JUDGMENT Hon’ble Ravindra Nath Kakkar, J.—This appeal has been preferred against the judgment and order dated 13.4.2005 passed by the Additional Sessions Judge, Court No. 8, Kanpur Dehat in S.T.No. 556 of 2003 arising out of Case Crime No. 108 of 2003, State v. Naresh Raidas, convicting the appellant under Section 304 and 201 I.P.C. and sentencing him under Section 304 IPC rigorous life imprisonment with fine of Rs. 3000/- and under Section 201 IPC 3 years rigours imprisonment with a fine of Rs. 2000/- and in default of payment of fine to undergo additional imprisonment for two years. All the sentences were to run concurrently. 2. The prosecution case, in brief, is that on 15.9.2003 Kallu gave a written script to the police stating that he is chowkidar of the village Shahjahanpur; he heard people of village Marua Shahjahanpur saying that Naresh Raidas of the village quarrelled with his wife Nanhi Devi on the intervening night of 11/12.9.2003 and started beating her badly which resulted in her death, thereafter he dug a pit in a room of his muddy dilapidated house and burried the dead body in the pit and since then neither he nor his wife was seen in the village. Based on the written report (Ex. Ka-1) original chick of First Information Report (Ex. Ka-2) was lodged in police station and its entry in GD is Ex.Ka-3. On receiving the report Investigating Officer rushed to the place of occurrence and informed the Sub Divisional Magistrate of the dead body that was laid underneath the mud house thereby requesting him to send an official in whose presence the body may be unearthed. In the presence of Rajesh Kumar, Naib Tehsildar Bhognipur the dead body was dug out and a Panchayatnama (Ex. Ka-7) was prepared. The Naib Tehsildar got a letter prepared addressed to the Chief Medical Officer, Kanpur Dehat that was Ex. Ka-8 and the dead body was sent for post-mortem examination. The Investigating Officer thereafter investigated the matter and submitted charge-sheet (Ex. Ka-6) against the accused appellant under Sections 304 and 201 IPC to the Court. The learned Chief Judicial Magistrate took cognizance on the charge-sheet and committed the case to sessions Court for trial of accused. Thereafter, charges were framed by the trial Court against the accused under Sections 304 and 201 IPC. The accused denied charges and claimed trial. 3. Ka-6) against the accused appellant under Sections 304 and 201 IPC to the Court. The learned Chief Judicial Magistrate took cognizance on the charge-sheet and committed the case to sessions Court for trial of accused. Thereafter, charges were framed by the trial Court against the accused under Sections 304 and 201 IPC. The accused denied charges and claimed trial. 3. To prove its case the prosecution examined PW-1 Kallu, PW-2 Prakash, PW-3 Ganga Ram, PW-4 Rajendra, PW-5 Radheshyam, PW-6 Prem Babu, PW-7 Dr. Arun Agrawal, PW-8 B.S. Ponia, Sub Inspector and PW-9 Rajesh, Kumar, Naib Tehsildar, Bhognipur Kanpur Dehat and original written letter Ex.Ka13 alongwith photograph of the deceased and paper cuttings, paper No. 16-Ka and 17 Ka-1 to 17 Ka-4 were produced from prosecution side. 4. After the close of prosecution evidence, statements of the accused appellant under Section 313 Cr.P.C. were recorded by the trial Court in which he admitted to have married to Nanhi Devi and birth of the children but denied the incident. He said that two days before the fateful day he had gone to Chandeli ka Nagla, District Etawah to attend funeral of his sister’s demised maternal father-in-law. He stated that his wife was alone in the house as his parents were living separately and his children were living with him. Due to rain the roof had fallen on his wife and she succumbed to her injuries. He further stated that his brother-in-law (Sadu) Radheyshyam had taken Rs. 25000/- from him and when the money was demanded, he got me falsely implicated in this case. However, no evidence was led by the appellant in his defence. 5. PW-1 Kallu stated that he dictated the script to one Mister and put his thumb impression after it was read over to him. He further stated that he knew accused Naresh Raidas who was present in the Court. He recollected that it was the incident of 11/12 September 2003 and the villagers told him that Naresh was beating his wife but he did not find Naresh on reaching his house and when the accused or his wife had not been seen for two-three days, the report was lodged at the police station. 