Important Points
In case of extra judicial confession, where there is material to show animosity, Court has to proceed cautiously and find out whether confession just like any other evidence depends on veracity of witness to whom it is made.
If a statement is an admission of guilt, it would amount to a confession whether it is communicated to another or not.
A conviction based on the accused’s failure to explain what he was never asked to explain is bad in law.

Headnote:Criminal Trial – Extra Judicial Confession – Extra judicial confession can form the basis of conviction if persons before whom it is stated to be made appear to be unbiased and not even remotely inimical to the accused – Where there is material to show animosity, Court has to proceed cautiously and find out whether confession just like any other evidence depends on veracity of witness to whom it is made – The evidence of PWs 1, 3 and 4 is not consistent as to where the accused is supposed to have made the statement – It would, therefore, be not safe to place any reliance on the so called extra judicial confession. (Para 7)
       Words and phrases – Confession – If a statement is an admission of guilt, it would amount to a confession whether it is communicated to another or not. (Para 8)
       AIR 1966 SC 40: 1966 Cr1 U 68 – Relied upon.
       Code of Criminal Procedure, 1973 – Section 313 – The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt – The word generally’ in sub-section (1)(b) means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it – A conviction based on the accused’s failure to explain what he was never asked to explain is bad in law. (Paras 11 and 12)
       AIR 1953 SC 468 – Relied upon.
       Code of Criminal Procedure, 1973 – Section 313 – No question having been asked from the accused regarding presence of kerosene on his dress, while he was examined u/s 313 of the Code, this fact cannot be used to convict him. (Para 12)
       Facts of the case :
       The appellant-accused was tried on a charge of having committed murder of his wife Smt. Latabai (‘deceased’) by pouring kerosene on her person and setting her ablaze in the night of 29.4.2003 i.e. at about 1.30 a.m. in the police quarters No. 203/3 at Raghuji Nagar, Sakkardara at Nagpur. Appellant-accused was residing in the said quarters along with his wife-the deceased and children. On the fateful night when the neighbouring residents, mostly police personnel were in their respective quarters and sleeping in the courtyards, they heard sound of the tape-recorder, which was being played by the appellant-accused, at about 1.30 a.m. in the night which awakened them. They heard the appellant-accused and his wife quarrelling and saw the appellant-accused dragging the deceased inside the house by holding her hands and after a short while they noticed the appellant-accused coming out of his quarters and shouting “Kaka Lata Mere Hatho se Mar Gai” and fled away. Thereafter, the neighbours entered the quarters of the appellant-accused and saw that Lata had caught fire. They tried to extinguish the fire, but, as she had sustained excessive burns before she could be removed to hospital, she died on the spot. Due to this incident, all the people in the neighbourhood had gathered at the place of’ the incident and report (Exh. 80) in the matter came to be lodged by Police constable Krishna Sadashiv Lute (P.W. 1) at Police Station Sakkardara. P.S.I. Kale registered offence under Section 302 of IPC vide Crime No. 192/93 of Sakkardara Police Station. Thereafter, he visited the place of the incident and prepared the spot panchnama (Exb. 40) in the presence of the panchas. He noticed that deceased Lata was fully burnt and her neck was stretched towards her stomach and her hands were crouching, both her legs were drawn towards abdomen side. He also noticed partly burnt matters on her person which was little bit wet. In the kitchen, he noticed that there was a tin, which was containing some kerosene, match sticks and other material which he recorded in the spot panchanama and seized the Articles 1 to 7. P.S.I. Laxman Tighara (P.W. 9) took over the investigation of the case on 29.4.1993. He arrested the appellant-accused at about 7.00 p.m, who was found near statute of Tukdoji Maharaj, prepared the arrest panchanama and seized his clothes. The appellant-accused was referred to medical officer for his medical examination. In the course of investigation, the inquest Panchanama (Exb. 22) of the dead body of’ Latabai was prepared and dead body was sent to Department of Forensic Medicines, Medical College, Nagpur for conducting post mortem. The Medical Officer conducted the post mortem and gave the report (Exb. 31), which was admitted by the appel1ant-accused and, therefore, the prosecution did not examine any Medical Officer. The police recorded statement of’ witnesses in addition to completing the formalities of forwarding the articles, seized during the investigation, to the Chemical Analyser. After investigation was completed, charge-sheet came to be filed against the appellant-accused. His case was committed to the court of Sessions for trial. As accused pleaded innocence, he was put to trial.
       The trial Court found the accused guilty primarily on two grounds; (a) there was extra judicial confession made before PWs 1, 3 and 4; (b) kerosene was found on the dress which the accused was wearing at the time of occurrence. Placing reliance on these two aspects, the trial Court found the accused guilty. High Court concurred with the conclusions.
       Findings of the Court :
       The evidence of PWs 1, 3 and 4 being not consistent as to where the accused is supposed to have made the statement, it would not be safe to place any reliance on the so called extra judicial confession.
       No question having bee asked from the accused regarding presence of kerosene on his dress while he was examined u/s 313 of the Code, this fact cannot be used to convict him.

