JUDGMENT : Satyendra Kumar Singh, J. The appellant has preferred this criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (2 of 1974) [in short “Cr.P.C.”] against the judgment dated 29.02.2008 passed by the 10th Additional Sessions Judge, Indore (M.P.) in S.T. No.50/2006, whereby the appellant has been convicted under Sections 364/34, 302/34 and 201/34 of the Indian Penal Code, 1860 (in short “IPC”) and sentenced as under : S. No. Conviction Sentence Imprisonment Fine amount Additional imprisonment in default of payment of fine 1 302/34 of IPC Life imprisonment Rs.10,000/- 6 months RI 2 364/34 of IPC 10 years RI Rs.2,000/- 3 months RI 3 201/34 of IPC 3 years RI Rs.1,000/- 1 month RI 2. Prosecution story, in brief is as follows :- (i) That on 03.10.2005, at about 10.00 PM, while complainant Satyanarayan was standing at square near his residence 38/2, Jaibhawani Nagar, Indore alongwith his friends Balli Kushwah, Pappu Ghatge, Pappu Sharma, Manoj Solanki and brother deceased Kamal making preparations for Nav Durga puja, appellant and co-accused Sanjay came there and took the deceased Kamal with them on the motorcycle, which co-accused Sanjay was driving whom deceased referred as his brother-in-law. Deceased Kamal thereafter did not return home. Next day, on being enquired about the whereabouts of the deceased, co-accused Sanjay informed that he dropped Kamal outside his house on the same night. When deceased Kamal did not return till late night, then at about 23.55 hours, missing person's report (Exhibit-P/11) was lodged by Rakesh at police station Aerodrome, Indore. Thereafter, on 05.10.2005, Satynarayan made a written complaint (Exhibit-P/1) to SHO Police Station Aerodrome, Indore against the appellant and co-accused Sanjay on the basis of suspicion as deceased had a fight with the co-accused Sanjay some 7-8 days prior to the date of incident and appellant, on being enquired about the whereabouts of the deceased told different version than that of co-accused that he dropped the deceased outside his in-law's house. S.I. Ashok Rangshahi, on the basis of aforesaid written complaint, lodged FIR (Exhibit-P/2) against the appellant as well as co-accused Sanjay for the offences punishable under Section 364 read with 34 of IPC. (ii) During investigation, on 06.10.2005, ASI P. S. Chouhan went to the place of incident, prepared spot map (Exhibit-P/3), recorded the statements of prosecution witnesses and made a search for the dead-body of the deceased Kamal. (ii) During investigation, on 06.10.2005, ASI P. S. Chouhan went to the place of incident, prepared spot map (Exhibit-P/3), recorded the statements of prosecution witnesses and made a search for the dead-body of the deceased Kamal. On 08.10.2005, S.I. Ashok Rangshahi arrested co-accused Sanjay, as per arrest memo (Exhibit-P/7) and appellant Mukesh, as per arrest memo (Exhibit-P/8). He recorded their memorandum statements Exhibit-P/11 and P/10 respectively and thereafter, seized a clutch wire, a broken silver chain, a pearl necklace, a leather purse containing photographs of co-accused Sanjay and deceased's wife Babita alongwith co-accused Sanjay's license and an amount of Rs.170/-cash on their instance from Gajarghas near Ralamandal Hills, Indore as per seizure memo (Exhibit-P/6). On the same day, he also seized a black coloured rubber sandal on the instance of co-accused Sanjay from a place near Talainaka, Mhow Phata as per seizure memo (Exhibit-P/5) and a nylon rope from his house as per seizure memo (Exhibit-P/4). Identification proceeding was conducted as per identification memo (Exhibit-P/10) wherein deceased's brother Ritesh identified the seized broken silver chain and pearl necklace as the articles of deceased alongwith deceased wife's photographs. Search of the body of the deceased was conducted in Narmada river near Mortakka bridge and also at Ralamandal Bawdi but the same was not found. After completion of investigation, charge-sheet was filed before the Judicial Magistrate First Class, Indore who committed the same to the Court of Sessions Judge, Indore. (iii) During trial, appellant Mukesh filed an application dated 21.02.2006 under Section 307 of Cr.P.C. through jail for tendering pardon. Learned Trial Court vide order dated 08.03.2006, continued the trial against co-accused Sanjay and directed to get the statements of appellant recorded under Section 307 of Cr.P.C. in the aforesaid trial. Thereafter, appellant's statements under Section 307 of Cr.P.C. were recorded. In the aforesaid trial, learned Public Prosecutor filed an application dated 24.02.2007 under Section 308 of Cr.P.C. for cancellation of pardon tendered to the appellant stating therein that appellant has not disclosed true facts and has not complied with the condition on which pardon was tendered to him therefore, he is not entitled for grant of pardon. Learned Trial Court vide judgment dated 29.02.2008 convicted the co-accused Sanjay for the offences punishable u/s 364/34, 302/34 and 201/34 and allowed the aforesaid application filed by the Public Prosecutor and directed to proceed trial against the appellant. 