Jayhind Singh vs State Of U.P.
2015 Latest Caselaw 5598 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										Reserved
 

 

 
Case :- CAPITAL CASES No. - 2521 of 2014
 

 
Appellant :- Jayhind Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Dhirendra Pratap Singh,Dileep Kumar,Rajrshi Gupta
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Tripathi,J.

Hon'ble Arvind Kumar Mishra-I,J.

(Delivered by Hon'ble Arvind K. Tripathi, J.)

CAPITAL CASE No. - 2521 of 2014 with reference No.7/14.

1. Mr. Dilip Kumar Gupta appeared on behalf of appellant, Mr. Akhilesh Singh, Government Advocate and Chandrajeet Yadav, learned AGA, appeared on behalf of the State of U.P.

2. The present capital appeal has been filed being aggrieved against the judgment and order of conviction and sentence dated 13.6.2014 passed by Additional Sessions Judge, Court No.1, Gorakhpur, in S.T. No.450/01 arising out of case crime no.697/97, P.S. Pipiganj, District Gorakhpur by which appellant Jayhind was held guilty, who has been convicted and sentenced under section 302/34 IPC for death punishment with fine for a sum of Rs.50,000/-. Since the trial court awarded capital punishment hence reference has been sent to this Court for confirmation of the sentence.

3. The brief facts of the case is that first information report was lodged by Smt. Jai Kumari wife of Shyam Sunder Singh daughter of deceased Smt. Pavitra Devi against Jayhind, son of deceased (step brother of the informant) and Chandradev @ Bhola Yadav son of Mahesh Yadav. The FIR was got written by Shyam Sunder Singh S/o Sri Baijnath Singh, residence of Jangal Jhajhava Vela, Mangalpur, P.S. Pipiganj, District Gorakhpur. As per FIR version informant Jai Kumari wife of Shyam Sunder Singh was resident of village Mangalpur, P.S. Pipiganj, Gorakhpur. She along-with her mother Smt. Pavitra Devi wife of late Munni Lal Singh, younger sister Saroj and father-in-law Baijnath Singh was coming to Pipiganj Bazar from his maternal house situated at village Koluva. While she was coming along-with them, at about 9 O' Clock in the morning, when they reached at Nali (drainage) for irrigating of field, from tubewell, in between the agricultural field of Ram Samujh and Parvati, his step brother Jayhind Singh along-with his companion Chandradev @ Bhola Yadav S/o Mahesh Yadav, Village Bhitaha, P.S. Sahajnava came out from sugarcane field and both pushed us and shot fire with countrymade pistol at her mother. When they tried to caught hold then Chandradev @ Bhola Yadav by firing with countrymade pistol in the air stopped us to proceed forward and Jayhind threatened us stating that she will give the property to her sister after death. Due to that incident the terror was created in the village and villagers present in their house and working in their agricultural fields due to terror and threat they started running. The dead body of his mother was lying on the spot. She came at police station to give information for necessary action. Regarding motive it was stated in the first information report that his step brother committed offence because some altercation took place with regard to the expenses of the marriage of younger sister Saroj. The FIR was lodged on the same day i.e. 26.12.1997 at 2.15 P.M. Chick report was prepared, fist information report was registered at case crime no.679/97, under section 302 IPC, thereafter, Station Officer with police force proceeded for the place of incident. The distance from the place of incident and police station was about two km. towards west. Blood stained and plain earth was recovered from the place of incident where dead body was lying i.e. Ext. Ka-11. FIR and chick report was proved and exhibited as Ext. Ka-1. Panchayatnama was prepared and dead body was sent for postmortem.

