JUDGMENT Vijav Kumar Verma, J.
1. This Appeal preferred under Section 374(2) of the Code of Criminal Procedure (Cr.P.C. for short) is directed against the judgment and order dated 28.04.2006 passed by Sri V.P. Kandpal, the then Addl. Sessions Judge (Court No. 7), Pilibhit in Sessions Trial No. 569 of 1996. Whereby the appellant-accused Krishna Kumar @ Pappu has been convicted under Section 302, 364, 394, 201, I.P.C. in Crime No. 259/94 of P.S. Madho Tanda, District Pilibhit and has been sentenced to death under Section 302 I.P.C., but no order of sentence for the offences punishable under Section 394, 364 and 201 I.P.C has not been recorded.
2. Reference for confirmation of sentence of death has been sent by the learned Court below under provisions of Section 366 Cr. P.C.
3. Along with the appellant, one other accused Mahesh Kumar Verma was also tried in the said Sessions Trial but he has been acquitted of the offences with which he was charged. No appeal has been preferred against his acquittal.
4. The case of the prosecution as appearing from the First Information Report (Ext. Ka 4) and statements of witnesses, in brief, is that the complainant Mahesh Kumar Verma S/o late Shri Krishna resident of Village Kali Nagar, P.S. Madhotanda, District Pilibhit had gone to attend a marriage ceremony on 15.12.1994 at Puranpur. In the morning at about 4.30 a.m. on 16.12.1994, Virendra Kumar Pandey and Krishna Kumar @ Pappu (Appellant herein) came to Puranpur and informed the complainant that his wife Smt. Chaina Devi and his father Shri Krishna have been murdered by some unknown miscreants and their dead bodies have been burnt. It was also told that there was sound of crackers in front of the house. On this information, the complainant Mahesh Kumar Verma came to his house and saw the burnt dead bodies of his wife and father, which were kept on the cots in courtyard. Kumari Aarti, aged about 8 years, daughter of complainant was not found there and she was carried by the miscreants with them. It is further alleged in the F.I.R. that 20 kg. Silver ornaments, 200 gms. Gold ornaments and Rs. 25,000/- (Rupees twenty five thousand only) were also looted by the miscreants. Further case of the prosecution is that the appellant Krishna Kumar @ Pappu was apprehended by the police on 17.12.1994 and at his instance looted property in part was recovered and dead body of Kumari Aarti was also recovered at his instance from a well.
5. A written report was got described by Mahesh Kumar Verma from Naresh Chandra Verma, which was made over at P.S. Madhotanda on 17.12.1994. On the basis of that written report, Chik F.I.R. (Ext. Ka 4) was prepared by the then H.M. Santosh Kumar Gupta (P.W.5) and case under Section 394/364/302/201 I.P.C. was registered against unknown persons at Crime No. 259 of 1994, entries of which were made in the G.D. at serial No. 4 at 5.55 a.m., copy whereof is Ext. ka 5.
6. After lodging of the F.I.R., investigation was started. Inquest on the dead body of deceased Shri Krishna was conducted on 17.12.1994 from 9.15 a.m. to 10.15 a.m. and inquest report (Ext. Ka 15) was prepared along with other connected papers. Thereafter inquest on the dead body of deceased Smt. Chaina Devi was prepared from 10.15 a.m. to 11.30 a.m. and inquest report (Ext. ka 16) and other connected papers were prepared. Thereafter, both the dead bodies were sent to Mortuary, Pilibhit for postmortem.
7. Inquest on dead body of deceased Kumari Aarti was conducted on 17.12.1994 from 4.30 p.m. to 5.30 p.m. during which inquest report (Ext. Ka 1) was prepared with other papers and thereafter the dead body was sent to Mortuary for postmortem.
8. The postmortem of the dead body of Shri Krishna was conducted by Dr. Kripal Singh (P.W. 6) on 17.12.1994 at 4.30 p.m. According to the postmortem report (Ext. Ka 8), following anti-mortem injuries found on the dead body.-
a) Deep burn on face, chest upper and lower extremities, brain was burnt, hair were also burnt, neck muscles were burnt.
b) Deep burn on chest and abdomen, all muscles were burnt.
c) Deep burn on left hand, which was found absent.
d) Left forearm was burnt in middle.
e) Deep burn on abdomen, lower and upper extremities.
