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2017 DIGILAW 1116 (JHR)

Roshan Ekka v. State of Jharkhand

2017-07-14

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : Ananda Sen, J. These two appellants, by filing this appeal, have challenged the judgment of conviction dated 18th of August, 2007 and the order of sentence dated 21st August, 2007 passed by the Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No.33 of 2005 arising out of G.R. No.433 of 2004. 2. The Trial Court, after finding the appellant, Roshan Ekka guilty of offence under Sections 364A, 302 and 201 of the Indian Penal Code, and appellant Rajesh Ekka guilty of offence under Sections 302/34 and 201 of the Indian Penal Code, convicted them for the offence under the said Sections of Indian Penal Code. Appellant Roshan Ekka was sentenced to undergo rigorous imprisonment for life with a fine of Rs.25,000/- for offence under Section 364A of the Indian Penal Code, rigorous imprisonment for life with a fine of Rs.25,000/- for offence under Section 302 of the Indian Penal Code and 3 years rigorous imprisonment with a fine of Rs.5,000/- for offence under Section 201 of the Indian Penal Code. Appellant Rajesh Ekka has been sentenced to undergo life imprisonment with a fine of Rs.15,000/- for offence under Section 302/34 of the Indian Penal Code and rigorous imprisonment for 3 years with fine of Rs.5,000/- for offence under Section 201 of the Indian Penal Code. 3. The first information report is based upon the fardbeyan of Rajendra Prasad (P.W.4). He filed a written report before the Officer-in-Charge, Muffasil Police Station stating therein that on 03.10.2004 at about 05.00 p.m., his son Vishal was playing near his house along with other children. After playing, all the children returned, but, his son did not. Search started, but, Vishal could not be traced out. An information to that effect was given to the police in the evening. The search continued at night, but the whereabouts of the boy remained unknown. Again on the next day on 04.10.2004, the search continued whole day, when they came to know that on 03.10.2004, where Vishal was playing, Roshan Ekka (appellant No.1) was spotted in a suspicious manner and he was seen along with the boy till dark, by friend of Vishal and immediately, thereafter the boy went missing. The informant in the first information report mentions that Roshan Ekka is of dubious character. The informant in the first information report mentions that Roshan Ekka is of dubious character. It is mentioned in the first information report that the informant and others went to the house of Roshan Ekka, when the elder brother of Roshan Ekka namely, Bobby Ekka, his mother Kusum Ekka and his brothers Ranjeet Ekka and Rajesh Ekka (appellant No.2) seeing them, became perplexed and inquired as to why they have come to their house. Behaviour of the members of the family of these appellants were suspicious. Seeing the said behaviour the informant believed that with a bad intention his son has been kidnapped by Roshan Ekka and his family members and he might be killed. 4. On the above written report, Muffasil Police Station Case No.114 of 2004 was registered, initially for offence under Sections 364/34 of the Indian Penal Code. During investigation, the police recovered the dead body of the child, thus, Section 302 of the Indian Penal Code was added on 06.10.2004. The police, after completion of the investigation, submitted charge-sheet under Section 364, 302, 201, 120B of the Indian Penal Code. Cognizance was taken and as the offence was triable by the Court of Session, the same was committed. The Trial Court framed charges against both the appellants– Roshan Ekka and Rajesh Ekka under Sections 302/34, Section 201 and Section 120B of the Indian Penal Code. Roshan Ekka (appellant No.1) was further charged for committing offence under Section 364 and 364A of the Indian Penal Code. The appellants pleaded not guilty to the charge and claimed to be tried. 5. To prove the prosecution case, 21 witnesses were examined. P.W.1 is Bhola Prasad, P.W.2 is Kishore Prasad, P.W.3 is Dr. B.K. Singh, P.W.4 is Rajendra Prasad, the informant in this case, P.W.5 is Anup Prasad, P.W.6 is Shakti Prasad, P.W.7 is George Bankira, P.W.8 is Deonarayan Munda, P.W.9 is Radha Devi, P.W.10 is Dr. A.K. Mishra, P.W.11 is Dr. B.K. Sahni, P.W. 12 is Ranjeet Prasad, P.W.13 is Sunil Prasad, P.W.14 is Md. Afroz, P.W.15 is Amulya Dhabal, P.W.16 is Baby Kumari, P.W.17 is Manoj Kumar Mahanty, P.W.18 is Rajeev Chawla, P.W.19 is Sanjay Chawla, P.W.20 is Tara Nand Singh and P.W.21 is Surendra Paswan. 