SHARMA, J. - (1.) RAJJO @ Rajesh, a boy of eight years, was kidnapped on February 2, 1994 for ransom. On February 9, 1994 his dead body was found lying buried in `parikrama' of a temple. All the five appellants were nabbed and tried for the offences under sections 364, 302/120 B and 365 IPC. The learned trial court vide its judgment dated December 21, 1995 convicted and sentenced them as under- 1. Ram Swaroop u/s. 364 IPC to undergo 10 years RI and fine of Rs. 500/- in default to further suffer 3 months R. I. 2. Laxman 3.Ramjilal 4.Devi Singh u/s. 302/120b IPC to undergo imprisonment for life and fine of Rs. 1000/- in default to further suffer 6 months RI. 5.Om Prakash u/s. 365 IPC to undergo 7 years RI and fine of Rs. 500/- in default to further suffer 3 months RI.
(2.) THE sentences were directed to run concurrently. The prosecution case is woven like this. On Feb. 3, 1994 informant Hetram (PW. 4) submitted a written report Ex. P. 5 at Police Station Weir with the avernments that his nephew aged 8 years, who had been wearing black half pant, white shirt and blue jersey was missing since 7 p. m. of Feb. 2, 1994. Request was made to the police to search the boy. Again on Feb. 5, 1994 Babulal (PW. 6) father of the missing boy Rajjo @ Rajesh filed yet another written report Ex. P. 6 at Police Station Weir wherein it was specifically stated that on Feb. 2, 1994 a letter had been found in his newly constructed house. As per the facts mentioned in the letter a search was made but the boy could not be traced. The informant had concluded that his son had been kidnapped for ransom. This time the police registered FIR No. 9/94 for offences punishable under Sections 364 and 365 IPC. On the basis of alleged information supplied by Laxman, and Ramjilal the police on Feb. , 9, 1994 at around 3 p. m. recovered dead body of the kidnapped boy Rajjo which was lying buried in the Parikarma of Temple Madan Mohanji Maharaj vide recovery memo Ex. P. 9. Autopsy on the deadbody was conducted vide Ex. P. 9. Autopsy on the deadbody was conducted vide Ex. P. 24 and as per the medical opinion the death was due to strangulation. Ram Swaroop, Devi Lal and Om Prakash were taken into custody and on the basis of information supplied by them Pattri, Tabeej, Kondhani, a pair of shoes Moja and woollen shawl were recovered. Statements of witnesses under Section 161 Cr. P. C. were recovered and on conclusion of investigation charge sheet was filed against the five accused persons. In due course the case came up for trial before the learned Additional Sessions Judge Bayana. Charges under Sections 364, 365, 302 and 302/120 B IPC were framed. Accused denied the charges and claimed trial. The prosecution examined as many as 13 witnesses in support of its case and got 42 documents exhibited. In their statements under Section 313 Cr. P. C. the accused claimed innocence and denied the allegations. One witness Dr. Prem Chandra was examined in defence by the accused appellants. The learned trial judge after hearing the final submissions convicted and sentenced the accused appellants as indicated hereinabove. The case was sought to be built up by the prosecution only on the basis of circumstantial evidence. The prosecution presented the following circumstances against the appellants. (i) On the fateful day, when the boy was kidnapped, accused Ramswaroop, Laxman, Ramjilal, Devi Singh and Om Prakash were found wandering near the place where the boy was playing and the boy was last seen with them near the `phulwari' which was adjacent to temple of Madan Mohanji. (ii) Address on the envelope which contained the letter demanding reason, was in the hand writing of accused Devi Singh. (iii) Pattri, Tabeej, Kondhani and pair of shoes belonging to the kidnapped boy were recovered at the instance of accused Ram Swaroop from his house. (iv) Shawl, topa and Moja of the kidnapped boy were recovered at the instance of accused Devi Singh, Laxman and Ramjilal. (v) Dead body of the kidnapped boy exhumed from the Parikrama of the temple of Madan Mohanji by the accused Laxman and Ramjilal. (vi) Accused Laxman and Ramjilal were residing in the upper story of the said temple at the relevant time. To prove the case, the prosecution has examined thirteen witnesses. Smt. Sampati (PW. 1) in her deposition stated that when she had gone to the house of Babulal Master to make inquiry about his lost son, she found a letter lying outside the door. She gave the letter to Sunita, who in turn handed it over to her father Babulal. Sunita (PW. 3) deposed that around 7. 