The absence of a motive in a case depending on circumstantial evidence is a factor that weighs in favor of the accused. Recoveries by themselves cannot form the basis of conviction and must be considered in the light of other relevant circumstances and the sequence of events suggesting a link between the accused and the crime.

BADAR DURREZ AHMED, J

1. These appeals are directed against the judgment dated 30.11.2009 in Sessions Case No. 36/2009 delivered by the learned Additional Sessions Judge-I, North-East, Karkardooma Courts, Delhi, whereby the appellants Pawan and Laxman have been convicted for the offence punishable under Section 302/34 IPC and they have also been convicted for the offence punishable under Section 363/34 IPC. The said case arose out of FIR 391/2003 registered at Police Station Bhajan Pura under Sections 363/364/302/34 IPC. Upon conviction of the said appellants, the learned Additional Sessions Judge passed an order on sentence on 05.12.2009, whereby the appellants Pawan and Laxman were sentenced to rigorous imprisonment for life for the offence punishable under Section 302 read with Section 34 IPC for having committed the murder of the deceased Brijesh. A fine of ` 2,000/-each was also imposed on the said appellants and in default of payment of the said fine, they were to undergo rigorous imprisonment for one year. Insofar as the offence under Section 363/34 IPC was concerned, the learned Additional Sessions Judge sentenced the appellants to undergo rigorous imprisonment for seven years. A fine of ` 1,000/-each was also imposed on them and in default of payment of the fine, they were to undergo rigorous imprisonment for six months. The sentences were directed to run concurrently in respect of both the convicted persons.

2. Initially, there were three accused in this case and they were Laxman @ Janga and Pawan (the present appellants) and one Praveen. However, since Praveen was a juvenile, he was dealt with under the Juvenile Justice (Care and Protection of Children) Act, 2000 and was presented before the Juvenile Justice Board. In the present appeals, we are only concerned with Laxman and Pawan.

3. The charge framed against Laxman and Pawan on 27.09.2004 was that on 03.11.2003 at about 3 pm at MCD School, C-4 Yamuna Vihar, Delhi, within the jurisdiction of PS Bhajan Pura, the appellants along with co-accused Praveen (juvenile), in furtherance of their common intention, kidnapped Brijesh Kumar, a minor child of 12 years out of the keeping of his lawful guardian without his consent and thereby they had committed an offence punishable under Section 363/34 IPC. The second charge was that the said accused had kidnapped the said Brijesh Kumar in order that he might be murdered and thereby they had committed an offence punishable under Section 364/34 IPC. The third charge was that on the said date (i.e., 03.11.2003) at about 7:30 pm in the jungle near Bheem Nagar and near L.N. Public School, the said accused, in furtherance of their common intention, committed the murder of the said Brijesh Kumar by causing his death and thereby committed an offence punishable under Section 302/34 IPC. We have already pointed out that Praveen was to be dealt with under the Juvenile Justice (Care and Protection of Children) Act, 2000. Insofar as the present appellants are concerned, they pleaded not guilty to the charges framed against them and they claimed trial.

4. The sequence of events leading up to the apprehension and arrest of the appellants begins with the receipt of a phone call on 03.11.2003 at about 6:03 pm from PW1 Bhagwan Dass, who claimed to be the father of the said Brijesh Kumar. This call was received at the Police Control Room vide DD No. 15-A (Exhibit PW3/A). The sum and substance of the phone call was that his son Brijesh Kumar aged 12 years had been kidnapped by two persons from his school. By virtue of DD 17-A (Exhibit PW3/B) recorded at 6:10 pm, Sub-Inspector Manoj Bhatia was sent to investigate. At about 7 pm, the statement of PW1 Bhagwan Dass (Exhibit PW1/A) was recorded. In the said statement, PW1 Bhagwan Dass indicated that his son Brijesh Kumar, who is mentally weak, is a student of class V of C-4, Yamuna Vihar MCD School. He further stated that at about 12:45 pm, he left him in his school and returned home. When