6. PW-2 Prakash stated that he knew the accused who had killed his wife Nanhi Devi.. 6. PW-2 Prakash stated that he knew the accused who had killed his wife Nanhi Devi.. He heard the villagers saying that both Naresh and his wife used to often quarrel and therefore he had killed his wife. He went to police station with Kallu where large number of villagers were present. He further stated that the Tehsildar and the Station House Officer took them to the house of Naresh, they dug the place and brought the dead body out which was swollen and bad smell was coming out of it. 7. PW-3 Ganga Ram, who is brother of deceased Nanhi, stated that his sister was married to accused Naresh Raidas about 11 years ago and out of the wedlock three children were born. Naresh became alcoholic and fell prey to gambling after his marriage and lost almost all household belongings in gamble and used to beat his sister and when she resisted he beat her badly and thereafter he alongwith his brother-in-law Radheyshyam had gone to his house and Naresh had promised not to repeat such acts in future and gave it in writing. He also stated that he came to know about his sister’s death from newspapers and then he came to the house of Radheyshyam, who is his brother-in-law and a teacher. The accused also came there and admitted that he had killed his wife (deceased) on suspicion of her having illicit relations with one Balbir and afraid of being apprehended, he had concealed the dead body after digging out a pit in a room of his mud house and requested to save him from the police. 8. PW-4 Rajendar who is resident of the same village stated in his evidence that he knew the accused as well as the deceased Nanhi Devi and the panchayatnama of the dead body was prepared before him and he has signed on it alongwith Jodha Lal, Lakshmi, Bhagwati Prasad Katiyar, Surendra Prasad Rai. The witness has also verified his signatures on the panchayatnama. 9. PW-5 Radheyshyam in his evidence reiterated the same story as was stated by PW-3 Ganga Ram in his evidence. He said that on receiving the news of his sister’s death, Ganga Ram came to his house on 18.9.2003 and informed about the death of his sister. The witness has also verified his signatures on the panchayatnama. 9. PW-5 Radheyshyam in his evidence reiterated the same story as was stated by PW-3 Ganga Ram in his evidence. He said that on receiving the news of his sister’s death, Ganga Ram came to his house on 18.9.2003 and informed about the death of his sister. PW-5 in his evidence said that the deceased Nanhi was married to Naresh Raidas in the year 1990 and the marriage was solemnized by him at his own residence because the father of the deceased had died. He further stated that three children were born out of their wedlock. After his marriage Naresh used to drink and beat his wife and became a gambler. This witness also showed a picture of the deceased in which she had plaster in her both hands because the accused had beaten her badly in a state of drunkenness. 10. PW-6 Constable Ram Babu stated in his evidence that on 15.9.2003 he had registered the F.I.R. (Ex. Ka2) on the basis of script given by the informant which was disclosed at Report No. 14, its carbon copy is Ex.Ka-3. 11. PW-7 Dr. Arun Kumar Agrawal who was Medical Officer posted at P.H.C. Vidhanu, Kanpur Nagar had conducted the post-mortem examination of the deceased. He stated in his evidence that on 16.9.2003 he had conducted the post-mortem examination of the deceased Nanhi, wife of Naresh. The deceased was brought by Constable Subhash Singh and Constable Ram Chandar. P.W.7 Dr. Arun Kumar Agrawal proved the post moretm report Ext. Ka-4 before the trial Court and stated that following ante moretm injuries were found on the body of the deceased : 1. 12 x 6 c.m. bluish mark on the upper and external side of right hand and 7 c.m. bluish mark on elbow of right hand. 2. 30 x 6 c.m. bluish mark on upper side and elbow of left hand 3. 8 x 3 c.m. bluish mark on external side of left thigh which was 17 c.m. before the left knee 4. 35 x 18 c.m. small bluish mark on the left side of chest 5. 2 x 1 c.m. rupture mark on the left side of head which was 7 c.m. away from left ear. 12. 8 x 3 c.m. bluish mark on external side of left thigh which was 17 c.m. before the left knee 4. 35 x 18 c.m. small bluish mark on the left side of chest 5. 2 x 1 c.m. rupture mark on the left side of head which was 7 c.m. away from left ear. 12. He also stated in his examination that if the dead body is burried beneath the earth and taken out, there is possibility of the soil wrapped on the dead body. He further stated that there was no rigor mortis present. The doctor has opined as under: ^^e`R;q ds ckn dh vdM~u gkFk iSjksa ls tk pqdh Fkh] vka[ks ckgj fudyh Fkh] eqWag [kqyk Fkk] isV Qwyk FkkA lj ds Åij cky vkSj [kky ugha FkhA iwjs 'kjhj ij feV~Vh Fkh nkar vkSj uk[kwu <hys Fks vkSj [kky mrj xbZ Fkh k cka;h iSjkbVy gM~Mh VwVh gqbZ Fkh] fnekx dh f>fYy;ka QVh gqbZ Fkh rFkk fnekx] nzo o [kwu ls feyk gqvk FkkA e`rdk dh e`R;q dk dkj.k flj ij pksVks ds dkj.k mRiUu dksek Fkk vkSj e`R;q iksLVekVZe djus ds pkj fnu igys gqbZ FkhA ;fn 'kjhj dks tehu esa xkM fn;k tk;s vkSj ckn esa mldks fudkyk tk;s rks 'kjhj ij feV~Vh yxh jguk lEHko gSA 13. P.W.8 the Investigating Officer proved site plan and inquest report and after completion of the investigation filed a charge-sheet Ext. Ka6. P.W.9 - Rajesh Kumar is Naib Tehsildar who stated before the trial Court that on the orders of the Sub-Divisional Magistrate he visited the spot and in his presence the body of the deceased Nanhi Devi was dug out and further he conducted the preparation of the inquest report which is Ext.Ka-7. 