6. Over and above, the oral evidence, documents and materials were also exhibited. B.K. Sahni, P.W. 12 is Ranjeet Prasad, P.W.13 is Sunil Prasad, P.W.14 is Md. Afroz, P.W.15 is Amulya Dhabal, P.W.16 is Baby Kumari, P.W.17 is Manoj Kumar Mahanty, P.W.18 is Rajeev Chawla, P.W.19 is Sanjay Chawla, P.W.20 is Tara Nand Singh and P.W.21 is Surendra Paswan. 6. Over and above, the oral evidence, documents and materials were also exhibited. Following are the documents, which have been exhibited:- Exhibit 1 is the Written Report Exhibit 1/1 is the signature of Rajendra Prasad on the Written Report Exhibit 2 is the Post Mortem Report Exhibit 2/1 is the signature of Dr. B.K. Sahani on the Postmortem Report Exhibit 2/2 is the signature of Dr. A.K. Mishra on the Postmortem Report Exhibit 3 is signature of Rajendra Prasad on the Inquest Report Exhibit 3/1 is the signature of Anup Prasad on the Inquest Report Exhibit 3/2 is the signature of Roshan Ekka on the Inquest Report Exhibit 3/3 is the signature of Anup Prasad in Seizure List Exhibit 3/4 is the signature of Manoj Kumar Mohanty in Seizure List Exhibit 3/5 is the signature of Roshan Ekka in Seizure List. Exhibit 3/6 is the signature of Anup Prasad in Seizure List. Exhibit 3/7 is the signature of Bhola Prasad in Seizure List. Exhibit 3/8 is the signature of Roshan Ekka in Seizure List Exhibit 3/9 is the signature of Anup Prasad in Seizure List Exhibit 3/10 is the signature of Bhola Prasad in Seizure List Exhibit 3/11 is the signature of Roshan Ekka in Seizure List Exhibit 4 is the Formal F I R Exhibit 5 is the endorsement in written report Exhibit 6 is the Death Inquest Report Exhibit 7 is the Confessional Statement of accused Roshan Ekka Exhibit 8 is the seizure list of blue jeans pant. Exhibit 8/1 is the seizure list of dry blood Exhibit 8/2 is the seizure list of Gainta, Kudal, long iron sabal Exhibit 9 is the requisition for sending exhibits to F.S.L. (permission letter) Exhibit 9/1 is the application to Director, F.S.L., Ranchi (carbon sheet) Exhibit 9/2 Application on Carbon Process for F.S.L. dt. 05.01.2005 Exhibit 10 is the Central F.S.L. Report 7. The material exhibits on behalf of the prosecution are as follows:- Material Exhibit I is the wooden box. 05.01.2005 Exhibit 10 is the Central F.S.L. Report 7. The material exhibits on behalf of the prosecution are as follows:- Material Exhibit I is the wooden box. Material Exhibit I to I/3 are sealed envelops Material Exhibit I/4 is the Full Pant Material Exhibit I/5 is the sealed bottle Material Exhibit II is Gainta Material Exhibit II/1 Kudal Material Exhibit II/2 Sabal 8. All the documents and material exhibits were admitted in evidence without objection, save and except the confessional statement of the accused Roshan Ekka. 9. After closure of the evidence, the statement of accused-appellants were recorded under Section 313 of the Code of Criminal Procedure. 10. The Trial Court, after analyzing the evidence, after going through the records of the case and after hearing the arguments, found the appellant Roshan Ekka guilty of offence under Sections 364A, 302 and 201 of the Indian Penal Code, and appellant Rajesh Ekka guilty of offence under Sections 302/34 and 201 of the Indian Penal Code, and convicted them accordingly. Appellant Roshan Ekka was sentenced to undergo rigorous imprisonment for life with a fine of Rs.25,000/- for offence under Section 364A of the Indian Penal Code, rigorous imprisonment for life with a fine of Rs.25,000/- for offence under Section 302 of the Indian Penal Code and 3 years rigorous imprisonment with a fine of Rs.5,000/- for offence under Section 201 of the Indian Penal Code. Appellant Rajesh Ekka has been sentenced to undergo life imprisonment with a fine of Rs.15,000/- for offence under Section 302 of the Indian Penal Code and rigorous imprisonment for 3 years with fine of Rs.5,000/- for offence under Section 201 of the Indian Penal Code. 11. Challenging the said judgment of conviction and the order of sentence imposed upon these appellants, the present appeal has been preferred by both the appellants. 