Servesh Kumar Gupta, J.Challenge in this jail appeal is to the judgment and order dated 16.7.2010/17.7.2010, passed by the Additional Sessions Judge, Roorkee (Haridwar) in Sessions Trial No. 252/2009. By the said judgment and order, the appellant Rajesh has been held guilty of the offence u/s 302 IPC and sentenced to undergo imprisonment for life and a fine of rupees five thousand. Prosecution story, in brief, is that Lekhraj Singh (PW6) lodged a report with PS Manglore on 25.5.2006. The complainant averred in the report that about 15 years ago, marriage of his sister Neeta Devi was solemnized with the accused appellant Rajesh. The complainant alleged that on 25.5.2006 at 2.30 Oclock in the day, Rajesh quarrelled with Neeta on some issue and brutally slaughtered his sister from a Patal, which is used to cut the wood. This report is Ex. Ka-1. On 27.5.2006, Lekhraj Singh gave another report (Ex. Ka-2), wherein he has also implicated Rajendra and Nathi Ram, elder brother and father of the accused respectively. Police came into action. P.W. 11 Sub Inspector DS Panwar took charge of the investigation. Inquest report Ex. Ka-8 was prepared on the date of incident itself. The Punches unanimously opined that the husband of the deceased murdered his wife (Neeta) by Patal. However, post-mortem was recommended.

2. Post-mortem examination was conducted by PW7 Dr. RS Chauhan at 3 P.M. on 26.5.2006 in District Hospital, Haridwar. He, accordingly, prepared the report Ex. Ka-3. He found following ante mortem injuries on the person of the deceased:

1. Incised wound 13 cm x 1.2 cm on right side forehead, bone deep, fracture right temp. bone.

2. Incised wound 12 cm x 1.2 cm on left temp, area, 5 cm above left ear, bone deep, fracture left temp. bone.

3. Incised wound 6 x 2 cm in front of neck, deep up to tracheal canal.

4. Incised wound 3 x 1 cm over right shoulder, muscle deep.

5. Incised wound on back of right wrist and lower end of right forearm 6 x 3 cm.

6. Incised wound 4 x 2 cm, 10 cm above right wrist on back of forearm.

7. Incised wound 3 cm x 1 cm on back and 13 cm above right wrist.

8. Fracture right wrist.

9. Incised wound 1 cm x 0.8 cm, 3 cm below and front of left shoulder.

10. Incised wound 12 x 6 cm on back of neck, 6 cm below nuchae.

11. Incised wound 8 cm x 2 cm on lateral side right leg, 7 cm below right knee.

12. Contusion 7 x 1 cm, 3 cm below knee.

13. Incised wound 5 x 1 cm, it is 2 cm below left knee.

14. Incised wound 7 x 2 cm on inner side left forearm, 2 cm below elbow.

As per the post-mortem report, the death caused by massive haemorrhage and shock due to ante-mortem injuries.

3. Investigation Officer recovered the Patal used in the commission of crime from the spot itself. The Patal was found bloodstained. Recovery memo thereof is Ex. Ka-6. The accused could be arrested on 26.5.2006. After his arrest, the accused was produced before the concerned Magistrate (P.W. 12) for recording his statement u/s 164 Cr.P.C.. The accused confessed his guilt before the Magistrate. During the course of investigation, the Investigation Officer prepared the site plan ((Ex. Ka-9), collected the blood smeared and plain soil vide recovery memo Ex. Ka-7, recorded the statement of the witnesses and, on completion of the investigation, he submitted the chargesheet Ex. Ka-14 against the accused appellant Rajesh for the offence punishable u/s 302 IPC. Learned Sessions Judge, accordingly, levelled the charge against the accused, who pleaded not guilty and claimed trial.

4. Prosecution in all examined 12 witnesses to prove its case. Thereafter statement of the accused was recorded u/s 313 Cr.P.C.. In his said statement, the accused denied the prosecution evidence. However, he did not adduce any oral or documentary evidence in defence.

5. Learned Amicus Curiae argued that there is no eyewitness of the incident. He further submitted that most of the prosecution witnesses have been turned hostile. As such, the conviction of the accused appellant cannot be sustained. Per contra, the learned Counsel for the State supported the judgment of the trial court and submitted that from the evidence adduced on record, it is proved beyond doubt that it was only the accused appellant who committed this brutal murder.

6. We have rendered our thoughtful consideration to the rival submissions of learned Counsel. Also perused the record and the judgment under appeal.

7. Keeping in view the injuries reported in the post-mortem report (Ex. Ka-3), the bloodstained Patal recovered from the place of occurrence and the Forensic Science Laboratory report, there is no doubt that the deceased died on account of homicidal violence.

