# Mahtab v. State

- **Citation:** (2015) 1 ILRA 266
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-16
- **Case number:** Criminal Appeal No. 2895 of 1986
- **Bench:** Amreshwar Pratap Sahi, Om Prakash-Vii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahtab-v-state-43298
- **Pages:** 14

## Headnote

imprisonment under section 302 IPCchallenged on ground-right to defend to
accused not properly given-opportunity
to explain real cause of death properly
given
under
section
313
Cr.P.C.-
deceased being wife of appellant who
was found present-no omission on part
of Trail Court found-can not be said to be
prejudiced the right of accused to defend
himself-Trail Court rightly held that the
appellant committed murder of his wifepresumptions not disputed-by accusedappeal dismissed.
Held: Para-40
On close analysis of the evidence and the
questions framed by the trial Court in the
statement under section 313 Cr.P.C., it
clearly
indicates
that
all
the
incriminating inculpatory evidence have
been placed before the accused and
opportunity to explain the real cause of
death has also been given to the accused
which has not been explained by the
accused truthfully. There is no omission
on part of the trial Court. Therefore, in
the facts and circumstances of the case,
it cannot be said that right of the
accused to defend himself for the reason
mentioned above has been prejudiced.
Trial Court has followed correct legal
procedure. Sufficient opportunity has
been offered through the questions put
to accused to explain the real cause of
murder as the deceased is done to death
in his house. Ligature mark clearly goes
to show that deceased died due to
strangulation. Since the dead body of the
deceased was found in the house of the
deceased and deceased is the wife of
accused, who was present in the house,
medical evidence clearly establishes that
deceased has been murdered, therefore,
all
the
circumstances
laid
by
the
prosecution before the Court for raising
presumption under section 114 of the
Indian Evidence Act taking recourse of
the provisions of section 106 of the
Indian Evidence Act have arisen. Trial
Court has rightly held that it was the
accused who has committed the murder
of his wife and this presumption has not
been
rebutted
by
the
accused
by
adducing any evidence. Thus, point no.4
& 6 are answered as above.
Case Law discussed:
(2015) 1 Supreme Court Cases 496; 1969 AIR

## Text

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266
 INDIAN LAW REPORTS ALLAHABAD SERIES
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.02.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE OM PRAKASH-VII, J.
Criminal Appeal No. 2895 of 1986
Mahtab
 ...Appellant
Versus
State
...Opp. Party
Counsel for the Appellant:
Sri V.S. Rathore, Sri Gyaneshwar Bhatt,
Sri A.K. Shukla, Sri A.K. Shrivastava
Counsel for the Opp. Party:
A.G.A.
Criminal Appeal-against conviction of life
imprisonment under section 302 IPCchallenged on ground-right to defend to
accused not properly given-opportunity
to explain real cause of death properly
given
under
section
313
Cr.P.C.-
deceased being wife of appellant who
was found present-no omission on part
of Trail Court found-can not be said to be
prejudiced the right of accused to defend
himself-Trail Court rightly held that the
appellant committed murder of his wifepresumptions not disputed-by accusedappeal dismissed.
Held: Para-40
On close analysis of the evidence and the
questions framed by the trial Court in the
statement under section 313 Cr.P.C., it
clearly
indicates
that
all
the
incriminating inculpatory evidence have
been placed before the accused and
opportunity to explain the real cause of
death has also been given to the accused
which has not been explained by the
accused truthfully. There is no omission
on part of the trial Court. Therefore, in
the facts and circumstances of the case,
it cannot be said that right of the
accused to defend himself for the reason
mentioned above has been prejudiced.
Trial Court has followed correct legal
procedure. Sufficient opportunity has
been offered through the questions put
to accused to explain the real cause of
murder as the deceased is done to death
in his house. Ligature mark clearly goes
to show that deceased died due to
strangulation. Since the dead body of the
deceased was found in the house of the
deceased and deceased is the wife of
accused, who was present in the house,
medical evidence clearly establishes that
deceased has been murdered, therefore,
all
the
circumstances
laid
by
the
prosecution before the Court for raising
presumption under section 114 of the
Indian Evidence Act taking recourse of
the provisions of section 106 of the
Indian Evidence Act have arisen. Trial
Court has rightly held that it was the
accused who has committed the murder
of his wife and this presumption has not
been
rebutted
by
the
accused
by
adducing any evidence. Thus, point no.4
& 6 are answered as above.
Case Law discussed:
(2015) 1 Supreme Court Cases 496; 1969 AIR
422.
(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)
1. This criminal appeal has been
preferred by the appellant Mahtab son of
Raghu Lal resident of Khargapur, P.S.
Bisalpur, District Pilibhit against the
judgment and order dated 10.09.1986
passed by Sessions Judge, Pilibhit in
Sessions Trial No.125 of 1986 (State Vs.
