R.K.Rastogi, J. - (1.) THIS is an appeal against the judgment and order dated 20.5.1999, passed by Sri K. P. Singh then learned VIIIth Additional Sessions Judge, Pilibhit in Sessions Trial No. 422 of 1997, convicting the appellant under Section 302, I.P.C. and sentencing him to life imprisonment, and to a fine of Rs. 2,000.
(2.) THE facts relevant for disposal of this appeal are that on 16.6.97 at about 7.45 a.m. one Navi Ahmad lodged a F.I.R. at Police Station Gajraula, District Pilibhit in which it was stated that he had taken the farm of Sri Shailendra Singh, advocate at village Devipura on theka and he resided there alongwith his family. THEre was the farm of Dharmveer Bhasin towards east of this farm and on that farm Mohd. Sadik had started to reside as a chaukidar about ten days ago. On 16.6.97 at about 5 a.m., on hearing the cries of Mohd. Sadik, he and his wife Noor Bano reached that farm. THEre Mohd. Sadik told him that his children and mother were not traceable. THEn Navi Ahmad tried to search them and noticed that dead bodies of two children of Mohd. Sadik named Kasim and Pinki were lying in water which had collected in the pond of the tube-well and the dead body of his mother Niyazan was lying behind his house. THEn he went to the police station and lodged this report. On the basis of the above report, the police registered a case under Section 302, I.P.C. against unknown culprits and investigated the same. The inquest reports of the dead bodies were prepared and those dead bodies were sent for post-mortem. According to the post-mortem report of Smt. Niyazan, she had only one ante mortem injury upon her body which was an abrasion 2 c.m. x 1 c.m. on right side of the chin. The cause of her death could not be ascertained and so her viscera was preserved. According to the post-mortem report of Km. Pinki who was aged about eight years, she had no ante-mortem injuries on her body, and the cause of death, in the opinion of the doctor, was asphyxia due to drowning. According to the post-mortem report of Mohd. Kasim who was aged about nine and half years, he also had no ante mortem injuries on his body, and the cause of death was asphyxia due to drowning. It may be mentioned that all these post-mortems were performed on 16.6.1997 at 5 p.m., 6 p.m. and 5.30 p.m. respectively and their death had taken place about half day before the time of post-mortem. According to the viscera report, aluminum phosphate methyl alcohol (poison) was found in the viscera of the deceased Smt. Niyazan. During investigation, the name of accused Mohd. Sadik who was son of the deceased Niyazan and father of the deceased Pinki and Mohd. Kasim came into light, and the police after completion of the investigation submitted a charge-sheet against him under Section 302, I.P.C. and the case was committed to the Courts of Sessions. The accused was charged under Section 302, I.P.C. He pleaded not guilty and claimed trial. The prosecution produced Sri Navi Ahmad as P.W. 1. He is the informant of the case. He has proved the F.I.R. lodged by him as Ext. Ka-1. He has further stated that the accused Mohd. Sadik was his cousin brother-in-law (fufera sala) and he had got Mohd. Sadik employed at the farm of Sri Dharmveer on salary of Rs. 800 per month. Thereafter, Mohd. Sadik had started to reside at that farm alongwith his mother and children. He has further stated that Mohd. Sadik was a poor person. His first wife had died and he had contracted the second marriage thereafter, but his second wife did not like the children born out of his wedlock with the first wife. He has further stated that Smt. Niyazan had told him that before employment in the farm of Dharmveer, Mohd. Sadik was employed in a sugar factory, and he had to incur a heavy amount in the treatment of his first wife, who ultimately died, and Mohd. Sadik also lost his service in that factory. However, he had received a sum of Rupees 15,000 from the factory. Out of this amount he had purchased some lottery tickets and a piece of land at village Chiraiyadeh. She had further told him that the second wife of Mohd. Sadik named Munni was pressurising Mohd. Sadik to leave his children who were born out of his wedlock with the first wife. She used to say to Sadik that since she had left her children and had not brought them with her after her marriage with Sadik, Sadik should also leave his children. She further stated that it would not be possible to maintain all the children. Navi Ahmad has further stated that Smt. Niyazan told him that Mohd. Sadik was not satisfied with his job as chaukidar and so he used to pull rickshaw in day time, and did the job of chaukidar in night. He has stated that he had definite suspicion in his mind that Mohd. Sadik had killed his mother and both the children. During cross-examination, he stated that he did not see the accused committing murder of his children and mother, and that no quarrel of Sadik had ever taken place with his mother and children in his presence at any time. He further stated that the mother of Sadik and his children never made any complaint of Sadik with him, that Sadik had one more son Hasim aged about 16 years, that the second wife of Sadik was not residing with him and she had left him. He further stated that he never saw the second wife of Sadik asking him to leave his mother and children. After cross-examination by the accused, this witness was declared hostile by the prosecution, and then he denied that statement which he had allegedly given to the Investigating Officer on 6.7.98. He further stated that the statement given by him in the Court is correct and the Investigating Officer has recorded his false statement which he had never given to the Investigating Officer. He further stated that the second wife of the accused had gone away from the farm of Dharmveer about ten to twelve days prior to the incident and thereafter she had not come back.
(3.) SMT. Noor Bano wife of Navi Ahmad P.W. 1 was examined as P.W. 2. She had accompanied Navi Ahmad when he had gone to the farm of Dharmveer on hearing cries of the accused Mohd. Sadik and she has corroborated the statement of Navi Ahmad. She has stated that the second wife of Mohd. Sadik tortured his children, and Niyazan used to tell her that Munni was pressurising Sadik to leave his children from the first wife, and Sadik also used to say that he would leave children and reside with Munni. During cross-examination she stated that she did not see Sadilk committing murder of Niyazan, Pinki and Mohd. Kasim, though she has stated in her examination-in-chief that she had a firm belief that Sadik had murdered his mother and both the children. She further stated in her cross-examination that she had no suspicion upon Sadik in respect of commission of this offence. She was also declared hostile by the prosecution. She denied her statement recorded under Section 161, Cr. P.C. and stated that whatever she had stated before the Court is true.;