IN HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal no. 778 of 2001 (Old N. 1685 of 1991) (1) Dayal Singh S/o Shri Bachan Singh R/o Village Shivpuri Patwari Chhetra Satera Khal District Chamoli. (2) Pooran Singh S/o Shri Govind Puri R/o Village Geed Patwari Chhetra Rudra Prayag District Chamoli. (3) Ghanshyam Singh S/o Shri Kalam Singh R/o Village Supari Patwari Chhetra Satera Khal District Chamoli. (4) Aalam Singh S/o Shri Kalam Singh R/o Village Supari Patwari Chhetra Satera Khal District Chamoli. ---Applicants Versus State -----Respondent Sri Rajendra Kotiyal, learned counsel for the appellants. Sri G.S. Sandhu, learned Government Advocate for the State. Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. [Oral: Prafulla C. Pant., J.] This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 31.07.1991, passed by learned Sessions Judge, Chamoli at Gopeshwar, in Sessions trial No. 25 of 1989, whereby the appellants, namely, Dayal Singh, Pooran Singh, Ghanshyam Singh and Aalam Singh, are convicted under Section 302/34 read with Section 201 Indian Penal Code, 1860 (hereinafter referred as I.P.C.) and each one of the convict / appellant is sentenced to imprisonment for life, under Section 302/34 of I.P.C., and to rigorous imprisonment for a period of seven years, under Section 201 of I.P.C. (2) Heard learned counsel for the appellants, learned Government advocate for the State, and perused the trial court record. (3) Prosecution story in brief is that on 10.01.1989, P.W.2 Jagmohan Singh gave a report to Patti Patwari of Satera Khal, District Chamoli, that his brother Indramohan Singh (deceased) aged 35 years, is missing from the village Khtera since 06.01.1989 (In Uttarakhand hills in certain areas Revenue Officials are given police powers). According to prosecution, search was made of the deceased for quite sometime but his whereabouts could not be found. Thereafter on 07.02.1989, another report (Ext.A-2) was given by P.W. Jagmohan Singh that at about 11.00 A.M. on that day one Mastan Singh orally reported to him that when he had gone to ease out that morning, he saw some vultures roaming and suspected that some dead body is lying around. On this Brijmohan Singh along with Mastan Singh and other villagers went towards there and found that the lying dead body was that of his brother Indramohan Singh. On the basis of report (Ext.A-2), P.W.7 Pitamber Dutt Semwal, Patwari, started the investigation after registering a case under Section 302 I.P.C.. Necessary entry was made in the general diary to this effect and check report (Ext.A-19) was prepared. The Investigating Officer made inquires from villagers including Aalam Singh, Rukmini Devi, Jasdai and others. He inspected the spot where the dead body was found and prepared site plan (Ext.A-8). The badly decomposed dead body found at the site was taken into possession by the Investigation Officer on 08.02.1989, and inquest report (Ext.A-9) was prepared. The Investigating Officer further prepared the Police Form No. 13 (Ext.A-12), letter to Chief Medical Office (Ext.A-10) requesting for postmortem examination, sketch of the dead body (Ext.A-11), sample seal (Ext.A-13, (Ext.A-14) and (Ext.A-15), recovery of the cloths of the deceased (Ext.A-17) and Police Form No. 33 (Ext.A-18). The dead body was sent of postmortem examination. On 09.02.1989 at 12.30 P.M., autopsy was conducted by P.W.5 Dr. A.K. Dwivedi in District Hospital, Gopeshwar. However, on postmortem examination he could not ascertain cause of death, as the dead body was badly decomposed. The Medical Officer prepared postmortem examination report (Ext.A-4). During investigation P.W.1 Gayatri Devi and one Gabbar Singh were also examined and their statements were got recorded under Section 164 Cr.P.C. before P.W.6 G.D. Tripathi, Sub Divisional Magistrate. It was stated by them in their statements that they had seen accused Dayal Singh, beating Indramohan Singh (deceased) in the presence of Pooran Singh, Ghanshyam Singh and Aalam Singh. After completion of the investigation, the Investigating Officer submitted charge sheet (Ext.A-21) against all the four accused / appellants Dayal Singh, Pooran Singh, Ghanshyam Singh and Aalam Singh, for their trial in respect of offences punishable under Sections 302 and 201 I.P.C. (4) The Magistrate on receipt of the charge sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., committed the case to the court of sessions for trail. Learned Sessions Judge, on 18.12.1989 after hearing the parties framed charge of offences punishable under Section 302 read with section 34 I.P.C. and one punishable under Section 201 of I.P.C. against all the four accused, namely, Dayal Singh, Pooran Singh, Ghanshyam Singh and Aalam Singh, who pleaded not guilty and claimed t be tried. On this prosecution got examined P.W.1 Gayatri Devi, P.W.2 Jagmohan Singh, complainant, P.W.3 Rajmohan Singh, another brother of deceased, P.W.4 Hukam Singh, P.W.5 Dr. A.K. Dwivedi, who conducted the autopsy, P.W.6 Shri G.D. Tripathi, Sub Divisional Magistrate and P.W.7 Pitamber Dutt Semwal, the Investigating Officer. Oral and documentary evidence was put to the accused on 01.05.1991 to which the accused / appellants alleged the same to be false and pleaded that Gayatri Devi (P.W.1) ha adduced false evidence against them for she was implicated earlier in the year 1965 in connection of murder of one Gomti Devi. However, no evidence was adduced in defence. After hearing prosecution, the trail court found all the four accused guilty of the charge of offences punishable under Section 302/34 I.P.C. and 201 I.P.C.) and to rigorous imprisonment for a period of seven years (under Section 201 of I.P.C.). Aggrieved by said judgment and order dated 31.07.1991, passed by learned Sessions Judge, Chamoli, at Gopeshwar, in sessions trial No. 25 of 1989, the convicts preferred this appeal before Allahabad High Court on 09.09.1991, where it was admitted. The appeal is received by this Court by transfer under Section 35 of U.P. Reorganisation act, 2000, for its disposal. (5) Before further discussions, we think it just and proper to mention what was found in the postmortem examination report by P.W.5 Dr. A.K. Dwivedi, who prepared autopsy report (Ext.A-4). The said report