Mahtab) under Section 302 IPC, P.S.
Bisalpur whereby the trial Court has
convicted and sentenced the accusedappellant Mahtab under Section 302 IPC
for life imprisonment.
2. The prosecution case in nutshell is
that on 31.1.1986, informant Raghu Lal
1 All]
 Mahtab Vs. State
267
(P.W.1), moved an application before the
concerned police stating therein that he is
the resident of village Khargapur, P.S.
Bisalpur. In the intervening night of
30/31.1.1986, when the informant's son had
gone to attend the cultural programe at
Pradhan's place, his daughter-in-law, who
was suffering from fits, had latched the door
of the room from inside and had slept.
When his son came back at about 4:00 a.m.
and tried to open the door, but the door did
not open, then his son broke the latch of the
door with the help of Karchuli and saw that
his wife was lying dead on the Galicha.
Request was made to take legal action.
3. This information is scribed by one
Ram Singh son of Shiv Lal and is Ex.ka-2
and it was entered in the general diary at
Rapat No.26, which is Ex.Ka-3. The carbon
copy of the G.D. entry, which is Ex.Ka-4, is
also on record whereby case was converted
as Crime No.36 of 1986 under Section 302
IPC on the basis of postmortem report.
Police has prepared inquest report (Ex.Ka-5)
and also the Form No.13 (Ex-Ka-6), Photo
Lash (Ex.ka-7), letter to R.I. (Ex.Ka-8),
letters to C.M.O. (Ex.Ka-9 & 11). The dead
body was kept in a sealed cover and sample
seal was also prepared, which is Ex.Ka-10.
Postmortem on the dead body of the
deceased was done on 1.2.1986 at 2:30 p.m.,
which is Ex.Ka-13. Investigating officer has
also inspected the spot and prepared site
plan, which is Ex.Ka-14. Police recorded the
statement of the witnesses and also collected
the evidence and submitted the charge-sheet
under Section 302 IPC against the
accused-appellant, which is Ex.Ka.-12.
4. The postmortem on the body of
the deceased was conducted on 1.2.1986
at 2:30 p.m. and time of death is
mentioned as one and a half day old.
Rigor mortis passed off in upper limits
and present in lower limits.
5. Upon postmortem, the following
ante-mortem injuries were found :
(i)Contusion at upper lid 2.5 cm. x
1.5 cm. in right side.
(ii)Contusion at right lower lid 2.75
cm. x 1.5 cm. in size.
(iii)Lacerated wound on eye ball
right side. It is 3 cm. x 2 cm. x bone deep
in size.
(iv)Ligature mark at middle of neck
all around. It is 1.5 cm. x all around in
length. It is transverse in position
(continuous) low down in the neck below
thyroid, base of groove is soft and
reddish, ecchymosis and the edges of
ligature mark is present. Subcutaneous
tissues are ecchymosed under the mark.
6. The following postmortem
injuries were also found:
(i) Ant bite abrasion on back of left
little finger at junction of middle and
distal phalanx. It is 1 cm. x .5 cm. in size.
(ii) Ant bite abrasion at left ring
finger at joint of distal phalanx on back, .5
cm. x .5 cm.
7. In the opinion of the doctor, Smt.
Raj Beti had died due to asphyxia which
was the result of strangulation. According
to the doctor, Smt. Raj Beti could die on
the night of 30/31.1.86 at any time.
8. After taking cognizance, case was
committed to the Court of Sessions. The
trial Court framed charge under Section
302 IPC against the appellant, which is as
follows :
268
 INDIAN LAW REPORTS ALLAHABAD SERIES
"I, P.K. Dixit, Sessions Judge,
Pilibhit hereby charge you, Mahtab, as
follows :-
9. That you on the night intervening
30/31.1.86 in village Khargapur, within
police station Bisalpur, did commit the
murder by intentionally, or knowingly
causing the death of your wife, Smt. Raj
Beti, and thereby committed an offence
punishable under Section 302 I.P.C. and
within my cognizance.
And I hereby direct that you be tried
by this court on the said charge."
9. Since accused has denied the
charge framed against him, therefore, in
order to prove the case, the prosecution
examined P.W.1 Raghu Lal, the father of
the accused-appellant Mahtab, P.W.2
Indrajeet Mukhia, P.W.3 Laxmi Narain,
P.W.4 Dr. M.L. Sharma, who has
conducted
the
postmortem,
P.W.5
Constable Hem Raj, who has proved the
G.D. Entreis and also the inquest report,
photo lash, challan lash, letter to R.I. and
C.M.O. Sample seal. This witness has
also proved the charge-sheet and the
endorsement made on the postmortem
report. After completing the prosecution
evidence, Court recored the statement of
the accused-appellant under Section 313
Cr.P.C.
