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2019 DIGILAW 2502 (MAD)

Rafique v. State of U. P.

2019-09-20

RAM SURAT RAM (MAURYA), UMESH KUMAR

body2019
JUDGMENT : Ram Surat Ram (Maurya), J. 1. Heard Sri Mohd. Sabbir, for the appellants in both the appeals and Sri Anil Kumar Kushwaha, A.G.A., for State of U.P. 2. Rafique has filed Criminal Appeal No. 2837 of 2011 and Abdul Salam Ansari @ Salman Khan has filed Criminal Appeal No. 3447 of 2011 from the judgment of Additional Sessions Judge, Court No. 19, Aligarh, dated 18.04.2011, passed in S.T. No. 82 of 2005, State vs. Abdul Salam Ansari @ Salman Khan and another [arising out of Case Crime No. 413 of 2004, under Section 364, 302, 201, 120-B of Indian Penal Code, 1860 (hereinafter referred to as the 'IPC')] and S.T. No. 385 of 2005, State vs. Abdul Salam Ansari @ Salman Khan, (arising out of Case Crime No. 414 of of 2004, under Section 25 of Arms Act, 1959, police station Civil Lines, district Aligarh, convicting and sentencing for ten years rigorous imprisonment and fine of Rs. 5000/- under Section 364 IPC to Abdul Salam Ansari @ Salman Khan, imprisonment for life and fine of Rs. 10000/- each under Section 302 IPC and five years imprisonment and fine of Rs. 1000/- each under Section 201 IPC to Abdul Salam Ansari @ Salman Khan and Rafique, both, with default stipulations. 3. On the written complaint (Ex-Ka-6) of Bholu (PW-2), FIR (Ex-Ka-1) of Case Crime No. 413 of 2004 was registered under Section 364 IPC, at P.S. Civil Lines, district Aligarh on 25.09.2004 at 18:30 hours, by Constable Clerk Bharat Singh (PW-1), against Abdul Salam Ansari @ Salman Khan. It has been stated in the FIR that the informant Bholu son of Damodar Prasad, by caste Kumhar, was resident of Chherat, district Aligarh. His sister Smt. Yasoda was married to Ram Singh, resident of village Jataula, PS Pahasu, district Buland Shahar. Ram Singh, his brother-in-law, died after 7-8 years after his marriage. One daughter namely Radha, aged about 7 years, was born to his sister. After becoming widow, Smt. Yasoda was living at his house. From about 7-8 months, she was working as a labourer at Al-Barkat School. Salman, resident of Bihar was a contractor of the labourers at that place. A building of Shahnawaj was being constructed at friends colony, Sir Syed Nagar. His sister was working as a labourer in that building and she was living in the house of Shahabuddin at Dodpur along with her daughter. Salman, resident of Bihar was a contractor of the labourers at that place. A building of Shahnawaj was being constructed at friends colony, Sir Syed Nagar. His sister was working as a labourer in that building and she was living in the house of Shahabuddin at Dodpur along with her daughter. Salman, the contractor was also living in that building. The informant, his mother Smt. Kela Devi and his brother Ganga Ram came to two-four times to know the whereabouts of Yasoda and inquired from Salman, then he used to make some pretext. Salman, the contractor, was not giving any satisfactory reply. He has full belief that Salman, the contractor has vanished Yashoda and her daughter somewhere. After lodging report, legal action be taken. 4. After lodging of FIR, investigation was handed over to SI Arsad Ali Tomar. But Superintendent of Police (City) Aligarh, directed Inspector Hari Ram Verma (PW-5), who was In-charge of Special Operation Group, to investigate the matter. Inspector Hari Ram Verma (PW-5) along with his team and SI Arsad Ali Tomar, Constable Ved Prakash, informant Bholu and a witness Chandra Pal Singh started to search of the accused Salman, who was arrested at Matis road on 25.09.2004 at 20:15 hours. On search of his body, a country made pistol of 315 bore, along with a live cartridge in its barrel was recovered, of which recovery memo (Ex-Ka-8) was prepared. On interrogation, he confessed his guilt and informed that he had kept Yasoda as his wife. But she had developed bad character due to which he had left her and she was living with her daughter Radha, separately. On 14.08.2004, several hot talks took