JUDGMENT : Per: Hon'ble Rajiv Sharma, ACJ. Since the common questions of law and facts are involved the above numbered appeals. These are being taken up together and are being adjudicated by this Common judgment. 2. These three appeals are instituted against the judgment and order dated 29.03.2010 rendered by learned District & Sessions Judge, Haridwar in Sessions Trial No. 313 of 2003 whereby the appellants in CRLA No.70 of 2010 and Criminal Appeal No.97 of 2010 were charged with and tried for the offences under Section 147, 148,149, 307, 302 and 120-B of IPC. The Appellants namely Sonu, Jag Singh@ Jaggi, Minder and Smt. Rekha and Daulat were convicted and sentenced under Section 147 IPC to undergo rigorous imprisonment for one year each and they were also convicted and sentenced under Section 148 IPC to undergo rigorous imprisonment for one and half years each. They were also convicted and sentenced under Section 302 read with 149 of IPC to undergo life imprisonment and to pay fine of Rs.5,000/- each. They were further convicted and sentenced under Section 307 read with 149 of IPC to undergo rigorous imprisonment for five years and to pay fine of Rs.3,000/- each. In default of payment of fine, they were directed to undergo additional imprisonment for a period of six month each. All the sentences were directed to run concurrently. Ramkishor charged under Sections 147, 148, 302/149, 307/149 of IPC and Jagira charged under Section 120-B/302 of IPC were acquitted by the Trial Court. However, the appellant-Daulat died during the pendency of the appeal as per order dated 10.03.2014, therefore, appeal against Daulat stood abated. 3. The case of the prosecution, in a nutshell, is that PW-3 Dilip Kumar lodged the first information report on 30.04.2002 to the effect that his son Navin alongwith his friend Rajiv Sharma had gone on motorcycle of Rajiv Sharma to pay obeisance to Mansa Devi. They had started descending towards Brahampuri, Haridwar. Munna Lal came to him and told that Sonu, Jag Singh, Minder, Ramkishore, Smt. Rekha and Daulat armed with Patal, Khukari, Knife and stick were standing on the way with intention to kill Navin. He followed his son. He saw that Sonu armed with Patal and Jag Singh armed with Khukhari were beating his son Navin. Navin was pulled down from motorcycle by Ram Kishore, Daulat and Rekha. Rajiv tried to save Navin. He followed his son. He saw that Sonu armed with Patal and Jag Singh armed with Khukhari were beating his son Navin. Navin was pulled down from motorcycle by Ram Kishore, Daulat and Rekha. Rajiv tried to save Navin. He was also attacked. He ran towards the main bazaar. He also tried to save his son. The assailants chased him. He withdrew himself. His son was killed on the spot. The incident happened at about 03.30 p.m. There was enmity between the parties. In another matter, an FIR was also registered against Navin for killing Ramu. Jagira was also involved in killing of Navin. 4. The dead body was sent for conducting the post mortem examination. The postmortem was conducted by PW-1 Dr. P.K. Bhatnagar. The first information report was registered. The investigation was carried out. The Challan was put up before the trial Court after completing all the codal formalities. 5. In order to prove its case, the prosecution has examined as many as seven witnesses. 6. The statements of appellants were also recorded under section 313 Cr.P.C. They have denied the case of prosecution and claimed to be tried. According to them, they were falsely implicated. After conclusion of the trial, the appellants were convicted and sentenced, as noticed hereinabove. Ramkishore and Jagira were acquitted. 7. The appellants have challenged their conviction by filing CRLA No.70 of 2010 and CRLA No.97 of 2010. The State Government has also filed the Criminal Appeal No.61 of 2010 against the acquittal of Ramkishore and Jagira. 8. Mr. R.S. Sammal, Advocate appearing on behalf of the appellants, has vehemently argued that the prosecution has failed to prove its case against the appellants. 9. Mr. Amit Bhatt, Dy. Advocate General appearing on behalf of the State has supported the prosecution case. 10. We have heard learned counsel for the parties in the appeals filed by the appellants as well as in Government Appeal filed by the State. We have also gone through the impugned judgment and lower court records carefully. 11. PW-1 Dr. P.K. Bhatnagar has conducted the postmortem examination on 01.05.2002. According to him, the cause of death was shock and haemorrage due to ante mortem injuries. 