- (1.)PRAFULLA C. Pant, J. This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (herein after referred as Cr. P. C.), is directed against the judgment and order dated 26. 11. 1993, passed by 3rd Additional Sessions Judge, Nainital, in Sessions Trial No. 222 of 1987, whereby the accused/ap pellant- Mahendra Singh is convicted un der Sections 302 and 201of Indian Penal Code, 1860 (herein after referred as I. RC), and sentenced to undergo imprisonment for life under Section 302 I. P. C. and rig orous imprisonment for a period of five 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 06. 07. 1987, complainant Roop Singh (P. W. 3) had invited his brother Sher Singh (one, of the deceased) and other family relatives on ASARIPUJAN (a festival ). But when his brother (Sher Singh) and his fam ily (first wife and children from her) failed to turn up in response to the invitation made by him, he thought that they might have gone to the parental house of sec ond wife. According to the prosecution, Roop Singh, brother of Sher Singh (one of the deceased) made enquiries about his brother from Govind Singh and others (sons of first wife of Sher Singh) but he could not be traced. After couple of days, Roop Singh got worried about whereabouts of his brother (Sher Singh) and started search for him and his children. On 19. 07. 1987, (after 13 days of missing) at 7:00 a. m. , he got information from Dan Bahadur (not examined by the prosecution) that from the side of grove of Baldev Singh (P. W. 2declared hostile), foul smell was coming and when he went there with other villagers, he saw Mahendra Singh (accused/appellant), son of first wife of Sher Singh was trying to cover something with bushes. On seeing Roop Singh and Dan Bahadur, Mahendra Singh got nerv ous. Thereafter, Roop Singh (P. W. 3) called Jogi Singh (P. W. 1), Village Sabhapati and in his presence enquiries were made from Mahendra Singh on which he disclosed that he has killed his father and step mother and their two children with an axe. According to the prosecution story, he con fessed that he has buried the dead bodies and concealed the axe in his house. With this prosecution story, First Information Report (Ext. A5) was lodged with police station Khatima on the very day i. e. 19. 07. 1987, at 10:45 a. m. The police pre pared the check report (Ext. A-15) and made necessary entry in the general diary. It registered crime No. 165, relatitig to of fences punishable under Sections 302 and 201 I. P. C. against accused/appellant Mahendra Singh. According to the pros ecution during investigation, on pointing out of accused/appellant Mahendra Singh, the dead bodies of four deceased namely Sher Singh, his second wife- Darshani Devi and their children- Jagdish, aged 4 years and Munni, aged 3-4 months were recov ered' and recovery memo (Ext. A-1) was prepared by the police (not signed by the accused ). It is also alleged by the prosecu tion that axe was recovered on 19. 07. 1987, on pointing out of accused Mahendra Singh at 2:55 p. m. and recov ery memo (Ext. A-2) was prepared (not signed by accused ). The crime was inves tigated by Inspector Jagveer Singh (P. W. 9 ). The blood stained materials collected from the house of Sher Singh (one of the de ceased) were sent for chemical examina tion. The dead bodies were sealed by the police and inquest reports (Ext. A-10, Ext. A-13, Ext. A-14 and Ext. A-39) were pre pared by the police, who also prepared other necessary papers- police form No. 13 (Ext. A-11, Ext. A-27, Ext. A-32 and Ext. A-35), sketch of the dead bodies (Ext. A-12, Ext. A-28, Ext. A-33 and Ext. A-36 ). Post mortem examinations were conducted by Dr. R. P Sharma (P. W. 8), on 20. 07. 1987. The said Medical Officer re corded the ante mortem injuries (which were incised wounds) and opined in the autopsy reports (Ext. A-6, Ext. A-7, Ext. A-8 and Ext. A-9) that the four deceased have died due to shock and haemorrhage on account of ante mortem injuries suf fered by them. The police after completion of the investigation, submitted charge sheet (Ext. A-23) not only against accused (Mahendra Singh) but also against other three accused namely, Ghanshyam, Nand Kishore and Chatrapal Singh (these three were acquitted by the trial court ).

