IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 456 of 2001 (Old No. 2119 of 1993) Mahendra Singh R/o Village Khetal Sanda P.S. Khatima District Nainital. ….....Appellant. Versus State of U.P. .……….Respondent. Smt. Pushpa Joshi, learned counsel for the appellant. Shri Harish Pujari, learned Additional Government Advocate, for the respondent. Coram:Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Oral:-Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr.P.C.), is directed against the judgment and order dated 26.11.1993, passed by IIIrd Additional Sessions Judge, Nainital, in Sessions Trial No. 222 of 1987, whereby the accused/appellant- Mahendra Singh is convicted under Sections 302 and 201 of Indian Penal Code, 1860 (herein after referred as I.P.C.), and sentenced to undergo imprisonment for life under Section 302 I.P.C. and rigorous imprisonment for a period of five years under Section 201 I.P.C. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that on 06.07.1987, complainant Roop Singh (P.W. 3) had invited his brother Sher Singh (one of the deceased) and other family relatives on ASARI PUJAN (a festival). But when his brother (Sher Singh) and his family (first wife and children from her) failed to turn up in response to the invitation made by him, he thought that they might have gone to the parental house of second wife. According to the prosecution, Roop Singh, brother of Sher Singh (one of the deceased) made enquiries about his brother from Govind Singh and others (sons of first wife of Sher Singh) but he could not be traced. After couple of days, Roop Singh got worried about whereabouts of his brother (Sher Singh) and started search for him and his children. On 19.07.1987, (after 13 days of missing) at 7:00 a.m., he got information from Dan Bahadur (not examined by the prosecution) that from the side of grove of Baldev Singh (P.W. 2- declared hostile), foul smell was coming and when he went there with other villagers, he saw Mahendra Singh (accused/appellant), son of first wife of Sher Singh was trying to cover something with bushes. On seeing Roop Singh and Dan Bahadur, Mahendra Singh got nervous. Thereafter, Roop Singh (P.W. 3) called Jogi Singh (P.W. 1), Village Sabhapati and in his presence enquiries were made from Mahendra Singh on which he disclosed that he has killed his father and step mother and their two children with an axe. According to the prosecution story, he confessed that he has buried the dead bodies and concealed the axe in his house. With this prosecution story, First Information Report (Ext. A- 5) was lodged with police station Khatima on the very day i.e. 19.07.1987, at 10:45 a.m. The police prepared the check report (Ext. A-15) and made necessary entry in the general diary. It registered crime No. 165, relating to offences punishable under Sections 302 and 201 I.P.C. against accused/appellant Mahendra Singh. According to the prosecution during investigation, on pointing out of accused/appellant Mahendra Singh, the dead bodies of four deceased namely Sher Singh, his second wife- Darshani Devi and their children- Jagdish, aged 4 years and Munni, aged 3-4 months were recovered and recovery memo (Ext. A-1) was prepared by the police (not signed by the accused). It is also alleged by the prosecution that axe was recovered on 19.07.1987, on pointing out of accused Mahendra Singh at 2:55 p.m. and recovery memo (Ext. A-2) was prepared (not signed by accused). The crime was investigated by Inspector Jagveer Singh (P.W. 9). The blood stained materials collected from the house of Sher Singh (one of the deceased) were sent for chemical examination. The dead bodies were sealed by the police and inquest reports (Ext. A-10, Ext. A-13, Ext. A-14 and Ext. A-39) were prepared by the police, who also prepared other necessary papers- police form No. 13 (Ext. A-11, Ext. A-27, ext. A-32 and Ext. A-35), sketch of the dead bodies (Ext. A-12, Ext. A-28, Ext. A-33 and Ext. A-36). Post mortem examinations were conducted by Dr. R.P Sharma (P.W. 8), on 20.07.1987. The said Medical Officer recorded the ante mortem injuries (which were incised wounds) and opined in the autopsy reports (Ext. A-6, Ext. A-7, Ext. A-8 and Ext. A-9) that the four deceased have died due to shock and haemorrhage on account of ante mortem injuries suffered by them. The police after completion of the investigation, submitted charge sheet (Ext. A-23) not only against accused (Mahendra Singh) but also against other three accused namely, Ghanshyam, Nand Kishore and Chatrapal Singh (these three were acquitted by the trial court). 