JUDGMENT Per: U.C. Dhyani, J. One Inder Singh Negi wrote a complaint to Patti Patwari, Malli Kutoli, Tehsil and District Nainital, on 18.11.2003, regarding the killing of his younger brother Govind Singh. 2. According to the informant Inder Singh Negi, on 17.11.2003, at 7:30 p.m., his younger brother Govind Singh was killed by the fellow-villager Kishan Singh alias Actor s/o late Padam Singh. The accused-appellant killed the victim with an axe. Inder Singh Negi and the villagers found bloodstains in the house of Kishan Singh. While tracing blood trail, informant and the villagers found the dead body of Govind Singh in the bush, below the house of Kishan Singh. Chik FIR was lodged with the Revenue Police on 18.11.2003, at 2:00 p.m. There appeared to be no delay in lodging the first information report. 3. On the basis of said first information report, which was registered as case crime no. 06/2003, under Sections 302/201 IPC in Patti Malli Kutoli, Nainital, the investigation began. PW7 Anand Singh Bisht started investigation on 20.11.2003. He took the statements of PW 1 Motima Devi and PW2 Inder Singh Negi on 21.11.2003. PW7 affected the arrest of accused Kishan Singh on 27.11.2003. PW7 recorded the statements of PW5 Harish Chandra Singh, PW 6 Har Singh, Rasooli Devi, Asha Devi, Kishan Singh and Shambhu Dutt on 28.11.2003. He took the statement of PW3 Sunder Singh on 03.12.2003 and statement of PW 4 Rajendra Singh on 07.12.2003. On 09.12.2003, PW7 took the statements of Dinesh Singh and Dan Singh. On 03.12.2003, he recorded the statements of Virendra Singh, Pushpa Devi and Batuli Devi. On 14.12.2003, he took statement of Pushkar Singh. On 30.12.2003, PW7 recorded the statements of PW8 Kevlanand Tiwari (Patwari) and Jai Chand (Naib Tehsildar). After completing investigation, PW 7 submitted charge-sheet (Ext. Ka-5) against the accused Kishan Singh for the offences punishable under Sections 302/201 IPC on 06.01.2004. The statement of PW 1 Smt. Motima Devi was also got recorded under Section 164 Cr.P.C. 4. When the trial began and prosecution opened it’s case, charges for the offences punishable under Sections 302/201 IPC were framed against the accused Kishan Singh, to which he pleaded not guilty and claimed trial. The statement of PW 1 Smt. Motima Devi was also got recorded under Section 164 Cr.P.C. 4. When the trial began and prosecution opened it’s case, charges for the offences punishable under Sections 302/201 IPC were framed against the accused Kishan Singh, to which he pleaded not guilty and claimed trial. As many as 10 prosecution witnesses, namely, PW1 Motima Devi, PW2 Inder Singh Negi, PW 3 Sunder Singh, PW 4 Rajendra Singh, PW5 Harish Chandra, PW 6 Har Singh, PW 7 Anand Singh Bisht, PW 8 Kevlanand Tiwari, PW9 Dr. Sanjay Gupta and PW10 Mahendra Kumar Joshi were examined on behalf of prosecution. Incriminating evidence was put to the accused under Section 313 Cr.P.C., in which he denied the allegations and said that he was falsely implicated in the case. No evidence was given in defence. After considering the evidence on record, learned trial court convicted accused-appellant Kishan Singh alias Actor for the offences punishable under Sections 302 IPC and 201 IPC. He was sentenced to undergo imprisonment for life and a fine of Rs. 10,000/- in connection with the offence punishable under Section 302 IPC. He was sentenced to undergo rigorous imprisonment for five years and a fine of Rs. 5,000/- in connection with offence punishable under Section 201 IPC. Aggrieved against the order of conviction and sentence, present criminal appeal was preferred. 5. When the postmortem on the dead body of the deceased was conducted by the Medical Officer PW 9 Dr. Sanjay Gupta, he found the following ante-mortem injuries on victim’s dead body: i. Lacerated wound with bruised edges, size 2’ x ½’ placed transversely over left cheek extending from bone of left ear forwards & downwards obliquely. Blood clots present. Muscles exposed and bone fractured underneath it. ii. Lacerated wound with bruised edges, size 3 ’x ½’ present over left occipital parietal region (behind left ear). Placed transversely. Blood clots present underlying bone fractured and brain matter coming out of wound. iii. Lacerated wound with bruised edges, 3 ½ ’x ½’ present over left parietal region. Directed transversely about 1 ½’ above injury no. 2. blood clots present underlying bone fractured and brain matter coming out of wound. The Medical Officer, who prepared the post-mortem report (Ext. Ka- 16), opined that the cause of death of victim was shock and haemorrhage due to ante-mortem wounds. 