V.N. Mehrotra, J. - (1.) -These two appeals arise out of the judgment dated 3.6.1980 by Sri Usha Kant Varma, V Additional Sessions Judge, Kanpur by which the appellant - Abdul Salam has been convicted under Sections 302, 394 and 201 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life and R.I. for seven years respectively for these offences. All the sentences awarded have been ordered to run concurrently. However, by the same judgment accused Smt. Zubaida Khatoon, Javed and Parvez have been acquitted of all the offences charged. While the State has filed Govt. Appeal No. 2002 of 1980 against the acquittal of these persons, Abdul Salam has filed Criminal Appeal No. 1242 of 1980 against his conviction. Therefore, these appeals have been heard together and shall be decided by this judgment.
(2.) The prosecution case, in brief, is that deceased Shyam Sunder Balecha was a resident of Fethfulganj, P.S. Cann. Kanpur; informant Jai Prakash Balecha is his brother; accused Abdul Salam was a resident of House No. 105/57 Chamanganj, Kanpur; Smt. Zubaida Khatoon is the wife of Abdul Salam; accused Javed and Parvez are his sons and are residing with Abdul Salam in the same house. It is alleged that on 11.5.1976, at about 8.00 p.m. deceased Shyam Sunder Balecha went to the house of Abdul Salam along with Sukhbit Singh (P.W. 10), as he has to go to Delhi with the accused for bringing a film from that place. It is alleged that Shyam Sunder Balecha had taken Rs. 4.500/- with him. On enquiry by Abdul Salam, the deceased had told him that he had brought the necessary money for the purpose. Sukhbir Singh left Shyam Sunder Balecha at the house of Abdul Salam and went away from that place. It is said that when the deceased did not return to his house, the informant Jai Prakash Balecha made an enquiry from Sukhbir Singh who told him that the deceased was left by him at the house of Abdul Salam. The informant then went to the house of Abdul Salam where he met accused Javed who informed him that Abdul Salam could be met in the office of the Ajanta Chit. Fund. The informant then went to that place and enquired about the whereabouts of the deceased from Abdul Salam. Abdul Salam rudely told him that he, had no information about the deceased. The informant again went to the house of Abdul Salam on 18.5.1976 but found it locked. He enquired about the whereabouts of the accused and'' came to know that only a day before, he had gone some where from the house along with his family. When the informant could not succeed in finding out Abdul Salam or the deceased, he lodged FIR at Police Station Sheeshamau, Kanpur at 7.30 P.M. on 18.5.1976.
(3.) Sub-Inspector S.N. Mishra (P.W. 11) was entrusted with the job of searching of the deceased. He recorded the statement of informant and proceeded to the house of Abdul Salam. He came to know that accused had gone to Ahmedabad. The house was searched in the presence of Amina Khatoon, who is the mother of Abdul Salam. Memo Ext. Ka-7 was prepared in respect of the same. The search for the deceased continued on 19.5.1976. Necessary information was sent to the SSPs of various places of U.P., Ahmedabad and Bombay. Pamphlets were also got distributed offering reward to any one who gave clue about the deceased. The Investigating Officer recorded the statements of Sukhbir Singh and Jai Prakash Balecha again on 21.5.1976. The case initially was registered under Section 364 IPC. The statements of Anisur Rehman and Wafatan were recorded on 22.5.1976. As informant had some doubt that his brother might have been buried in the inner court-yard of the house of Abdul Salam near the hand-pipe as the court-yard .had been recently cemented, the Investigating Officer got it dug upto the depth of-eight feet. However, nothing was found. A memo Ext. Ka-4 was prepared. SI. S. N. Mishra (P.W.11) then left for Ahmedabad on 20.5.1976 for the search of the accused persons. While he was at Ahmedabad, K. K. Sharma, Station Officer (P.W.4) received some information in the matter on 29.5.1976. On. this information, he again got the same place near the hand pipe dug upto the depth of 15 feet. He recovered the dead body of Shyam Sunder Balecha from that place in the presence of recovery witnesses as well as the informant. The recovery memo Ext. Ka-2 was prepared in respect of the same. The inquest report of the dead body as well as other papers were prepared. The dead body was sent for post-mortem examination. The case was converted to one under Section 302 IP C.;