NAME: DEVIKA HEMANT NIGDE DESHMUKH

5TH YEAR BLS LLB SEMESTER 10

SUBJECT: THE INDIAN EVIDENCE ACT, 1872

IN THE HON’BLE HIGH COURT

CRIMINAL APPEAL

PHUNDI ……. APPELLANT

VS
STATE OF MADHYA PRADESH …….. DEFENDANT

BENCH: S DUBEY, S CHAWLA

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SR. NO. CONTENTS PG. NO.

1. INDEX OF AUTHORITY 3

2. LIST OF ABBREVIATION 4

3. TABLE OF CASES 5

4. FACTS AND PROSECUTION CASE 7-8

5. CIRCUMSTANTIAL EVIDENCE 8-11

6. RELIED ACTS AND JUDGEMENTS 12-15

7. CONCLUSION 16

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 INDEX OF AUTHORITY

SR. NO. CONTENTS AUTHOR

1. LEGISLATION

• The Indian Evidence Act, 1872

• Indian penal code, 1860
• Criminal Procedure Code,1973

2. BOOKS

• Indian Penal Code,1860 RATANLAL AND

DHIRAJRAL
• Code of Criminal Procedure,1973
• Legal and Commercial Dictionary TAPASH GAN
CHOUDHARY

3. LEGAL DATABASE

• https://indiankanoon.org/
• https://www.britannica.com

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 THE LIST OF ABBREVIATIONS

ABBREVIATION ACTUAL TERM

AIR All India Reporter

Art. Article

Cr.L.J Criminal Law Journal

Cr.P.C Criminal Procedure Code

Para. Paragraph

SC Supreme Court

SCC Supreme Court Cases

SCW Supreme Court Weekly

Sec. Section

P.W. Prosecution witness

I.P.C Indian Penal Code

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 TABLE OF CASES
SR CASE LAWS
NO.

1. State of U.P. v. Singhara Singh in AIR 1964 SC 358 (1964 (1) Cri LJ
263 (2)

2. Nika Ram v. State of HP in AIR 1972 SC 2077: 1972 Cri LJ 1317

3. Ganeshlal v. State Of Maharashtra. , reported in (1992) 3 SCC 106

(1992 AIR SCW 1175)

4. In State of U.P. v. H. P. Mittal, reported in (1992) 3 SCC 300

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STATEMENTS OF FACTS

Appellant Phundi, aged about 52 years, has filed this appeal,

challenging his conviction under two heads under Section
302, I.P.C. and sentence of imprisonment for life inflicted for
each of the two offenses, for committing murders of his own
daughters, Kalawati aged 13 years, and Guddi aged 9 years,
while they were asleep in his house on the night of 22nd /
23rd October, 1983, in village Chak Sarwa, PS Gohad, district
Bhind.
Appellant Phundi had caused injuries to himself in a bid to end his
life and was in a serious condition after the incidence.

PROSECUTION CASE

1. The prosecution case rested on the statement of appellant-Phundi,

recorded as dying declaration (Ex. P. 17) by Naib Tahsildar and
Executive Magistrate, Shri Purshottam Gupta (P. W. 9) and
circumstantial evidence.
2. The said dying declaration (Ex. P. 17) was excluded, and rightly, from
consideration by the trial Court.
3. It was alleged that in the wake of the incident, the accused had
caused injuries to himself in a bid to end his life and was in a serious
condition, when his statement was recorded by Shri Purshottam
Gupta (PW 9) in Gohad Hospital, on 23-10-83, at 5.15 pm
4. That statement so far as it released to the cause of his own injuries
would have been admissible as dying declaration. But since the
maker of the said statement chanced to survive, the said statement
is clearly not admissible as dying declaration.

