JUDGMENT Hon'ble Sudhansu Dhulia, J. (Oral) These two appeals have been filed by the appellants against the judgment and order dated 14.03.2014 passed by the District and Sessions Judge, Tehri Garhwal in Session Trial No. 19 of 2013. The appellants are real brothers. Whereas the appellant Surendra Singh Panwar (Appellant in Criminal Jail Appeal No. 13 of 2014) has been convicted under Section 302 & 201 IPC and has been sentenced for life imprisonment under Section 302 IPC and rigorous imprisonment for three years under Section 201 IPC, and the appellant Ravindra Singh Panwar (Appellant in Criminal Appeal No. 91 of 2014) has been convicted under Section 201 IPC and has been sentenced to undergo rigorous imprisonment for three years under Section 201 IPC. 2. The incident happened in a hill district in Uttarakhand called “Tehri Garhwal", in a small village called “Ringalgarh", P.S. Chamba, District Tehri Garhwal. The case of the prosecution is that the appellant Surendra Singh Panwar and the deceased Rupa Devi were married in the year 1999 and at the relevant time i.e. in the year 2012 they had three children i.e. two daughters aged about 11 and 7 years respectively and one son aged about 02 years. The husband i.e. appellant Surendra Singh Panwar used to beat his wife and the two had frequent fights. It has also come on record that the deceased in the past had, on more than one occasions, left her house due to the domestic fights, but then she used to return. 3. The accused Surendra Singh Panwar had himself lodged a missing report at Reporting Chowki Kumalda, P.S. Chamba, District Tehri Garhwal on 27.01.2013, stating that his wife Rupa Devi is missing since 26.12.2012 i.e. for the last more than 20 days. Efforts were made by him to find his wife, but in vain. 4. Meanwhile, a complaint was made by one Dayal Singh Manwal, who was the brother of the deceased Rupa Devi. The complaint was made before the Superintendent of Police, Tehri Garhwal. In his complaint, it was said that his sister Rupa was married to Surendra Singh Panwar of village Ringalgarh, Patti Sakalna, District Tehri Garhwal 14 years back and out of the wedlock they have two daughters aged about 11 and 7 years respectively and a son aged about 02 years. In his complaint, it was said that his sister Rupa was married to Surendra Singh Panwar of village Ringalgarh, Patti Sakalna, District Tehri Garhwal 14 years back and out of the wedlock they have two daughters aged about 11 and 7 years respectively and a son aged about 02 years. After one and a half years of marriage, the husband Surendra Singh Panwar started torturing his wife. He used to beat her regularly. Complainants were made in this regard before District Court, Women Helpline, “Mahila Samakhya" (which was a project of Government of Uttarakhand for protecting the women) and other social organizations, which always resulted in a compromise between the parties, but then the domestic violence continued. Suddenly on 26.12.2012, his sister Rupa Devi disappears mysteriously, of which they were never informed by their in-laws. He was only informed by a member of “Kshetra Panchayat, Ringalgarh", who was known to him. This information was given to him by phone on 21.01.2013 about the missing of his sister. On 23.01.2013, he went to incharge of P.S. Chamba to lodge an FIR, but the incharge of the police station refused to lodge the FIR. He suspects that the in-laws of his sister are involved in the disappearance of his sister and he requests the Superintendent of Police to take appropriate action. 5. On this complaint, which was moved by the brother of the deceased, an endorsement was made by the Superintendent of Police directing the Station House Officer (Chamba) to investigate the matter and find the missing woman. Thereafter the police started making efforts to recover the missing woman. In that process, it appears that when the present two appellants (who are real brothers), were questioned by the police, they confessed to their crime and disclosed that accused Surendra Singh Panwar had a fight with his wife in the night of 25.12.2012 and in a heat of passion, he hit his wife with a “Danda" which killed her. With the help of his brother, the co-accused Ravindra Singh Panwar, the dead body was buried in the “Jungle". 6. Immediately, the case was converted under Section 302 read with 201 IPC against the two accused. 7. With the help of his brother, the co-accused Ravindra Singh Panwar, the dead body was buried in the “Jungle". 6. Immediately, the case was converted under Section 302 read with 201 IPC against the two accused. 