JUDGMENT (Per Hon'ble The Chief Justice Sri Raghvendra Singh Chauhan) Having been convicted for the offence under Section 302 IPC, and Sections 27 and 30 of the Arms Act, having been sentenced to life imprisonment and imposed with a fine of Rs. 20,000/- and further directed to undergo one year's rigorous imprisonment in lieu thereof for offence under Section 302 IPC, having been sentenced to four years' simple imprisonment and imposed with a fine of Rs. 5,000/- and further directed to undergo six months' simple imprisonment in lieu thereof for offence under Section 27(1) of the Arms Act, and having been sentenced to three months' simple imprisonment and imposed with a fine of Rs. 1,000/- and further directed to undergo one month's simple imprisonment in lieu thereof for offence under Section 30 of the Arms Act, the appellant, Kharak Singh Mehta has challenged the judgment dated 19.05.2016, passed by the learned Sessions Judge, Pithoragarh in Sessions Trial No. 31 of 2014. 2. Briefly, the facts of the case are that on 23.08.2014 Prahlad Singh (P.W. 1) had lodged a written complaint (Ex. Ka. 1), before the Police Station-Kotwali, Pithoragarh, wherein he claimed that his daughter, namely Hema, was married to Kharak Singh Mehta (the present accused). Kharak Singh Mehta was working in the Police force. He used to drink heavily. He used to assault his children daily. On 23.08.2014, at around 07:45 P.M, his neighbour's son, Hem Singh, informed him that Kharak Singh Mehta had killed his daughter by shooting her with his gun. Upon receiving this information, he, his wife, Mohani Devi, and his friends Bahadur Singh, Lalit Mohan Tadagi, Bhuwan Tadagi, and other villagers went to his daughter's house in Shiv Colony. When they went inside the room, they discovered the dead body of his daughter lying in a pool of blood. There was a lot of bleeding from the back of her head. According to the complainant, he asked Hema's sons, Umesh Singh Mehta and Mukesh Mehta, as to what had happened? While crying, both the children told him that there was a fight between their father and their mother, whereupon their father pulled out his gun, and at around 07:30 P.M. shot their mother dead. After killing their mother, he left the place. While crying, both the children told him that there was a fight between their father and their mother, whereupon their father pulled out his gun, and at around 07:30 P.M. shot their mother dead. After killing their mother, he left the place. On the basis of this written complaint, a formal F.I.R., namely F.I.R. No. 5 of 2014, was chalked out for offence under Section 302 IPC. 3. Meanwhile, according to the prosecution story, on 23.08.2014 at around 07:55 P.M, the 108 Ambulance also received information informing them that a person has shot his wife dead. On the basis of this information, the police reached the scene of the crime. During the investigation, the statements of both the children Umesh Singh Mehta and Mukesh Mehta were recorded under Section 164 Cr.P.C. From the scene of the crime, the police also recovered a SBBL 12 Bore gun, along with an empty and alive cartridges, which were sent to the Forensic Science Laboratory. 4. After arresting Kharak Singh Mehta, and after completing the investigation, a charge-sheet was filed against Kharak Singh Mehta for offences under Section 302 IPC, and Sections 27 and 30 of the Arms Act. 5. In order to establish its case, the prosecution examined nine witnesses, and submitted twenty-five documents, and produced material objects. On the other hand, the defense neither examined any witness, nor submitted any documents. After going through the evidence produced by the prosecution, the learned Trial Court convicted the accused Kharak Singh Mehta, asaforementioned, by judgment dated 19.05.2016. Hence, the present appeal before this Court. 6. Mr. R.S. Sammal, the learned counsel for the appellant, has vehemently raised the following contentions before this Court :- Firstly, from the date of incident i.e. 23.08.2014 till the date when statements of both these witnesses, namely Umesh Singh Mehta (P.W. 2) and Mukesh Mehta (P.W. 2), were recorded i.e. till 09.06.2015 and 10.06.2015 respectively, both these children of the accused were staying with their maternal-grandparents. Secondly, both these witnesses have clearly admitted in their cross-examination that they were told by the police, and by their maternal grandfather to depose before the Court in a particular manner. Therefore, they have stated the same thing in their examination-in-chief. Thus, both these witnesses are tutored witnesses. Secondly, both these witnesses have clearly admitted in their cross-examination that they were told by the police, and by their maternal grandfather to depose before the Court in a particular manner. Therefore, they have stated the same thing in their examination-in-chief. Thus, both these witnesses are tutored witnesses. Hence, the testimonies of both these alleged eye-witnesses, namely Umesh Singh Mehta (P.W. 2) and Mukesh Mehta (P.W. 3), cannot be believed for convicting the accused. Lastly, but for their evidence, there is no evidence that connects the accused to the alleged offence. Therefore, the impugned judgment deserves to be quashed and set-aside. 