R.S.Garg, J.:-
(1) The appellant bhoorelal being aggrieved by the judgment dated 31 - 10 - 2007 passed by the third additional sessions judge (fast track court) , katni in sessions trial no. 114/2007 convicting the appellant under section 302 ipc sentencing him to undergo r. I. For life and pay fine of rs. 2000/ - , in default of payment of fine to undergo r. I. For two years is before this court with a submission that the court below erred in convicting and sentencing the accused.
(2) The facts necessary for disposal of the present appeal are that on 15 - 4 - 2007 the dead body of one rampati was found in the field of one hari lodhi. On 14 - 4 - 2007 at about 8. 30 the deceased rampati went on a cycle to collect mahua but on 15 - 4 - 2007 one lakhanlal brother of the deceased was informed by kailash gupta that rampati had been murdered. After receiving the information lakhanlal went to the field and found that rampati was dead and he had some injuries on his neck. Dehati nalish exh. P - 7 and inquest report exh. P - 8 and report relating to unnatural death was registered at exhs. P - 7, p - 8 and p - 17. After finding that the death was homicidal the first information report exh. P - 16 was registered. The dead body was sent for post mortem, panchnamas were prepared, blood stained and controlled earth were recovered/seized, statement of the witnesses were recorded and thereafter the prosecution agency filed the challan against the accused bhoorelal and also pointed out to the court that one gyani alias maskole was also co - accused but as he was a juvenile he was to be tried by the juvenile court. The accused having denied commission of the offence was put to trial. The prosecution agency produced as many as 19 documents while the accused produced one. The prosecution agency examined as many as 10 witnesses. After hearing the learned counsel for the parties the learned trial court held that the prosecution was successful in bringing home the guilt and it accordingly convicted the appellant.
(3) Shri koshta, learned counsel for the appellant submitted that undisputedly there are no eye witnesses to the incident. According to him the court below has placed much reliance on the alleged threat extended by the accused to the deceased and recovery of certain articles. According to him the court below was also unjustified in relying upon the confessional statement made by co - accused gyani alias maskole less appreciating that neither co - accused gyani was being jointly tried with the appellant, the said document of confession was not produced before the court, the same was not proved and no single question was put to the accused about the said confessional statement. Shri koshta submitted that suspicion howsoever grave would not take the place of proof. According to him the circumstances which speak against the interest of the accused are required to be put to him under section 313 cr. Pc and if such circumstances are not put to him and the accused is not provided an opportunity to explain the circumstances and the accused is in a position to show a serious prejudice to his defence then such evidence has to be ignored from consideration.
(4) Shri modh, learned deputy advocate general for the state on the other hand however submitted that the co - accused could not be tried with the present appellant because the co - accused was a juvenile. According to him from the confession made by co - accused if it appears that the confession was not a result of coercion, duress, a result of undue pressure or force but was outcome of free will of the co - accused then such confession can always be taken into consideration. He also submitted that the enmity between the appellant and the deceased was writ large and on earlier occasions the accused had extended threat to the deceased. He submitted that the court below was justified in relying upon the confession made by the co - accused.
(5) Tej kumar (p. W. 1) is a witness of seizure. He was re - examined and in para 4 he stated that deceased rampati was his brother - in - law, rampati had been murdered but who killed him was not known to him. He was declared, hostile and did not support the prosecution.
(6) Dr. Vinod kumar (p. W. 2) had performed the autopsy. According to him he has found one lacerated wound on the anterior aspect of the neck. Another lacerated wound over anterior aspect of neck (right side) , lacerated wound on the right shoulder and an abrasion on the right side of the chest. In his statement before the court he proved the autopsy report.
(7) Pitamlal dahiya (p. W. 3) did not support the prosecution and was declared hostile.
(8) Silochana (p. W. 4) is widow of the deceased. In paragraph 2 she stated that gyani had informed her that he was threatened by appellant bhoorelal that if gyani was to disclose about the incident to anybody then he was also to be murdered. She also stated that after they won in the case against bhoorelal, he threw a challenge that unless he would cut rampati into two he would not get any solace. In paragraph 6 of the cross - examination when she was confronted with her case diary statement exh. D - 1 she had to admit that the fact that bhoorelal the accused extended such a threat was not to be found in her case diary statement. She also admitted that in case diary statement exh. D - l she informed the police that someone had killed her husband. From her statement we are unable to hold that either she was informed by anybody about the alleged act of the accused or in her presence the accused ever extended any threat to rampati or threw a challenge that he would cut the deceased into two.
(9) Rani bai (p. W. 5) was married to one mohan younger brother of deceased rampati. After death of her husband she started living with bhoorelal. She did not support the prosecution and did not narrate anything against the accused.
(10) Narayan singh (p. W. 6) was a witness of seizure but he also did not support the prosecution.
(11) Lakhanlal (p. W. 7) is elder brother of deceased rampati. He admits that he was informed by somebody that his brother rampati was murdered by somebody. He was also declared hostile but in any case he did not claim to be an eye witness.
(12) Kailash jaiswal (pw. 8) was also declared hostile and did not support the prosecution.
(13) D. P shrivastava (pw. 9) the inspector was examined by the prosecution to prove the different steps taken during the course of investigation. He proved the memorandum prepared under section 27 indian evidence act, recovery of axe, kurta of the accused, stained and controlled earth. He also proved that he had recorded statements of various witnesses.
(14) K. K. Awathy (p. W. 10) the sub inspector, police station sehora was examined to prove registration of the inquest and conversion of the same into first information report.
(15) It is to be noted that the confessional statement made by co - accused gyani prasad lodhi was not produced during the course of the trial. Nobody had proved it. Nobody had produced it in the court. It was not exhibited and nobody said that such statement was made by gyani prasad lodhi before the court, under section 164 of the code of criminal procedure.
