IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL JAIL APPEAL NO. 104/2008 Gopal Singh ……… Appellant Versus State of Uttarakhand ………. Respondent Ms. Anjali Noliyal, Amicus Curiae, for the appellant. Mr. M.A., Brief Holder, for the State. 20th September, 2011 Hon’ble Servesh Kumar Gupta, J. This criminal jail appeal has been preferred against the judgment and order dated 29.2.2008, passed by the Sessions Judge, Champawat (Camp Court Lohaghat) in Sessions Trial No. 13/2005, State v. Gopal Singh, in Crime No. 1/2005, whereby the accused Gopal Singh has been convicted under Section 304(Part II) and 326 IPC for the assassination of his wife and aunt. 2. The learned Amicus Curiae on behalf of the appellant argued that the appellant has been convicted on the basis of statement of his mother made under Section 164 CrPC before the Chief Judicial Magistrate, Champawat. Though that statement was proved by the concerned Magistrate before the trial court, but the deponent Smt. Punly Devi (mother) resiled from her said statement of Section 164 CrPC, and deposed contrary before the trial court. 3. It is settled position of law that statement of Section 164 CrPC does not hold the substantive value under the Evidence Act, albeit the same has been proved 2 by the Magistrate before the trial court. It is also submitted by the learned Amicus Curiae that two eyewitnesses turned hostile. She further submitted that it has come in the evidence that the accused appellant bet her aunt and wife by an iron rod when he was in the state of mental fits. 4. The learned Amicus Curiae, without arguing anymore on the merits of the case, has only prayed for clemency of this Court for reduction of the sentence. 5. The learned Trial Court has convicted Gopal Singh under Section 304 (II) IPC and sentenced him to ten years’ rigorous imprisonment along with fine of rupees twenty five thousand. In default of payment of fine, he has been further directed to undergo two years’ rigorous imprisonment. The appellant has also been convicted under Section 326 IPC and sentenced to seven years rigorous imprisonment along with fine of rupees ten thousand. In default of payment of fine, he is directed to undergo one year’s rigorous imprisonment. The term of sentences, as awarded above, have been ordered to run consecutively. 6. Having considered the facts and circumstances of the case and in view of the prayer advanced by the learned Amicus Curiae, this Court is of the opinion that the ends of justice would be met if the substantive sentences are directed to run concurrently instead of consecutively, and if the amount of fine imposed on the appellant is reduced. Accordingly, it is directed that both the sentences inflicted upon the accused appellant under Section 304 (II & 326 IPC will run concurrently. Fine of rupees twenty five thousand imposed under Section 302 (II) IPC is done away with, while the fine of rupees ten thousand imposed under 3 Section 326 IPC is reduced to rupees one thousand. In default of payment of this fine, the appellant shall undergo one month’s imprisonment. 7. Resultantly, the appeal is dismissed on merit, while it is partly allowed on the quantum of sentence. The impugned judgment and order dated 29.2.2008, passed by the Sessions Judge, Champawat (Camp Court Lohaghat) in Sessions Trial No. 13/2005, State v. Gopal Singh, is affirmed with the modification in the sentence as indicated above. 8. Let a copy of this judgment and order be sent to the trial court for compliance. Lower court record be sent back. (Servesh Kumar Gupta, J.) 20.9.2011 Prabodh