12. PW-2 Rajiv Sharma was the material witness. According to contents in the FIR, he was in the company of the Navin. Navin was riding motorcycle when he was attacked by the appellants. PW-1 Dr. P.K. Bhatnagar has conducted the postmortem examination on 01.05.2002. According to him, the cause of death was shock and haemorrage due to ante mortem injuries. 12. PW-2 Rajiv Sharma was the material witness. According to contents in the FIR, he was in the company of the Navin. Navin was riding motorcycle when he was attacked by the appellants. PW-2 Rajiv Sharma has testified that he did not know deceased Navin. He had not gone to Mansa Devi on 30.04.2002 with Navin. He did not know who had killed Navin. He has not received any injury since he was not present at the spot. He was declared hostile. He was examined by learned Public Prosecutor. He had denied the affidavit given in the Court. In his cross examination by the learned counsel appearing on behalf of defence, he stated that he has received injuries on 30.04.2002 at Jwalapur when he met in a three wheeler accident. He did not know about the motorcycle and did not know how to drive it. He was recalled for cross-examination on 15.02.2007. He narrated that the accident had taken place at 03.30 p.m. He was going to Jwalapur from Haridwar. The three wheeler turned turtle. He received the injuries. He had gone to the Hospital. He had not lodged any FIR. He had not given any statement before the Court on 02.11.2004. He had given only affidavit on 18.05.2002. He denied the contents of Section 161 Cr.P.C. also. The statement of PW-2 Rajiv Sharma does not inspire confidence. 13. PW-3 Dilip Kumar is also the material witness. According to him, his son had gone in the company of PW-2 Rajiv Sharma on 30.04.2002 to pay obeisance to Mansa Devi Temple. He was coming back towards Brahpuri, Haridwar. Munna Lal informed him that Sonu, Jag Singh, Minder, Ramkishore, Smt. Rekha and Daulat armed with weapons were beating Navin and his son had also gone towards Mansa Devi. He proceeded towards the spot in the company of Munna Lal. He saw that Sonu, Jag Singh, Minder, Ramkishore, Smt. Rekha had caught hold of Navin and Smt. Rekha Minder, Ramkishore and Daulat dragged his son from motorcycle. Sonu hit Navin with patal and Jag Singh with Khukhari. The rest of assailants have caught hold of Navin. They tried to save Navin. When the assailants threatened, they withdrew themselves. PW-2 Rajiv Sharma was also attacked. Sonu hit Navin with patal and Jag Singh with Khukhari. The rest of assailants have caught hold of Navin. They tried to save Navin. When the assailants threatened, they withdrew themselves. PW-2 Rajiv Sharma was also attacked. He went towards Brahmpuri on his motorcycle in injured condition. He had dispute with Jagira. In his cross examination, he told that he had two cases with Jagira. In his further cross examination, he deposed that Sonu, Minder and Jag Singh are real brothers. Rekha was their sister. He did not know that Navin had gone to pay obeisance to Mansa Devi Temple. Munna Lal told him that Navin had gone towards Mansa Devi Temple. He could not reach his son. He was surrounded by the assailants. He noticed that his son was dead. He has seen him from distance of 12 ft. He went near him and noticed that he was dead. Thereafter, he went to the Police Station. He had not touched the dead body. He went to Police Station without feeling his son's body. He had not tossed his son to see whether he was dead or alive. He has categorically stated in first information report that Munna Lal told him that his son had gone to Mansa Devi. He raised the alarm. However, there was nobody near the place of occurrence. 14. PW-4 Raj Pal Sharma has signed the Panchnama. In his presence, ordinary and blood soaked soil was lifted from the spot. He has categorically admitted in the cross examination that when the Panchnama was written, the real assailants were not known. 15. PW-5 H.C.P. Mahipal Singh has registered the FIR. 16. PW-6 S.I. Dinesh Kumar Tyagi was the Investigating Officer in the matter. He has prepared the spot map. He had lifted sample of ordinary and blood soaked soil from the spot. He had identified the weapons recovered from the spot in the Court. 17. PW-7 Intzar Ahamad, Food Clerk is the formal witness. 