JUDGMENT
I.A. Ansari, J.
1. By the impugned judgment and order, dated 6-3-2002, passed, in Sessions Case No. 84(NL)/1997, the learned Sessions Judge, Lukhimpur, has convicted the accused-appellant, Gobin Saikia, under Section 302, IPC and sentenced him to suffer imprisonment for life and pay fine of Rs. l.000/- and, in default of payment of fine, undergo rigorous imprisonment for a further period of six months.
2. The case against the accused appellant, as unfolded at the trial, may. in brief, be stated as stated as follows:
Deceased Bibha Saikia was the wife of the accused-appellant and both of them lived together in their house at village Rajkhowa gaon. On 15th of August, 1992, at around midnight, the accused-appellant’s brother, Lakhinath, came to the house of his uncle. Umakanta Koch, and told him that the accused-appellant and his wife, Bibha, had been quarrelling. As it was late at night and raining too, Umakanta asked Lakhinath to amicably settle the issues and accordingly Lakhinath left; but before the day broke fully, Lakhinath, once again, accompanied by Keshab Saikia, came to the house of Umakanta and informed him that Bibha had died. Umakanta accordingly lodged a written FIR, on 16-9-97, at about 10.30 a.m. at Panigaon police outpost. Based on the FIR aforementioned, police registered a case, visited the place of occurrence and held inquest over the said dead body. On completion of investigation, the police laid charge-sheet against the accused-appellant under Section 302, IPC.
3. To the charge framed under Section 302, IPC, the accused-appellant pleaded not guilty. In all. prosecution examined as many as eleven witnesses including the investigation officer. The accused-appellant was then, examined under Section 313, Cr.P.C. and in his examination, the accused-appellant denied that he had committed the offence as alleged to have been committed by him, the case of defence being that the said deceased suffered from insanity, she used to inflict injuries on her own person and that on the night of the occurrence, she had committed suicide by throttling herself to death. The defence also adduced evidence by examining two witnesses including a minor son of the said deceased. On conclusion of the trial, the learned trial Court, on finding the accused-appellant guilty of the charge framed against him, convicted him accordingly and passed sentence against him as mentioned hereinabove. Aggrieved by his conviction and the sentence passed against him, the accused-appellant has preferred the present appeal.
4. We have heard Mr. J. M. Choudhury, learned senior counsel, appearing on behalf of the accused-appellant, and Mr. P. Bora, learned Public Prosecutor, Assam.
5. We, first refer to the evidence of Dr. Utpal Kumar Das (PW-5), who had conducted post-mortem examination on the said dead body. This witness’s evidence is that on 16-8-97, at about 2.30 p.m. he conducted post-mortern examination on he said dead body and found as follows ;
The dead body is stout; rigor mortis present; a stream of saliva with fine forthy discharge seen trickling from the right angle of the mouth and running behind across the cheek.
1. Bruise No. 1.3 x 2 in size on the left cheek.
2. Bruise 1 x 1 in size on the right ,of neck lateral to the larynx.
3. Bruise 2 x 3 in size on the left side of the neck lateral to the larynx.
4. Multiple bruises and abrasions on the back covering whole of the right scapular region.
5. Multiple bruises and abrasions on the back covering whole scapular region.
6. Multiple bruises and abrasions in front of lateral and behind the upper half of the left arm.
7. Multiple bruises and abrasions in front of lateral and behind the upper half of the left right arm.
On dissection of the neck, bruising of superficial form on muscles are seen. There is fracture of the larynx and thyroid cartilages. The hyoid-bone is fractured at the Junction of the right horn and the body of the bone.
On dissection of the abdomen, uterus was found enlarged. After opening the uterus a dead foetus, which is about 20 weeks pregnancy type and the foetus found undisturbed
The mouth, pharynx and oescophagus found congested. Stomach found containing undigested food particles.
Small intestine contains semi-digested food ar tides and the large intestine is loaded with fickle matters (stool etc.).
6. PW- 5 has opined that the death was caused due to asphyxia as a result of throttling and the same was ante mortem in nature. In his cross-examination PW-5 has asserted that the bruises found on the said dead body, particularly, on the neck of the said deceased could not have been self-inflicted. This apart, we notice that the clear evidence of PW-5 is that on dissection of the neck, it was discovered that the bruises found on both sides of he neck were superficial in nature arid that there was fracture of laryrx and thyroid cartilages. It is also the clear finding of PW-5 that the hyoid bone was fractured at the Junction of the right horn.