4. The postmortem was conducted on 27.12.1997 at 3.30 P.M. The dead body was brought to mortuary by constable Bhola Nath Pandey and Constable Dhruv Kumar. According to Dr. Jitendra Pal, who conducted postmortem examination there were as many as 10 injuries found on body of Smt. Pavitra Devi. 5 incised wound, Multiple abrasion, one lacerated wound, 3 multiple superficial fire-arm. Cause of death was noted due to Haemorrhage and shock as a result of ante mortem injuries. The death was noted to be about one day old. Pleura was found lacerated, left lungs jaw found lacerated under line mandible was found fracture and there was incised wound of 10 cm. x 2 cm. bone deep on left size lower jaw under line mandible, multiple abrasion 10 x 4 cm on left side chest upper part, incised wound 3 cm x 2 cm x bone deep on left side middle of neck middle under lying muscle, vessels and nerves trachea and aesophagu cut, incised wound 3 cm x 1 cm x muscle deep on back of right bone arm, incised wound 3 cm x 1 cm x bone deep on the front of right forearm middle, lacerated wound 2 cm x 2 cm x bone deep on left side face 2 cm below left eye, multiple superficial fire-arm wound 10 cm x 10 cm on right side face noze and lower jaw, multiple superficial firearm wound 10 cm x 8 cm on back of left shoulder and arm, multiple fire-arm wound 12 x 10 cm on back of right palm.

5. According to opinion of the doctor injury no.1 to 6 except injury no.2 were caused by sharp edge weapon, which can be caused by knife also and injury nos.8, 9, 10 were caused by fire-arm.

6. Statement of witnesses were recorded. The blood stained and plain earth and clothes of the deceased were sent to the Scientific Laboratory, U.P. After completing the formalities charge-sheet was submitted by the Investigating Officer.

7. The charge was framed on 18.12.2001 under section 302 read with section 34 IPC against appellant Jayhind and Chandradev @ Bhola Yadav subsequently trial of Chandradev @ Bhola Yadav was separated. The appellants denied the charges and pleaded to be tried. To prove its case prosecution examined 7 witnesses, four witnesses of fact and other formal witnesses.

8. Informant Jai Kumari daughter of the deceased was examined as P.W. 1, Baijnath, father-in-law of informant was examined as P.W. 2, Shyam Sunder Singh husband of the informant and scribe of the first information report was examined as P.W. 3, Smt. Saroj real younger sister of the informant (step sister of appellant) was examined as P.W. 7 (alleged to be eye witness), who did not support the prosecution version, Ram Sulabh Mishra, Head Constable, who prepared the chick report and registered the FIR was examined as P.W. 4 to prove the chick report and G.D. Entry, Dr. Jitendra Pal, who conducted postmortem examination of deceased Smt. Pavitra Devi was examined as P.W. 5, Station Officer/Investigating Officer, R.P. Singh was examined as P.W. 6 to prove panchayatnama, site plan the charge-sheet.

9. The appellant Jayhind Singh is the sole appellant. Learned counsel for the appellant challenged the impugned judgment and order of conviction on the ground

That first information report, which was placed before the Court is not report written on behalf of the informant by her husband (scribe) Shyam Sunder Singh.

That there is a contradiction in the first information report and in the postmortem report hence subsequently there was a material improvement in the statement of witnesses.

That there was no whisper regarding assault by knife causing knife injuries in the first information report and after postmortem the assault by knife was introduced.

That P.W. 7 Smt. Saroj, who is real sister of the informant did not support the prosecution case.

That there was no motive to commit murder of Smt. Pavitra Devi, who is real mother of the appellant.

That it appears that either the offence was committed by informant or by her husband or some unknown persons and being step brother, due to dispute with regard to the property, appellant was falsely implicated.