12. The counsel appearing on behalf of the appellants submits that the entire case is based on circumstantial evidence and the circumstances are so weak that the appellants could not have been convicted in this case. It is submitted that there are no eye witness to the occurrence and no one has seen that the appellants had taken away or kidnapped Vishal, the minor son of the informant. It is submitted that there are no eye witness to the occurrence and no one has seen that the appellants had taken away or kidnapped Vishal, the minor son of the informant. He submits that the prosecution has heavily relied upon the confessional statement of the accused-appellant Roshan Ekka, which is absolutely illegal as the statement made by him cannot be used against him and the co-appellant. It is submitted that no doubt the dead body was recovered from the house where these appellants were living, but, mere recovery of the dead body will not point finger of guilt upon these appellants as there were several other persons, who were living in the house. It is also argued that the first information report is not corroborated by evidence of other witnesses. It has also been argued that only on the basis of suspicion, these two appellants have been convicted in the case. It is lastly submitted that chain of circumstances is not complete in this case, thus the only conclusion, which the trial would have reached, is about the innocence of these two appellants and thus, they should have been acquitted. 13. Learned A.P.P. for the State submits that the prosecution has proved the case beyond all reasonable doubts. It is argued that though it is a case of circumstantial evidence, yet the chain of circumstances is complete and all the circumstances lead to only one conclusion, i.e., the guilt of these two appellants. It is argued that the body of the child was recovered from the premises of these two appellants and the material exhibits and the forensic report along with the evidence of the doctor, clearly suggests that it is the appellants, who have committed the murder of the deceased after kidnapping him. Learned A.P.P. relied upon the evidence of the witnesses who have stated that the deceased was last seen in the company of the appellant Roshan Ekka, immediately before his disappearance and on the next date itself, the body was recovered from his house, which clearly proves that it is the appellant, who has murdered the deceased after kidnapping him. He lastly submits that the Trial Court has correctly convicted the appellants and have sentenced them. 14. We have heard the arguments of both the sides and have carefully scrutinized the records of the case and have gone through the evidence adduced by the prosecution. 15. He lastly submits that the Trial Court has correctly convicted the appellants and have sentenced them. 14. We have heard the arguments of both the sides and have carefully scrutinized the records of the case and have gone through the evidence adduced by the prosecution. 15. P.W.1 is Bhola Prasad, the uncle of the deceased. He stated that on the date of incident, he was not in town. He stated that when he returned, he came to know that his nephew Vishal went missing and did not return after playing. He stated that the appellant No.1 on the next day came and inquired about Vishal and advised them to publish a missing report in the news paper and also get the same announced through television etc. He stated that he came to know from a friend of Vishal that on 03.10.2004, they were playing and thereafter, Vishal and Roshan Ekka were seen going towards Roshan's house. 16. P.W.2 is Kishor Prasad. He stated that Vishal went missing. He stated that the mother of the child informed the police station on the same evening. He further stated that friend of Vishal told them that when they were playing, the appellant No.1 Roshan Ekka was seen in a suspicious manner near them and thereafter he had seen Vishal and appellant No.1 going to house of appellant No.1. They went to the house of the appellants, but, did not get any response from there. On seeing their behaviour, this witness got suspicious. This witness proved the written report, which forms the basis of the formal first information report. 