JUDGMENT 1. Chhinderpal Singh accused has filed this appeal against his conviction under sections 302 and 201 I. P. C. by the Sessions Judge, Sri Ganganagar, for the murder of his own father Gurdayal Singh. 2. On 20th February, 1972, an anonymous information in the form of a written typed letter was received by the police station Muklava that one Gurdayal Singh resident of chak 10 M.K.. has been murdered ten-twelve days before by the members of his family and his dead body has been buried in the Roodi of their compound. The informant said that he was a poor Harijan and he could not inform earlier because he was afraid of the accused party but now his conscious was not permitting him to keep it secret. Investigation commenced on 12th March, 1972. S. H. O. Tribhuvan Singh took in custody Chhinderpal Singh and Baljinder Singh, sons of the deceased. He recorded the information given by Chhinderpal Singh and then after obtaining orders from the S. D. M. Raising Nagar, he went on the spot and not the dead body disinterred at the instance of the accused in the presence of motbirs and Dr. S. M. Sharma. Panchayatnama was prepared and so also recovery memo of the dead body. He also recovered an axe at the instance of the same accused Chhinderpal Singh, after recording his information under section 27 of the evidence Act. The police submitted the final report under section 169 Cr P. C. but the Magistrate took cognisance of an offence under section 302 I. P. C. against the two accused and commenced the enquiry. After commitment the trial was conducted by the Sessions Judge Sri Ganganagar. 3. As a result of the trial, the present accused appellant Chhinderpal Singh has been convicted and sentenced as above and the other accused, his brother Baljinder Singh has been acquitted. 4. During the trial the plea of the accused was recorded and both did not plead guilty. The prosecution examined nine witnesses and tendered the statement of the accused and that of the medical officer made in the committing court. The accused was then examined and Chhinderpal Singh in his examination took the plea that he had gone to the police station to lodge the report of the disappearance of his father but at that time he was detained. The accused was then examined and Chhinderpal Singh in his examination took the plea that he had gone to the police station to lodge the report of the disappearance of his father but at that time he was detained. He was asked by the police to sit in the police station though he was not arrested. He denied the giving of the information Ex. P. 5 and P. 15, He also denied that he got the dead body recovered. The recovery of the axe was also denied. 5. The other accused similarly denied all the allegations and Baljindersingh further submitted that his father was an eccentric fellow and used to disappear from the house for a year and more. 6. The prosecution examined Swaran Kaur P. W. 1, the widow of the deceased Gurdayalsingh and mother of the accused. She stated that she was living happily with her husband, mother-in-law Shyamkaur and the accused. She denied of the strained relations between the father and the son. She stated that Gurdayalsingh left the house at about 5 p. m. and did not return back. She refused to identify the clothes which were taken out at the time of the taking out of the last remains of Gurdayal Singh by exhumation. Shyamkaur P. W 2, mother of the deceased more or less gave similar statement. She further submitted that her son was eccentric and used to leave the family for six months or so at a time. Jit Singh P. W. 3 who is the brother of Swarankaur denied the suggestion that the relations were strained with the deceased and that the accused were displeased with their father. P. W. 4 Vir Singh, brother of Swarankaur made a similar statement, though he admitted his signatures on the recovery of the dead body Ex. P. 7 and the Panchayatnama Ex. P. 8. Avtar Singh P. W. 5 who was witness to the memos Ex. P. 7 and P. 8 admitted the signatures but resiled from his earlier version like Vir Singh. Charan Singh P. W. 6 admitted his signatures on Ex. 7 and P. 13 but declined the contents. Kartarsingh P. W. 7 did not support the prosecution although he was a witness to recovery of the dead body of the clothes of the deceased and also of the axe. P. W. 5 to P. W. 8 were declared hostile. 7. Charan Singh P. W. 6 admitted his signatures on Ex. 7 and P. 13 but declined the contents. Kartarsingh P. W. 7 did not support the prosecution although he was a witness to recovery of the dead body of the clothes of the deceased and also of the axe. P. W. 5 to P. W. 8 were declared hostile. 