract of entry no.13 of Station Diary 126 45 Report forwarded to Taluka Police, Jetpur for carrying out further procedure. 127 46 Face identification form. 128 47 Letter received along with the parcel. 132 48 Certificate of Authority. 133 49 Copy of Postmortem examination. 134 50 Letter about analysis of Viscera. 135 51 Receipt about receiving of the seal packed packet. 136 52 Letter regarding analysis of muddamal. 137 53 Analysis Report 138 54 Letter of Taluka Police Station, Jetpur vide O.W.No.291/12 139 55 Letter forwarded to C.P.I. after the analysis of two parcels of muddamal received from Dhoraji. 141 56 Analysis Report regarding absence of blood in the bones. 142 57 Letter received stating to prepare the map of the scene of offence. 144 58 Map of the scene of offence near the house of Jivuben. 145 59 Map of the scene of offence of the cattle shed of Harsukhbhai Khuman. 146 59 Letter forwarded to do D.N.A. (test) 149 60 Certificate of Authority of the P.I. of Dhoraji 150 61 Identification Form of the blood sample of Ambaben 151 62 Receipt about receiving of muddamal for D.N.A. 152 63 Report of muddamal alongwith forwarding letter 153 64 Circle P.I.'s received letter alongwith muddamal 154 65 Certificate of authority. 155 66 Receipt of muddamal being received. 156 67 Report alongwith forwarding letter. 155 66 Receipt of muddamal being received. 156 67 Report alongwith forwarding letter. 157 68 Identification forms of accused no.1 and his brother–Umedbhai. 158 69 Certificate of authority. 159 70 Identification form of Umedbhai Jilubhai. 160 71 Identification form of Manishaben Harsurbhai. 161 72 Police Yadi 162 73 Certificate of authority. 163 74 Identification form of Jilubhai Nanubhai. 164 75 Identification form of Shantuben Jilubhai Nanubhai. 165 76 Receipt of muddamal having been received (Dt.16-11-11) 166 77 Receipt of muddamal having been received (Dt.22-11-11). 167 78 D.N.A. Reports from Exh No.168 to 169. 168-169 79 Form of Appendix – 1 of missing person. 180 80 Message form of missing person. 181 81 Form No. 154 of I.P.C.S. 306. 182 82 Copy of Station Data Entry No.13, Jilubhai's Complaint. 183 83 Depute Order for Investigation of Crime Reg. No.68/11. 184 84 E-mail message sent to the Dy.S.P., Jetpur. 186 85 Police Yadi seeking permission from the S.P., Rajkot. 187 86 Permission granted by the S.P. Rajkot. 188 87 An Email, sent about departing for Baroda. 189 88 Yadi made to the Medical Officer Jetpur for taking D.N.A samples of Ambaben. 190 89 A letter, written about sending the D.N.A. Test samples to Gandhinagar. 191 90 Certificate of Authority issued by Dy.S.P., Jetpur. 192 91 Receipt of samples having been received by F.S.L. Gandhinagar. 193 92 Yadi to inform about arrival at Jetpur from Baroda. 194 93 Yadi written to Medi College, Rajkot about seeking opinion about remnant. 195 94 Forwarding letter written to F.S.L. Gandhinagar 196 95 Certificate of Authority. 197 96 Receipt about muddamal having been received by F.S.L. Gandhinagar. 198 97 A letter written to Medical College, Rajkot for seeking Remnant and Report. 199 98 A Report prepared for registering the crime. 204 99 Original Complaint. 205 100 A note made to the Medical Officer to investigate human remnant. 206 101 Posthumous form. 207 102 Short report by Forensic Department. 208 103 Investigation letter by Medical College. 209 104 Molding Bill of Jewellers. 210 105 D.N. Jeweller's Bill. 211 106 Muddamal receipt. 212 107 A note made to the Jetpur Hospital for collecting D.N.A. Samples. 213 108 Meenaben's identity form for D.N.A. 214 109 Jeelubhai's identity form for D.N.A. 215 110 Umedbhai's driving licence. 216 111 A report made to the F.S.L. Gandhinagar for collecting D.N.A. Samples of Meenaben 217 112 D.N.A test reports of Manishaben's Mother and Father. 212 107 A note made to the Jetpur Hospital for collecting D.N.A. Samples. 213 108 Meenaben's identity form for D.N.A. 214 109 Jeelubhai's identity form for D.N.A. 215 110 Umedbhai's driving licence. 216 111 A report made to the F.S.L. Gandhinagar for collecting D.N.A. Samples of Meenaben 217 112 D.N.A test reports of Manishaben's Mother and Father. 218 113 A note addressed to the Medical Officer for collecting D.N.A. Test samples of Meenaben's mother. 219 114 Letter written by J.M.F.C. to the Jetpur Police Station to produce the Case-Diary. 220 115 Copy of Crime Reg. Entry No.68/11 227 116 Note made for registering the crime 228 117 Depute order for investigation 229 118 A report made to add section 176 230 119 A Note made for accused's medical check up 231 120 A report about taking care of the accused 232 121 The report of taking muddamal into the custody 233 122 Certificate of Authority 234 123 Receipt of muddamal having been received by the F.S.L 235 124 F.S.L. Report 236 125 Copy of Death Register Entry 237 126 Note made by the TalaticumMantri for submitting deceased Manishaben's Death Certificate and details about land allotment. 238 127 A report to approve 'C' summary 242 128 Letter written to F.S.L. Rajkot for inspecting muddamal of I.P.C.S. 498 – a, 306 243 129 Letter written to F.S.L. 244 130 A note made to the Medical Officer for collecting samples of D.N.A. Tests. 245 131 Certificate of Authority 246 132 Certificate of Authority awarded to F.S.L. Gandhinagar 247 133 A report with details of muddamal taken into custody by F.S.L. Rajkot 248 134 Certificate of Authority 249 135 A receipt of muddamal having been received 250 136 A note, received to collect muddamal report 251 137 Report of F.S.L. Analysis 252 10. The statements of the accused under Section-313 of the Cr.P.C. were recorded. The appellant herein and the co-accused pleaded that they were innocent and had been falsely implicated in the offence. Ultimately, the appellant herein came to be convicted for the offences enumerated above, whereas, the co-accused with whom the appellant eloped and is said to have illicit affair came to be acquitted. 11. Being dissatisfied with the judgment and order of conviction and sentence passed by the trial Court, the appellant has come up before this Court with this appeal. 12. SUBMISSIONS ON BEHALF OF THE APPELLANT:- Mr. 11. Being dissatisfied with the judgment and order of conviction and sentence passed by the trial Court, the appellant has come up before this Court with this appeal. 12. SUBMISSIONS ON BEHALF OF THE APPELLANT:- Mr. Ruturaj Nanavati, the learned counsel appearing for the appellant vehemently submitted that the trial Court committed a serious error in holding the appellant guilty of the offences enumerated above. He would submit that the entire case hinges on circumstantial evidence. He pointed out that the conviction of the appellant is solely based on her extra-judicial confession Exh. 88 made before the police dated 11/11/2011. He would submit that the confession of the appellant before the police is not admissible in evidence as it is hit by Sections-25 and 26 of the Evidence Act. Mr. Nanavati submitted that the trial Court committed a serious error in making such confessional statement of the appellant admissible in evidence with the aid of Section-27 of the Evidence Act. Mr. Nanavati further pointed out that it is the case of the prosecution that the appellant made an extra-judicial confession before one Hiriben, P.W.-25, but Hiriben failed to support the case of the prosecution and has been declared as a hostile witness. In such circumstances, the prosecution could not prove the extra-judicial confession alleged to have been made by the appellant before the Hiriben, P.W.-25. Mr. Nanavati submitted that except the confession Exh. 88, there is nothing on record to connect the appellant - accused herein with the alleged offence. In such circumstances referred to above, Mr. Nanavati prays that there being merit in this appeal, the same be allowed and the judgment and order of conviction be quashed and set aside and the appellant may be ordered to be released forthwith. 13. SUBMISSIONS ON BEHALF OF THE STATE:- Mr. Raval, the learned APP appearing for the State has vehemently opposed this appeal. He submitted that the trial Court committed no error in holding the appellant guilty of the offence of murder by placing reliance on the confessional statement, Exh. 88 dated 11/11/2011. According to Mr. Raval, such confessional statement is not hit by Sections-25 and 26 of the Evidence Act as at the time, when such statement was made by the appellant, she was not an accused of any offence. Mr. Raval, however, fairly submitted that except the confessional statement Exh. 88 dated 11/11/2011. According to Mr. Raval, such confessional statement is not hit by Sections-25 and 26 of the Evidence Act as at the time, when such statement was made by the appellant, she was not an accused of any offence. Mr. Raval, however, fairly submitted that except the confessional statement Exh. 88, there is no other evidence on record to connect the appellant herein with the alleged offence. He fairly pointed out that the prosecution could not prove the extra-judicial confession alleged to have been made by the appellant herein before Hiriben, P.W.-25 as Hiriben turned hostile. In such circumstances referred to above, Mr. Raval prays that the conviction of the appellant may be affirmed on the strength of the confessional statement Exh. 88. ANALYSIS:- 14. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the trial Court committed any error in holding the appellant guilty of the offence of murder. 