14. After close of the prosecution evidence, statements of all the charged accused were recorded under Section 313 Cr.P.C. 15. The contention of the learned counsel for the appellant is that the judgment and order of conviction and sentence passed by the Court below is against the weight of evidence, against the law and there is material contradiction between P.W.1 and P.W.2. Further submission is that there had not been any independent eye-witness of the said incident. The material evidence produced before the trial Court has not been properly appreciated. Hence, the impugned judgment is patently illegal, arbitrary and unsustainable in the eye of law. Further submission is that there had not been any independent eye-witness of the said incident. The material evidence produced before the trial Court has not been properly appreciated. Hence, the impugned judgment is patently illegal, arbitrary and unsustainable in the eye of law. Lastly it has been submitted that the sentence awarded to the appellant is too severe, therefore, the judgment and order is liable to be set aside and the appeal is liable to be allowed. 16. Per contra, learned A.G.A. made submission that the case is based on the circumstantial evidence. The accused is the husband of the deceased. There is evidence that prior to the incident relations were strained between the accused and his wife Nanhi Devi. This resulted into the frequent assault by the husband on the deceased Smt. Nanhi Devi. It is also established by cogent evidence tendered before the lower Court that on 11/12.9.2003 the accused husband Naresh Raidas had beaten his wife resulting in death of the deceased and thereafter he had concealed the dead body beneath the mud house. It is also contended that the defence statement of the accused under Section 313 Cr.P.C. regarding the plea of alibi has not been substantiated by tendering any evidence in defence. The case is based on circumstantial evidence and all the chain of the link evidence has been tendered before the Court below. The judgment and order of the Court below is well reasoned and there is neither any illegality nor perversity in the impugned judgment of conviction and order. Accordingly, appeal is liable to be dismissed. 17. We have considered the submissions raised by both the parties and perused the impugned judgment alongwith the relevant records. Undoubtedly, this case is based on the circumstantial evidence. So far as the legal proposition regarding the proof of circumstantial evidence is concerned, in the case of Sharad Birdhi Chand v. State of Maharashtra, AIR 1984 SC 1622 , the Apex Court has laid down five golden principles which constitute Panchshel of the proof in a case based on circumstantial evidence. They are as follows : 1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; 2. They are as follows : 1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; 2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; 3. The circumstances should be of a conclusive nature and tendency; 4. They should exclude every possible hypothesis except the one to be proved; and 5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 18. It transpires from the record that FIR was lodged by the chaukidar P.W.1 Kallu and it is also established that the dead body was recovered by digging the pit in the mud house of the accused and it was done in the presence of police as well as the Naib Tehsildar. It is also established by the prosecution evidence that the dead body was recovered by digging the pit. On the basis of the oral evidence tendered by P.W.1 Kallu, P.W.2 Prakash, P.W. 8 Investigating Officer B.S. Ponia, P.W.9 Rajesh Kumar, Naib Tehsildar and the inquest report clearly establishes that the dead body of the deceased Smt. Nanhi Devi was recovered from the mud house by digging a pit near about 1 x 1.5 mt. in depth. So far as the defence of the accused that it is due to the falling of the roof by rain is concerned, although the accused has not substantiated it by any oral evidence, but the circumstance is so clear that the dead body was taken out by digging the pit. More so, there cannot be a doubt that the defence version is to be appreciated on the principles of preponderance of probabilities but taking out of the dead body by digging a pit, that too by 1 x 1.5 mt. in depth and ante-mortem injuries were also found while conducting the post-mortem report which is proved by the prosecution witness P.W.7 Dr. Arun Kumar Agarwal. 