17. P.W.3 is Dr. B.K. Singh, who was the member of the Medical Board, which conducted the postmortem of the deceased. He stated that following injuries were found on the person of the deceased: External (1) Rigor mortis was absent. Body swollen, mud and sand present over clothes and body. Greenish black discoloration present over abdomen and chest (2) bleeding from nose, (3) Blackish green colour bruise present around neck, 1.75 c.m. in breadth, .5” in length. Bruise is horizontally placed. (4) leakage of faeces from anus present. No injury was noted over thigh and perineum. On Dissection Head and Neck – Blood is present in subcutaneous tissue in neck. Just underneath bruise mark. Five tracheal rings were broken. Trachea contains blood. Thorax – Lung conjusted. Heart – Rt chamber full, Lt. Empty. Bruise is horizontally placed. (4) leakage of faeces from anus present. No injury was noted over thigh and perineum. On Dissection Head and Neck – Blood is present in subcutaneous tissue in neck. Just underneath bruise mark. Five tracheal rings were broken. Trachea contains blood. Thorax – Lung conjusted. Heart – Rt chamber full, Lt. Empty. Abdomen – Stomach undigested dal and bhat. Liver, spleen, kidney-NAD. Urinary bladder empty. He stated in his evidence that the death was due to asphyxia and may be due to throttling and the time of death is between 48 – 96 hours. He stated that postmortem was conducted on 06.10.2004. He also deposed that the injuries are sufficient to cause death in ordinary course of nature. The postmortem examination report was marked as Exhibit 2 and signatures of other doctors were marked as Exhibits 2/1 and 2/2 respectively. 18. P.W.4 is Rajendra Prasad, the informant in this case and father of the deceased. He stated that his son went missing on 03.10.2004 and he got the said information after he returned from his duty. He along with others searched for the boy, but, in vain. He stated that he reported to the police. As per his evidence, on 05.10.2004, the dead body was found buried in the courtyard of the appellants. He stated that the dead body was recovered on the statement of the appellant Roshan Ekka. He stated that appellant No.2 in presence of appellant No.1, after excavating earth, exhumed the body. The signature of this witness was exhibited as Exhibit 3 in the Inquest Report along with signature of Anup Prasad. In his presence, the appellant No.1 had put his signature in the Inquest Report, which was marked as Exhibit 3/2. He identified the appellants who were present in the Court. The signature in the written report was also exhibited as Exhibit 1/1. 19. P.W.5 is Anup Prasad, who supported the prosecution case. He stated that he got information that the deceased was last seen with appellant No.1 Roshan Ekka and people went in search of the boy to the house of the appellant No.1 where they were misbehaved with. He stated that Roshan Ekka was arrested and thereafter he confessed his guilt and after his confession and at his instance the dead body was recovered, which was buried in the courtyard of Roshan Ekka. He stated that Roshan Ekka was arrested and thereafter he confessed his guilt and after his confession and at his instance the dead body was recovered, which was buried in the courtyard of Roshan Ekka. He was one of the witnesses to the inquest. He stated that several materials and tools, used for digging, were recovered from the house of the appellants at the instant of Roshan Ekka. He identified his signature on the seizure list, which was prepared by the police. As per his statement, not only tools were seized, but, blood stained earth and blue colour jeans pant with blood stains were also seized. 20. P.W.6 Shakti Prasad is the brother of the deceased, who narrated that his brother has been killed. He stated that his brother went missing. He further stated that he had given statement before the police. He stated that Roshan is not a man of good character. He identified appellant No.1, who was present in Court. 21. P.W.7 is George Bankira, who was the friend of the deceased and was playing with him. He is a child witness. The Court found this witness to be competent enough to depose as he understood the questions which were put to him. He stated that they were playing football and Vishal was sitting there. He further stated that appellant No.1 was just sitting behind Vishal (deceased). He stated that at 06.30 p.m. they went to their respective houses and Vishal also went away. 22. P.W.8 is Deonarayan Munda. He is also a child witness. He was also found fit to depose before the Court. This witness was declared hostile, but, in cross examination, he stated that Vishal was killed by Roshan, who was also arrested by police. 