MOHAMMAD RAFIQ,J. - (1.) These appeals are directed against the judgement dated 15.11.2008 passed by the learned Additional Sessions Judge (Fast Track) No. 2, Jaipur Metropolitan, Jaipur in Sessions Case No. 16/2008 whereby the accused-appellants were convicted and sentenced as under: Rajkumar @ Raju: U/s. 302/34 IPC-life imprisonment with fine of Rs. 10,000/-, in default of payment of fine, to further undergo ten months imprisonment. U/s. 201 IPCfor a period of 7 years rigorous imprisonment and fine of Rs. 5,000/-, in default of payment of fine, to further undergo five months imprisonment. U/s. 364 IPCfor a period of 10 years rigorous imprisonment and fine of Rs. 5,000/-, in default of payment of fine, to further undergo five months imprisonment. Appu @ Raju: U/s.302 IPClife imprisonment with fine of Rs. 10,000/-, in default of payment of fine, to further undergo ten months imprisonment. U/s. 201 IPCfor a period of 7 years rigorous imprisonment and fine of Rs. 5,000/-, in default of payment of fine, to further undergo five months imprisonment. U/s. 364 IPCfor a period of 10 years rigorous imprisonment and fine of Rs. 5,000/-, in default of payment of fine, to further undergo five months imprisonment.
(2.) The relevant facts of the case are that one Raju Khatri lodged a report at Police Station Ramganj, Jaipur on 14.08.2002 narrating that his son Saurabh, aged about 5 years, is missing from his house and despite extensive search, he has been found. Another report on the same facts was again lodged by Raju Khatri on 28.08.2002, wherein it was alleged that his son Saurabh has been missing and it seems that someone has enticed him and taken him away. It was also stated in the said report that he has gone with any relative or known person otherwise he would have returned. Thereafter, the police recovered a dead body from a deserted house of Pratap Nagar in Sanganer and also recovered certain clothes, and shoes. Thereafter an FIR No. 241/2002 was registered for the alleged offence under Sections 364, 302, 201/34 IPC and the police started investigation. During investigation, the accused appellants were arrested and subsequently charge sheet was submitted by the police against the accused for the alleged offence under Sections 364, 302, 201/34 IPC. Thereafter the case was committed to the learned District and Sessions Judge, Jaipur City, Jaipur which came to be transferred for trial initially to the court of learned Additional District and Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur and subsequently to the court of learned Additional District and Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur. Thereafter charges were framed under Sections 364, 201, 302/34 IPC, to which the accused appellants denied and claimed trial. In support of its case, prosecution examined 23 prosecution witnesses and also got 29 documents exhibited. The accused appellants were examined under section 313 of Cr.P.C., 1973 in which also they denied the prosecution evidence and pleaded innocence. In support of its case, defence produced 3 witnesses and got 16 documents exhibited as defence exhibits. After hearing both the sides, the learned trial court below convicted the accused appellants as above. Hence this appeal.
(3.) Shri Vijay Choudhary, learned counsel for the accused-appellant Rajkumar @ Raju has argued that the accused appellant has been falsely implicated in the present case and he has nothing to do with the present case. It is a case of circumstantial evidence and it is basic rule of criminal law that in cases of circumstantial evidence, story of the prosecution should make out a chain of events which in totality should make out a circumstance in which each and every part of the chain should unerringly point towards guilt of the accused and if the chain is compete, the case of the prosecution fails and benefit of doubt always goes to the accused. It is submitted that in the instant case, the only circumstance pointed out by the prosecution against the accused-appellant was of his pointing out to the police the place of occurrence and extra judicial confession in police custody, whereas it is the fundamental principle of the criminal jurisprudence that confession of the accused recorded in police custody cannot be read against him and the other evidence of pointing out the place of incident also cannot be taken against the accused appellant as it cannot be treated as discovery of new fact as the police had already visited the place of occurrence and recovered the dead body of the boy and the said place was also allegedly pointed out by the other accused person.;