The Magistrate, on receipt of charge sheet after giving necessary copies to the accused, as required under section 207 of Cr. P. C. , committed the case to the court of sessions for trial. The trial court after hearing the parties, framed charge of offences punishable under Sections 302 and 201 I. P. C. against accused Mahendn Singh. A separate charge was framed in respect of other three accused namely, Ghanshyam, Nand Kishor and Chatrapal Singh in respect of offences punishable under Section 120 B read with Section 3021. PC. All the four accused pleaded not guilty and claimed to be tried. On this, prosecution got examined P. W. 1 Jog Singh, P. W. 2 Baldev Singh (declared hos tile), P. W. 3 Roop Singh (complainant-de clared hostile), P. W. 4 Gopal (declared hostile), P. W. 5 Constable Suresh Pal Singh (who took dead bodies of the four deceased in a sealed condition for post mortem examinations), P. W. 6 Mool Chand (declared hostile), P. W. 7 Ram Swaroop (declared hostile), P. W. 8 Dr. R. P Sharma (who conducted post mortem examinations on the dead bodies of the four deceased) and P. W. 9 Jagveer Singh (Investigating Officer ). The oral and docu mentary evidence was put to the accused under Section 313 Cr. P. C. by the trial court:. After hearing the parties, the trial court found accused/appellant guilty of charge of offences punishable under Sec tions 302 and 201 I. P. C. However, it did not find charge proved against rest of the accused-Ghanshyam, Nandkishore and Chatrapa! Singh, who were acquitted of the charge. After hearing on sentence, con vict Mahendra Singh, was sentenced to imprisonment for life under Section 302 I. P. C. and to rigorous imprisonment for a period of five years under Section 201 I. P. C. Aggrieved by said judgment and order dated 26. 11. 1993, passed by 3rd Additional Sessions Judge, Nainital, in Sessions Trial No. 222 of 1987, this ap peal was tiled before Allahabad High Court on 03. 12. 1993, where it was admit ted on 06. 12. 1993. The appeal is received by this Court under Section 35 of U. P Re organisation Act, 2000, for its disposal.

(3.)BEFORE further discussion, it is per tinent to mention here the ante mortem injuries found on the body of the de ceased. Autopsy report. (Ext. A-6) pre pared by P. W. 8 Dr. R. P Sharma, at 4:30 p. m. , shows following ante mortem inju ries found on the dead body of the de ceased Sher Singh : 1. Incised wound 6cm X 4cm X bone cut on the back of left side head 6cm below left ear. Occipi tal bone cut. 2. Incised wound on the front of neck middle at the level of cervi cal 5th vertebra through and through. Skull is attached to trunk at back. Autopsy report (Ext. A-7) prepared by Dr. R. P Sharma (P. W. 8) on 20. 07. 1987, at 3:30-p. m. , shows following ante mortem injuries on the dead body of de ceased Jagdish, aged 4 years, son of Sher Singh : 1. Incised wound encircling the neck whole anteriorly, 8cm X 6. 5cm X bone cut through and through at the level of cervical third vertebra. The ante mortem injuries recorded in autopsy report (Ext. A-8), prepared by Dr. R. P Sharma (P. W. 8) on post mortem ex amination of Darshani Devi (second wife of Sher Singh), at 3:00 p. m. , disclosed following ante mortem injuries : 1. Incised wound 3cm X 2. 5cm on the right wrist outer part of right ulna and radius cut at lower end partially. 2. Incised wound 6cm X 3cm X bone deep on the right side of neck. Just below right ear pinna. 3. Incised wound 7cm X 3cm X bone on the left foot outer aspect. Autopsy report (Ext. A-9) prepared by Dr. R. P Sharma (P. W. 8) on post mortem examination of Munni (aged 3-4 months, daughter of Sher Singh), at 3:50 p. m. dis closed following ante mortem injuries : 1. Incised wound on the anterior part of neck through and through at the level of cervical 3 vertebra.
Aforesaid Medical Officer on post mortem examinations found that all the four deceased have died on account of shock and haemorrhage due to ant, mortem injuries. In all the aforesaid re ports (Ext. A-6 Ext. A-7, Ext. A-8 and Ext. A-9), it is mentioned by the Medical Of ficer that the dead bodies were decom posed The aforesaid mentioned injuries re corded by P. W. 8 Dr. R. P Sharma in the autopsy reports, mentioned above, clearly prove that Sher Singh, his second wife Darshani Devi, his son Jagdish and daugh ter Munni have died homicidal death and it is clear that they were murdered. How ever, the important question is who has committed their murder.