7. Thereafter the two accused were taken into custody and in presence of many villagers, on the pointing out of the accused the dead body of Rupa Devi was recovered from the “Jungle" after digging at a particular place which was at a distance of about one and a half kilometers from the house of accused Surendra Singh Panwar, where the crime was allegedly committed. The body was wrapped in a bedsheet, there were maggots all over the body and it was in a highly decomposed state. The body was recognised to be of Rupa Devi, by her brother and other relatives. 8. Subsequently postmortem of the body was done on 29.01.2013 at 01:30 P.M. at District Hospital, Baurari, New Tehri. The body though in a highly decomposed state, showed but only one antemortem injury, which was on the left Peritotemporal area near upper part of the left ear. On opening of the wound, it was found that the temporal area of bone was fractured. There was no other ante-mortem injury on the body. The decomposition was so 5 much that the hair of the deceased along with its roots had fallen apart. So did the teeth of the deceased. 9. Prior to the postmortem, however, an inquest report was prepared by the Investigating Officer, which had signatures of the following: “1. Dayal Singh S/o Puran Singh 2. Inder Singh S/o Ratan Singh 3. Smt. Mamta Saklani W/o Jai Prakash Saklani 4. Dayal Singh S/o Inder Singh 5. Kunwar Singh s/o Matam Singh" 10. The inquest was done immediately after the body was recovered and the persons who have been signatories to the inquest report were also the person before whom the body was recovered on the pointing out of the two accused/appellants before this Court. 11. The police after its investigation, filed a charge-sheet against the two accused. The matter was committed to sessions and thereafter the trial commenced before the learned Sessions Judge, Tehri Garhwal in Session Trial No. 19 of 2013. 12. The prosecution in order to establish its case examined as many as 10 witnesses. 11. The police after its investigation, filed a charge-sheet against the two accused. The matter was committed to sessions and thereafter the trial commenced before the learned Sessions Judge, Tehri Garhwal in Session Trial No. 19 of 2013. 12. The prosecution in order to establish its case examined as many as 10 witnesses. After the prosecution witnesses were examined, examination was done of both the accused under Section 313 CrPC. 13. PW1 is Sub Inspector Sudhakar Nautiyal, who has done the investigation in the matter. He states before the court that the accused Surendra Singh Panwar had confessed before him that in the ensuing night of 25/26-12.2012, when he was about to sleep he had a fight with his wife. The reason being that his wife used to leave her house without prior information, an act which shamed him in his community. The altercations with his wife on that fateful night somehow aggravated and in a fit of anger he hit her with a “Danda", as a result she became unconscious and after few minutes died. He got scared and ran to call his younger brother who was nearby and together they disposed of the dead body in the night. The accused had also informed this witness that he can get the body recovered. Both the accused were detained in the “Chowki" and the S.H.O. was informed. The S.H.O. came from “Chamba" and thereafter the investigation was taken over by S.H.O. P.C. Mathwal. Both the accused went along with the S.H.O. and a “mahila" constable and got the body recovered. The confession of the crime by the two accused persons before this witness cannot be read as an evidence against the accused. This witness largely is only a formal witness. 14. PW2 Dayal Singh S/o Inder Singh, PW3, Dayal Singh S/o Puran Singh and PW 4 Smt. Mamta Saklani W/o Jai Prakash Saklani are the important witnesses of both discovery of body and of the inquest. PW7 Prem Singh Rana and PW8 Sushil Bahuguna are other important witnesses of the discovery of body, who are independent witnesses. Apart from them, PW5 is Dr. Bagesh Chandra Kala, who has conducted the postmortem on the body and PW10 Inspector Prakash Chandra is the investigating officer of the case. 15. PW7 Prem Singh Rana and PW8 Sushil Bahuguna are other important witnesses of the discovery of body, who are independent witnesses. Apart from them, PW5 is Dr. Bagesh Chandra Kala, who has conducted the postmortem on the body and PW10 Inspector Prakash Chandra is the investigating officer of the case. 15. PW2 Dayal Singh S/o Inder Singh is the brother of the deceased, who had made the complaint to the Superintendent of Police, Tehri Garhwal about the missing of his sister and had expressed his suspicion on his brother-in-law. He is also a witness to the recovery. Although he is not an independent witness, but he appears to be absolutely truthful, genuine and a natural witness. He states in his examination-in-chief that he reported the matter to the Superintendent of Police, on which investigation was done. Later he was informed that his brother-in-law has confessed to the crime, and he had gone with the police party to recover the body of the deceased. He states that the body was recovered on the pointing out of his brother-in-law Surendra Singh Panwar and his younger brother Ravindra Singh Panwar. Thereafter the inquest was prepared by the police, to which he is one of the signatories. This witness was cross-examined at length by the defence, but nothing has come out which may cast any doubt on the testimony of this witness. 