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 and 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 and 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 along with 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 along with 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 post­mortem, 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.
(3.) THE prosecution examined as many as 8 witnesses; PW-1 Pritam Singh, PW-2 Praveen Kumar, PW-3 Dr. R.K. Cha-nana, PW-4 Sub Inspector Charan Singh, PW-5 Vijendra Singh, PW-6 Sub Inspector Gajendra Singh Bansala, PW-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 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. ;