1994 Supreme(SC) 169

SUPREME COURT OF INDIA
(BEFORE DR A.S. ANAND AND FAIZANUDDIN, JJ.)
BHERU SINGH S/O KALYAN SINGH
Versus
STATE OF RAJASTHAN
Criminal Appeal No. 22 of 1991{From the Judgment and Order dated August 20, 1990 of the Rajasthan High Court in D.B. Crl. A. No. 161 of 1989, and D.B. Crl. Ref. No. 2 of 1989}, decided on February 4, 1994
Advocates appeared
K.K. Mehrotra, Advocate, for the Appellant;
Sushil Kumar, Senior Advocate (K.R. Sasiprabhu, Advocate, with him) for the Respondent.

Headnote:(i) Evidence - Evidence Act, 1872 - Sections 24 to 30 - F.I.R. lodged by accused himself to a police officer - Confessional statement Only that part of the statement is admissible in evidence which does not amount to a confession and is not hit by Section 25 - Confessional part of the F.I.R. cannot be used against the accused.

       Held: Where the First Information Report is given by an accused himself to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act. No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by Section 27 of the Evidence Act. The First Information Report recorded under Section 154, Cr. P.C. is not a substantive piece of evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Evidence Act in case the informant appears as a witness at the trial. Where the accused himself lodges the First Information Report, the fact of his giving the information to the police is admissible against him as evidence of his conduct under Section 8 of the Evidence Act and to the extent it is non-confessional in nature, it would also be relevant under Section 21 of the Evidence Act but the confessional part of the First Information Report by the accused to the police officer cannot be used at all against him in view of the ban of Section 25 of the Evidence Act (para 14)

       Further Held: 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 blood stained 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 P.W. 11 do not amount to the confession of committing any crime. Those statements are non-confessional in nature and can be used against the 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 blood stained, 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 Mt admissible in evidence. (para 16)

       (ii) Indian Penal Code, 1860 - Section 302 - Conviction under - Appeal - motive - Eyewitness - Voluntary confessional statement recorded u/s. 164, Cr. P.C. even though retracted at the trial - Sufficient corroboration Ownership and recovery of blood stained sword from the accused not doubted - Conviction sustainable.

       Held: We are satisfied that the learned Magistrate had taken all necessary precautions to ensure that the appellant had sufficient time to reflect before he made his confessional statement and that he was under no fear or threat or allurement before appearing in the Court to make the statement. The various questions put by the learned Magistrate to the appellant indicate that he had taken all reasonable precautions to remove any trace of fear from the appellant before he made the confessional statement. The caution envisaged by Section 164 Cr. P.C. was properly administered to him and he was told in no uncertain terms that he was not bound to make the statement and that if he did make one, it could be used against him. Learned counsel for the appellant was unable to point out any circumstance from which it could be inferred that the confessional statement Ex. P-2 was not a voluntary one. No infirmity whatsoever was pointed out either in the manner in which the statement was recorded or in the statement itself. Report of the Serologist Shri V.N. Mathur which established that the sword belonging to and produced by the appellant as well as the clothes of the accused were stained with human blood of B group, which tallied with the blood group of the deceased persons, which remained unchallenged lends sufficient corroboration to the confessional statement, which the appellant tried to retract at the trial. Nothing has been pointed out to doubt the ownership and recovery of the blood stained sword from the appellant at the police station by Shri Durga Shankar Sharma, P. W. 17. Seizures made during the investigation have also not been doubted. (para 20)

       The testimony of the sister-in-law of the appellant, Smt. Ratanabai P.W. 11 who was subjected to repeated and lengthy cross-examination in the trial Court has remained unshaken. Her statement has impressed us and in our opinion she had no reason to falsely implicate the appellant with such a heinous offence. for Singh P.W. 12 and Bhanwar Singh P.W. 13 have lent sufficient corroboration to her testimony as well as to the confessional statement of the appellant. The only discrepancy pointed out with regard to the statement of P.W. II is that whereas in her statement under Section 161, Cr. P.C. she, had named Hansabai, as the child who she herself saw being murdered but at the trial she had given the name of that child as Manraj. She satisfactorily explained the discrepancy when the question was put to her and even otherwise one cannot loose sight of the fact that the witness had seen the most gruesome type of murder by her brother-in-law of his own wife and children, therefore, this minor discrepancy of the name of the child would pale into insignificance particularly when both Hansa and Manraj were murdered by the appellant alongwith the others. We find that P.W. 11 Ratnabai is a reliable witness and her testimony provides sufficient corroboration to the confessional statement of the appellant in all material particles. (para 21)

       Further Held: There is no infirmity or suspicious circumstance available on the record which may in any way cast any doubt on the prosecution version as put forward at the trial. The ocular testimony of Ratnabai P.W. 11, who has since left the village suffers from no blemish and since we have found her to be a wholly reliable witness, it could be itself form the basis for conviction of the appellant for the murder of Manrajbai. Her testimony has also shown the conduct of the appellant at the time of and after committing the crime. We are satisfied that there is sufficient corroboration available on the record, both direct and circumstantial, to the voluntary confessional statement of the appellant recorded under Section 164, Cr. P.c., even though retracted at the trial. (para 22)

       (iii) Sentence - Indian Penal Code, 1860 Section 302 - Conviction under - .suspicious husband doubting the fidelity of his wife - Act of murdering his wife and five children in cold blood on hearing rum our of infidelity of his wife on one occasion - No extenuating or mitigating circumstances - Fit case which calls for no punishment other than the capital punishment - Sentence of death confirmed.

       Held: This needlessly suspicious husband, doubting the fidelity of his wife Smt. Kajodbai and suspecting her of having an affair with Bhojhak Gujjar did not stop short at severing the head of Kajodbai from her body and thereby slaughtering her but went on a murdering spree and murdered his five children also one after the other for no rhyme or reason. The young innocent children aged between 2 to 14 years were murdered in a most brutal manner for no fault of theirs. He chases the children and murdered them. The entreaties by his brothers wife Smt. Ratnabai P.W. 11, to spare atleast the last child, also went unheeded by the appellant. The appellant committed a most heinous cold blooded and gruesome murder. When even the lower species, like the animals and the birds, would take all steps to protect their progeny, the appellant fell down to such depth of depravity as to slaughter his own wife and children, for no fault of theirs only on some suspicion being planted in his mind that his deceased wife was having an affair with Bhojak Gujar. The act of the appellant in murdering his wife and five children in cold blood on hearing rumour of infidelity of his wife on one occasion, sends a chill down our spine and shocks our judicial conscience. (Para 24)