M. A. KHAN, J. ( 1 ) THE above noted two appeals arise out of the same judgment and order dated 20-4-2000 passed by Sri H. S. Yadav, Addl. Sessions Judge, Etah thereby convicting the appellants Kishan Pal, Ajant Singh and Mahavir of the offence punishable under S. 302 read with S. 149 I. P. C. and imposing death penalty to them and to pay a fine Rs. 1,000. 00 each. The appellant Shahzadey was also convicted under S. 302 read with S. 149 I. P. C. and was sentenced to undergo imprisonment for life. All the four appellants were further held guilty for the offence punishable under S. 364 I. P. C. and were sentenced to undergo imprisonment for life and to pay a fine of Rs. 500. 00 each. All the four appellants were further held guilty of the offence punishable under S. 201 I. P. C. and were sentenced to undergo R. I. for a period of five years. All the four appellants were further held guilty of the offence punishable under S. 452 I. P. C. and were sentenced to undergo R. I. for a period two years each and to pay a fine of Rs. 100. 00 each. All the sentences were made to run concurrently. It was directed that the appellants Kishan Pal, Ajant Singh and Mahavir be hanged by neck till they are dead and accordingly a reference on that count was made to the High Court for confirmation of the death sentence recorded against them. Since the above noted two criminal appeals and reference arise out of the same judgment and order, they are being disposed of by this common judgment. ( 2 ) BRIEF facts leading to the prosecution of the appellants are as follows : ( 3 ) ON 22-12-1996, at about 9. 00 A. M. some of the inmates of the house of Raghuvir Singh of village Shahwazpur, police station Jaithra, District Etah were slaughtered and some were kidnapped with intention to murder them. ( 2 ) BRIEF facts leading to the prosecution of the appellants are as follows : ( 3 ) ON 22-12-1996, at about 9. 00 A. M. some of the inmates of the house of Raghuvir Singh of village Shahwazpur, police station Jaithra, District Etah were slaughtered and some were kidnapped with intention to murder them. One Dindayal of nearby village Rupdhani (brother of village Chaukidar) lodged First Information Report on the same day at 14-O clock at police station Jaithra, District Etah, disclosing that he came to know today that Smt. Mata Devi, Kuldeep, Babloo and Smt. Savitri, all from the family of Raghuvir Singh of village Shahwazpur have been murdered by Kishanpal, Ajant Singh, Shahzadey and Mahavir of the same village and 2-3 other unknown assailants with guns and country made pistols at about 9. 00 A. M. and Milap Singh son of Raghuvir Singh has been kidnapped on gun-point towards the river. The occurrence was witnessed by Ram Swarup of the same village and Shripal of village Rupdhani. On coming to know about the miscreants he went to village Shahwazpur and found that dead-body of Smt. Mata Devi was lying near the main gate, dead-body of Smt. Savitri was lying in the door, dead-body of Babloo was lying in a corner of a room of the house of Raghuvir Singh, while the dead-body of Kuldeep, besmeared with blood, was lying infornt of the room of Malkhan. He also disclosed that 6-7 days prior to this occurrence,kalactar and others committed murder of Nahar Singh, brother of accused persons, in the jungle of village Timannura within police station Kuraoli, district Manipuri and in the revenge thereof, accused poerson have committed these murders. ( 4 ) THE First Information Report was got scribed by the First Informant from one Ram Sevak of village Nagla Kamley, police station Jaithra, district Etah and lodged at the police station Jaithra, district Etah as aforesaid. On the basis of the written Report (Ext. Ka-1) Jaithra Police registered the case and investigation was taken up by Sri V. P. Singh, the then S. O. of police station Jaithra, district Etah in his own hands. He accompanied with other police force, rushed to the place of occurrence along with necessary papers. On the basis of the written Report (Ext. Ka-1) Jaithra Police registered the case and investigation was taken up by Sri V. P. Singh, the then S. O. of police station Jaithra, district Etah in his own hands. He accompanied with other police force, rushed to the place of occurrence along with necessary papers. Inquest report on the dead-bodies of Kuldeep alias Karu, Smt. Mata Devi, Smt. Savitri and Babloo were prepared by S. I. Ishwara Dutt Sharma under directions of the I. O. Sri V. P. Singh. Along with aforesaid inquest reports, he also prepared necessary papers