By order dated 02.03.2006, the High Court dismissed the appeal filed by the appellants herein.
They found that some parts of the dead body were eaten by the animals.
154 of 2002 before the High Court.
On 19.04.1998, another report of kidnapping and murder was lodged by Leeladhar PW 1 suspecting the involvement of Ramesh S o Dashrath, Prakash s o Gautamchand, Ramesh Papiya S o Bhanwar Lal, Pannu, Inder S o Murlidhar, Ganesh and Pappu.
On 16.04.1998, Leeladhar PW 1 lodged a report at Police Station, Barmer stating that on 15.04.1998 his son Kamlesh aged about 7 years left for the school in the morning but did number return home till evening at 7.00 p.m. In pursuance of the said report, the police made a search.
By order dated 31.01.2002 in Sessions Case No.28 of 1998, the Additional Sessions Judge, Barmer companyvicted all the three accused persons for the offences punishable under Sections 302, 364 and 120 B of IPC and sentenced them under Section 302, to undergo life imprisonment with a fine of Rs.5000/ each, in default of payment of fine, further to undergo rigorous imprisonment for one year, under Section 364, RI for 7 years with a fine of Rs.2000 each, in default of payment of fine, further to undergo RI for 6 months and under Section 120 B to undergo 7 years RI with a fine of Rs.2000 each, in default of payment of fine, further to undergo 6 months RI.
Brief facts This is a case of kidnapping and murder of a 7 year old child out of enmity.
Challenging the order of companyviction and sentence, the appellants filed appeal being D.B. Criminal Appeal No.
The girl was of Indramal.
At the relevant time, her husband was doing the work of light fitting and he used to go to work spot at 9 O Clock in the morning return home at 8 O Clock in the evening.
Thereafter, Ramesh Khatri and Indramal Brahmin used to threaten him that they would take revenge of it and would abduct his son at the time of going to school.
On the relevant date, when he returned home, she informed him that their son Kamlesh had number companye back from the school.
The boy was wearing black pant and white shirt and black shoes.
Thereafter, her husband PW 1 went in search of Kamlesh along with her brother Prem.
According to her, on companying to know of the said incident, Indrammal and his sister beat her for which she had lodged a companyplaint with the police due to which they threatened that they would take revenge of it.
She narrated the motive for killing of her son by the accused persons.
After the investigation and recovery, the police arrested Prakash, Ramesh Papia and Ramesh Khatri on 22.04.1998 and a charge sheet under Sections 302, 364 and 120 B of IPC was filed against the accused persons.
It was companytended by the learned amicus curiae for the appellants that in the absence of direct evidence, the slightest of a discrepancy, depicting the possibility of two views would exculpate the accused of guilt, on the basis of benefit of doubt.
In this regard he made a companyplaint to the parents of the girl as well as to the persons of the locality.
He further narrated that on the second day after missing of his son, suspicion rose on Pappu who had gone to Delhi.
He further narrated that at 5.45 p.m., when he was working at the place of Cobblers, he received the news that his son Kamlesh has number companye back from the school.
C.I. Sahib of police had taken away the clothes in his presence and also companylected pant with black belt, a small blood smeared shit with black spot design, two shoes and socks etc.
She also reported the matter to the police.
Three months after the said threat, they companymitted the murder of his son after abducting him when he was on the way to school.
The name of the third child was Kamlesh.
154 of 2002, whereby the High Court dismissed the appeal filed by the appellants herein and companyfirmed the order dated 31.01.2002 passed by the Additional Sessions Judge, Barmer, Rajasthan in Sessions Case No.
He is doing the work of light fitting.
He also admitted that he was known to all the three accused persons and the child.
She narrated that about 14 months ago, she had sent Kamlesh to school.
She also disclosed this fact to other neighbours.
Later on, the daughter of Indramal died by companysuming that poison.
Amongst his three children, Kamlesh used to go to School.
The prosecution very much relied on by PWs 3, 4 and 10 to prove the last seen theory and the companyrts below rightly accepted their version.
However, she companyplained that after companypromise, her son Kamlesh was missing and subsequently murdered.
On 19.04.1998, on an information by Hansraj PW 8 , Khet Singh PW 9 and Bheemaram PW 11 that a dead body of a boy was found lying on the hill of Sujeshwar in mutilated companydition, the police along with one Leeladhar PW 1 went to the spot.
While he was returning on Gelu Road, he saw the accused along with a boy moving towards the Hillock.
Then Ramesh put the poison packet in the house of Indramal over the wall.
On seeing the dead body, all the three came to C.I. Sahib and told that it was the dead body of his son Kamlesh.
P 01 with police station on the same day stating that his child did number companye back home from school.
Amongst them, Pappu went to his house and brought scooter and went on the scooter in the same direction in which Kamlesh and Santosh had gone.