10. Accused in the statement under
Section 313 Cr.P.C. has stated that he has
not committed the present offence by
strangulating his wife in the intervening
night of 30/31.1.1986. He had not gone to
the house of Indrajeet Mukhiya on the
next day of the offence and has not made
any extra judicial confession to him. He
had also not made any extra judicial
confession to anyone at the time of
preparing
the
inquest
report
and
postmortem. He has specifically stated
that Indrajeet Mukhiya had told him to
serve as labour, but he denied. Witness
Laxmi Narain has also told him the same
fact, but he was not agree to do work as
labour, therefore, due to this enmity, they
have made a false statement.
11. Accused has not adduced any
oral or documentary evidence in support
of his defence.
12. After hearing the parties and
going through the record, the learned trial
Court vide impugned judgment and order
convicted and sentenced the appellant for
the offence under Section 302 IPC for life
imprisonment. Hence this Appeal.
13. P.W.1 Raghu Lal, who is the
father of the accused-appellant, has stated
that he had informed orally to the local
police regarding death of the deceased.
The deceased committed suicide. No one
has committed her murder. Accused
Mahtab was present in the village at the
time of death of the deceased. There was
no issue to the deceased. Hori Lal, his
nephew, used to come at his residence.
Accused Mahtab suspects that Hori Lal
had illicit relations with the deceased and
the child in the womb was of Hori Lal. In
the cross-examination, this witness has
accepted that when deceased died, he was
outside the house and accused Mahtab
had gone to attend Thirthone. Deceased
was suffering from fits.
14. P.W.2 Indrajeet Mukhiya has
stated that he knows the accused.
Information to the police regarding death of
the deceased had been given by the father of
the accused. Police had come. Inquest report
had been prepared and the dead body was
kept in a sealed cover. He had seen the dead
body of the deceased and he was also one of
1 All]
 Mahtab Vs. State
269
the witnesses of the inquest report. He has
seen the injuries on the eyes of the deceased
and blood was also present on the dead body.
This witness has proved his signature on the
inquest report. He has specifically stated that
on the second day of the incident, accused
had come to meet him and had stated that
"Mehtab ne mujhse kaha ki usne anpi biwi
ke danda mara jo uski aankh mein lag gaya
jisse wah mar gaye hai. Mahtab ne kaha ki
uski biwi ka sambandh Hori se tha." As per
this witness, accused has committed the
murder of his wife in a fit of rage. This
witness has also specifically stated that he
does not know whether the deceased was
pregnant or not. He has been cross-examined
by the defence.
15. P.W.3 Laxmi Narain has stated
that he knows the accused Mahtab.
Deceased was the wife of accused
Mahtab,
whose
inquest
report
was
prepared before him. He was also one of
the witnesses of the inquest report. This
witness has proved his signature on the
inquest report. It has also been stated that
on 1.2.1986, in the evening, accused
Mahtab had come to meet him. One Siya
Ram was also sitting there. Accused
Mahtab has told to this witness that
"Truth has been surfaced from the
postmortem report that he has committed
murder of his wife". Accused has also told
to this witness that Hori used to come to
his house. He asked from his wife that
why he comes to this place. He also
restrained his wife. This witness has also
stated that accused has told that when he
asked from his wife that why does Hori
Lal come then his wife did not say
anything and on this, accused gave 2-3
danda blows to his wife. She received
injuries on her eye and fell down on the
Galicha. Accused has also told to this
witness that he has strangulated the
deceased and has done her to death. The
rope used to commit the offence was
burnt by him on the chulha. Accused
Mahtab intends his help, but this witness
expressed inability to extend any help.
This witness has been cross-examined at
length by the defence.
16. P.W.4 Dr. M.L. Sharma, posted
as Medical Officer at District Hospital,
Pilibhit on the date of performing the
postmortem on the dead body of the
deceased, has stated that on 1.2.1986 at
about 2:30 p.m, he has conducted the
postmortem on the dead body of the
deceased, which had been brought by
Constables Arun Singh and Ajay Kumar
Pandey in a sealed cover from Police
Station
Bisalpur.
They
have
also
identified the dead body of the deceased.
As per this witness, he has found
antemortem as well as postmortem
injuries on the body of the deceased,
which has already been mentioned
hereinabove. In the opinion of this
witness, deceased died due to asphyxia,
which
was
occasioned
due
to
strangulation and injury no.4 is the result
of
strangulation.
