JUDGMENT

Prafulla C. Pant, J.

These appeals are directed against judgment and order dated 24.08.2007, passed by the High Court of Judicature at Allahabad, Lucknow Bench, in Criminal Appeal No. 201 of 2007 whereby said Court has disposed of Capital Reference No. 2 of 2007 along with criminal appeals filed by appellant Devendra Nath Srivastava arising out of judgment and order dated 18.01.2007 passed by Additional Sessions Judge/Special Judge (E.C. Act) Gonda, relating to conviction of the appellant under Section 302 of Indian Penal Code (for short "IPC") in Sessions Trial No. 258 of 2005. By the impugned order passed by the High Court, conviction of the appellant under Section 302 IPC has been set aside, instead he is convicted under Section 304 Part I IPC, and sentenced to rigorous imprisonment for ten years and to pay fine of 10,000/-, in default to under further ? six months rigorous imprisonment.

2. Prosecution story, in brief, is that appellant Devendra Nath Srivastava got married to Madhu Srivastava (deceased) on 04.03.1994. The couple had four children. On 12.05.2005 at about 7.30 p.m., complainant Shailender Kumar Srivastava, who is nephew of the appellant, heard cries of the appellant's children and rushed to the house of his uncle (appellant), where he saw the appellant assaulting his wife with brick. On seeing PW-6 and others coming from the neighbourhood, the appellant ran away. The appellant's wife (Madhu Srivastava) was taken by PW-6 Shailender Kumar Srivastava to District Hospital after arranging an ambulance. However, the doctors declared her brought dead.

3. A First Information Report (Ex. A-9) was got lodged by PW-6 at Police Station Kotwali City Gonda on the very day at about 21.45 hours. Crime No. 169 of 2005 was registered based on the said F.I.R. The Investigating Officer, after interrogating the complainant, went to the spot and got sealed the dead body of the deceased and prepared the inquest Report (Ex. A-1). On 13.05.2005 PW-7 Dr. Rajkumar conducted autopsy, and opined that the deceased had died of asphyxia on account of ante mortem injuries. In all, nine ante mortem injuries were recorded in the post mortem examination report (Ex. A-10). Meanwhile, the appellant was arrested, and on his pointing out recovery of the brick used in the crime was made. The blood-stained shirt and pants of the appellant were also taken into possession by the police in respect of which memo (Ex. A-13) was prepared. After completion of investigation, a charge sheet was submitted by Investigating Officer Rajender Prasad Singh (PW-8) against the appellant for his trial.

4. It appears that the case was committed to the court of Sessions for trial. On 10.08.2005 learned Sessions Judge, Gonda framed charge in respect of offence punishable under Section 302 IPC against the appellant-accused Devendra Nath Srivastava to which the accused pleaded not guilty and claimed to be tried. On this, prosecution got examined PW-1 Vijay Kumar Chaurasia, PW-2 Rampher Jaiswal, PW-3 Sadhna Srivastava, PW-4 Virender Singh, PW-5 Preeti Srivastava, PW-6 Shailender Kumar Srivastava (informant), PW-7 Dr. Rajkumar and PW-8 Incharge Inspector Rajender Prasad Singh (Investigating Officer).

5. The prosecution evidence was put to the accused under Section 313 of Criminal Procedure Code (Cr.P.C.), in response to which he pleaded that at the time of incident he had gone to his native village to give medicines to his mother. Thereafter, on behalf of the defence DW-1 Shyam Rang and DW-2 Chandermukhi were got examined. The trial court in its wisdom got summoned court witness Adesh Kumar Srivastava (CW-1), the eldest son of the deceased who was minor. His statement was recorded on 16.11.2006. Thereafter, this additional evidence was also put to the accused under Section 313 Cr.P.C.

6. After hearing the parties, the trial court found that the charge in respect of offence punishable under Section 302 is proved against the accused, and convicted him accordingly. The partie