15. The entire conviction of the appellant is on the basis of her so-called confessional statement Exh. 88 made before the police. In our opinion, the trial Court committed a serious error in reading such confessional statement in evidence with the aid of Section-27 of the Evidence Act. 16. It is important for us to give more than a fair idea as to in what circumstances, the confessional statement Exh. 88 of the appellant herein came to be recorded. We have discussed the facts of this case in details. It is not in dispute that the statement Exh. 88 of the appellant was recorded in the course of the investigation of the FIR lodged by the father of the appellant. Therefore, in substance, the so-called confessional statement of the appellant was recorded under Section-161 of the Code of Criminal Procedure. The statement could be said to have been recorded by the police of a witness under Section-161 of the Code of Criminal Procedure. It is altogether a different thing to say that later the maker of such statement was made an accused. It is also not in dispute that in the statement Exh. 88, the appellant has made a clean breast of her crime. It is a confession in its true sense and not just incriminating admissions. It is altogether a different thing to say that later the maker of such statement was made an accused. It is also not in dispute that in the statement Exh. 88, the appellant has made a clean breast of her crime. It is a confession in its true sense and not just incriminating admissions. It is also not in dispute that pursuant to such confessional statement, nothing incriminating was discovered or recovered at the instance of the appellant herein. It is not in dispute that no panchnamas were drawn under the provision of Section-27 of the Evidence Act. In short, there was no discovery of any fact except the basic information, which could be said to have been provided by the appellant to the police as regards the manner in which the deceased Jiviben was killed. 17. Admission is defined in Section-17 of the Evidence Act to mean a statement suggesting any inference as to any act in issue of relevant fact made by a party to a proceeding, such as an accused. Admissions are relevant and may be proved as against the person making them, vide Section-21. A confession is a specie of an admission of an accused; it is an acknowledgment in express words of the truth of the guilty fact charged. 18. In other words, it is admission of all the facts in issue and consists expressly or impliedly of as many admissions as there are facts in issue. In Pakala Naravana Swami v. King Emperor, 66 Ind App 66: ( AIR 1939 PC 47 ) Lord Atkin observed at page 81 (of Ind App): fat p. 52 of AIR):- "A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession, e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession". 19. No confession made to a police officer can be proved; this is Section-25 of the Evidence Act. 19. No confession made to a police officer can be proved; this is Section-25 of the Evidence Act. This provision is narrow inasmuch as it bars proof of a confession, and not of an admission, by an accused to a police officer and is wide inasmuch as proof of a confession made to a police officer is barred regardless of whether the accused was in custody or not and whether the confession was made during investigation or not Section-26 lays down that no confession made by any person while he is in the custody of a police officer shall be proved as against him unless it be made in the immediate presence of a Magistrate. 20. While Section-25 deals generally with all accused, Section-26 deals specifically with those in the custody of a police officer (referred to, for the sake of brevity, as those in custody). These two provisions are based upon the principle of unreliability of the police. Section-27 lays down 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 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." 21. Whether the section is an exception to only Section-26, which immediately precedes it, or to Sections-25 and 26, or to Sections-24, 25 and 26 was once a matter in controversy. It is more than a mere exception to all or any of the preceding sections; it deals with ''information" whereas the preceding section or sections deal with only confessions; Sections-25 and 26 overlap to some extent; a confession by a person in custody to a police officer is hit by both of them. Section-27 deals with any information confirmed by subsequent facts received from a person in custody; information received by a police officer is as much within its scope as information received by someone else. 22. It was held by the Supreme Court in Ram Kishan v. State of Bombay, AIR 1955 SC 104 ) that it is a proviso to Sections 25 and 26 both and that consequently so much of a confession made by an accused in custody as relates distinctly to the discovery of any fact can be proved against him even if the confession was made to a police officer. 23. 23. The section is based on the doctrine of Confirmation by subsequent facts e.g. that so much of the confession as relates distinctly to the fact discovered by it may be given in evidence because this part at least of the confession cannot have been False. Sections-25 and 26 bar the proof of a confession but Section-27 makes an exception in favour of that part of a confession made by an accused person in custody which is confirmed to be true by subsequent discovery. 24. It was pointed out by Straight C. J. in the case of Babu Lal, ILR 6 All 509 at p. 546 that "Section 27 was not intended to let in a confession generally, but only such particular part of it as set the person to whom it was made in motion, and led to his ascertaining the fact or facts of which he give's evidence." 25. The provisions of the section have been explained by the Judicial Committee of the Privy Council in Pulukuri Kotayya v. Emperor 74 Ind App 65: ( AIR 1947 PC 67 ). Sir John Beaumont observed at page 76 (of Ind App): (at p. 70 of AIR) that "normally the Section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused..... The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered." 26. His Lordship emphasised that Section 27 did not mean to let in the evidence that the body produced was that of the person murdered by the accused or that the weapon produced was the one used by him in murdering him. The word "it" in the expression "whether it amounts to a confession or not" means "information" and not "so much of". 27. Evidence can be given only about the existence or non-existence of a fact in issue and of a relevant fact and of no other matter, vide Section 5 of the Evidence Act. The word "it" in the expression "whether it amounts to a confession or not" means "information" and not "so much of". 27. Evidence can be given only about the existence or non-existence of a fact in issue and of a relevant fact and of no other matter, vide Section 5 of the Evidence Act. Section-27 does not make the evidence of discovery of a fact admissible; if it is admissible it must be under Section-5. What it makes admissible is the evidence of a statement of the accused leading to the discovery of the fact. Though Section-27 is worded as if it was only an exception to the preceding sections i.e. Sections-25 and 26 and probably 24 also, it really is more than that and contains something not within the scope of the preceding sections. 28. It deals with part of "information" which is a wider term than "confession", which is all that is dealt with in the preceding sections. Ignoring irrelevant matter, information must consist of a confession or an admission of a fact in issue or a relevant fact. The part of it that is confirmed by subsequent facts and is made receivable in evidence by Section 27 must be a confession or an admission of a fact in issue or a relevant fact. If the whole confession is confirmed by subsequent facts, the whole is receivable in evidence under Section 27 notwithstanding the bans imposed by the preceding sections. 29. If the information is a confession and the part of it that is confirmed by subsequent facts is an admission of a fact in issue, it may be barred from evidence by the preceding sections but is made receivable in evidence by Section 27. If the information is a confession and the part of it confirmed by subsequent facts is an admission of a relevant fact, its admissibility is governed by Section-21 and not by Sections-24 to 26 and would be receivable in evidence even in the absence of Section-27. If the information is an admission of a fact or facts in issue, the part of it that is confirmed by subsequent facts must be an admission of a fact in issue or of a relevant fact; in either case its admissibility is governed by Section-21 and not by Sections-24, 25 and 26 and it would be receivable in evidence even if Section-27 did not exist. 30. 30. If the information is an admission of a relevant fact, or relevant facts the part of it confirmed by subsequent fact can only be an admission of a relevant fact, the admissibility of which is governed by Section-21 and not by Sections-24, 25 and 26 and which would be receivable in evidence even if Section-27 did not exist. Some of these statements need explanation. Irrelevant matter contained in an information is inadmissible even though confirmed by subsequent facts. No evidence that is irrelevant and, therefore cannot be received in evidence, vide Section-5, is made admissible by Section-27. 