for post-mortem of the dead-bodies, such as Letter to C. M. O. , Letter to R. I. , Challan Nash, Phhoto Nash, which are Ext. Ka-7 to Ka-26 respectively on record. The I. O. also seized simple and blood stained soil from near the dead-bodies of the aforesaid victims, sealed them separately in separate containers and prepared seizure memo (Ext. Ka-27 to ka-29 ). He also seized from the place of occurrence, one Chappal, found near the dead-body of Kuldeep and prepared seizure memo (Ext-Ka-30 ). He also seized Chappals from the scene of occurrence, found about 15 steps away from the dead-bodies of Smt. Savitri Devi and Smt. Mata Devi, sealed them and prepared seizure memo (Ext. Ka-31 ). The I. O. further seized one blood-stained woollen shawl, blood stained lota and Hawai Chappals, found at the dead-body of Smt. Mata Devi, sealed them and prepared seizure memo (Ext. Ka-32 ). The I. O. also seized empty shell of 315 bore cartridge from the scene of occurrence, sealed it in a cloth-cover and prepared seizure memo (Ext. Ka-33 ). He also seized six empties of 12 bore cartridges, 3 empties of 315 bore cartridges, two tiklis of 12 bore and 3 bullets of 315 bore near the dead-bodies of Smt. Savitri and Smt. Mata Devi, sealed them in a cloth-cover and prepared seizure memo (Ext. Ka-34 ). The I. O. further inspected the scene of occurrence and prepared site-plan (Ext. Ka-41 ). After completing formalities of inquest, dead-bodies of the four victims were sent to the Head quarter, along with other necessary papers for post-mortem through constables Raispal and Banwari Lal. ( 5 ) ON 23-12-1996 Dr. Narendra Babu, Medical Officer, District Hospital, Etah conducted autopsies on the dead-bodies and prepared post-mortem reports of Kuldeep (Ext. Ka-2), Smt. Savitri Devi (Ext. After completing formalities of inquest, dead-bodies of the four victims were sent to the Head quarter, along with other necessary papers for post-mortem through constables Raispal and Banwari Lal. ( 5 ) ON 23-12-1996 Dr. Narendra Babu, Medical Officer, District Hospital, Etah conducted autopsies on the dead-bodies and prepared post-mortem reports of Kuldeep (Ext. Ka-2), Smt. Savitri Devi (Ext. Ka-3), Smt. Mata Devi (Ext. Ka-4) and Babloo (Ext. Ka-5 ). ( 6 ) ON 24-12-1996 I. O. received information about the dead-body of Sudhir son of Kalacter that it was lying in the kali river therefore, he directed S. I. Mohd. Salim Khan to prepare inquest report of the dead-body. S. I. Mohd. Salim Khan reached the place, when the dead-body was lying, on 24-12-1996 at about 15 O clock. He prepared inquest report (Ext. Ka-35) and other necessary papers for post-mortem of the dead-body, such as photo-nash, Letter to C. M. O. , Challan Nash and letter to R. I. respectively Ext. Ka-36 to Ka-39. He sealed the dead-body and handed over it to constables Raispal and Jagdish Singh for taking to Head Quarter for post-mortem. S. I. Mohd. Salim Khan also seized one Angochha of red colour tying on the legs of deceased and one woollen sweater, found on the neck of the dead-body and prepared seizure memo (Ext. Ka-40 ). Autopsy on the dead-body of deceased Sudhir was conducted by Dr. K. K. Yadav, Medical Officer of the District Hospital, Etah on 25-12-1996. He also prepared post-mortem report (Ext. Ka-45 ). ( 7 ) THE A. O. also recorded statements of the witnesses under Section 161 Cr. P. C. , who in their respective statements disclosed the names of remaining accused persons not named in F. I. R. The I. O. arrested accused persons on different dates and also recorded their statements. On the arrest of accused Kishanpal, the I. O. recovered on 315 bore countrymade pistol and 2 live cartridges from his possession and further booked him under Section 25 Arms Act for which also trial proceeded before the Court below but the same resulted into acquittal. The I. O. after concluding entire investigation, ultimately submitted charge-sheet (Ext. Ka-44) against the accused persons. The I. O. after concluding entire investigation, ultimately submitted charge-sheet (Ext. Ka-44) against the accused persons. ( 8 ) IT is worth mentioning here that Sri Munesh Kumar son of Raghuvir Singh, a member of the family of victims, on26-12-1996, through registered post, moved application before the Honble Governor of Uttar Pradesh, disclosing therein that on 22-12-1996 at about 9. 