R.A. Misra, J.

1. These appeals arise out of the judgment and order dated 8-12-1981 passed by Sri R.S. Agrawal, Sessions Judge, Hardoi, convicting the Appellant Murli under Section 302 IPC and sentencing him to undergo imprisonment for life.

2. The facts which have given rise to these appeals are briefly put as below: The accused Appellant Murli is a resident of village Ebrahimpur, P.S. Mallawan in the district of Hardoi. The deceased Smt. Angna was his wife. Babu Lal (PW 1) real brother of Smt. Angna visited Ibrahimpur on 26th of January 1962 to invite his sister for participation in a Bramh Bhoj which was to take place at his residence. The Appellant Murli as usual refused to permit her to go to her parents house. Consequently a quarrel followed. Babu Lal stayed at Murlis residence, and it so appears Smt. Angana continued to persue her husband to permit her to leave along with his brother for participation in the Bramha Bhoj. Babu Lal heard a quarrel between the two at about 4 P.M. on 27th of January 1962 and pacified the couple to be calm and adjourn the matter to be considered after sun-rise. Smt. Angana then after some time came to Babu Lal and asked him that they should leave for Raja Umri the village where the Bramha Bhoj was to take place. The Appellant insisted that he would not permit her to go and assaulted her with a Khurpi. Smt. Angna received two injuries and succumbed to her injuries stantaneously. The cries raised by Babu Lal attracted Durjan (PW-2), Chhedan (Since deceased) and some other persons who reached the scene of the occurrence to find the Appellant running away along with the Khurpi. Babu Lal lodged FIR at the Police Station Mallawan at 10.45 A.M. on the same day. The distance of the P.S. is 7 miles from the scene of the occurrence. The accused remained absconded till 4-6-80 for about 18 years when he was arrested. The deposition of the Medical Expert Dr. B.S. Darbari and Chhedan was recorded under Section 512 Code of Criminal Procedure (old) (Section 299 New). Sri Chhedan expired a few years before the commencement of the trial and the presence of the Medical Expert could not be procured without delay, so their evidence recorded under Section 512 Code of Criminal Procedure (old) was tendered and admitted in evidence. The prosecution examined Babu Lal (PW-1), Durjan (PW-2), as witnesses of fact.

3. The accused pleaded not guilty and stated that he remained absconding because his children were minor and appeared when they became major. The learned Judge on a consideration of the entire evidence arrived at the conclusion that the offence punishable Under Section 302 IPC is proved beyond doubt against the Appellant. He has consequently convicted and sentenced him for the same. He has felt aggrieved and preferred one appeal from Jail and another through his Counsel. This judgment governs both the appeals.

4. It is proved from the deposition of Indrapal Singh, S.O. Mallawan that the Appellant remained absconding for a very long period and his attendance could not be procured even after the proceedings Under Sections 87 and 88 Code of Criminal Procedure. He was arrested by Mahabir Singh constable of police station Mallawan on 4-6-80. The Appellant has not denied the factum of his remaining absconding for such a long period and the explanation offered for the same by him is wholly unsatisfactory. He says that as his children were minor when he was roped in this case, so he remained absconding till the children attained the age of majority.

5. It is proved that as the accused Appellant was absconding, so the depositions of Dr. B.S. Darbari and Chhedan were recorded in the absence of the accused. It is proved that Chhedan expired long before the commencement of the trial against the Appellant the presence of the medical expert who conducted the post-mortem examination could not be procured without any amount of delay. So the depositions of Chhedan and Dr. B.S. Darbari were tendered in evidence Under Section 512 old Code of Criminal Procedure and read in evidence against the accused. The learned judge was perfectly justified in making use of the depositions of Chhedan and Dr. Darbari under the provisions of Section 512 old and 299 new Code of Criminal Procedure.

6. The evidence of Dr. B.S. Darbari Ext. Ka-15 and post-mortem examination report Ext. Ka-14 fully corroborate the prosecution story that Smt. Angana succumbed to the two injuries in early hours of 27-6-62. The medical evidence further corroborates the prosecution story that the two injuries found on the dead body which were the cause of death could have been caused by a Khurpi. The medical (sic) story regarding the date and time of the occurrence as well as the weapon used in causing the death.