7. On the other hand, Mr. Jagjit Singh Virk, the learned Deputy Advocate General for the State of Uttarakhand, has strenuously raised the following counter-contentions before this Court:- Firstly, Prahlad Singh (P.W. 1) has clearly stated that the accused was habituated to drinking. After getting drunk, he would constantly fight and assault his wife. Thus, there was already a history of domestic violence, where the perpetrator was the accused, and the victim was the wife. Secondly, in his testimony, he also claims that the accused had an extra-marital affair, which was the cause of tension between the husband and the wife. According to this witness, he had narrated in the F.I.R. the things he was told immediately after the incident by the two grandsons, namely Umesh Singh Mehta (P.W. 2) and Mukesh Mehta (P.W. 3). Thirdly, immediately after the incident, the statement of Umesh Singh Mehta (P.W. 2) and Mukesh Mehta (P.W. 3) were recorded by the police. Moreover, their statements were also recorded by the learned Magistrate under Section 164 Cr.P.C. The statements given by them under Section 164 Cr.P.C. tally with their testimonies deposed before the Trial Court. Since the statements made under Section 164 Cr.P.C. were immediately after the incident, the defence is unjustified in claiming that the children were tutored. Fourthly, Umesh Singh Mehta (P.W. 2) and Mukesh Mehta (P.W. 3) have clearly stated in their testimonies that there was a constant fight between their parents with regard to the extra-marital affair of the accused. Both of them have denied the suggestion that they are deposing before the Court in accordance with what they have been tutored by their maternal grandfather. Both of them have also denied the suggestion by the defence that the gun went off while the accused was cleaning the gun. Both of them have denied the suggestion that they are deposing before the Court in accordance with what they have been tutored by their maternal grandfather. Both of them have also denied the suggestion by the defence that the gun went off while the accused was cleaning the gun. And most importantly, they have described the incident in detail. Moreover, it ishighly unlikely that both these eye-witnesses would let go off the actual culprit, and would substitute their own father in place of the actual culprit. Therefore, the testimony of both these eye-witnesses is highly reliable.Hence, the learned Trial Court was justified in basing the conviction on their testimonies. Fifthly, the Post-Mortem Report (Ex. Ka. 4) clearly proves that the deceased had died a homicidal death. Sixthly, even the FSL report (Ex. Ka. 23) clearly proves that the SBBL 12 Bore gun, which was recovered at the scene of the crime, was fired. The cartridge that has been recovered was fired from the same gun. Therefore, the prosecution has succeeded in establishing its case against Kharak Singh Mehta, the accused-appellant. Hence, the learned Deputy Advocate General for the State has supported the impugned judgment. 8. Heard the learned counsel for the parties, perused the impugned judgment and examined the record. 9. Prahlad Singh (P.W. 1) informs the Court, in his examination-in-chief, that his daughter, Hema Devi, was married to the accused. They have two children Umesh Singh Mehta (P.W. 2), seventeen years old, and Mukesh Mehta (P.W. 3), fifteen years old. At the time of the incident, Kharak Singh Mehta (the accused-appellant), his wife Hema, and their two children were staying in a rented accommodation belonging to one Mahendra Singh in Shiv Colony. He further stated that on 23.08.2014 at around 07:45 P.M, he was informed by his neighbour's son, Hemu, that Kharak Singh Mehta has shot his wife dead in his room. Upon receiving this information, he, his wife, and few other persons belonging to the locality went to Shiv Colony, where the accused and Hema were living. When they went into the room, they saw his daughter lying in a pool of blood. She had suffered a firearm injury on her head. Both the children Umesh Singh Mehta (P.W. 2) and Mukesh Mehta (P.W. 3) were sitting in the room. When he asked them about the incident, they told him that there was a fight between their parents. She had suffered a firearm injury on her head. Both the children Umesh Singh Mehta (P.W. 2) and Mukesh Mehta (P.W. 3) were sitting in the room. When