00 A. M. he along with his brother Dinesh and Rambir Singh, was present in the out on the roof of his house situated at village Shehawazpur, police station Jaithra district Etah. At the same moment, Shahzadey, Mahavir, Ajant Singh and Kishan Pal all sons of Malkhan with 21 other named persons, not arraigned as accused in this case, intruded in his house armed with deadly weapons and shot dead his sister-in-law Smt. Savitri Devi. Thereafter aforesaid persons further shot dead his nephews Pradeep and Pappu and his mother Smt. Mata Devi. They also fired at his brother Milap Singh and Kidnapped his three nephews Sudhir, Govind and Babloo towards Kali river. He, Dinesh and Rambir Singh jumped from the roof and escaped towards Mainpuri after crossing Kali river, as the assailants obstructed their way towards Jaithra and Dhumri. When they were at Kali river, then they saw that accused-persons arrived there dragging dead-body of his brother and threw it away in the river. They also shot-dead his three nephews who were kidnapped by the accused and also threw their dead-bodies in the Kali river. He further disclosed that few days prior to this occurrence, Nahar Singh son of Malkhan Singh was murdered. Accused persons were suspecting that Nahar Singh was murdered by the brother of the applicant, Kalactar Singh. In revenge of murder of Nahar Singh, accused persons have killed eight members of his family. The applicant urged to get lodged the report of the occurrence against the assailants named in the application to prosecute them after getting them arrested. The copies of the aforesaid application were also sent through registered post to the Director Genereal (Police), Lucknow, Inspector General of Police Kanpur Zone, Dy. Inspector General of Police Agra Range, S. S. P. Etah and the Station Officer, police station Jaithra, district Etach on the same day. Sri Raghuvir Singh, head of the victims family, also said to have made a complaint to the Director General of Police, Lucknow, alleging therein that on 22-12-1996 at about 9. Inspector General of Police Agra Range, S. S. P. Etah and the Station Officer, police station Jaithra, district Etach on the same day. Sri Raghuvir Singh, head of the victims family, also said to have made a complaint to the Director General of Police, Lucknow, alleging therein that on 22-12-1996 at about 9. 00 A. M. , 8 members of his family residing at village Shahwazpur within the police station Jaithra, district Etah have been slain mercilessly by Shahzadey, Mahavir, Ajanti, Kishanpal and 22 others named assailants not arraigned as accused in this case. The police, however, got lodged the F. I. R. in haste from brother of village Chaukidar, resident of nearby village in the arbitrary manner in which all the real assailants have not been named. He made serious allegations against the local police even stated that police is in connivance with the slayers of his family and in order to minimise the gravity of offence, has shown only five murders when in fact eight members of his family have been slaughtered in the day light occurrence. He further added that it is a matter of grave concern that the local police deliberately avoided to recover dead-bodies of all the victims, which were seen in the basin of Kali river by the inhabitants of nearby villages, even the police did not permit him and his family members to visit their village Shahwazpur. The investigation of the case is being done under political influence. Thus, he has lost faith in the local police and urged to transfer the investigation of the case to C. B. C. I. D. or C. B. I. on this application, investigation of the case was ordered to be done through C. B. C. I. D. vide order dated 28-2-1997. In the mean time the investigation of the case was completed by the S. O. Police station Jaithra, and he had submitted charge-sheet against accused persons, facing trial on 18-1-1997 as stated earlier, hence, the trial against the accused persons commenced before the Court of Session at Etah. Since the Government of Uttar Pradesh had ordered further investigation in the case through C. B. C. I. D. but the trial against the accused persons was pending before the Court of Session, therefore, the I. O. , C. B. C. I. D. moved an application u/s. 173 (8) Cr. Since the Government of Uttar Pradesh had ordered further investigation in the case through C. B. C. I. D. but the trial against the accused persons was pending before the Court of Session, therefore, the I. O. , C. B. C. I. D. moved an application u/s. 173 (8) Cr. P. C. before the learned Sessions Judge, Etah seeking permission for further investigation, which was allowed vide order dated 1-4-1997 and the I. O. , C. B. C. I. D. was granted permission to make further