7. The deposition of Chhedan recorded Under Section 512 Code of Criminal Procedure (old) (299, New) proves a very material circumstance that Chhedan reached the scene of occurrence on hearing the cries and found the Appellant running away along with Khurpa. His deposition further proves that Babu Lal Pw 1 chased the Appellant but could not apprehend him. He has further deposed that when he went inside the house, he found Smt. Angana lying dead with injuries on her neck. He has further deposed that Babu Lal informed him that it was the Appellant Murli who had caused the Khurpa injuries to Smt. Angana. The evidence of Chhedan, Babu Lal PW 1 and Durjan PW 2 proves beyond doubt that the death of Smt. Angana has been caused in the early hours of 27-1-62 in her own house. The investigating officer has also found the dead body inside the house. It, therefore, leaves no room for doubt that the death of Smt. Angana has been caused inside her own house by causing incised wounds on her neck by means of a Khurpa.

8. Babu Lal PW 1 has lodged the FIR at the police station at 10.45 a.m. on the same day. He has named Murli as the assailant and has also given all the details of the prosecution story which has been narrated in the opening of this judgment. It so appears that after lapse of long time of 18 years when the Appellant was put up for trial then Babu Lal developed some soft corner for Murli and has made an attempt to help him by saying that he has not actually seen the Appellant causing the injury on the person of Smt. Angana by means of a Khurpa. He has been confronted with the facts which he stated in the FIR. He says that he did not inform by dictating the FIR that he saw the accused causing the injury and that he cannot explain how these facts have been written in the FIR. The constable who has written the FIR has deposed to have written it on the dictation of Babu Lal. The deposition of Bhragudeo Singh constable falsifies the version of Babu Lal PW 1 and he did not state these facts while dictating the FIR. The deposition of Babu Lal recorded by the Court below proves that the Appellant and his wife Smt. Angana deceased were sleeping in the same house in the night and that a quarrel did take place between them at about 4 in the early morning. He further proves that thereafter Smt. Angana was found dead with Khurpa injuries on her neck and the Appellant absconded and remained absconding for long period of more than 18 years.

9. The evidence of Durjan also proves that when he reached the scene of occurrence on hearing the cries then he found Angana lying dead. He has also been confronted by his previous statement recorded Under Section 299 Code of Criminal Procedure wherein he has deposed to have seen the accused running away along with Khurpa and Babu Lal chasing him. He has further deposed before the Sessions Judge in his deposition recorded Under Section 299 Code of Criminal Procedure that Babu Lal did say at that very time that it was the Appellant who caused the fatal injuries to Angana. Durjan simply says that he does not remember if his statement was recorded in the year 1963 when the accused was absconding. The fact that his statement was recorded Under Section 299 Code of Criminal Procedure is proved beyond doubt and is Ext. Ka. 16 on record. It fully corroborates the prosecution case that the Appellant was seen by him running along with Khurpa and that Babu Lal did inform him at that very time that it was the Appellant who had caused the fatal injuries to Smt. Angana. The only possible conclusion which can be drawn from the facts and circumstances appearing on the record is that these witnesses are resiling from their previous statement recorded Under Section 299 Code of Criminal Procedure simply because after about 18 years they appear to have developed soft corner for the Appellant and are trying to help him by twisting their previous statements. Under these circumstances the previous statements recorded Under Section 299 shall be relied upon and used against the Appellant. The Appellant has not offered any explanation in his statement why these witnesses deposed against him in the year 1963 when their statements were recorded during the period when he was absconding. There is not a word in the statement of the accused to state that Chhedan has any reason to depose falsely against him. As I have observed above Chhedans deposition recorded Under Section 299 Code of Criminal Procedure can safely be relied upon and used against the Appellant.

10. We have gone through the entire evidence and have no hesitation in arriving at the conclusion that the offence punishable Under Section 302 IPC is proved beyond doubt against the accused Appellant. The finding of the learned judge is perfectly correct. The Appellant has been rightly convicted and sentenced by the Court below. The appeals have got no force and shall be dismissed.

11. The appeals are dismissed. The conviction and sentence passed against the Appellant Murli Under Section 302 IPC is confirmed. He is in jail. Let him remain in jail to serve out the sentence.

Appeal dismissed.