Judgment

Dr. ARIJIT PASAYAT, J.—

1.Leave granted.

2.Challenge in this appeal is to the order passed by a Division Bench of the Bombay High Court, Nagpur Bench, dismissing the appeal filed by the appellant. Appellant faced trial for alleged commission of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’). He was convicted by learned Ist Additional Sessions Judge, Nagpur and sentence of life imprisonment and fine of Rs.200/- with default stipulation was imposed. Appeal filed against the judgment, as noted above, was dismissed.

3.Prosecution version as unfolded during trial is as follows :

The appellant-accused was tried on a charge of having committed murder of his wife Smt. Latabai (hereinafter referred to as ‘deceased’) by pouring kerosene on her person and setting her ablaze in the night of 29.4.2003 i.e. at about 1.30 a.m. in the police quarters No. 203/3 at Raghuji Nagar, Sakkardara at Nagpur. Appellant-accused was residing in the said quarters along with his wife-the deceased and children. On the fateful night when the neighbouring residents, mostly police personnel were in their respective quarters and sleeping in the courtyards, they heard sound of the tape-recorder, which was being played by the appellant-accused, at about 1.30 a.m. in the night which awakened them. They heard the appellant-accused and his wife quarrelling and saw the appellant-accused dragging the deceased inside the house by holding her hands and after a short while they noticed the appellant-accused coming out of his quarters and shouting “Kaka Lata Mere Hatho se Mar Gai” and fled away. Thereafter, the neighbours entered the quarters of the appellant-accused and saw that Lata had caught fire. They tried to extinguish the fire, but, as she had sustained excessive burns before she could be removed to hospital, she died on the spot. Due to this incident, all the people in the neighbourhood had gathered at the place of’ the incident and report (Exh. 80) in the matter came to be lodged by Police constable Krishna Sadashiv Lute (P.W. 1) at Police Station Sakkardara. The said report was taken down in the proforma prescribed under Section 154 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) which is Exb. 19, by P.S.I. Kale (P.W. 11). P.S.I. Kale registered offence under Section 302 of IPC vide Crime No. 192/93 of Sakkardara Police Station. Thereafter, he visited the place of the incident and prepared the spot panchnama (Exb. 40) in the presence of the panchas. He noticed that deceased Lata was fully burnt and her neck was stretched towards her stomach and her hands were crouching, both her legs were drawn towards abdomen side. He also noticed partly burnt matters on her person which was little bit wet. In the kitchen, he noticed that there was a tin, which was containing some kerosene, match sticks and other material which he recorded in the spot panchanama and seized the Articles 1 to 7. P.S.I. Laxman Tighara (P.W. 9) took over the investigation of the case on 29.4.1993. He arrested the appellant-accused at about 7.00 p.m, who was found near statute of Tukdoji Maharaj, prepared the arrest panchanama and seized his clothes. The appellant-accused was referred to medical officer for his medical examination. In the course of investigation, the inquest Panchanama (Exb. 22) of the dead body of’ Latabai was prepared and dead body was sent to Department of Forensic Medicines, Medical College, Nagpur for conducting post mortem. The Medical Officer conducted the post mortem and gave the report (Exb. 31), which was admitted by the appel1ant-accused and, therefore, the prosecution did not examine any Medical Officer. The police recorded statement of’ witnesses in addition to completing the formalities of forwarding the articles, seized during the investigation, to the Chemical Analyser. After investigation was completed, charge-sheet came to be filed against the appellant-accused. His case was committed to the court of Ses

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2007 Supreme(SC) 882

Cases Referred (2)