30 p. m. on Feb. 2, 1994 her younger brother Rajesh and other children were playing outside the house. Leaving her brother playing, she went inside the house to ask her mother about food for her father who was at their newly constructed house. When she came out with the tiffen career, she did not find Rajesh. After searching him for a while she went to her father. On being asked by her father about Rajesh, shetold him that Rajesh was missing. They made a frantic search of Rajesh but could not find him. At about 9 p. m. her Tai (Aunty) Sampati gave her a letter which she handed over to her father who read it and kept it in his pocket. In her statement she gave details about clothes, Tabij, Patri, Kondhni, Woollen cap and Shoes which Rajesh was wearing. She further stated that while playing outside her house she had seen Ram Swaroop, Ramjilal, Laxman, Devi Singh and Om Prakash wandering there. Het Ram (PW. 4) stated that Rajesh was his nephew and he lodged oral report (Ex. P. 5) with the police about his missing. Dinesh (PW. 5) deposed that in the evening of Feb. 2, 1994 he had seen Ram Swaroop, Laxman, Ramjilal, Devi Singh and Om Prakash near `phulwari'. Rajesh was also with them. Temple of Madan Mohanji is situated in `phulwari' and his house was just opposite the `phulwari'. Babu Lal Verma (PW. 6) in his deposition averred that his son Rajesh was missing since 7 p. m. of Feb. 2, 1994. His elder brother's wife Sampati at about 9 p. m. brought a letter from outside of his house and gave it to his daughter Sunita. From the letter he came to know that Rajesh was kidnapped and he was asked to arrange for ransom. He gave the letter to the police and lodged the report. Shyam Singh (PW. 7) stated that Ramjilal and Laxman dug Parikrama of temple Madan Mohanji and exhumed the dead body of Rajesh. The memo of recovery of dead body Ex. P. 9 was drawn on which he put his signatures. He also put signatures on the other recovery memos drawn by the police. Bhori Devi (PW. 9) gave narration as to how his son Rajesh was missed. Madan (PW. 10) stated that he had seen Rajesh alongwith Laxman, Ramswaroop, Devi Singh, Om Prakash and Ramjilal near `phulwari'. Dr. A. A. Khanjada PW. 11 conducted the autopsy on the dead body of Rajesh. As per his opinion the death of the boy had occurred between 6th and 7th of Feb. 1994 by strangulation. Suresh Chand Gupta (PW. 12) stated that he had gone along with Dy. S. P. to the Temple of Madan Mohanji and deadbody of Rajesh was recovered in his presence. Bhagwan Singh (PW. 13) conducted investigation of the case. He had drawn necessary memos and submitted charge sheet.
(3.) WE have now to judge whether the prosecution has been able to establish the above circumstances with reliable evidence or whether there is a scope for contending that the cumulative effect of those circumstances would be insufficient to point to the appellants as the culprit. The first circumstance presented against the appellants is that they were found wandering near the place where the boy was playing and the boy was last seen with them near the `phulwari' which was adjacent to temple of Madan Mohanji. To establish this circumstance, the prosecution has examined Sunita (PW. 3) Dinesh (PW. 5) and Madan (PW. 10 ). It is conended by the learned counsel for the appellants that the evidence regarding this circumstance is highly vague and overly generalised. Unless there is some clinching evidence that the deceased boy was being led on the road against his wishes or under some physical restraint, no adverse inference can be drawn against the appellants. It is further urged that if the deceased had been seen in the company of the appellants at around 7. 