State of Uttarakhand vs Mr. D.S. Mehta, Advocate, for the appellant.

region of the head of his wife Smt. Kamla Chand. She died at the spot.

3. Next morning when she was found dead, it was a subject of commotion in the small village. All inhabitants of the village rushed to the house of incident and a report was lodged by Pradhan Shamu Ram (PW4) of the village on 13.5.1998 wherefor the chick report was registered at 15.45 pm on the same day. Chick report is Ex. A-1. The inquest report was prepared in front of several villagers including Pradhan on 13.5.1998 at 7.15 pm, which is Ex. A-3 and all the witnesses of inquest opined that the deceased died on account of the injuries inflicted on her head.

4. Autopsy was conducted in District Hospital, Pithoragarh on 14.5.1998 at 11.15 am by Dr. G.K. Sharma (PW6). Post-mortem report is Ex. A-13. The doctor found the horizontal lacerated wound in the parietal region of the head which was 8 cm above the left ear and 6 cm above & back of left eyebrow. Another injury was 8 cm x 2.5 cm skull deep fracture on the parietal region. The brain matter had come out. In the opinion of the doctor, the death was due to ante mortem head injuries and it took place about two days before. This time was rightly estimated as the alleged date and time of incident is around 11 pm of the fateful intervening night of 12/13.5.1998.

5. Investigation Officer prepared the recovery memos Ex. A-8, A-9 and A-10, which respectively pertain to the recovery of bloodstained soil, bloodstained saree of the deceased and bloodstained axe. These recoveries were made just on the next day i.e. on 13.5.1998. The 3 Investigation Officer submitted the chargesheet for the offence of Section 302 IPC. The charge was accordingly levelled and trial commenced.

6. Prosecution has examined as many as 8 witnesses. PW1 Sanjay Chand is scribe of the FIR, who has denied that he ever wrote this report, but on comparing his signatures beneath the drafting of FIR and upon the statement made before the court, the same were found exactly matching. Thus, it is apparent that this witness is quite lying.

7. PW2 Madhi Chand is father of the accused, who has turned hostile. But it is pertinent to mention that he is not an eyewitness. So, his hostility is of no avail to the defence.

8. PW3 Smt. Saraswati Devi is mother of the accused. She has accepted that accused Daulat Chand and his wife Kamla Chand slept in the separate single room. She heard the weeping sound of Smt. Kamla. So, she rushed to the room and found her daughter-in-law dead. She had injuries on her head. For rest of the facts, she has turned hostile. But her hostility is of no avail to the defence because she has at least accepted the presence of Smt. Kamla Chand along with the accused Daulat Chand in a separate room on that fateful intervening night and has also accepted that in the midnight she heard the weeping sound of her daughter- in-law. On rushing to the room, she found Kamla Chand having suffered the head injuries and died.

9. PW4 Shyamu Ram is the Village Pradhan. This witness has lodged the report but has denied the same in 4 the court of law. So, he was declared hostile. Again, his hostility is of no avail to the defence because it appears that he is a liar. His signatures below the FIR and on several papers made before the court are exactly the same. Otherwise also, his hostility as regards the denial of lodging of the FIR by him is not going to save the accused in any manner because the offence is cognizable and of very serious nature and police was empowered to take the cognizance of the matter suo motto.

10. PW5 is SI Hayat Singh, who investigated the matter and submitted the chargesheet Ex. A-12. He has proved the same.

11. PW7 is Constable Gopal Dutt Gurrani who has recorded the report in the general diary and has proved the same.

12. The most significant aspect of this case is that accused when arrested on 14.5.1998 expressed his will to confess his guilt. Nevertheless, the learned remanding Magistrate granted one more day(cid:146)s time to seriously think over the matter and also apprised him that he was not bound to make any confession. He also apprised him that if he would do so then he may be found guilty and will be punished. So, the accused was taken in the judicial custody for a day and was again presented on the next day i.e. on 15.5.1998 before the Magistrate, who again apprised him in the same way disclosing all the repercussions and consequences of his confession. But the accused Daulat Chand remained adamant to make his confession before the Magistrate regarding the manner in which he committed the offence. 5

13. When the learned Magistrate ensured that the confession is being made with free will and without any pressure from any side, then he recorded the confession of the accused on 15.5.1998, which is Ex. A-14. Accused confessed his guilt very categorically narrating the entire sequence as to how he committed the incident. He has also described the motive of committing this ghastly crime. He has adverted that because he had suspicion over the moral character of his wife Smt. Kamla Chand, so he committed this crime. He accepted before the Magistrate that he did not ever see himself the intimate moments of his wife Kamla Chand along with Laxman Singh, a colleague of the accused. But he had only heard about it. So, he gave a blow of axe on the head of his wife Kamla Chand, as a result of which she died at the spot.

14. The above statement of the accused has again been proved by Mr. Alok Kumar Verma, Judicial Magistrate, Pithoragarh, who had recorded it and has been examined as PW8 before the trial court. This witness had no reason to record this statement otherwise than what exactly was disclosed by the accused. So, this is perfectly admissible in the evidence and the same has rightly been relied by the learned trial court.

15. I also do agree with the view of the trial court to hold the conviction of accused Daulat Chand. But taking into account the various papers like 11-Kha/2, 12-Kha, 13-Kha and 18-Kha, though not proved, but at least some impression can be gathered from those papers that at the time of commission of this incident the accused was probably in some mental disorder. So, I find it proper to change the conviction of the accused 6 appellant from the offence under Section 304 Part I IPC to Section 304 Part II IPC.

16. Resultantly, this Court convicts the accused appellant Daulat Chand under Section 304 Part II IPC. For the said offence, he is sentenced to undergo rigorous imprisonment for five years along with fine of rupees thirty thousand. In default of payment of fine, he shall further undergo two years(cid:146) rigorous imprisonment. However, it is made clear that the period during which the accused appellant remained jail during investigation, trial and appeal shall be adjusted in the above sentence after verifying the same for the records.

17. Thus, appeal is partly allowed. Impugned judgment and order dated 7.7.1999, passed by the Sessions Judge, Pithoragarh in Sessions Trial No. 33 of 1998, State v. Daulat Chand, is modified to the extent indicated above. Convict Daulat Chand is already in jail. He shall serve out the sentence as awarded above.

18. Let a copy of this judgment and order be sent to the trial court for its compliance. Lower court record be also sent back.

25.7.2012 Prabodh (Servesh Kumar Gupta, J.)