IMPORTANT POINT
Distinction between sections 299 and 300 as also principles for applying provisions of section 300, thirdly restated.

Judgment

Dr. Arijit Pasayat, J. —

1. Heard learned counsel for the parties.

2. Leave granted.

3. Challenge in this appeal is to the Judgment of a Division Bench of the Uttarakhand High Court dismissing the appeal filed by the appellant. In the appeal challenge was to the Order of conviction recorded by the learned Sessions Judge, Chamoli in Sessions Trial No.8 of 1986 for offence punishable under Section 302 the Indian Penal Code, 1860 (in short ‘IPC’). The appellant was sentenced to undergo rigorous imprisonment for life.

4. Prosecution story in brief is that house of Budhi Lal (appellant) is one kilometer away from village abadi in village Airash. Appellant got married firstly to one Sobati Devi, but he had no issue from her. Later, he got married to Jashu Devi (hereinafter referred to as the ‘deceased’) and from her he had seven children. Out of the seven, eldest daughter Sushila was married. Both the ladies used to live with Budhi Lal in aforesaid house. Jaspal (PW.3) of village Kaphalkhet came to the house of Budhi Lal on 9.8.1985, in connection with purchase of a pair of bullocks, belonging to him. The deal was settled at Rs.1200/- and in that night Jaspal stayed in the house of Budhi Lal. After having meals the family members and Jaspal slept in the house. In said intervening night i.e. 9/10th August, 1985, appellant Budhi Lal at about 2 a.m. committed murder of Jashu Devi. According to the prosecution Jaspal woke up to go to toilet and saw from a window that Budhi Lal sitting on the chest of Jashu Devi, assaulting her with his hands. On being questioned, why he is doing so, Budhi Lal told him that he was telling his wife to behave. Appellant asked Jaspal being guest he should leave the place and sleep in another room. Next morning, Budhi Lal told the villagers that his wife Jashu Devi has died of pain in her stomach. He asked Jaspal to go to the houses of his brothers and relations living in village Jilasu and inform them about the death of Jashu Devi. Jaspal (PW.3) informed the relatives of Budhi Lal, as told by him about the death of his wife due to pain in her stomach and came back to the village. Meanwhile, Sobati Devi informed the village Pradhan about the death of Jashu Devi. The village Pradhan came to the spot at 10 a.m. and thereafter got sent the information of death of Jashu Devi to Patwari of the area (in Uttarakhand hills Patwaris are given police powers). The Patti Patwari Sri Kareem Bux (PW.6) received the information on 10.8.1985 at his Chauki when he returned back in the evening. The entry of written information (Ext. A-2) sent through Ashadu Lal was made in the General Diary (copy of which is extract Ext. A-3), by the Investigation Officer Kareem Bux on the next day at 11.30 a.m., Patwari came to the spot and took the dead body in his possession, sealed it and prepared the inquest report (Ext. A-4) and sketch of the dead body (Ext. A-5). He also prepared a letter of request (Ext. A-6) for the post mortem examination and sent the dead body for autopsy. Meanwhile, he prepared site plan (Ext. A-9) on same day i.e. 11.8.1985. He also recorded the statements of the witnesses of the inquest report. The post mortem examination was conducted by Dr. S.K. Srivastava (PW.1) on 12.8.1995 at 4.30 p.m. at District Headquarter, Gopeshwar (District Chamoli). The said Medical Officer prepared post mortem examination report (Ext. A-1). He opined that Jashu Devi had died due to suffocation as a result of obstruction in respiratory passage. He also recorded the ante mortem injuries found on the body of the deceased. Investigating Officer Kareem Bux (PW.6) thereafter examined Budhi Lal and his daughter Sushila. The Investigating Officer also interrogated other witnesses. On completion of the investigation, charge sheet (Ext. A-8) was filed by Investigating Officer on 20.11.1985, before the Magistrate concerned.

5. The case was committed by the court of learned Magistrate concerned to the Court of Sessions. Since the appellant p