31. If an irrelevant matter contained in an information is confirmed by subsequent facts, the evidence about the subsequent facts itself would be irrelevant and if it cannot be received in evidence no question will arise of receiving in evidence the part of the information. Sections-24, 25 and 26 bar a confession, that is an admission of all the facts in issue, but not an admission of only some fact or facts in issue or of a relevant fact. A confession cannot be split up into two or more admissions of facts in issue and one of them cannot be received in evidence as an admission if the whole confession is barred. 32. In practice the section serves a still less useful purpose because, as pointed out by Sir John Beaumont in the case of Pulukuri Kotayya, 74 Ind App 65: ( AIR 1947 PC 67 ), what is made admissible is a part of information relating to the existence of corpus delicti or an incriminating article in a certain place; it is this part that relates distinctly to the fact discovered, namely that the corpus delicti or the incriminating article was at a certain place. Now this part of information is generally an admission of only a relevant fact and not of a fact in issue. 33. It is not in dispute that at the relevant point of time, when the statement of the appellant was recorded by the Police Officer, the appellant was not an accused nor the appellant could be said to have been arrested by the police. The appellant at the most could be said to be in custody. 33. It is not in dispute that at the relevant point of time, when the statement of the appellant was recorded by the Police Officer, the appellant was not an accused nor the appellant could be said to have been arrested by the police. The appellant at the most could be said to be in custody. The Police Officer concerned was investigating into the F.I.R., which was lodged by the father of the appellant herein and in connection with the investigation of the said F.I.R., the Police Officer could apprehend the appellant and that is how, her statement came to be recorded. 34. Sections-24 to 30 of the Act deal with the admissibility of confession i.e. a statement made by a person stating or suggesting that he had committed a crime. We have not to undertake a detailed analysis of the various sections as in the case of State of U.P. v. Deoman Upadhyaya, 1961-1 SCR 14 at p. 23 : ( AIR 1960 SC 1125 at pp. 1129-1130), the Supreme Court on an analysis of Sections-24 to 27 of the Act and Section 162 of the Code of Criminal Procedure has held that 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 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 no more, is provable in a proceedings in which he is charged with the commission of an offence. (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 no more, is provable in a proceedings in which he is charged with the commission of an offence. (d) A statement whether it amounts to a confession or not made by 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 a person to police officer in the course of an investigation of an offence under Ch. XIV of the Code of Criminal Procedure, cannot except to the extent permitted by Sec. 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". 35. It was also held that in all these sections, the expression "accused person" in Section-24 and the expression "a person accused of any offence" have the same connotation, and describe the person, against whom evidence is sought to be led in a criminal proceeding. The adjectival clause "accused of any offence" is therefore, descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement for the applicability of the ban. The scheme thus appears to divide these cases in two classes: (1) confessional statements made by persons not in custody are admissible in evidence against such person in a criminal proceedings unless they are procured in the manner described in Section-24 or made to a police officer (Section-25) (2) while confessional statement made by persons in custody except those in the presence of a Magistrate (Section-26) are not provable except to the limited extent permitted by Section-27 of the Act, viz. so much of the information, whether confessional or otherwise which distinctly relates to a fact thereby discovered and no more. so much of the information, whether confessional or otherwise which distinctly relates to a fact thereby discovered and no more. This distinction between the persons not in custody and persons in custody may appear to be somewhat paradoxical but it has been upheld by the Supreme Court by stating at page 24 as under:- "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 were 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 Sec. 27 of the Evidence Act and Sec. 162 of the Code of Criminal procedure, the admissibility in evidence against a person in a criminal proceedings of a statement made to police officer leading to the discovery of a facts 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 he made it, otherwise it is not." Their Lordships further pointed out at page 26 (of SCR): (at p. 1131 of AIR) that this distinction had little practical significance and it was observed as under:- "Section 46 of the Code of Criminal Procedures does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. A person directly giving to a police officer by word of mouth 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 Sec. 27 of the Indian Evidence Act: Legal Remembrancer V. Lalit Mohan Singh, (1921) ILR 49 Cal 167: (AIR 1922 Cal 342), Santokhi Beldar v. Emperor, ILR 12 Pat 241: (AIR 1933 Pat 149) (SB)". 36. 36. In the case of State v. Memon Mohamed Hussain Ismail, 61 Bom LR 715 at p. 718 : ( AIR 1959 Bom 534 at p. 536), the Division Bench of the Bombay High Court, consisting of Datar and Patel JJ., held that where a person goes to a police officer and makes a statement which shows that an offence has been committed by him, he accuses himself and though he is formally not arrested, since he is not free to move wherever he likes after disclosure of the information to the police he must be deemed to be in custody of the police. In Bakshia Mukinda v. State of Bombay, 62 Bom LR 80 : ( AIR 1960 Bom 263 ), also the Division Bench of the Bombay High Court, consisting of Gokhale and Kotval JJ. took the view that the fact the accused was interrogated and that he made a statement and led the panchas and the police officer to a field and thereafter produced certain articles which were the subject-matter of dacoity was sufficient to establish that there was submission on his part to police custody. In Mt. Maharani v. Emperor, AIR 1948 All 7 at page 9, Reghubar Dayal and Wanchoo JJ had also after considering a number of rulings agreed with the view laid in all these cases that the word 'custody' in Sections-26 or 27 of the Act, does not mean formal custody but includes such state of affairs in which the accused can be said to have come into the hands of a police officer or can be said to have been under some sort of surveillance or restriction. Thus in all cases the 'police custody' is deemed to extend even when the accused was deemed to have submitted to such custody of a police officer by submitting to the interrogation and by making statements about discovery and who could not thereafter be said to be a freeman. The word 'police officer' is used in Sections-25 and 26 and also in the proviso to Section-27 and it must have the same meaning in all these sections. It must cover a person who is authorised to exercise the powers of a police officer and would not necessarily mean a person who is in charge of the police station or who is empowered to make an investigation. It must cover a person who is authorised to exercise the powers of a police officer and would not necessarily mean a person who is in charge of the police station or who is empowered to make an investigation. If the statement to any such police officer is hit under Sections-25 or 26 as tainted evidence, the principle underlying Section-27 viz., that the evidence relating to confessional or other statement made by a person while a person is in the custody of the police is tainted and, therefore, inadmissible, but if the truth of the information given by him is assured by discovery of a fact, it may be presumed to be untainted, must apply to all such statements. This would on the one hand shut out all evidence of a tainted nature while on the other hand permit the proof of so-much of the information whether it amounts to confession or not distinctly leads to the discovery of a fact on the ground that its truth is assured. We must, therefore, in the light of these principles first consider whether the confession is hit by Sections-24 to 26 and thereafter consider the question of applicability of the proviso contained in Section-27 which creates the limited exception by making admissible that part of the information which distinctly relates to the facts discovered provided that the accused person is deemed to have submitted himself to the police custody. 37. Under Section-25 no confession made to a police officer shall be proved as against the person accused of any offence. The main expression to be construed is the confession made to and not in the presence of the police officer. This expression had been interpreted in an unreported decision in Criminal Appeal No. 953 of 1962 (Guj) by a Division Bench of this court, consisting of Miabhoy and Vakil JJ., decided on 13th February 1964 (since reported in V.G.L.R. 897) and it was held that the words "statement made to a police officer" necessarily connote the idea of communication or in other words, a statement being communicated to a police officer by any person. These words also definitely imply that there should be some direct or indirect nexus or connection between the person making the statement and the police officer. These words also definitely imply that there should be some direct or indirect nexus or connection between the person making the statement and the police officer. Therefore, it is clear that there must be some communication to a police officer for the purposes of showing that the statement was made to a police officer. 