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5. It could be admitted in evidence as a previous statement of the
maker for corroboration under Section 157 of the Evidence Act or
for contradiction under Section 145 of the Evidence Act with respect
to his evidence in Court. But an accused, rarely if ever, examines
himself as a witness in his defense in Court.
6. The accused / appellant, in the present case, also did not examine
himself in his defense. There was, therefore, no occasion for the use
of that statement.
7. A look at that statement would show that a part of it was a plenary
acknowledgment of guilt in which the accused in so many words
admitted to have dealt a number of blows with a spade (Phawda)
on his two daughters and done them to death.
8. It was, therefore, if at all, a 'judicial', as distinguished from 'extra -
judicial confession'. But even as a judicial confession, it was
absolutely inadmissible in evidence.
9. The simple reason for that was that it was not recorded by a
Magistrate empowered to do so.

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CIRCUMSTANTIAL EVIDENCES

1. The inadmissibility of confession left the case as based only on

circumstantial evidence. From post - mortem reports, Ex. P. 1 - A
and P.2 - A proved by Dr. Mittal (PW 1), it appeared that deceased
Guddi had an ante mortem lacerated wound 6 "x 5" x brain matter
deep, on her right side of scalp extending up to face. Below that
injury there was a comminuted compound fracture of right frontial,
parietal and temporal bones with fracture of maxilla of the right
side. The membranes and the brain matter were lacerated. She had
died of injury to scalp, skull and brain leading to come and death.
The injury to her was sufficient in the ordinary course of nature to
cause death.
2. The other daughter Kalawati had 5 ante mortem wounds, namely, a
penetrating wound 1/2 "x 1/4" x 2/3 "on the right side of the face,
another penetrating wound 1/2" x 1/4 "x 1/2 on the right side of the
frontal region of scalp, a lacerated wound 1 "x 1/4" x brain deep on
the right side of the occipital region of scalp and lastly, comminuted
fracture of the lower jaw and right upper jaw with fracture or upper
right central, lateral incisor tooth with laceration of gum and lips.
There was comminuted fracture of the right side frontal, parietal
and occipital bones. The membrane and brain matter were
lacerated. She had died because of injuries to scalp, skull and brain.
Her injuries were also sufficient in ordinary course of nature to
cause death. There is no doubt on this evidence that both the
daughters were murdered.
3. Before adverting to the various circumstances brought out against
the accused, the one thing that needs to be noticed at the very
beginning is that prosecution examined the accused's wife named
Kailashi (PW 3), son Hari Singh (PW4) brother Tularam (P. W. 5)
relative Maharaj Singh (P. W. 6) and a neighbor Karan Singh (P. W.
7). All of them turned hostile and were discredited with their
contrary police statements. They exhibited great reluctance in their
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 evidence to implicate the accused. If they spoke anything against
the accused, those words were virtually wrenched out of their lips.
Their evidence could be safely therefore accepted to the extent they
felt compelled to admit in support of the prosecution story. The
following circumstances were satisfactorily brought against the
accused - appellant.
4. Thirdly, the post - occurrence conduct of the accused was highly
incriminating. Even the accused's wife Kailashi (P. W. 3) felt
compelled to admit that her husband after the incident had jumped
down from the terrace of the house. The explanation given by the
accused in his examination under Section 313, Cr. P.C. was
ridiculous; namely, that he had slipped from the terrace. If he had
really slipped, his wife would not have said that he had jumped from
the terrace. What is more, the accused's real brother living in
adjoining house, namely Tularam (P. W. 5) admitted that accused
was seen trying to smash his head with a brick. Even Maharaj Singh
(P. W. 6) admitted this fact. Thus the accused after jumping from
the terrace tried to smash his head with a brick and was trying to
end his life. Such conduct of the accused showed his dully mind that
he was so much overcome by remorse and repentance for the deed
done by him that he wanted to end his life. If he had not confessed
to his crime by speaking any words at that time, his conduct was
more eloquent and telling.
5. In contrast, evidence also appeared in the case about the ex-culprit
conduct of accused's wife and his son. It came in the Evidence that
the accused's wife had at least raised hue and cry, attracting people
to the house of incident. Accused's son Hari Singh (P. W. 4) had
rushed to inform about the incident to Chowkidar Kashiram (P. W.
12), who of his turn visited the house of the accused and after seeing
the place and situation of the incident went with the accused's
brother; Tularam (P. W. 5) to the police station, where Tularam
lodged a report.

