The recoveries at the accused's instance were deemed reliable, and the onus shifted to the accused to explain his possession of the articles, leading to the presumption of guilt.

Mukta Gupta, J.

1. Ganesh is convicted for offences punishable under Sections 302/419/392/201 IPC vide the impugned judgment dated February 24, 2012 and vide order dated February 28, 2012 directed to undergo imprisonment for life and fine of Rs.10,000/- for offence under Section 302 IPC; rigorous imprisonment for 2 years for offence punishable under Section 419 IPC; rigorous imprisonment for 3 years and fine of Rs.5000/-each on both the counts i.e. Section 392 and Section 201 IPC.

2. Ganesh assails the judgment on the ground that the only evidence with the prosecution is of Rakesh PW-1 the complainant who is not a trustworthy witness in view of the material contradictions in his complaint and the statement before Court. No incriminating article was recovered at his instance and the so-called recovery was not subjected to Test Identification Parade and is thus not reliable. While affecting the alleged recovery of articles at the instance of Ganesh neither any public witness nor any Police official of Uttar Pradesh was associated. The version of Rakesh that he had spoken to Hari Darshan is falsified by the fact that at the relevant time Hari Darshan was in judicial custody. Rakesh himself stated that after the recovery of camera and the stand at the instance of Paramjeet they went to Delhi and hence there was no occasion for recovery at the instance of Ganesh. Despite Rakesh having all the phone numbers and details as to where Kaushal had gone he made no efforts to search him. There is no investigation as to whom the numbers allegedly given by Ganesh to Rakesh belong to. Rajender Prasad PW-4 from whose Paddy fields it is alleged that the dead body of Kaushal was recovered has not stated that he saw the appellant. No identification of the dead body was done as no photographs were shown to Rakesh. The recovery of articles at the instance of Ganesh has been disbelieved by the learned Trial Court. Thus, merely on the evidence of Rakesh who stated that Kaushal deceased had gone with Ganesh, Ganesh cannot be convicted of the offences as held by the learned Trial Court.

3. The defence of Ganesh is false implication. No defence evidence has been led and in reply to question “Do you want to say anything else?” it is stated:

“Ans. I was running a wielding shop at Ganga Nagar area at Meerut City. On 28.01.2007 Police reached at the house of my in-laws at Mamepur. My in-laws called me there. Delhi Police from there took me to PS Incholi. They inquired from me about Ganesh and I told them that I know Ganesh as he is from my village. From there, I was brought to Delhi. I was illegally detained for 3-4 days and was produced in Court on 02.02.07. I do not Kamal.”

4. A complaint dated January 14, 2007 for the kidnapping of his cousin brother Kaushal Sharma signed by Rakesh PW-1was received at PS Pandav Nagar. On the same day vide DD No. 14A FIR No. 23/2007 under Section 365 IPC was registered at PS Pandav Nagar. In the complaint it was stated by Rakesh Kumar that he was running Sanjeevani Studio for editing and recording and along with him his cousin brother Kaushal Sharma, son of Rambrij Sharma was working as a photographer. On January 06, 2007 a person who told his name as Rajneesh came to his studio and asked for a camera on rent for the purpose of shooting. According to the said Rajneesh the shooting was to take place from January 07, 2007 to January 12, 2007 at Bara Mandir, Hastinapur, Meerut, UP. Rakesh asked for a reference from Rajneesh who took the name of one Hari Darshan, Director GM Films, Meerut and gave his phone number 09837236464 and told that the said phone belongs to his brother Sriniwas on which he can talk to him as well as Kaushal. Believing Rajneesh, as Hari Darshan had earlier also taken camera on rent, he gave the camera to Rajneesh and sent Kaushal Sharma along with Rajneesh on January 06, 2007 at 7.00 PM. Since Kaushal did not make any call till January 10, 2007 on January 11, 2007 Rakesh made a phone call on m