4. The Magistrate, on receipt of 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 trial. The trial court after hearing the parties, framed charge of offences punishable under Sections 302 and 201 I.P.C. against accused Mahendra Singh. A separate charge was framed in respect of other three accused namely, Ghanshyam, Nand Kishore and Chatrapal Singh in respect of offences punishable under Section 120 B read with Section 302 I.P.C. All the four accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Jogi Singh, P.W. 2 Baldev Singh (declared hostile), P.W. 3 Roop Singh (complainant-declared hostile), P.W. 4 Gopal (declared hostile), P.W. 5 Constable Suresh Pal Singh (who took dead bodies of the four deceased in a sealed condition for post mortem examinations), P.W. 6 Mool Chand (declared hostile), P.W. 7 Ram Swaroop (declared hostile), P.W. 8 Dr. R.P. Sharma (who conducted post mortem examinations on the dead bodies of the four deceased) and P.W. 9 Jagveer Singh (Investigating Officer). The oral and documentary evidence was put to the accused under Section 313 Cr.P.C. by the trial court. After hearing the parties, the trial court found accused/appellant guilty of charge of offences punishable under Sections 302 and 201 I.P.C. However, it did not find charge proved against rest of the accused-Ghanshyam, Nandkishore and Chatrapal Singh, who were acquitted of the charge. After hearing on sentence, convict Mahendra Singh, was sentenced to imprisonment for life under Section 302 I.P.C. and to rigorous imprisonment for a period of five years under Section 201 I.P.C. Aggrieved by said judgment and order dated 26.11.1993, passed by IIIrd Additional Sessions Judge, Nainital, in Sessions Trial No. 222 of 1987, this appeal was filed before Allahabad High Court on 03.12.1993, where it was admitted on 06.12.1993. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. 5. Before further discussion, it is pertinent to mention here the ante mortem injuries found on the body of the deceased. Autopsy report (Ext. A-6) prepared by P.W. 8 Dr. R.P. Sharma, at 4:30 p.m., shows following ante mortem injuries found on the dead body of the deceased Sher Singh:- 1. Incised wound 6cm X 4cm X bone cut on the back of left side head 6cm below left ear. Occipital bone cut. 2. Incised wound on the front of neck middle at the level of cervical 5th vertebra through and through. Skull is attached to trunk at back. Autopsy report (Ext. A-7) prepared by Dr. R.P. Sharma 8) on 20.07.1987, at 3:30 p.m., shows following ante mortem injuries on the dead body of deceased Jagdish, aged 4 years, son of Sher Singh:- 1. Incised wound encircling the neck whole anteriorly, 8cm X 6.5cm X bone cut through and through at the level of cervical third vertebra. The ante mortem injuries recorded in autopsy report (Ext. A-8), prepared by Dr. R.P. Sharma (P.W. 8) on post mortem examination of Darshani Devi (second wife of Sher Singh), at 3:00 p.m., disclosed following ante mortem injuries:- 1. Incised wound 3cm X 2.5cm on the right wrist outer part of right ulna and radius cut at lower end partially. 2. Incised wound 6cm X 3cm X bone deep on the right side of neck. Just below right ear pinna. 3. Incised wound 7cm X 3cm X bone on the left foot outer aspect. Autopsy report (Ext. A-9) prepared by Dr. R.P. Sharma (P.W. 8) on post mortem examination of Munni (aged 3-4 months, daughter of Sher Singh), at 3:50 p.m., disclosed following ante mortem injuries:- 1. Incised wound on the anterior part of neck through and through at the level of cervical 3 vertebra. 6. Aforesaid Medical Officer on post mortem examinations found that all the four deceased have died on account of shock and haemorrhage due to ante mortem injuries. In all the aforesaid reports (Ext. A-6, Ext. A-7, Ext. A-8 and Ext. A-9), it is mentioned by the Medical Officer that the dead bodies were decomposed. The aforesaid mentioned injuries recorded by P.W. 8 Dr. R.P. Sharma in the autopsy reports, mentioned above, clearly prove that Sher Singh, his second wife Darshani Devi, his son Jagdish and daughter Munni have died homicidal death and it is clear that they were murdered. However, the important question is who has committed their murder. 