6. Directed transversely about 1 ½’ above injury no. 2. blood clots present underlying bone fractured and brain matter coming out of wound. The Medical Officer, who prepared the post-mortem report (Ext. Ka- 16), opined that the cause of death of victim was shock and haemorrhage due to ante-mortem wounds. 6. PW 1 Motima Devi, in her examination-in-chief, said that the accused-appellant Kishan Singh was her husband. She did not know whether her husband Kishan Singh and victim Govind Singh came to her house on 17.11.2003, as she was not present at her home. She did not see the killing of victim by the appellant. She was declared hostile. In her cross-examination by learned DGC (criminal), PW 1 denied that she was telling a lie in order to save her husband. She also denied having given her statement under Section 164 Cr.P.C. on 29.11.2003 before learned Special Judicial Magistrate, Nainital. She was confronted with her statement under section 164 Cr.P.C. (Ext. Ka-17) recorded on 29.11.2003. Although she admitted her thumb impression on Ext. Ka-17, but said that her thumb impression was got affixed forcibly. She denied the suggestion that she was telling a lie in order to save her husband. She also said that Patwari was standing inside the chamber of Magistrate, who recorded her statement. 7. The statement of Smt. Motima Devi, recorded under Section 164 Cr.P.C., is reproduced herein below for ready reference : “She said that about 13 days ago at 7:00 p.m., Govind Singh and Kishan Singh, both were drunk. They came to her residence. Govind Singh asked her to cook chicken and prepare rotis (bread). She cooked chicken. She was about to prepare rotis. Her husband (Kishan Singh), who was drunk, came with an axe. He wanted to kill her. Govind Singh intervened. When Govind Singh intercepted, her husband (Kishan Singh) killed him with the axe. She ran away from the home after witnessing the killing. During night, She remained with her one year old child in the jungle. In the morning, she saw that Govind Singh was dead. She did not make any noise (did not utter a single word to any body). She cleansed her house. She did not see her husband thereafter. She did not know as to where he has gone. Deceased Govind Singh had no enmity with Kishan Singh. In the morning, she saw that Govind Singh was dead. She did not make any noise (did not utter a single word to any body). She cleansed her house. She did not see her husband thereafter. She did not know as to where he has gone. Deceased Govind Singh had no enmity with Kishan Singh. Both were fast friends and both of them used to drink together” [Note: the above is not the exact transliteration of the statement of the deponent. The same only conveys the meaning.] 8. Learned counsel for the respondent wanted us to accept the statement of Motima Devi, which was recorded under section 164 Cr.P.C. Learned counsel for the accused-appellant correctly held out, that even if the said statement is accepted, the same cannot, alone, be the sole basis of conviction. The statement, if accepted, can only, at the best, help the court to reconfirm its conviction that the crime, as alleged, stands otherwise proved to the hilt. Our endeavour would be to ascertain whether the prosecution has been able to independently prove commission of offence punishable under Section 302 IPC and Section 201 IPC against the accused-appellant or not. 9. PW2 Inder Singh Negi, who was the brother of victim, said that on 17.11.2003, his brother Govind Singh went somewhere in the morning. Victim told PW 2 that he would be going to extend invitation to one Kanhaia Singh. PW2 came to know that although Govind Singh came back to the village at 6:30 p.m., but he did not return at home. PW2 enquired from the villagers about the victim. The villagers saw the appellant roaming around in the village with stick and torch. Accused-appellant Kishan Singh told the villagers that somebody consumed poison and died in his house. Later on, PW2 and other villagers found that the dead body of Govind Singh was lying in the bush adjoining the house of Kishan Singh. PW2 called Patwari, who found bloodstains in the house of Kishan Singh. PW1 Motima Devi handed over the jacket, shoes of the deceased and blood stained axe to the Patwari. PW2 also said that he wrote the complaint (Ext. Ka-1) and inquest report was also prepared. 10. PW 8 Kevalanand Tiwari (Patwari) proved chik FIR (Ext. Ka-7) and copy of G.D. (Ext. Ka-8). PW 8 also prepared inquest report (Ext. Ka-2) and other papers relating thereto. PW2 also said that he wrote the complaint (Ext. Ka-1) and inquest report was also prepared. 