he asked them about the incident, they told him that there was a fight between their parents. Their father shot their mother on the head. According to the children, the occurrence had happened at around 07:30 P.M. He further claimed that after getting drunk his son-in-law would usually fight with his wife and used to assault her. He further claimed that the accused had an extra-marital affair. When his daughter would object to it, he used to fight with her, and used to assault her. He further told the Court that, by the time they reached the house where the daughter was staying, Kharak Singh Mehta had already run away. The fact that he had already run away was informed to him by both his grandchildren. He further claimed that even prior to the incident, his daughter used to tell him that her husband used to get drunk and used to assault her. In his cross-examination, he stated that even before he reached the place, the police had already come at the scene of the crime. In his cross-examination, this witness has not been demolished. 10. Umesh Singh Mehta (P.W. 2) is the elder son of the accused-appellant. At the time of deposing before the Court, he was seventeen years old. According to him,his father was working as a “Follower" in the police department. At the time of the incident, the witness claimed that he was studying in the XIth standard. According to him, his father used to drink alcohol and would fight with his mother. The reason for their fight was a lady named Guddi with whom his father had extramarital relationship. It is for this reason, according to him, that fights used to breakout between the parents. According to him, his father used to insist that his mother should go and call Guddi to come to stay in their room. His mother would decline to go and call Guddi. Therefore, his father would fight with his mother. He further claims that on 23.08.2014 at around 08:30 A.M. he had gone to his school. His father, his mother, and his younger brother were at the house. His mother would decline to go and call Guddi. Therefore, his father would fight with his mother. He further claims that on 23.08.2014 at around 08:30 A.M. he had gone to his school. His father, his mother, and his younger brother were at the house. He came back from the school at 02:00 P.M. He found all three of them present in the house. While his father was drunk, his mother and younger brother were sitting on another bed. His father was abusing his mother. According to this witness he asked his mother “as to why his father is abusing her? She told this witness that his father wants her to go to Takana, where Guddi lives, and abuse her. However, his mother refused to do so. After this incident, in the afternoon his father left for the market, and his mother went away for cutting the grass. At 06:00 P.M. his mother came back after cutting the grass. He further claimed that his father came back from the market after consuming liquor. At that time Guddi called his father on the mobile. Thereafter, his father started shouting at his mother, and asked his mother as to why she did not go to Guddi's place? His father started breaking the household goods. While both the brothers were busy picking up the shattered pieces of glasses, their father went and pulled out his gun from inside the bed. He put one cartridge inside the gun, and shot his mother onthe head. His mother collapsed, and died at the spot. Immediately, the landlord, his wife and his daughter-in-law rushed to the place. His father left the gun on the bed, and ran away. Moreover, according tothis witness, immediately after this incident, he ran to theshop of Akshay and Hem Singh, and told them about the incident. Having informed them, he came back to the room. He found his mother lying in a pool of blood. Immediately the police came to their place. After sometime, his maternal grandfather, Prahlad Singh (P.W. 1), maternal grandmother, and other people belonging to the village, came to the place. He further stated that when he was asked by his maternal grandfather, Prahlad Singh (P.W. 1), as to what had happened, he informed his grandfather that his father has an illegitimate relationship with Guddi. It is because of this, that his father has killed his mother. He further stated that when he was asked by his maternal grandfather, Prahlad Singh (P.W. 1), as to what had happened, he informed his grandfather that his father has an illegitimate relationship with Guddi. It is because of this, that his father has killed his mother. He further claimed that prior to this incident his father had brought Guddi to their home. 11. In his cross-examination, Umesh Singh Mehta (P.W. 2) initially said that he has narrated whatever was told to him by the police and his grandfather. But, then by himself he said, “I have narrated whatever I have seen". Besides this statement, there is nothing in his cross-examination that has shaken or demolished this witness. 