Poonam Srivastav, J. - (1.) HEARD learned counsel for the appellant and learned A.G.A. for the State.
(2.) THIS is an appeal at the behest of accused Prasann Kumar against the judgment and order dated 14.8.2003 convicting him to undergo life imprisonment under Sections 302, 364, I.P.C. and 2 years R.I. under Section 377/511, I.P.C. and 2 years R.I. under Section 201, I.P.C. in S.T. No. 896 of 2001. All the sentences have been directed to run concurrently. THIS is a case of circumstantial evidence. Single accused is named in the first information report which was registered on 1.9.2001 at 4.00 a.m. Police Station, Deoband, district Saharanpur situated at a distance of 6 kilometers from the place of occurrence. The first informant is Praveen Kumar, brother of the deceased Sonu aged about 10 years. Initially an information was given to the police station about missing of the deceased and the report was only for an offence under Section 364, I.P.C. but subsequently after the recovery of the dead body at the pointing out of the accused, the case was registered under Sections 364, 302, 201, I.P.C. at Case Crime No. 528 of 2001. The prosecution story as narrated in the first information report is that the complainant Praveen Kumar, brother of the deceased did not return to his house on 31.8.2001 and the first informant started searching for Sonu in the village Miragpur, Police Station Deoband, district Saharanpur. Mintu son of Sri Kawal Singh and Pitam Singh son of Sri Tohfa Singh informed the complainant that they had seen Sonu going alongwith accused at about 5.30 p.m. in the village towards Kali river. The report was only regarding abduction of the deceased, a description of Sonu and also clothes etc. which he was wearing was detailed in the report. The police immediately started looking for the accused-appellant and after receiving some information proceeded alongwith certain other persons in a jeep towards Dugcharhi Vishram Grih where the accused was arrested. After his arrest the accused confessed that he attempted sodomy with Sonu by using force and he has killed him. On pointing out of the accused, the body of the deceased Sonu was recovered at about 9.45 a.m. just lying by the side of the popular tree which had fallen down across the river. One havai chappal was also recovered from the fields of Udai Singh. The deceased was wearing only a T-shirt and no other apparel was found on his body. Subsequent to the post mortem, offence under Section 377, I.P.C. was added with the aid of Section 511, I.P.C. Charge was framed on 14.5.2002 against the accused under Sections 364, 377/511, 302 and 201, I.P.C. The accused denied having given out any confessional statement and also the recovery, as well as, other allegations levelled by the prosecution at the stage of framing of the charge. The prosecution examined as many as 8 witnesses ; P.W. 1 Pritam Singh, P.W. 2 Praveen Kumar, P.W. 3 Dr. R. K. Chanana, P.W. 4 Sub- Inspector Charan Singh, P.W. 5 Vijendra Singh, P.W. 6 Sub-Inspector Gajendra Singh Bansala, P.W. 7 Ram Niwas and P.W. 8 H. C. Jai Prakash Singh. The conviction was recorded on the basis of the circumstantial evidence and circumstance which weighed with the court below was ; (a) Motive-for murder was an abortive attempt to commit sodomy on the deceased. (b) Evidence of last seen together with the deceased on 31.8.2001 at 5.30 p.m. (c) Extra-judicial confession said to have been made before the police. (d) Recovery under Section 27 of Evidence Act of the body of the deceased lying next to the popular tree near the river and a havai chappal from the field of Jai Prakash Singh.
(3.) THE first submission of the learned counsel for the appellant is that inquest commenced at 11.00 a.m. and was completed at 1.00 p.m. Perusal of the inquest report shows that crime number as well as the offences under Sections 364, 302 and 201, I.P.C, are clearly mentioned at the top, whereas P.W. 6 S.I. Gajendra Singh who was the Investigating Officer, admits in his cross-examination that the first information report was registered under Section 364, I.P.C. and investigation commenced for the said offence. No fard was prepared when the accused was arrested, neither any site plan was prepared from where the accused is alleged to have been taken into custody. THE confessional statement has also not been recorded separately. Neither he tried to get an endorsement by taking a signature of the accused on the said confessional statement. After completing all these formalities, he reached the police station at 2.00 p.m. and it was at that time while making entries in the General Diary, the offence under Sections 302 and 201, I.P.C. were also added. Thus, the learned counsel has challenged the veracity of the inquest report. While disputing the story set up by the prosecution, Sri Kamal Krishna has also pointed out that there is overwriting on the crime number and the Investigating Officer was specifically questioned on this point that why number 8 in Crime No. 528 was corrected later, overwriting was apparent, when original crime number in the F.I.R. was 526. This has though, been denied by the Investigating Officer but the learned counsel was very emphatic while placing original documents such as chik, F.I.R. and fard of recovery of the dead body of the deceased Sonu and the havai chappal. In support of his contention that a number of manipulations and interpolations have been made during investigation, he submits that the investigation is tainted. Learned counsel has pointed out that the word "koshish" (attempt) has been added at two places subsequently in the recovery memo which is sufficient to establish that the entire prosecution has tried to set up a motive against the appellant which is cooked up. In fact the prosecution was unable to establish any motive whatsoever, thus the prosecution has tried to come up with the theory that the accused has made an unsuccessful attempt to commit sodomy on the deceased Sonu and thereafter killed him. It is argued by learned counsel for the appellant that subsequently when the post mortem was conducted on the body of the deceased on 1.9.2001 at 4.00 p.m., there was no injury on any private part of the body of the deceased which could point a finger towards the act of sodomy and, therefore, the word "koshish" was added and Section 377, I.P.C. with the aid of Section 511, I.P.C. was given to be a motive for commission of the crime.;