JUDGMENT K. Narayan, J.
1. Accused appellant Mahesh has been convicted of the offense of murder under Section 302/34 and of causing disappearance of evidence under Section 201 I.P.C. and sentenced to imprisonment for life and for one year respectively by order dated 17-5-1984 by the 3rd Additional Sessions Judge Shahjahanpur in ST. No. 627 of 1983.
2. An FIR in this case was lodged by one Shri Ram Kumar Singh. According to communications in this F.I.R. as also the statement of the accused miller Section 313 Cr. P.C., the accused, the informant and the deceased and one Nam Singh were all real brothers. We are not concerned with Nem Singh here. Ram Kumar Singh is serving in Bareily while Dharmendra and Mahesh used to live in a house and at the same time Nem Singh and the mother of all, used to live in another room of the same house. Mahesh Singh had a wife Chameli, though, according to Ram Kumar, she was merely a purchased concubine but that is not going to matter such.
3. The prosecution story over and above the factors is in the form that this Chameli had illicit connection with one Malkhan who was also accused in this case and is said to have been murdered during the trial. Malkhan used to maintain both Mahesh and Chameli and this was not liked by Dharmendra who occasionally objected to it and his raising of eye-brow was not liked by Mahesh who in his turn would warn Dharniendra with undesirable consequences for his uncalled for intereference.
4. The story as set up by the prosecution was further lo say that on (possibly 30th July 1983) Saturday Dharmendra came a little bit late at night and he knocked at the door of the mother to get some kerosene oil. Mahesh conveyed that he need not disturb the mother and spared some kerosene oil for him. This was just to show that late in the evening Dharmendra and Mahesh were together. In the next morning Dharmendra was not seen by anybody, though Mahesh, Chameli and Malkhan were moving about in the court-yard as usual. On query the mother was told that Dharmendra had gone to village and will be coming after some 7 or 8 days. This is all the evidence that had been led by the prosecution in so for as Mahesh and Kalkhan are concerned. The other evidence was regarding a communication by Chameli to the mother after some 7 days of the disappearance of Dharmendra that he had been done lo death by Mahesh and Malkhan and his hotly thrown into some well and the so called discovery of the dead body of Dharmendra from well of Pradhan duly packed in sonic gunny bag and Dari. This was all as allegation against the accused persons. Curiously the learned Sessions Judge has acquitted Chameli and convicted Mahesh. In order to see if there was any justification for it, we would like lo proceed with the evidence which has been gone through along with the counsel for the appellant and the State. It may be mentioned in the very beginning that any observation in respect of evidence in so far as it might be against Smt. Chameli will be merely for the purpose of the appreciation of the evidence and can have no value against her as she had already been acquitted and that order has become final.
5. The prosecution had examined Dr. S.C. Gupta P.W.7 who had conducted the postmortem examination and naturally there is nothing much to turn upon it as there can be no doubt about the death of Dharmendra and the fact that the cause of death was in two severe injuries upon the neck which had cut the major blood vessels as well as tracheas, P.W.9 Anand Prakash. Sub Inspector was the Investigating Officer P.W.5 Shyam Kumar Gupta was the Magistrate who recorded statement of Smt. Chameli may be under Section 164 Cr. P.C. Obviously i.e. also of no value now. It may be said at the very outset that whatever the statement might have been, it would not be read against any other accused what to say of Mahesh who would also be entitled to certain privilege on account of communication during the marriage. We shall still not dilate upon it as it will not seise any purpose. Similarly the affidavit of Sri Kukdip Singh, constable who had asserted the dead-body for postmortem examination is immaterial. We are, thus, left with the evidence of P.W. 1 Ram Kumar. P.W. 2 Smt. Samal Devi, the mother, P.W. 3 Ram Beti, the sister of accused and deceased P.W. 4 Jagpal Singh and P.W. 8 Shri Virendra Singh.
