YOGESH Vs. STATE

JUDGEMENT

(1.) This appeal relates to the murder of a 15 year old boy named Girish @ Baboo, who is the son of Shri Ram Rakha (PW-1). As per the charge-sheet filed before the trial court, there were four accused - the present Appellant (Yogesh), Mewa Ram, Baij Nath and Rakesh. Two of the ac-cused, Baij Nath and Rakesh were discharged by the trial court vide or-der dated 19.08.1996 after recording that there was no evidence against the said accused apart from the disclosure statements which could not be relied upon as evidence. Thereafter, the trial continued in respect of the present Appellant Yogesh and Mewa Ram. The charges were framed against the present Appellant for having allegedly committed the offence punishable under Sections 302 and 364 IPC as also the offence punish-able under Section 201/34 IPC alongwith the other accused Mewa Ram. The trial court, after examining the testimonies of 11 prosecution wit-nesses and other evidence on record, acquitted the present Appellant as well as Mewa Ram of the charges under Section 201/34 IPC. However, the present Appellant [Yogesh] was convicted under Section 302/364 IPC for having kidnapped and murdered the deceased Girish by virtue of the judgment dated 21.03.1997. Subsequently, by a separate order on the point of sentence passed on the next day, i.e., on 22.03.1997, the appel-lant was sentenced to undergo imprisonment for life for the offence pun-ishable under Section 302 as also to pay a fine of '1,000/-and, in default thereof, to undergo rigorous imprisonment for a period of six months. The Appellant was also sentenced for the offence punishable under Sec-tion 364 IPC and was required to undergo rigorous imprisonment for a period of 120 months and also to pay a fine of '1,000/-and, in default thereof, to further undergo rigorous imprisonment for a period of six months. Both the above sentences were to run concurrently.

(2.) The Appellant, aggrieved by the said judgment and the order on sentence, has filed the present appeal and has assailed the same on the plea that the case is one which is entirely based on circumstances which have not been established. It has been submitted by the learned Counsel for the Appellant that no motive for the alleged crime has been established by the prosecution. It has further been contended by the learned Counsel for the Appellant that the entire prosecution case rests on the testimony of PW-2 [Jagdish Sharma], who is said to be the person who last saw the deceased Girish in the company of the Appellant Yogesh while Girish was leaving the house in the morning of 16.09.1995 at about 10-10.30 a.m. She sub-mitted that PW-2's testimony is the link on which the entire case of the prosecution hinges. She submitted that the testimony of PW-2 is a very weak link, if it can be called a link at all. It was contended that the Sec-tion 161, Code of Criminal Procedure statement of PW-2 was recorded on 12.12.1995, i.e., more than three months after the alleged incident, which took place on or about 16.09.1995. The Appellant had already been arrested on 22.09.1995 on the basis of suspicion raised by PW-1 [Ram Rakha], which finds mention in the FIR [Exhibit PW-8/DA] which was recorded on the basis of D.D. 17A dated 18.09.1995 at 5.15 p.m. The said FIR [Exhibit PW-8/DA] discloses that PW-1 had indicated that his son was missing and had gone somewhere from the house. The said FIR further indicates that PW-1 suspected a boy named Yogesh.

(3.) The learned Counsel for the Appellant also submitted that the alleged re-covery of clothes of the deceased Girish at the instance of the Appellant Yogesh is also not free from doubt. She submitted that, while Yogesh was arrested on 22.09.1995 and his alleged disclosure statement was re-corded on the same day in which he had indicated that he could get the clothes recovered, the actual recovery of the clothes was allegedly done only on 25.09.1995, i.e., three days later.