10. Learned counsel for the appellant submitted that Smt. Pavitra (deceased) remarried with Munni Lal after death of Kanhaiya Lal. From her previous husband Kanhaiya Lal there was one son namely Jayhind Singh (appellant) and from the wedlock of Munni Lal and deceased there were two daughters, informant Smt. Jay Kumari and Smt. Saroj P.W. 7. Deceased Smt. Pavitra Devi had no son from the wedlock of Munni Lal hence there was only one son appellant Jayhind, from previous husband Kanhaiya Lal. The brother of Munni Lal gave his property to appellant with consent of Munni Lal and Munni Lal also gave his property on request of deceased Smt. Pavitra Devi to appellant due to which informant Jaykumari her husband Shyam Sunder Singh (scribe) P.W. 3 and her father-in-law Baijnath, P.W. 2 were annoyed. The suit was also filed regarding the property. The part of the land was sold by deceased Smt. Pavitra Devi to arrange money for marriage of her daughter Smt. Saroj and with regard to remaining land Will-deed was executed in favour of informant Smt. Jaykumari so there was no motive for committing the murder of his own mother, who has not done anything against the interest of the appellant rather the property of uncle of informant and her father Munni Lal was transferred in favour of the appellant. Hence even if there was any motive for committing the offence that was against the informant. Either offence was committed by the informant and witnesses or some other person while committing robbery assaulted her, who died on the spot and no one has witnessed the incident.

11. Learned counsel for the appellant further submitted that the incident took place at about 9.00 A.M. on 26.12.1997 then there was no reason to wait upto 2.00 P.M. for Shyam Sunder, the husband of informant, if her father-in-law, Baijnath and her younger sister Smt. Saroj were accompanying her. Hence with ulterior motive appellant was named in the first information report along-with Chandra Dev @ Bhola Yadav. Subsequently in the statement, it was informed by informant and scribe that FIR, which was written was not registered rather the same was torn by the Station Officer and on his dictation FIR was got registered and it was also mentioned in the statement of informant that co-accused Chandra Dev @ Bhola Yadav was not involved in the incident as she could not identify the second assailant, who has covered his face and only on the dictation of S.H.O. when he threatened, name of Chandra Deo was mentioned in the first information report though he was not involved in the incident. However, there is a major contradiction because in the first information report there was no whisper that Chandradev @ Bhola Yadav or any unknown person assaulted deceased with knife. Subsequently in the statement it was mentioned that appellant shot fire with countrymade pistol at her mother, hence she fell down, thereafter, person, who had covered his face, assaulted with knife. The appellant shot three fire. Further she was pushed by both the appellants, she fell down and received injury but no injury report was placed before the trial court in support of her statement. Hence if this statement is accepted the original first information report is not on record, further it has not been stated that in the earlier first information report the fact regarding assault with knife was mentioned. According to her statement, she remained at the police station after lodging of the first information report when Station House Officer proceeded for the inspection, hence no blood stained earth was recovered in her presence. In cross examination she stated that she had dictated to write the first information report regarding assault with knife but she could not give any reason why this was not written in the first information report. She stated that her injury (Chot) was seen at police station by the police, however, she was not got medically examined and only she has taken medicine from the doctor. She reached at police station at about 10.00-11.00 A.M. and she was asked to sit there till evening and thereafter before sunset she left for village Mangalpur while she was at police station the dead body was brought at police station. Considering the contradiction in the statement and first information report, it is clear that she did not see the incident. She has also admitted that the dispute was going on in between P.W. 1 and appellant Jayhind Singh as forcibly he was cultivating the land. According to P.W. 2 Baijnath, father-in-law of the informant, 28 decimal land was sold to one Deepchandra by deceased Smt. Pavitra Devi as she has taken loan to bear the expenses of marriage of her daughter Saroj, however, appellant was not allowing Deepchandra to take possession over the land. According to P.W. 2 also report, which was written by his son Shyam Sunder Singh was taken by the Station Officer and he got, the second report, written by Shyam Sunder. According to P.W. 2 and 1, second assailant, who could not be identified cut the neck by knife and there was no knife in hand of appellant Jayhind. According to Shyam Sunder, P.W. 3, he also after getting information reached at the police station. The written report, which was given at the police station was torn by Station Officer and thereafter, he threatened to detain him and on his dictation the other report was written. On request made on behalf of prosecution he was declared hostile. According to him he did not make any complaint that the report written by him was torn by the Station Officer. Since there was threat from the side of Station Officer hence he did not make complaint. He stated that it was incorrect that report was written by him and the same was lodged and registered. The report was written on dictation of the Station Officer. He also contended that as far as P.W. 7, who is also real sister of informant and real daughter of the deceased did not support the prosecution case and stated that she was not accompanying her mother and sister. She had not seen, who assaulted her mother deceased Smt. Pavitra Devi. Learned counsel for the appellant further submitted that initially there was no allegation regarding assault by knife and subsequently it was introduced. There is no proper explanation why father-in-law of informant, who was accompanying did not immediately went to the police station to lodge the first information report. Hence in view of the facts and circumstances, it is clear that prosecution story is doubtful. There is no material to prove the case regarding involvement of the appellant, however, appellant was not only convicted but has been awarded maximum punishment that is death punishment. Hence impugned judgment of conviction and sentence is liable to be set aside and the reference is liable to be refused.