12. Mukesh Mehta (P.W. 3) was a minor, aged 16 years, on the date his testimony was recorded. Therefore, he was first asked a series of questions, which he answered intelligently. Thereafter, the complete testimony of this child-witness was recorded by the learned Trial Court. Even this witness claimed that the accused had an illegal relationship with Guddi; the accused used to insist that his mother go and call Guddi to come and stay with them in their house. He further claims that he has seen Guddi, as his father had brought her to their house. Even according to this witness, on 23.08.2014, his elder brother had left for the school in the morning. In the afternoon when his elder brother came back, he and his mother were sitting on the bed. His father had consumed liquor. His father was abusing his mother. His elder brother asked their mother as to why the father was abusing her? She informed his elder brother that his father is insisting that she should go and call Guddi to come to their house. Her mother refused to do so, and that was the cause of their fight. After verbally abusing his mother, his father left for the market, and his mother left for cutting the grass. In the evening, his father came back from the market in a drunken state and again started abusing his mother. His father broke the household goods made out of glass. When his mother was picking up the broken pieces ofglass, he and his brother were in the room. According to him, his father pulled out his licensed gun, which was lying inside the bed. His father broke the household goods made out of glass. When his mother was picking up the broken pieces ofglass, he and his brother were in the room. According to him, his father pulled out his licensed gun, which was lying inside the bed. He placed one cartridge in the gun, and shot his mother on the head. His mother fell and died. When both the brothers started shouting, the landlord, landlord's brother, and daughter-in-law came running to their place. His father left the gun on the bed, and ran away. His elder brother Umesh Singh Mehta (P.W. 2) ran to Akshay's and Hem Singh's shop. He came back after sometime. His maternal grandparents also came after sometime. When they came and asked as to what had happened, the witness claimed he told them everything. Subsequently, his statement under Section 164 Cr.P.C. was recorded by the Magistrate. 13. In his cross-examination, he further states that, even before his maternal grandparents came, the police had already arrived. He further stated that he is deposing before the Court “of his own". He denied the suggestion, made by the defence, that he is deposing falsely, and in accordance with what has been taught by his maternal grandfather and the police. He has further denied the suggestion that his father was cleaning the licensed gun at the time of the incident. 14. The testimonies of both Umesh Singh Mehta (P.W. 2) and Mukesh Mehta (P.W. 3) is further corroborated by the independent testimony of Mrs. Durga Bhandari (P.W. 5). In her testimony she identifies the accused as her tenant. According to her, on 23.08.2014 at around 07:30 P.M, she was in her room along with her elder brother, Gopal Singh, her sister-in-law, Basanti, and her two children. Around 07:30 P.M, she heard a gun being fired. She also heard children crying. Thereupon, she, her brother, and her sister-in-law, rushed to the room of Kharak Singh Mehta. They saw that the dead body of Hema was lying in the room. Both the children were shouting and crying. Kharak Singh Mehta was present in the room. Seeing them, the accused, Kharak Singh Mehta, ran away from the place. She further claimthat her brother immediately called the 108 Ambulance on the phone. After sometime, the ambulance came to the place; thereafter, Hema's parents also came to the place. Both the children were shouting and crying. Kharak Singh Mehta was present in the room. Seeing them, the accused, Kharak Singh Mehta, ran away from the place. She further claimthat her brother immediately called the 108 Ambulance on the phone. After sometime, the ambulance came to the place; thereafter, Hema's parents also came to the place. Moreover, according to her, Kharak Singh Mehta used to drink very often, and used to verbally and physically assault her. She further claimed that, when she reached Kharak Singh Mehta's room, she asked the children as to what had happened. Immediately they informed her that their father had shot their mother dead. 15. The testimony of Mrs. Durga Bhandari (P.W. 5) not only corroborates the testimonies of Umesh Singh Mehta (P.W. 2) and Mukesh Mehta (P.W. 3), but most importantly demolishes the contention raised by the learned counsel for the accused that the testimonies of the children are tutored one. For, immediately after her arrival in the room, Mrs. Durga Bhandari (P.W. 5) was told by the children that it is their father who had killed their mother with his gun. It is the same statement that the children have deposed before the Court. Therefore, this Court does not find any merit in the contention raised by the learned counsel for the appellant that the children are unreliable and untrustworthy witnesses, as they have been tutored by their maternal grandfather. 