place between them. Then he took her daughter Radha and went to Green Apartment, Sir Syed Nagar. Thereafter, he called Yashoda at that place, sending his friend Rafique. He asked Abdulla and Imtiyaz, who were working with him, to get 10 K.G. salt. Rafique along with Yasoda came to Green Apartment at about 10:00 PM. By that time, he got Radha to sleep at third floor, after giving meal to her. After coming, Yasoda began to demand her daughter Radha. On which he and Rafique fell down Yasoda on earth and with the help of a scarf, throttled and killed her. In the meantime, Mukhtiyar came in his room. He was sent to the place of chaukidar under some pretext. After coming, Yasoda began to demand her daughter Radha. On which he and Rafique fell down Yasoda on earth and with the help of a scarf, throttled and killed her. In the meantime, Mukhtiyar came in his room. He was sent to the place of chaukidar under some pretext. He and Rafique buried the dead body of Yasoda, keeping it in a sack, in west side of the apartment, digging the earth. They also threw salt on the dead body and disposed off it, putting earth on it. Her daughter Radha was kept at Etah. He could recover Radha and the dead body of Yasoda. 5. After recording statement of Abdul Salam Ansari, Inspector Hari Ram Verma (PW-5) along with his team i.e. Constable Raj Kumar, Rajesh Kumar, Omveer, Ashok Kumar, Jaikesh and SI Arsad Ali Tomar, Constables Ved Prakash and Virendra Singh, the informant Bholu and a witness Chandra Pal Singh came to Green Apartment, Sir Syed Nagar. Where he arrested the accused Rafique also. On the pointing out of Abdul Salam Ansari and Rafique, they recovered the dead body of Yasoda, on 25.09.2004 at 23:45 hours and prepared its recovery memo (Ex-Ka-9), which was buried, in the open land in north-west side of the building. The dead body was fully decomposed but it was identified by the informant and his family members through her salwar and suit, which were on her body. 6. After recovery of the dead body, Section 302 and 201 IPC was added, in Case Crime No. 413 of 2004. SI Arsad Ali Tomar conducted Inquest (Ex-Ka-20) of the dead body on 26.09.2004 in between 00:30 hours to 1:30 hours. He prepared photo lash, challan lash, letters to the authorities etc. (Ex-Ka-17 to Ex-Ka-19) for postmortem and dispatched the dead body through Constables Ved Prakash and Virendra Singh. Dr. R.R. Tyagi (PW-4) conducted autopsy of the dead body on 26.09.2004 at 2:00 PM and prepared Postmortem Report (Ex-Ka-7), in which following ante-mortem injuries were noted:- (i) Ligature mark, interrupted on back and on left side of neck 25x 4 cm. In internal examination; body was badly decomposed, veins not recognizable. All liquefied; brain and its membranes cannot be said to be congested as it is liquefied. According to Doctors opinion cause of death was 'asphyxia as a result of strangulation'. 7. SI Abdul Salam (PW-6) undertook investigation from 26.09.2004. In internal examination; body was badly decomposed, veins not recognizable. All liquefied; brain and its membranes cannot be said to be congested as it is liquefied. According to Doctors opinion cause of death was 'asphyxia as a result of strangulation'. 7. SI Abdul Salam (PW-6) undertook investigation from 26.09.2004. He copied the Inquest in case diary. The accused Abdul Salam Ansari became ready to recover Radha daughter of Yasoda. He along with the accused Abdul Salam Ansari and Ganga Ram came to Madersa Isha-Tul-Aloom, Kidwai Nagar, PS Kotwali district Etah, where Radha was found playing in Madersa campus. Radha was recovered from that place on 26.09.2004 and she was identified by Ganga Ram (PW-3). Her recovery memo (Ex-Ka-10) was prepared. Radha was handed over in custody of Bholu, the informant on 26.09.2004, vide Memo (Ex-Ka-11). He made spot inspection of the place of recovery of Radha and the place of recovery of dead body of Yashoda and prepared site-plans (Ex-Ka-12, Ka-13 and Ka-14) on 26.09.2004. He arrested the accused Mukhtar on 27.09.2004, recorded his statements and send him in jail. On 03.10.2004, he copied Postmortem Report in case diary and submitted charge sheet (Ex-Ka-15), on same day, against Abdul Salam Ansari, Rafique and Mukhtar, on which, cognizance was taken. 