16. PW3 is another Dayal Singh S/o Puran Singh, who is the residence of Village Ringalgarh, Tehri Garhwal. In his examination-in-chief he states that soon after the marriage of the two Surendra Singh Panwar and Rupa Devi, there were frequent fights between the two and on many occasions he had mediated between the two and tried to bring out settlement. He further states that Rupa Devi used to generally leave her house on these occasions, only to return after a few days. The fight between the couple was a common knowledge in the village and on several occasions the matter was settled with the help of Government agencies such as Women Helpline, “Mahila Samakhya", etc. 17. PW4 Ms. Mamta Saklani is again an important witness. She is a member of “Mahila Samakhya", which is a project of Government of Uttarakhand, to help women who are victims of domestic violence or torture. 17. PW4 Ms. Mamta Saklani is again an important witness. She is a member of “Mahila Samakhya", which is a project of Government of Uttarakhand, to help women who are victims of domestic violence or torture. It has come on record that the deceased on various occasions in the past had gone to Women Helpline and “Mahila Samakhya" and had met this particular witness. She deposes that in the past, the deceased had come to her and made a complaint of her torture and beating at the hands of her husband. In fact when her husband was called upon, he used to apologize and thereafter a settlement was generally made between the parties. On 27.01.2013 she was informed that Surendra Singh Panwar has committed a crime and the body is lying in the “jungle". In order to help the police, she went along with the police party where on the pointing out of the accused, the body was recovered in an isolated area in the “jungle". This witness was cross-examined by the defence at length, but nothing has come out to disbelieve the testimony of this witness. 18. PW7 Prem Singh Rana and PW8 Sushil Bahuguna are members of “Kshetra Panchayat, Ringalgarh" and are again independent witnesses. They have clearly stated that the body was recovered on the pointing out of the accused and the recovery memo bears their signatures. 19. Definitely in this case the recovery has been made after the confession was made by the two accused before the police. Though no cognizance can be taken of the statement given before the police, but definitely what has to be considered by this Court is the subsequent discovery of the body which was done on the pointing out of both the accused. This is so in light of Section 27 of the Evidence Act, 1872 [*27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved]. 20. The overwhelming evidence at the hands of many independent witnesses, particularly PW 3 and PW 4, Sri Dayal Singh and Ms. 20. The overwhelming evidence at the hands of many independent witnesses, particularly PW 3 and PW 4, Sri Dayal Singh and Ms. Mamta Saklani respectively that there were frequent fights between the couple shows that on more than one occasions the deceased was beaten up by her husband, so much so that she used to leave her house. The fact that the deceased was a victim of domestic violence at the hands of her husband, has been clearly established. 21. Together with this, an important aspect which must be considered by this Court is the conduct of the accused after commission of crime which is that though the wife of the accused Surendra Singh Panwar was missing since 26.12.2012, he did not care to report this matter to the family members of the deceased, particularly her brother. After more than 20 days, he lodges a false missing report before the police authorities and finally confesses to his crime and on his pointing out that the body was recovered. 22. There is hence no doubt that the crime was committed by Surendra Singh Panwar. The only question is whether the crime is murder or a culpable homicide not amounting to murder. After appreciating the evidence available on record, we have no doubt in our mind that it is not a case of murder but of culpable homicide not amounting to murder. We are of this view as it was not a pre-meditated crime. It occurred in a sudden fight and heat of passion where a single blow was inflicted by the accused Surendra Singh Panwar by a “danda" on her head, which resulted in her death. The postmortem report shows only one ante-mortem injury on the left temporal region of the deceased which has a fracture. We say this also considering that the weapon of offence is a “danda". 