19. in depth and ante-mortem injuries were also found while conducting the post-mortem report which is proved by the prosecution witness P.W.7 Dr. Arun Kumar Agarwal. 19. It is also pertinent to mention here that the accused has not explained as to from which date he was out from his house and when he returned and in what condition he saw the dead body. More so, he has not reported this incident to anyone else neither to the police nor to the villagers which is sufficient to disbelieve the defence version. It also transpires from the record that after this incident the accused Naresh Raidas, the husband of the deceased, was arrested after 12 days of the registration of the FIR. This is indicative of the fact that if the death of the wife was caused by an accident why this matter has not been reported to anyone specially to the police and the accused got himself out of the picture for 10-15 days. The learned trial Court has rightly come to the conclusion that the defence has been taken in order to save himself from the culpability of the offence. As it has already been mentioned that if the death was caused in an accident due to the fall of the roof during rainy season then under what circumstances the dead body was to be recovered by digging the pit and that too 1 x 1.5 mts. This circumstance itself proved that the explanation tendered by the defence is neither believable nor in ordinary course can be taken to be correct. 20. In this case the dead body has been recovered from the mud house by digging 1 x 1.5 mts pit. It is proved that only husband, wife and the children reside in the house and the site plan reveals that in addition to this dilapidated mud house there is a ‘pukka’ room adjacent to it. The ante-mortem injuries is indicative of the fact that some altercation and assault had taken place before the death of the deceased. More so, the husband (accused) had not informed this incident neither to the villagers nor to the police. In addition to it, the husband accused escaped from the spot and it was only after the registration of the FIR his arrest was made after 12 days of the incident. 21. More so, the husband (accused) had not informed this incident neither to the villagers nor to the police. In addition to it, the husband accused escaped from the spot and it was only after the registration of the FIR his arrest was made after 12 days of the incident. 21. There is presence of five ante-mortem injuries in which there were two contusions on the right and left hand, one contusion on thigh, one contusion on chest and lacerated wound on the left side of the head and fracture of the left partial bone and membranes of brain were torn. It also establishes the fact that before the death of the victim certain assault has been attributed. One of the important feature in this circumstance to the extent that if there is an adjacent permanent room then in a rainy season why the deceased will prefer that room which was in a dilapidated condition in mud house. The story of the defence that accident took place due to heavy rain which resulted in the death of the deceased seems to be improbable and not believable under the facts and circumstances as stated above. The learned Court below has rightly concluded that this defence has been taken only to save his complicity and involvement in the commission of crime. 22. It is also relevant to mention here that there is a supporting evidence tendered by P.W.5 Radheyshyam and P.W.3 Ganga Ram, who happen to be the close relatives of the deceased. One is brother and another his brother-in-law. They had established the fact that there were serious altercations and assaults prior to the incident resulting into the fracture of the deceased Nanhi Devi in 1998 and about that incident the accused Naresh Raidas had promised not to repeat such acts in future and had also given a written assurance on 24.8.1998 which is paper No. Ext.Ka-3 proved by the witness. This is one of the attending and aggravating circumstance to the incident, involvement and complicity of the accused in commission of the crime. 23. So far as the submission with regard to the fact that there is no mention in the fard about the entry and exit of the police force and Naib Tehsildar at the spot, we are unable to accept this contention as it is not so relevant under the facts and circumstances of the case. 23. So far as the submission with regard to the fact that there is no mention in the fard about the entry and exit of the police force and Naib Tehsildar at the spot, we are unable to accept this contention as it is not so relevant under the facts and circumstances of the case. So far as the contention regarding variance of the statement between P.W.1 Kallu and P.W.2 Prakash about the timing of the digging of the dead body, we do not find any substance in this argument because the inquest report Ex.Ka7 which has been proved before the trial Court clearly and categorically mentions the timing at about 12.15 P.M. which has been confirmed by P.W.2 Prakash. Under such circumstances we do not find any substance in the argument of the learned counsel for the appellant. 