JUDGMENT Imtiyaz Murtaza, J.
1. This criminal (jail) appeal has been filed against the judgment and order dated 20.5.2002 passed by the learned Sessions Judge, Shahjahanpur, in S.T. No. 936 of 2000 whereby the appellant was convicted under Section 302 I.P.C. and sentenced to undergo R.I. for life and a fine of Rs. 5000/- and in default of payment of fine further R.I. for one year.
2. Brief facts of the case as mentioned in the first information report lodged by Ram Ratan at P.S. Kotwali Sadar, Shahjahanpur are that on 16.11.1999 he was working woodcraft work in the house of Waseem in Mohalla Bijlipura, P.S. Kotwali. At about 2.00 P.M. when he came to his house to take meal, he saw that accused Sunil Kumar was coming out of his house. His son Sheo Kumar was weeping. He enquired and he told him that Sunil Kumar has committed murder of his mother by strangulation. He saw that his wife Kanti was lying dead. It is further alleged that marriage of Sunil Kumar had taken place 1/2 year before and his wife stayed in the house for 3 - 4 months and then went back to her parental house and she was not coming because she had suspicion that Sunil had illicit relations with the deceased Kunti, who was wife of the complainant. There use to be quarrel between Sunil and his wife Kunti. On account of this he has committed murder of his wife. The report was lodged at about 3.30 P.M. at P.S. Kotwali Sadar, Shahjahanpur.
3. After the registration of the case investigating officer Sri Ashok Kumar Sharma, I.O., commenced investigation.
4. Post-mortem on the dead body of the deceased was conducted by Dr. Y.K. Singh who had noted following ante-mortem injuries.
1. A ligature mark placed horizontally 2.8 cm x 1.5 cm circling whole of the neck below thyroid. The base of groove is soft & reddish under subcutaneous tissue ecchymosed.
2. An abrasion of 2.00 cm x 1.0 cm on the posterior aspect of left elbow.
3. An abrasion of 1.5 cm x 1.0 cm on the posterior aspect of right elbow.
4. An abrasion of 2.0 cm x 1.5 cm on the posterior aspect of left shoulder.
5. A contusion of 8.0 cm x 6.0 cm on the posterior aspect of right shoulder.
6. A contusion of 16.0 cm x 14.0 cm on the front of upper part of chest just below sternal notch.
5. In his opinion cause of death was asphyxia as a result of anti mortem strangulation:
6. After the submission of the charge sheet case was committed to the court of Session and learned Sessions Judge had framed charge under Section 302 I.P.C.
7. In support of its case, the prosecution had examined four witnesses namely P.W. 1 Ram Ratan, informant, P.W. 2 Shiv Kumar son of the informant, P.W. 3 Con. Indrapal Singh, who proved that the investigation conducted by A.K. Sharma and P.W. 4 Dr. Y.K. Singh, who had conducted the post-mortem examination on the dead body of the deceased.
8. Learned Sessions Judge after considering the evidence on record convicted the appellant as aforesaid. Hence this appeal.
9. We have heard Sri D.P. Singh, amicus curiae, and learned A.G.A. for the State.
10. It is contended by learned Counsel for the appellant that the prosecution has failed to prove its case beyond reasonable doubt. The prosecution did not examine any independent witness and the testimonies of P.W. 1 and P.W. 2 are not reliable. On the contrary A.G.A. argued that the prosecution proved the case beyond reasonable doubt and the testimony of the witnesses is corroborated by the medical evidence, the time and place of occurrence is not challenged and the Sessions Judge had rightly relied upon the confession of the appellant made during his statement, recorded under Section 313 Cr.P.C.
11. In order to appreciate the submission of the counsels for the parties we have to examine the testimonies of the witnesses carefully.
12.P.W. 1 Ram Ratan deposed that appellant Sunil Kumar lived in his Mohalla and he was his nephew and the deceased Kunti was his wife. About 1 1/2 years back he was working in the house of Waseem in Mohalla Bijlipura. At about 2.00 P.M. he came to his house to take meal and saw that Sunil Kumar was coming out of his house. Inside the house his wife was lying dead. His son Shiv Kumar and younger daughter Jeetu were present and his son was weeping. He enquired from Shiv Kumar who told him that Sunil Kumar had killed his mother by pressing her neck and covered her with a quilt. He further deposed that Sunil Kumar was married 5 - 6 months back and his wife stayed with Sunil Kumar about 4 months and returned to her parental house and did not come again. The wife of Sunil Kumar had suspicion that he had illicit relation with his wife. Their used to be quarrel between Sunil Kumar and his wife. Sunil Kumar used to demand money from her and on account of this Sunil had committed the murder of his wife. The report was prepared by Ram Prakash Dwivedi on his dictation which is Ext. Ka. 1.
13. P.W. 2 Shiv Kumar is a child witness. He deposed that Sunil was his cousin and used to come to his house. About 3 years back at about 1.00 O'clock when his mother was cleaning utensils, accused Sunil came and put rope around her neck and took her inside the room and covered her neck with a pillow and she was covered by a quilt. He also told him that he should not disclose to any one. When his father returned about 2.00 P.M. he had narrated the occurrence.