7. What is of immense importance to note, while considering the evidence of PW-5, is that the defence did not dispute the correctness of the findings of PW-5 nor did defence dispute the opinion given by him, while he was under cross-examination, to the effect that the cause of death was asphyxia as a result of throttling.
8. Bearing in mind the above aspects of the medical evidence on record, we now, turn to the evidence of the informant, namely, Umakanta Koch (PW-1). This witness has deposed that at the late hours of the night of 15th August, 1997, when it was heavily raining, Lakhinath Saikla (PW-2) came to his house and informed him that the accused and his wife had been quarreling, whereupon he (PW-1) asked PW-2 to settle the issue and live peacefully. This witness has also deposed that before the day fully broke, PW-2 and Keshab Saikia came to his house and informed him that Bibha had died, whereupon PW-1, accompanied by PW-2 and Keshab Saikia, came to the house of the accused and was reported by the accused that he had Informed his wife of her father’s Illness and that Bibha died by falling here and there. PW-1, thereafter, lodged information with the police. This witness was declared hostile by the prosecution and was cross-examined. Prosecution has proved that the evidence given by PW1 is contrary to what he had stated before the police Inasmuch as he had claimed before the police that accused had inflicted grievous injuries on the person of his wife by beating her and that she had fallen unconscious and died, In his cross-examination by the defence, PW1 claimed that he had told the police that the victim was reported to have fallen here and there. In the face of the clear findings of PW5, which we have mentioned above, “there can be no escape from the conclusion, unless the evidence on record convincingly indicated otherwise, that the statement said to have been made by the accused to PW1, in presence of PW2 and Keshab Saikia, that his wife had died by falling here and there is far from the truth, for, the findings of PW5 reveal multiple bruises on the dead body, which a/e Indicative of the fact that by deceased had been severely beaten by blunt object.
9. What, however, emerges from the evidence of PWI is that the dead body of the said deceased was found at her bed at the house of the accused, where, admittedly, the accused used to live with his wife.
10. Moreover, we notice that according to the evidence of PW 2, when he returned home at about 2/2.30 a.m., he heard the wife of” the accused raising hue and cry inside the house, but he did not come to the house and instead went to the house of PW 1, who was Gaonburha, and informed him that wife of the accused was raising commotion and asked him to go there, but PW I did not come out. This witness too was declared hostile by the prosecution and put to cross-examination. What has, however, surfaced unscathed from the evidence of PW2 is that the said deceased used to live with her husband, i.e., the accused and, it was at her bed that her dead body was found, PW2 has, however, asserted that the wife of the accused used to suffer from insanity and she used to, too often, inflict injuries on her own person.
11. Coupled with the above, we also notice that as far as PW3, PW4 and PW6 are concerned, their evidence too indicates that they found the dead body of the wife of the accused lying at her’ bed, when they came to the house of the accused on being Informed about her death. As far as PW7, PW8, PW9 and PW10 are concerned, they have deposed to the effect that they had not visited the house of the accused and they have expressed their ignorance about the occurrence. However, PW’10 is a witness to the inquest and his evidence is also to the effect that the said dead body was found lying at her bed.
12. We may point out that PW3, PW4, PW6, PW7, PW8 and PW9 were all declared hostile by the prosecution and, accordingly, they were put to cross-examination. What has, however, surfaced unscathed from the evidence of PWl to PW9 is that the accused and his wife used to live in the same house and the dead body of the wife of the accused was found lying on her bed and before the dead body was so found, the wife of the accused was heard raising hue and cry by PW2, who happens to be brother and neighbour of the accused.
13. The above discussion of the evidence on record brings us to the evidence of Investigating Officer (PW11). What is to be noted in the evidence of PW11 is that on receiving the FIR from PW1, he came to the house of the accused and found, in fact, the dead body of the wife of the accused lying on her bed under a mosquito net with her back resting on the bed and the neck of the deceased bore black marks resembling strangulation. It is also in the evidence of PW 11 that the back of the dead body bore Injury marks, which could have been caused by lathi and the neck bore finger prints. The investigating officer has proved Ext-3 as the inquest report. This inquest report, we find, mentions as follows:
The dead body is lying on the bed with mosquito net and facing towards sky and direction north to south side.