38. The conditions necessary for the applicability of Section-27 of the Evidence Act are broadly as under:- (1) Discovery of fact in consequence of an information received from accused; (2) Discovery of such fact to be deposed to; (3) The accused must be in police custody when he gave informations and (4) So much of information as relates distinctly to the fact thereby discovered is admissible - Mohmed Inayatullah vs The State of Maharashtra, AIR 1976 SC 483 : 1975 Cur LJ 668 Two conditions for application- (1) information must be such as has caused discovery of the fact; and (2) information must relate distinctly to the fact discovered - Kirshnappa vs State of Karnataka : AIR 1983 SC 446 : 1983 Cr LJ 846. 39. We may refer to and rely upon a Constitutional Bench decision of the Supreme Court in the case of State of Uttar Pradesh Vs. Deoman Upadhyaya reported in AIR 1960 SC 1125 , wherein, the Supreme Court in Paragraph-71 has explained the position of law as regards the Section-27 of the Evidence Act. "71. The law has thus made a classification of accused persons into two: (1) those two have the danger brought home to them by detention on a charge; and (2) those who are yet free. In the former category are also those persons who surrender to the custody by words or action. The protection given to these two classes is different. In the case of persons belonging to the first category the law has ruled that their statements are not admissible, and in the case of the second category, only that portion, of the statement is admissible as is guaranteed by the discovery of a relevant fact unknown before the statement to the investigating authority. In the case of persons belonging to the first category the law has ruled that their statements are not admissible, and in the case of the second category, only that portion, of the statement is admissible as is guaranteed by the discovery of a relevant fact unknown before the statement to the investigating authority. That statement may even be confessional in nature, as when the person in custody says: "I pushed him down such and such mineshaft", and the body of the victim is found as a result, and it can be proved that his death was due to injuries received by a fall down the mineshaft." 40. The Supreme Court in the case of Suresh Chandra Bahri Vs. State of Bihar reported in AIR 1994 SC 2420 in paragraph-71 has observed thus:- "The two essential requirements for the application of Section 27 of the Evidence Act are that (1) the person giving information must be an accused of any offence, and (2) he must also be in police custody." 41. In our opinion, the trial Court committed a serious error in taking the view that pursuant to the confessional statement Exh. 88 of the appellant herein, the police officer could derive important information, which ultimately, helped him in reaching to the conclusion that the appellant had committed the murder of the old lady viz. Jiviben. 42. Section-162 Cr.P.C. excludes a statement made to a police officer but would not exclude the incriminatory conduct of an accused decrypted and discerned. Section-162 bars the prosecution from relying on the statement of an accused, and not evidence relating to the accusing conduct, before, at the time of occurrence and thereafter, divulged and disseminated by the accused when confronted or questioned by the police officers. Section-8 of the Evidence Act, reads;- "Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to a fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1.--The word "conduct" in this section does not include statements, unless those statements accompany and explain acts other than statements, but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2.--When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant. 43. The said provision states that the conduct of a party, both antecedent and subsequent in reference to a proceeding or reference to any issue or relevant fact is relevant. Thus, where inculpatory information or other clues are revealed by the accused, evidence of the Investigating Officer to this effect would be admissible under Section-8 of the Evidence Act, when the said fact is corroborated by a third person for the facts testified by the public witness would relate to the conduct of the accused. The information given by an accused that provides lead to the Investigating Officer that unravel facts relating to the accused's conduct, which were till then unknown to the Investigating Officer and which could not have been known, but for such information coming from the accused when sufficiently proved and corroborated by a public witness would fall under Section-8. This evidence can be relied to prove the accused's complicity. The evidence of conduct when led would carry the credibility and weight depending on the facts including nature of confirmation and back ground facts, as is the case of Section-27 of the Evidence Act. The probative value and weight are matters of assessment dependent upon the factual matrix of each case. 44. Sarkar on Law of Evidence, 16th Edition, 2007 at page 228, has explained the distinction between Sections-8 and 27 of the Evidence Act by way of an illustration in the following manner; where an accused takes the investigating officer and the panchas to a dealer from where he had purchased the weapon, this evidence would be inadmissible under section-27, but this evidence when corroborated by the dealer, the conduct of the accused in taking the police to the dealer is admissible under Section-8 of the Evidence Act. We have in our aforesaid narration excluded the entire disclosure statement except the portion which we feel would be admissible under Section-27 or conduct which would be admissible under Section-8 of the Evidence Act. 45. In Mohd. Inayatullah Vs. We have in our aforesaid narration excluded the entire disclosure statement except the portion which we feel would be admissible under Section-27 or conduct which would be admissible under Section-8 of the Evidence Act. 45. In Mohd. Inayatullah Vs. State of Maharashtra, 1976 (1) SCC 828 , it was observed:- 11. Although the interpretation and scope of Section 27 has been the subject of several authoritative pronouncements, its application to concrete cases is not always free from difficulty. It will therefore be worthwhile at the outset, to have a short and swift glance at the section and be reminded of its requirements. The section says: "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.' 12. The expression provided that together with the phrase--whether it amounts to a confession or not show that the section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this section qualifies, to any extent, Section 24, also. It will be seen that the first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only so much of the information as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means directly, indubitably, strictly, unmistakably. The word has been advisedly used to limit and define the scope of the provable information. The phrase 'distinctly' relates to the fact thereby discovered is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The word has been advisedly used to limit and define the scope of the provable information. The phrase 'distinctly' relates to the fact thereby discovered is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered. 13. At one time it was held that the expression 'fact discovered' in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact (see: Sukhan v. Crown; Rex v. Ganee). Now it is fairly settled that the expression 'fact discovered' includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this (see Palukuri Kotayya v. Emperor; Udai Bhan v. State of Uttar Pradesh). 46. In Vasanta Sampat Dupare Vs. State of Maharashtra, (2015) 1 SCC 253 the said provision stands exhaustively examined and it was held that recovery of the dead body of the deceased at the instance of the accused would be a fact within the special knowledge of the accused, and therefore, the said recovery including the recovery of the clothes in the said case, were admissible and are relevant evidences as per section-27 of the Evidence Act. The aforesaid decision also refers to Section-8 of the Evidence Act and quotes paragraph-8 from Prakash Chand Vs. State (Delhi Administration), (1979) 3 SCC 90 , which reads:- "8. The aforesaid decision also refers to Section-8 of the Evidence Act and quotes paragraph-8 from Prakash Chand Vs. State (Delhi Administration), (1979) 3 SCC 90 , which reads:- "8. .....There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a Police Officer in the course of an investigation which is hit by Section 162 of the Criminal Procedure Code. What is excluded by Section 162, Criminal Procedure Code is the statement made to a Police Officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a Police Officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a Police Officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act. Paragraph-9 from A.N. Venkatesh Vs. State of Karnataka (2005) 7 SCC 714 was also quoted. The said paragraph reads:- "9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.). Even if we hold that the disclosure statement made by the accused appellants (Exts. P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. Even if we hold that the disclosure statement made by the accused appellants (Exts. P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the investigating officer and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party CRL.A. No. 655/2013 & Death Ref No. 3/2013 Page 11 of 55 is a relevant circumstance and are admissible under Section 8 of the Evidence Act. 47. In State (NCT of Delhi) Vs. Navjot Sandhu (2005) 11 SCC 600 , the two provisions i.e. Section 8 and Section 27 of the Evidence Act were elucidated in detail with reference to the case law on the subject and apropos to Section 8 of the Evidence Act, wherein it was held:- 205. Before proceeding further, we may advert to Section 8 of the Evidence Act. Section 8 insofar as it is relevant for our purpose makes the conduct of an accused person relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. It could be either a previous or subsequent conduct. There are two Explanations to the section, which explain the ambit of the word conduct. They are: Explanation 1.