Death was caused due to anti-mortem burn injuries.
9. Postmortem of the dead body of Smt. Chaina Devi was also conducted by Dr. Kripal Singh (P.W.6) on 17.12.1994 at 04.15 a.m. According to the postmortem report (Ext. Ka 9), the following anti-mortem injuries were found on the dead body.
a) Deep burn on head, face, chest neck, abdomen, back, upper and lower extremities, ears were burnt, all the muscles were burnt.
b) Deep burn on left forearm, left hand was totally burnt.
c) Deep burn on chest and heart, both lungs and spleen were burnt.
d) Deep bum on abdomen and chest, ribs, intestines, kidney, spleen were also burnt.
e) Deep burn on lower extremities, thigh muscles, pancreas liver, kidneys, spleen and uterus were burnt.
Death was caused due to anti-mortem burn injuries.
10. The postmortem of the dead body of Kumari Aarti was conducted by Dr. G. P. Srivastava on 18.12.1994 on 2.40 p.m. Postmortem report (Ext. Ka 40) was prepared by him, which has been proved by Inspector Dinesh Kumar Singh (P.W.11). The following anti-mortem injuries were found on the dead body.
a) Lacerated wound 2.5 cm X 1.0 cm X bone deep on left side of forehead 1.5 cm above left eyebrow, fracture frontal bone below (illegible).
b) Contusion 3 cm X 1 cm on left side of temporal reason, there is fracture of frontal and temporal bone.
c) 1 cm X 1 cm on front of left knee.
Death of Kumari Aarti was caused as a result haemorrhage and shock due to injury No. 1 and 2.
11. Investigation was started by S.I. Atar Singh, who arrested the accused Krishna Kumar @ Pappu on 17.12.1994. Some property, which was looted from the house of deceased is said to have been recovered by S.I., Atar Singh at the instance of accused-appellant Krishna Kumar @ Pappu on 17.12.1994 vide recovery memo (Ext. Ka 2). The dead body of Kumari Aarti is also said to have been recovered at the instance of appellant-accused Krishna Kumar by S.I., Attar Singh on the same date viz. 17.12.1994 from a well vide recovery memo (Ext. Ka 3). Some other formalities were also made by S.I., Attar Singh regarding investigation.
12. 0n 18.12.1994, the investigation was taken up by S.I., Dinesh Kumar singh (P.W.11), who was posted as Station Officer at P.S. Madhotanda. He arrested the accused Mahesh Kumar Verma and after making necessary formalities regarding investigation, chargesheet (Ext. Ka 14) was submitted against the appellant-accused Krishna Kumar @ Pappu and Mahesh Kumar Verma.
13. On the case being committed to the Court of Session, the accused Mahesh Kumar Verma was charged under Section 394/302/364/201 all read with Section 120B I.P.C. where as the appellant-accused Krishna Kumar @ Pappu was charged under Section 302/394/364/201/411 I.P.C. Both the accused pleaded not guilty and claimed to be tried.
14. In order to prove its case, the prosecution has examined 11 witnesses, which are Vinod Kumar Pandey (P.W.I), Mohan Lal (P.W. 2), Ram Nath Gupta (P.W. 3), Ram Bahadur Singh (P.W. 4), H.C.P. Santosh Kumar Gupta (P.W.5) Dr. Kripal Singh (P.W. 6), Rajiv Kumar Gupta (P.W. 7) Farrukh Hussain (P.W. 8), Mahendra Pal Misra (P.W. 9), Ram Kishore Pandey (P.W. 10) and Inspector Dinesh Kumar Singh (P.W. 11).
15. Ashok Kumar Verma and Kumari Pooja have been examined as Court witnesses No. 1 and 2 respectively.
16. In their statements recorded under Section 313 Cr. P.C., the accused persons have denied all the allegations of the prosecution and they have stated that they have been falsely implicated in this case.
17. After examination of the accused persons under Section 313 Cr. P.C., opportunity was given to them to lead evidence in defence, but the accused did not lead any evidence in their defence.
