Ogad Singh vs State Of Rajasthan

The appellant herein has been convicted and sentenced as below vide judgment dated 17.10.2014 passed by the learned Additional Sessions Judge, Rajsamand in Sessions Case No.53/2012:

Offences Sentence Fine Fine Default sentences

Section 302 IPC Life Imprisonment Rs.25,000/ 6 Months' S.I.

Being aggrieved of his conviction and sentences, the appellant has preferred the instant appeal under Section 374(2) Cr.P.C.

Brief facts relevant and essential for disposal of the appeal are noted herein below:

Narayan Singh (PW-4) presented a written report (Ex.P/1) at the Police Chowki Gomti, Police Station, Charbhuja on 17.06.2012 at 06:45 pm. alleging inter alia that on the same day at about 06:15 pm., while he was proceeding from his house towards Gomti crossroads on his motorcycle, he saw Ogad Singh son of Daulat Singh, resident of Dungar Ji Ka Guda (Saarna) near Neemdi Bus Stand carrying a woman's head in one hand and a blood stained sword in the other. On making an inquiry about the severed head, Ogad Singh blurted out that it was of his daughter Smt. Manju Kanwar whom he had killed in the chowk of his house and the lower part of the corpse was lying there. Ogad Singh also told that his daughter was of loose character because of which, her husband had deserted her and that she had been living with Ogad Singh for the last one year. She used to mess around with random men and being disgusted by her immoral behavior, he beheaded her with a sword.

On the basis of the above written report, an FIR No.81/2012 was registered at the Police Station Charbhuja at 07:35 pm. for the offence under Section 302 IPC. The case was assigned to the SHO Lal Singh (PW-1) who initiated requisite proceedings of investigation. The severed head of the deceased Smt. Manju and the blood stained sword brought by the accused appellant to the Police Outpost, were seized. The accused-appellant was arrested vide arrest memo (Ex.P/6). The clothes worn by the accused appellant were noticeably stained with blood and thus, the same were taken off and seized. During the course of investigation, the SHO claimed to have recorded information of the accused appellant under Section 27 of the Evidence Act and got identified the place of the incident and also the remaining part of the corpse of Manju which was lying inside the appellant's house. The blood stained soil and control soil were collected from the place of occurrence and were seized. The dead body of Smt. Manju was got subjected to postmortem by Dr. Nitesh (PW-8) who issued the PMR (Ex.P/12). The blood stained trouser/leggings worn by Smt. Manju was also collected and seized vide seizure memo (Ex.P/7). After the postmortem, the dead body was handed over to the relatives of the deceased for cremation. The seized articles were forwarded to the Forensic Science Laboratory for Chemical and Serological examination and DNA profiling and the report (Ex.P/26) was received. The investigation was concluded and a charge-sheet was filed against the accused-appellant for the offence under Section 302 IPC. As the offence was Sessions triable, the case was committed to the court of Sessions Judge Rajsamand from where, it was transferred to the court of the Additional Sessions Judge, Rajsamand for trial. Charge was framed against the accused appellant for the offence under Section 302 IPC. He pleaded not guilty and claimed trial. The prosecution examined as many as 12 witnesses and exhibited 34 documents to prove its case. Upon being questioned under Section 313 Cr.P.C. and when confronted with allegations appearing against him in the prosecution evidence, the accused denied the same and claimed to have been falsely implicated but did not choose to lead any evidence in defence. After the statement of the accused was recorded, the trial court accepted an application filed by the prosecution under Section 311 Cr.P.C. for recalling certain witnesses and to take on record some additional documents, which could not be exhibited and proved owing to inadvertence. In furtherance of this order, the witnesses Lal Singh (PW-1), Narendra Singh (PW-11) and Jasraj (PW-12) were resummoned and re-examined and witnesses Dr. Surya Shekhar (PW-13), Dhan Singh (PW-14), Mahendra Singh (PW-15) and Madhusudhan (PW-16) were examined afresh and additional documents were exhibited from Ex.P/35 to Ex.P/56. The accused was questioned under Section 313 Cr.P.C. He again feigned ignorance to the fresh set of evidence and claimed to be innocent.