--The word 'conduct' in this section does not include statements, unless those statements accompany and explain acts other than statements, but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2.--When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant. The conduct, in order to be admissible, must be such that it has close nexus with a fact in issue or relevant fact. Explanation 1 makes it clear that the mere statements as distinguished from acts do not constitute 'conduct' unless those statements accompany and explain acts other than statements. Such statements accompanying the acts are considered to be evidence of res gestae. Explanation 1 makes it clear that the mere statements as distinguished from acts do not constitute 'conduct' unless those statements accompany and explain acts other than statements. Such statements accompanying the acts are considered to be evidence of res gestae. Two illustrations appended to Section 8 deserve special mention: (f) The question is, whether A robbed B. The facts that, after B was robbed, C said in A's presence -- the police are coming to look for the man who robbed B', and that immediately afterwards A ran away, are relevant. * * * (i) A is accused of a crime. The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant. It was further held;- 206. We have already noticed the distinction highlighted in Prakash Chand case between the conduct of an accused which is admissible under Section 8 and the statement made to a police officer in the course of an investigation which is hit by Section 162 CrPC. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where stolen articles or weapons used in the commission of the offence were hidden, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct, falls within the purview of Section 27, as pointed out in Prakash Chand case. In Om Prakash case this Court held that: (SCC p. 262, para 14) Even apart from the admissibility of the information under Section 27, the evidence of the investigating officer and the panchas that the accused had taken them to PW 11 (from whom he purchased the weapon) and pointed him out and as corroborated by PW 11 himself would be admissible under Section 8 of the Evidence Act as conduct of the accused. 48. We also take notice of the one another error committed by the trial Court while appreciating the evidence on record. The trial Court in its judgment in Paragraph-51 has held as under:- "......... 48. We also take notice of the one another error committed by the trial Court while appreciating the evidence on record. The trial Court in its judgment in Paragraph-51 has held as under:- "......... The Prosecution witness Devrajbhai Kurjibhai Mer states in his deposition at Ex-200 that a fact was surfaced in the I-CR No. 105/2011 registered with the Jetpur Taluka Police Station that Manishaben @ Meenaben Harsurbhai in order to live with her paramour accused no. 2 Jesha Giga Mer, killed Jivumaa of Rapavati village, brought the dead-body at her house, set it ablaze and threw her saree on her dead-body, thereby fabricating the evidence that Manishaben died and she eloped with her paramour. As it was transpired that Manishaben had killed the missing Jivimaa, the documents of missing Jivimaa was kept in the record of the investigation of the said offence. Thus, the facts stated by the witnesses at Ex-67, 68, 78, 125, 200 have not been challenged at all by the Defence. Considering Section 138 of the Indian Evidence Act....... "When certain fact is stated in Examination-in-Chief and no question is asked regarding the same during Cross-Examination, it may be believed that the Defence, carrying out Cross-Examination, accepts the facts stated by defence witnesses on oath during Examination-in-Chief." Both the accused have been given right to cross-examine and they have carried out the cross-examination at length. But, the prosecution witnesses have stated aforesaid facts on oath and the same has not been challenged at all. Thereby, they admit the fact that the accused Manishaben was in love with the accused Jesha Giga Mer and she wanted to live with the accused no. 2. She killed Jivumaa, brought her dead-body to her house, set it ablaze, put her saree on it and eloped with her paramour. My humble opinion is corroborated with judgments given in the cases of Bhojram of Hon'ble PV Council vs Sitaram, AIR 1936 60 and Babulal vs. Kaltex, AIR 1967 205, and State of Orissa vs Kaushalya Devi, AIR-1965, Page No. -38..." 49. Thus, the trial Court has noted that there was no effective cross-examination of the P.W.-47 Devrajbhai Kurjibhai Mer, Exh. 200 as regards what is alleged to have been stated by the appellant in her confessional statement Exh. 88. Thus, the trial Court has noted that there was no effective cross-examination of the P.W.-47 Devrajbhai Kurjibhai Mer, Exh. 200 as regards what is alleged to have been stated by the appellant in her confessional statement Exh. 88. According to the trial Court, if any fact deposed by a witness in his examination-in-chief is not controverted or denied or rebutted, then such fact should be accepted by the Court and read into evidence. The trial Court lost sight of the fact that what was deposed by the witness P.W.-47 was with regard to the contents of the confessional statement Exh. 88 of the appellant. When such statement itself is not admissible in evidence, then there is no question of considering the evidentiary value of the examination-in-chief of the concerned witness. We are of the view that in the first instance, the trial Court could not have exhibited the confessional statement and read into evidence. The trial Court over-looked the provision of Section-162 of the Code of Criminal Procedure. Any statement made by any witness under Section-161 of the Cr.P.C. is hit by Section-162 of the Cr.P.C. The statement of any witness, who is later arraigned an accused under Section-161 of the Cr.P.C. is not substantive evidence. In such circumstances, the trial Court committed a serious error in giving exhibit to such statement, which is hit by Section-162 of the Cr.P.C. 50. The correct procedure, which the concerned Police Officer should have adopted is to have produced the appellant herein before the concerned Magistrate for the purpose of recording of her statement under Section-164 of the Cr.P.C. If any such statement of the appellant under Section-164 of the Cr.P.C. would have been recorded, then the same could have been accepted and read into evidence though a statement under Section-164 Cr.P.C does not constitute substantive evidence. 51. In the aforesaid context, we may refer to the decision of the Supreme Court in the case of Bheru Singh Vs. State of Rajasthan, 1994 (2) SCC 467 . In the said decision, the Supreme Court in Paragraphs-16 and 19 has held as under:- 16. A confession or an admission is evidence against the maker of it so long as its admissibility is not excluded by some provision of law. Provisions of Sections 24 to 30 of the Evidence Act and of Section 164 of the Code of Criminal Procedure deal with confessions. A confession or an admission is evidence against the maker of it so long as its admissibility is not excluded by some provision of law. Provisions of Sections 24 to 30 of the Evidence Act and of Section 164 of the Code of Criminal Procedure deal with confessions. By virtue of the provisions of Section 25 of the Evidence Act, a confession made to a police officer under no circumstance is admissible in evidence against an accused. The section deals with confessions made not only when the accused was free and not in police custody but also with the one made by such a person before any investigation had begun. The expression "accused of any offence" in Section 25 would cover the case of an accused who has since been put on trial, whether or not at the time when he made the confessional statement, he was under arrest or in custody as an accused in that case or not. Inadmissibility of a confessional statement made to a police officer under Section 25 of the Evidence Act is based on the ground of public policy. Section 25 of the Evidence Act not only bars proof of admission of an offence by an accused to a police officer or made by him while in the custody of a police officer but also the admission contained in the confessional statement of all incriminating facts relating to the commission of an offence. Section 26 of the Evidence Act deals with partial ban to the admissibility of confessions made to a person other than a police officer but we are not concerned with it in this case. Section 27 of the Evidence Act is in the nature of a proviso or an exception, which partially lifts the ban imposed by Sections 25 and 26 of the Evidence Act and makes admissible so much of such information, whether it amounts to a confession or not, as relates to the fact thereby discovered, when made by a person accused of an offence while in police custody. Under Section 164 CrPC a statement or confession made in the course of an investigation, may be recorded by a Magistrate, subject to the safeguards imposed by the section itself and can be relied upon at the trial. 