M. CHAUDHARY, J. This is a jail appeal by accused appellant Rakesh Kumar from judgment and order dated 15th of May, 2000 passed by Ist Additional Sessions Judge, Kanpur Dehat in Sessions Trial No. 121 of 1998, State v. Rakesh Kumar Dwivedi, convicting the accused appellant under Section 302 IPC and sentencing him to imprisonment for life and a fine of Rs. 5000 thereunder. 2. Brief facts giving rise to this appeal are that at about 11. 20 a. m. on 13th of September, 1997 Ram Sewak lodged an FIR (Ext. Ka- 1) at police station Deorahat District Kanpur Dehat alleging that Rakesh Kumar Dwivedi used to suspect the fidelity of his wife Malti Devi and beat her now and then; that for the last 2-4 days dispute was going on between them; that at about 8. 00 a. m. that very morning Rakesh Kumar Dwivedi assaulted his wife causing fatal injuries to her and fled away and that the said incident was witnessed by several co-villagers including Laltu, the village Chaukidar. The police registered a crime under Section 307 IPC against the accused and made entry regarding registration of the crime in the general diary (Exts. Ka-2 and Ka-3 ). 3. Station Officer Satish Chand Dubey who took up investigation of the case in his hand visited the scene of occurrence and by that time Smt. Malti Devi succumbed to the fatal injuries sustained by her, and then the crime was altered under Section 302 IPC (Ext. Ka-4 ). He drew inquest proceedings on the dead body of Smt. Malti Devi and prepared the inquest report (Ext. Ka-7) and other necessary papers (Exts. Ka-8 to Ka-12) and entrusted the dead body in a sealed cover alongwith the necessary papers to constables Ashok Kumar and Jawahar Lal to be taken for its post- mortem. Then he inspected the place of occurrence and prepared its site plan map (Ext. Ka-6 ). He collected bloodstained and simple earth from the site and also picked up bloodstained axe lying there and prepared their memos (Exts. Ka-13 and Ka-14 ). He also recorded statements of the witnesses and did other necessary things. 4. Autopsy conducted on the dead body of Malti Devi by Dr. N. K. Jaiswal Radiologist UHM Hospital Kanpur on 14th of September, 1997 at about 11. Ka-13 and Ka-14 ). He also recorded statements of the witnesses and did other necessary things. 4. Autopsy conducted on the dead body of Malti Devi by Dr. N. K. Jaiswal Radiologist UHM Hospital Kanpur on 14th of September, 1997 at about 11. 10 a. m. revealed an ante-mortem incised wound 9 cm x 3 cm x bone cut (second cervical vertebrae) on upper part right side of neck 1 cm below the right ear (right ear lobule also cut ). All structure muscles, artery and veins, nerve and bones were cut on right side of neck. 5. On an internal examination brain and its membrances were pale. The stomach contained 6 ounce watery fluid, small intestine half full with gases and large intestine contained faecal matter and gases. Gall bladder, spleen and kidneys were pale. The doctor opined that the death was caused due to haemorrhage and shock as a result of ante mortem injury about one day ago. 6. After completing the investigation the police submitted charge-sheet against the accused accordingly (Ext. Ka-18 ). 7. Blood stained earth and clothes of the deceased and the blood stained axe were got sent by the Investigating Officer to Forensic Science Laboratory U. P. Lucknow for serologists opinion if they contained human blood and if so of which blood group. A perusal of the Serologists report goes to show that blood or clothes of the deceased contained human blood and blood stains on the axe and earth were found disintegrated. 8. After framing of charge against the accused the prosecution examined Ram Sewak (PW 1), Laltoo (PW 2), Satish Kumar Dwivedi (PW 3) and Smt. Rajeshwari (PW 4) in its support. Testimony of the remaining witnesses examined by the prosecution is more or less of formal nature. PW 5 HC Abu Bux Khan who prepared check report on the basis of the written report handed over at the police station and made entry regarding registration of the crime in the general diary has proved these papers (Exts. Ka-2 and Ka- 3 ). He also proved the entry regarding alteration of the crime under Section 302 IPC (Ext. Ka-4 ). PW 6 Dr. N. K. Jaiswal Radiologist UHM Hospital Kanpur who conducted autopsy on the dead body of Smt. Malti Devi on 14th of September, 1997 at about 11. 10 a. m. has proved the post-mortem report (Ext. Ka-5 ). He also proved the entry regarding alteration of the crime under Section 302 IPC (Ext. Ka-4 ). PW 6 Dr. N. K. Jaiswal Radiologist UHM Hospital Kanpur who conducted autopsy on the dead body of Smt. Malti Devi on 14th of September, 1997 at about 11. 