3. Learned Trial Court vide judgment dated 29.02.2008 convicted the co-accused Sanjay for the offences punishable u/s 364/34, 302/34 and 201/34 and allowed the aforesaid application filed by the Public Prosecutor and directed to proceed trial against the appellant. 3. Learned Trial Court considering the material prima-facie available on record, framed the charges under Sections 364 r/w 34, 302 r/w 34 and 201 r/w 34 of IPC against the appellant, who abjured his guilt and prayed for trial. In his statement recorded under Section 313 of Cr.P.C., the appellant pleaded his false implication in the matter and has examined Kailash (DW-1) in his defence as defence witness. 4. Learned Trial Court after appreciating the oral as well as documentary evidence available on record, recorded the findings that prosecution proved its case beyond reasonable doubt against the appellant for the offences punishable under Sections 364/34, 302/34 and 201/34 of IPC and sentenced him, as mentioned in para-1 of this judgment. Being aggrieved with the said judgment of conviction and order of sentence, appellant has preferred the instant appeal for setting aside the impugned judgment and discharging him from the charges framed against him. 5. Learned counsel for the appellant submits that the impugned judgment passed by the learned Trial Court is erroneous on both facts and and in law and based on surmises and conjectures. The prosecution has failed to prove the fact that appellant was having common intention with co-accused to commit the alleged crime. Public Prosecutor has not given any certificate as per the provisions of Section 308 of Cr.P.C. with regard to the fact that appellant wilfully concealed anything essential and had not complied with the condition on which pardon was tendered to him and application dated 24.02.2007 filed by him u/S 308 of Cr.P.C cannot be treated as certificate u/S 308 of Cr.P.C.. Therefore, the statements of the appellant recorded u/S 307 of Cr.P.C. cannot be read against him under Section 308(2) of Cr.P.C. He placed his reliance on the decision passed by Hon'ble Apex Court in the case of Dipchand Vs. Emperor [AIR 1935 Lahore 799]. He further submits that complainant Satyanarayan (PW-2), Mahesh @ Balli (PW-3), Manoj (PW-4), Rajesh (PW-7) and Rakesh (P11) all are interested witnesses and none of them have stated anything material against the appellant. There is nothing on record which indicates involvement of the appellant in the crime. Emperor [AIR 1935 Lahore 799]. He further submits that complainant Satyanarayan (PW-2), Mahesh @ Balli (PW-3), Manoj (PW-4), Rajesh (PW-7) and Rakesh (P11) all are interested witnesses and none of them have stated anything material against the appellant. There is nothing on record which indicates involvement of the appellant in the crime. Hence, findings rendered by the learned trial Court are not sustainable thus, by setting aside the impugned judgement of conviction and order of sentence, the appellant may be acquitted from the charges framed against him. 6. Per contra, learned Public Prosecutor for the respondent-State, while supporting the impugned judgment of conviction and order of sentence submits that the judgment was passed by the learned Trial Court after proper appreciation of evidence available on record. There is no prescribed format for giving certificate u/S 308 of Cr.P.C. Public Prosecutor in his application dated 24.02.2007, filed u/S 308 of Cr.P.C. specifically mentioned that appellant did not state the true facts before the Court and had resiled from his earlier statements recorded u/S 307 of Cr.P.C., which is sufficient compliance of Section 308 of Cr.P.C. Court has inherent power to proceed against the approver in such type of cases as held in the case of Renuka Bai And Another Vs. State of Maharashtra [ (2006) 7 SCC 442 ]. From the evidence produced on record, it is very well proved that appellant alongwith co-accused took the deceased and was last seen together with the deceased alive. Explanation given by him specifically with regard to his parting with the deceased on the date of incident is not acceptable at all. Therefore, confirming the impugned judgment of conviction and order of sentence, the appeal filed by the appellant may be dismissed. 