minal Appeal No 118 of 1964
Appeal from the judgment and order dated March 2 1964 of the Allahabad High Court in Criminal Appeal No 2531 of 1963 referred No 160 of 1963
K L Sharma and Harbans Singh for the appellant
O P Rana for the respondent
LS5SCI 19a 266 The Judgment Of SARKAR CJ and MUDHOLKAR J was delivered by MUDHOLKAR J BACHAWAT J delivered a separate Opinion
Mudholkar J
The Additional Sessions Judge Kumaon after convicting the appellant Sita Ram of an offence under section 302 Indian Penal Code for the murder of his wife Sindura Rani has sentenced him to death
The High Court of Allahabad affirmed his conviction but reduced the sentence to one of imprisonment for life
The fact that Sindura Rani met with a homicidal death is not in dispute
What is however contended on behalf of the appellant is that there is no evidence on the basis of which his conviction could be based
Admittedly there are no eye witnesses to the occurrence
The prosecution case against him rests on the following material 1 motive 2 opportunity 3 subsequent conduct 4 false explanation and 5 confessional statements
There is ample evidence on record to show that the relations between the appellant and his wife were very much strained that the two were living apart and that this was because the appellant suspected that his wife was a woman of loose character
This evidence consists of the testimony of some near relatives and also of several letters written by the appellant to his wife Sindura Rani to his mother in law Inder Kaur PW 2 and to his brother in law Tilak Raj PW 1
The appellant had denied that the letters were in his hand writing but it has been found by both the courts below that they were in fact written by him
The finding of each of the two courts below that the relations between the appellant and his wife were strained because the appellant not merely suspected the fidelity of his wife but also charged her with unchastised being one of fact cannot be lightly permitted to be questioned in an appeal by special leave
No ground has been made out by learned counsel which would justify our looking into the evidence for ourselves
Similarly on the question of opportunity Sindura Rani who had gone to stay with her people had been asked by the appellant to return home on the pretext that one of their children was ill and accordingly she arrived at Kashipur where the appellant lived only 5 or 6 days prior to the incident
Since her return she and the appellant were the only two adult persons living in the house of the appellant
The only other person living with them was their daughter about two years old
When the Sub Inspector of Police arrived on the morning of September 15 1962 after receiving a report that the appellant s house was locked from outside and the cry of a child from inside could be heard found the outer door of the house locked
After breaking it open he found a lantern burning by the side of the dead body of Sindura Rani
From these facts the courts below were justified in coming to the conclusion that the appellant had an 267 opportunity to commit the murder of his wife Sindura Rani
The appellant s defence that he had gone to Punjab along with one Pritam Singh on September 13 1962 and could return from there on September 19 has not been accepted by the two courts below in the absence of any material to substantiate it
In addition to these there is the fact that the appellant could not be found till September 19 on which date he surrendered him
self before the court
It would be reasonable to infer from this that he was absconding till this date
The explanation which the appellant gave concerning his absence has been rightly rejected as false
In the circumstances there was adequate material before the courts below upon which his conviction could be based
In addition to this circumstantial evidence the prosecution placed reliance upon exhibit Ka 9
This is a letter dated September 14 1962 addressed to the Sub Inspector  and bears the signature of the appellant in Urdu
It reads thus I have myself committed the murder of my wife Smt
Sindura Rani
Nobody else perpetrated this crime
I would appear myself after 20 or 25 days and then will state everything
One day the law will extend its hands and will get me arrested
I would surrender myself
in UrduSita Ram Naroola 14th September 1962
 On the back of this letter is written the following It is the first and the last offence of my life
I have not done any illegal act nor I had the courage to do that but this woman compelled me to do so and I bad to break the law
This letter was found on a table near the dead body of Sindura Rani
It was noticed by the Sub Inspector Jagbir Singh PW 16 and seized in the presence of three persons who attested the seize memo and were later examined as witnesses in the case
The prosecution has established satisfactorily that the letter is in the had writing of the appellant and that the signature it bears is also that of the appellant
Learned counsel for the appellant has challenged the admissibility of this letter on the ground that it amounts to a confession to a police officer and that therefore section 25 of the Evidence Act renders it inadmissible in evidence
We do not think that the objection is well founded
No doubt the letter contains a confession and is also addressed to a police officer The at cannot make it a confession made to a police officer which is within the bay created by section 25 of the Evidence Act The police officer was not nearby when the letter was written or knew that it was being written