investigation of the case. On 27-10-1997 order of the Honble High Court, passed Misc. Case No. 13421 of 1997, dated 24-9-1997, directing Sessions Court to conclude trial on day to day hearing within a period of six months from the date of communication was filed before the Sessions Court. The I. O. , C. B. I. C. D. however, failed to apprise the Court about progress of further investigation, despite a lapse of sufficient time. Thus, in view of the aforesaid order of the Honble Court, the trial of this case was commenced withiout waiting result of the furtherinvestigation. Before the C. B. C. I. D. could have filed results of the further investigation, evidence in this case was concluded and even statements of the accused persons under Section 313 Cr. P. C. were also recorded. Thus, to my mind, the result of further investigation so conducted by the C. B. C. I. D has no bearing upon this case. ( 9 ) AS disclosed earlier that at the time of arrest, accused Kishanpal was found in possession of one 315 bore country made pistol and two live cartridges of the same bore and he was further booked under Section 25 Arms Act. The said trial was also committed to the Court of Session as it was related with this case. The learned Sessions Judge, Etah also framed charge against Kishan Pal under Section 25 of the Arms Act. On 5-11-1997, vide his subsequent order, of the learned Sessions Judge, Etah, consolidated this Session Trial with observation that S. T. No. 275 of 1997 State v. Satyapal shall remain the leading case. The learned Sessions Judge, Etah also framed charge against Kishan Pal under Section 25 of the Arms Act. On 5-11-1997, vide his subsequent order, of the learned Sessions Judge, Etah, consolidated this Session Trial with observation that S. T. No. 275 of 1997 State v. Satyapal shall remain the leading case. ( 10 ) AFTER committal of this case to the Court of Session the trial began and the learned Session Judge, Etah framed charges against the accused persons on 4-12-1997 under Sections 148, 302 read with Section 149, 364, 452 and 201 of the Indian Penal Code to which they pleaded not guilty and claimed to be tried. ( 11 ) THE prosecution has examined as many as 15 prosecution witnesses. PW-1, Din Dayal, brother of village Chaukidar is the complainant of this case, PW-2, Ram Swarup resident of Shahwazpur and PW-3, Shripal resident of nearby village Rupdhani are said to be eye witnesses of the occurrence. PW-4, Ram Sewak is scribe of written report (Ext. Ka-1), PW-5, Dr. Narendra Babu Medical Officer, District Hospital, Etah conducted autopsies on the dead-bodies of the victims Kuldeep alias Karu, Smt. Mata Devi wife of Raghuvir Singh, Smt. Savitri Devi wife of Kalactar Singh and Babloo and prepared post mortem reports (Ext. Ka-2 to Ka-5), PW6, Ramvir Singh, a relative of victim family is also said to be eye witness of the occurrence, PW7, Munish Kumar, though is not a witness of calender, is also said to be an eye withness of the occurrence, PW-8, S. I. Ishwar Dutt Sharma, prepared inquest reports on the dead-bodies of deceased Kuldeep alias Karu, Smt. Mata Devi, Smt. Savitri Devi and Babloo and prepared the same along with other relevant papers (Ext. Ka-7 to Ka-26), PW-9, S. I. Mohd. Salim Khan, who seized blood stained and simple soil, Chappals and other materials from the scene of occurrence and prepared seizure memos (Ext. Ka-40 to Ka-44 ). This witness further prepared inquest report of dead-body of deceased Sudhir on 24-12-1996, found lying in the Kali river (Ext. Ka-36) and other relevant papers (Ext. Ka-37 to Ka-39), PW-10, Constable Banwari Lal, carried the dead-bodies of the aforesaid victims to the Head quarter for post-mortem, PW-11, S. I. V. P. Singh, is the investigating officer of this case, who after concluding entire investigation, submitted charge-sheet (Ext. Ka-44) PW-12, Dr. K. K. Yadav, Sr. Ka-36) and other relevant papers (Ext. Ka-37 to Ka-39), PW-10, Constable Banwari Lal, carried the dead-bodies of the aforesaid victims to the Head quarter for post-mortem, PW-11, S. I. V. P. Singh, is the investigating officer of this case, who after concluding entire investigation, submitted charge-sheet (Ext. Ka-44) PW-12, Dr. K. K. Yadav, Sr. Medical Officer, District Hospital, Etah conducted autopsy on the dead-body of deceased Sudhir and prepared post-mortem report, which he proved as Ext. Ka-45, PW-13, Head Constable Ram Sewak prepared Chik F. I. R. and Rapat G. D. which he proved as Ext. Ka-46, PW-14, Sri Ajai Kumar Goswami, Judicial Asstt. in the office of the