8. On the basis of recovery memo (Ex-Ka-8), FIR (Ex-Ka-3) of Case Crime No. 414 of 2004, under Section 25 of Arms Act, 1959, was registered on 25.09.2004 at 21:30 hours, by Constable Clerk Bharat Singh (PW-1). HCP Anwar Ali investigated this case. After recording, statements of SOG In-charge Hari Ram Verma, SI Arshad Ali Tomar, the constables Rajesh Shukla, Jaideo, Raj Kumar, Omvir, Ashok Kumar and Ved Prakash, he submitted charge sheet against Abdul Salam Ansari, on 29.09.2004. Thereafter, he obtained sanction for prosecution from District Magistrate on 27.11.2004. 9. On committal, the cases were registered as S.T. No. 82 of 2005, State Vs. Abdul Salam Ansari and others, under Section 364, 302, 201, 120-B IPC and S.T. No. 385 of 2005, State Vs. Abdul Salam Ansari, under Section 25 of Arms Act, 1959. Additional Sessions Judge framed charges against the accused in S.T. No. 82 of 2005 on 07.04.2005 and in S.T. No. 385 of 2005, on 04.05.2005. The accused pleaded "not guilty" and claimed for trial. Abdul Salam Ansari, under Section 25 of Arms Act, 1959. Additional Sessions Judge framed charges against the accused in S.T. No. 82 of 2005 on 07.04.2005 and in S.T. No. 385 of 2005, on 04.05.2005. The accused pleaded "not guilty" and claimed for trial. In order to prove the charges, the prosecution examined Constable Bharat Singh (PW-1), to prove check FIR and G.D. entry, Bholu (PW-2), the informant and brother of the deceased, Ganga Ram (PW-3), the other brother of the deceased, Dr. R.R. Tyagi (PW-4), to prove Postmortem Report (Ex-Ka-7), Inspector Hari Ram Verma (PW-5), who had arrested the accused Abdul Salam Ansari and Rafique and recovered dead body of Yasoda and SSI Abdul Salam (PW-6), Investigating Officer and filed documentary evidence. 10. All the incriminatory materials and facts were put to the accused, under Section 313 Cr.P.C. They denied the evidence and materials and claimed false implication. They did not adduce any evidence. 11. Additional Sessions Judge, after hearing the parties, by the impugned judgment held that although Bholu (PW-2) did not support the prosecution case in his cross-examination, on 05.10.2007 and was declared hostile by the prosecution but in his statement-in-chief as recorded on 04.08.2007, he had fully supported the prosecution case. Although there were some contradictions in the statements of the witnesses but these contradictions are not material. The charges against the appellants have been proved from the evidence on record. There was no evidence against Mukhtar Ansari. Charge under Section 25 of Arms Act, 1959 was not proved. On these findings, he convicted the appellants and sentenced as mentioned above. Hence, these appeals have been filed. Mukhtar Ansari was acquitted. Abdul Salam Ansari was acquitted from the charges under Section 25 of Arms Act, 1959. Neither State of U.P. nor the informant have filed any appeal from acquittal. 12. In order to prove the charges, the prosecution has examined Bholu and Ganga Ram (PWs-2 and 3) as the witnesses of the fact. Bholu (PW-2) has stated that he had lodged FIR on 25.09.2004, at police station Civil Lines, district Aligarh, getting it scribed from Shashi Kumar Chauhan. His sister Yasoda was married to Ram Singh, resident of village Jataula, 14 years ago, from lodging FIR. Ram Singh, his brother-in-law, died after 7-8 years after his marriage. One daughter namely Radha, aged about 7 years, was born to Yashoda. His sister Yasoda was married to Ram Singh, resident of village Jataula, 14 years ago, from lodging FIR. Ram Singh, his brother-in-law, died after 7-8 years after his marriage. One daughter namely Radha, aged about 7 years, was born to Yashoda. Yasoda was working as a labourer at Al-Barkat School and was living with him at village Chherat. A building of Shahnawaj was being constructed at Sir Syed Nagar. His sister was working as a labourer in that building. Abdul Salman was