discloses that dead body was more than ten days old of average built person in a badly decomposed condition. It was further mentioned by the Medical Officer that no clear cut opinion can be given about the injury because the body was badly decomposed. Even flesh and skin were absent from all over the upper extremity. Skull was separated. All the teeths were absent from the upper jaw. Lower jaw separated from the skull. Two molar were attached. Four ribs broken and separated from the body of left side (3rd ,6th ,7th, and 8th ). Left hand was separated from the body and fingers of left hand were also absent. Both the legs were separated from the hip joint and skin and flesh was giving foul smell putrefied. On the internal examination membrances and brain were found absent. Heart and lungs were also found absent. Intestine, liver, pancreas, spleen, gallbladder and oesophagus were also fund absent. The Doctor at the end of his report mentioned that cause of death could not be ascertained. (6) It is pertinent to mention here before discussing the oral evidence that from the First Information Report, it appears that the deceased was missing since 06.01.1989 and his dead body was found after 32 days i.e. on 07.02.1989. As already discussed above, cause of death is not known in this case. The only alleged eyewitness of the incident is P.W.1 Gayatri Devi, who stated that she saw in the month of ‘POOS’ (January) accused / appellant Dayal Singh beating Indramohan Singh. She further stated that she saw other accused also there. From her examination-in–chief, it is clear that the time of incident was evening and three was already darkness. It is not clear that in what light P.W.1 Gayatri Devi could see the incident. It is also not clear from the record that what she was doing in that chilly night near the house of Dayal Singh. What is astonishing is that she kept silent in the village through out since 06.01.1989, till her statement was got recorded on 11.02.1989, by the Investigating Officer. No doubt her statement was got recorded under Section 164 Cr.P.C. by Sub Divisional Magistrate G.D. Tripathi (P.W.6). On the basis of her silence for more than 33 days relating to death of a person coupled with the fact that her presence in the house of accused / appellant Dayal Singh is not natural Nor is there any source of light in which she could witness the incident, we find substance in the argument of learned counsel for the appellants that statement of P.W.1 Gayatri Devi cannot be said to be trustworthy and reliable without getting corroborated from other independent evidence. A reasonable doubt appears in the truthfulness of the statement made by P.W. 1 Gayatri Devi, for the three reasons we have mentioned above. (7) Once statement of P.W.1 Gayari Devi is not found truthful and reliable, the entire evidence on record is circumstantial in nature. Dead body of Indramohan Singh is found to be in the field of Bardan Singh, who is brother of accused Dayal Singh. It is highly unnatural on the part of the person committing murder that he will keep a dead body in his own or his brother’s field for 32 days so that he may be ultimately implicated in the crime. The motive of commission of crime suggested by the prosecution is also doubtful. It is stated by the witnesses of prosecution that Indramohan Singh (deceased) used to crack jokes with sister-in-law of the accused Dayal Singh, which he did not like. Having illicit relations with a member of one’s family Is something different than merely cracking jokes with someone who is known and relation of the person concerned. It is nobdy’s case that Indramohan Sigh had any illicit relation with Amra Devi (sister-in-law of Dayal Singh). According to prosecution case Kusum a student of class IX also witnessed the incident but for the best reasons known to the prosecution she was not examined in the court. The only other witness Gabbar Singh whose statement was got recorded under Section 164 Cr.P.C. is said to have died before he could be examined in the court. Another important feature in the case is that P.W.7 Pitamber Dutt Semwal has stated in his cross-examination that the deceased was addict of alcohol. In the circumstances, when the cause of death could not be ascertained by the Medical Officer and dead body remained lying in a field down the hilly track it is argued on behalf of the accused / appellants that the deceased might have fallen in a drunken state from the path way. The evidence on record shows that defence had suggested to the witnesses that the deceased was a drunkard. Having considered the submissions of learned counsel for the parties and after going through the entire evidence on record, we find substance in the submissions made on behalf of the appellants. Apart from this, identification of the dead body itself is not fully proved by the prosecution. (8) For the reasons as discussed above, we are of the view that the learned trial court has erred in law in convicting the accused / appellants Dayal Singh, Pooran Singh, Ghanshyam Singh and Aalam Singh on the charge of offences punishable under Section 302/34 I.P.C. and one punishable under Section 201 I.P.C.. After considering the entire evidence on record, we are of the view that prosecution ah failed to prove the said charges against the accused / appellants. beyond reasonable doubt, and as such they are entitled to the benefit of the same. (9) Having gone through the statements of the witnesses examined by the trial court and after perusing the relevant documents, we find that none of the charges are proved against the accused / appellants beyond reasonable doubt. Accordingly, this appeal deserves to be allowed. The appeal is allowed. The impugned judgment and order dated 31.07.1991, passed by learned Sessions Judge, Chamoli at Gopeshwar, in Sessions Trial No. 25 of 1989, is set aside. Accused / appellants Dayal Singh, Pooran Singh, Ghanshyam Singh and Aalam Singh, are acquitted of the charge of offences punishable under Section 302/34 I.P.C. and one punishable under Section 201 I.P.C. Their conviction recorded by the trial court and sentences awarded to them are set aside. They are on bail. They need not to surrender. (Dharam Veer, J.) (Prafulla C. Pant, J.) 18.02.2008 NS