18. After hearing learned Counsel for the parties, the Court below vide impugned judgement and order dated 28.04.2006 acquitted the accused Mahesh Kumar Verma of all the charges framed against him, but the appellant accused Krishna Kumar @ Pappu was convicted and sentenced to death under Section 302 I.P.C., without recording separate sentence for the offences punishable under Section 394/364/201/411 I.P.C. Being aggrieved, this appeal has been preferred by the appellant-accused Krishna Kumar @ Pappu, where as reference No. 7 of 2006 has been sent by the Court below for confirmation of death sentence.
19. We have heard arguments of Sri Dilip Kumar, learned Counsel appearing for the appellant. A.G.A. Sri R.K. Singh, assisted by the A.G.A., Sri A.K. Singh have also been heard. We have carefully gone through the entire evidence on record as well as the impugned judgment.
20. A number of arguments were made by the learned Counsel for the appellant, but much emphasis was laid mainly on two points. The first point is non-examination of first Investigating Officer, S.I. Atar Singh by whom looted property and dead body of Kumari Aarti are alleged to have been recovered at the instance of appellant-accused Krishna Kumar. The second point is regarding non giving of opportunity to cross examine C.W. 2, Kumari Pooja.
21. Regarding the non-examination of S.I. Atar Singh, it was vehemently contended by the learned Counsel for the appellant that in this case non-examination of S.I. Atar Singh has caused serious prejudice to the appellant. In this regard, it was submitted by the learned Counsel that there is some discrepancy regarding the articles of looted property which are mentioned in the recovery memo (Ext. Ka 2) and the property which was produced in Court before P.W. 4, Ram Bahadur Singh Yadav and hence, it was essential to examine S.I. Atar Singh in this case, because only he could explain the discrepancy and since he has not been examined in Court below, hence the accused has been seriously prejudiced. We have carefully gone through the statement of Ram Bahadur Singh Yadav (P.W.4), who is said to be the eyewitness of alleged recovery of looted property and dead body of Kumari Aarti at the instance of appellant. We also have gone through the recovery memo (Ext. Ka 2). Without making any comment regarding the discrepancy of the articles of looted property, which have been produced in Court before the witness Ram Bahadur Singh Yadav and those mentioned in the recovery memo (Ext. Ka 2), we are of the considered view that non-examination of S. I. Atar Singh is serious lacuna in this case. There was no eyewitness of the incident of murder of three persons and the fate of this case is rested on the factum of recovery of looted property and the dead body of Kumari Aarti at the instance of appellant accused Krishna Kumar alias Pappu. To prove the said recovery, examination of S.I. Atar Singh was essential in this case, because only he could prove the alleged disclosure statement of the appellant accused and consequent recovery of looted property and dead body of Kumari Aarti at his instance, but it is very unfortunate that sincere efforts were not made by the Court below to procure the attendance of S.I. Atar Singh. If S.I. Atar Singh was not coming to Court for evidence, then this matter ought to have been brought to the notice of higher authorities of Police Department and administration, but no such effort appears to have been made by the Court below. Therefore, in our view, this case ought to be remanded to the Court below so that S.I. Atar Singh may be summoned for evidence by making sincere and effective efforts. We are conscious that non-examination of Investigating Officer may not be fatal in the cases where there is eyewitness account of occurrence but where the guilt of the accused is sought to be proved on the basis of recovery of looted property and dead body as in instant case, then examination of the Police Officers by whom the said recovery was made becomes important. Therefore, having regard to all these facts, fresh efforts should be made by the Court below to procure the attendance of S.I. Atar Singh. In case, S.I. Atar Singh has died or is not otherwise available for the reason beyond the control of authorities concerned, then other police personnel mentioned in the recovery memos (Ext. Ka 2 and Ext. Ka 3) may be summoned to prove the alleged recovery of looted property and dead body of the deceased Kumari Aarti. No Police personnel mentioned in the aforesaid recovery memos has been examined in this case by the Court Below. From the recovery memos (Ext. Ka 2 and Ext. Ka 3) it is seen that S.I. Lal Jit Singh Sandhu, S.I. Amar Singh Verma, H.C. 81 Todi Singh and some constables were included in that police party, by which the recovery of looted property and dead body of Kumari Aarti was allegedly made at the instance of appellant-accused Krishna Kumar alias Pappu, but it is surprising that the Court below did not make sincere efforts to examine any of those police personnel, who were included in the aforesaid police party. If the prosecutor was negligent in not procuring the attendance of the police persons mentioned in the recovery memos, then it was the legal duty of the Court below to summon the police personnel mentioned in the recovery memos for evidence to do the justice. Section 311 Cr. P.C. gives ample power to the Court to summon any person as witness or examine any person in attendance though not summoned as a witness, or recall and re-examine any person already examined. The second part of Section 311 Cr. P.C. casts a duty upon the Court to summon and examine or recall and re-examine any person if his attendance appears to it to be essential to just decision of the case. Therefore, if the prosecutor was not summoning the police personnel mentioned in the recovery memos (Ext. Ka 2 and Ext. Ka 3) then it was the bounden duty of the Court below to summon any of the police personnel, who were included in the police party by whom recovery of looted property and dead body of deceased Kumari Aarti is said to have been made, but as mentioned above, the Court below failed to discharge its legal duty and hence on this ground, the remand of the case has become essential, so that the Court below may exercise its power under Section 311 Cr. P.C. to summon any of the police personnel mentioned in the recovery memos Ext. Ka 2 and Ext. Ka 3 for evidence.