Venus
was
found
congested. This witness has proved the
postmortem report and has stated that he
has prepared this report after performing
the postmortem, which has also been
certified by Dr. M.P. Singh, who was
present at the time of postmortem. This
witness has opined that death of the
deceased might have taken place in the
intervening night of 30/31.1.1986 at any
time. Postmortem injuries were the result of
ant eating. It has further been opined that
the postmortem injuries found on the body
of the deceased may only occur when the
dead body of the deceased was lying
uncared. Defence has put only one question
in the cross-examination as to the nature of
270
 INDIAN LAW REPORTS ALLAHABAD SERIES
the injuries no.1, 2 & 3 and this witness
stated that injuries no.1 & 2 were simple,
but injury no.3 was grievous in nature. Trial
court has also asked question as to whether
death was suicidal or homicidal, then this
witness has stated that deceased was done to
death. It was not a case of suicide.
17.
P.W.5 Constable Hem Raj has
stated that on 31.1.1986, he was posted as
head moharir at P.S. Bisalpur. On that day at
about 15:30 hours, one Raghu Lal putting his
thumb impression submitted a written report
scribed by one Ram Singh, the same was
entered in the G.D. and was annexed with the
G.D. by this witness. This witness has
proved the G.D. prepared by him comparing
it with the original G.D. This witness has
also stated that Sub-Inspector Vivek Gautam
proceeded to the spot for preparing the
inquest report and other police papers. When
this witness received postmortem report on
2.2.1986 at 12:30 p.m., the case was
converted into the offence under Section 302
IPC vide G.D. Rapat No.22 dated 2.2.1986.
Ex.Ka-4, the true copy of the G.D. was also
proved by this witness comparing it with the
original G.D. The papers prepared by S.I.
Vivek Gautam and Badan Singh Tibbetia
have also been proved by this witness. He
has stated that they were posted with him and
he has seen them writing and signing and
also he is aware about the writing and
signature of them. As per this witness,
inquest report, challan lash, photo lash, report
of R.I., Report of C.M.O., Sample Seal etc.
have been prepared by the Sub-Inspector
Vivek Gautam in his writing, which are
Ex.Ka.-5 to Ex.Ka.-11 on record. The
investigating officer Badan Singh Tibbetia,
after completing the investigation, has
submitted charge-sheet, which had also been
prepared by him in his writing. Since this
witness is aware of the writing and signature
of Sri Badan Singh Tibbetia, therefore, he
has also proved the charge-sheet Ex.Ka.-2.
Endorsement made on the postmortem report
by the C.O. K.S. Sharma have also been
proved by this witness, which has been
exhibited as Ex.Ka.13. This witness has not
been cross-examined by the defence.
18. Before proceeding to record the
arguments advanced by the
learned
counsel for the parties, we think it proper
to reproduce the endorsement made by
Circle Officer on the postmortem report,
which has been exhibited as Ex.Ka.-13.
" I have seen the ligature mark
around the neck of the dead body of Smt.
Raj Beti wife of Mahtab resident of
Khargapur, P.S. Bisalpur. I agree with
the report of Medical Officer".
19. We have heard Sri A.K. Srivastava
and Sri A.K. Shukla, learned counsel for the
appellant as well as Sri Pradeep Pandey,
learned A.G.A. for the State and also perused
the entire record carefully.
20. It is the submission of the learned
counsel for the appellant that deceased was
suffering from a disease i.e. fits and due to
this reason, in the intervening night of
30/31.1.1986, she received injuries and
resultantly she died. It has also been argued
that accused has not made any extra judicial
confession to any person. The prosecution
case regarding extra judicial confession is
false. Medical evidence does not support the
prosecution case. All the incriminating
inculpatory evidence came in the prosecution
evidence have not been put before the
accused in the statement under section 313
Cr.P.C. Therefore, prejudice has been caused
and opportunity has not been given to the
accused to explain those incriminating
inculpatory evidence. Referring the contents
of the first information report, it was also
1 All]
 Mahtab Vs. State
271
submitted that door was closed from inside
of the room, which had been opened
breaking the latch by the accused himself.
Therefore, all the circumstances clearly show
that deceased has committed suicide and it is
not a case of murder. P.W.2 and P.W.3, as
has been indicated in the statement under
Section 313 Cr.P.C., have falsely implicated
the accused in this case. Accused has never
made any extra judicial confession before
P.W.1 and P.W.2. Apart to this, extra judicial
confession is a very weak piece of evidence.
Until and unless there is any supporting /
corroborating evidence of the extra judicial
confession, no sanctity can be attached to it
and conviction cannot be based on such
confession, which has been retracted by the
accused. First information report has been
lodged by the father of the deceased himself.
If accused had committed the murder of the
deceased, why he will send his father to
inform the police. It was also argued that
accused, who was present there, not only
opened the door of the room where the
deceased has committed suicide, but was
also present during preparation of inquest
report and performing of the postmortem.
Mere finding of ligature mark around the
neck, it cannot be presumed that deceased
was done to death and she has not committed
suicide. Motive is also not proved by the
prosecution.