a contractor of the labourers and he with his sister used to come at his house. Yashoda, his sister and Radha, his niece were not traceable for about 15 days. He inquired from Abdul Salam that his sister was working as a labourer with him and his sister and niece were not traceable for about 15 days, where they had gone. Then he made some pretext and did not give any reply. On which suspicion arose to them, against Abdul Salam that either he had killed them or vanished. He gave the complaint (Ex-Ka-6) to the police station, after getting it scribed and signed. Thereafter, he got Abdul Salam arrested, identifying him. The police recovered one pistol from Abdul Salam before him. Abdul Salam took him and the police personnels to Dodpur, where the building of Nawab Sahab was being constructed. Abdul Salam informed that he had buried the dead body of Yasoda Devi in vacant plot. That place was apart from the building. Abdul Salam, Rafique and one other person brought out the dead body, digging the earth from spade. His sister was bearing salwar and suit. He had identified the dead body with the clothes. Recovery memo of the dead body was prepared on the spot by daroga ji, which was signed by him and his brother and the police personnels. After conducting Inquest, the dead body was sent for postmortem. Thereafter, the police recovered Radha on the pointing out of Abdul Salam in presence of his brother Ganga Ram from a school at district Etah. On the next day, Radha was given in his custody and Naurangi Lal and Ganga Ram, the memo relating to handing over custody was signed by him. In cross-examination, he has stated that his sister used to come to work from his house daily at about 8:00 AM and used to return to his house about 5:30 PM. On the next day, Radha was given in his custody and Naurangi Lal and Ganga Ram, the memo relating to handing over custody was signed by him. In cross-examination, he has stated that his sister used to come to work from his house daily at about 8:00 AM and used to return to his house about 5:30 PM. His village Chherat was at a distance of about 6-7 kilometer from the place, where she was working. In cross-examination, held on 05.10.2007, he has stated that his sister was a quarrelsome lady. She came to Aligarh, after quarrel, where she began to do labourer work. She was previously working at Al-Barkat, thereafter, came to Dodpur. At the time of incident, she was working at Dodpur. He used to come to meet Yashoda at an interval of 15-20 days. He had come to meet 15 days prior to the incident. Thereafter, at about 20-25 days, he came to know that she was killed. The police came to him to identify the dead body. He identified the dead body at the police station. He cannot say that who had killed his sister Yashoda. He did not identify the accused Rafique, Abdul Salam and Mukhtar, present in the Court. Nothing was recovered before him. At this stage he was declared hostile and cross-examined by DGC (Cr). His statement was recorded on 04.08.2007 in this Court. Whatever was stated by him, was recorded. He had stated that "Abdul Salam and his sister used to come to his house. From 15 days his sister and niece were not traceable." His, this statement was correct. He has also stated that "He had inquired from Abdul Salam that his sister was working as a labourer with him and his sister and niece were not traceable for about 15 days, where they had gone. Then he made pretext, on which they suspected upon him." His, this statement was correct. It is correct to say that he did not know Abdul Salam. After his statement as recorded on 04.08.2007, on the intervention of the villager, he had made compromise with Abdul Salam. Due to this compromise, he had disowned his earlier statement. In his cross-examination held on 02.11.2010, he has again repeated same statement, as given by him on 05.10.2007. 13. After his statement as recorded on 04.08.2007, on the intervention of the villager, he had made compromise with Abdul Salam. Due to this compromise, he had disowned his earlier statement. In his cross-examination held on 02.11.2010, he has again repeated same statement, as given by him on 05.10.2007. 