IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 452 of 2001 (Old No. 1773 of 1993) (1) Kala Singh (2) Nanak Singh (3) Satnam Singh (4) Sukh Dev Singh All R/o Village Keshari Ganeshpur, Police Station Kashipur, District Nainital. ………………….Appellants. Versus State …………..Opposite Party. Smt. Pushpa Joshi, learned counsel for the appellants. Sri H.C. Pujari, learned Additional Government Advocate for the State. 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 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 04.10.1993, passed by III Additional Sessions Judge, Nainital, in Sessions Trial No. 304 of 1990, whereby accused / appellants Kala Singh and his sons Nanak Singh, Satnam Singh and Sukh Dev Singh are convicted under Section 302 read with Section 34 and Section 201 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.). Each one of the convicts (appellants) is sentenced by the trial court to imprisonment for life under Section 302/34 I.P.C., and rigorous imprisonment for a period of three 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 12.06.1989 at about 7 AM Asha Singh (deceased) is said to have gone from his house in Village Keshari Ganeshpur to supply milk to Cooperative Society, Teela. Before his departure accused / appellants Kala Singh (one of the son-in-law of the deceased) and his sons Nanak Singh, Satnam Singh and Sukh Dev Singh (all the three grand children of the deceased) went through the same way. As such Asha Singh (deceased) was last seen going with the accused / appellants. Asha Singh (deceased) did not return home on that day. On this Kashmir Singh (another son-in-law of the deceased) gave a missing report with Police Station Kashipur on 13.06.1989, which was recorded at Serial No. 34 in the General Diary (extract of which is Ext.A-13). However, the next day i.e. on 14.06.1989, dead body of Asha Singh was found lying in the field of Onkar Singh on which Kishan Kaur (P.W.1) wife of the deceased lodged the report with Police Station Kashipur, suspecting commission of murder by accused / appellants Kala Singh and his sons Nanak Singh, Satnam Singh and Sukh Dev Singh. Entry of said report was made at Serial No. 33 on 14.06.1989 (extract of which is Ext.A-12). On the basis of said report Crime No. 292 of 1989 is registered, relating to offences punishable under Sections 302/34 and 201 I.P.C. against all the four accused / appellants Kala Singh, Nanak Singh, Satnam Singh and Sukh Devi Singh. The dead body was taken into custody by the Police and inquest report (Ext.A-2) was prepared on the very day i.e. 14.06.1989. Police also got prepared other papers- Police Form No. 33 (Ext.A-3), Police Form No. 13 (Ext.A-4), sketch of the dead body (Ext.A- 5) and sent the dead body in a sealed condition for postmortem examination. The postmortem examination was conducted by Dr. D.K. Aggrawal on the very day i.e. 14.06.1989 at 4 P.M.. The Medical Officer found only one contusion on the upper part of the chest of size of 12x20cm as an ante mortem injury. On internal examination he found fracture in the ribs and found the lung and the heart ruptured due to the aforesaid ante mortem injury. He opined that the ante mortem injury led to repture of lung and heart and caused shock and death. The Medical Officer prepared autopsy report (Ext.A-14). The crime was initially investigated by Sub Inspector R.C. Dixit and thereafter by Sub Inspector Gajendra Singh. During investigation recovery of denture and shoes was made by the Investigating Officer at the pointing out of the accused with regard to which recovery memo (Ext.A-1) was prepared on 25.06.1989. After interrogation of witnesses and completion of investigation charge sheet is filed against all the four accused by Sub Inspector Gajendra Singh (not examined), for their trial in respect of offence punishable under Sections 302/34 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., appears to have committed the case to the court of Sessions for their trial. After hearing the parties, learned III Additional Sessions Judge, Nainital, to whom the sessions trial was transferred, framed charge of offences punishable under Section 302 read with Section 34 I.P.C. and one punishable under Section 201 I.P.C. against all the four accused / appellants, namely, Kala Singh, Nanak Singh, Satnam Singh and Sukh Dev Singh. All the four accused pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Kishan Kaur, widow of the deceased, P.W.2 Charanjeet Singh, before whom extra judicial confession is said to have been made by Kala Singh and Sukh Dev Singh, P.W.3 Mahendra Singh, another witness of same fact, P.W.4 Sub Inspector R.C. Dixit, who started the investigation, P.W.5 Kapoor Singh, who is said to have agreed to purchase the land of the deceased and P.W. 6 Yashpal Singh, Secretary of Milk Society, Teela, where deceased used to supply milk. Oral and documentary evidence was put to the accused under Section 313 Cr.P.C. in reply to which all the four accused alleged the same to be false. However, no evidence in defence was adduced. The trial court after hearing the parties found all the four accused guilty of offence punishable under Section 302/34 I.P.C. and one punishable under Section 201 I.P.C.. After hearing on sentence each one of the four convicts is sentenced to imprisonment for life under Section 302/34 I.P.C. and rigorous imprisonment for a period of three years under Section 201 I.P.C.. Aggrieved by said judgment and order dated 04.10.1993, passed by III Additional Session Judge, Nainital, in Sessions Trial No. 304 of 1990, this appeal was preferred by convicts before Allahabad High Court where it was filed on 11.10.1993. The appeal was admitted by said Court on 12.10.1993 and is received under Section 35 of U.P. Reorganisation Act, 2000, to this Court, for its disposal. (5) Before