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6. Fourthly, the accused had motive to commit the crime. There was
evidence of Karan Singh (P. W. 7) to the effect that the appellant
often used to say that he did not have money and so how would he
get his daughters married. It appears that this thought had to be a
nightmare with the accused.
7. There was also the evidence of accused's son Hari Singh (P. W. 4) to
the effect that his father had incurred a debt of Rs. 3,000 / - in
performing obsequies of his (accused's own) mother some time
prior to the present incident. It is possible to stand under that a
person may incur expenses in performing obsequies, but the
evidence of Hari Singh (P. W. 4) was that his father (i.e. accused) had
incurred debt for that reason. This showed that financial condition
of the accused was bad. He appeared to be under great financial
stress and the thought that he would have to spend money on the
marriage of his daughters had become an obsession and nightmare
with him, which drove him to commit the crime.
8. Lastly, there was no explanation from the accused with regard to
the killings of his daughters, which had taken place in his own house.
9. The present case was a case of custodial deaths. Where death
occurs while in custody of an accused, the accused is obliged to give
at least a plausible explanation for the cause of death in his
statement under Section 131, Cr. P.C. Failure to explain may be
treated as a circumstance against him.

10. In the present case, despite the fact that daughters had been
killed in his custody, there was no explanation on the part of the ac
used either at the spot or in his statement under Section 313, Cr.
P.C. to show how and under what circumstances his daughters were
killed.
11. When all the above circumstances are considered
cumulatively or are joined together, they form a complete chain so
as not to leave any reasonable doubt to leave any reasonable doubt
about the guilt of the accused appellant. The chain of circumstances
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is not only consistent with the guilt of the accused / appellant but is
also consistent with his innocence. It leads to an irresistible (sic) all
event a prime perpetrator of the crime which resulted in the
murders of his daughters.

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Relied Acts and Judgements
Section 157 in The Indian Evidence Act, 1872
157. Former statements of witness may be proved to corroborate later testimony as
to same fact.—In order to corroborate the testimony of a witness, any former
statement made by such witness relating to the same fact, at or about the time when
the fact took place, or before any authority legally competent to investigate the fact,
may be proved.

Section 145 in The Indian Evidence Act, 1872

145. Cross-examination as to previous statements in writing.—A witness may be
cross-examined as to previous statements made by him in writing or reduced into
writing, and relevant to matters in question, without such writing being shown to
him, or being proved; but, if it is intended to contradict him by the writing, his
attention must, before the writing can be proved, be called to those parts of it which
are to be used for the purpose of contradicting him.

Section 164 in The Code Of Criminal Procedure, 1973

164. Recording of confessions and statements.
(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has
jurisdiction in the case, record any confession or statement made to him in the
course of an investigation under this Chapter or under any other law for the time
being in force, or at any time afterwards before the commencement of the inquiry
or trial: Provided that no confession shall be recorded by a police officer on whom
any power of a Magistrate has been conferred under any law for the time being in
force.
(2) The Magistrate shall, before recording any such confession, explain to the person
making it that he is not bound to make a confession and that, if he does so, it may
be used as evidence against him; and the Magistrate shall not record any such
confession unless, upon questioning the person making it, he has reason to believe
that it is being made voluntarily.

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(3) If at any time before the confession is recorded, the person appearing before the
Magistrate states that he is not willing to make the confession, the Magistrate shall
not authorize the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner provided in section 281 for
recording the examination of an accused person and shall be signed by the person
making the confession; and the Magistrate shall make a memorandum at the foot
of such record to the following effect:-" I have explained to (name) that he is not
bound to make a confession and that, if he does so, any confession he may make
may be used as evidence against him and I believe that this confession was
voluntarily made. It was taken in my presence and hearing, and was read over to the
person making it and admitted by him to be correct, and it contains a full and true
account of the statement made by him.
(Signed) A. B. Magistrate".
(5) Any statement (other than a confession) made under sub- section (1) shall be
recorded in such manner hereinafter provided for the recording of evidence as is, in
the opinion of the Magistrate, best fitted to the circumstances of the case; and the
Magistrate shall have power to administer oath to the person whose statement is
so recorded.
(6) The Magistrate recording a confession or statement under this section shall
forward it to the Magistrate by whom the case is to be inquired into or tried.
Section 131 in The Indian Evidence Act, 1872
131. Production of documents or electronic records which another person, having
possession, could refuse to produce.—No one shall be compelled to produce
documents in his possession or electronic records under his control, which any other
person would be entitled to refuse to produce if they were in his possession, or
control, unless such last-mentioned person consents to their production.
Section 313 in The Code Of Criminal Procedure, 1973
313. Power to examine the accused.
(1) In every inquiry or trial, for the purpose of enabling the accused personally to
explain any circumstances appearing in the evidence against him, the Court-