7. The prosecution therefore, depended upon the statement of P. W. 9 Tribhuvansingh, S. H. O. who proved the information Ex. P. 1, arrest of the accused Ex. P 3 and P. 4 and information given by Chhinderpal Singh Ex. P. 5. He stated that he took the medical officer with him to the spot and then the accused got the dead body recovered according to his information in the Rohi Chak 10 MK square No. 39 killa No. 5. He prepared the memo Ex. P. 7 of the bones and memo Ex. P. 11 of the clothes and shoes and memo Ex. P. 10 of the hair of the deceased. All these were found on or near the dead body. 8. Tribhuvan Singh stated that at the time of the recovery of the dead body Vir Singh P. W. 4, Avtar Singh P. W. 5, Charan Singh P. W. 6, Kartar Singh P. W. 7, Ram Singh P. W. 8 and Dr. S. M. Sharma P. W. 10 were present. He prepared the Panchayatnama Ex. P. 8 and got the Postmortem carried out, He also took the bloodstained earthing possession vide Ex. P. 12 and prepared the site plan and its description vide Ex. P. 13 and P. 14. 9. He also proved the recovery of the axe after recording information of the accused Chhinderpal Singh. 10. The statement of Dr, S. M. Sharma P. W 10 corroborates the recovery as stated by the S. H. O. Tribhuvan Singh. According to him the accused pointed out the place where the dead body was lying buried. The dead body was found in a condition in advanced stage of decomposition. From the bones that was to be ascertained was that it was a dead body of a male. He could not ascertain the cause of death but it is said that there were two transverse marks 4 cm in length of the sharp weapon on the left side of the frontal bone though there was no fracture. From the bones that was to be ascertained was that it was a dead body of a male. He could not ascertain the cause of death but it is said that there were two transverse marks 4 cm in length of the sharp weapon on the left side of the frontal bone though there was no fracture. The left radius and the left femur were found fractured. According to initial statement he was of the opinion that the murder must have been taken place between 1 to 3 months before exhumation. In his report Ex. P. beehe had stated that the dead body was of an unknown person since it was not 18 notifiable. Although in the postmortem report he has given the name of the deceased as Gurdayal Singh 11. The most important feature of the statement of this doctor is that he could not say whether the injuries on the bones were ante mortem or post mortem. In view of the above evidence the trial court was of the opinion that three circumstances have been proved against the accused:- (1) Information under section 27 made by the accused corroborated by the discovery of the place where the dead body of his father was buried, the knowledge of the accused in respect thereof and the recovery of the skeleton. (2) The deceased has last been in his house with the members of his family including the accused before the disappeared finally (3) The accused kept silence about the whereabouts of the deceased and did not make any attempt to search him. 12. On the basis of the above three different pieces of circumstantial evidence, the trial court convicted the appellant for the offence under sections 302 and 201 IPC. The appellant was sentenced to imprisonment for life under section 302 IPC. and three years rigorous imprisonment with a fine of Rs. 300/-for the offence under section 201 IPC 13. Before us, Mr. B.R. Purohit, the learned counsel for the accused appellant has vehemently argued that it is a case of 'no evidence because even the basic for prosecuting the accused in a criminal case for murder has not been made out by the prosecution on account of complete absence of evidence regarding the important fact that any murder was committed or that the death of Gurdayal Singh was homicidal. According to Mr. According to Mr. Purohit unless it is established on record that the death of the deceased was homicidal, no question of involving any person for the murder and examining the circumstances other evidence can arise. 14. It was then argued that in any case the medical evidence it self make it doubtful whether the death was homicidal because the doctor has said that the injuries on the sleuth could be post mortem or ante mortem. Mr. Purohit then argued that even otherwise all that can be said to be against accused is that he gave information under section 27 of the Evidence Act in consequence of which the dead body was found although according to Mr. Purohit since the body was decomposed and the bones recovered were scattered and no expert opinion was obtained on those bones, it cannot be said that there was a dead body at all. Mr. Purohit submitted that recovery of a dead body at the instance of the son can at the best result in proving that he had knowledge of the dead body being buried at a particular place but nothing turns upon that alone. 