JUDGMENT B.L. Yadav, J.
1. The appellant Ramua alias Ram Lal has preferred this criminal appeal against his conviction under Section 302, I.P.C. and sentence for life imprisonment and under Section 201, I.P.C. and sentence for four years' rigorous imprisonment. The learned Sessions Judge has convicted the appellant by the judgment and order dated 10th May, 1983 in Sessions Trial No. 146 of 1982.
2. The prosecution story as contained in the F.I.R. is that the appellant who was resident of village Pali, P.S. Jakhlaun, district Lalitpur, was living separately from his father Tiju, who lodged the first information report (Ext. ka-1) that his daughter in law namely Smt. Suhagrani aged about 27 years was missing for the last seven days. She was wearing a Saari and some glass bangles etc. The appellant was living separately from his father with his wife Smt. Suhagrani the deceased and two children. It was alleged that somehow the appellant was not satisfied with his wife's conduct and on 9-6-1982 he sent to the Jungle of Pali with his wife and two sons on the pretext to collect dried wood and murdered the wife there with an axe (Kulhari). Her dead body was left in the Jungle after the murder. Only some bones were recovered. On the pointing out of the appellant on 16-6-82, when the first information report is alleged to have been lodged, the blouse, glass bangles, hairs and some torn clothes and dhoti containing blood stains were recovered (vide Ext. Ka-2). On the same date some bones were also recovered on the pointing out of the appellant (vide Ext. Ka-3).
3. There is no eye-witness except one child named Bihari the son of the appellant aged about 3 to 4 years (P. W. 1). About whom the learned Sessions Judge has given a certificate to the effect that the child witness is not understanding the sanctity of the truth and understands the question with difficulty after repetition, and oath was not administered.
4. P.W. 2 was informant-Teju and P.W. 3 is Suresh Kumar who was scribe of the first information report. P.W. 4 is Kamta, the father of deceased Smt. Suhagrani. P.W. 5 Gajendra Singh before whom the alleged extra judicial confession was made by the deceased on 16-6-82. Kashi Ram is P.W. 6. P.W. 7 is Ram Karan Singh A.S.I, the Investigating Officer. The statements of these prosecution witnesses have been relied upon by the learned Sessions Judge. The conviction and sentences, as aforesaid have been passed.
5. Sri Prakash Chandra Srivastava the learned counsel for the appellant argued the appeal that except P.W. 1 Bihari, the son of the appellant aged about 3 to 4 years, about whom a certificate was given by the learned Sessions Judge that the child witness is not understanding the sanctity of the truth and that he understands the question in difficulty after the repetition, there was no other eyewitness and the case was based on circumstantial evidence. The statement of P.W. 1 Bihari cannot be relied upon, as in the cross examination he has denied the version which he has said in examination-in-chief. He has stated in the cross-examination that no body was having Kulhari and he has again said that he does not know kulhari and again contradicted that his father and mother have not gone to pick up the small pieces of wood in the forest. He again said that they have come together on that date in the mid day at about 12 noon. In the last sentence of his statement (at page 30 of the paper book) he stated that when the kulhari was placed before him he does not know what is this? This indicates that he did not see either Kulhari or anything else in the occurrence and cannot be relied upon.
6. Similarly P.W. 2 the father of the appellant was declared hostile and he was also not an eye-witness. P.W. 3 was scribe of the first information report which does not disclose the occurrence, except that the daughter-in-law of the informant was missing for the last seven days.
7. P.W. 4 is the father of the deceased and before him some pieces of blouse, some glass bangles chappal and the part of dhoti was recovered, and he did not lodge any report that his daughter used to elope with some body else. P.W. 5 Gajendra Singh is the person before whom the appellant has made extra judicial confession and the accused took him to the place of occurrence, from where some clothes of the deceased and some bones supposed to be of the deceased were recovered. The appellant told the Investigating Officer, who was accompanying the accused appellant that he would point out the Kulhari (axe) with which the murder was committed. Thereafter he was arrested. It means the appellant was not under custody, 'before he pointed out the axe with which the murder was committed which was recovered by the Investigating Officer, the provision of Section 27 of the Evidence Act 1872 (for short the Act), permits proof of information furnished by the accused, whether information pertains to the confession or not. On the information furnished while the accused was not in custody of police, in case it relates distinctly to the fact thereby discovered may be proved.
8. In the present case neither any information was given by the accused, nor he pointed out the articles recovered while he was in police custody.
9. P.W. Kashi Ram was a person before whom on the pointing out of the accused, bones, clothes and chappal etc. of the deceased were recovered. His statement also cannot be relied upon.
