- (1.) 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 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. PC.) and each one of the convict/appellant is sentenced to impris onment 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 Advo cate for the State, and perused the trial court record. 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 pros ecution, search was made of the de ceased for quite sometime but his whereabouts could not be found. There after on 07-02-1989, another report (Ext. A-2) was given by P. W. 2 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 are 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 en try was made in the general diary to this effect and check report (Ext. A-19) was prepared. The Investigating Officer made inquiries from villagers including Aalam Singh, Rukmini Devi, Jasdai and others. He inspected the spot where the c. id 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 Investigating 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 Medi cal Officer (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 clothes of the deceased (Ext. A-17) and Police Form No. 33 (Ext. A-18 ). The dead body was sent for postmortem examination. On 09-0201989 at 12. 30 PM. , 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 in vestigation P. W. 1 Gayatri Devi and one Gabbar Singh were also examined and their statements were got recorded un der 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 of fences punishable under Sections 302 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. , committed the case to the court of sessions for trial. Learned Sessions Judge, on 18-12-1989 after hearing the parties framed charge of of fences 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 to be tried. On this prosecution got examined P. W. I Gayatri Devi, P. W. 2 Jagmohan Singh, complainant, P. W. 3 Rajmohan Singh, another brother of deceased, P. W. 4 Hukam Singh, PW. 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 documen tary evidence was put to the accused on 01-05-1991 to which the accused / ap pellants alleged the same to be false and pleaded that Gayatri Devi (P. W. I) has 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 pros ecution, the trial court found all the four accused guilty of the charge of offences punishable under Section 302/34 and 201 I. P. C. and after hearing on sentence, each one of the convict was sentenced to imprisonment for life (under Section 302 I. P. C.) and to rigorous imprisonment for a period of seven years (under Sec tion 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 pre ferred this appeal before Allahabad High Court on 09-09-1991, where it was ad mitted. The appeal is received by this Court by transfer under Section 35 of U. P. Reorganisation Act, 2000, for its disposal.
(3.) BEFORE further discussions, we think it just and proper to mention what was found in the postmortem examina tion 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 con dition. It was further mentioned by the Medical Officer that no clear cut opin ion can be given about the injury be cause the body was badly decomposed. Even flesh and skin were absent from all over the upper extremity. Skull was sepa rated. 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 given foul smell putrefied. On the internal ex amination membrances and brain were found absent. Heart and lungs were also found absent. Intestine, liver, pancreas, spleen, ballbladder and oesophagus were also found absent. The Doctor at the end of his report mentioned that cause of death could not be ascertained. 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' (Janu ary) 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 there 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 Divi sional Magistrate G. D. Tripathi (RW. 6 ). On the basis of her silence for more than 33 days relating to death of a per son coupled with the fact that her pres ence 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 trust worthy and reliable without getting cor roborated from other independent evi dence. A reasonable doubt appears in the truthfulness of the statement made by PW. 1 Gayatri Devi, for the three reasons we have mentioned above.;