7. Accused (present appellant) Mahendra Singh is son of Sher Singh (deceased). The prosecution has come up with a story that he committed murder due to ill-treatment committed to him by his step mother and father. But the prosecution has not proved the said fact i.e. motive due to which accused/appellant Mahendra Singh is said to have committed the crime. It is pertinent to mention here that accused/appellant was a juvenile, aged 15 years at the time of the incident and used to live with his natural mother and 3-4 brothers. It is not proved by the prosecution that accused Mahendra Singh was living with four deceased. As such, the motive of commission of crime alleged by the prosecution, is not proved on the record. 8. All witnesses of fact except P.W. 1 Jogi Singh had turned hostile and have not supported the prosecution story. Even complainant Roop Singh (P.W. 3) has not supported the prosecution story, narrated by him in the First Information Report (Ext. A-5). P.W. 1 Jogi Singh has stated that accused Mahendra Singh made extra judicial confession before him and axe used in the crime was recovered on his pointing out. But P.W. 2 Baldev Singh, who is said to be the witnesses of said fact, has not corroborated the prosecution story on that point. P.W. 4 Gopal has also not supported the prosecution story. P.W. 6 Mool Chand and P.W. 7 Ram Swaroop, were witnesses of inquest reports (Ext. A-10, Ext. A-13, Ext. A-14 and Ext. A-39) have not supported the prosecution story. 9. It is mentioned in the First Information Report (Ext. A-5) that it was Dan Bahadur (not examined) who informed Roop Singh (P.W. 3) that foul smell is coming from the field of Baldev Singh, where later the dead bodies were found. It is strange that thereafter prosecution says that the dead bodies were recovered on pointing out of accused Mahendra Singh. Apart from this, recovery memo (Ext. A-1) of the dead bodies, which is said to have been prepared after the dead bodies were recovered on pointing out of accused Mahendra Singh, is not got signed by him. As such, recovery of the dead bodies on pointing out of accused Mahendra Singh is doubtful. The prosecution has come up with a case that axe used in the crime is recovered from the house of Mahendra Singh on his pointing out. Said recovery memo (Ext. A-2), prepared by the police is also not got signed by the accused Mahendra Singh. It bears signature of Baldev Singh (P.W. 2) and Jogi Singh (P.W. 1). However, P.W. 2 Baldev Singh has not supported the prosecution story and declared hostile. The only witness of fact i.e. Jogi Singh (P.W. 1), who has supported the prosecution story, also states in his examination in chief that it was mother of Mahendra Singh, who gave axe to police after taking it out from the woods. As such, even this witness has not supported the fact that axe was recovered on pointing out of accused Mahendra Singh. 10. As far as extra judicial confession is concerned, though P.W. 1 Jogi Singh has stated in his examination in chief that Mahendra Singh told him that his father used to behave in a cruel manner with him and that is why he has committed the four murders. But this statement, according to this witness is said to have been made in the presence of Har Kishan Lal (not examined) and Baldev Singh (P.W. 2). P.W. 2 Baldev Singh has not supported the prosecution story on this point. Even P.W. 3 Roop Singh (complainant) has denied that Mahendra Singh made any confessional statement. 11. For the reasons, as discussed above, after appreciating the evidence on record, we find that charge of offences punishable under Sections 302 and 201 I.P.C., is not proved beyond reasonable doubt against accused/appellant Mahendra Singh. Having considered the submissions of learned counsel for the parties and after re-appreciating the entire evidence on record, we are of the view that the trial court has erred in law in appreciating the evidence and holding the accused/appellant guilty of charge of offences punishable under Sections 302 and 201 I.P.C. Therefore, appeal deserves to be allowed. The same is allowed. Conviction and sentence recorded by the trial court against accused/appellant Mahendra Singh are set aside. He is acquitted of charge. He is on bail. He need not to surrender. Registry is directed to send the lower court record back to the trial court. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt: 18.06.2008 Sweta