21. Reliance has been placed on the
law laid down in the following cases :
(1) Nar Singh Vs. State of Haryana,
(2015) 1 Supreme Court Cases 496.
(2)Decision
of this
Court dated
11.3.2014 passed in Criminal Appeal No.700
of 1983, Jan Mohd. Vs. State of U.P.
22. It was also submitted by the
learned counsel for the appellant that the
appellant, if found guilty, may be
extended the benefit of imprisonment
already undergone as the offence is not
covered under section 302 IPC.
23. Per contra, learned A.G.A.
submitted that deceased died in the house
of the accused. Death is not natural death.
Medical evidence discloses that deceased
was done to death. Trial Court finding
that it is not a suicidal death is correct.
Although, first information report has
been lodged by the father of the accused
belatedly, but the real cause of the death
of the deceased has been suppressed.
Accused
has
made
extra
judicial
confession to P.W.1 Raghu Lal and P.W.2
Indrajeet Mukhiya and such extra judicial
confession has been made by the accused
voluntarily, which has been rightly relied
on by the trial Court. It was also
submitted that if the extra judicial
confession is voluntarily made by the
accused and inspire confidence, then
conviction can be based on such extra
judicial
confession.
It
was
further
submitted that motive shown by the
accused in the statement under section
313 Cr.P.C. is not believable as no
evidence in that respect has been adduced
by the accused. Answer made in the
statement under section 313 Cr.P.C.
cannot take place a piece of evidence until
and unless it is supported by some
corroborative evidence or it is in the line
of the prosecution case. Medical evidence
clearly indicates that deceased died due to
strangulation.
Ligature
mark
found
around the neck of the deceased clearly
goes to show that it is not a case of
suicide. Burden to explain the reason of
the death of the deceased lies upon the
accused, which has not been explained
satisfactorily by the accused. At this
stage,
learned
A.G.A.
referred
the
272
 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of Section 106 and 114 of the
Indian Evidence Act as also the scope of
provision of Section 313 Cr.P.C and
submitted that all the circumstances
clearly indicate that accused and accused
only has committed the death of the
deceased. Presumption made by the trial
Court is in accordance with law, which
has not been rebutted by the accused from
his evidence. Since all the incriminating
inculpatory evidence have been put to the
accused in the statement under section
313 Cr.P.C., therefore, no prejudice has
been caused to the accused in his defence.
The trial Court has rightly held the guilt
of the accused.
24. Learned A.G.A. has placed
reliance on the following case laws :
(1)Nishi Kant Jha Vs. State of Bihar,
1969 AIR 422.
(2)Sahadevan and Another Vs. State
of Tamil Nadu, (2012) 6 Supreme Court
Cases 403.
25. We have considered the
submission raised by the learned counsel
for the parties and also gone through the
record carefully.
26. In the present matter, as is clear
from the prosecution case, the first
information report is lodged by the father
of the accused, who is said to be present
in the village at the time of incident.
Offence is said to have been committed in
the intervening night of 30/31.1.1986.
Information has been given on 31.1.1986
by the father of the accused only
mentioning therein that when his son (the
accused) returned back at about 4:00 a.m.
and tried to open the door, which had
been closed by the deceased from inside,
it was not opened by the deceased, then
he broke the door and found the dead
body of the deceased lying on the
Galicha.
27. Trial Court on the point of
lodging of the first information report has
opined that information has been given by
the informant after deliberation with the
accused. It is also pertinent to mention
here that in the present case, no question
arises regarding delay in lodging the first
information report. It is also undisputed
fact that dead body of the deceased was
lying inside the house of the accused in a
room. This fact is also supported with the
inquest report. Nothing has been found by
the Investigating Officer on the spot to
show that accused opened the door
breaking the latch.
28.

Thus,
main
points
for
consideration in the case, as has been
argued by the learned counsel for the
parties, are that :-
(1)Whether the death of the deceased
is suicidal or homicidal ?
(2)What are the scope and effect of
extra judicial confession said to have been
made by the accused to the witnesses ?
(3)Whether the finding arrived at by
the trial Court regarding medical evidence
is in accordance with law ?
(4)Whether any prejudice has been
occasioned to the accused by not placing
all the incriminating inculpatory evidence
before him?
(5)Whether enmity stated by the
appellant is sufficient to falsify the
accused in the present matter ?
(6)Whether circumstances have been
established by the prosecution to reach on
an irresistible conclusion that accused and
accused only has committed the present
offence of murder ?
1 All]
 Mahtab Vs. State
273
(7)Whether accused has explained
satisfactorily the reason or cause of death
of the deceased ?
