Arijit Pasayat, J. - (1.) Leave granted.
(2.) Challenge in this appeal is to the judgment of a Division Bench of the Andhra Pradesh High Court directing acquittal of the respondents 1 and 2. The appeal has been filed by the informant. The accused 1 and 2 were tried for offences punishable under Sections 364, 302, 404 and 201 read with Section 109 of the Indian Penal Code, 1860 (in short the IPC). There was another person described as A-3 who also faced trial along with them. The trial Court found that prosecution has been able to establish the guilt of A-l and A-2 beyond reasonable doubt while directing acquittal of A-3. The conviction and the sentences imposed by the trial Court were as follows : A-1 and A-2 are sentenced to rigorous imprisonment for ten years and to pay a fine of Rs.1,000/-, in default to rigorous imprisonment for a period of six months each for the offence under Section 364 read with Section 34, IPC. A-1 and A-2 are further sentenced to imprisonment for life and to pay a fine of Rs. 1,000/-, in default, to rigorous imprisonment for a period of six months each for the offence under Section 302 read with Section 34, IPC. A-1 and A-2 are further sentenced to rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/-, in default, to rigorous imprisonment for a period of six months each for the offence under section 404, IPC. A-1 and A-2 are further sentenced to rigorous imprisonment for a period of seven years and to pay a fine of Rs. 1,000/-, in default, to rigorous imprisonment for a period of six months each for the offence under Section 201, IPC. The sentences inflicted under the above offences shall run concurrently. Being aggrieved by the judgment of the trial Court, A-l and A-2 filed appeal before the High Court which as noted above was allowed and they were acquitted of the charges.
(3.) Prosecution version in a nutshell is as follows : A-1 is the son of A-3. A-2 is a friend of A-1. They are all residents of Nellore. PW-1 is the father (hereinafter referred to as the deceased, of Isanaka Pradeep Kumar Reddy. About 16 years prior to the incident, A-3 worked as car driver under P.W.I. During that time A-1 also studied along with the deceased in 10th Class and Intermediate in National School, Nellore. In the year 1996, P.W. 1 purchased one Ambassador Car bearing registration No. AP 7C 9499 from P.W.12, but it was not transferred in the name of P.W. 1. In the year 1997 P.W. 1 sold the said car to A-3 for Rs. 2 lakhs, and handed over the same to him. But he did not pay the amount. When P.W. 1 demanded the amount, A-3 informed that he would purchase one Maruti Car in his name by taking loan from Apple Credit Corporation and accordingly A-3 purchased Maruti Car bearing registration No. AP 26 D 5767 in May, 1997 and handed over the same to P.W. 1. The deceased was using the same. A-3 paid some instalments to the Finance Company and later stopped payment. When the Finance Company asked P.W.1 to pay the instalments, he paid two instalments. For non-payment of subsequent instalments, Finance Corporation employees seized the vehicle on 27-2-1999 when P.W.I was at Hyderabad. The deceased informed the same to P.W.1 on phone. On P.W.1 returning to Nellore, the deceased informed him that he asked A-1 with regard to amount of the car in the college but he did not pay any amount. On 9-3-1999 at about 11.15 a.m. while taking English class for the students, PW-3 found some disturbance in the class and found the deceased and A-1 talking to each other. After completing the class, the deceased approached P.W.3 and complained against A-1 that he was asking for money. Thereupon he asked the deceased as to whether he had to pay any amount to A-1, to which the deceased replied that no amount was due to A-1. Immediately P.W.3 slapped A-1. P.W.17, a student of the college witnessed the said incident. While so, on 10-3-1999 at about 11 a.m., P.W.4 who is a classmate of the deceased asked the deceased about the incident on 9-3-1999, and the deceased informed him about purchasing of car by P. W. 1 and non-payment of instalments by A-3. On the said date, A-1 and A-2 went to the shop of P.W.5 and purchased two kitchen knives, one of "Prestige" company for Rs.220/- and another "Crystal" for Rs.50/-. On 11-3-1999 the deceased went to the college at about 9 a.m. but did not return from the college till 1.30 p.m. On that day at about 9.30 a.m. the deceased had gone to the shop of P.W.2 and asked P.W.2 whether any Maruti