10. P.W. 7 is the Investigating Officer. Before whom the first information report was lodged and the recovery of articles belonging to the deceased was made. He recovered the Kulhari by which the murder was caused, before he has arrested the accused. In other words before the appellant could be taken in custody, he has not pointed out the axe nor the recovery was made. It was also urged that the articles belonging to the deceased and even the bones were not proved to be of the deceased, by leading reliable evidence. It was urged that the prosecution has not come with clean hands nor the dead body was recovered and the appellant was entitled to acquittal.
11. Mr. A. K. Dwivedi the learned counsel appearing for the State urged that when the prosecution witnesses are reliable, the bones and the clothes etc. belonged to the deceased. The statement made by the appellant about pointing out of the kulhari was admissible in evidence in view of the provisions of Section 27 of the Indian Evidence Act, 1872 and supported the impugned judgment and order.
12. Having heard the learned counsel for the parties we are of the opinion that the appeal deserves to be allowed. No doubt the statement of a child witness can be admissible in view of provision of Section 118 of the Act, The statement of a child witness is admissible but before that it must be ascertained by the Court that the child understands the questions put to him and that he gives rational answers to the questions.
13. Competence of a child witness is tested on the basis of an old Latin Maxim "Varitatem Dicere A Corruption of Viordire" which means that examination of a witness is a series of questions by the Court usually in the nature of an examination as to his competence to give evidence in some other collateral matter prior to his examination-in-chief.
14. In the present case the learned Sessions Judge has put certain questions to the P.W. 1 Bihari aged about 3-4 years and after those questions were put and answered by the child, he has given a certificate that the child witness does not understand the sanctity of truth. He understands the questions in difficulty after repetition. Oath not administer-d. This obviates that the child was not in a position to understand what is truth and what is falsehood and that he understands the questions in difficulty and after repetition. Consequently such witness cannot be said to be a proper witness who can depose correctly or on whose deposition reliance can be placed. For precaution's sake we have considered the statement of P.W. 1 in detail. Whatever was stated in the examination in chief to the effect that his father has killed his mother with kulhari". was contradicted in the cross-examination. He even denied that there was any kulhari at all either in the hands of the appellant or in the hands of his mother. He says that he does not know what is kulhari, and he said that his father and mother came back in the noons and when the kulhari was placed before him, he said that he does not know, what is this. It means that he does not understand what was kulhari and he did not understand any thing. No reliance can be placed upon such child witness.
15. P.W. 2 is the father of the appellant, who was not an eye-witness. He has just lodged the first information report (Ext. ka-5). Ext. ka-1 that was only to the effect that his daughter-in-law was missing for the last seven days. The recovery was made. This witness was declared hostile. Whatever he stated in the examination-in-chief at one place, contradicted at the second place, in as much as when the first information lodged by him was read and explained to him, he told that he did not say all these things in the report nor it contains his thumb impressions. He was declared hostile. In certain circumstances even the statement of a witness declared hostile can be relied upon to some extent. But this witness does not appear to be reliable, as he even denied the contents of the first information report. P.W. 3 is the scribe of the first information report.
16. P.W. 4 was the father of the deceased and the witness of the recovery of the blouse, glass bangles, and chappals etc. He said, that when his daughter used to elope with some body else he did not lodge any first information report.
17. Similarly P.W. 5 Gajendra Singh is the person before whom extra-judicial confession was made by the appellant and the recovery (Ext. 7) was also made in respect of certain articles and also the bones etc. were recovered in his presence when the Investigating Officer was also there. But the Investigating Officer has asked the appellant as to where the kulhari was placed. The appellant said that he can hand it over to him. Thereafter the appellant was arrested. The question of significance is as to whether the recovery of the instrument with which the murder was caused, was made. If the accused appellant has pointed out the instrument with which the murder was caused, thereafter he was arrested and made an accused. Whether the recovery of the instrument can be said to be admissible in view of the provisions of Section 27 of the Act.
18. A bare reading of the provisions of Section 27 of the Act indicates that it is unusually drafted by the Legislature. It opens with the word provided that it is accordingly a proviso to Sections 26 and 25. The main function of a proviso is to carve out an exception, to the main enactment. It cannot normally be interpreted so as to set at naught the main enactment. (See A. N. Sehgel v. R.R. Sheo Ram, AIR 1991 SC 1406 : (1991 Lab IC 1227), West Derby v. Metropolitan Life Assurance Co., 1897 AC 647; R.L.I. District Council v. T. V. Railway Co., 1909 AC 253); Section 26 provides confession by accused while in police custody not to be proved against him. Section 25 enacts that confession to police officer not to be proved. This section as an exception to Sections 25 and 26. Section 24 of the Act makes confession obtained by inducement, threat or promise to be irrelevant.
