JUDGMENT Asthana, J. - This is an appeal by one Gopi who has been convicted by the learned Additional Sessions Judge of Kanpnr u/s 302, I.P. C. for committing the murder of his wife Srimati Mulia inside his house in village Dondiamau, P.S. Bhognipur, District Kanpur on the morning of the 22nd December, 1953 at about 7 a.m. and has been sentenced to death. The learned Sessions Judge has made the usual reference u/s 374 of the Code of Criminal Procedure for confirmation of the death sentence. 2. It appears that Srimati Mulia was a woman of loose character and had illicit connection with one Gaya Din Kurmi who was also living in the same village. There used to be frequent quarrels between the accused and Srimati Mulia on account of her immoral habits. About 10 days before the murder the accused had taken Srimati Mulia to the house of her parents and had left her there. She returned from there abdut four or five days after. On the night preceding the murder she disappeared from her house. She returned in the morning and there was a quarrel between her and the accused. The accused suspected that she had gone to the house of her peramour Gaya Din Kurmi and questioned her about it. She, however, denied the allegation and said that she had gone to her parents. During the quarrel the accused took out a Gandasa and struck several blows with it on her. She cried for help and on hearing her alarm Chhotey Lal Chowkidar, Gur Prasad Mukhia, Babu Ram, Puran, Malkhan and Ram Sarup went to her house. They saw the accused striking her with a Gandasa. On seeing them the accused gave the last Gandasa blow which severed her neck from her body. The accused was overpowered and the Gandasa was snatched from his hands. Gur Prasad Mukhia sent for another Chowkidar Jhunna and the accused along with Chhotey Lal and Jhunna Ghowkidars and the Gandasa which had been snatched from his hands was sent to P.S. Bhognipur which is at a distance of 10 miles from the place of occurrence. The first information report was made by ChoteyLal Chowkidar the sameday at 10 a.m. within three hours of the occurrence. The first information report was made by ChoteyLal Chowkidar the sameday at 10 a.m. within three hours of the occurrence. It was mentioned in the report that Srimati Mulia had illicit connection with Gaya Din Kurmi of the village and there used to be frequent quarrels on this account between the accused Gopi and his wife, and that there was also a quarrel over it that day preceding the murder. It was also mentioned in the report that Gur Prasad Mukhia, Babu Ram Kurmi, Punna Kumhar, Malkhe Kurmi and Ram Sarup Brahman and others of the village had reached the spot on hearing the hue and cry and saw the accused assaulting his wife. The accused along with the Gandasa which had been snatched from his hands was handed over at the police station. The clothes of the accused were blood stained and so they were taken off from his person and packed and sealed. The Gandasa was also stained with blood, and it was also packed and sealed. The accused was taken in custody and sent to the police lock-up. 3. After the report the Station Officer went to the house of the accused and found the dead body of Srimati Mulia lying inside a room in the house. Her clothes were blood stained and her neck was severed from the body. There was blood in the room is which the murder had been committed. The blood stained clothes on the dead body of Srimati Mulia were taken off and packed and sealed. The blood stained earth was also scraped and kept in a Handi and sealed. The inquest report of the dead body was prepared and thereafter is was sent for post-mortem examination. After the examination of several witnesses the accused was sent up for trial. 4. The accused in his statement before the Committing Magistrate denied that he had committed the murder. He, however, stated that somebody had killed his wife inside his house and that he came to know of it when he returned at night from the fields. He further stated that he informed everybody in the village about it and that the Sub-Inspector came later on and arrested him. He did not mention in his statement there at what time the Sub-Inspector came to arrest him. He further stated that he informed everybody in the village about it and that the Sub-Inspector came later on and arrested him. He did not mention in his statement there at what time the Sub-Inspector came to arrest him. He was asked as to why the case had been started against him and he stated that he did not know anything about it. In his statement before the sessions court he denied that his wife was of loose character or that she had illicit connection with Gaya Din of his village. He also denied that there was any quarrel between him and his wife either previously or on the day of the murder. He admitted that he had reached his wife to her parents' place ten days before the murder and that after that he saw her only when he found her murdered inside his house. He further stated that he had been implicated by the prosecution witnesses on account of enmity though he did not mention the nature of any enmity between him and any of the prosecution witnesses. 