In such circumstance quite obviously the letter would not 268 have been a confession to the police officer if the words SubInspector had not been written
Nor do we think it can become one in similar circumstances only because the words Sub Inspector had been written there
It would still have not been a confession made to a police officer for the simple reason that it was not so made from any point of view
We agree with the High Court therefore that the confession contained in exhibit Ka 9 is admissible and that it is an additional circumstance which can be pressed in aid in support of the charge against the appellant
However as already stated even without this confessional statement there was sufficient material before the courts below on the basis of which the appellant s conviction could be sustained
The appeal is without any merit and is accordingly dismissed
Bachawat J Section 25 of the reads No confession made to a police officer shall be proved as against a person accused of any offence
 In my opinion the letter exhibit Ka 9 is a confession made to a police officer and is not admissible in evidence against the appellant
The letter contained a confession and was addressed to the Sub Inspector
The appellant wrote the letter with the intention that it should be received by the Sub Inspector kept it on a table near the dead body of his wife and left the house after locking it
The lock wag broken open and the letter was recovered by the Sub Inspector Kasipur to whom the letter was written
The Sub Inspector received the letter as effectively as if it was sent to him by post or by a peon
It is said that the appellant made no confession to the sub Inspector inasmuch as the officer was not present near the appellant when he wrote the letter
I do not see why a confession cannot be made to a police officer unless he is present in the immediate vicinity of the accused
A confession can be made to a police officer by an oral message to him over the telephone or the radio as also by a written message Communicated to him through post messenger or otherwise
The presence or absence of the police officer near the accused is not decisive on the question whether the confession is hit by section 25
A confession to a stranger though made in the presence of a police officer is not hit by section 25
On the other handful confession to a police officer is within the ban of section 25 though it was not made in his presence
A confessional letter written to a police officer and sent to him by post messenger or otherwise is not outside the ban of section 25
because the police officer ignorant of the letter at the moment when it was being written
269 In RV Hurribole1 GarthCJ Said that s25 is an enact Ment to which the Court should give the fullest effect
He added I think it better in construing a section such as the 25th which was intended as a wholesome protection to the accused to construe it in its widest and most popular signification In its widest and most popular signification the phrase  confession Made to a police officer includes a confession made to a police officer in a letter written to him and subsequently received by him
We should not cut down the wholesome protection of section 25 by refined arguments
I am therefore of the opinion that the Courts below were in error in admitting exhibit Ka 9 against the appellant
I however agree that apart from exhibit Ka 9 there are sufficient materials on the record establishing the guilt of the appellant
The appeal must therefore fail
The appeal is dismissed
Appeal dismissed
1 1876 ILR I cal
207 215 216


Summary:
The appellant was convicted for under under section 302 Indian Penal Code
The prosecution relied on amongst other materials a letter
The letter contained a confession and was addressed to the Sub Inspector
The appellant wrote the letter with the intention that it should be received by the Sub Inspector kept it near the dead body and left the house after locking it
The lock was broken open and the letter was recovered by the Sub Inspector
In appeal to this Court the admissibility of this letter was challenged
HELD Per Curium There was sufficient material on the record apart from this letter establishing the guilt of the appellant
Per Sarkar CJ and Mudholkar J The letter was admissible in evidence
No doubt the letter contained a confession and was addressed to a police officer
That could not make it a confession made to the Police officer which is within the bar created by section 25 of the Evidence Act
The Police Officer was not nearby when the letter was written or knew that it was being written
In such circumstances quite obviously the letter would not have been a confession to the police officer if the words Sub Inspector had not been written
Nor it can become one in similar circumstances only because the words Sub Inspector has been written there
It would still have not been a confession made to a police officer for the simple reason that it was not so made from any point of view
267 H 268 B Per Bachawat J The letter was inadmissible in evidence and was a confession made to a police officer
268 D E A confession to a police officer was within the bar of section 25 though it was not made in his presence
A confessional letter written to a Police officer and sent to him by post messenger or otherwise is not outside the ban of section 25 because the police officer was ignorant of the letter at the moment when it was being written
268 G
R V Hurribole Cal 207 approved