22. There is one reason more to remand this case. Kumari Pooja has been examined by the Court below suo moto as CW-2, but opportunity to cross-examine this witness was not given to the accused-appellant. There is nothing on record to show that opportunity to cross-examine the witness Kumari Pooja (CW-2) was given and the accused waived his right to cross-examine the witness. When a witness is examined by the Court suo moto as Court witness by exercising the power under Section 311 I.P.C., then it is obligatory for the Court to give opportunity to both the parties i.e. prosecution as well as defence to cross-examine the witness, if they like. In the instant case, this legal duty was not discharged by the Court below, because after examination of Kumari Pooja as CW-2 on 03.03.2006, the accused or his counsel does not appear to have been called upon to cross-examine the witness, as it is not mentioned either in the order sheet of Sessions Trial No. 569 of 1996 or at the end of the statement of Kumari Pooja that opportunity to cross-examine the witness was given to the accused. When the witness Inspector Dinesh Kumar Singh (P.W. 11) was examined on 10.03.2006, then opportunity to cross-examine the witness was given to the appellant accused Krishna Kumar @ Pappu, but the witness was not cross-examined. It is mentioned in the end of the statement of Dinesh Kumar Singh (P.W. 11) that "Mulzim ko zihrab ka mauka diya gaya parantu uski aur se koi prashna nahin puchha gaya. Zirha ka avsar samapt kiya gaya." Such averment is missing at the end of the statement of C.W.-2 Kumari Pooja. It shows that opportunity to cross examine this witness was not given to the appellant-accused. Had such opportunity was given to the appellant-accused and if that opportunity was not availed by the appellant, then aforecited averment would have been made at the end of the statement of Kumari Pooja (C.W. 2), but as stated above, no such averment has been made at the end of the statement of Kumari Pooja indicating that the Court below did not afford opportunity to the appellant accused Krishna Kumar @ Pappu to cross-examine this witness. Therefore, on this ground also, remand of the case appears to be essential, so that the witness Kumari Pooja may be recalled for cross-examination by the counsel of appellant accused Krishna Kumar @ Pappu.
23. Since we are remanding the case to the Court below for fresh decision, hence, it would not be proper for us to make any comment on the merit of other witnesses examined by the prosecution.
24. This Court can also summon the witnesses under Section 367 and 391 Cr.P.C. but since the matter is very old and recording of the evidence in this Court will further cause delay, therefore, it will be proper to remand the case.
25. For the reasons mentioned above, this appeal has to be allowed and after setting-aside the impugned judgement and order, the case has to be sent back to the Court below for fresh decision.
26. In the result, we allow this appeal and set aside the impugned judgement and order. The reference sent by the Court below is also hereby dismissed.
The case is remanded and is hereby transferred to the Session Judge, Pilibhit, who will himself decide the case afresh keeping in view the observations made in the body of this judgement. It is made clear that evidence already led by the prosecution will not be wiped out and will be taken into consideration at the time of passing the judgement.
The learned Session Judge, Pilibhit is hereby directed to deliver the judgement if possible within a period of four months from the date of receiving the record.
S.S.P., Pilibhit is also hereby directed to depute special messengers to procure the attendance of the witnesses, summons of which are issued by the Sessions Judge, Pilibhit.
Office is directed to send back the lower Court record as early as possible along with the copy of this judgment.