JUDGMENT :

Kaushal Jayendra Thaker, J.

1. Heard Sri Suresh Srivastava, learned counsel for the appellant and Sri Nagendra Kumar Srivastava, learned A.G.A. for the state.

2. This appeal challenges the judgment and order dated 16.10.2012 passed by Additional Sessions Judge, Court No. 4, Mirzapur in Sessions Trial No.171 of 2010 (State vs. Sita Ram) arising out of Case Crime No.473 of 2010 convicting accused-appellant under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced the accused-appellant to undergo imprisonment for life with fine of Rs.5,000/-and in case of default of payment of fine, further to undergo imprisonment for a period of one year.

3. The genesis of the litigation are that the deceased was married to the accused appellant Sita Ram in the month of May, 2006. It is alleged in the F.I.R that the accused demanded money and a motorcycle, when the deceased showed her inability to get the same from her parents the sad news of her death came on 26.05.2010. The F.I.R was lodged on the very same day by the father of the deceased. The police moved to scene of offence and prepared panchnama. The dead body was sent for postmortem and the post-mortem report revealed that the death was due to strangulation.

4. The police after recording the statements of several witnesses filed charge-sheet against the accused. Being summoned the accused was committed to the court of Sessions as the offence for which the accused was charged was exclusively triable by the court of Sessions.

5. On the accused pleading not guilty on 14.10.202010 charges were framed for commission of offence under Section 498A, 304-B I.P.C read with 3/4 of D.P. Act.

6. The witnesses were examined and after two witnesses namely P.W.-1 and P.W.-2 were examined and when they did not support the prosecution, a new charge was framed by the transferred new incumbent Sessions Judge charging the accused for commission of offence under Section 302 of I.P.C.

7. The Trial started and the prosecution examined 4 witnesses who are as follows:

8. In support of ocular version following documents were filed:

9. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellant as mentioned above.

10. Learned counsel for the appellant has relied on the decision in Sanjay Maurya Vs. State of U.P., 2021 0 Supreme(All) 132 and has contended that it is not proved that the offence under Section 302 is committed nor any offence under Section 304B is proved against the accused, the case cannot be said to be proved under Section 302 of Indian Penal Code as the conviction by Trial Court with the aid of Section 106 of the Indian Evidence Act, 1872 is bad. It is further submitted that the decisions on which the trial court has placed reliance have been misread by the learned trial Judge so as to hold that accused is guilty of commission of offence under Section 302 IPC. It is further submitted that the incident even if it is believed to have occurred and culpability of accused is proved it occurred on the spur of the moment, therefore, the accused if has to be held guilty, the accused be convicted under Section 304(1) of the I.P.C.

11. As against this Sri N.K. Srivastava, learned counsel for the State has contended that

(i) the death occurred in the matrimonial home of the deceased;

(ii) the incident occurred within 7 years