JUDGMENT : Sanjay K. Agrawal, J. 1. This criminal appeal under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 31/01/2014 passed by learned Sessions Judge, Raipur in Sessions Trial No. 26/2013 whereby the appellant/accused has been convicted for offence under Sections 302 and 309 of IPC. For offence punishable under Section 302 of IPC, he has been sentenced to life imprisonment and fine of Rs. 5,000/­ in default of payment of fine amount, additional R.I. for five months and for offence punishable under Section 309 of IPC, he has been sentenced to R.I. for one year and fine of Rs. 1,000/­ and in default of payment of fine amount, further R.I. of one month. 2. The case of the prosecution, in brief, is that on 02/07/2012, the appellant/accused murdered his wife (kept) by an axe and thereafter, tried to commit suicide by cutting himself with a razor blade and thereby, committed the aforesaid offences. 3. It is admitted position on record that appellant's legally wedded wife namely Jaswantinbai was living separately along with their children whereas the appellant used to stay with his second wife (kept) namely Parniyabai. 4. Further case of the prosecution is that on 03/07/2012, applicant Suresh Kumar Dahariya (P.W.­4) reported to the Police Station Silyari that at about 6:30 AM, his neighbour Chandrahas Kurre (P.W.­1) came to his house and informed him this on 02/07/2012 at about 11:30 PM, his younger brother appellant/accused, upon doubting the character of his wife Parniyabai, has murdered her by causing fatal injuries on her body with the help of an axe, pursuant to which applicant Suresh Kumar Dahariya (P.W.­4) informed about the said incident to the Up­Sarpanch of the village namely Hemant Singh Thakur (P.W.­6) and to the village Kotwar namely Lakhan Kurre (P.W. ­5). Thereafter, the informant Suresh Kumar Dahariya (P.W.­4) along with Chandrahas Kurre (P.W.­1) and Lakhan Kurre (P.W.­5) went to the house of the appellant wherein they found the dead body of deceased Parniyabai lying on the cot soaked in blood and noticed several injuries over her body. On the report of Suresh Kumar Dahariya (P.W.­4), Merg No. 0/2012 (Ex. P/5) was registered at Police Station Silyari which was later on registered as Merg No. 65/12 (Ex. P/23) at Police Station Dharsiwa. On the basis of the merg intimation, First Information Report bearing Crime No. 210/12 (Ex. On the report of Suresh Kumar Dahariya (P.W.­4), Merg No. 0/2012 (Ex. P/5) was registered at Police Station Silyari which was later on registered as Merg No. 65/12 (Ex. P/23) at Police Station Dharsiwa. On the basis of the merg intimation, First Information Report bearing Crime No. 210/12 (Ex. P/22) was registered against the appellant/accused for offence punishable under Section 302 of IPC. Thereafter, Police reached the spot and after summoning the witnesses prepared inquest report (Ex. P/1) and sent the dead body of deceased Parinyabai for postmortem. After preparing the spot map (Ex. P/6 and P/7), in the presence of the witnesses, plain soil as well as blood soaked soil, blood stained old bedsheet, one razor blade which had spots of blood, the bangles worn by the deceased as well as her broken bangles lying therein were seized from the spot vide Ex. P/3. Deceased Parniyabai's petticoat and one brown coloured shirt were seized vide Ex. P/10. Pursuant to the memorandum statement of the appellant/accused, blood stained axe was seized vide Ex. P/12 and his blood stained lungi and banyan were seized vide Ex. P/13. The lungi and banyan worn by the appellant as well as the blood­stained axe were sent for chemical analysis and F.S.L. report has been filed as Ex. P/31. After due investigation, the appellant/accused was charge­sheeted for offences under Section 302 and 309 of IPC which was submitted to the Court of Session Judge, Raipur for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence. 5. In order to bring home the offence, prosecution examined as many as 17 witnesses and brought into record 31 documents. Statement of the appellant/accused was recorded under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence. 6. Learned trial Court, after appreciating the oral and documentary evidence on record, convicted the appellant/accused for offences punishable under Sections 302 and 309 of IPC and awarded sentence as mentioned herein­above against which this appeal has been preferred by him questioning the impugned judgment of conviction and order of sentence. 7. Mr. 6. Learned trial Court, after appreciating the oral and documentary evidence on record, convicted the appellant/accused for offences punishable under Sections 302 and 309 of IPC and awarded sentence as mentioned herein­above against which this appeal has been preferred by him questioning the impugned judgment of conviction and order of sentence. 