23. P.W.9 is Radha Devi, who is the mother of the deceased. She supported the prosecution case and stated that her son went missing on 03.10.2004 and she gave information to the police. She gave details of the apparrels, which were worn by Vishal when he went missing. 24. P.W.10 and 11 are Dr. A.K. Mishra and Dr. B.K. Sahani respectively. Both of them were members of the Medical Board. They identified their respective signatures in the post mortem report and testified that they have conducted the postmortem along with P.W.3. 25. P.W.12 is Ranjit Prasad. He stated that he got information that Vishal is missing. 24. P.W.10 and 11 are Dr. A.K. Mishra and Dr. B.K. Sahani respectively. Both of them were members of the Medical Board. They identified their respective signatures in the post mortem report and testified that they have conducted the postmortem along with P.W.3. 25. P.W.12 is Ranjit Prasad. He stated that he got information that Vishal is missing. He stated that George had informed that when the children were playing, the appellant No.1 was sitting along with Vishal. To a court question, he stated that Roshan was of criminal nature. 26. P.W.13 is Sunil Prasad. He stated that he got information that Vishal was last seen with Roshan Ekka. He went to the house of Vishal where on querry he was informed that Vishal was not found. 27. P.W.14 is Md. Yusuf. He turned hostile. He stated that he was asked to sign a paper. He does not know what was the content of the said document. 28. P.W.15 Amulya Dhawal is a tendered witness. 29. P.W.16 Baby Kumari is the sister of the deceased. She stated that Vishal went out to play, but, did not return. She stated that the other children stated that Roshan Ekka was sitting with Vishal. She also accompanied the other persons to the house of Roshan Ekka and when they inquired about Vishal, mother of the appellant misbehaved with them. She stated that at that point, she suspected that these appellants have hand in the disappearance of the boy. 30. P.W.17 is Manoj Kumar Mahanty. He stated that in his presence, body of Vishal was recovered from the house of the appellants. He stated that after excavating earth, the body was recovered. He further stated that one spade and other tools used in digging earth were recovered from the house of these appellants. He admits that he is a signatory to the seizure list. He admits that he had given statement before the police. 31. P.W.18 Rajeev Chawla and P.W.19 Sanjay Chawla are tendered witnesses. 32. P.W.20 Tara Nand Singh is the investigating officer. He proved the formal first information report and his signature on the same. He stated that after taking over the investigation, he inspected the place of occurrence. He stated that his investigation had revealed that Roshan Ekka was sitting and watching the children playing. 32. P.W.20 Tara Nand Singh is the investigating officer. He proved the formal first information report and his signature on the same. He stated that after taking over the investigation, he inspected the place of occurrence. He stated that his investigation had revealed that Roshan Ekka was sitting and watching the children playing. He recorded the statement of George Bankira (P.W.7), Deonarayan Munda (P.W.8), who were playing in presence of Vishal (the deceased). He took Roshan Ekka (the appellant No.1) for examining him, who, after interrogation, confessed his guilt and stated that he kidnapped the boy and thereafter he murdered him. He stated that his confessional statement was recorded. He deposed that Roshan Ekka confessed that while committing murder by throttling the neck, blood came out and there were blood stains in his pant, which he had kept in his house. He also confessed that he buried the dead body in his campus. He also stated that materials, which were used by him in digging earth, have been concealed by him in his house, which can be recovered. He stated that he did all these things to extract money from the family of the deceased. He was taken by this witness to his house from where on his pointing out, the body was recovered. He also stated that on pointing out of appellant No.1, blue jeans pant with blood stains was recovered, which was also seized. He also seized blood stains, which were fallen on the floor. All these materials were seized by him and seizure list was prepared. Thereafter, he