10 a. m. has proved the post-mortem report (Ext. Ka-5 ). PW 7 SI Satish Chand Dubey who investigated the crime and submitted charge-sheet against the accused has proved the police papers. 9. The accused pleaded not guilty denying the alleged occurrence altogether and stating that he has been got implicated in the case falsely due to enmity. He also stated that that morning he himself cooked food and after serving food to his children at about 7. 00 a. m. he had gone to village Pukhrayan. 10. On an appraisal of the evidence on record and hearing the parties counsel the learned Additional Sessions Judge found the accused guilty of the charge levelled against him convicting him under Section 302 IPC and sentencing him thereunder as stated above. 11. Feeling aggrieved by the impugned judgment and order the accused preferred this appeal for redress. 12. We have heard Shri Rajeev Sharma learned Amicus Curiae for the appellant and the learned AGA for the State. 13. The fact that Smt. Malti Devi was done to death by giving fatal blow at her neck at the alleged time and place is not disputed. Now the only question to be decided is if she was done to death by accused Rakesh Kumar with the axe. For that the prosecution has relied upon the following circumstances: (i) Malti Devi, wife of the accused was ill and bed ridden at the time of the incident and some dispute was going on between accused Rakesh Kumar and his wife Malti Devi for the last 2-3 days as he was upbraiding her casting aspersion on her chastity. (ii) Conduct of the accused appellant before and after the occurrence that he was sharpening the blade of axe in the morning before the murder of Malti and left the home immediately after her murder and did not return back home thereafter. (iii) Soon after the murderous assault Malti Devi, the victim told to her son Satish Kumar that she was given the fatal blow by her husband Rakesh Kumar. 14. (iii) Soon after the murderous assault Malti Devi, the victim told to her son Satish Kumar that she was given the fatal blow by her husband Rakesh Kumar. 14. Now taking up the first circumstance, PW 1 Ram Sewak the first informant stated in his examination- in-chief that Rakesh Kumar used to upbraid his wife as he doubted her fidelity casting aspersion on her chastity and beat her and that for the last 2-4 days dispute was going to between them; that at about 8. 00 a. m. the alleged morning he was sitting at his shop situate near the house of Rakesh Kumar that hearing the shrieks of the mother of Rakesh Kumar that her daughter-in-law was done to death he went at the house of Rakesh Kumar and saw that Smt. Malti Devi was lying injured on a cot near the door of her angan and a blood stained axe was lying near the cot; that immediately thereafter Laltu Chaukidar also reached there and then he accompanied with Laltu went to the police station and lodged a report of the said occurrence with the police there. PW 2 Laltu, the village Chaukidar corroborated him stating likewise deposing that accused Rakesh Kumar used to beat his wife now and then casting aspersion on her chastity and that he had asked him not to beat her; that at about 8. 00 a. m. the alleged morning on hearing about the murderous assault at Malti Devi he went at the house of Rakesh Kumar and saw Malti Devi lying injured on a cot. He has not been cross-examined at all on the point. PW 3 Satish Kumar, son of the deceased also stated that his father used to beat his mother with dandas. PW 1 Ram Sewak and PW 3 Satish Kumar both were cross-examined but nothing useful to the accused could be elicited therefrom. Hence we are of the opinion that all these facts go to establish that Rakesh Kumar had suspicion in his mind regarding fidelity of his wife and that constituted sufficient motive for committing the murder of his wife Malti Devi. 15. Hence we are of the opinion that all these facts go to establish that Rakesh Kumar had suspicion in his mind regarding fidelity of his wife and that constituted sufficient motive for committing the murder of his wife Malti Devi. 15. Taking up the second circumstance, PW 3 Satish Kumar son of the deceased stated that that fateful day in the morning he kneaded flour for cooking parathas and thereafter his mother asked him to leave the goats near the pond and that then he went taking the goats and at that time his father Rakesh Kumar was sharpening blade of the axe; that soon thereafter he learnt at the pond from Shiv Pal son of Ananti that his father caused fatal injury to his mother and fled away and that immediately he rushed back to his house and reaching at his house he saw his mother lying on the cot with cut injury at her neck. He further stated that his father did not return back home thereafter. A perusal of the record goes to show that proceedings under Sections 87 and 88 of the Code of Criminal Procedure had to be resorted to for procuring the presence of the accused. Hence there must have been compelling circumstances that Rakesh Kumar did not return back home leaving his little children unattended. Thus the conduct of the appellant before and after the occurrence led to an illation of his guilt. 