12. Learned Government Advocate vehemently opposed the prayer and submitted that according to witness the report written by scribe on dictation was torned and subsequently they were compelled to mention the name of Chandra Dev @ Bhola Yadav though according to witnesses he was not involved in the incident hence due to this reason the prosecution story cannot be doubted. According to witness they have informed regarding assault with knife by unknown person, who has concealed his face but there is a specific allegation against appellant Jayhind Singh that he shot three fires. There are injuries and even if cause of death be the injury caused by knife then rightly he was held guilty under section 302 read with section 34 IPC. There is no major contradiction in the statement of witnesses and whatever minor contradictions are there, those are natural. There was no delay in lodging the first information report as the incident took place at about 9.00 A.M. The information was sent to the husband of the informant and when he reached there then first information report was written and lodged at 2.30 P.M. Hence merely on the ground that the first information report was not immediately lodged in the present case the prosecution story is not liable to be disbelieved. There was motive against the appellant for committing murder due to dispute with regard to the agricultural land. The litigation was going on in between the parties and forcefully he had taken possession over the part of the land, which was transferred by the deceased to one Deep Chandra. Subsequently under influence of the appellant, who is brother of P.W. 7, she became hostile and did not support the prosecution version. Further there was strained relation with her sister informant and her husband, hence even though she has became hostile, but the two witnesses P.W. 1 and 2 have fully supported the prosecution case and as such trial court has rightly held the appellant guilty under section 302 read with section 34 IPC. There is a corroboration of the statement of witnesses regarding the manner of assault by the post-mortem report. Learned Government Advocate further submitted that there are ten injuries noted on person of deceased Smt. Pavitra Devi, who was real mother of the appellant. He also submitted that conduct of the appellant was doubtful being son why first information report was not lodged by him because the incident took place at 9.00 A.M. and at 2.30 P.M. the report was lodged. There was no report and complaint from his side, which is unnatural conduct. Further it appears that P.W. 7 was winovered by him hence she became hostile. It is a brutal murder of own mother, which is really shocking and evil in the society and it is covered in the category of rarest of rare case in which maximum sentence of death be awarded hence trial court has rightly awarded death punishment and as such appeal is liable to be dismissed and reference is liable to be accepted by confirming the death punishment awarded by the trial court.