8. As regards the culpability of the accused appellant in the instant crime, we gather from the evidence on record that the prosecution has produced as many as 12 witnesses in support of its case. P.W. 1, PW2, PW3 and P.W. 10 have turned hostile. P.W. 1, PW4 and PW5 have proved the inquest report Ex. Ka-8. PW6 is the complainant. He is brother of the deceased. He has reiterated the averments made by him in his complaints. He is not an eyewitness of the incident. PW8 is a formal witness. PW9 is the witness of recovery of Patal from the place of occurrence. P.W. 11 is the Investigation Officer. He has proved the chargesheet Ex. Ka-14. Besides, P.W. 12 Smt. Anju Shree Juyal is the Civil Judge, then Judicial Magistrate who recorded the confessional statement of accused appellant u/s 164 Cr.P.C..

9. This way we find that there is no direct evidence against the accused. However, in our opinion, there is other evidence on the record, which lends full support to the prosecution story. In the present case, the accused has made his confessional statement before the Magistrate, from which he has not retracted when he was asked about it in his 313 statement. A confessional statement is admissible in evidence and the Court may rely thereupon if it is voluntarily given. It may also form the basis of conviction, wherefore the Court may only have to satisfy itself in regard to voluntariness and truthfulness thereof. A confession, which is not retracted even at a later stage of the trial, even in the examination u/s 313 Cr.P.C., in our considered opinion, can be fully relied upon. Therefore, before reaching to any conclusion, we have to examine whether the confessional statement of the accused is free and voluntary.

10. Here, it would be relevant to reproduce the confessional statement of the accused, which was recorded by the concerned Magistrate (P.W. 12) on 9.6.2006. An English translation of the same would read as under:

I have killed my wife Neeta. When discussions took place between me and my wife, nobody else was present in the house. My wife took the Patal in her hand and said that my death was hovering on my head. Thereafter she assaulted me on my head and neck. I snatched the Patal from the hand of my wife and struck her with the same. I do not know as to on which parts I assaulted her. I do not remember anything. I no nothing about the fact that somebody has done Jadu Tona (superstition) in my house. It was my wife who was quarrelling with me and she was telling that only 2-4 days were left in my life. Nobody else was involved in that quarrel except me and my wife.

(Note:- The above is not the exact transliteration of the statement. It only conveys the meaning.)

11. P.W. 12 Smt. Anju Juyal has stated in her evidence that on 9.6.2006, she was posted as a Judicial Magistrate I at Roorkee. On that day she had recorded the confessional statement of the appellant on the application moved by Investigating Officer. She has further testified that before recording his confessional statement, it was made clear to the accused that he was not bound to make such a statement and, if he does so, the same will be read against him during the course of trial. Nonetheless, the accused voluntarily made his confessional statement, which she recorded. After recording his statement, it was read over to the appellant which he admitted to be correct and made by him. Then his signature was obtained upon it. P.W. 12 has proved the confessional statement. It may be noticed that in this particular case the appellant has not retracted his confession. On the contrary, in his statement u/s 313 Cr.P.C., he has pleaded his ignorance about this statement.

12. We may also take note of the fact that the accused was arrested on 26.5.2006 vide Entry No. 19 of the General Diary of the police station, and he was produced for recording the statement before the Magistrate on 15th day of his judicial custody i.e. on 9.6.2006. So, this way, it can also be inferred that in this long period of a fortnight, he had cooled down his mind and was not under any compulsion or influence mounted upon him by the police or the Investigating Officer.

13. The Honble Apex Court has propounded time and again that it is always open to the Court to convict an accused on his confession itself if he has not retracted the same at an early stage. In case of retraction, some corroboration to the confessional statement is required before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a case would always be a question of fact: to be determined in the light of the circumstances of each case. We have already observed that in the instant case the confession was not retracted. Therefore, in this particular case, the conviction of the appellant can be based on his confessional statement alone proved as Ex. Ka-15.

14. In view of the above discussion, we have no hesitation that the confession (supra) of the accused appellant is free and voluntary, and the same is not made under any inducement, threat or promise. Therefore, we have no doubt in our mind that the prosecution has been able to establish the guilt against appellant.

15. Learned Amicus Curiae has not argued anything regarding the exceptions u/s 300 of the Indian Penal Code to reduce the intensity of the crime from murder to that of culpable homicide. On looking to the confessional statement of the appellant, even if it is considered that his wife (deceased) gave a blow of that very weapon (Patal) upon the accused, even so there was no cause to retaliate and to commit this brutal crime after snatching the weapon from the hands of his wife. After taking away the weapon from the hands of the deceased, she was left without any arms then. So, there was no reason to make the repeated blows from the selfsame weapon upon the body of the deceased and to commit her murder. Hence, we find no merit in this appeal. We, accordingly, dismiss the appeal and affirm the conviction and sentence awarded to the accused appellant by the Court below vide the impugned judgment and order dated 16.7.2010/17.7.2010. The accused appellant is in jail. He is to serve out the sentence as awarded to him by the Trial Court. Let the information about the result of his appeal be communicated to the convict in jail. A copy of this judgment and order be sent to the court below to ensure its compliance. LCR be sent back.