29. First of all, we are proceeding to
decide as to whether the death of the
deceased is homicidal or suicidal. Since
this point is relating to the medical
evidence, there is no direct evidence of
the case, the dead body of the deceased
was found inside the house of the
accused, therefore, postmortem report
prepared in this case is the most important
piece of evidence. P.W. 4 Dr. M.L.
Sharma,
who
has
conducted
the
postmortem
and
has
prepared
the
postmortem report, has found two types
of injuries on the person of the deceased.
Antemortem injuries are in the form of
contusion, lacerated wound and ligature
mark. One contusion is in the right side of
the upper lid. Second contusion is in right
lower lid. Lacerated wound is on the eye
ball right side in the size of 3 cm. x 2 cm.
x bone deep. Ligature mark at middle of
neck all around into the size of 1.5 cm. x
all around in length.
30. Information was given by P.W.1
Raghu Lal initially does not contain any
injury in it. The case has been converted
into the offence under section 302 IPC
after receiving the postmortem report on
the basis of ligature mark.
31. P.W.4 Dr. M.L. Sharma has
clearly stated that death of the deceased
was not a suicidal death, but she had been
murdered. This statement by P.W.4 Dr.
M.L.
Sharma
is
only
an
opinion,
therefore, we have compared this opinion
with the injuries found on the body of the
deceased. Finding of ligature mark all
around the neck clearly indicates that
some other person has tighten the neck by
using rope or the like article of material,
then and then only death of the deceased
took place. P.W.4 has also opined that
death of the deceased was the result of
asphyxia
due
to
strangulation. The
opinion expressed by Dr. Sharma is based
on the basis of injuries found on the body
of the deceased. Trial Court has taken into
consideration the opinion of P.W.4 and
has rightly concluded that deceased has
been murdered, thus the points no.1 & 3
are answered as above.
32. Now the Court proceed to decide
as
to
whether
the
extra
judicial
confession, said to have been made by the
accused to the witnesses, is reliable and
inspire confidence. Trial Court has placed
reliance on the extra judicial confession
made by the accused to P.W.2 Indrajeet
Mukhiya and P.W.3 Laxmi Narain. One
argument has been raised on behalf of the
appellant that the accused has not made
any extra judicial confession to the abovenamed witnesses and they have deposed
before the Court this fact due to enmity
and also on the advise of the police.
33. On close scrutiny of the
evidence regarding enmity, it is evident
that accused has stated that he was told by
these two witnesses to serve as labour
with them, but he denied, therefore, they
have made false statement before the
Court. The enmity shown by the accused
person is not of such nature, which may
be taken for false implication of the
accused. This is a case in which the
deceased is done to death, therefore the
enmity shown by the accused for his false
implication has rightly not been found
sufficient by the trial Court.
34. As regards the acceptance of
extra judicial confession made by the
274
 INDIAN LAW REPORTS ALLAHABAD SERIES
accused person is concerned, Hon'ble
Supreme Court in the case of Nishi Kant
Jha (supra) has propounded the theory of
exculpatory and inclupatory part before
relying on such extra judicial confession.
35. Hon'ble Supreme Court in its
latest pronouncement in the case of
Sahadevan (supra) at paragraph no.16 has
propounded the principal to rely upon an
extra judicial confession alleged to have
been made by the accused, which are
quoted as under.
"16. Upon a proper analysis of the
above-referred judgments of this Court, it
will be appropriate to state the principles
which would make an extra-judicial
confession
an
admissible
piece
of
evidence capable of forming the basis of
conviction of an accused. These precepts
would guide the judicial mind while
dealing with the veracity of cases where
the prosecution heavily relies upon an
extra-judicial confession alleged to have
been made by the accused.
(i) The extra-judicial confession
is a weak evidence by itself. It has to be
examined by the court with greater care
and caution.
(ii) It should be made voluntarily and
should be truthful.
(iii) It should inspire confidence.
(iv) An extra-judicial confession
attains greater credibility and evidentiary
value, if it is supported by a chain of
cogent circumstances and is further
corroborated
by
other
prosecution
evidence.
(v) For an extra-judicial confession
to be the basis of conviction, it should not
suffer from any material discrepancies
and inherent improbabilities.
(vi) Such statement essentially has to
be proved like any other fact and in
accordance with law."
36. In the instant case, accused had
gone to the house of the witness Indrajeet
Mukhiya and has disclosed the fact
voluntarily. Defence has also not been
able to show that such confession made
by the accused have come out due to any
pressure
or
for
any
other
reason.
Similarly, accused has also confessed the
guilt to the witness Laxmi Narain during
postmortem saying that he has committed
murder of his wife. By that time he was
also not under any pressure. It might be
possible that the extra judicial confession
has been made by the accused in remorse.