7. We have heard learned counsel for the parties and perused the record. 8. In the present case, there is no direct evidence regarding involvement of the appellant in the crime. Prosecution case is based on the basis of last seen evidence and appellant's own statements made by him u/S 307 of Cr.P.C. during the trial of co-accused Sanjay as accomplice witness. 9. 8. In the present case, there is no direct evidence regarding involvement of the appellant in the crime. Prosecution case is based on the basis of last seen evidence and appellant's own statements made by him u/S 307 of Cr.P.C. during the trial of co-accused Sanjay as accomplice witness. 9. Complainant Satyanarayan (PW-2) deposed that on the date of incident at about 9:00-10:00 p.m. when he alongwith his brother deceased Kamal was standing at square near his residence making collections for preparation of Nav Durga Pooja, co-accused Sanjay alongwith one other person came there, called his brother deceased Kamal and thereafter his brother Kamal went with them saying that he will return within 1-2 hours. Shyam Sharma (PW-3), Rajesh alias Pappu(PW-4), Rakesh (PW-5), Manoj (PW-8), Mahesh(PW-9) and Kailash alias Pappu(PW-10), all have made the same statement that on the date of incident, Sanjay and one other person took the deceased Kamalon the motorcycle in front of them and thereafter deceased did not return home. None of the above witnesses have stated name of the person who came on that day with co-accused Sanjay, therefore prosecution has declared all of them hostile. 10. Complainant Satyanarayan (PW-2) in para 3 of his cross-examination has admitted that after the incident when his brother Kamal did not return home, he made written complaint (Ex. P-4) to Police Station, Aerodrome, Indore, wherein he mentioned the name of the appellant as the person who had come on the date of incident with the co-accused Sanjay for taking his brother Kamal on his motorcycle. Although, he has further stated that he mentioned appellant's name in his written complaint(Ex. P-4) on the basis of information given by the co-accused Sanjay to him, but as appellant Mukesh himself in his statement dated 08.03.2006, recorded during trial of co-accused u/S 307 of Cr.P.C. as an accomplice witness supported his above statement and he in para 19 of his statement, admitted that after the incident people, who had taken the co-accused Sanjay, took him also to police station. Defence witness Kailash (DW-1) deposed that after the incident, complainant Satyanarayan alongwith other one or two persons had come to appellant's house and took him with them and got him arrested. Defence witness Kailash (DW-1) deposed that after the incident, complainant Satyanarayan alongwith other one or two persons had come to appellant's house and took him with them and got him arrested. Hence, it is clear that on the date of incident, the person who came with the co-accused Sanjay was none else than the appellant and both of them took the deceased and complainant Satyanarayan(PW-2) knowingly mentioned appellant's name in his written complaint(Ex. P-4), on the basis of which FIR (Ex. P-5)was lodged against the appellant and co-accused Sanjay. 11. Appellant Mukesh in his aforesaid statement recorded u/S 307 of Cr.P.C. stated that on the date of incident at about 8-8:30 p.m. co-accused Sanjay came to his house and took him on his motorcycle saying that they have to visit Jai Bhavani Nagar and when he alongwith co-accused Sanjay reached Jai Bhavani Nagar, co-accused Sanjay took the deceased on his motorcycle and then all of them went towards kalaghoda where co-accused Sanjay and deceased consumed liquor and thereafter they went near mortaka bridge where co-accused sent the appellant for bringing prashad and when he returned back, he found the deceased went missing. He further deposed that on being asked, co-accused Sanjay told him that he threw the deceased into river. 