Now I asked the staff to open the mosquito net and covered by blanket. I opened the blanket from deceased and found wearing one blouse and open chest and wearing one brown colour rnekhela and found half necked dead body. The legs are straight and hands also found straight and half close. The eyes found closed, mouth is disconnected and nose found clear. The left side hand of and right side hands are found. On my checking the net is found black mark and suspected to be pressing and deceased woman is suspected to be pregnancy on her. The room is found dark so I asked my party to bring out from the room for outside.
Now I checked the dead body from head to foot and found in the black mark on neck. I over turned the dead body and checked and found there are multiple injuries on the back side and suspected to be assaulted with lathi on the back side of the body. The deceased woman is bearing medium long and black hair. Again I overturned the dead body and checked properly and found injury on the neck and back side of the deceased woman. The deceased woman wearing only one mekhela and one blouse which are disorder, During overturn and checking to the dead body found injury as mentioned above. I checked the anus and vagina and found clear.
14. We have closely scrutinized the cross-examination of the Investigating Officer (PW11) by the defence and what becomes glaringly noticeable to our eyes is that this witness’s findings, as deposed to by him arid also as mentioned in his inquest report, remained wholly undisputed by the defence. The evidence of the Investigating Officer, thus, lends support to the medical evidence on record given by PW 5 and makes it more than abundantly clear that Bibha Saikia was mercilessly assaulted, beaten and, then, throttled to death and that the bruises found around her neck were merely superficial in nature and that it was as a result of fracture of the bones of the neck, caused by throttling, and not strangulation, that the said deceased met with her death. This inference gets strengthened from the fact that no ligature mark was found around her neck indicating that the deceased had not strangulated herself to death nor was her death suicidal.
15. Bearing in mind the above glaringly noticeable facts, when we turn to the statement of the accused-appellant recorded under Section 313 Cr. P.C., we notice that the accused has admitted, in his examination aforementioned, that his wife’s dead body was found at their bed. His version of the occurrence is, however, thus : “I had not strangulated her. She had been a mental patient. Since our marriage, she had occasionally left her home in a fit of insanity. In her insanity she used to beat herself and hit her head against the wall. Sometimes she used to become naked, undressing herself and sometimes she had beaten her children and had created disturbances at home. On the night of occurrence we had gone to bed after food. Suddenly she had gone mad as if she would not care anybody on earth. She had started hitting against the wall. I had been sleeping with my children. About that time I woke up, having heard bubbling sound of some one’s throat. For her mental ailments I had got her treated at Dibrugarh Medical College Hospital. Getting up from bed I found her hanging by a chadar. I brought her down immediately. But she fell down from my hands. I had tried to undo the knot of her neck. Undoing the knot somehow, I threw the chaddar. When I tried to lift her up on to the bed, she pressed her neck tight with her hands. I tried to stop her but could not. Later lifting her up, I laid her on the bed. I cried out to my elder brothers. My son woke up and gave her water. After that she died. I sent the gaonburrah for the police. The villagers got frightened as she had tried to commit suicide by hanging.
16. While considering the above statement of the accused-appellant recorded under Section 313 Cr. P.C., what is important to bear in mind is that though a statement, recorded under Section 313 Cr. P.C., is not made on oath and is not, strictly speaking, evidence, – yet the statement, so made, can, indeed, be taken into consideration at the trial against the accused for the purpose of arriving at the guilt or otherwise of the accused. In no uncertain words made the Apex Court clear this position of law, when it observed and held in State of Maharashtra v. Sukhdev Singh , as follows:
51. 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 answer. 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 . This Court in the case of Hate Singh Bhagat Singh v. State of M.B. 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 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 page 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. 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 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.
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 case 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.
17. In the light of the law laid down in State of Maharashtra v. Sukhdev Singh 1992 Cri LJ 3454 (supra), when we consider the above statement of the accused-appellant, what we notice is that the accused has explained the death of his wife by claiming that on the night of the occurrence, when he was asleep, he, suddenly, on hearing bubbling sound of someone’s throat, woke up and found his wife, who used to occasionally suffer from insanity, hitting herself against the wall and, on getting up from the bed, he found his wife hanging by a bed-sheet, he tried to bring down his wife and, in the process his wife fell down from his hands. The accused-appellant also claims, in his said statement, that he, somehow, undid the knot and threw the chadar away and when he tried to lift his wife on to the bed, she pressed her neck with her hands and though he tried to stop her, he did not succeed and that, later on, he lifted her up and laid her on the bed. The accused-appellant has further claimed that after laying his wife on the bed, he cried out to his elder brother for help, his son woke up and gave water to his mother and, thereafter, she died. It appears from the statement of the accused-appellant that his wife died after having taken water. If his wife had committed suicide by throttling her to death, the question of her having taken water before breathing last could not have arisen at all. The version of the occurrence given by the accused is, therefore, nothing, but a completely concocted version. What, however, remains admitted by the accused-appellant is that on the night of the occurrence, he alone was present with his wife, when his wife suffered the injuries, which led to her death.