The learned trial court, heard and considered the submissions advanced by the prosecution and the defence counsel, appreciated the evidence available on record and proceeded to convict and sentence the accused appellant as above by the impugned judgment. Hence this appeal.

Shri B.S. Deora, learned counsel representing the appellant, vehemently and fervently contended that there is no evidence worth the name on the record of the case so as to connect the appellant with the crime. The first informant Narayan Singh (PW-4) did not support the prosecution case and was declared hostile. The evidence of Ranjeet Singh (PW-10), incharge of Police Outpost Gomti, regarding the words allegedly spoken by the appellant in his presence is inadmissible because what he stated tantamounts to confession of an accused before a police officer and hence, the same would be hit by Sections 25/26 of the Evidence Act. He further submitted that much credence was given by the trial court to the DNA report (Ex.P/56), but as per Shri Deora, this report cannot be read in evidence for the simple reason that the prosecution failed to prove the requisite link evidence mandatorily required to establish, that the packets of the blood stained articles remained in the self same condition right from the date of seizure till the same were received at the FSL. In this regard, Shri Deora laid stress on the evidence of PW-11 Narendra Singh (Malkhana In-charge), PW-15 Mahendra Singh (the carrier Constable), PW-16 Madhusudan (the carrier constable) and urged that Narendra Singh admitted in his cross-examination that he was on leave on some of the dates on which, the sample packets were dealt with at the police station maalkhana. Shri Deora submits that none of the other police witnesses gave evidence so as to prove the status/safe custody of the samples on the dates on which, Narendra Singh (PW-11) (Malkhana Incharge) was on leave. He thus urges that the prosecution has failed to lead tangible evidence for bringing home the charge of murder of Smt. Manju against the appellant and hence, the impugned Judgment is unsustainable in facts as well as law. He thus sought acceptance of the appeal while reversing the impugned Judgment and craved acquittal for the appellant.

Per contra, learned Public Prosecutor, vehemently and fervently opposed the submissions advanced by the appellant's counsel. He submitted that there is wholesome evidence on the record of the case establishing that the appellant approached the Police Chowki Gomti with the severed imbrued head of his daughter Smt. Manju and at that time, he was also carrying a blood stained sword. Learned Public Prosecutor submitted that merely because the first informant turned hostile and did not support the prosecution case at the trial, that by itself, cannot be a reason to discard the entire FIR (Ex.P/1). According to him, the admissible parts of the report can be read in evidence because the informant admitted his signatures on the FIR (Ex.P/1). There was no allegation of the defence that the police officials concerned, were having any animosity against the accused. He submitted that otherwise also, since the case involved murder of daughter of the accused appellant and there being no adverse party, apparently, the police had no reason whatsoever to draw up an FIR (Ex.P/1) for falsely implicating the accused appellant in the case. As per the learned Public Prosecutor, the fact regarding the accused-appellant having approached the Police Outpost with the severed head of his daughter and blood stained sword, was stated in unequivocal terms by Ranjeet Singh (PW-10). Evidence given by Ranjeet Singh to this effect does not tantamount to a confession because it is an eye-witness account of the events seen/observed by Ranjeet Singh before the FIR came to be registered and thus, as per the learned Public Prosecutor, evidence given by Ranjeet Singh to this extent would not be hit by Sections 25/26 of the Evidence Act. Learned Public Prosecutor further submitted that seizure of the severed head of the girl and the blood stained sword carried by the accused to the Police Outpost was effected by the SHO Lal Singh (PW-1) on the very same day. This fact is fortified by the evidence of Lal Singh (PW-1) and Ranjeet Singh (PW-10). The accused failed to offer any explanation whatsoever as to how, he came into possession of the severed head of his daughter who was admittedly living with him. Thus, as per the learned Public Prosecutor, the facts leading to the gruesome murder of Smt. Manju were within the exclusive knowledge of the appellant who failed to offer any explanation for the same. Learned Public Prosecutor thus submitted that the accused was rightly convicted by the trial court for the charge of murdering his own daughter. Regarding the contention of learned defence counsel that there are discrepancies in the link evidence with respect to the safe custody of the blood stained articles, learned Public Prosecutor submitted that these discrepancies are trivial in nature and do not create such a doubt on the link evidence which can be considered sufficient to discard the testimony of the police officials who had no reason to depose against or to falsely implicate the appellant. On these grounds, learned Public Prosecutor pleaded for dismissal of appeal.