7. Mr. Shailendra Sharma, learned counsel for the appellant/accused, would submit that the trial Court has committed grave legal error in convicting the appellant for the aforesaid offences by recording a finding which is perverse and contrary to the record as Chandrahas Kumar Kurre (P.W.­1), to whom extra­judicial confession is said to have been given by the appellant, has not supported the case of the prosecution and he has turned hostile. Similarly, the version of Suresh Kumar Dahariya (P.W.­4) that the appellant/accused has given extra­judicial confession is also not reliable as in paragraph 1 of his statement, he has clearly stated that Chandrahas Kumar Kurre (P.W.­1) came to him and informed about the incident though Chandrahas Kumar Kurre (P.W.­1) himself has not supported the case of the prosecution. Even otherwise, the village Kotwar namely Lakhan Kurre (P.W.­5) and the Up­Sarpanch namely Hemant Thakur (P.W.­6), both have also turned hostile, as such, it is a fit case where the conviction of the appellant for the aforesaid offences deserves to be set aside. 8. Per Contra, Mr. Sudeep Verma, learned Deputy Government Advocate appearing for the respondent/State, would submit that prosecution has proved the offence beyond reasonable doubt and that is the reason why the trial Court has convicted the appellant/accused for offence punishable under Sections 302 and 309 of IPC. He would further submit that learned trial Court has not erred in any way in accepting the version of Suresh Kumar Dahariya (P.W.­4) and further relying upon the memorandum statement of the appellant/accused (Ex. P/11), seizure of blood­ stained axe (Ex. P/12) as well as blood­stained lungi and banyan worn by the appellant (Ex. P/13) have been made. These articles were sent for chemical analysis and as per the F.S.L. report (Ex. P/27), human blood has been found on these articles which connects the appellant/accused with the aforesaid offences, as such, the instant appeal deserves to be dismissed. 9. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the records with utmost circumspection. 10. P/27), human blood has been found on these articles which connects the appellant/accused with the aforesaid offences, as such, the instant appeal deserves to be dismissed. 9. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the records with utmost circumspection. 10. The first question for consideration would be, whether the death of deceased Parniyabai was homicidal in nature ? 11. The trial Court has recorded an affirmative finding with regard to this question on the basis of postmortem report (Ex. P/19) wherein Dr. Sulbha Ahaluwalia (P.W.­15), who has conducted the postmortem of deceased Parniyabai, has opined that there were in total 12 step wounds on the face, neck, shoulders and hands of the deceased out of which 6 step wounds were found only in her neck. She has further opined that the cause of death is cardio­respiratory arrest due to cut injury of great arteries/vein/nerve of neck, trachea and esophagus and the nature of death is held to be homicidal, which the trial Court has accepted and after hearing learned counsel for the parties and after considering the evidence available on record, we are of the considered opinion that learned trial Court is absolutely justified in holding that the death of deceased Parniyabai is homicidal in nature. Even otherwise, this has not been seriously disputed by learned counsel for the appellant/accused. As such, we hereby affirm the said finding recorded by the trial Court that death of deceased Parniyabai is homicidal in nature. 12. The next question for consideration would be, whether the death of deceased Parniyabai was caused by the appellant herein ? 13. Learned trial Court has convicted the appellant/accused on the basis of extra­judicial confession made by him to Suresh Kumar Dahariya (P.W.­4) and also on the basis that pursuant to the memorandum statement of the appellant/accused, recovery of blood stained axe has been made vide Ex. P/13 which was also sent for chemical examination and as per the F.S.L. report (Ex. P/31), human blood has been found on the said axe. 14. P/13 which was also sent for chemical examination and as per the F.S.L. report (Ex. P/31), human blood has been found on the said axe. 14. Suresh Kumar Dahariya (P.W.­4) though has stated in paragraph 1 of his statement that he was informed about the incident by Chandrahas Kumar Kurre (P.W.­1) but thereafter in the next paragraph, he has also stated that when he visited the place of incident along with Chandrahas Kumar Kurre (P.W.