16. Now taking up the third circumstance, PW 3 Satish Kumar son of the deceased stated that when after receiving the information about the murderous assault at his mother by his father he rushed back to his house he saw his mother having received fatal injury at her neck and she told him that she was assaulted and given fatal injury with the axe by the dushman and that she was calling his father as dushman and that she died a little while thereafter. The appellants learned counsel contended that after receiving the fatal injury at her neck she would not have been in a position to speak. Dr. N. K. Jaiswal who conducted autopsy on the dead body stated in his cross- examination that it might be that after receiving the injury she might not be able to speak. The appellants learned counsel contended that after receiving the fatal injury at her neck she would not have been in a position to speak. Dr. N. K. Jaiswal who conducted autopsy on the dead body stated in his cross- examination that it might be that after receiving the injury she might not be able to speak. The said opinion of the doctor cannot be held to be conclusive on the question of the ability of the deceased to speak immediately after the occurrence because a perusal of the post-mortem report goes to show that though Smt. Malti sustained ante-mortem incised wound at her neck but larynx and trachea were intact. The medical witness stated that she would not have died immediately on receiving the injury and would have remained alive for 5- 10 minutes thereafter. Further, PW 4 Smt. Rajeshwari, mother-in-law of the deceased stated in her examination-in-chief that on receiving the information about the said incident she went to her daughter-in-law Malti and she told that she was about to die retreating her for her life and that thereon she went out for making some arrangement for bullock-cart but after a little while she succumbed to the injury sustained by her. PW 3 Satish Kumar who is a child witness withstood the test of cross- examination firmly and nothing could come out to render his testimony doubtful on the point. Before recording his statement the learned Additional Sessions Judge took the precaution of examining and finding out his capability to depose; and on a scrutiny also his deposition indicates that though he was 12-13 years of age yet had sufficient maturity to depose as to what he saw and perceived. Nothing has been brought in his cross-examination to impeach his testimony. The said statement made by the victim to her son immediately after the occurrence in the nature of dying declaration appears to be true and reliable having been made voluntarily. 17. Since homicidal death of Malti Devi is established then taken in conjunction with the circumstances aforesaid particularly that at or about the time of murderous assault at Malti Devi no third person excepting the accused and deceased were present in the house it inescapably leads to the conclusion that in all probability it was the accused and none else who murdered the deceased. 18. 18. Thus the above circumstances taken cumulatively unerringly unfailingly and unshakably proved that the accused alone was the perpetrator of this heinous crime of murder and none else. We find ourselves in complete agreement with the findings recorded by the learned trial Judge against the accused appellant. The appeal is devoid of any substance and is liable to the dismissed. 19. The appeal is hereby dismissed. Conviction of the accused appellant under Section 302 IPC and sentence of imprisonment for life and a fine of Rs. 5000. 00 thereunder are maintained. The accused is in jail. He shall serve out the sentence awarded to him by the Court below. 20. Certified copy of the judgment and record of the case be transmitted to the Court below immediately for necessary compliance under intimation to this Court within two months from today. Appeal dismissed. .