We have given our thoughtful consideration to the submissions advanced by the learned defence counsel and the learned Public Prosecutor; perused the impugned Judgment and have threadbare re-appreciated the evidence available on record.

Certain facts which go to the root of the matter and were not seriously disputed by the learned counsel for the appellant and are enumerated below for ready reference:-

(i) that the appellant approached the Police Outpost Gomti carrying the severed head of his own daughter and a sword with him;

(ii) that the headless corpse of Smt. Manju was recovered by the SHO Lal Singh lying inside the appellant's house;

(iii) that the appellant did not claim, at any point of time, that he was not present in the house at the time when his daughter Smt. Manju was done to death;

(iv) that other than a bald denial, not even a semblance of explanation was offered by the appellant for the above set of facts which were supposedly within his exclusive knowledge.

Keeping this factual position in the back of our mind, we now proceed to appreciate the evidence available on record.

The written report of the incident (Ex.P/1) was submitted by Narayan Singh (PW-4) at the Police Station before to Shri Lal Singh, SHO, Police Station Charbhuja. Since the incident pertains to the murder of the accused appellant's daughter Smt. Manju, evidently, the police officials could have had no reason whatsoever to falsely implicate the appellant nor did he himself take any such specific plea in his statement recorded under Section 313 Cr.P.C. wherein, he made a bald assertion that he had been falsely implicated and was innocent. The fact that Narayan Singh (PW-4) approached the Police Outpost and submitted the written report (Ex.P/1) was emphatically stated by Ranjeet Singh, ASI (PW-10) who was posted at Police Outpost Gomti on the relevant date as well as Lal Singh (PW-1) in their evidence.

Ranjeet Singh (PW-10) stated on oath that on 17.06.2012 at about 06.00 pm., Narayan Singh came to the Police Station on his motorcycle. Another man was riding as a pillion rider behind him with the severed head of a girl in one of his hands and a sword in the other. Upon being asked, the pillion rider disclosed his identity as Ogad Singh son of Daulat Singh, resident of Dungar Ji Ka Guda (Saarna), District Rajsamand. When Ranjeet Singh inquired Ogad Singh regarding the severed human head, he replied that it was of his daughter who was of loose/unchaste character. Ogad Singh also stated that because of his daughter's loose character, he had killed her. Relevant parts of the statement of Ranjeet Singh (PW-10) are extracted hereinbelow for ready reference:-

"मैंदिनांक 17.06.2012 को गौमती चैकी पर ए एस आई के पद पर तैनात था। उस रोज षाम को साढे 6 बजे नारायण सिंह नामक व्यक्ति मोटरसाईकिल लेकर चैकी पर आया और उनके पीछे एक व्यक्ति और बैठा था जिसके हाथ में एक लड़की का सिर कटा हुआ और एक हाथ में खून से सनी हुई तलवार थी। उस व्यक्ति से उसका नाम पता पूछा तो उसने अपना नाम ओगड सिंह पिता दौलत सिंह निवासी डूंगर जी का गुडा होना बताया। उसको मैंने यह भी पूछा कि यह किसका सिर है तो ओगड सिंह ने बताया कि यह मेरे बच्ची मंजू का सिर है। ओगड सिंह ने यह भी बताया कि यह मेरी बच्ची का सिर है जो आवारा बदचलन थी इसलिए मैंने इसकी गर्दन काट दी है और इसका धड घर पर पड़ा है। जिस पर मैंने ओगड सिंह को गौमती चैकी में बैठाया और चारभुजा थाने पर उच्चाधिकारियों को इसकी सूचना दी, जिस पर थाने से थानेदार सा. मय जाप्ता के चैकी पर आये थे।"