13. Ganga Ram (PW-3) has stated that on 25.09.2004, the police of Civil Lines, Aligarh had gone to Etah, taking Abdul Salam. Islam and Syed did not go with him. Abdul Salam took the police and him to a madersa. Radha, his niece was found playing in the campus of that school. Radha recognized him and Abdul Salam and entangled with him. He did not know as to how she was addressing Abdul Salam. The police prepared recovery memo and obtained his signature on it. In cross-examination, he has stated that the police took them in a Bolero vehicle. Along with him, Naurangi Lal, Abdul Salam and the police, including driver there were total six person, had gone there. He get information, one day before from Civil Line, police. He was living at Chherat. He came to Aligarh from Chherat in night and stayed at the police station, Civil Lines, during night. On reaching at madersa, first of all, they met with the teachers of madersa. Radha was given in his custody at the police station Civil Lines. He denied the suggestion that he had not gone to Etah and Radha was met to him at the police station Civil Lines. 14. We have considered the arguments of counsel for the parties and perused the record. According to the prosecution, the deceased Yashoda was a widow lady. She was living with her brothers Bholu and Ganga Ram at village Chherat, district Aligarh along with her daughter Radha (aged about 7 years), after becoming widow. In order to earn her livelihood, she used to work as a labourer in an under-construction buildings. She was working in the building of Shahnawaj, at Friends colony, Sir Syed Nagar, Dodpur, Aligarh, from 2-2-1/2 months, under the accused Abdul Salam Ansari, who was a contractor to supply the labourers, in construction work. Abdul Salam Ansari committed murder of Yasoda by strangulation and buried her dead body with the help of Rafique and other co-accused. He got admitted Radha in a madersa Isha-Tul-Aloom, Kidwai Nagar, Etah. Abdul Salam Ansari committed murder of Yasoda by strangulation and buried her dead body with the help of Rafique and other co-accused. He got admitted Radha in a madersa Isha-Tul-Aloom, Kidwai Nagar, Etah. On pointing out of Abdul Salam Ansari, the dead body of Yashoda was recovered on 25.09.2004 at 23:45 hours and Radha was recovered on 26.09.2004. There is no direct evidence. The prosecution case is based upon circumstantial evidence. First circumstance is Yasoda was working as a labourer, in an under-construction building of Shahnwaj at Friends colony, Sir Syed Nagar and was living with the accused Abdul Salam Ansari at Dodpur. Second circumstance is that on the pointing out of Abdul Salam Ansari, her dead body was recovered on 25.09.2004 at 23:45 hours and third circumstance is that on the pointing out of Abdul Salam Ansari, the daughter of Yasoda, namely Radha was recovered on 26.09.2004, from madersa Isha-Tul- Aloom, Kidwai Nagar, Etah. 15. Supreme Court in Satish Nirankari v. State of Rajasthan, (2017) 8 SCC 497 , has held that it is now well established, by a catena of judgments of this Court, that circumstantial evidence of the following character needs to be fully established:- (i) Circumstances should be fully proved. (ii) Circumstances should be conclusive in nature. (iii) All the facts established should be consistent only with the hypothesis of guilt. (iv) The circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused (see State of U.P. v. Ravindra Prakash Mittal, (1992) 3 SCC 300 ; Chandrakant Chimanlal Desai v. State of Gujarat, (1992) 1 SCC 473 ). It also needs to be emphasised that what is required is not the quantitative, but qualitative, reliable and probable circumstances to complete the claim connecting the accused with the crime. Suspicion, however grave, cannot take place of legal proof. In the case of circumstantial evidence, the influence of guilt can be justified only when all the incriminating facts and circumstances are found to be not compatible with the innocence of the accused or the guilt of any other person. 