1. In this case, we accept the Sessions Judge's appreciation of the evidence and find that the remains found in the bush were those of the son of P.W. No. 3, that the boy was seen in the arms of the accused on the afternoon of the 22nd of December by Prosecution witness No. 5 and that either on the 22 ad itself or shortly afterwards, the jewelry which he was wearing was disposed of by the accused through the Prosecution witness No. 12.
2. On this evidence, we think the conviction under Section 369 of the Indian Penal Code was justified, but in order to justify the conviction under Section 302, there is wanted some further evidence that the boy's death was due to violence. This case differs from that which the Sessions Judge refers to, Queen-Empress v. Sami 13 M.h 426 in that here, there is no proof that the boy did not die a natural or accidental death, and, in the absence of proof that a murder has been committed, the accused cannot be convicted of that offence. Considering the age of the child, the view that he might have been kidnapped, robbed and abandoned and then have been unable to reach his home alive does not seem extravagantly improbable, and though the case is one inducing grave suspicion against the accused, we find it impossible to say that the evidence leaves no reasonable doubt that murder has been committed.
3. We, therefore, set aside the conviction for murder and acquit the accused of that offence, and we confirm the conviction of kidnapping under Section 369 and the sentence passed under that section.