(Emphasis supplied) Accepting the defence plea that the part of statement of Ranjeet Singh where he alleged that Ogad Singh admitted to have murdered his daughter, would be attracted by Section 25 of the Evidence Act as being a confession made before a police officer then also, the remaining part of the statement wherein, Ranjeet Singh stated that the person who was carrying the severed female head in one hand and a blood stained sword in the other, identified himself to be Ogad Singh and that he came to the police station with Narayan Singh is definitely admissible in evidence. In addition thereto, Ranjeet Singh stated that Ogad Singh's clothes were stained in blood. Ogad Singh stated before the witness that his daughter was of the loose character. Regarding this categoric assertion of Ranjeet Singh, no significant cross-examination was made by the defence counsel. The disclosure of Ogad Singh before Ranjeet Singh that his daughter was of immoral character gives rise to a strong inference that the accused had a strong motive to kill the deceased.

The question of law regarding admissibility of the statement made by an accused to a police officer was considered by Hon'ble the Supreme Court in the case of Aghnoo Nagesia vs. State of Bihar reported in AIR 1966 SC 119. The relevant parts of the Judgment are extracted below for ready reference:

"6. The first information report reads as follows :

"My name is Aghnu Nagesia. (1) My father's name is Lodhi Nagesia. I am a resident of Lotwa, Tola Jamtoli, thana Palkot, district Ranchi. Today, Sunday, date not known, at about 3 p.m. I having come to the P.S. make statement before you the S.I. of Police (2) that on account of my Barima (aunt) Mussammat having given away her property to her daughter and son-in-law quarrels and troubles have been occurring among us. My Barima has no son and she is a widow. Hence on her death we shall be owners of her lands and properties and daughter and son-in- law of Barima shall have no right to them. She lives separate from us, and lives in her house with her daughter and son-in-law and I live with my brother separately in my house. Our lands are separate from the time of our father. (3) Today in the morning at about 7-8 a.m. I had -one with a tangi to Duni Jharan Pahar to cut shrubs for fencing. I found Somra sitting alone there who was grazing cattle there. (4) Seeing him I got enraged and dealt him a tangi blow on the fill (calf) of right leg, whereby he toppled down on the ground. Thereupon I dealt him several Chheo (blows) on the head and the face, with the result that he became speechless and died. At that time there was none near about on that Pahar. (5) Thereafter I came to the Kesari Garu field where "Somra's wife Chamin was weeding out grass in the field. (6) 1 struck her also all on a sudden on the head with the said tangi whereby she dropped down on the ground and died then and there. (7) Thereafter I dragged her to an adjoining field and laid her in a ditch to the north of it and covered her body with Gongu (Pala ke Chhata) so that people might not see her. There was no person then at that place also. (8) Thereafter I armed with that tangi went to the house of my Barima to kill her. When I reached there, I found that she was sitting near the hearth which was burning. (9) Reaching there all on a sudden I began to strike her on the head with tangi whereupon she dropped down dead at that very place. (10) Near her was Somra's son aged about 3 -4 years. (11) I also struck him with the tangi. He also fell down and died. (12) I finished the line of my Barima so that no one could take share in her properties. (13) 1 hid the tangi in the jhari of my Barima's house. (14) Later on I narrated the occurrence to my chacha (father's brother) Lerha that I killed the aforesaid four persons with tangi. After sometime (15) I started for the P.S. to lodge information and reaching the P.S. T make this statement before you. (16) My Barima had all along been quarrelling like a Murukh (foolish woman) and being vexed, I did so. (17) All the dead bodies and the tangi would be lying in those places. I can point them out. ( 1 8) This is my statement. I got it read over to me and finding it correct, I affixed my left thumb-impression.