13. We considered the submission of learned counsel for the parties and perused the record.

14. From perusal of prosecution case itself, it is clear that the report, which has been registered and exhibited and relied on by the prosecution, was not the report dictated by first informant Smt. Jaykumari P.W.1 rather it was written on dictation of the S.O. However, when contents of the first information report was readover it was not stated that matter regarding assault by knife was dictated but was not written. Initially this fact was mentioned that name of second assailant, who has covered his face was not mentioned in the original report but on direction and threat of the Station Officer name of Chandra Dev @ Bhola Yadav was written. The incident took place at about 9.00 A.M. on 26.12.1997 and if prosecution story is correct then the deceased Smt. Pavitra Devi was accompanied by informant Smt. Jaykumari, Baijnath father-in-law of the informant and Smt. Saroj younger daughter of deceased. It is admitted case that deceased Smt. Pavitra Devi was married with late Kanhaiya Singh and from their wedlock she gave birth to appellant Jaihind Singh so appellant is only issue from their wedlock, who was implicated in the present case. After death of Kanhaiya Singh deceased Smt. Pavitra Devi married with one Munni Lal brother of Mahipat. However, according to prosecution case itself Mahipat was issuless hence Munni lal get his property and according to P.W. 7 with consent and advise of deceased Smt. Pavitra Devi, who is mother of appellant and informant and P.W. 7, there father Munni Lal get the property of Mahipat transferred in favour of appellant Jayhind Singh. According to P.W. 2, Baijnath, 28 decimal land belonging to deceased Smt. Pavitra Devi was transferred to one Deepchandra as she has taken loan for marriage of P.W. 7 Saroj regarding that there was a dispute and for remaining land, the Will-deed was written in favour of informant Smt. Jaykumari. Hence if Smt. Pavitra Devi was killed appellant would not be benefited because Will-deed was already in favour of Smt. Jaykumari. However, if in future Will deed was changed then she would have been affected party. Munnilal was real father of informant Jay Kumari and P.W. 7 Saroj. Mahipat was real uncle but the property belonging to the Mahipat was transferred in favour of appellant hence if any one would be aggrieved those would be husband and father-in-law of the informant, who have been examined as P.W. 3 and P.W. 2 respectively. So there is no motive for committing murder by appellant of his own real mother. Further according to prosecution case, Smt. Saroj, P.W. 7, was also accompanying deceased and informant but according to her she was not present there rather she remained in the house along-with her sister-in-law (Bhabhi). She had not made any allegation regarding the dispute or any altercation in between appellant and mother Smt. Pavitra Devi (deceased). After death of her mother subsequently there was strained relation with informant and her husband, who was real sister and brother-in-law but she had good relation with appellant, who is step brother. Hence there is no reasonable apprehension that under influence of appellant she became hostile rather it appears that she was telling truth. There are material contradiction in the statements and first information report.

15. From perusal of the prosecution case, it is clear that there was no material brought before the trial court or before this Court whether appellant was present in the village or when he came to know regarding the unfortunate incident in which her mother was killed and the witnesses, who are claiming to be eye witness did not take step for informing the police at earliest as the first information report was lodged after five hours. As far as P.W. 7 is concerned, she is real sister of the informant and step sister of the appellant hence this also appears to be unnatural that she was winovered by the appellant. Apart from that there is no material before the court on which basis it can be said that she was winovered by him. According to informant she was accompanying the deceased but she did not support the prosecution case. It appears that she was not present on the spot and further she has not stated anything against the appellant on which create doubt against the appellant, regarding his conduct and involvement in the offence.

16. However, as far as the motive part is concerned, it is well settled that motive is relevant specially in the case of circumstantial evidence and if there are eye witness and they are trustworthy and reliable then without motive accused can be held guilty hence it has to be examined whether witnesses are reliable and trustworthy and the prosecution, who is required to prove the case beyond reasonable doubt succeeded to prove the case or not.

17. In view of above noted fact it is clear that deceased is real mother of the informant and real mother of the appellant but informant is step sister of the appellant and P.W. 7 Smt. Saroj is real sister of informant, who has not supported the version of informant. As far as the delay in lodging the FIR is concerned, it is also well settled that merely the delay in lodging the first information report will not be fatal and it depends on the facts and circumstances of each case as the each persons reacts differently in different situation in view of the judgment of the Apex Court in case of Ram Das Vs. State of Maharastra 2007 (2) SCC 170, Sanker Lal Vs. State of Rajasthan 2004 (10) SCC 632 and Lalit Kumar Vs. State of U.P. 2014(2) SCC (1) and other judgments of the Apex Court of this Court.