16. Although, in deferred cross-examination on 05.10.2007 & 02.11.2010, Bholu (PW-2), has disowned his earlier statement, but in cross-examination by Government Counsel, he had admitted that his statement dated 04.08.2007 was rightly recorded. 16. Although, in deferred cross-examination on 05.10.2007 & 02.11.2010, Bholu (PW-2), has disowned his earlier statement, but in cross-examination by Government Counsel, he had admitted that his statement dated 04.08.2007 was rightly recorded. As he had compromised with the accused as such he had disowned his previous statement on 05.10.2007 and 02.11.2010. As such, the Court can rely his statements as recorded on 04.08.2007. Supreme Court in Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 , has held that the delay in cross-examination has resulted in his prevarication from the examination-in-chief. But, a significant one, his examination-in-chief and the re-examination impels us to accept the testimony that he had gone into the octroi post and had witnessed about the demand and acceptance of money by the accused. In his cross-examination he has stated that he had not gone with Baj Singh to the Vigilance Department at any time and no recovery was made in his presence. The said part of the testimony, in our considered view, does not commend acceptance in the backdrop of entire evidence in examination-in-chief and the re-examination. 17. Bholu (PW-2) has lodged the FIR. In FIR he mentioned that a building of Shahnawaj was being constructed at friends colony, Sir Syed Nagar. His sister was working as a labourer in that building. She was living in the house of Shahabuddin at Dodpur along with her daughter. Salman, the contractor was also living in that building. The informant, his mother Smt. Kela Devi and his brother Ganga Ram came to two-four times to know the whereabouts of Yasoda and inquired from Salman, then he used to make some pretext. Bholu (PW-2) in his statement in Court has stated that Yasoda was working as a labourer at Al-Barkat School and was living with him at village Chherat. A building of Shahnawaj was being constructed at Sir Syed Nagar. His sister was working as a labourer in that building. Abdul Salman was a contractor of the labourers and he with his sister used to come at his house. Yashoda, his sister and Radha, his niece were not traceable for about 15 days. He inquired from Abdul Salam that his sister was working as a labourer with him and his sister and niece were not traceable for about 15 days, where they had gone. Then he made some pretext and did not give any reply. Yashoda, his sister and Radha, his niece were not traceable for about 15 days. He inquired from Abdul Salam that his sister was working as a labourer with him and his sister and niece were not traceable for about 15 days, where they had gone. Then he made some pretext and did not give any reply. In cross-examination, he has stated that his sister used to come to work from his house daily at about 8:00 AM and used to return to his house about 5:30 PM. His village Chherat was at a distance of about 6-7 kilometer from the place, where she was working. Ganga Ram (PW-3) is totally silent on this point. Investigating Officer, Abdul Salam (PW-6) has not collected any other evidence on this point. 18. From the statement of Bholu, it is not proved that Yasoda and her daughter were living in the house of Shahabuddin at Dodpur, where the Accused Abdul Salam Ansari was also living in that building. Entirely changing the version of FIR, Bholu has stated that Yasoda used to come on her work from his house at village Chherat, daily at 8:00 AM, which was at a distance of about 6-7 kilometer, from the place of her work and used to return his house at 5:30 PM. As such the circumstance that the deceased Yasoda was living in a house at Dodpur, in which the accused Abdul Salam Ansari was also living was not proved. 