We have divided the statement into 18 parts. Parts 1, 15 and 18 show that the appellant went to the police station to make the report. Parts 2 and 16 show his motive for the murders. Parts 3, 5, 8 and 10 disclose the movements and opportunities of the appellant before the murders. Part 8 also discloses his intention. Parts 4, 6, 9 and 11 disclose that the appellant killed the four persons. Part 12 disclose the killing and the motive. Parts 7, 13 and 17 disclose concealment of a dead body and a tangi and his ability to point out places where the dead bodies and the tangi were lying. Part 14 discloses the previous confession by the appellant. Broadly speaking, the High Court admitted in evidence parts 1, 2, 3, 5, 7, 8, 10, 13, 15, 16, 17 and 18.

On behalf of the appellant, it is contended that the entire statement is a confession made to a police officer and is not provable against the appellant, having regard to Section 25 of the Indian Evidence Act, 1872. On behalf of the respondent, it is contended that Section 25 protects only those portions of the statement which disclose the killings by the appellant and the rest of the statement is not protected by Section 25.

Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found under the heading "Admissions". Confession is a species of admission, and is dealt with in Sections 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides: "No confession made to a police officer, shall be proved as against a person accused of an offence". The terms of Section 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by Section 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by Section 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by Sections 24, 25 and 26. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-section (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of Section 27 of the Evidence Act. The words of Section 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under Section 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by Section 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under Section 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by Section 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by Section 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him.

They are based upon grounds of public policy, and the fullest effect should be given to them.

Section 154 of the Code of Criminal Procedure provides for the recording of the first information. The information report as such is not substantive 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 Act, if the informant is called as a witness. If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under Section 8 of the Evidence Act. If the information is a non-confessional statement, it is admissible against the accused as an admission under Section 21 of the Evidence Act and is relevant, see Faddi v. State of Madhya Pradesh [Criminal Appeal No. 210 of 1963 decided on January 24, 1964] explaining Nisar Ali v. State of U.P. [AIR 1957 SC 366] and Dal Singh v. King-Emperor [LR 44 IA 137] . But a confessional first information report to a police officer cannot be used against the accused in view of Section 25 of the Evidence Act.

The Indian Evidence Act does not define "confession". For a long time, the courts in India adopted the definition of "confession" given in Article 22 of Stephen's Digest of the Law of Evidence. According to that definition, a confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. This definition was discarded by the Judicial Committee in PakalaNarayanaswami v. King-Emperor [(1939) LR 66 IA 66, 81] . Lord Atkin observed:

"...no statement that contains self exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. 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."

These observations received the approval of this Court in PalvinderKaur v. State of Punjab [(1953) SCR 94, 104] . In State of U.P. v. DeomanUpadhyaya [(1961) 1 SCR 14, 21] Shah, J. referred to a confession as a statement made by a person stating or suggesting the inference that he has committed a crime.

Shortly put, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. If an admission of an accused is to be used against him the whole of it should be tendered in evidence, and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only. See Hanumant v. State of U.P. [(1952) SCR 1091, 1111] and Palvinder Kaur v. State of Punjab [(1953) SCR 94, 104] . The accused is entitled to insist that the entire admission including the exculpatory part must be tendered in evidence. But this principle is of no assistance to the accused where no part of his statement is self-exculpatory, and the prosecution intends to use the whole of the statement against the accused.

Now, a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non-confessional statement. Each part discloses some incriminating fact i.e. some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession.

If proof of the confession is excluded by any provision of law such as Section 24, Section 25 and Section 26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section such as Section 27 of the Evidence Act. Little substance and content would be left in Sections 24, 25 and 26 if proof of admissions of incriminating facts in a confessional statement is permitted.