18. In the present case, there are no independent witness and all the witnesses are interested witness. P.W. 2 is father-in-law of the informant (P.W.1). P.W. 3 is scribe and husband of the informant but merely on the ground that the eye witnesses are highly interested, their testimony would not be disbelieved however, it would not be safe to convict on the basis of highly interested witness unless the statement is found reliable, trustworthy after considering the same carefully and cautiously. Hence when there is a direct evidence available then aspect of motive does not have important role and the evidence of interested witnesses are required to be considered and examined cautiously and if court is satisfied that witnesses are reliable and trustworthy then on that basis accused can be held guilty.

19. P.W. 1 Smt. Jaykumari is first informant and real daughter of deceased Smt. Pavitra Devi. According to first information report and her statement, she was also accompanying the deceased, by her father-in-law-P.W. 2, and Smt. Saroj her younger sister when incident took place. So according to her statement there are three eye witnesses, who are accompanying the deceased. Further according to her statement they raised alarm, the villagers and labourers were working in their fields but no independent witnesses have been examined in the present case. The delay has not properly been explained because the incident took place at 9.00 A.M. The informant was accompanied her father-in-law Baijnath, P.W.2, and her sister P.W. 7 hence there is no reason or occasion to wait for her husband to come for lodging of the first information report, which was lodged and registered at 2.15 P.M. after five hours though the distance of police station from the place of incident is 2 km. towards west. Hence defence version that either any one has not seen the incident or informant and P.W. 2, 3 themselves were involved in the offence cannot be ruled out but since there is no evidence regarding their involvement and as such they cannot be held guilty. Hence at least it is clear that there was sufficient time for deliberation and to decided, who have to be implicated in the case.

20. Two persons were named in the first information report, appellant Jayhind Singh and other assailant Chandradev @ Bhola Yadav. Subsequently, it was stated that first information report, which was got written by Shyam Sunder Singh, husband of the informant, was torn by the Station Oficer and on his dictation, first information report, which was placed before the court was got registered. The incident is dated 26.12.2007. Neither there was any complaint to the higher authorities nor any application was moved before the Magistrate till, before or after framing of the charges that on dictation of Station Officer, Chandra Dev @ Bhola Yadav was named in the FIR though the witnesses could not identify the second assailant as he has covered his face. So after 10 years new story was carved out. Even there was no complaint that in the original report assault by knife was mentioned and the report dictated by the Station Officer assault by knife was not mentioned. According to P.W. 3 he was graduate hence even if the second report was got written on dictation of the Station Officer under threat and anything was against the prosecution case and against first report then the complaint should have been made to the higher authorities or at least to the court before or even after framing of the charges. It is unreasonable and unnatural that they would keep mum for about 10 years hence this situation also creates doubts whether they were present at the place of incident or at least whether they are telling correct fact or not. Further even if they are correct that due to threat of the Station Officer second report was written and no complaint was made then their statement has also to be examined whether witnesses are intact or there is no material contradiction.

21. According to the first information report the second assailant Chandradev @ Bhola Yadav was named, however, in the statement it was mentioned that Chandradev @ Bhola Yadav was not involved rather he was named on dictation of Station Officer.