sent the dead body for postmortem and obtained postmortem report and recorded the statement of several witnesses. He stated that he obtained the blood sample of the deceased and sent the same along with the blood stained pant of the appellant No.1 for forensic/DNA test at Kolkata. He stated that he arrested Roshan and Rajesh Ekka and produced them in Court and submitted charge-sheet against these two persons, keeping investigation against others open. He was transferred and before his transfer, he handed over investigation to Sahadeo Prasad. He also stated that except spade and digging materials all the other materials, which he seized, were sent to the forensic laboratory. He stated that all the materials were kept in Malkhana, which he could not produce on the date of his examination as incharge of malkhana was on leave. He also stated that except spade and digging materials all the other materials, which he seized, were sent to the forensic laboratory. He stated that all the materials were kept in Malkhana, which he could not produce on the date of his examination as incharge of malkhana was on leave. He stated that witness Deonarayan Munda, also during investigation, told him that Roshan Ekka was sitting with the deceased when they were playing. He stated that he had taken permission from the Court for sending the exhibits to Forensic Science Laboratory. He exhibited the forwarding letters through which the materials were sent. He stated that he has recorded in paragraphs 28 and 29 of the Case Diary that Roshan Ekka has stated that he had committed murder of the child after giving the same to the knowledge of appellant No.2. He stated that the statement of Roshan Ekka was recorded and his signature was taken. 33. P.W.21 is Surendra Paswan, who had obtained the report from the Forensic Science Laboratory, Kolkata and produced the same before the Superintendent of Police. He identified the said report and the same was marked as Exhibit 10. He identified the materials, documents and reports which were returned by the Forensic Science Laboratory and exhibits in this case. The full pant, several envelops containing FSL Reports, the reports, test tubes containing blood samples were also exhibited. He also produced the spade and other digging tools in the Court, which were also marked exhibits. 34. After analysing the evidence, which has been adduced by the prosecution, we find that the witnesses, i.e., P.W.1, P.W.2, P.W.4, P.W.6 and P.W.9 have categorically stated that Vishal went to play in the afternoon, but did not return. They stated that search was made and they went to the house of the appellants, where they were misbehaved with. It has also come in evidence that Roshan Ekka was seen sitting with the deceased when the children were playing. The witnesses also state that George Bankira (P.W.7) told them that Vishal (the deceased) was seen going with Roshan Ekka. George Bankira (P.W.7) has stated that the appellant Roshan Ekka was sitting with Vishal when even when all of them went towards the home. P.W.7 and P.W.8 have also stated in the same nod that Roshan Ekka was sitting with Vishal. George Bankira (P.W.7) has stated that the appellant Roshan Ekka was sitting with Vishal when even when all of them went towards the home. P.W.7 and P.W.8 have also stated in the same nod that Roshan Ekka was sitting with Vishal. Though P.W.8 was declared hostile, yet, in course of cross-examination, we find that he stated that Roshan Ekka had killed Vishal. Thus, it is coming in the evidence adduced by the prosecution that Vishal was last seen with the appellant No.1 on 03.10.2004. The report about disappearance of the boy was given to the police on the evening itself by the mother. On 04.10.2004, search was made, but, whereabouts of the boy was still unknown thus, P.W.4 reported the matter to the police, which is the first information report. The police, immediately, swung into action and started interrogating several persons and on that day evening took Roshan Ekka for interrogation. It is the prosecution case that Roshan Ekka confessed the guilt and he led the police to his house from where dead body was recovered. The body was buried in the courtyard of Roshan Ekka which was exhumed only at the instance of him. It has also come in evidence of the witnesses that blood stained jeans pant was recovered from the house of Roshan Ekka, which belonged to