23. It is true that another crime was committed by him (Surendra Singh Panwar) along with his brother Ravindra Singh Panwar (appellant in Criminal Appeal No. 91 of 2014) which was to remove the evidence from the spot, as the two buried the dead body inside the “jungle". 23. It is true that another crime was committed by him (Surendra Singh Panwar) along with his brother Ravindra Singh Panwar (appellant in Criminal Appeal No. 91 of 2014) which was to remove the evidence from the spot, as the two buried the dead body inside the “jungle". Considering the topography of the area as pointed in the site plan, definitely disposal of the body from the scene of crime to a place more than one and a half kilometers from the place of incident is not the work of a single individual. Ravindra Singh Panwar was an accomplice to his brother as far as removing of dead body is concerned. He is therefore rightly convicted under Section 201 of IPC. 24. As far as conviction of accused Surendra Singh Panwar under Section 302 read with Section 201 IPC is concerned, the nature of the crime shows that though he definitely may have the knowledge that such a blow may result in the death of his wife, but he had clearly no intention to kill his wife. Considering the background of the case and the fact that there is no pre-meditation and he had no intention to kill his wife and also the fact that the weapon of crime is a “danda", we are of the view that it is not a case of murder but a case of culpable homicide not amounting to murder. 25. The act of the accused Surendra Singh Panwar is covered under Exception 4 [“Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner."] to Section 300 IPC, which is, inter alia, an exception created under the Penal Code which makes an act culpable homicide and not murder. The totality of facts and circumstances of the case clearly shows that the appellant Surendra Singh Panwar has committed the act without any premeditation, in a sudden fight in the heat of passion and upon a sudden quarrel, without taking undue advantage or acted in a cruel manner or unusual manner. This is an act clearly covered under Exception 4 to Section 300 IPC. This is an act clearly covered under Exception 4 to Section 300 IPC. We therefore convert the findings of murder to one of culpable homicide not amounting to murder and convict him under Section 304 Part II IPC instead of Section 302 IPC. The appellant is in jail since 27.01.2013. He is in jail for more than seven years. We therefore award him a sentence for the period already undergone, under Section 304 Part II of IPC. 26. As far as sentence awarded to accused Surendra Singh Panwar under Section 201 IPC, which is three years of rigorous imprisonment is concerned, we maintain the sentence of three years, which he has already undergone. The accused Surendra Singh Panwar is in jail. Let him be released from jail forthwith unless wanted in any other case. 27. Regarding accused Ravindra Singh Panwar (Appellant in Criminal Appeal No. 91 of 2014), we are of the view that there are overwhelming evidence that the accused Ravindra Singh Panwar has committed offence under Section 201 IPC, but while awarding the sentence under Section 201 IPC the trial court has connected the crime under Section 201 IPC with the crime under Section 302 IPC crime under Section 201 IPC with the crime under Section 302 IPC and therefore it awarded a sentence of three years. We, however, feel that since this is a case which relates to disposal of a dead body in a case not of murder but of culpable homicide not amounting to murder, we convert the sentence of three years of rigorous imprisonment to one year of rigorous imprisonment. This we also do considering the mitigating circumstances in his favour, which are that he has a young wife and two minor children, who need to be looked after. The accused Ravindra Singh Panwar is on bail. His bail bonds are cancelled and sureties are discharged. He shall surrender within one week (the period be counted from the date a certified copy of this order is obtained from the Registry by the State), failing which he shall be taken into custody to serve the remaining sentence. It is made clear that the period already spent in custody in connection with the present crime shall also be counted, while calculating one year of rigorous imprisonment. 28. Let a certified copy of this order be sent to the concerned Trial Court for onward compliance. It is made clear that the period already spent in custody in connection with the present crime shall also be counted, while calculating one year of rigorous imprisonment. 28. Let a certified copy of this order be sent to the concerned Trial Court for onward compliance. The Registrar General shall do the needful. 29. In view of the above, the Criminal Jail Appeal No. 13 of 2014 and Criminal Appeal No. 91 of 2014 are partly allowed.