IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1502 of 2001 (Old No. 1430 of 1995) 1. Mahanand (since deceased) S/o Nanda R/o Brahmpuri, B.H.E.L. Ranipur, Haridwar. 2. Isham Singh S/o Nanak Singh R/o Village Paniala, P.S. Gang Nahar, Distt. Haridwar. 3. Shishupal Singh (since deceased) S/o Rati Ram R/o Village Paniala, P.S. Gang Nahar, Distt. Haridwar. ...…………. Appellants Versus State of U.P. (Now State of Uttarakhand) ...…………. Respondent Mr. H.C. Pathak, Advocate, present for the appellants. Mr. S.S. Adhikari, Asstt. Government Advocate, present for State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Nirmal Yadav, J. Hon. Prafulla C. Pant, J. (oral) This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), 2 is directed against the judgment and order dated 05.09.1995, passed by First Addl. Sessions Judge, Haridwar, in Sessions Trial No. 288 of 1991, whereby said court has convicted accused / appellants Isham Singh and Sheesh Pal (since deceased) under Section 302 read with Section 34, and one punishable under Section 201 of the Indian Penal Code, 1860 (for short I.P.C.). Accused / appellant Mahanand has been convicted under Section 364 of I.P.C. He has been sentenced to imprisonment for life under said Section. Each of the accused / appellants Isham Singh and Sheesh Pal has been sentenced to imprisonment for life (under Section 302 / 34 of I.P.C.), and rigorous imprisonment for a period of three years (under Section 201 of I.P.C.). 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that Ranjit Singh (son of deceased Harpal) had illicit relations with Tarawati, cousin sister of Isham Singh (accused / appellant), about nine years before the incident, and he (Isham) had taken Tarawati to Brahmpuri, and due to this reason there was enmity between Harpal (deceased) and Isham Singh (appellant). Ranjit Singh (son of the deceased) was untraceable. Prosecution case is that accused / appellant Sheesh Pal conspired with accused / 3 appellant Mahanand and took Harpal at about 10:00 A.M., on 25.03.1990, to the liquor shop at Jhabreda. Accused / appellants Sheesh Pal and Isham Singh were already there. They took liquor and thereafter all the three left towards Paniala in a scooter. When Harpal did not come back by evening, his wife Baldai (P.W. 5) started making search for her husband. On inquiry from Mahanand, she was told that Harpal was coming to home. However, he did not return. On this, on 31.03.1990, she (Baldai) lodged a missing report at police station Ranipur. When no action was taken, a copy of the report was got sent through Member of Parliament of Haridwar constituency, and on its basis a case was registered on 20th of April 1990, under Section 364 of I.P.C. Before investigation started, the police had got recovered a male skeleton on 04.04.1990, regarding which an entry was made in the General Diary at police station Gangnahar. The police on its basis prepared inquest report (Ext. A –13) and other necessary papers, and got sent the skeleton for postmortem examination. P.W. 8 Dr. A.K. Jain conducted postmortem examination on 5th of April 1990, who opined in the autopsy report (Ext. A –10) that cause of death could not be ascertained. He further observed that the bones were preserved for being sent for examination. The report of the Forensic Science Laboratory disclosed that the bones were of an adult male, aged above 25 years. After the investigation started, the Investigation Officer interrogated the 4 witnesses, and recovered a H.M.T. watch belonging to the deceased on pointing out of accused / appellant Isham Singh, from his house. It is also stated that an extra judicial confession was made by the three accused / appellants to one Rajesh (not examined). On completion of investigation, the Investigating Officer submitted charge sheet (Ext. A –29) against the three accused / appellants, namely Mahanand, Isham Singh and Sheesh Pal, for their trial in respect of offences punishable under Section 364, 302, 201 of I.P.C. 4) The Chef Judicial Magistrate, Haridwar, on receipt of the charge sheet after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of sessions for trial. Learned Addl. Sessions Judge, Haridwar, to whom the case was transferred, on 03.12.1991, after hearing the parties, framed charge of offences punishable under Section 364, 302 / 34, and one punishable under Section 201 of I.P.C., against the three accused / appellants, namely Mahanand, Isham Singh and Sheesh Pal. All the three pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Sewa Ram; P.W. 2 Ajay Kumar; P.W. 3 Harjeet Singh; P.W. 4 Baljeet Singh; P.W. 5 Smt. Baldai; P.W. 6 Ilam Chand; P.W. 7 Som Pal; P.W. 8 Dr. A.K. Jain; P.W. 9 Head Constable Hari Singh; P.W. 10 Dr. Surendra Pal; P.W. 11 Raj Pal Singh; P.W. 12 5 Ramesh Chaudhary; P.W. 13 Sheel Chand Tyagi; P.W. 14 Babu Ram; P.W. 15 Surendra Singh Yadav; P.W. 16 Virendra Kumar Sharma; P.W. 17 Head Constable Balbir Singh and P.W. 18 Umesh Chandra Tyagi. The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to which they alleged that they had never made any extra judicial confession. They had further pleaded that the witnesses have given false evidence as against them. However, no evidence appears to have been adduced in defence. The trial court, after hearing the parties, found accused Mahanand guilty of charge of offence punishable under Section 364 of I.P.C., and the other two accused namely Isham Singh and Sheesh Pal guilty of the charge of offence punishable under