- (1.) THIS appeal, preferred under Section 374 of the 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 Addi tional Sessions Judge, Nainital, in Ses sions Trial No. 304 of 1990, whereby ac cused / 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 con victs (appellants) is sentenced by the trial court to imprisonment for life under Sec tion 302/34 I. PC, and rigorous imprison ment for a period of three years under Section 201 I. P. C.
(2.) HEARD learned counsel for the par ties and perused the lower court record. 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 ac cused / 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 re corded 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 ly ing 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 mur der 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 punish able under Sections 302/34 and 2011. P. C. against all the four accused/appellants Kala Singh, Nanak Singh, Satnam Singh and Sukh Dev Singh. The dead body was taken into custody by the Police and in quest report (Ext. A-2) was prepared on the very day i. e. 14-06-1989. Police also got prepared ether 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 con dition for postmortem examination. The postmortem examination was conducted by Dr. D. K. Aggrawal on the very day i. e. 14-06-1989 at 4 RM. 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 exami nation 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 rupture 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 investi gation 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 pre pared on 25-06-1989. After interrogation of witnesses and completion of investiga tion 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 Sec tions 302/34 and 201 I. P. C. The Magistrate on receipt of the charge sheet, after giving necessary cop ies to the accused as required under Sec tion 207 of Cr. P. C. , appears to have com mitted 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 Inspec tor R. C. Dixit, who started the investiga tion, P. W. 5 Kapoor Singh, who is said to have agreed to purchase the land of the deceased and R W. 6 Yashpal Singh, Sec retary of Milk Society, Teela, where de ceased used to supply milk. Oral and documentary evidence was put to the ac cused 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 un der Section 302/34 1. P. C. and one punish able under Section 201 I. P. C. After hear ing on sentence each one of the four con victs 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 Sessions 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.
(3.) BEFORE further discussions it is per tinent 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 conclu sion that the accused / appellants have committed murder of Asha Singh (de ceased ). Perusal of the postmortem examination report (Ext. A-14) discloses follow ing 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 nip ples". 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 rup tured, as mentioned in autopsy report (Ext. A-14) by the Medical Officer Dr. O. K. Aggarwal (who was not examined by the prosecution), as the genuineness of the document was admitted by the defence. Learned counsel for the accused / appel lants submitted that the contusion men tioned in the autopsy report received by deceased could have been caused by get ting fallen down on the ground. The au topsy report does not suggest if any deadly weapon was used for causing said injury.;