14. P.W. 3 is Constable Indra Pal Singh who had proved charge-sheet and site plan prepared by Inspector A.K. Sharma.
15. P.W. 4 Dr. Y.K. Singh had conducted the post-mortem examination on the dead body of the deceased.
16. The witnesses of fact examined in this case are P.W. 1 Ram Ratan, informant and husband of the deceased, and P.W. 2 Shiv Kumar, son of the informant. Ram Ratan, P.W. 1, deposed that Smt. Kanti was his wife and on the date of occurrence he returned to his house at about 2.00 P.M. At that time Sunil was coming out from his house. Inside the house, he saw that his wife was lying dead and his son was weeping. His son Shiv Kumar P.W. 2 had told him that Sunil has killed his mother by strangulation and covered her by a quilt. P.W. 1 Ram Ratan also deposed about the motive of the crime and stated that Sunil was married about 5-6 months before the occurrence but his wife had left him because he had illicit relation with Smt. Kanti, the deceased. Sunil Kumar was also demanding money from Smt. Kanti and on account of this there used to some quarrel. P.W. 2 Shiv Kumar deposed that Sunil Kumar came to his house at about 1.00 P.M. At that time Smt. Kanti, his mother, was cleaning utensils. Sunil, the appellant, put a rope in the neck of his mother and carried her to inside the house and pressed her mouth by a pillow and thereafter covered by a quilt. During the cross-examination he had admitted that at the time of occurrence he was outside the house playing with the children and he actually did not see the occurrence.
17. We have carefully examined the testimonies of both the witnesses. The presence of both the witnesses cannot be doubted at the alleged time. The testimony of P.W. 2 Shiv Kumar creates some doubt whether he had actually seen the occurrence and manner of assault or not but he has proved that Sunil had come out his house at around 1.00 P.M. He was also seen coming out of the house of P.W. 1 Ram Ratan. The most clinching part of evidence considered by the Sessions Judge was the confessional statement given by the appellant in his statement under Section 313 Cr.P.C. It is contended on behalf of learned Counsel for the appellant that Sessions Judge committed illegality in convicting the appellant by considering the confessional statement of the appellant under Section 313 Cr.P.C.
18. We have gone through the confessional statement of the appellant which is contained in his statement under Section 313 Cr.P.C. in which he has categorically admitted in reply to question No. 3 that he had committed the murder of the deceased on 16.11.1999 at about 2.00 P.M. in Mohalla Hayatpura. He had also admitted in reply to question No. 7 that wife of Ram Ratan was his beloved. He had also admitted that he was rightly prosecuted for the offence. The Apex Court had also relied upon the confessional statement of the accused recorded under Section 313 Cr.P.C. in the case of State of Maharashtra v. Sukhdev Singh and it was observed as under That brings us to the question whether such a statement recorded under Section 313 of the Code can constitute the sole basis for conviction. Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why Sub-section (3) says that the accused shall not render himself liable to punishment if he gives false answers. Then comes Sub-section (4) which reads:
313. (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.
Thus the answers given by the accused in response to his examination under Section 313 can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, Sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. See State of Maharashtra v. R.B. Chowdhari 7. This Court in the case of Hate Singh Bhagat Singh v. State of M.B. 8 held that an answer given by an accused under Section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab 9 this Court held that if the accused confesses to the commission of the offence with which he is charged the Court may, relying upon that confession, proceed to convict him. To state the exact language in which the three-Judge bench answered the question it would be advantageous to reproduce the relevant observations at pages 684-685:
"Under Section 342 of the Code of Criminal Procedure by the first sub-section, insofar as it is material, the Court may . at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation - if any, of the incident which forms the subject-matter of the charge and his defence. By Sub-section (3), the answers given by the accused may 'be taken into consideration' at the enquiry or the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him the court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety.
(emphasis supplied) Sub-section (1) of Section 313 corresponds to Sub-section (1) of Section 342 of the old Code except that it now stands bifurcated in two parts with the proviso added thereto clarifying that in summons cases where the presence of the accused is dispensed with his examination under Clause (b) may also be dispensed with. Sub-section (2) of Section 313 reproduces the old Sub-section (4) and the present Sub-section (3) corresponds to the old Sub-section (2) except for the change necessitated on account of the abolition of the jury system. The present Sub-section (4) with which we are concerned is a verbatim reproduction of the old Sub-section (3). Therefore, the aforestated observations apply with equal force.
19. In our opinion, the prosecution has successfully proved its case beyond any reasonable doubt. The Sessions Judge has rightly recorded the findings of conviction and we also concur with the same.
20. For the reasons stated above the appeal is dismissed. The conviction and sentence of the appellant awarded by the trial court is affirmed. The appellant is in jail. He shall be kept there to serve out the sentence awarded by the trial court and affirmed by us.
21. Office is directed to send a copy of this order within two weeks to the C.J.M. Shahjahanpur.