Witnesses have not been found inimical at
any score by the trial Court and the extra
judicial confession, said to have been
made, has been made voluntarily and the
circumstance also goes to show that it
does not suffer from any material
discrepancies and inherent improbabilities
and is truthful. At this stage, it is also
pertinent to mention here that the theory
narrated in the first information report and
the plea taken by the accused in the
statement under Section 313 Cr.P.C. have
not been found true by the trial Court. On
close analysis of the entire evidence, we
are also of the view that the plea taken by
the accused in the statement under Section
313 Cr.P.C. and suggestions made to the
witnesses
regarding
enmity
or
the
narration made in the first information
report are not true as no evidence
regarding breaking of latch was found by
the investigating officer. Deceased died
due
to
asphyxia
as
a
result
of
strangulation. The ligature marks all
around the neck have also been found,
1 All]
 Mahtab Vs. State
275
therefore, in the facts and circumstances
of the case and taking into consideration
the nature of the extra judicial confession
made by the accused before the witnesses,
the trial Court's view regarding placing of
reliance on the extra judicial confession is
not interferable. Merely, on the basis that
during course of trial, accused has
retracted from the said confession, it
cannot be held that the said extra judicial
confession has not been made by him.
Thus the point nos. 2 and 4 are answered
as such that extra judicial confession
made by the accused has been made
voluntarily and the enmity shown is not
believable in the matter. Extra judicial
confession
is
supported
by
other
circumstances and also corroborated by
the medical evidence and it does not
suffer from any material discrepancies
and inherent improbabilities.
37. Now we proceed to discuss the
point no.4 regarding placing / putting of
all incriminating inculpatory evidence
before the accused in the statement under
section 313 Cr.P.C. and its scope.
38. Trial Court after completing the
prosecution evidence has framed seven
questions in the statement under section
313 Cr.P.C. Trial Court has clearly placed
the evidence before the accused to explain
that in the postmortem report, antemortem
injuries have been found on the dead body
of the deceased and it is also found that
deceased
was
done
to
death
by
strangulation in the intervening night of
30/31.1.1986. Accused has denied this
fact. The extra judicial confession said to
have been made by the accused to the
witnesses namely Indrajeet Mukhiya and
Laxmi Narain have also been placed
before the accused. Accused has also been
given opportunity to explain the cause of
death of the deceased. No explanation has
been given by the accused although he
has denied the incriminating inculpatory
evidence placed before him.
39. Hon'ble Supreme Court in the
case of Nar Singh (supra) discussing the
scope of Section 313 Cr.P.C. in the
following paragraphs has held as under :
"11. The object of Section 313 (1)(b)
Cr.P.C. is to bring the substance of
accusation to the accused to enable the
accused to explain each and every
circumstance appearing in the evidence
against him. The provisions of this section
are mandatory and cast a duty on the
court to afford an opportunity to the
accused to explain each and every
circumstance and incriminating evidence
against him. The examination of accused
under Section 313 (1)(b) Cr.P.C. is not a
mere formality. Section 313 Cr.P.C.
prescribes a procedural safeguard for an
accused, giving him an opportunity to
explain the facts and circumstances
appearing against him in the evidence
and this opportunity is valuable from the
standpoint of the accused. The real
importance of Section 313 Cr.P.C. lies in
that, it imposes a duty on the Court to
question the accused properly and fairly
so as to bring home to him the exact case
he will have to meet and thereby, an
opportunity is given to him to explain any
such point.
16. Undoubtedly, the importance of a
statement under Section 313 Cr.P.C.,
insofar as the accused is concerned, can
hardly be minimised. The statutory
provision is based on the rules of natural
justice for an accused, who must be made
aware of the circumstances being put
against him so that he can give a proper
explanation to meet that case. If an
276
 INDIAN LAW REPORTS ALLAHABAD SERIES
objection as to Section 313 Cr.P.C.
statement is taken at the earliest stage, the
Court can make good the defect and
record
additional
statement
of
the
accused as that would be in the interest of
all. When objections as to defective
Section 313 Cr.P.C. statement is raised in
the appellate court, then difficulty arises
for the prosecution as well as the accused.
When the trial court is required to act in
accordance
with
the
mandatory
provisions of Section 313 Cr.P.C., failure
on the part of the trial court to comply
with the mandate of the law, in our view,
cannot automatically enure to the benefit
of the accused. Any omission on the part
of the Court to question the accused on
any incriminating circumstance would not
ipso facto vitiate the trial, unless some
material prejudice is shown to have been
caused to the accused. Insofar as noncompliance of mandatory provisions of
Section 313 Cr.P.C., it is an error
essentially committed by the learned
Sessions Judge. Since justice suffers in the
hands of the Court, the same has to be
corrected or rectified in the appeal.