District Magistrate, Etah proved prosecution sanction, granted by the District Magistrate, Etah under Section 39 of the Arms Act to prosecute the accused Kishan Pal under Section 25 Arms Act, which is Ext. Ka-52,and PW-15, S. I. Brajvir Singh, the I. O. of the case under Section 25 Arms Act against accused Kishan Pal. The prosecution after examining the aforesaid witnesses, closed its evidence. The prosecution has also placed reliance on documentary evidence such as Ext. Ka-1 to Ka-55, and material exhibits I to XLVIII. Prosecution has also filed certified copy of F. I. R. regarding murder of Nahar Singh son of Malkhan Singh of village Shawazpur police station Jeithra, district Etah, lodged at police station Kuraoli, district Mainpuri on 17-12-1996 at crime No. 327 of 1996, which is paper No. 404a/2 on record. ( 12 ) ACCUSED Shahzadey, Ajanti, Mahavir and Kishan Pal in their respective statements under Section 313 Cr. P. C. attributed that sons of Raghuvir Singh had committed murder of their brother Nahar Singh, therefore due to enmity, they have been falsely implicated in this Case. The remaining accused persons, in their statements, recorded under Section 313 Cr. P. C. also attributed their false implication due to enmity. The accused persons, however, adduced no evidence in their defence. ( 13 ) THE learned lower Court believed theprosecution theory, convicted the appellants and sentenced them as above. Feeling aggrieved by the said judgment and order the present appeals have been filed. ( 14 ) WE have heard learned counsel for the appellants as well a learned A. G. A. and have also gone through the record. ( 13 ) THE learned lower Court believed theprosecution theory, convicted the appellants and sentenced them as above. Feeling aggrieved by the said judgment and order the present appeals have been filed. ( 14 ) WE have heard learned counsel for the appellants as well a learned A. G. A. and have also gone through the record. Out of the witnesses examined by the prosecution in this case PW-1, Din Dayal turned hostile and has not at all supported the prosecution case. This witness even disowned his thumb impression on the F. I. R. , as he is a Chaukidar and has stated on oath that he just heard in the air that some murders have been committed. This witness pleads ignorance as to who committed those murders. Thus the statement of P. W.-1, Din Dayal is of no help to the prosecution. Similar is the position with Ram Swarup (PW-2) and Sripal Kathoriya (PW-3) and both these witnesses have disowned the fact that they had witness the occurrence. Instead they have specifically denied that the murders were committed in their presence. Nothing could be elicited in their cross examination so as to support the prosecution case in any manner. P. W. 4, Ram Sewak is the scribe of the F. I. R. and thus a formal witness. He has simply proved the F. I. R. (Ext. Ka-1) which was prepared by him on the dictation of the Din Dayal. In his cross-examination however this witness had stated that the F. I. R. scribed by him was dictated to him by the S. H. O. of police station. Thus with this statement of this witness on record the F. I. R. (Ext. Ka-1) looses its corroborative value. P. W. 5, Dr. Narendra Babu had conducted the post mortem on the dead-bodies of Kuldeep Singh, Smt. Savitri Devi, Smt. Data Devi and Bablu. The post mortem reports proved by this witness are Exts. Ka-2 to Ka-5. The factum of death and cause of death in this case is not at all disputed. ( 15 ) P. W. 6, Ram Vir Singh claims himself to be an eye witness of the occurrence and has stated that he knew Raghubir Singh son of Ram Sewak. On 22-12-1996 at about 9. Ka-2 to Ka-5. The factum of death and cause of death in this case is not at all disputed. ( 15 ) P. W. 6, Ram Vir Singh claims himself to be an eye witness of the occurrence and has stated that he knew Raghubir Singh son of Ram Sewak. On 22-12-1996 at about 9. 00 A. M, he was sitting on the roof of the house of Raghuvir Singh under a hut and on that day at about 1. 