him. On pointing out by Roshan Ekka, the digging tools were also recovered from his house. The investigating officer has supported the aforesaid fact in his evidence. It is also evident from the evidence that blood stains was collected by the investigating officer. All these materials were sent for examination. The postmortem was conducted on the dead body. The postmortem report suggests that soil and sand was present over the clothes and also over the body and there was bleeding from the nose. This clearly proves the fact that the body was exhumed. As mentioned earlier, his body was exhumed at the instance of appellant No.1 Roshan Ekka. The investigating officer stated that the said Roshan Ekka had confessed that he pressed the neck of the deceased and killed him and while committing such act, blood came out and stuck to his pant. This pant was recovered from the house of Roshan Ekka at his instance. The postmortem report also suggests that the blood came out from the nose of the boy. This pant was recovered from the house of Roshan Ekka at his instance. The postmortem report also suggests that the blood came out from the nose of the boy. Thus, there is a corroboration of the aforesaid fact and the statement of the accused. The doctor also found that the boy died, may be due to throttling, which is also the prosecution case. The FSL report, which is Exhibit 10, has been brought on record. As per the said report, Exhibit 'A' is the blood stains on the blue jeans pant, Exhibit 'B' is the traces of blood taken in a cotton swab and Exhibit 'C' is the blood sample of deceased Vishal, Exhibit 'D' is the blood sample of Radha Devi (the mother of the deceased) and Exhibit 'E' is the blood sample of the father Rajendra Prasad. From the report, it is evident that the blood samples pertains to the deceased. 35. Thus, the circumstances in this case are strong enough which only leads to the conclusion that accused-appellant Roshan Ekka kidnapped the deceased and killed him and thereafter to disappear the evidence, has buried the dead body in his courtyard. Thus, conviction of accused-appellant Roshan Ekka is absolutely justified and so is the sentence imposed upon him. 36. So far as the appellant No.2, Rajesh Ekka is concerned, after scrutinising the entire evidence, we find that there is no material to implicate this appellant in this case. The only material, which has come against this appellant is that accused-appellant Roshan Ekka, in his confessional statement has stated that his plan of kidnapping the boy and murdering him was known to this appellant (Rajesh Ekka) and after the murder was committed, he was informed about the same. Another material, which is against this appellant Rajesh Ekka is that he participated in exhuming the body of the deceased from their courtyard. These two evidences are not enough to convict this appellant Rajesh Ekka. At best, it can be said that before this appellant (Rajesh Ekka), accused-appellant Roshan Ekka has made a confession about his guilt. Thus, by no stretch of imagination, appellant No.2 (Rajesh Ekka) can be said to be an accused in this case. Thus, his conviction under Sections 302/34 and 201 of the Indian Penal Code cannot be sustained in absence of any evidence. Thus, by no stretch of imagination, appellant No.2 (Rajesh Ekka) can be said to be an accused in this case. Thus, his conviction under Sections 302/34 and 201 of the Indian Penal Code cannot be sustained in absence of any evidence. Thus, we hold that conviction of appellant No.2 is bad and he is liable to be acquitted of the charges. 37. On basis of what has been discussed above, we hold that conviction of appellant No.1 (Roshan Ekka) is justified and judgment of conviction dated 18th day of August, 2007 and order of sentence dated 21st day of August, 2007 passed by the Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No.33 of 2005, so far it relates to appellant No.1 (Roshan Ekka) is upheld. So far as appellant No.2 (Rajesh Ekka) is concerned, there is no material against him, as such, his conviction and sentence is set aside and he is acquitted of the charges. He should be forthwith released from custody, if he is not wanted in any other case. The appellant No.1, who is in custody, should serve the sentence. 38. Thus, this appeal is allowed in part. A copy of this judgment and the entire Lower Court Records be sent to the Trial Court forthwith.