The admissibility of the statement recorded by the Chief Judicial Magistrate under section 164 of the Code of Criminal Procedure and the sufficiency of evidence to prove the guilt of the accused beyond reasonable doubt.

Hemant Gupta, J.

1. Present appeal has been filed by Rajiv Kumar alias Raju against the judgment dated 4.5.1998 convicting and sentencing him to life imprisonment for an offence under sections 302 and 201 of the Indian Penal Code.

2. The prosecution case was set in motion on the statement of Kashmiri Lal Makkar. The present appellant is his nephew i.e his elder brothers son. Kashmiri Lal complainant has alleged that he is running a shop of doctor at Basti Kamboan and he has two children namely Dhiraj Kumar alias Monti aged about 11 years and daughter Yashika aged about 5-1/2 years. On 22.4.1995, his son Dhiraj Kumar was lost at about 1 p.m. He inquired and searched till evening but when he could not be found, an information was given at about 7 p.m. All the family members were searching for the missing boy but he could not be found anywhere. It was only on 26.4.1995 at about 7.30 p.m. when his friend Harish Kumar resident of Ferozepur came to him and told that on 22.4.1995 he had seen his nephew Raju son of Kulwant Rai and Balbir Singh alias Giani taking his son towards Mallanwala sitting in between them on Chetak scooter having grey colour. Since Harish Kumar had gone to Chandigarh and therefore, he narrated this incident on coming back on that day. The complainant has further stated that on 3.5.1995 there was marriage of Anita sister of Raju and they demanded Rs. 50,000/- from him but he refused to oblige. Such refusal bore grudge in their mind and for taking revenge they have kidnapped his son Dhiraj Kumar with the intention to kill him. A rukka on the basis of the said sent was sent by Station House Officer at 8.40 p.m. and First Information Report was recorded at 9.50 p.m. The accused was arrested on 27.4.1995. The accused made a disclosure statement Ex. PK dated 27.4.1995 that Dhiraj Kumar was kidnapped by them and was pushed in the Canal Rajasthan Feeder near village Jhamke after tying two dumb bells with one leg, who had drowned in our presence and he can point out that place. In pursuance of such disclosure statement memo Ex.PL regarding pointing of place was prepared and vide memo Ex.PM the dead body of Dhiraj Kumar was recovered. The investigations also included P.W. 10 Ashok Kumar Municipal Commissioner before whom accused Raju is purported to have made extra judicial confession.

3. On the completion of the investigation the police submitted a report on 14.7.1995 under section 173 Code of Criminal Procedure. During committal proceedings on 10.8.1995 accused Rajiv stated that he wants to make a statement. Learned trial Magistrate recorded the following order:

"Present : A.P.P. for the State.

Both accused in custody.

Accused Rajiv wants to make a statement. Let his statement be recorded separately.

10.8.95 Sd/- CJM, Ferozepur

Sd/- Rajiv

Present : A.P.P. for the State.

Both accused in custody.

Statement of Rajiv Kumar alias Raju has been recorded separately and before recording his statement he was made to understand that his statement can be used against him. Copies supplied to the accused are stated to be complete in all respects. Since the offence under sections 302/364 of the Penal Code are exclusively triable by the court of Session, so vide my separate order of today the accused are committed to the court of Ld. Sessions Judge, Ferozepur for trial. The accused are in custody and they be produced there on 23.8.1995 at 10 A.M. Ahlmad is directed to send the file to that court well before the date fixed.

Announced in open court.

Sd/-

Chief Judicial Magistrate

Ferozepur".

Dated 10.8.1995.

4. Separate statement of the accused Ex. PX recorded by the learned magistrate when translated reads as under :

Statement of Rajiv @ Raju son of Kulwant Rai son of Mulakh Raj aged about 18 years work as cassettes merchants resident of Mohalla Sodhianwala, Ferozepur City, w/o

A case under sections 302/364/120-B IPC is pending against me. I have not stated the name of any one before the police. I have stated before the police