00 P. M. , he had witnessed the entire occurrence. It may however be mentioned at this very place that this witness Ram Vir Singh is not named in the F. I. R. He has stated that immediately after the occurrence he jumped from the roof and ran away as he also apprehended danger to his own life. However even according to own admission of this witness he had never disclosed this fact either to the Investigating Officer or to anybody else and he had also not moved any application to the higher authorities. It was for the first time in February 1997 that, according to this witness, he came to Etah head quarters and there he had moved an application before the Judicial Magistrate to the effect that he had witnessed the alleged occurrence. It is pertinent that the present occurrence took place on 22-12-1996. The witness could not explain as to where he remained after the occurrence upto February 1997. Furthermore, this witness is resident of village Pal which is admitteldy at a distance of 50 Kilometers from the village Shahazpur where the alleged occurrence had taken place. Thus he can well be termed as a chance witness. It will also be not out of place to mention that the hut under which this witness claimed that he was sitting and from where he had witnessed the occurrence was not found present in existence by the Investigating Officer. This witness admits that there is no stair case for going to the roof of the house of Raghuvir Singh. When asked as to how he reached the roof of Raghuvir Singh, this witness has stated that it was with the help of a ladder that he went to the roof of the house of Raghubir Singh. That ladder aforesaid was also not seen and noticed by the Investigating Officer in this case. When asked as to how he reached the roof of Raghuvir Singh, this witness has stated that it was with the help of a ladder that he went to the roof of the house of Raghubir Singh. That ladder aforesaid was also not seen and noticed by the Investigating Officer in this case. This witness visited many places after the occurrence for a month. However he did not make any attempt to report the matter at any police station or to any higher authorities. Thus the presence of this witness, who is admittedly not named in the F. I. R. on or near the scene of occurrence is absolutely ruled out and at any rate it is highly doubtful and he appears to be a got up witness. ( 16 ) MUNESH Kumar (PW-7) is yet another alleged eye witness of the occurrence and he too has stated that he is resident of village Badanpur and on the fateful day at about 9. 00 A. M. , he was sitting under the hut on the roof of his house along with Dinesh and Ram Bir. We have alreadyobserved above that the presence of the hut is totally doubtful as the aforesaid hut as not shown to the Investigating Officer and no such hut in fact existed on the roof. This witness too remained silent for a long time and neither he reported the matter to the police station nor any higher authority. He has stated that his statement was never recorded by the Investigating Officer in this case. In fact this witness never made an attempt to contact the Investigating Officer or the higher authority. This witness gives a novel type of explanation for the non-existence and visibility of the ladder and he states that immediately after reaching the roof, the ladder was taken away and was kept on the roof. This explanation offered by this witness is wholly incorrect and cannot at all be believed. ( 17 ) THERE is no other eye account available in this case and the presence of two witnesses examined by the prosecution has been held to be doubtful particularly when they are neither named in the F. I. R. nor their sitting under the hut on the roof of the house of Raghubir is believed to be true. ( 17 ) THERE is no other eye account available in this case and the presence of two witnesses examined by the prosecution has been held to be doubtful particularly when they are neither named in the F. I. R. nor their sitting under the hut on the roof of the house of Raghubir is believed to be true. Thus it is held that the case against the accused appellants is not proved to the hilt and beyond all reasonable doubt. Accordingly the two appeals deserve to be allowed. The judgment and order passed by the Court below will have to be set aside. ( 18 ) IN the result Criminal Appeal No. 935 of 2000 Kishan Pal v. State of U. P. and Criminal Appeal No. 1060 of 2000 Shahzadey v. State of U. P. are allowed. The judgment and order dated 20-4-2000 passed by the learned Addl. Sessions Judge, Etah are hereby set aside. The appellants are held not guilty of the offences punishable under Section 302 read with Section 149 I. P. C. u/section 201/452 I. P. C. and also under Section 148 I. P. C. All the appellants are acquitted of the charges framed against them. The appellants who are in jail shall be released forthwith if not wanted in any other case. The reference made by the learned Addl. Sessions Judge on the death penalty imposed is also answered in the above noted terms. Appeal allowed .