further discussions it is pertinent to mention here that it is a case of circumstantial evidence and there is no direct evidence of commission of crime. As such this Court has to see whether the prosecution has established the chain of circumstances leading to only one conclusion that the accused / appellants have committed murder of Asha Singh (deceased). (6) Perusal of the postmortem examination report (Ext.A-14) discloses following ante mortem injury found at the time of the autopsy “a contusion present on whole of the upper part of chest 12x20cm in size extending between both the nipples”. It is not clear that how this injury is caused. However, from nature of the ante mortem injury, it appears that the lung and heart of the deceased got ruptured, as mentioned in autopsy report (Ext.A-14) by the Medical Officer Dr. D.K. Aggrawal (who was not examined by the prosecution), as the genuineness of the document was admitted by the defence. Learned counsel for the accused / appellants submitted that the contusion mentioned in the autopsy report received by deceased could have been caused by getting fallen down on the ground. The autopsy report does not suggest if any deadly weapon was used for causing said injury. (7) P.W.1 Kishan Kaur and P.W.5 Kapoor Singh have adduced evidence that since Asha Singh had agreed to sell his land to Kapoor Singh, this annoyed Kala Singh and his sons Nanak Singh, Satnam Singh and Sukh Dev Singh. These two witnesses have further said that due to this fact they harboured enmity. While appreciating the evidence what has been ignored by the trial court is that Asha Singh (deceased) and his wife Kishan Kaur (P.W.1) had only three daughters and all the three were married, as stated by P.W.1 Kishan Kaur. In this connection it is also pertinent to mention here that admittedly accused / appellants Kala Singh is the son-in-law of the deceased and other three accused / appellants are the grand children of Asha Singh (deceased). It is argued on behalf of accused / appellants that it is not the natural conduct on the part of the son-in-law and grand children of the deceased to have committed murder of their own father-in-law / grand father for the reason that he agreed to sell his land to P.W.5 Kapoor Singh. We do find substance in the submission of learned counsel for the appellants that unless some substantial evidence is adduced to show that the son-in-law and the grand children would have gone to the extent of killing their father-in-law / grand father, on mere suspicion, they cannot held guilty of the charge of murder of Asha Singh. (8) The evidence of P.W.5 Kapoor Singh that he last saw on 12.06.1989, Kala Singh and his three sons going towards the eucalyptus trees whereafter deceased followed them on the same route, to supply milk to the Society does not throw much light to connect the accused / appellants with the crime. The accused / appellants have not followed the deceased nor they were said to have been armed with any deadly weapon. In the circumstances, the evidence adduced by P.W.5 Kappor Singh in our opinion is of no help to the prosecution to suggest that the deceased was last seen with the accused / appellants. (9) As to recovery of denture and shoes at the pointing out of the accused / appellants with regard to which P.W.2 Charanjeet Singh and P.W.3 Mahendra Singh were got examined who proved the recovery memo (Ext.A-1), it is pointed out by learned counsel for the appellants that the extract of the General Diary (Ext.A-13), which is relating to missing report given at police station on 13.06.1989, shows that the shoes of the deceased were found lying at some distance from the house of the deceased. In this connection it is further contended that if that is the case then there is no question of making recovery of shoes of the deceased at the pointing out of the accused / appellants on 25.06.1989. Having considered the submissions of learned counsel for the appellants and after going through the recovery memo (Ext.A-1) and the extract of General Diary (Ext.A-13), the veracity of the contents of recovery memo and the oral evidence given by P.W.2 Charanjeet Singh and P.W.3 Mahendra Singh becomes doubtful. The extra judicial confession which is said to have been made by accused / appellants Kala Singh and Sukh Dev Singh at the time of their arrest also appears to be doubtful as the same is made in the presence of the Police Officer after chasing and arresting them. As such the testimony of P.W.2 Charanjeet Singh and P.W.3 Mahendra Singh do not inspire confidence. (10) For the reasons, as discussed above, having re- appreciated the entire evidence on record, we are of the view that the prosecution has not proved either of the charges framed against the accused / appellants beyond reasonable doubt, and accused / appellants are entitled to the benefit of reasonable doubt. Since neither the charge of offence punishable under Section 302/34 I.P.C. nor the offence punishable under Section 201 I.P.C. can be said to have been proved as against any of the accused / appellants beyond reasonable doubt as such, the appeal deserves to be allowed. Accordingly the appeal is allowed. The judgment and order dated 04.10.1993, passed by III Additional Sessions Judge, Nainital, in Sessions Trial No. 304 of 1990, convicting the accused / appellants, under Section 302/34 and 201 I.P.C. is hereby set aside. All the four accused / appellants, namely, Kala Singh and his sons Nanak Singh, Satnam Singh and Sukh Dev Singh are acquitted of the charge of offence punishable under Section 302/34 and 201 I.P.C.. They are on bail. They need not to surrender. Their bail bonds are cancelled. Sureties are discharged. The Registry is directed to send the lower court record back to the trial court. (Dharam Veer, J.) (Prafulla C. Pant.) 25.06.2008 NS