Section 302 read with Section 34, and one punishable under Section 201 of I.P.C. After hearing on sentence, accused Mahanand was sentenced to imprisonment for life (under Section 364 of I.P.C.), and each one of the other two convicts Isham Singh and Sheesh Pal was sentenced to imprisonment for life (under Section 302 / 34 of I.P.C.), and rigorous imprisonment for a period of three years (under Section 201 of I.P.C.). Aggrieved by said judgment and order dated 05.09.1995, passed by First Addl. Sessions Judge, Haridwar, in Sessions Trial No. 288 of 1991, this appeal was preferred by the convicts before the Allahabad High Court on 13th September 1995, where it was admitted on 03.11.1995. This appeal is received by 6 this court under Section 35 of the U.P. Re-organization Act 2000 (Central Act No. 29 of 2000), for its disposal. 5) Before further discussion, we think it just and proper to mention the findings recorded by P.W. 8 Dr. A.K. Jain, who conducted postmortem examination on 05.04.1990, on the skeleton recovered. The same are recorded in autopsy report (Ext. A –10). The Medical Officer has mentioned that the skeleton was of an adult human being and it was incomplete. He further observed that lower part of both bones of right upper extremities in the forearm were eaten away by animals. All carpals, metacarpals and phalanges were found missing. Left thumb whole was found with some carpel bones missing. Lower part of both bones of right lower extremities of right leg eaten away by animals, whole foot was missing. According to the Medical Officer, the dead body was about one to three weeks old. As to the cause of death, P.W. 8 Dr. A.K. Jain has observed that it could not be ascertained, and the bones were preserved for being sent for further examination. 6) Report dated 3rd June 1991 (Ext. A –32) received from Forensic Science Laboratory, Agra, shows that on examination bones were found to be of a person aged above 25 years. However, as to the cause of death, the Forensic Science Laboratory also could not give any opinion. 7 7) P.W. 1 Sewa Ram has stated that on 25.03.1990, he saw Mahanand and Harpal going towards Bahadarabad. P.W. 2 Ajay Kumar did not support the prosecution story, and was declared hostile. P.W. 3 Harjeet Singh has stated that Tarawati of his village had illicit relations with accused / appellant Isham, and in the year 1980, she had left with one Laxmi Chand. P.W. 4 Baljeet Singh has stated that a recovery of watch belonging to deceased Harpal was made on pointing out of accused / appellant Isham Singh from his house. P.W. 5 Smt. Baldai is the complainant, who has stated that she lodged missing report of her husband on 31st March 1990. P.W. 6 Ilam Chand has stated that the accused / appellants Mahanand, Sheesh Pal and Isham made extra judicial confession to one Rajesh that they have killed Harpal. P.W. 7 Som Pal has adduced the evidence that on 25.03.1990, he had last seen the three accused / appellants with deceased Harpal, at the liquor shop. 8) As far as the extra judicial confession is concerned, the evidence adduced by P.W. 6 Ilam Chand is not admissible in evidence, as the confession is said to have been made to one Rajesh (not examined), as such, what has been stated by P.W. 6 Ilam Chand is nothing more than hearsay evidence. As far as the motive of commission of crime stated by P.W. 3 Harjeet Singh is concerned, the same does not appear to 8 be a direct link with the commission of crime in question. The illicit relations between Tarawati and accused Isham Singh are said to have been more than ten years old, where after Tarawati had alredy left with one Laxmi Chand. For that reason, after ten years, commission of murder of Harpal for that reason doesn’t appear to be convincing. 9) It is pertinent to mention here that from the medical evidence, and the report received from the Forensic Science Laboratory, neither the cause of death could be ascertained, nor the identity of the deceased could be made out. In the circumstances, merely for the reason that one of the witnesses has stated that he last saw the deceased with the three accused, and testimony of a witness that watch of the deceased was allegedly recovered on pointing out of accused Isham, does not complete the chain of circumstances to rule out the possibility that the offence could have been committed only by the accused / appellants, and none else. 10) For the reasons as discussed above, we are of the view that in the present case, it cannot be said that the prosecution has successfully proved charge of offences punishable under Section 364, 302 / 34 and 201 of I.P.C. against the accused / appellants. Therefore, the appeal deserves to be allowed. Accordingly, the appeal is allowed. The impugned judgment and order dated 05.09.1995, passed by First 9 Addl. Sessions Judge, Haridwar, in Sessions Trial No. 288 of 1991, is set aside. Conviction and sentences recorded by the trial court against the accused / appellants also stand set aside. Accused / appellant Isham Singh is acquitted of charge of offence punishable under Section 302 / 34, and one punishable under Section 201 of I.P.C. He is on bail. He need not to surrender. His bail bonds are cancelled and sureties stand discharged. Lower court record be sent back. As far as the appeal of appellants Mahanand and Sheesh Pal is concerned, the same stand abated due to their death during the pendency of the appeal. (Nirmal Yadav, J.) (Prafulla C. Pant, J.) Dt. August 28, 2010. H. Negi 10