18. The case of prosecution precisely is that Navin had gone to Mansa Devi Temple in the company of PW-2 Rajiv Sharma. Munna Lal told him that he had seen the appellants armed with lethal weapons waiting for Navin to kill him. He went to the spot with Munna Lal. His son was attacked by the appellants. He tried to save his son but he was also threatened. His son was dead. Munna Lal told him that he had seen the appellants armed with lethal weapons waiting for Navin to kill him. He went to the spot with Munna Lal. His son was attacked by the appellants. He tried to save his son but he was also threatened. His son was dead. Thereafter, he had gone to the Police Station. The prosecution has not examined Munna Lal who told PW-3 Dilip Kumar about the presence of appellants at the spot. He was material witness and he could not be discharged. The conduct of PW-3 Dilip Kumar was very strange. He had seen his son Navin being attacked by the appellants but did not try to save him. He was present on the spot along with Munna Lal. The first instinct of the father would be to save his son or to raise alarm. According to PW-3 Dilip Kumar, he had raised the alarm but this fact has not been recorded in his statement. PW-3 Dilip Kumar has seen his son from the distance of 12 ft. Thereafter, he reached the spot. He did not touch his son's body. He has not turned it round to see whether his son is dead or alive. His first instant should have been to take his son to the hospital instead of rushing to the Police Station. Since he has not touched his son's body, he could not say whether he was dead or alive. This behaviour of PW-3 Dilip Kumar being father of the deceased is abnormal. He was not aware when his son left for Mansa Devi. In his examination in chief, he deposed that his son was attacked by Sonu with Patal and Jag Singh with Khukhari but in his cross examination, he deposed that his son was attacked by Manider and Sonu. PW-4 Raj Pal Sharma in his examination in chief admitted that at the time when the Panchnama was prepared, the names of the assailants were not known. He also deposed that when he reached the spot, Dilip Kumar was perplexed and he was standing in the crowd. However, PW-3 Dilip Kumar deposed that he was only in the company of Munna Lal at the time when he reached the spot. PW-2 Rajiv Sharma has not supported the case of prosecution at all. In his cross examination, he deposed that he did not know Navin. However, PW-3 Dilip Kumar deposed that he was only in the company of Munna Lal at the time when he reached the spot. PW-2 Rajiv Sharma has not supported the case of prosecution at all. In his cross examination, he deposed that he did not know Navin. He had not gone to the Mansa Devi with Navin on 30.04.2002. He did not know the name of the persons who had murdered Navin. He has not received any injury rather he told that he was not on the spot. He has denied the statement recorded by the SHO. In his cross examination he deposed that he has received the injuries in three wheeler accident. The motive attributed by the prosecution to the appellants is that Navin was booked in the criminal case for murder of Ramu (brother of Sonu). He was on bail. The enmity is a double edged weapon. The trial Court has rightly acquitted Ramkishore and Jagira after appraisal of the evidence. Neither Jagira nor Ram Kishore had absconded from their homes. Learned trial court has also taken into consideration the arrest of few appellants belatedly. 19. In AIR 1971 SC 1050 , in the case of “Matru @ Girish Chandra vs. State of U.P.", their Lordships of the Hon'ble Supreme Court have held that absconding by itself does not necessarily lead to a definite conclusion of guilty mind. Their Lordships have held as under :- “15. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime; such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the F.I.R. was lodged. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the F.I.R. was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence." 20. The same principle has been reiterated by their lordships of the Hon'ble Supreme Court in AIR 1972 SC 110 , in the case of “Rahman vs. The State of U.P." have held as under :- “21. It is true that the Appellant was concealing himself for nearly a month though he must have known that he was wanted by the Police and that he left his wife to face the situation alone. But absconding by itself is not conclusive either of guilt or of a guilty conscience. For, a person may abscond on account of fear of being involved in the offence or for any other allied reason." 