5. The post-mortem examination on the dead body of Srimati Mulia was performed on the 23rd December, 1953 at 4.30 p.m. The post-mortem report (Ex. P. 12) shows that the deceased had the following external injuries on her person: 1. Incised wound all round the neck 8 in. x 4 1/2 in. at the level of the upper moist part of the neck cutting the trachea, desophagus, both carotids and the vertebra at the level of the 2nd cervical vertebrae. The body of the vertebra is cut through and through. Spinal cord cut at the level. The head is separate from the body and sent along with the body. 2. Incised wound 2in. x 1/4in. x 1/4in. X 1 1/2 in. below injury No. 1. 3. Incised wound 3in. x 1/2in x 1/2 in. on the medical side of right arm middle. 6. The internal examination revealed that second cervical vertebrae was cut through and through, that the spinal cord was also cut, that the trachea was cut at the level of injury No 1 through and through that both sides of large vessels and common carotid arteries were cut and that the oespohague was also cut. 7. 6. The internal examination revealed that second cervical vertebrae was cut through and through, that the spinal cord was also cut, that the trachea was cut at the level of injury No 1 through and through that both sides of large vessels and common carotid arteries were cut and that the oespohague was also cut. 7. The death was due to haemorrhage and shock which was the result of the cutting of the head from the body as per injury No. 1. 8. It appears from the above medical evidence that the occurrence had taken place sometime in the morning of the 22nd December, 1953 considering the time which had elapsed between her death and the post-mortem examination. It also appears that whosoever inflicted the injuries did so with the intention of committing her murder which was instantaneous. 9. It is an admitted fact that the deceased Srimati Mulia was murdered inside the house of the accused. According to the statement of the accused he did not commit her murder but it was committed by someone else in his absence and that he discovered it only on his return at night from the fields. The accused in his statement said that he mentioned about the murder to a number of persons in the village. He, however, did not produce a single witness in his defence in support of this statement. His statement that the murder had been committed by someone before his return at night is also not supported by the medical evidence which has been referred to above. 10. The prosecution examined Chhotey Lal Chowkidar, Gur Prasad Mukhia, Babu Ram, Puran, Mulkhan and Ram Sarup in support of the case. They are all eye-witnesses of the occurrence. The learned Sessions Judge did not believe the evidence of Babu Ram. We therefore do not consider it necessary to discuss his evidence. It however, appears from a perusal of the judgment of the learned Sessions Judge that he admitted the statement of Babu Ram which he had made before the Committing Magistrate u/s 288, Code of Criminal Procedure probably because he thought that the statement which had been made by this witness before him was not a true statement and the statement which he had made in the court of the Committing Magistrate was a true statement. In spite of this fact he did not rely on the statement of this witness which had been made before the Committing Magistrate. We are of opinion that the statement of a witness before the Committing Magistrate can be admitted u/s 288, Code of Criminal Procedure as a substantive piece of evidence only when the Sessions Judge is of the opinion that the statement made by such a witness before him was not the true and correct statement and that made before the Committing Magistrate was a correct statement. Having admitted the statement of Babu Ram made before the Committing Magistrate u/s 288, Code of Criminal Procedure we do not think that the learned Sessions Judge was justified in discarding it on the ground that it was not a true and correct statement. * * * * 11. (After renewing, the entire prosecution evidence, their lordships proceeded to observe as follows.) 12. On a consideration of the entire prosecution evidence we are of opinion that the accused committed the murder of his wife Srimati Mulia and the reason for doing so was that she was immoral and had illicit connection with one Gaya Din Kurmi of the village. In the circumstances he has been rightly convicted u/s 302, I.P.C. 13. Coming now to the question of sentence we are of opinion that the circumstances in which the murder was committed do not call for the extreme penalty of law in the case. We think that the lesser sentence of transportation for life will meet the ends of justice in the present case. The accused is a cultivator and illiterate. His domestic life must have been unhappy on account of the illicit connection which his wife had with Gaya Din Kurmi of the village. He reprimanded her several times but she would not mend herself. There used to be frequent quarrels over it between them and the murder was committed during one of those quarrels. 14. We therefore dismiss this appeal with this modification that we maintain the conviction of the Appellant u/s 302, I.P.C. but we set aside the sentence of death passed upon him and in lieu of it we substitute the sentence of transportation for life. The reference is rejected.