19. Under Section 164 CrPC a statement or confession made in the course of an investigation, may be recorded by a Magistrate, subject to the safeguards imposed by the section itself and can be relied upon at the trial. 19. From a careful perusal of this first information report we find that it discloses the motive for the murder and the manner in which the appellant committed the six murders. The appellant produced the bloodstained sword with which according to him he committed the murders. In our opinion the first information report Ex. P-42, however is not a wholly confessional statement, but only that part of it is admissible in evidence which does not amount to a confession and is not hit by the provisions of Section 25 of the Evidence Act. The relationship of the appellant with the deceased; the motive for commission of the crime and the presence of his sister-in-law PW 11 do not amount to the confession of committing any crime. Those statements are non-confessional in nature and can be used against the 477 appellant as evidence under Section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that the sword had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence. Thus, to the limited extent as we have noticed above and save to that extent only the other portion of the first information report Ex. P-42 must be excluded from evidence as the rest of the statement amounts to confession of committing the crime and is not admissible in evidence. (emphasis supplied) 52. Thus, in the case on hand although the confessional statement of the appellant helped the concerned Police Officer in finding out the truth, yet the same did not lead to any discovery of fact in its true sense as discussed above. (emphasis supplied) 52. Thus, in the case on hand although the confessional statement of the appellant helped the concerned Police Officer in finding out the truth, yet the same did not lead to any discovery of fact in its true sense as discussed above. In fact, everything was known to the concerned Police Officer i.e. the place of occurrence, etc., Even if we look into the conduct of the appellant, which is a relevant fact under Section-8 of the Evidence Act, the same by itself is not sufficient to hold her guilty of a serious offence like murder in absence of any other cogent and convincing evidence to connect her with the alleged crime. 53. In the aforesaid context, we may refer to and rely upon a very recent pronouncement of the Supreme Court in the case of Dipakbhai Jagdishchandra Patel Vs. State of Gujarat and another; Criminal Appeal No. 714 of 2019; decided on 24th April, 2019, wherein, the entire law on the subject has been discussed threadbare. We may quote the relevant observations. 25. Section 25 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Evidence Act' for short) renders inadmissible a confession made to a Police Officer. It declares in fact that no confession made to a Police Officer shall be proved as against a person accused of any offence. Section 26 of the Evidence Act on the other hand reads as follows: "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." Explanation.-In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882)." 26. Section 27 of the Evidence Act carves out an exception. 27. In Law of Evidence by M. Monir, 17th Edition, page 555, we notice the following discussion regarding the distinction between Section 25 on the one hand and Section 26 other hand: "... Section 27 of the Evidence Act carves out an exception. 27. In Law of Evidence by M. Monir, 17th Edition, page 555, we notice the following discussion regarding the distinction between Section 25 on the one hand and Section 26 other hand: "... The section deals with confessions which are made not to Police Officers but to persons other than Police Officers, e.g., to a fellow prisoner, a doctor or a visitor, and makes such confessions inadmissible if they were made whilst the accused was in the custody of a Police Officer. In section 25 the criterion for excluding a confession is the answer to the question. "To whom was the confession made?" If the answer is that it was made to a Police Officer, the confession is absolutely excluded from evidence. On the other hand, the criterion adopted in section 26 for excluding a confession is the answer to the question. "Under what circumstances was the confession made?" if the answer is that it was made whilst the accused was in the custody of a Police Officer, the law lays down that such confession shall be excluded from evidence, unless it was made in the immediate presence of a Magistrate." 28. Section 30 of the Evidence Act read as follows: "30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. Explanation.-"Offence", as used in this section, includes the abetment of, or attempt to commit the offence." 29. While on confession, it is important to understand as to what will amount to a confession. The Privy Council in Pakala Narayana Swami v. Emperor : (1939) PC 47 (20.01.1939): "... Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. While on confession, it is important to understand as to what will amount to a confession. The Privy Council in Pakala Narayana Swami v. Emperor : (1939) PC 47 (20.01.1939): "... Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession, e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession. Some confusion appears to have been caused by the definition of 'confession' in Article 22 of Stephen's "Digest of the Law of Evidence" which defines a confession as a admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. If the surrounding articles are examined it will be apparent that the learned author after dealing with admissions generally is applying himself to admissions in criminal cases, and for this purpose defines confessions so as to cover all such admissions, in order to have a general term for use in the three following articles, confession secured by inducement, made upon oath, made under a promise of secrecy. The definition is not contained in the Evidence Act, 1872: and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused "suggesting the inference that he committed" the crime." 30. This view of the Privy Council has gained acceptance of this Court in many decisions. They include Palvinder Kaur v. State of Punjab: AIR 1952 SC 354 and Veera Ibrahim v. State of Maharashtra : AIR 1976 SC 1167 . 31. A Full Court of this Court, in the decision in M.P. Sharma and 4 others v. Satish Chandra, Distt. Magistrate, Delhi and 4 others AIR 1954 SC 300 , considered the scope of the expression contained in Article 20(3) of the Constitution of India which mandates that no person accused of any offence shall be compelled to be a witness against himself: "Broadly stated the guarantee in Art. 20(3) is against "testimonial compulsion". Magistrate, Delhi and 4 others AIR 1954 SC 300 , considered the scope of the expression contained in Article 20(3) of the Constitution of India which mandates that no person accused of any offence shall be compelled to be a witness against himself: "Broadly stated the guarantee in Art. 20(3) is against "testimonial compulsion". But there is no reason to confine it to the oral evidence of a person standing his trial for an offence when called to the witness-stand. The protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously obtained from him. It is available, therefore, to a person against whom a formal accusation relating to the commission of an offence has been levelled which is the normal course may result in prosecution. Considered in this light, the guarantee under Article 20(3) would be available to person against whom A First Information Report has been recorded as accused therein. It would extend to any compulsory process for production of evidentiary documents which are reasonable likely to support a prosecution against them." (Emphasis supplied) 32. In State of Bombay v. Kathi Kalu Oghad : AIR 1961 SC 1808 , a Bench of 11 learned Judges of this Court had an occasion to consider the true width of the expression "person accused of an offence". Speaking on behalf of the majority, Sinha, C.J., held as follows: "14. In this connection the question was raised before us that in order to bring the case within the prohibition of clause (3) of Article 20, it is not necessary that the statement should have been made by the accused person at a time when he fulfilled that character; it is enough that he should have been an accused person at the time when the statement was sought to be proved in court, even though he may not have been an accused person at the time he had made that statement. The correctness of the decision of the Constitution Bench of this Court in the case of Mohamed Dastagir v. State of Madras (1960) 3 SCR 116 was questioned because it was said that it ran counter to the observations of the Full Court in Sharma case [(1954) SCR 1077]. The correctness of the decision of the Constitution Bench of this Court in the case of Mohamed Dastagir v. State of Madras (1960) 3 SCR 116 was questioned because it was said that it ran counter to the observations of the Full Court in Sharma case [(1954) SCR 1077]. In the Full Court decision of this Court this question did not directly arise; nor was it decided. On the other hand, this Court, in Sharma case [(1954) SCR 1077] held that the protection under Article 20(3) of the Constitution is available to a person against whom a formal accusation had been levelled, inasmuch as a First Information Report had been lodged against him. Sharma case [(1954) SCR 1077] therefore, did not decide anything to the contrary of what this Court said in Mohamed Dastagir v. State of Madras [ (1960) 3 SCR 116 ]. The latter decision in our opinion lays down the law correctly. 