6. P.W.1 Ram Kumar Singh was the informant. He had not seen anything admissible or inadmissible for the purposes of evidence and whatever he had stated was about the communication to him from the mother and what he had heard about. It was made out in the cross examination that he had never seen Smt. Chameli and naturally neither he could know anything personally about the relations between her and his brother and her and Malkhan. Except for the proof of the F.I.R. his evidence was a waste of lime which has been allowed by the Sessions Judge for no reason. There was however, one thing more rightly pointed out by the learned Counsel for the appellant and that is that accepting to F.I.R., before loading the F.I.R.. it was communication by Smt. Chameli on thursday that Dharmendra had been murdered and his dead body thrown into well by Malkhan and Mahesh. If it was so and to be more precised despite this fact being mentioned in the written report, the case was registered as one under Section 364 I.P.C. when there was not even a word about kidnapping and abduction and it was a clear cut communication of murder and disappearance of evidence. As to why the police considered it to be a case under Section 364 I.P.C. can be answered by imagining that they had in mind that the case would be better if converted at some later stage into one under Section 302 I.P.C.
7. P.W. 2 Smt. Samal Devi is the mother. She had stated about the statement of Smt. Chameli to her. Assuming for the time that it was a correct statement, how the Sessions Judge had read it against Mahesh is something beyond understanding. Possibly he has never tried to see the provision of Section 30 of the Evidence Act and is not aware of the basic principle that a testimony of a person may it be before the court or elsewhere in any form, cannot be read as evidence without the lest of cross examinations there are only few exceptions such as dying declaration etc. There was nothing in her statement to connect the accused appellant with the murder. Even if the incident of a night before in the asking for kerosene oil is believed and according to it does not connect the murder with accused in any way.
8. P.W. 3 Ram Beti as already said is the sister of accused, deceased and informant. She was examined to State about the so called discovery of the clothes of the deceased from inside the house where they are said lo have been buried. Again the presence of clothes in the house in which deceased also lived, is nothing material and apart from that, if it can be any stage to any extent in favour of the prosecution, it could at best be an evidence against Smt. Chameli. How the learned Sessions Judge has read it against Mahesh and discarded it in respect of Chameli is something beyond comprehension.
9. Similarly P.W. 4 Jagpal Singh was examined to stale about the extra judicial confession of Smt. Chameli at the time of his arrest and then consequently, the so called discovery as mentioned by P.W. 3 Ram Beti it also meets the same fate.
10. P.W.8 Virendra Singh was a witness of the so called discovery of the body from the well at the pointing out by Smt. Chameli when she was in police custody. We will not go into the detail to see if it can be said lo be discovery at all, but cannot refrain from saying that at best it could be some evidence if at all only against Smt. Chameli. The fact of the matter is that P.W. 1 Ram Kumar Singh had stated that he had first of all some across the dead body 'Mujhe mili Lash'. It appears that when the dead body began to sting in the well, the presence thereof was noticed and thereafter everything else was manufactured. Be it what even it may, the fact remains that no part of the evidence could ever connect the accused appellant with the offence of murder or causing disappearance of the evidence of offence.
11. The conclusion arrived at by the learned Sessions Judge to say the least simply shows that he had no idea what is meant by evidence under the Evidence Act and a misplaced and uncalled for sympathy for the lay and possibly an imagined anger against the accused. This sort of approach is basically against the principles of justice.
12. In result, this appeal should succeed and the conviction and sentence rendered by the Sessions Judge should be set aside. The accused appellant deserve to be acquitted.
13. In view of the aforesaid discussion, the appeal succeeds and is allowed. The conviction of Mahesh under Section 302/34 I.P.C. and 201 I.P.C. as also sentence of life imprisonment and one year rigorous imprisonment on the two counts are also set aside. He is acquitted of the charges framed against him. The appellant if in custody, shall be released forthwith unless wanted in any other case. If he has been released on bail, he need not surrender and those bonds stand discharged.