10. PW 8 Kevalanand Tiwari (Patwari) proved chik FIR (Ext. Ka-7) and copy of G.D. (Ext. Ka-8). PW 8 also prepared inquest report (Ext. Ka-2) and other papers relating thereto. PW1 Motima Devi gave blood stained axe used by her husband to PW8, a recovery memo (Ext. Ka-3) whereof was prepared. Recovery memo (Ext. Ka-4) of wearing apparels of the victim was also prepared. Blood stained soil and simple soil were also taken, a memo (Ext. Ka-4) whereof was also prepared. PW8 also proved site plan (Ext. Ka-4). He also proved blood stained axe (Mat. Ext. -1), wearing apparels (Mat. Exts. 2, 3 & 4) of the victim, memo (Ext. Ka- 15) whereof was prepared. PW8 sent the dead body of the victim for postmortem. The remaining investigation was conducted by PW7. 11. PW 3 Sunder Singh found Kishan Singh roaming around in the village on 17.11.2003 at 8:00 p.m. He was drunk. When PW3 enquired from him, the appellant said that a person was lying unconscious near the temple. The appellant also disclosed to PW3 that he made extra judicial confession to some of the villagers regarding the killing of the victim. PW3 also said that PW1 Motima Devi gave some clothes and axe to the Patwari. PW3 also found bloodstains in the house of the appellant. 12. PW4 Rajendra Singh was also a witness of extra judicial confession. He said that the appellant confessed before him and other villagers that he has killed Govind Singh. We do not place much reliance on the extra judicial confession because of its weak evidentiary value. PW 4 was also a signatory to the inquest report (Ext. Ka-2). He was also a witness to the recovery memo (Ext. Ka-3) of murder weapon (axe). 13. PW5 Harish Chandra Singh wrote the complaint (Ext. Ka-1) on the dictation of PW2 Inder Singh Negi. Appellant Kishan Singh made an extra judicial confession before the villagers including PW5. PW7 Har Singh said, among other things, that the dead body of Govind Singh was found near the house of appellant Kishan Singh. 14. PW10 Mahendra Kumar Joshi, the then Special Judicial Magistrate, Nainital recorded the statement under Section 164 Cr.P.C. of PW1 Smt. Motima Devi, who was brought by PW7 on 29.11.2003. PW7 Har Singh said, among other things, that the dead body of Govind Singh was found near the house of appellant Kishan Singh. 14. PW10 Mahendra Kumar Joshi, the then Special Judicial Magistrate, Nainital recorded the statement under Section 164 Cr.P.C. of PW1 Smt. Motima Devi, who was brought by PW7 on 29.11.2003. PW10 ensured that PW1 Smt. Motima Devi was not under any pressure. PW10 forewarned PW1 that she was not bound to give the statement. When PW10 volunteered to give the statement, only then PW10 recorded the statement of PW1. The statement was read over to PW1. PW1 put her thumb impression thereafter. PW10 stated that when the statement of PW1 Motima Devi was recorded, she was all alone with PW10 in his chamber. PW10 proved the statement under Section 164 Cr. P.C. (Ext. Ka-17) and also said that the Patwari was not permitted to remain inside the chamber. PW10 was cross-examined on behalf of the accused-appellant, but no infirmity was found in the evidence of PW10. 15. PW2 Inder Singh Negi said that when he went to appellant’s house along with Patwari (PW8), bloodstains were found lying in the house of the appellant. Appellant’s wife gave certain wearing apparels of the victim to patwari. She also gave a blood stained axe to patwari. PW 8 Kevlanand Tiwari, patwari corroborated the statement of PW 2 and said that appellant’s wife gave him (PW8) a blood stained axe. Needless to say that the bloodstained axe and wearing apparels of the victim were found in and around the house of the appellant. Recovery memo (Ext. Ka-4) of bloodstained soil indicated that there was blood trail in the courtyard, which blood trail was also present on the way leading to the place where dead body was found. It has come in the evidence of PW2 that the dead body of victim was lying in the bush adjacent to the house of appellant. 16. Thus, blood trail was found by PW2 and PW8 leading to the place, where the dead body of victim was lying. Such place was adjacent to the house of appellant. There were only two people residing in the said house - one was the appellant, who said nothing about the blood trail in response to question no. 16. Thus, blood trail was found by PW2 and PW8 leading to the place, where the dead body of victim was lying. Such place was adjacent to the house of appellant. There were only two people residing in the said house - one was the appellant, who said nothing about the blood trail in response to question no. 12 in statement under Section 313 Cr.P.C., and the other was - PW1 Motima Devi, who said something regarding the incident in her statement under Section 164 Cr.P.C. Motima Devi retracted her statement in the Court, which she was entitled to. Since there were only two people residing in the house, in the immediate vicinity of which, the dead body of victim was found, the appellant and his wife owed a responsibility to explain the circumstances in which the bloodstains along with trail were found in their house, which led to the place, where the dead body of victim was found. As has been said above that though Motima Devi said something about the incident, but the appellant did not explain, among other things, as to how the dead body of victim was found adjacent to his house. In the circumstances, there is one and the only conclusion that the accused-appellant committed the murder of victim. 