22. P.W. 1 and 2 could not identify the assailants as the second assailants has covered his face. Further when Jayhind shot at deceased she fell down and when she fell down the other assailants, who had covered his face, who was having knife assaulted with knife and on the spot she died. According to first information report informant appellant Jayhind shot 2-3 fire at deceased and the assailants cut her neck, she fell down, who also received injuries though there is no medical report. Subsequently in the cross examination she stated that after the incident she came to know that her mother died due to injury caused on neck by knife and se did not saw cutting neck of her mother as she fell down in the canal hence she did not saw assailants while assailing with knife. Further she stated in the cross examination that "eSa viuh vEek dks xksyh yxrs ugha ns[kh Fkh] xksyh yxus ds ckn xksyh dh pksV eSa muds 'kjhj ij ns[kh FkhA tc eSa ns[kh rks ml le; esjh ekWa ej pqdh FkhA eSa viuh vEek ds ejus ds 10-15 feuV ckn tc eqyfteku Hkkx x;s rks muds ikl tkdj muds pksVks dks ns[khA". Hence it appears that they neither saw as to who shot fire causing fire-arm injury nor did she see as to who caused injury by knife though this new fact was introduced regarding causing injury as the same was not mentioned in the first information report and even there was no whisper that in the original report, which was written on her dictation the assault by knife was mentioned. Any evidence has not been placed before the court to show, whatever the correct contents, which were written in the original report. Subsequently in the cross examination P.W. 1 stated that when she fell down she saw that one assailant shot fire and the second was not firing. The assailant, who had closed his mouth with black cloth was toward dead body and the second assailant had closed his face with white cloth. Who had closed his face with black cloth, he was having knife and who has closed his face with white cloth, he was having katta. This statement of P.W. 1 in cross examination shows that even if she was accompanying her mother some unknown assailants attacked for doing robbery or to kill her but when after five hours, the delayed first information report was lodged then after deliberation name of the appellant, who is step brother of the informant, was mentioned in the FIR. She has also admitted in the cross examination that the dispute was pending regarding the land of the appellant. P.W. 2 Baijnath, father-in-law of informant also claiming to be eye witness, who was accompanying deceased. According to him Jayhind has not covered his face. Jayhind came from sugarcane field and shot fire at Smt. Pavitra Devi. He shot three fires one fire was missed, second fire caused injury in right hand and one caused injury at neck. When Smt. Pavitra Devi fell down appellant slit her neck with knife and the other appellants pushed his daughter-in-law and her sister hence both fell down. Being heart patient he also fell down in fear. Thereafter, showing the countrymade pistol they fled away from the spot by motorcycle. Thereafter, in cross examination he stated that after committing offence both the appellants went on foot in the sugarcane field. He saw that second assailant was cutting neck of deceased with knife and appellant was not having knife, but there is no explanation regarding repeated assault by knife. Hence there is major contradiction regarding manner of assault and who assaulted with knife.

23. According to P.W. 3 Ext. Ka 1 was written on dictation of the Station Officer and on direction of the Sub Inspector P.W. 1 Jay Kumari signed on that report and earlier report, which was written by him was torn by the Sub Inspector.

24. According to P.W. 4, Ram Sulabh Misra, Sub Inspector, who was head moharrir on the date of incident i.e. 26.12.1997 he prepared chick report and registered the FIR. According to him the scribe did not come at police station though according to P.W. 3 scribe also went to police station along-with informant and others. The first information report on which basis the Investigation was started and proceeding was initiated, itself is the incorrect report and the same was not original report, which was written on dictation of the first informant. Further there is a major and material contradiction in the first information report and the statement of witnesses. It is also clear that first information report is not corroborated by the injuries noted on the postmortem report. Hence subsequently there was major improvement in the prosecution story. Though it was a brutal murder of a lady Smt. Pavitra Devi, mother of the appellant and mother of informant but since the story of the prosecution appears to be doubtful and since prosecution failed to prove the case beyond reasonable doubt and as such it cannot be held that the appellant is guilty of committing murder of his own mother Smt. Pavitra Devi. Hence he is entitled for benefit of doubt. In view of the above noted discussion it is clear that the prosecution failed to prove the case beyond reasonable doubt hence there is no question of conviction or awarding any sentence and as such reference for confirmation of the capital punishment is hereby rejected.

25. In view of the aforesaid facts impugned judgment and order of conviction dated 13.6.2014 passed by Additional Sessions Judge, Court No.1, Gorakhpur in S.T. No.450/01 arising out of case crime no.697/97, P.S. Pipiganj, District Gorakhpur is hereby set aside.

26. Accordingly, present appeal is hereby allowed. Since appeal has been allowed the appellant shall be released forthwith in the present case, if he is not wanted in any other case, after compliance of the provision of section 437-A Cr.P.C.

27. Office to communicate this order to the concerned court and Superintendent of Jail.

Order Date :- 21.12.2015

Pramod