A little reflection will show that the expression "confession" in Sections 24 to 30 refers to the confessional statement as a whole including not only the admissions of the offence but also all other admissions of incriminating facts related to the offence. Section 27 partially lifts the ban imposed by Sections 24, 25 and 26 in respect of so much of the information whether it amounts to a confession or not, as relates distinctly to the fact discovered in consequence of the information, if the other conditions of the section are satisfied. Section 27 distinctly contemplates that information leading to a discovery may be a part of the confession of the accused and thus fall within the purview of Sections 24, 25 and 26. Section 27 thus shows that a confessional statement admitting the offence may contain additional information as part of the confession. Again, Section 30 permits the Court to take into consideration against a co-accused a confession of another accused affecting not only himself but the other co-accused. Section 30 thus shows that matters affecting other persons may form part of the confession.

Section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Now, the Sub-Inspector stated he arrested the appellant after he gave the first information report leading to the discovery. Prima facie therefore, the appellant was not in the custody of a police officer when he gave the report, unless it can be said that he was then in constructive custody. On the question whether a person directly giving to police officer 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 Section 27, there is conflict of opinion. See the observations of Shah, J. and Subba Rao, J. in State of U.P. v. Deoman Upadhyaya [(1961) 1 SCR 14, 21] . For the purposes of the case, we shall assume that the appellant was constructively in police custody and therefore the information contained in the first information report leading to the discovery of the dead bodies and the tangi is admissible in evidence. The entire evidence against the appellant then consists of the fact that the appellant gave information as to the place where the dead bodies were lying and as to the place where he concealed the tangi, the discovery of the dead bodies and the tangi in consequence of the information, the discovery of a blood-stained chadar from the appellant's house and the fact that he had gone to DungiJharan Hills on the morning of August 11, 1963. This evidence is not sufficient to convict the appellant of the offences under Section 302 of the Indian Penal Code."

These principles were further elaborated in the case of Bheru Singh vs. State of Rajasthan reported in (1994)2 SCC 467 wherein, it was held as below:-

"17. 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 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 CrPC 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.

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 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)

Considered in light of ratio of the above Supreme Court judgments, we are of the firm opinion that the extracts of the statement made by the accused Ogad Singh to ASI Ranjeet Singh, which have been highlighted (supra), are not confessional in nature and as a consequence, are definitely admissible in evidence.

Another fervent contention of Shri Deora was that the First Information Report (Ex.P/1) is not admissible in evidence for any purpose whatsoever. In this regard, we may state that First Informant Narayan Singh (PW-4) admitted in cross-examination conducted by the learned Public Prosecutor that the report (Ex.P/1) bore his signatures. He of-course stated that he was made to sign blank papers but at the same time, he admitted that he was neither threatened nor was intimidated by the police officials for appending these signatures. Ranjeet Singh (PW-10) affirmed the fact that Narayan Singh gave the report of incident to Shri Lal Singh, SHO (PW-1) who also admitted in his evidence that the report (Ex.P/1) was indeed lodged by Narayan Singh. Thus, we have no reluctance in holding that the report (Ex.P/1) was lodged by Narayan Singh (PW-4). However, at the same time, we have to remain conscious of the fact that an FIR is not a substantive piece of evidence and the contents thereof have to be proved by the oral deposition of maker thereof. In this case, the FIR lodger Narayan Singh (PW-4) did not support the prosecution so far as the contents of the FIR are concerned and thus, the same has to be viewed with circumspection. Nevertheless, even if the contents of the FIR are discarded, the evidence of Ranjeet Singh (PW-10) is totally conclusive on the aspect that Ogad Singh was brought to the Police Outpost Gomti by Narayan Singh. He was carrying the severed head of his daughter and a blood stained sword at that time. Lal Singh (PW-1) gave convincing evidence to the effect that he was called by Chowki Incharge Ranjeet Singh, who apprised that Ogad Singh had come to the Outpost with the severed imbrued head of his daughter Smt. Manju and was also carrying the blood stained sword. Lal Singh reached the police outpost where Narayan Singh gave him the written report (Ex.P/1).

