SHIV KUMAR SHARMA, J. - (1.) Challenge in these appeals is to the judgment dated April 18, 2003 of the learned Additional Sessions Judge (Fast Track), Kishangarh Bas (Alwar) whereby the appellants were convicted and sentenced as under :- Under Section 302, IPC : Both to suffer imprisonment for life and fine of Rs. 1000/-. in default to further suf- fer rig'prous imprisonment for three years. Under Section 364, IPC : Both to suffer rigorous imprisonment for ten years and fine of Rs. 1000/-, in default to further suffer rigorous imprisonment for two years. Under Section 201. IPC : Both to suffer rigorous imprisonment for five years and fine of Rs. 1000/-, in default to further suffer rigorous imprisonment for one year. The substantive sentences were ordered to run concurrently. FACTS :
(2.) On May 9, 2000 at 8.30 a.m. informant Umesh Kumar (PW 2) lodged a written report (Ex. P-9) at Police Station Kotkasim to the effect that he was resident of village Katopur. On May 8, 2000 he was sleeping along with other family members. Around 11.30 p.m. he woke up and came out side in the Courtyard. He then found that his son Dilawar alias Kalu, aged 6 years, was missing. He looked around for his son and inquired from other family members but could not find the boy. Inquiries made by him and other family members in and around the village about the boy were also in vain. He had suspicion that the incident might have been done by Vedpal with whom he had old enmity and who was recently released on bail and visited the village. On that report a case was registered at PS KotKasim The Investigating Agency em- barked upon investigation. During the course of investigetion. the place from where the boy was taken away, was inspected and site plane was prepared. Informant Umesh Kumar submitted a letter, which was also seized by the police. Statements of Umesh, Sunita and Santra were recorded by police. With passege of time, during the course of invstigation, on December 30, 2000 the ap- pellant was arrested by the police. The appellant allegedly gave information about dead body, of child having buried, seven months back in the bed of River Sabi about one and half kilometers from village Katopur. At the instance of said information dead body of the boy was exhumed from the relevant spot along with his clothes. Inquest proceedings of the dead body were conducted. Site: plan of place, from where dead body was exhumed was prepared. Dead body was subjected to post-mortem examination. Appellant Vijendra was also arrested. The skull of the dead body, which was kept safe, was seized by the police. At the instance of appellant Satish. a spade was recovered and seized. Co-accused Om Prakash was arrested on January 7, 2001. He moved an application before the Chief Judicial Magistrate Alwar for becoming approver and learned Chief Judicial Magistrate allowed the application and Om Prakash was made approver. Thereafter statements of Om Prakash were recorded by the Additional Chief Judicial Magistrate Alwar. After completion of investigation charge-sheet was filed. In due course the case was committed to the Court of Additional Sessions Judge No. 1, Kishangarh Bas. Thereafter it was made over to learned Additional Sessions Judge (Fast Track) Kishnagarh Bas. Charges under Sections 363, 364, 364A, 302, 120B and 201, I. P. C. were framed against the accused, who denied the charges and claimed trial. The prosecution in support of its case examined as many as 41 witnesses. It the explanation under S. 313, Cr. P. C., tine appellants claimed innocence and stated that complainant Umesh himself, in conspiracy with his second wife, killed the child by administering poison and disposed of the body with the help of Om Prakash. No witness in defence was however examined. Learned trial Judge on hearing final submissions convicted and sentenced the appellants as indicated hereinabove. RIVAL CONTENTIONS :
(3.) Learned Senior Counsel's main contention was that the Chief Judicial Magistrate Alwar had failed to comply with the mandatory direction contained in clause (a) of sub-section (4) of Section 306, Cr. P. C.. as no statement of approver was recorded by the Chief Judicial Magistrate during the committal proceedings, which vitiates the committal of the accused to Court of Additional Sessions Judge No. 1 Kishangarh Bas and consequently the trial by the Additional Sessions Judge (Fast Track) Kishangarh Bas. Learned Senior Counsel further canvassed that the appellants are innocent persons and they have not committed any offence. They have been falsely implicated at the instance of complainant. The appellants were arrested after an interregnum of eight months without any clinching evidence to reflect the complicity of appellants in the present case. The dead body, which was allegedly recovered, was nothing but a bundle of bones and in such a situation the fact that it was of Dilawar alias Kalu has not been proved at all. The cause of death of corpse, which was allegedly recovered, has also not been established by medical evidence. In such situation it could not be said that dead body recovered, whatsoever it was, had died a homicidal death. None of the prosecution witnesses have endeavoured to divulge the fact about the clothes which Dilawar alias Kalu was wearing when he had allegedly disappeared. No motive has been brought to the fore by the prosecution. So called recovery of spade, at the instance of appellant, has not been proved with the aid of cogent and convincing evidence. There is no mention of any kind of suspicion against appellants by complainant in the FIR. Reliance was placed on various authorities that shall be considered at the appropriate juncture.;