17. Taking into account the facts as above, which stand the test of scrutiny and established by evidence, there is irresistible conclusion, as we find, that the appellant committed the homicide of victim and accordingly, the appreciation of evidence by the court below is not inteferable. In view of such conclusion, it is not necessary for us to go into the question whether statement of PW1 Motima Devi, recorded under Section 164 Cr.P.C., was legally recorded or not. 18. Learned trial court was quite elaborate in it’s discussion while coming to a conclusion that the prosecution was able to prove it’s story beyond reasonable doubt. We hold that the evidence was correctly appreciated by the court below. 19. Learned counsel for the appellant submitted that the crime committed by the appellant did not fall within the ambit of offence punishable under Section 302 IPC, instead the same was covered by Section 304 IPC. We do agree with the contention of learned counsel for the appellant to the extent that the charge of homicide, and not the charge of murder, was proved against the appellant. We do agree with the contention of learned counsel for the appellant to the extent that the charge of homicide, and not the charge of murder, was proved against the appellant. The first blow of the axe was used by the appellant on his wife, which was intercepted by the victim. While inflicting first injury there might not be the intention on the part of the appellant to cause death, but when second and third blows were inflicted by the appellant, both on the head of the victim, there was intention on the part of the appellant to cause death, or to cause such bodily injury as was likely to cause death of the victim and, therefore, an offence punishable under Section 304 Para I IPC (or Part I IPC) was proved against the appellant beyond reasonable doubt. (It has been held by the Hon’ble Supreme Court in catena of rulings that when direct evidence is there, the motive goes into oblivion). We do not agree with the argument of learned counsel for the appellant that the offence complained of against the accused-appellant was covered by Section 304 Para II IPC because of the reason mentioned as above. 20. The logical deduction, on the basis of the above facts and circumstances, would be that a case of culpable homicide not amounting to murder punishable under Section 304 Para I IPC, and not a case of murder punishable under Section 302 IPC is made out against the appellant. 21. Thus, we hold that the learned trial court has correctly appreciated the evidence but it’s conclusion about holding the appellant guilty of offence punishable under Section 302 IPC is incorrect. The conviction recorded by the trial court against the appellant in respect of offence punishable under Section 302 IPC is therefore, set aside. Instead, the appellant is convicted of the offence punishable under Section 304 Para I IPC. So far as the quantum of punishment is concerned, keeping in view the facts and circumstances of the case, we direct that the appellant be awarded imprisonment for life with a fine of Rs. 10,000/-, which was imposed by learned court below. His conviction for the offence punishable under Section 201 IPC is also maintained. 22. Earlier the appellant Kishan Singh was on bail. 10,000/-, which was imposed by learned court below. His conviction for the offence punishable under Section 201 IPC is also maintained. 22. Earlier the appellant Kishan Singh was on bail. Later on his bail was cancelled and the appellant was directed to be taken in custody, vide order dated 17.10.20 12 of this Court. The Registry submitted a report to the effect that NBW, which was issued against the appellant, could not be executed due to his non-availability at the given address. The convict-appellant is therefore, directed to surrender before the Court concerned to serve out the sentence as above. 23. A copy of the judgment and order be sent to the court below to make the appellant serve out the sentence. Lower court record be sent back.