19. According to Bholu (PW-2) Yashoda, his sister and Radha, his niece were not traceable from about 15 days. He inquired from Abdul Salam that his sister was working as a labourer with him and his sister and niece were not traceable from about 15 days, where they had gone. Then he made some pretext and did not give any reply. In Postmortem Report (Ex-Ka-7), duration of death was mentioned as 45 days. In this context the identification of the dead body has also become relevant. Bholu (PW-3) has stated that he had identified the dead body from the clothes salwar and suit. In Inquest (Ex-Ka-20) and Postmortem Report (Ex-Ka-7), on the body of the deceased, only a salwar was found. The body was totally decomposed as the person of which, postmortem was done had died 45 days before the postmortem, while Yasoda was missing from 15 days. Identification of dead body was not reliable. In Inquest (Ex-Ka-20) and Postmortem Report (Ex-Ka-7), on the body of the deceased, only a salwar was found. The body was totally decomposed as the person of which, postmortem was done had died 45 days before the postmortem, while Yasoda was missing from 15 days. Identification of dead body was not reliable. As such the circumstance that on the pointing out of the accused Abdul Salam Ansari, a dead body was recovered has no importance, as it is not proved beyond reasonable doubt that the dead body was of Yasoda. 20. So far as recovery of Radha is concerned, SSI Abdul Salam (PW-6) has stated that he along with the accused Abdul Salam Ansari and Ganga Ram came to Madersa Isha-Tul-Aloom, Kidwai Nagar, PS Kotwali district Etah, where Radha was found playing in Madersa campus. Radha was recovered from that place on 26.09.2004 and she was identified by Ganga Ram (PW-3). Her recovery memo (Ex-Ka-10) was prepared. SSI Abdul Salam (PW-6) did not collect any evidence to prove that Radha was admitted in Madersa Isha-Tul-Aloom by the accused Abdul Salam Ansari. He had not verified the school records in this respect as such it is not proved beyond reasonable doubt that Radha was admitted in Madersa Isha-Tul-Aloom by the accused and none else. 21. So far as the accused Rafique is concerned, Bholu (PW-2) has stated that after arrest on 25.09.2004, Abdul Salam Ansari confessed his guilt before the police and became ready to recover the dead body of Yasoda. He took him and the police personals to Dodpur, where the building of Nawab Sahab was being constructed. Abdul Salam Ansari informed that he had buried the dead body of Yasoda Devi in vacant plot. That place was apart from the building. Abdul Salam, Rafique and one other person brought out the dead body, digging the earth from spade. Apart from his statement that Rafique participated with Abdul Salam Ansari in digging the earth and bringing out the dead body, there is no other evidence against Rafique. Involvement of Rafique in the offence is not proved. 22. There is no evidence that Abdul Salam Ansari had abducted Yashoda and Radha, as such his conviction under Section 364 IPC is illegal. 23. In view of the aforesaid discussions, both the appeals succeed and are allowed. Involvement of Rafique in the offence is not proved. 22. There is no evidence that Abdul Salam Ansari had abducted Yashoda and Radha, as such his conviction under Section 364 IPC is illegal. 23. In view of the aforesaid discussions, both the appeals succeed and are allowed. Conviction and sentence of Abdul Salam Ansari @ Salman Khan and Rafique, passed by Additional District and Sessions Judge, Court No. 19, Aligarh, dated 18.04.2011, in S.T. No. 82 of 2005, State vs. Abdul Salam Ansari @ Salman Khan and another (arising out of Case Crime No. 413 of 2004, under Section 364, 302, 201, 120-B IPC, P.S. Civil Lines, Distt. Aligarh), convicting Abdul Salam Ansari @ Salman Khan under Section 364 IPC as well as both the appellants under Section 302 and 201 IPC, are set aside. The appellants are acquitted from the charges and set free on their liberty. The appellants shall furnish their bonds in terms of Section 437-A Cr.P.C. before the Magistrate concerned, within one month from their release. Office is directed to remit the original records to the court below and send a copy of this judgment for its compliance.