12. It has been argued on behalf of the appellant that as the Public Prosecutor has not given certificate as per the provisions of Section 308 of Cr.P.C. with regard to the fact that appellant willfully concealed anything essential and had not complied with the condition on which pardon was tendered to him, therefore, the statements of appellant recorded u/S 307 of Cr.P.C. cannot be read against him u/S 308(2) of Cr.P.C. 13. From perusal of the provisions of Section 308 of Cr.P.C., it is clear that there is no prescribed format of certificate which is required to be filed by the Public Prosecutor u/S 308 of Cr.P.C. In the present case, Public Prosecutor vide application dated 24.02.2007 specifically stated that appellant neither disclosed the true fact nor complied with the condition on which pardon was tendered to him. Hon'ble Supreme Court in the case of Renuka Bai Vs. Hon'ble Supreme Court in the case of Renuka Bai Vs. State of Maharashtra(supra) has held that Court has inherent powers to proceed against the approver and in the present case, learned trial Court allowing the aforesaid application of Public Prosecutor has found that appellant had not disclosed the true fact and had not complied with the condition on which pardon was tendered to him. It is pertinent to mention here that appellant in his statement recorded u/S 307 of Cr.P.C. narrated the whole incident, but after about a year, during his cross-examination, he deposed that his earlier statements were made by him under pressure and he alongwith the co-accused Sanjay had not taken the deceased with them, which clearly shows that at the time of cross-examination, he was win over and hence had not complied with the condition on which pardon was tendered to him. Therefore, arguments submitted by learned counsel for the appellant is not acceptable. 14. Facts of Dipchand Vs. Emperor(supra) case are distinct from the facts of this case. In the above case, statements of approvar Dipchand were found substantially true and it was not found established that he made any alteration in the story with deliberate intention of spoiling the prosecution case. In the present case, during trial of co-accused appellant as an approver/accomplice witness, in para 22 onwards of his statement recorded u/S 307 of Cr.P.C. has specifically stated that he alongwith co-accused Sanjay had not taken the deceased and he has made his earlier statements under pressure. In this way,the prosecution has established that appellant had breached the condition on which pardon was tendered to him and he had forfeited his pardon. In this regard observation made by Lahore High Court in the above case is relevant, which is as under: It was laid down in 1930 M W N 773 (1) that when a conditional pardon has been tendered and accepted, there must be good faith on both sides and it is for the Crown to prove that the pardon was forfeited by showing that the accused was guilty of deliberate bad faith. If this question is answered in the negative, no other question arises. If this question is answered in the negative, no other question arises. It was laid down in 34 P R 1902 (2) that when a pardon has been tendered to any person, he should not be tried for that offence unless the prosecution established a breach of the condition, and there was proof that the accused had either willfully concealed material facts or given false evidence, and that mere trifling discrepancies elicited in cross-examination were not sufficient to justify the forfeiture of the pardon tendered and accepted. 15. As per the provisions of Section 308(2) of Cr.P.C., any statement made by a person accepting the tender of pardon and recorded by a Court may be given in evidence against him. Therefore, statement made by the appellant u/S 307 of Cr.P.C. during trial of co-accused can very well be taken in evidence against him in the present case. His statement recorded u/S 307 of Cr.P.C. supports the prosecution case that he alongwith co- accused Sanjay took the deceased and was last seen together with the deceased alive. Hence, there is no reason to disbelieve the last seen evidence produced by prosecution and it is found established that on the date of incident, at about 9:30 -10:00 p.m., appellant alongwith co-accused Sanjay took the deceased on motorcycle whereafter deceased did not return back. 16. Learned counsel for the appellant has laid special emphasis on the point that appellant was not having common intention with the co-accused Sanjay to abduct the deceased for committing his murder. In this regard, Kailash (DW-1) has been examined as defence witness, who deposed that after the incident, appellant was very much upset and anxious. From the evidence produced on record, it has already been found proved vide judgment passed against co-accused Sanjay that after the incident, deceased did not return home and was murdered and appellant himself in his statement recorded u/S 307 of Cr.P.C. stated that he alongwith co-accused Sanjay took the deceased in the night after 9:30-10:30 p.m. near Mortaka bridge, which is far from the city as well as from the place from where they picked the deceased. His culpability in taking the deceased in itself shows that he was very well aware about the intention of the co-accused Sanjay of committing murder of the deceased. His culpability in taking the deceased in itself shows that he was very well aware about the intention of the co-accused Sanjay of committing murder of the deceased. Therefore, only because he was found upset and anxious after the incident, it cannot be said that he was not having common intention with co-accused to commit deceased's murder. Appellant has not given any explanation as to why after the incident, he did not disclose about the incident to anyone and remain silent till filing of his application for tender of pardon, which also shows his culpability in the crime. Therefore, this fact is also found established that appellant and co-accused Sanjay having common intention to commit murder of the deceased took him near Mortaka bridge where co-accused Sanjay threw the deceased into the river. 17. As prosecution has not produced any evidence with regard to the fact that appellant was present on the spot at the time of incident and assisted the co-accused Sanjay in committing murder of the deceased, therefore this fact is not found proved beyond reasonable doubt that appellant assisted the co-accused in committing murder of the deceased and in throwing the body of deceased into the river with an intent to disappear the evidence, his conviction u/S 302/34 r/W 201 of IPC is not sustainable. However, learned trial Court has not committed any error in holding the appellant guilty for the offences punishable u/S 364/34 of IPC. 18. In view of the aforesaid discussion, impugned judgment with regard to conviction of the appellant for the offence punishable u/S 364 r/W 34 of IPC is liable to be affirmed, but conviction with regard to offences punishable u/S 302/34 and 201 of IPC is not sustainable and is hereby set aside. Hence, the appeal filed by the appellant is partly allowed. Accordingly, this Court passes the following order: Criminal Appeal No. 475/2008 filed by the appellant is partly allowed. (i) The judgment and order of conviction dated 29.02.2008 passed by 10th Additional Sessions Judge, Indore, (M.P.) in S.T. No.50/2006 is modified to the extent that appellant stands acquitted from the offences punishable under 302/34 of IPC alongwith Section 201/34 of IPC. Accordingly, this Court passes the following order: Criminal Appeal No. 475/2008 filed by the appellant is partly allowed. (i) The judgment and order of conviction dated 29.02.2008 passed by 10th Additional Sessions Judge, Indore, (M.P.) in S.T. No.50/2006 is modified to the extent that appellant stands acquitted from the offences punishable under 302/34 of IPC alongwith Section 201/34 of IPC. Considering overall facts of the case, it would be appropriate to affirm the sentence awarded to the appellant for the offence punishable under Sections 364/34 of IPC with Rigorous Imprisonment for 10 years and fine of Rs.2,000/-and in default of payment of fine, to undergo 2 months additional RI. Learned Trial Court is directed to take appropriate action for arrest of appellant– Mukesh for serving jail sentence so affirmed u/S 364/34 of IPC. The modified sentence is as follows: Conviction Sentence Imprisonment Fine Amount (Rs.) Additional Imprisonment in Default of payment of fine Modification 364/34 of IPC 10 years R.I. 2,000/- 2 months R.I. Convicted 302/34 of IPC Life Imprisonment 10,000/- 1 year R.I. Acquitted 201/34 of IPC 03 years R.I. 1,000/- 1 months R.I. Acquitted (ii) Fine amount(if any) deposited by the appellant under Sections 302/34 and 201/34 of IPC be refunded to the appellant. The Registry is directed to send back the Trial Court record forthwith alongwith copy of this judgment. Let a copy of this order be also sent to the concerned jail authorities for its speedy compliance and necessary action.