­1), then the appellant/accused himself told him that he has murdered her wife Parniyabai with an axe because he had suspicion on her character and thereafter, he also cut both his hands by razor blade. In his cross-examination in paragraph 3, he maintained his version that he reached the spot after being informed about the incident by Chandrahas Kumar Kurre (P.W.­1) and the appellant/accused himself narrated the whole incident to him admitted that he has murdered his wife Parniyabai. As such, since Suresh Kumar Dahariya (P.W.­4) has been consistent in his statement and he has maintained his version of extra­judicial confession made to him by the appellant/accused himself, there is no reason not to accept his statement that the appellant/accused has made extra­judicial confession to him regarding causing death of his wife with an axe and we do not find any infirmity in the said finding recorded by the trial Court. Even otherwise, there is no reason for falsely implicating the appellant/accused herein by Suresh Kumar Dahariya (P.W.­4). 15. Similarly, the appellant/accused has made disclosure statement under Section 27 of Indian Evidence Act, 1872 (Ex. P/11) that on 02/07/2012 at about 11:30 PM, upon doubting the character of his wife Parniyabai, he has murdered her by causing injuries on her neck and other parts of body with the help of an axe. Pursuant to his memorandum statement (Ex. P/11), blood­stained axe has been seized vide Ex. P/12 which was sent for chemical analysis and according to the F.S.L. report (Ex. P/31), human blood has been found on it but the blood­group could not be ascertained. Likewise, blood­stained lungi and banyan were also recovered from the appellant (Ex. P/13) and sent for chemical analysis and as per the F.S.L. report (Ex. P/31), human blood has also been found in these articles. Neelkanth Verma (P.W.­ 13) has proved the memorandum given by the appellant and he has also supported the seizure of aforesaid articles. 16. Dr. Likewise, blood­stained lungi and banyan were also recovered from the appellant (Ex. P/13) and sent for chemical analysis and as per the F.S.L. report (Ex. P/31), human blood has also been found in these articles. Neelkanth Verma (P.W.­ 13) has proved the memorandum given by the appellant and he has also supported the seizure of aforesaid articles. 16. Dr. Sulbha Ahaluwalia (P.W.­15), who has conducted postmortem of deceased Parniyabai, has also supported the case of the prosecution and stated that the step wounds suffered by the deceased Parniyabai can be caused from the axe recovered from the appellant/accused considering the length, width and depth of the injuries. As such, taking consideration of all the circumstantial as well as material evidence available on record, we are of the considered opinion that learned trial Court is absolutely justified in relying upon the extra­judicial confession made by the appellant/accused to Suresh Kumar Dahariya (P.W.­4) and convicting him for offence punishable under Section 302 of IPC. We hereby affirm the judgment of conviction passed by learned trial Court to the extent of convicting the appellant/accused under Section 302 of IPC and the sentence awarded accordingly. 17. The appellant/accused has also been convicted for offence punishable under Section 309 of IPC. After going through the record however, we are inclined to set aside the jail sentence of one year awarded to the appellant/accused. 18. The Supreme Court in the matter of Gian Kaur (SMT) v. State of Punjab, (1996) 2 SCC 648 has overruled its earlier judgment passed in the matter of P. Rathinam v. Union of India, (1994) 3 SCC 394 wherein Section 309 IPC had been struck down as unconstitutional and has further held that Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can extinction of life' be read to be included in protection of life'. It has further been held that the severity of the provision is mitigated by the wide discretion in the matter of sentencing since there is no requirement of awarding any minimum sentence and the sentence of imprisonment is not even compulsory. There is also no minimum fine prescribed as sentence, which alone may be the punishment awarded on conviction under Section 309 of IPC. 19. There is also no minimum fine prescribed as sentence, which alone may be the punishment awarded on conviction under Section 309 of IPC. 19. Concludingly, in light of the decision rendered by the Supreme Court in the matter of Gian Kaur (supra), we hereby affirm the conviction of the appellant/accused herein for offence punishable under Section 302 of IPC, however, while maintaining his conviction for offence punishable under Section 309 of IPC, we set aside the sentence awarded to him for one year and reduce the fine amount from Rs. 1,000/­ to Rs. 500/­. Accordingly, the impugned judgment of conviction passed by learned trial Court is modified as stated herein. 20. The instant appeal is allowed to the extent indicated herein­above.