K. Narayan, J. - (1.) THIS appeal is directed against the order dated 24.12.1983 rendered by Sessions Judge, Almora in S. T. No. 27 of 1983 holding the accused appellants guilty of the offence under Sections 302/34, I.P.C. and sentencing them to imprisonment for life.
(2.) THE prosecution story as put forward in the case has been rather a peculiar one. Devi Chandra, husband of the deceased Smt. Khagauti Devi lodged an information with the village patwari on 13.4.1983 that his wife had gone on 1.4.1983 to fetch grass for cattle but had not returned and only her body was traced on 12.4.1983 around 2.30 p.m.near Dhar Chauk. THE investigation was conducted and then it appears from the evidence the prosecution worked out a story that she was done to death for obtaining her gold ear rings by the two accused Harish Chandra and Pratap Singh, father and son. THE evidence was led after of charge and the two were; tried and convicted as mentioned above. It may be mentioned before proceeding any further that Harish Chandra is reported to have since died though there is no definite official report. The prosecution had examined different witnesses for different facts. P.W. 6 Maharban Singh is said to have been the eye-witness. After having heard the learned counsel for the appellants as well as State as proceed to record observations in respect of these evidences. The evidence of P.W. 1 Devi Chandra was to the effect that his wife was not traceable since 1.4.1983. An attempt to connect the accused with the offence of murder and may be robbery on the person of Smt. Khagauti Devi was in the form that both the accused had told him on querry that Smt. Khagauti Devi had gone to Bhawani. This by itself could not he any evidence against the accused. However, at the same time, he had also stated that he had asked Jaspal Singh and Maharban Singh P.W. 4 and P.W. 6 and they had also told him that they were told by Pratap Singh and Harish Chandra mat Smt. Khagauti Devi had gone to Bhawani. This factor is material not as evidence but as a conduct of these witnesses themselves as Maharban Singh was examined as eye-witness of the murder. P.W. 2 Dr. N. D. Punatha had conducted the post mortem examination and there is nothing material in his statement. There is no doubt that Smt. Khagauti Devi was done to death some 1* or 20 days before the post mortem examination on her body. P.W. 3 Madho Singh was examined to state that he had sold a horse for Rs. 2000 to Pratap Singh some 10 months before the occurrence and Rs. 1200 remained as balance price to be paid and also that on 6.4.1983, that is, after the alleged occurrence Harish Chandra had paid him Rs. 600. It is shown in evidence that Harish Chandra was running some hotel or tea stall. Mere possession of Rs. 600 one particular day can hardly be said to be the evidence of a robbery or murder. Similarly, P.W. 5 Kesshar Singh was examined to state that Harish Chandra had asked him if he would purchase ear-rings (Munre) of his mother. Had it been a case of possession of ear-rings of the deceased, it could have some value but then these ear-rings have not even been seen by this witness Keshar Singh nor they seem to have been recovered from the possession of any accused. It was just an offer to make a sale of some property, which might have belonged to the accused. This is, of course, subject to the condition that the witness was speaking truth. What we mean to say is that this evidence neither in itself nor alongwith other evidence could be of any value to connect either accused with the offence of murder. The evidence of P.W. 4 Jashpal Singh & P.W. 6 Maharban Singh who are father and son themselves, has been somewhat inadmissible type. P.W. 4 Jashpal Singh had stated that he had seen Smt. Khagauti Devi going towards Jungle and had told him that she was going to the house of Pratap Singh as his mare had been delivered with young. The statement of Maharban Singh has been to the effect that he had seen the accused Pratap Singh and Harish Chandra cutting the throat of Smt. Khagauti Devi at about 3 or 4 in the evening. He had also stated that Harish Chandra came to his place in the evening and told him that he will not communicate this fact to any body, else he would also be done to death by the same knife. The material factor is that can this witness be relied upon after having kept quiet for all this period of 10 or 12 days? One may keep quiet and that is a different thing but when he go to closer to the person interested in the deceased and it asked about whereabouts of the deceased, he would either communicate true facts if it was true or would be conniving with the accused or miscreants in concealing the offence. Neither position will be happy for the witnesses themselves. In-the former they would be presumed to be liar and in the latter they will be reaching the status of co- accused and rendering themselves unworthy of credit. What was the change after lodging of the F.I.R. with the Patwari of the village to give them courage to divulge the fact which they have concealed for a long time. What its still more material is that they are father and son themselves, and it will be very strange that son even did not like to communicate it to his father. It is inconceivable that a person having really seen commission of murder would keep quiet for period of 14 days when he comes across Kanungo and Patwari.
(3.) P.W. 7 Darban Singh was the Pradhan of the village and he was again examined to prove certain conduct of the accused in the matter of collection of cash and as already said above even if there was some doubt the availability of cash with the accused, he could not be fastened with the liability of murder. Accordingly, for that reason the evidence of other witnesses, namely Jashpal Singh P.W. 4 and P.W. 6 Maharban Singh would become worthy of credit. The same was the case with the evidence of P.W. 8 Bhagi Chandra Singh who had also stated about the purchase of goods by Harish Chandra. Assuming it to be all correct would the cost Munre be enough to let him have so much of money as to pay for the horse, purchase of clothes and all that business then again if the robbery was the only idea why should robber, may be accused or anybody else, leave the other ornaments, that is lathis, Ghagula and Suta of silver on the person of Smt. Khagauti Devi. These silver ornaments were found on the person of Smt. Khagauti Devi even after her death by Darban Singh P.W. 1, who was also investigating officer. Considering all the above factors, the conviction rendered by the learned Session judge cannot be sustained and this appeal should succeed.;