car is available. Then PW-2 informed him that there are no Maruti cars available and he would inform him whenever cars are available. At about 10 A.M., P.W. 6 who is a Mechanic in Auto Nagar and also broker in buying and selling cars found the deceased at the shop of P.W.2. At about 12.30 p.m. the deceased went to P.W.6 along with A-1 and another person and asked for 1986 or 1987 model Maruti Car. Then the deceased asked A-1 to get a scooter. A-1 informed him that he would give a scooter which he was using and get another scooter from Amancherla. Then all the three persons left the place at about 1.30 or 2 p.m. At that time P.W.17 was also present. P.Ws.7 and 8 saw the deceased and A-1 and A-2 going on a scooter towards Podalakur side. At about 2 P.M., P.W.9, who was in search of his two missing buffaloes which were lost one month back, saw three persons getting down from the scooter at a place called "Guru Thippa" which is at a distance of two kilometers from Podalakur Road. P.W.9 asked them as to why they came there leaving the main road. One of them replied that they came for collecting some medicinal leaves. Then PW-9 left the place. One hour later while he vas searching for his buffaloes at a distance of ten baras from the place where he first saw the boys together, he saw only two boys were going on the scooter. He went to the top of Guru Thippa and found some smoke and got suspicion and returned to his village. As the deceased did not return from the college till 3 p.m., P.W.1 went in search of him. P.W.7, a tailor, informed him that he found three persons including the deceased going on a grey colour scooter towards Podalakur and the deceased was sitting in the middle of the scooter. On 12-3-1999, at about 12.15 p.m. P.W.1 went to IV Town Law and Order Police Station, Nellore and submitted a written report to P.W.23, who registered the same as in Cr.No.27/99 under "Boy Missing" and issued, FIR covered under Ex.P-43. He took up investigation and recorded the statements of PWs 2, 4 and 17 and examined P.W.7 on 15-3-1999. On 24-3-1999 at about 1-30 p.m., P.W.23, arrested A-1 and interrogated him in the presence of P.W. 11. Then A-1 lead to Ayyappa temple and pointed out A-2. P.W.23 arrested A-2 in the presence of P.W. 11. Thereafter A-1 and A-2 took P.W.23 and PW. 11 to Guru Thippa where they found remains of a skeleton scattered here and there, due to the eating away by some animals. He also found burnt shoes, burnt wrist watch, spectacles with gold frame and burnt banian covered under M.Os. 1 to 4. He collected all the bones. Meanwhile P.W.1 came to the scene and identified M.Os.1 and 2. P.W.23 prepared observation report covered under Ex.P-44 and held inquest over the skeleton remains in the presence of P.W.1 and Ex.P-45 is the inquest report. On receipt of observation report covered under Ex.P-44, P.W.22, Head Constable, altered the sections of law from "Boy Missing" to Sections 364, 302, 404, 201 r/w 109, IPC. P.W.24, Inspector of Police, who took up further investigation, on 23-5-1999 visited the scene of offence and prepared scene of offence panchnama covered under Ex.P-12. He arrested A-3 on 27-3-1999, and examined P.Ws.8 and 9 and recorded their statements on 28-3-1999. He also examined P.W.10 and P.W.5 and recorded their statements on 29.3.1999 and 30.3.1999 respectively. He interrogated A-1 and in pursuance of his confession, knives (M.Os. 7 and 8) were recovered from the house of A-3 apart from seizing Bajaj scooter from the house of A-1 and A-3. Pursuant to the confession of A-2, shirt (M.O.10) and gold chain (M.O.6) were recovered under Ex.P. 16 panchnama. PW-18 who is a Judicial First Class Magistrate, Nellore, conducted test identification parade on 22.5.1999 and deposed that PW-8 identified A-2 but could not identify A-1 and PW-9 identified A-1 and A-2. On receipt of the reports from the Forensic Medicine, S vs. Medical College, Tirupathi and Forensic Science Laboratory, Hyderabad and after completion of the investigation, PW-24 laid the charge-sheet for the offences as noted above. As accused persons abjured guilt trial was held. The trial Court found the evidence of PW-9 to be cogent and credible and applying the principles of last seen found A-1 and A-2 guilty. The High Court however by a practically cryptic order allowed the appeal. It observed that the main evidence was of recovery and therefore the chain of circumstances to establish the guilt of the accused was not complete.;