17. So far as Section 313 Cr.P.C. is
concerned, undoubtedly, the attention of
the accused must specifically be brought
to inculpable pieces of evidence to give
him
an
opportunity
to
offer
an
explanation, if he chooses to do so. A
three-Judge Bench of this Court in Wasim
Khan v. The State of Uttar Pradesh, AIR
1956 SC 400; and Bhoor Singh & Anr. v.
State of Punjab, AIR 1974 SC 1256 held
that
every
error
or
omission
in
compliance of the provisions of Section
342 of the old Cr.P.C. does not
necessarily vitiate trial. The accused must
show that some prejudice has been caused
or was likely to have been caused to him.
18. Observing that omission to put
any material circumstance to the accused
does not ipso facto vitiate the trial and
that the accused must show prejudice and
that miscarriage of justice had been
sustained by him, this Court in Santosh
Kumar Singh v State through CBI, (2010)
9 SCC 747 (Para 92), has held as under:
"... the facts of each case have to be
examined but the broad principle is that all
incriminating material circumstances must
be put to an accused while recording his
statement under Section 313 of the Code, but
if any material circumstance has been left
out that would not ipso facto result in the
exclusion of that evidence from consideration
unless it could further be shown by the
accused that prejudice and miscarriage of
justice had been sustained by him..."
19. In Paramjeet Singh alias Pamma
v State of Uttarakhand (supra), this Court
has held as under:- "Thus, it is evident
from the above that the provisions of
Section 313 Cr.P.C. make it obligatory
for the court to question the accused on
the evidence and circumstances against
him so as to offer the accused an
opportunity to explain the same. But, it
would not be enough for the accused to
show that he has not been questioned or
examined on a particular circumstance,
instead, he must show that such nonexamination has actually and materially
prejudiced him and has resulted in the
failure of justice. In other words, in the
event of any inadvertent omission on the
part of the court to question the accused
on an incriminating circumstance cannot
ipso facto vitiate the trial unless it is
shown that some material prejudice was
caused to the accused by the omission of
the court."
20. The question whether a trial is
vitiated or not depends upon the degree of
the error and the accused must show that
non-compliance of Section 313 Cr.P.C.
has materially prejudiced him or is likely
1 All]
 Mahtab Vs. State
277
to cause prejudice to him. Merely because
of defective questioning under Section
313 Cr.P.C., it cannot be inferred that
any prejudice had been caused to the
accused,
even
assuming
that
some
incriminating
circumstances
in
the
prosecution case had been left out. When
prejudice to the accused is alleged, it has
to be shown that accused has suffered
some disability or detriment in relation to
the safeguard given to him under Section
313 Cr.P.C. Such prejudice should also
demonstrate that it has occasioned failure
of justice to the accused. The burden is
upon the accused to prove that prejudice
has been caused to him or in the facts and
circumstances of the case, such prejudice
may be implicit and the Court may draw
an inference of such prejudice. Facts of
each case have to be examined to
determine whether actually any prejudice
has been caused to the appellant due to
omission
of
some
incriminating
circumstances being put to the accused.
21. We may refer to few judgments of
this Court where this Court has held that
omission to put the question under Section
313 Cr.P.C. has caused prejudice to the
accused vitiating the conviction. In State
of Punjab v Hari Singh & Ors. (2009) 4
SCC 200, question regarding conscious
possession of narcotics was not put to the
accused when he was examined under
Section 313 Cr.P.C. Finding that question
relating to conscious possession of
contraband was not put to the accused,
this Court held that the effect of such
omission vitally affected the prosecution
case and this Court affirmed the acquittal.
In Kuldip Singh & Ors. v State of Delhi
(2003) 12 SCC 528, this Court held that
when
important
incriminating
circumstance was not put to the accused
during his examination under Section 313
Cr.P.C.,
prosecution
cannot
place
reliance on the said piece of evidence.
22. We may also refer to other set of
decisions
where
in
the
facts
and
circumstances of the case, this Court held
that no prejudice or miscarriage of justice
has been occasioned to the accused. In
Santosh Kumar Singh v State thr. CBI
(supra), it was held that on the core issues
pertaining to the helmet and the ligature
marks on the neck which were put to the
doctor, the defence counsel had raised
comprehensive arguments before the trial
court and also before the High Court and
the defence was, therefore, alive to the
circumstances against the appellant and
that no prejudice or miscarriage of justice
had been occasioned. In Alister Anthony
Pareira v. State of Maharashtra (2012) 2
SCC 648, in the facts and circumstances,
it was held that by not putting to the
appellant
expressly
the
chemical
analyser;s report and the evidence of the
doctor, no prejudice can be said to have
been caused to the appellant and he had
full opportunity to say what he wanted to
say with regard to the prosecution
evidence and that the High Court rightly
rejected the contention of the appellantaccused in that regard.
23. When such objection as to
omission to put the question under Section
313 Cr.P.C.