19. Broadly speaking, there are four (conditions, before Section 27 is applied, 1st that the accused must be in the custody of a police officer, 2ndly the accused must given an information to the police (the exception contemplated by Section 27 is that even though this information may amount to a confession), 3rdly there must be discovery of an instrument and fourthly the information must relate distinctly to the fact discovered. This Section 27 is drafted on the same lines as Section 150 of Evidence Act XXV of 1861, or the relevant section of Indian Evidence Act VIII of 1869. A five Judge Full Bench of this Court in Queen Empress v. Babu Lal (1884) 6 Alld, 509, held that the information may be to the police officer or to any other private individual. In the present case there was no information (i.e. the accused while in police custody must have said 'you will find a Kulhari at such a place and I killed my wife with it') the appellant was not in police custody when he pointed out the weapon. Experience reveals that Section 27 of the Act has been very often, misused by the police, hence Court must be vigilant about, its circumvention. In the absence of any information being furnished to the police just pointing out to the weapon and its recovery is not a relevant fact.
20. In other word there was no evidence to indicate that any information was conveyed by the appellant to the police officer or to P.W. 5. The appellant has made a statement about pointing out of the weapon kulhari and thereafter he was arrested. To put it differently at the time when he pointed out the instrument, he was not an accused nor he was in the custody of the police officer. Consequently the recovery made at the time when he was not in the custody of the police officer could not be relevant under Section 27 of the Act.
21. There is another aspect of the case. The accused is not a defined term and Section 273 of the Code of Criminal Procedure provides that the evidence must be taken in presence of the accused. The explanation of Section 273 indicates that the accused includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code and Chapter VIII is about Security for keeping a peace and for good behaviour. Even if this explanation under Section 273 of the Code can be said to include a definition of word accused but that definition if it can be so properly called is an inclusive definition. This is not exhaustive. This term accused of an offence is not narrowly construed and interpreted. It is at the same time not necessary that his name must find place in the first information report. In AIR 1958 AP 37 : (1958 Cri LJ 18) it was held that a person who is arrested by the police during investigation is an accused. In Amin v. State of U.P., AIR 1958 All 293 : (1958 Cri LJ 462), it has been held that the moment suspicion attached to a person or where a witness points to his guilt and he is taken in custody and interrogated, on that basis he becomes a person accused of an offence. In the present case he was taken into custody only after he has pointed out the 'Kulhari'. It means that he was not in the police custody at the time when he pointed out the weapon used and consequently the recovery of the weapon does not become admissible under Section 27 of the Evidence Act. Even the statement of P.W. 7 the Investigating officer does not show that the appellant was arrested first and thereafter the recovery was made on his pointing out. There is doubtful explanation to the effect that the accused was arrested and on his pointing out some bones and kulhari the instrument were recovered and memo Ext. Ka-4 was prepared. The statement of the accused appellant, in order to be admissible under Section 27 of the Act, it must have been stated by the Investigating officer P.W. 7 that the appellant was in police custody and while he was under custody, on his pointing out the weapon and some bones were recovered. We have perused the statement of P.W. 7 Ram Karan Singh and we find it not to be reliable.
22. In the absence of positively admissible and reliable evidence, which is lacking the recovery of the bones, chappal, glass bangles and pieces of the clothes including blouse alone could not be said to be sufficient to indicate that these articles belonged to the deceased. The dead body was not recovered nor any post-mortem has been conducted. What was the nature of the injuries, has also not been indicated. In such matters we are reminded of an old Maxim Corpus Delicti. This obviously connotes that before seeking to prove that the appellant is the author of the crime, it must be proved beyond all reasonable doubts that the crime charged has been committed. In the charge of murder it must be proved before convicting the accused that murder has been committed. The body of the victum must be recovered or must be proved by cogent evidence. The strongest possible evidence is required as to the fact of murder as the dead body was not forthcoming or the bones etc. have not been proved to be of the victim.
23. In State of Punjab v. Bhajan Singh, AIR 1975 SC 258 : (1975 Cri LJ 282) their Lordships of the Supreme Court were reluctant to come to the conclusion of murder on the confession alone of the accused, as the dead bodies, alleged to be that of the deceased were unrecognisable due to decomposition and the post-mortem could not determine the cause of death, (vide para 13 page 260). Under these circumstances in the absence of the dead body or strong and reliable proof that the bones or glass bangles recovered were of the victim, the prosecution case appears to be doubtful, and it is not justified to record conviction.
24. In view of the premises aforesaid, the impugned judgment and order could not be sustained. In the result the appeal succeeds and is allowed. The conviction and sentence passed against the appellant is set aside. The appellant was not on bail. He is directed to be set at liberty forthwith unless wanted in some other case. We also direct that the necessary release orders may be issued by the Chief Judicial Magistrate, Lalitpur at an early date.
25. Before parting with the case we may point out that Mr. Prakash Chandra Srivastava, Advocate has appeared as an Amicus Curiae and has assisted us effectively. We direct that he my be paid Rs. 1100/- as fee by the State of U. P. at an early date.
26. A copy of the judgment be given to the learned Counsel for the appellant on making usual application as free of cost.