21. In (2002) 6 SCC 518 , in the case of “Babu Ram and another vs. State of U.P. and others" their Lordships of the Hon'ble Supreme Court have held that the Court should be cautious in evaluating the worth of the testimony of related witness who was inimical from before to the accused. Their Lordships have held as under :- “5. The ocular evidence adduced on behalf of the prosecution proves beyond reasonable doubt the prosecution story including the role assigned to each of the accused persons excepting Dularey who has been acquitted by the High Court and there is no challenge laid to Dularey's acquittal before us. Shri Krishna, PW1 is the brother of the deceased. His testimony has been criticized by the learned senior counsel for the appellants on two counts mainly. Firstly, it is submitted that Shri Krishna is the brother of the deceased and therefore a witness ‘interested' in prosecution and at the same time there is a background of strained relationship available between the accused and the deceased. His testimony has been criticized by the learned senior counsel for the appellants on two counts mainly. Firstly, it is submitted that Shri Krishna is the brother of the deceased and therefore a witness ‘interested' in prosecution and at the same time there is a background of strained relationship available between the accused and the deceased. Secondly, it is submitted that according to Shri Krishna his brother Mangali, the deceased and he had taken the breakfast which consisted of Dal-Roti but according to post-mortem report the semi-digested food in the intestine of the deceased consisted of rice and that shows that Shri Krishna, PW1 was not with the deceased. We have noted this submission but we cannot go that far as the learned counsel for the appellants proposes us to carry inasmuch as we are of the opinion that none of the grounds can be enough for discarding over board the testimony of Shri Krishna. His being a relation of the deceased and having strained relationship with the accused persons since before the incident can persuade the Court of facts to be on its guard and be cautious while evaluating the worth of his testimony. So far as the other submission is concerned that has only to be rejected. The post-mortem report states the contents in the stomach of the deceased to be semi-digested food and pieces of rice. The post-mortem report does not say that the contents consisted exclusively of rice only. The doctor conducting the autopsy was asked any question in this regard by the defence. According to Shri Krishna, PW1 the breakfast consisted of Dal-Roti but he has not specifically denied any rice having been served as a part of the breakfast in the morning. It is common knowledge that in Central India rice in small quantity is generally cooked and served along with Dal-Roti and rice is not the principal meal or eaten exclusively. We could have appreciated and assigned some weight to the submission of the learned counsel for the appellant if the doctor conducting the autopsy would have been emphatic in saying that the stomach contents of the deceased were rice only while Shri Krishna, PW1 would have been specific in saying or admitting that the breakfast did not have any rice." 22. In (2004) 11 SCC 259 , in the case of “Ramsewak and others Vs. In (2004) 11 SCC 259 , in the case of “Ramsewak and others Vs. State of M.P." their Lordships of the Hon'ble Supreme Court have held that PW-1 hide himself behind a tree, though his father and his father's uncle intervened in the fight. Thus, the conduct of PW- 3 was unusual. Their Lordships have held as under :- “13. We, having heard the arguments of learned counsel for the parties and perused the records, are inclined to agree with the findings of the trial court rather than that of the High Court. Though the finding of the trial court that PW-1 should be treated as a chance witness, in our opinion, cannot be correct because it is quite often the normal practice in the village that when a member of the family takes the cattle for grazing, somebody else carries the lunch for that person therefore, it cannot be said with certainty that PW-1 was a chance witness. However, other circumstances make us agree with the trial court that this witness might not have seen the incident at all. It is to be noted that in the complaint it was stated that he went to Itayali to meet Moti Ram Kachhi, but he could not meet him hence he came back to Bhadera. Most likely finding it difficult to convince the court the reason why he went to Itayali and came back just in time to witness the incident, he improved his evidence when he stated before the court that he went to Itayali because the deceased had asked him to go there and call Moti Ram Kachhi which was not the case