15. Mr. Purohit admitted that so far as the so called evidence of last seen is concerned, it was false because in the family father, sons, wife and mother of the deceased all were living together, and all that was shown in the evidence was that the deceased disappeared by going outside and did not return back. This evidence cannot be termed as evidence of last seen because the prosecution case is that he was killed and buried in the house itself and the evidence of 'last seen' is that he left from the house and disappeared all alone. Mr. Purohit further submitted that inference of guilt on the conduct of the accused is not making a report or did not make any effort to search his father is wholly untenable in law as well as on the facts of the case. Mr. Purohit submitted that since it was proved that the deceased used to disappear from the house for six months or more and he was eccentric, there is nothing unusual if he did not return back for a month or two. 16. Mr. Mr. Purohit submitted that since it was proved that the deceased used to disappear from the house for six months or more and he was eccentric, there is nothing unusual if he did not return back for a month or two. 16. Mr. Bhati, learned Public Prosecutor has supported the judgment of the Sessions Judge and submitted that the evidence of recovery of the dead body alongwith the evidence of last seen is enough for holding that the accused is guilty. We have given a very thoughtful consideration to the contention of the learned counsel for the parties and gone through the entire record of the case. The statements of all the witness were read before us by the learned counsel for the appellant. 17. We are prepared to accept that the statement of the appellant to the police officer giving information about the dead body of the deceased and getting it recovered is admissible under section 27 of the Evidence Act. and held in Pulukuri Kottaya and Others v. Emperor (1947 P.C. 67) . In para 14 their Lordships were pleased to hold that the limited portion of the statement before the police in which the accused said that he hid the spear and his stick in the rick of Venkatanarasu in his village and he will show it to the police was admissible. This principle of law is so well established that we need not debit this aspect of the matter any further. Whether the recovered dead body was a dead body of a human being according to expert opinion is a different question. In the instant case the accused appellant stated before the police that he buried his father Gurdayal Singh first in the roodi and after some day he along with his brother took it out from there and buried it in Rohi Chak 10 MK square No. 39 killa No 5, which he can get recovered is admissible in evidence and it certainly proves that the information was about the dead body of the deceased Gurdayal Singh and he led the police to the spot and get it recovered. 18. However, the important relevant question which assumes importance is whether the dead body was on account of the death being natural or homicidal or accidental. It is only when the prosecution proves that it was homicidal death that the question of murder arise. 18. However, the important relevant question which assumes importance is whether the dead body was on account of the death being natural or homicidal or accidental. It is only when the prosecution proves that it was homicidal death that the question of murder arise. We have no hesitation to accept the contention of Mr. Purohit that in view of the medical evidence that it cannot be said whether the injuries on the @@skull were ante mortem or post mortem, no definite finding can be given by this Court that the death of Gurdayal Sirgh was caused by ante mortem injuries caused and it was homicidal. It may be or may not be, but we cannot say with certainly that it was positively a case of homicide In the instant case there is no other evidence on the basis of which it can be said that the death of deceased Gurdayal Singh was on account of any ante mortem injuries caused to him or in other words that it was a case of homicide In this view of the matter we are persuaded to accept the contention of Mr. Purohit that in the facts and circumstances of this case, the bedrock and foundation for holding the accused guilty of murder is patently absent and missing. 19. Even on the assumption that it was a case of homicide, although without giving a finding, we further find that the evidence against the accused at the most can be of information given under section 27 of the Evidence Act regarding the dead body and its recovery at the instance of the accused. This circumstance all alone in a case of circumstantial evidence cannot rule out the guilt of the accused. The reason is that the son of the deceased can have knowledge about the presence of the dead body even though he may not himself be a murderer and that the possibility cannot be ruled out. It is established law that in cases of circumstantial evidence the circumstantial evidence must be of such nature that it rules out possibility of any other hypothesis than the guilt of the accused. It has been held in the State of Punjab v. Bhajan Singh and others ( AIR 1975 SC 258 ) that in a case where the cause of death is not known, it cannot be said certainly that the death was homicidal. It has been held in the State of Punjab v. Bhajan Singh and others ( AIR 1975 SC 258 ) that in a case where the cause of death is not known, it cannot be said certainly that the death was homicidal. In Heera v. The State of Rajasthan (1978 Rajasthan Criminal cases, 226) , this Court after considering the various propositions of law observed as under:- "Once that conclusion is reached, that on the material furnished it cannot be held that the death of deceased was from violence, the recovery of the dead body at the instance of the accused, remains of no consequence." 