24. For the foregoing reasons we are of the considered opinion that the judgment of conviction passed by the Court below does not suffer from any illegality, perversity or infirmity which requires any interference by this Court. Accordingly, the order of conviction is hereby confirmed. 25. So far as the argument of the learned counsel for the appellant regarding the quantum of sentence is concerned, the submission raised by the appellant before us is that the whole prosecution case is based on the circumstantial evidence. There is no direct evidence of the commission of the culpable homicide. Accused is the husband and the deceased is his wife. Accused was aged about 35 years at the time of the incident having two small kids. The accused is languishing in jail for the past more than 13 years. The case is of conviction under Section 304 IPC in which maximum sentence is life imprisonment; accused has no criminal antecedents nor he has been convicted in any other offence prior to this conviction. Keeping in view the age, incident, nature, gravity, circumstance, manner and mode and all the attending and relevant circumstances into consideration, since substantial portion of the conviction has been served so his submission is that his sentence may be reduced as almost 13 years has already been undergone by him. 26. Keeping in view the age, incident, nature, gravity, circumstance, manner and mode and all the attending and relevant circumstances into consideration, since substantial portion of the conviction has been served so his submission is that his sentence may be reduced as almost 13 years has already been undergone by him. 26. In Bachansing v. State of Punjab, AIR 1980 SC 898 , the Hon’ble Apex Court while interpreting Section 354(3) and 235(2) Cr.P.C. elaborated two aspects, firstly that the extreme penalty can be inflicted only in gravest cases of extreme culpability and secondly in making the choice of sentence due regard must be paid to the circumstances of the offender also. 27. The Court has to decide the punishment after considering all aggravating and mitigating factors and the circumstances in which the crime has been committed. Conduct and state of mind of the accused and age of the victim and the gravity of the criminal act are the factors of paramount importance. The Court must exercise its discretion in imposing the punishment objectively considering the facts and circumstances of the case. 28. With reference to the sentence we have perused the record. The accused appellant was convicted under Section 304 IPC for life imprisonment and a fine of Rs. 3,000/-; under Section 201 I.P.C. rigorous imprisonment for three years and a fine of Rs. 2,000/- and in default of payment of fine to undergo further additional two years imprisonment. It transpires from the record that the accused is the husband and deceased is his wife. It also transpires from the record that at the time of incident they had two children out of the said wedlock. The conviction is recorded on 13.4.2005 and at the time of recording of this sentence order the accused was aged about 35 years and now he is above 45 years and he has already spent about more than 13 years in jail. Also convict has no criminal antecedents. 29. Perusal of record shows that accused was arrested on 26.9.2003 during investigation and since then he is languishing in jail. 30. Considering the nature of the offence, gravity, seriousness of the offence, circumstance of the case, previous antecedents and all the circumstances we are of the view that the sentence may be modified and reduced to period already undergone by him. 31. 30. Considering the nature of the offence, gravity, seriousness of the offence, circumstance of the case, previous antecedents and all the circumstances we are of the view that the sentence may be modified and reduced to period already undergone by him. 31. The sentence order under Section 201 I.P.C. for three years and the remaining period of detention of more than 10 years have already been served by him. Therefore, sentence order under Section 201 I.P.C. recorded by the Court below is confirmed, but sentence order under Section 304 I.P.C. is modified and reduced to period already undergone by him. 32. Accordingly, this appeal is partly allowed. The sentence is reduced to period already undergone by the appellant. 33. Let a certified copy of the judgment and order be sent to the Chief Judicial Magistrate concerned for compliance report. The lower Court records be returned for compliance. ———————