(16) The learned court below while appreciating the evidence observed that the accused admitted his guilt in the memorandum exh. P - 4 prepared under section 27 of the indian evidence act and at his instance blood stained axe was recovered.
(17) We must immediately observe that any confessional statement made in the memorandum prepared under section 27 of the indian evidence act would not be admissible in evidence. When the accused gives an information which leads to discovery or recovery of an article or fact then the memorandum so far as it relates to information about recovery or discovery would only be admissible in evidence. Any admission alleged to be made by the accused in presence of the police would be hit under section 25 of the evidence act and would not be admissible in evidence. The court below has also relied upon the statement of silochana to observe that on an earlier occasion accused extended threat that he would cut the deceased rampati into two, the court below unfortunately did not look into the cross examination nor did see that such statement made before the court was not forming part of the statement recorded under section 161 cr. Pc.
(18) From the texture and tenor of the judgment of the court below it appears that it was materially impressed by the confession made by the co - accused gyani before the competent magistrate recorded under section 164 cr. Pc on 21 - 4 - 2007. True it is that confession of the co - accused can be used against the other accused under section 30 of the indian evidence act but section 30 of the indian evidence act is not a blanket provision. For application of section 30 and to make the confession of co - accused admissible piece of evidence or as a relevant factor, the prosecution is required to undergo the exercise as required under section 30 of the evidence act. Section 30 of the indian evidence act provides that when more persons than one are being tried jointly for the same offence, and a confession made by one such person 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. A fair understanding of section 30 would make it clear that section 30 would be applicable to a case where more persons than one are being tried jointly. If there is no joint trial then in such a case a confession cannot be used against another person. Apart from this such confession must be proved like any other fact and document as required to be proved under the law. The court which is trying the accused persons jointly if finds that the confession is proved then it may use the confession against the maker of the confession and the co - accused.
(19) In the present case, undisputedly, the co - accused gyani was not being tried by the same judge. Gyani even according to the prosecution being a juvenile was to be tried by juvenile court. The first requirement for application of section 30 of indian evidence act that persons more than one should be tried jointly, unfortunately is not satisfied in the present case.
(20) The fulfillment of second requirement that such confession should be proved in accordance with law, unfortunately is again missing in this case. The said confession dated 24 - 2 - 2007 was never admitted in evidence, it was never exhibited as a document neither the magistrate who recorded the evidence under section 164 cr. Pc was examined by the trial court nor even a formal production of the confession was made. It appears that the document was a part of the record and all of a sudden the learned judge started relying upon the same.
(21) A document which is required to be proved in accordance with law if is not proved in accordance with law then it would become inadmissible in the trial. In the present case the said confession was at all not proved. In the matter of kashmira singh vs. State of m. P. , air 1952 sc 159, the supreme court observed that proper way to approach a case of this kind is, first to marshall the evidence against the accused, excluding the confession altogether from consideration, and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course, it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what, without the aid of the confession, he would not be prepared to accept.
(22) There is catena of judgments of the supreme court which say that there should be a joint trial of the accused persons, the joint trial should be legal and if for any cause the accused who made the confession cannot be legally tried with the accused against whom the confession is to be used, the court should not attach any value to the confession. In the present matter, undisputedly, the co - accused who made the confession could not be tried with the present appellant and if he was to be tried with the present appellant the trial would not have been legal. Section 30 presupposes more than one accused being tried for the same offence. It would be trite to say that the person who made the confession if is not tried jointly with the other accused then such confession would not have any evidentiary value. Apart from this if the confession made by the co - accused is not legally proved it would lose its importance.
(23) It is also to be noted that the learned trial court while recording the statement of the accused under section 313 of the code of criminal procedure did not put even a single question to the accused about the alleged incriminating confessional statement made by the co - accused. It would be trite to say that an accused should be properly examined under section 313 and whenever any evidence is considered important against the interest of the accused and the conviction is intended to be based upon it or is likely to be based upon it then it would be right of the accused that he should be questioned about such matter, document and be given an opportunity to explain it if he so desires. It is also to be seen that it would never be proper on the part of a trial judge to be a silent spectator in the matter; when he is required to examine an accused under section 313 of the code of criminal procedure then he is not fulfilling an empty formality. In fact he is discharging his functions and duties as provided under law. He is required to put proper question to the accused, put question to the accused relating to the material which is against the interest of the accused and seek explanation of the accused. In a case, where the court insists to rely upon a circumstance or document to record the conviction then such document, evidence etc. Aye required to be put to the accused. In the matter of tara singh vs. State, air 1951 sc 44 the supreme court had observed that an accused must be questioned separately about each material circumstance which is intended to be used against him.
(24) In the present matter unfortunately no questions were put to the accused in relation to the confessional statement made by the co - accused gyani alias maksole.
(25) The sum total of the above discussion is that there are no eye witnesses in the matter, the prosecution has failed in proving the enmity between the accused and the deceased rampati, the prosecution in accordance with section 30 of the indian evidence act has failed to prove the confessional statement made by co - accused and that the present appellant was not being tried as co - accused, that this material circumstance in relation to the confessional statement was not put to the accused in his statements recorded under section 313 cr. Pc.
(26) The sum total of the above would be that we have to exclude the confessional statement made by gyani from our consideration. If the said confessional statement is kept in oblivion and is not taken into consideration then there is no other evidence available on the record to connect the appellant with the offence.
(27) Being in agreement with the arguments made by learned counsel for the appellant we hold that the prosecution has failed in bringing home the guilt.
(28) The appeal is allowed. The judgment dated 31 - 10 - 2007 passed by the learned court below is hereby set aside.
(29) The accused is acquitted of all the charges. The accused is in jail, his release warrant be sent immediately and he be released if not required in any other case.