20. Placing reliance upon the principles laid down by the Supreme Court in state of Madhya Pradesh v. Rama Krishna Ganpatrao (AIR 1964 SC, 20) and State of Punjab v. Bhajan Singh and others (AIR 1976 SC 258) , this Court held as under:- (A) Sec. 27 Evidence Act. We cannot speculate about the course of the death & cannot, on the material furnished, hold that the death of Gyarsa was from violence. Once that conclusion is reached,the recovery of the dead body, at the instance of accused, remains of no Consequence. (B) Criminal Trial-Suspicion A very strong suspicion arises against the accused by reason of the discovery of the dead body at the instance, but the suspicion, by itself however strong it may be is not sufficient to take place of proof and warrant a finding of guilt against the accused." We find that the present one is a case where even though in view of the developments which have been taken place in the case, there may be reasonable grounds for suspecting that the accused appellant may have something to do with the alleged murder if at all it took place, we have got absolutely no evidence to connect him with the crime. Firstly, as we have held that the commissions of the crime is doubtful and not proved because of the medical evidence and secondly there is no evidence against the accused except the evidence of the recovery at his instance, of the dead body. 21. Firstly, as we have held that the commissions of the crime is doubtful and not proved because of the medical evidence and secondly there is no evidence against the accused except the evidence of the recovery at his instance, of the dead body. 21. So far as reliance placed by the lower court on the conduct of the accused is concerned, we feel that since the deceased was eccentric and used to disappear for six months or more in the past also, it was not expected that his sons would start a search or make a report in the police immediately on his going out from the house. We have seen that the family of the deceased was composed of his wife, his mother, two sons and other persons, who were all living in one house and, therefore, it would be too much to expect that it was the duty of the youngest member of the family to report the matter to the police and on account of the absence of that any inference of guilt can be drawn or raised against him. 22. We are also disinclined to accept the contention of the prosecution and the circumstance which has been relied upon by the court that in the present case there was evidence of last seen against the appellant. Firstly the accused and deceased alongwith the mother of the deceased, wife of the deceased were living in one house and they were all members of one family, the accused being son of the deceased. Then all that has been alleged is that before he left the house never to return again, one of the members of the family was the appellant also It is surprising that how this can be treated as evidence of last seen. The question arises last seen where and with whom It is not the case that the accused and the deceased left the house and then thereafter the accused came back and the deceased never returned The evidence is that the deceased left the house and usually used to go for months together out of the house without information of his where abouts. Thus it is impossible to say how can there by an evidence of list seen by anyone against the appellant because admittedly in the house as mentioned above, the wife, mother and two sons used to live together. Thus it is impossible to say how can there by an evidence of list seen by anyone against the appellant because admittedly in the house as mentioned above, the wife, mother and two sons used to live together. It is surprising that the appellant has been singled out for using it as a circumstance for fastening the guilt against him in a case of murder. 23. In view of the above discussion we have no hesitation in holding that he present one is a case where the conviction of the accused appellant under section 302 IPC and also under section 201 IPC cannot be sustained. 24. The result is that the appeal is accepted. The conviction of the accused appellant Chhinderpal Singh under sections 302 and 201 IPC and the sentences passed are all set aside. The appellant is on bail and need not surrender.Appellant acquitted. *******