in the complaint. Be that as it may, the fact remains his going to Itayali which accounts for the purpose of timing is not established because said Moti Ram was never contacted nor this part of the evidence of PW-1 is corroborated from any other source. This is a vital piece of link evidence which is missing from the prosecution case and creates a doubt why PW-1 stayed back in the grazing field for nearly two hours after serving lunch to his uncle, Therefore, the trial court was justified in drawing an adverse inference in regard to the possible presence of PW-1 at the time of the incident. Then again we notice that tins witness when he saw the accused persons heading towards his uncle, allegedly got scared and hid behind a tree but he also says that he had seen his father and uncle in the neighbouring field but he did not make any attempt to join them, This is an unusual conduct because even according to PW-1, the accused persons did not attempt to threaten him or his father PW-2 and uncle PW-6 even though they intervened in the fight which makes the presence of PWs.1 and 2 doubtful. As noticed by the trial court, we also see that there are material contradictions between the evidence of these witnesses and the medical evidence which also adds to the bundle of suspicions as to the presence of this witness. 23. In (2010) 10 SCC 439 , in the case of “Paramjeet Singh and Pamma Vs. State of Uttarakhand" their Lordships of the Hon'ble Supreme Court have held that mere abscondence by accused after commission of crime and remaining untraceable for few days, by itself cannot establish his guilt. Their Lordships have held as under :- “31.In Matru @ Girish Chandra v. The State of U.P., this Court repelled the submissions made by the State that as after commission of the offence the accused had been absconding, therefore, the inference can be drawn that he was a guilty person, observing as under: “19. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self- preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence. 32. A similar view has been reiterated by this Court in Rahman v. State of U.P. AIR 1972 SC 110 ; State of M.P. v. Paltan Mallah and Ors. and Bipin Kumar Mondal v. State of West Bengal. 33. Abscondance by a person against whom FIR has been lodged, having an apprehension of being apprehended by the police, cannot be said to be unnatural. Thus, mere abscondance by the appellant after commission of the crime and remaining untraceable for a period of six days itself cannot establish his guilt. Absconding by itself is not conclusive proof of either of guilt or of a guilty conscience. 35. The offence as alleged, has been committed by the appellant, killing three persons and injuring three other persons who were members of his own family. The alleged motive had been annoyance because of the denial of his share in the immovable property by his father, Hardayal Singh. An earlier incident had occurred in the morning in the office of the Sub-Registrar at Kichcha and the offence was allegedly committed by the appellant on the same day in the evening at about 5.45 P.M. An FIR had been lodged promptly at 6.40 P.M. at Police Station: Rudrapur, which is located at 14 kms. away from the place of occurrence." 24. The trial court has placed strong reliance upon the statement of PW-3 Dilip Kumar but it does not inspire confidence. His conduct was unusual. The trial court has also relied upon the circumstances that the appellants had absconded from the spot and arrested after some time, merely on that basis, the appellants could not be convicted. 25. Accordingly, the Appeal No.70 0f 2010 and Appeal No.97 of 10 are allowed. Impugned judgment and order is quashed and set aside. His conduct was unusual. The trial court has also relied upon the circumstances that the appellants had absconded from the spot and arrested after some time, merely on that basis, the appellants could not be convicted. 25. Accordingly, the Appeal No.70 0f 2010 and Appeal No.97 of 10 are allowed. Impugned judgment and order is quashed and set aside. The Government Appeal preferred by the State bearing No.61 of 2010 is dismissed. Sonu, Jag Singh, Minder, Smt. Rekha are acquitted of the charges framed against them. Smt. Rekha and Minder are on bail. They need not surrender before the trial court. Registry is directed to prepare release warrants for Sonu and Jag Singh @ Jaggi. 26. Let a certified copy of this judgment with lower court record be sent to the learned trial court forthwith to proceed with the matter in accordance with law.