15. In order to bring the evidence within the inhibitions of clause (3) of Article 20 it must be shown not only that the person making the statement was an accused at the time he made it and that it had a material bearing on the criminality of the maker of the statement, but also that he was compelled to make that statement. ..." (Emphasis supplied) 33. The Court also laid down its conclusions in paragraph-16: "16. In view of these considerations, we have come to the following conclusions: (1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement. (2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not "compulsion". (2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not "compulsion". (3) "To be a witness" is not equivalent to "furnishing evidence" in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused. (4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression "to be a witness". (5) "To be a witness" means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in court or otherwise. (6) "To be a witness" in its ordinary grammatical sense means giving oral testimony in court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in court or out of court by a person accused of an offence, orally or in writing. (7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made." (Emphasis supplied) 34. Section 161 of the Cr.PC has the following marginal note: "Examination of witnesses by police" 35. Can a person, who is accused of an offence, be examined under Section 161 of the Cr.PC? As we have seen, when a person is named as an accused in First Information Report, he would stand in the shoes of an accused person. Does not the marginal note of Section 161 of the Cr.PC confine the power to the Police Officer to examine the witnesses and will it be denied to him qua a person who is already named as an accused? These questions are no longer res integra. In Nandini Satpathy v. P.L. Dani and another AIR 1978 SC 1025 , a Bench of three learned Judges was dealing with a case which arose from proceedings initiated against the appellant therein under Section 179 of the IPC. These questions are no longer res integra. In Nandini Satpathy v. P.L. Dani and another AIR 1978 SC 1025 , a Bench of three learned Judges was dealing with a case which arose from proceedings initiated against the appellant therein under Section 179 of the IPC. In the course of the judgment, speaking on behalf of the Bench, this is what Justice V.R. Krishna Iyer had to say: "32. We will now answer the questions suggested at the beginning and advert to the decisions of our Court which set the tone and temper of the "silence" clause and bind us willy-nilly. We have earlier explained why we regard Section 161(2) as a sort of parliamentary commentary on Article 20(3). So, the first point to decide is whether the police have power under Sections 160 and 161 of the CrPC to question a person who, then was or, in the future may incarnate as, an accused person. The Privy Council and this Court have held that the scope of Section 161 does include actual accused and suspects and we deferentially agree without repeating the detailed reasons urged before us by counsel." (Emphasis supplied) 36. Thereafter, after referring to Pakala Narayana Swami (supra), regarding the scope of the word 'confession' the Court held inter alia as follows: "33. ... We hold that "any person supposed to be acquainted with the facts and circumstances of the case" includes an accused person who fills that role because the police suppose him to have committed the crime and must, therefore, be familiar with the facts. The supposition may later prove a fiction but that does not repel the section. Nor does the marginal note "examination of witnesses by police" clinch the matter. A marginal note clears ambiguity but does not control meaning. Moreover, the suppositions accused figures functionally as a witness. "To be a witness", from a functional angle, is to impart knowledge in respect of a relevant fact, and that is precisely the purpose of questioning the accused under Section 161 CrPC. ..." 37. Thus, quite clearly, a person who stands in the shoes of the accused being named in the First Information Report, can be examined by the Police Officer under Section 161 of the Cr.PC. ..." 37. Thus, quite clearly, a person who stands in the shoes of the accused being named in the First Information Report, can be examined by the Police Officer under Section 161 of the Cr.PC. The next question however is, as to whether the statement given by a person who stands in the shoes of an accused and who gives a statement, whether the statement is admissible in law? It is here that Section 162 of the Code comes into play: "162. Statements to police not to be signed: Use of statements in evidence. (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act. Explanation.- An omission to state a fact or circumstance in the statement referred to in sub- section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact." 38. A Bench of three learned Judges of this Court in Mahabir Mandal and others v. State of Bihar, AIR 1972 1331, had this to say: "39. Coming to the case of Kasim, we find that there is no reliable evidence as may show that Kasim was present at the house of Mahabir on the night of occurrence and took part in the disposal of the dead body of Indira. Reliance was placed by the prosecution upon the statement alleged to have been made by Kasim and Mahadeo accused at the police station in the presence of Baijnath PW after Baijnath had lodged report at the police station. Such statements are legally not admissible in evidence and cannot be used as substantive evidence. According to Section 162 of the Code of Criminal Procedure, no statement made by any person to a police officer in the course of an investigation shall be signed by the person making it or used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when such statement was made. The only exception to the above rule is mentioned in the proviso to that section. According to the proviso, when any witness is called for the prosecution in the enquiry or trial, any part of his statement, if duly proved, may be used by the accused and with the permission of the court by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness for the purpose only of explaining any matter referred to in his cross-examination. The above rule is, however, not applicable to statements falling within the provisions of Clause 1 of Section 32 of the Indian Evidence Act or to affect the provisions of Section 27 of that Act. It is also well established that the bar of inadmissibility operates not only on statements of witnesses but also on those of the accused (see Narayan Swami v. Emperor [ AIR 1939 PC 47 ]). It is also well established that the bar of inadmissibility operates not only on statements of witnesses but also on those of the accused (see Narayan Swami v. Emperor [ AIR 1939 PC 47 ]). Lord Atkin, in that case, while dealing with Section 162 of the Code of Criminal Procedure observed: "Then follows the section in question which is drawn in the same general way relating to 'any person.' That the words in their ordinary meaning would include any person though he may thereafter be accused seems plain. Investigation into crime often includes the examination of a number or persons none of whom or all of whom may be suspected at the time. The first words of the section prohibiting the statement if recorded from being signed must apply to all the statements made at the time and must therefore apply to a statement made by a person possibly not then even suspected but eventually accused." Reference may also be made to Section 26 of the Indian Evidence Act, according to which 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 against such person. There is nothing in the present case to show that the statements which were made by Kasim and Mahadeo accused on September 18, 1963, at the police station in the presence of Baijnath resulted in the discovery of any incriminating material as may make them admissible under Section 27 of the Indian Evidence Act. As such, the aforesaid statements must be excluded from consideration." (Emphasis supplied) 39. Therefore, the combined effect of these provisions can be summarized as follows: Unless a person is accused of an offence, he cannot claim the protection of Article 20(3) of the Constitution of India. 