The next witness relied on by the prosecution is PW 7, mother of the deceased.
He had two sons and one daughter.
He was taken up to that mountain and Premji, Ghanshyamji and Moola had gone to the mountain top where the dead body was lying.
In her evidence, she deposed that she had three children.
Thereafter, he along with Premji Ghanshyamji went up to the hills.
He usually goes to work at 8.30 9.00 in the morning and returns back home at 8.00 8.30 in the night.
Aggrieved by the said order, the appellants have preferred these appeals by way of special leave.
Thereafter, he went to the school and enquired from the school teacher, who told that Kamlesh had number companye to school on that day.
Five days thereafter at about 7 p.m. the police informed him that they found a dead body.
With the assistance of the local people, the matter was companypromised with him.
She informed the same to Indrammals wife.
Ramesh had relationship with the daughter of Indrammal, namely, Pappuni.
She also asserted that Pappu, Ramesh and Prakash had made her son disappear and according to her, they did it on account of the death of Pappuni and thereafter, murdered her son.
There is a mountain behind the Shivji temple.
On 15.04.1998, his son had gone to school at 11.30 a.m. At that time, son of Peetamber accompanied him.
He lodged a report Ex.
Then he lodged a companyplaint with City Police Station stating that his child is number traceable.
The head of the dead body was also missing.
He was cross examined at length but numberhing was elicited disproving his statement relied on by the prosecution.
Thereafter, he enquired from all his relatives at Barmer and searched for him but companyld number locate him.
Apart from the evidence of PWs 1 and 7 with regard to the last seen theory, prosecution examined three persons, namely, Moolchand PW 3 , Gautam Chand PW 4 both are goldsmiths and Biglaram PW 10 .
There was a white shirt with black spots, black pant, black belt and black shoes put on the dead body.
Thereafter, she went inside her home.
Discussion In the case on hand, the prosecution case rests solely on the basis of circumstantial evidence.
After companyducting inquest, the police handed over the dead body of his son.
He also stated that the right hand of the dead body was cut and the same was missing.
One month after the said incident, Pappuni died by companysuming poison and, thereafter, the accused Ramesh used to quarrel with her and many times threatened her.
During night, it was number possible to lift the dead body, therefore, next morning he again went to that place and companylected the dead body of his son tied in a cloth and brought the same to his home and buried it.
He studied in Alesh Narayan Khatri School.
In his deposition, PW 1 deposed that he is residing at Hathidhora, near Shiv Temple, Barmer.
The said Ramesh used to enter their house even during night.
On receipt of the said information, he went home where his wife informed that Kamlesh has number companye back from the school.
His eldest son was Kamlesh, thereafter his daughter Khushbu and then youngest son Narendra.
She also narrated the incident about Ramesh that 12 months prior from the date of her missing of her son, at 11 O clock, she had seen the accused Ramesh entering the house of Indrammal which is close to her house.
The relevant and material circumstances heavily relied on by the prosecution are The deceased was last seen in the companypany of the appellants accused.
He also informed the police that the dead body of his son was found five days after his missing.
His one son died prior to the incident.
He identified all the accused in the Court.
The next witness relied on by the prosecution to support the last seen theory is Bijlaram PW 10 .
The present appeals are filed by A 2 and A 3, wherein we refer the appellants which relates to A 2 and A 3 alone.
There was also a school bag with the dead body, which was of his son Kamlesh.
The clothes worn on by the dead body was also of his son.
The first witness examined by the prosecution was Leeladhar PW 1 father of the deceased.
In his evidence, he stated that on 15.04.1998, he had gone to Sujesar Hillock for companylecting firewood.
He further narrated that all the three accused and the child moved towards the Hillock.
From the clothes, shoes, socks and school bag, PW 1 identified the dead body as that of his son.
Heard Mr. Seeraj Bagga, learned Amicus Curiae for the appellants and Mr. Shovan Mishra, learned companynsel for the respondent State.
Recovery of incriminating articles in pursuance of the information given by the appellants.
He further explained that three months prior to the incident, Ramesh Khatri had entered into the house of Indramal Brahmin, whose house is adjacent to his house.
Sathasivam,J. These appeals are directed against the final judgment and order dated 02.03.2006 passed by the High Court of Judicature for Rajasthan at Jodhpur in D.B. Criminal Appeal No.
28 of 1998 by which the appellants herein were companyvicted for the offence punishable under Sections 302, 364 and 120 B of the Indian Penal Code in short IPC and sentenced them to undergo imprisonment for life under Section 302 and to pay a fine of Rs.5000/ each.
On the relevant date, when she was standing outside her house, the accused persons, namely, Pappu, Ramesh and Prakash present in the companyrt were standing at the shop of Pappu.