Lal Singh was examined as PW-1 and in his sworn testimony, he stated that he was posted at the Police Outpost, Gomti on 17.06.2012. He received a call from Ranjeet Singh, Chowki Incharge, Gomti at about 06:15 pm. Ranjeet Singh told him that Ogad Singh Rajput had murdered his daughter Smt. Manju by a sword and he had come to the Police Outpost with the severed head and a sword. The SHO immediately reached Gomti Police Outpost. Narayan Singh (PW-4) gave him the report (Ex.P/1) on which, the FIR was registered and the police proceedings were initiated. The SHO seized the weapon of offence (blood stained sword) from Ogad Singh. The severed head was also taken into possession. The same was sealed in a cloth bag. Since the accused had already disclosed to Ranjeet Singh that he had murdered his daughter and the lower part of her corpse was lying at his house thus, this disclosure of the accused would have to be considered as one being under Section 27 of the Evidence Act with the accused being in constructive custody of the police officials. The SHO proceeded to the place of incident which is the house of the accused, seized the remaining part of the corpse of the deceased and prepared the Panchayatnama Lash (Ex.P/3). Blood stained soil, control soil, etc. were collected from the place of incident and were sealed vide seizure memo (Ex.P/4). A Blood stained clothes of the accused were seized vide seizure memo (Ex.P/5). The accused was arrested vide arrest memo (Ex.P/6). A blood stained trouser (leggings) was taken off from the body of Smt. Manju and was seized vide seizure memo (Ex.P/7). The dead body was sent to the Government Hospital, Charbhuja and was subjected to autopsy. On going through the entire statement of Lal Singh (PW-1), we do not find anything which can detract from the evidentiary worth of the witness. The seizure of the lower part of the corpse of Smt. Manju from accused's house is a strong incriminating circumstance which he was required to explain. The accused did not claim at any point of time that he was not present in the house when the incident took place. Otherwise also, as it was the accused who carried the head of the deceased to the police outpost, it can be indubitably concluded that he must have been the only person aware of the circumstances under which his daughter Smt. Manju was brutally murdered by decollating her head. These significant facts, which were in the exclusive knowledge of the accused, were required to be explained by him by virtue of Section 106 of the Evidence Act. The accused failed to offer even a bald explanation for these grave incriminating circumstances.

In addition thereto, the prosecution has proved the DNA report (Ex.P/56) which establishes the fact that the blood stained sword which the accused carried to the police outpost and the blood stained clothes (shirt and pant) seized from his person, were compared with the blood stained clothes worn by the deceased and all the articles gave a matching DNA profile. Thus, without any doubt, the blood present on all these articles was that of the deceased Smt. Manju. Shri Deora raised a fervent argument regarding the corrupted link evidence and failure of the prosecution to establish that the incriminating articles seized by the SHO viz. the sword, the clothes of the accused and the clothes of the deceased remained in the self same condition right from the time of the seizure till the same were received at the Laboratory for DNA comparison. In this regard, we have closely scrutinized the evidence of PW-10 Lal Singh (SHO), PW-11 Narendra Singh Constable (Malkhana In-charge), PW-12 Jasraj (Acting Malkhana In-charge) and PW-13 Dr. Surya Shekhar (the Assistant Director of the FSL), PW-14 Dhan Singh (Carrier Constable), PW-15 Mahendra Singh (Career Constable), and PW-16 Madhusudan (Constable). On a threadbare re-appreciation of evidence of these witnesses, we are of the view that the prosecution gave wholesome evidence to prove that the blood stained articles which were received at the FSL remained in an intact condition right from the date of seizure till they were received at the FSL. There is foolproof evidence on the record of the case to show that the sample packets were seized and sealed by Lal Singh (PW-1) during investigation and when the same were received at the FSL, the same were in the self same condition with the seals and the chits being intact. The trivial discrepancy regarding dates appearing in the evidence of Narendra Singh was harped upon by Shri Deora can be attributed to lapse of time and does not detract from the creditworthiness of the link evidence and the DNA report (Ex.P/26) is definitely admissible in evidence. Thus, the contention of the learned defence counsel regarding the link evidence being tampered, is untenable.

