- (1.) THE sole appellant Ved Prakash has challenged his conviction under section 364 I.P.C. with implanted sentence of four years R.I. recorded by Second Additional Session's Judge, Agra by impugned judgement and order dated 19.1.1979 passed in S.T. No.191 of 1978, State Vs. Ved Prakash, under sections 364, 302 I.P.C., P.S. Firozabad North, District Agra. By the impugned judgement trial judge had disbelieved prosecution allegation of murder under section 302 I.P.C. and has acquitted the appellant for the said charge but it had concluded that the prosecution had established appellant's guilt under section 364 I.P.C. beyond all reasonable doubt and, therefore, has convicted and sentenced him as above.
(2.) CHARGE against the appellant, in nutshell, were that he being a resident of the same locality and having his house a cross the road had abducted Raju alias Vimal, a young boy aged about five and half years son of informant Om Prakash, on the pretext of showing him pigeons. According to the disclosure made by Smt. Shailendri wife of Om Prakash P.W.1, Raju alias Vimal was taken away by the appellant at 2.45 or 3.00 P.M. Sushil P.W.9 and Rajendra P.W.10 had witnessed the missing child in the accompany of the appellant. Informant first traced out the child by all possible means including seeking information on loudspeaker but the child remained untraceable. At about 9.00 A.M on 23.2.1976, Om Prakash P.W.1 lodged F.I.R. regarding missing of his son at police station Firozabad North as Ext. Ka. 1. On the next day at about 8.00 or 8.30 P.M., S.I. Roshan Singh P.W.11 informed the informant Om Prkash that the corpse of his son has been recovered from the house of one Saleem son of Naim near a mosque in Mohalla Hajipura. From the clothes, material Exts. 1 and 2, found on the body that P.W.1 identified it that it was of his son. S.I. Anang Pal Singh P.W.4 had performed inquest on the dead body of the young boy which was discovered lying in a corner of the room. The seizure memo about cloths of the deceased is Ext. Ka.2 and the inquest memo is Ext. Ka.3. Other relevant papers prepared simultaneously along with inquest report were proved as Exts. Ka.4 to 6. Shiv Kumar constable had registered the case by preparing chik F.I.R. Ext. Ka.10 and G.D. entry Ext. Ka.11. S.I. Roashan Singh P.W.11 had conducted the investigation into the offence. During trial he had also proved extracts of statements of Sushil P.W.9 and Rajendra P.W.10 as Exts. Ka.12 and Ka.13, who both had turned hostile during trial and had not supported the prosecution case. Two site plans, one of the place from where Vimal alias Raju was abducted and other from where his dead body was recovered were prepared as Ext. Ka.14 and Ka.15. On 11.3.1975 appellant was arrested, who had taken the investigating officer and other police personnel to the house of Saleem to point out that the missing boy was confined there. Recovery memo regarding recovery of corpse was proved as Ext. Ka.8. S.I. Roashan Singh had concluded the investigation by laying down a charge sheet against the accused appellant vide Ext. Ka.16. Dr. R.P. Sharma had conducted post mortem examination on the deadbody of the deceased on 25.2.1975. According to his testimony, death had occurred about one or two days prior, there was no visible mark of injury on the dead body but it's internal examination disclosed that memberances of the scalp, brain, base, pleura, both lungs, traches, pancreas, spleen and kidney were congested. There was froth in the mouth and in both the nostrils. There was semi-digested food in the stomach. Small intestines were empty and large intestines contained faecal matter. Both the chambers of heart were full of blood. In the opinion of the doctor death was due to asphyxia. Viscera was also preserved. The post mortem examination report of the deceased was proved as Ext. Ka.9. After submission of charge sheet appellant was summoned and his case was committed to session's court where it was registered as S.T. No.191 of 1978, State Vs. Ved Prakash. Appellant was charged with offences under sections 364 and 302/34 I.P.C. on 28.9.1978 by IInd Additional Session's Judge, Agra. To establish appellant's guilt, prosecution tendered oral evidences of 11 witnesses, out of whom P.W. 1 Om Prakash and Smt. Shailendri P.W.2, (parents of the deceased boy) alongwith Km. Chandra Kanta P.W.3 were fact witnesses. Formal witnesses included S.I. Anangpal, P.W. 4. who had prepared inquest report of the deceased, constable Chandra Bhan Singh P.W.5, who had taken the deadbody for post mortem examination, Jahan Singh P.W.6 witness of search of house of appellant, Nasiruddin P.W.7 witness of the recovery of corpse of a Hindu boy and Dr. R.A. Sharma P.W.8, autopsy doctor. Besides these other witnesses were Sushil P.W. 9 and Rajendra P.W. 10 (both witnesses of last seen of the deceased alongwith the appellant turned hostile) and P.W.11 Roash Singh is the investigating officer.
(3.) IN his statement under section 313 Cr.P.C. appellant denied all the prosecution evidences and pleaded his false implication because of verbal altercation with P.W.2 Smt. Shailendri. He had pleaded that he had gone to give food to his father and since noon there were rumours that the deceased had ran away with a utensil (bowl)and was not traceable and he has been falsely implicated. At this juncture I put a note with serious concern that perusal of the original record of the trial court in respect of recording of statement under section 313 Cr.P.C. indicates that the same was recorded by the trial judge in a most careless manner without any application of mind. Neither age nor address nor vocation of the appellant is mentioned in the columns for recording of these entries although columns were penned down in handwriting. It seems that the trial judge has not cared to perform his duty as was except of him and was utterly careless in recording statement under section 313 Cr.P.C. This I have mentioned also for the reason that while sentencing the appellant trial judge himself has observed that the appellant was 15 or 16 years of age at the time of commission of offence. From where the trial judge deciphered such an age is not perceptible because, as stated above neither any age, address or vocation was noted while recording statement under section 313 Cr.P.C.;