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(a) May at any stage, without previously warning the accused, put such questions to
him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he
is called on for his defense, question him generally on the case: Provided that in a
summons- case, where the Court has dispensed with the personal attendance of the
accused, it may also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is examined under sub-
section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer
such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such
inquiry or trial, and put in evidence for or against him in any other inquiry into, or
trial for, any other offence which such answers may tend to show he has committed.

1. Reading of Section 164 of The Code of Criminal Procedure, 1973 would show
that only a metropolitan magistrate or a judicial magistrate is empowered to
re-cord a confession under that provision. Shri Purshottam Gupta (P. W. 9),
who recorded it, was an Executive Magistrate, who had also not observed the
safeguards described in Section 164. When a confession is recorded by a
Magistrate who is not empowered, it is absolutely inadmissible. Even oral
evidence about it by the Magistrate is inadmissible. Reference may be made
in this connection to Supreme Court's decisions in State of U.P. v. Singhara
Singh in AIR 1964 SC 358 (1964 (1) Cri LJ 263 (2) and Nika Ram v. State of HP
in AIR 1972 SC 2077: 1972 Cri LJ 1317.

2. In State of U.P. v. H. P. Mittal, reported in (1992) 3 SCC 300, a husband and his
wife slept on the ill - fated night in a bed room in their exclusive use. The wife
was discovered to have been murdered in that room on the following
morning. The husband was also present in the room on the following morning.
The husband gave a false explanation that he was not present at the room an
following morning because he had gone to visit a patient. The Supreme Court
observed that though the husband, who was respondent in that appeal before
the Supreme Court, could not be held guilty solely on his false explanation
that false explanation assumed great significance, for he was bound to give
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 an acceptable and plausible explanation stating the circumstances under
which the deceased had died. The observations of the Supreme Court in
Paragraph 39 of the report are pertinent and may be profitably reproduced: -

Even though we are not finding the respondent guilty solely on his false
explanation, yet that explanation assumes much significance because it is for
the respondent to come forward with an acceptable and plausible
explanation explaining the circumstances under which the deceased had met
with her end, since, in our considered opinion, the respondent was in the
company of his wife on the previous night and was found in the bed room in
the early morning.
3. So also in Ganeshlal v. State Of Maharashtra. , reported in (1992) 3 SCC 106
(1992 AIR SCW 1175) a husband and his family members were present in the
house in which his wife was burnt to death. All were acquitted by the trial
court. The High Court reversed the acquittal of the husband and convicted
him of the Acceptable and plausible explanation explaining the circumstances
under which the deceased had met with her end, since, in our considered
opinion, the respondent was in the company of his wife on the previous night
and was found in the bed room in the early morning. It did not ever interfere
with the acquittal of the family members. In appeal by the husband before
the Supreme Court, the Supreme Court observed that the husband / accused
was bound to give wife. Following observations of the Supreme Court in Para
11 of the report are pertinent: - When the death had occurred in their
custody, the appellant is under an obligation in Section 313, Cr. P.C. statement
at least to give a plausible explanation for the cause for her death. No such
attempt was even made except denying the prosecution case. These facts
completely are inconsistent with the innocence, but consistent with the
hypothesis that the appellant is a prime accused in the commission of gruel
some murder of his wife.

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CONCLUSION

For the foregoing reasons and relying on above mentioned judgements the Hon’ble
court found no force in this appeal. The convictions and sentences of the appellant
are affirmed and the appeal is dismissed.

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