18. In the backdrop of the above noticeable features of the present case, when we revert to the findings of PW5, we notice that the bruises, which PW5 found on the entire body of the said deceased, could not have been self-inflicted. This apart, not even a hint was thrown and/or suggestion was offered to PW 5, when he was giving his evidence, that the wife of the accused had sustained self-inflicted injuries and that she could have killed herself by pressing her neck with her own hands. Moreover, the very version of the occurrence given by the accused-appellant is wholly improbable and we have no option, but to treat the same as wholly false.
19. In this case, we notice that the defence has examined two witnesses, DW2 being a minor son of the accused, who was at the time of giving evidence, on 20-11-1999, aged about nine years and a student of class III. Since the occurrence took place on 15-8-1997, it is clear that at the time of the occurrence, DW2 was hardly about seven years old. This witness’s evidence is that on the night of the occurrence, he woke up at the alarm raised by his father and found his mother hanging by a piece of cloth from a bamboo post, whereupon his father cut the chadar and his mother fell down. Thereafter, his father rubbed oil on the legs of his mother. It is in the evidence of DW2 that on being asked by his father, he sprinkled water on-his mother’s eyes and his father called the other villagers and all of them came and found his mother lying dead.
20. Apart from the fact that the version of the occurrence given by the accused-appellant in his statement, recorded under Section 313 Cr. P.C. to the effect that he had untied the knot of the bed sheet, which his wife had placed around her neck, and when he was lifting her up to the bed, she pressed her neck by her hands and killed herself is completely improbable, the evidence of DW2 belies the version of the occurrence so given by the accused-appellant, for, according to DW2, his mother had hanged herself to death. Moreover, the version of the occurrence given by DW2 is not supported at all by the evidence on record, for, the inquest held at the said dead body and also the findings of the post-mortem report rule out the possibility that the wife of the accused had hanged herself to death.
21. In the light of the evidence on record, when we turn to the evidence of DW1, we find that by bringing DW 1, the defence has tried to contradict the evidence of PW5, though when PW5 was under cross-examination, his evidence remained, as we have already indicated above, wholly unshaken and unimpeached in material particulars. What we also notice is that DW1 has clearly stated that throttling is asphyxia due to compression of neck by human hands and when it is by other means, it is called strangulation. We do not notice anything in the evidence of DW1, which could indicate that the said deceased died due to hanging.
22. In view of the fact that the dead body of the said deceased was found lying on the bed in the house of the accused, where she used to live with the accused and that there is nothing in the evidence on record to show that the said deceased met with her death by hanging herself from her neck, the theory of suicide cannot be relied upon, (See Ram Kumar Madhusudan Pathak v. State of Gujarat reported in 1998 Cri LJ 4048).
23. What crystallizes from the discussion of the evidence on record is that on the night of the occurrence, the accused and the deceased were present at their house with their two children. None other than these four persons was present at the house. On the night of the occurrence, hue and cry raised by the deceased was heard by PW2. The dead body of the said deceased was found lying at her bed. There is absolutely nothing in the evidence on record to indicate that the multiple bruises on the body of the deceased were self-inflicted; rather, these bruises were indicative of severe beating and the fracture of the hyoid bones with superficial bruises on the neck cements the possibility of strangulation. In such circumstances, there can be really no escape from the conclusion that it was the accused, who had killed the said deceased by throttling her to death. This apart, the accused-appellant has offered contradictory versions of the occurrence and that none of the descriptions of the occurrence, so given by the accused-appellant, fits into the nature of the injuries, which were found on the said dead body and other incriminating circumstances, which transpire from the evidence” on record. In such a situation, there can be no escape from the conclusion that it is the accused-appellant, who had put to death his wife.
24. We, therefore, hold that prosecution has proved beyond all reasonable doubt that the said deceased was throttled to death by the accused-appellant.
25. In the result and for the foregoing reasons, we find no merit in this appeal and the same shall, accordingly, stand dismissed.
26. Send back the LCRs.