30 p. m. on Feb. 2, 1994, normally this circumstance should have been mentioned either in the report Ex. P. 5 or in the report Ex. P. 6 but neither on Feb. 3, 1994 nor on Feb. 4, 1994 this significant fact was mentio- ned in the two reports Ex. P. 5 and Ex. P. 6. This material omission completely deflates the allegation that the deceased was last seen in the company of the appellants. We are unable to agree with this submission that not mentioning the fact in the written reports that the boy was seen in the company of the appellants is a material omission. When the reports were lodged, circumstance to suspect the appellants did not exist as they would reside at some distance from the old house of Babulal and Het Ram. Sunita (PW. 3) deposed that the houses of Ram Swaroop, Laxman, Ramjilal and Devi Singh situated in the same locality. Dinesh (PW. 5) also said that Ram Swaroop, Laxman, Ramjilal, Devi Singh and Om Prakash would reside in his Mohalla. When he had seen Rajesh with them near `phulwari' in the evening yet he did not suspect them and narrate this fact to his father Het Ram and uncle Babulal. Madan (PW. 10) deposed that he did not seen Laxman, Ram Swaroop, Devi Singh, Om Prakash and Ramji Lal going towards the temple in the evening while Rajesh was also with them. As the boy Rajesh used to play there, he did not suspect them and narrate this fact to any body. We see no merit in contention of the learned counsel that the evidence regarding this circumstance is highly vague and over generalised. We are satisfied that in the evening near the `phulwari' where Rajesh was playing, the presence of appellants Laxman, Ramji Lal, Ram Swaroop, Devi Singh and Om Prakash is also established. The second circumstance on which the prosecution has placed reliance is that the address on the envelope which contained letter of demand of ransom, was in the hand writing of appellant Devi Singh. To establish this fact the prosecution has relied on the testimony of investigating officer Bhagwan Singh (PW. 13 ). It is revealed from his statement that Devi Singh was arrested on March 8, 1994. Vide Ex. P. 42 and Ex. P. 50 he obtained the specimen had writing of Devi Singh and forwarded alongwith the original letter of reason Ex. P. 38 and Ex. P. 39 to the FSL. for comparison. In the course of investigation on March 10, 1994 Devi Singh himself handed him over two copies Ex. P. 51 and Ex. P. 52 that contained his handwriting. Those copies were not found at the time of search of his house and no seizure memo was drawn. Specimen handwriting of Devi Singh was marked as C-1 to C-14. Original letter of ransom was on ruled paper sheet and was market as Q1 and Q2 whereas the envelope was of plain paper sheet and it was marked as Q3 and Q4. The FSL in its report Ex. P. 40 concluded that the writer of standard writings marked as C-1 to C-14 also wrote the disputed writings marked as Q-3 and Q-4. In the said report the S. P. Bharatpur was asked to send 9 to 10 more specimen sheets written by Devi Singh in order to determine the authorship of dispute writing marked as Q-1 and Q-2. The FSL required the specimen writings of Devi Singh for further examination. But it appears from the record that specimen writings as required by the FSL were not sent. Bhagwan Singh in his cross examination specifically stated that neither the FSL asked him to send the specimen hand writing nor he sent the specimen handwriting to FSL again. Their Lordships of the Supreme Court in Fakhruddin vs. State of A. P. (1), indicated that it would be risky to found a conviction solely on the evidence of a hand writing expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct of circumstantial. Hon'ble Apex Court in S. Gopal Reddy vs. State of A. P. (2), again propounded that the evidence of an expert is rather weak type of evidence and the courts do not generally consider it as offering `conclusive' proof and therefore safe to rely upon the same without seeking independent and reliable corroboration. It is borne out from the statement of informant Babulal that he had only submitted letter of ransom in original with the written report, we do not find any mention of paper envelope in his entirestatement. Even Sampati (PW. 1) who found the letter at the door step of the house of Babulal, did not say that it was kept in envelope. The Investigating Officer Bhagwan Singh however deposed that he had sent Ex. P. 38 (ruled paper sheet) and Ex. P. 39 (plain paper sheet) to the FLS. A doubt therefore arises as to the very existence of the paper envelope and if writing on the paper envelope was found in the hand writing of Devi Singh we cannot draw any presumption against him of his participation in the commission of offence. It also appear from the FSL report Ex. P. 40 that it is inconclusive and the investigating agency was asked to send more specimen writings of Devi Singh as the same were required for further examination, but no such writing were ever sent to the FSL by the Investigating Officer Bhagwan Singh. Thus we are of the view that the FSL report Ex. P. 40 cannot solely be made basis of conviction Devi Singh. ;