40. Such a person, viz., person who is named in the FIR, and therefore, the accused in the eyes of law, can indeed be questioned and the statement is taken by the Police Officer. A confession, which is made to a Police Officer, would be inadmissible having regard to Section 25 of the Evidence Act. A confession, which is vitiated under Section 24 of the Evidence Act would also be inadmissible. A confession, which is made to a Police Officer, would be inadmissible having regard to Section 25 of the Evidence Act. A confession, which is vitiated under Section 24 of the Evidence Act would also be inadmissible. A confession unless it fulfills the test laid down in Pakala Narayana Swami (supra) and as accepted by this Court, may still be used as an admission under Section 21 of the Evidence Act. This, however, is subject to the bar of admissibility of a statement under Section 161 of the Cr.PC. Therefore, even if a statement contains admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 of the Cr.PC. 41. Bar under Section 162 Cr.PC, no doubt, operates in regard to the statement made to a Police Officer in between two points of time, viz., from the beginning of the investigation till the termination of the same. In a case where statement containing not a confession but admission, which is otherwise relevant and which is made before the investigation commences, may be admissible. We need not, however, say anything more. 42. In Central Bureau of Investigation v. V.C. Shukla and others, AIR 1998 SC 1406 , a Bench of three learned Judges, after approving Pakala Narayana Swami (supra), had occasion to consider the distinction between confession and admission. This Court went on to hold as follows: "45. It is thus seen that only voluntary and direct acknowledgment of guilt is a confession but when a confession falls short of actual admission of guilt it may nevertheless be used as evidence against the person who made it or his authorised agent as an "admission" under Section 21. The law in this regard has been clearly - and in our considered view correctly - explained in Monir's Law of Evidence(New Edn. at pp. 205 and 206), on which Mr. Jethmalani relied to bring home his contention that even if the entries are treated as "admission" of the Jains still they cannot be used against Shri Advani. The relevant passage reads as under: "The distinction between admissions and confessions is of considerable importance for two reasons. at pp. 205 and 206), on which Mr. Jethmalani relied to bring home his contention that even if the entries are treated as "admission" of the Jains still they cannot be used against Shri Advani. The relevant passage reads as under: "The distinction between admissions and confessions is of considerable importance for two reasons. Firstly, a statement made by an accused person, if it is an admission, is admissible in evidence under Section 21 of the Evidence Act, unless the statement amounts to a confession and was made to a person in authority in consequence of some improper inducement, threat or promise, or was made to a Police Officer, or was made at a time when the accused was in custody of a Police Officer. If a statement was made by the accused in the circumstances just mentioned its admissibility will depend upon the determination of the question whether it does not amount to a confession. If it amounts to a confession, it will be inadmissible, but if it does not amount to a confession, it will be admissible under Section 21 of the Act as an admission, provided that it suggests an inference as to a fact which is in issue in, or relevant to, the case and was not made to a Police Officer in the course of an investigation under Chapter XIV of the Code of Criminal Procedure. Secondly, a statement made by an accused person is admissible against others who are being jointly tried with him only if the statement amounts to a confession. Where the statement falls short of a confession, it is admissible only against its maker as an admission and not against those who are being jointly tried with him. Therefore, from the point of view of Section 30 of the Evidence Act also the distinction between an admission and a confession is of fundamental importance." (Emphasis supplied) 43. Section 21 of the Evidence Act provides as follows: "21. Therefore, from the point of view of Section 30 of the Evidence Act also the distinction between an admission and a confession is of fundamental importance." (Emphasis supplied) 43. Section 21 of the Evidence Act provides as follows: "21. Proof of admissions against persons making them, and by or on their behalf.-Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:- (1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under section 32. (2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable. (3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission." 44. Thus, what amounts to an admission can be used against the maker of the admission or his representative in interest. As to what constitutes an admission is to be found in Section 17 of the Evidence Act, which defines admission as follows: "17. Admission defined.-An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned." 45. In Bharat Singh and others v. Mst. Bhagirathi, AIR 1966 SC 405 , the true nature of the evidentiary value of admission, and whether without confronting the maker of the admission, it could be used, has been referred to and this is what this Court had to say: "19. Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Sections 17, and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Sections 17, and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under Section 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence." (Emphasis supplied) 46. From the statement of the law contained in V.C. Shukla and others (supra), it becomes clear as to what constitutes confession and how if it does not constitute confession, it may still be an admission. Being an admission, it may be admissible under the Evidence Act provided that it meets the requirements of admission as defined in Section 17 of the Evidence Act. However, even if it is an admission, if it is made in the course of investigation under the Cr.PC to a Police Officer, then, it will not be admissible under Section 162 of the Cr.PC as it clearly prohibits the use of statement made to a Police Officer under Section 161 of the Cr.PC except for the purpose which is mentioned therein. Statement given under Section 161, even if relevant, as it contains an admission, would not be admissible, though an admission falling short of a confession which may be made otherwise, may become substantive evidence. 47. A confession made to a Police Officer is clearly inadmissible. The statement relied on by respondent is dated 11.04.1996 and the appellant was arrested on 11.04.1996. This is pursuant to the FIR registered on 10.04.1996. The statement dated 11.04.1996 is made to a Police Officer. 47. A confession made to a Police Officer is clearly inadmissible. The statement relied on by respondent is dated 11.04.1996 and the appellant was arrested on 11.04.1996. This is pursuant to the FIR registered on 10.04.1996. The statement dated 11.04.1996 is made to a Police Officer. This is clear from the statement as also letter dated 10.08.1996 (Annexure R/6) produced by the respondent. It is clearly during the course of the investigation. Even if it does contain admissions by virtue of Section 162 and as interpreted by this Court in V.C. Shukla and others (supra), such admissions are clearly inadmissible. 54. The important principle of law discernible from the afore-noted decision of the Supreme Court is that an admission of incriminating fact is admissible under the Evidence Act, provided that it meets the requirements of admission as defined in Section-17 of the Evidence Act. However, even if it is an admission, if it is made in the course of investigation under the Cr.P.C. to a Police Officer, then the same will not be admissible under Section-162 of the Cr.P.C. as it clearly prohibits the use of the statement made to a police officer under Section-161 of the Cr.P.C. except for the purpose, which is mentioned therein. We may at this stage give one illustration:- The accused is sent for medical examination. In the course of his medical examination, he gives history to the doctor as regards the incident. The history may be in the form of an incriminating admission, if not a confession. Such incriminating admission may be a relevant fact and can be used against the accused, but if the very same incriminating admission is made before the police, at the point of time, when the police is recording the statement under Section-161 of the Cr.P.C., the same will not be admissible in view of the Section-162 of the Cr.P.C. This fine distinction should be kept in mind while appreciating the evidence on record. 55. In the overall view of the matter, we are convinced that the trial Court committed a serious error in holding the appellant guilty of the offence of murder by placing reliance on her confessional statement, Exh. 88. 56. In the result, the appeal is allowed. 55. In the overall view of the matter, we are convinced that the trial Court committed a serious error in holding the appellant guilty of the offence of murder by placing reliance on her confessional statement, Exh. 88. 56. In the result, the appeal is allowed. The judgment and order of conviction and sentence passed by the Additional Sessions Judge, Jetpur, District Rajkot, dated 31st March 2015, in the Sessions Case No. 10 of 2013 are hereby quashed and set aside. The appellant is ordered to be acquitted of all the charges. The appellant be set at liberty forthwith, if not required in any other case. Fine, if paid, shall be refunded.