16. A bare perusal of the testimonies of these witnesses clearly brings out the fact that the accused was habituated to drinking. He had an extra-marital affair with the lady by the name of Guddi. The cause of tussle between the husband and the wife was the extra-marital affair. The accused was in the habit of verbally abusing and physically assaulting the deceased. On the fatefulday, the couple had a fight in the morning, and again inthe evening. Because the deceased refused to go to the house of Guddi and ask her to come to stay with them, the accused shot his wife dead in the presence of both the children. 17. Both Umesh Singh Mehta (P.W. 2) and Mukesh Mehta (P.W. 3) have not been shattered in their cross-examination. Therefore, they are reliable and trustworthy witnesses. Both these witnesses have described the incident in great detail. 17. Both Umesh Singh Mehta (P.W. 2) and Mukesh Mehta (P.W. 3) have not been shattered in their cross-examination. Therefore, they are reliable and trustworthy witnesses. Both these witnesses have described the incident in great detail. Both these witnesses, while Umesh Singh Mehta (P.W. 2) is seventeen years old, and was studying in XIIth class, Mukesh Mehta (P.W. 3) was sixteen years old. Thus, both these witnesses are mature enough to speak the truth. Since, they are the eye-witnesses of the incident, the chances that they would substitute their father for the real culprit is almost nil. Their testimony with regard to the domestic discord and domestic violence is further supported by Prahlad Singh (P.W. 1). Most importantly, their testimonies are similar to their statement given before the learned Magistrate, the statement, which was recorded immediately after the incident. Thus, it cannot be said that they have been tutored by their maternal grandfather. The testimony of these three witnesses is further corroborated by the recovery of the gun which was found lying on the bed at the scene of the crime. According to Umesh Singh Mehta (P.W. 2) and Mukesh Mehta (P.W. 3), their father had left the gun in the room and had run away. The FSL report (Ex. Ka. 23) further proves the fact that the gun had been used. 18. Dr. D.S. Dharmshaktu (P.W. 4), had carried out the autopsy of the deceased. He has proven the Post-Mortem Report (Ex. Ka. 4). According to the Post- Mortem Report, the deceased had suffered a gunshot injury on her head. The brain material was coming out of the said gunshot injury. Due to the firearm injury, the parietal, frontal and temporal bones had fractured. The pellets had injured different parts of the brain. There was blackening and tattooing around the wound. The cause of the death was the gunshot injury which was antimortem in nature. Thus, obviously the death of the deceased was a homicidal one. 19. Furthermore, according to Sub-Inspector Mahesh Kandpal (P.W. 8) at the time of preparation of the Inquest Report, a SBBL 12 Bore gun was lying on the bed. One empty cartridge, which was inside the gun, and one live cartridge was taken into custody of the police. The recovery memo was also prepared. The said testimony has further been corroborated by G.P. Baunthiyal, S.H.O. (P.W. 9). One empty cartridge, which was inside the gun, and one live cartridge was taken into custody of the police. The recovery memo was also prepared. The said testimony has further been corroborated by G.P. Baunthiyal, S.H.O. (P.W. 9). According to both these witnesses the said gun was subsequently sent to the FSLfor its report. According to the FSL report (Ex. Ka. 23), the said gun had been fired. 20. Thus, considering the oral testimony of the eye witnesses, independent witnesses like Smt. Durga Bhandari (P.W. 5) and Dr. D.S. Dharamsaktu (P.W. 4), and the corroborative evidence of the Post-Mortem Report (Ex. Ka. 4) and the FSL Report (Ex. Ka. 23), the prosecution has succeeded in establishing the fact that it is the appellant, who had shot his wife dead with the use of a firearm. 21. For the reasons stated above, this Court does not find any merit in the present appeal. It is hereby dismissed. The conviction and sentence, as awarded by the learned Trial Court by its judgment dated 19.05.2016, stand confirmed. The appellant shall serve his remaining sentence.