Our view is fortified by the following observations made by Hon'ble the Supreme Court in the case of State of Rajasthan vs. Sahi Ram, reported in (2019)10 SCC 649:

"16. Turning to the facts in the present matter, the evidence PW15 Surender Singh shows that from and out of 7 bags of poppy husk, samples weighing about 500 grams were taken out of each bag. Out of these 3500 grams thus taken out, two samples of 500 grams were independently sealed while rest 2500 grams were also sealed in a separate pouch. These samples were marked A, B and C respectively. The bags were also independently sealed and taken in custody and Exbt-5 seizure memo which recorded all these facts was also signed by the accused. We have gone through the cross- examination of the witness. At no stage even a suggestion was put to the witness that either the signatures of the accused were taken by fraud, coercion or misrepresentation or that the signatures were not of the accused or that they did not understand the purport of the seizure memo. It would therefore be difficult to even suggest that the seizure of contraband weighing 223 kgs was not proved by the prosecution. In our view this fact stood conclusively proven.

If the seizure of the material is otherwise proved on record and is not even doubted or disputed the entire contraband material need not be placed before this Court. If the seizure is otherwise not in doubt, there is no requirement that the entire material ought to be produced before the Court. At times the material could be so bulky, for instance as in the present material when those 7 bags weighed 223 kgs that it may not be possible and feasible to produce the entire bulk before the Court. If the seizure is otherwise proved, what is required to be proved is the fact that the samples taken from and out of the contraband material were kept intact, that when the samples were submitted for forensic examination the seals were intact, that the report of the forensic experts shows the potency, nature and quality of the contraband material and that based on such material, the essential ingredients constituting an offence are made out."

(Emphasis supplied).

Thus, we are of the view that the contention of the learned counsel for the appellant that the prosecution failed to lead requisite link evidence to satisfy the Court regarding the sanctity of the sample packets, is misconceived.

Dr. Nitesh (PW-8) who conducted autopsy upon the body of Smt. Manju, opined that her head had been chopped off from her torso and that the injury was fatal. Therefore, there is no doubt that the death of Smt. Manju was homicidal in nature.

As a consequence of the discussion made herein above, we are of the firm opinion that the prosecution has proved its case beyond reasonable doubt by an unblemished chain of circumstances establishing that it was none other than the appellant who was responsible for murdering his daughter Smt. Manju by decollating her head with a sword. As per the evidence of Ranjeet Singh (PW-10), when the accused appellant appeared at the police station with the severed head and the sword (PW-4), he uttered that his daughter Smt. Manju was of loose/unchaste character and being fed up by her immoral ways, he had murdered her. This statement made by Ranjeet Singh is definitely admissible in evidence to the extent, the appellant divulged the motive for the murder of his daughter as the same cannot be termed to be a confession so as to be hit by Section 25 of the Evidence Act. Utter failure of the appellant to offer any explanation regarding the brutal murder of his daughter in his house and the subsequent carrying of her severed head and the blood stained sword to the police outpost leads to the irrefutable presumption regarding his culpability for the offence. Failure of the appellant in offering any explanation in this regard leads to the only possible inference that it was he and nobody else who was responsible for the murder of his own daughter Smt. Manju.

As a consequence, we are of the view that the trial court committed no error in arriving at the conclusion of the guilt of the accused appellant. The impugned judgment does not suffer from any infirmity or perversity, either factual or legal, warranting interference therein.

As a result, the appeal is rejected as being devoid of merit.

Record be returned to the trial court forthwith.