JUDGMENT 1. - The above mentioned three appeals are directed against a common judgment dated 22-9-82 passed by the Sessions Judge, Sawai Madhopur (Camp Gangapur City) whereby the accused-appellants Pappu, Rameshwar Singh and Mahaveer Singh have been found guilty for the offence under Section 364 IPC and each of them has been sentenced to 7 years' rigorous imprisonment and a fine of Rs. 1,000/-. Accused-appellant Suraj son of Narain has been found guilty for the offence u/ss 364 and 302, IPC and he has been sentenced to imprisonment for life and a fine of Rs. 3,000/-, or in default of payment of fine to further undergo one year's i R. I. u/s 302, IPC, and to 7 years R.I. and a fine of Rs. 1,000/-, or in default of payment of fine to further undergo 6 months R.I. u/s 364, IPC. Accused-appellant Suraj has also been found guilty u/s 365, IPC and has been sentenced to 3 years R.I. and a fine of Rs. 1,000/- or in default of payment of fine to further undergo 6 months R.I. All the above sentences have been ordered to run consecutively. 2. Because a common question of law and fact is involved in all the three appeals, therefore they are being disposed of by a common judgment. 3. Briefly stated, the facts of the case are that on the basis of a report lodged by Kalyan Prasad on 18-12-78 at P. S. Mandawar a case under Section 365, IPC was registered. It was alleged in the report that on 18-12-78 the son of the informant Krishna was missing from 1 PM. It has further been mentioned in this report that at the time of missing of Krishna he was wearing a blue half pant, white bush-shirt and sky-blue sweater, and he was 8 years old. In this report the informant has given full features of his son. After registering the case, the police started usual investigation and during the investigation the dead body of Krishna was recovered from a well at the instance of accused Suraj. The police also recovered the bush-shirt, chappal, half burnt sweater of Krishna at the instance of accused Suraj. In this report the informant has given full features of his son. After registering the case, the police started usual investigation and during the investigation the dead body of Krishna was recovered from a well at the instance of accused Suraj. The police also recovered the bush-shirt, chappal, half burnt sweater of Krishna at the instance of accused Suraj. During the course of investigation, ransom letters received by the informant were also handed over to the police through Ramniwas Specimen handwriting of accused Suraj was also taken in the court and the same was sent to the hand writing expert for comparison with the questioned hand-writing on ransom letters. The hand writing expert after scientific examination was of the opinion that the disputed and the specimen hand-writings were of one and the same person. Evidence was also collected by the police to the effect that the accused Suraj was seen with the son of the informant at different places. During the course of investigation it was also revealed that the accused-appellants were going through the market of Mandawar and three of the accused were going in the market first and behind them was the kidnapped boy Krishna. Behind Krishna accused-Rameshwar Singh was going. In the identification parade the accused appellants were identified by the prosecution witnesses. Test identification of the articles recovered was also conducted by the Tehsildar, Mahawa, and the articles were identified by the prosecution witnesses. The case was investigated into by the local police as also by the C. I. D. During the course of investigation seven persons were arrested in connection with this case. However, the police made one of the co-accused Prahlad as an approver. After following the usual procedure co-accused Prahlad was allowed to become an approver and his statement was recorded by the Judicial Magistrate. After completion of the investigation, a challan was filed in the court of Munsif & Judicial Magistrate, Hindon, who committed the accused for dial to the court of Session. The case was tried by the learned Sessions Judge, Sawai Madhopur (Camp Ganganagar City) who framed charges of the offence under sections 366, 364, 368, 386, 302 and O-B. ? IPC against the accused persons. The accused-appellants and the other co-accused denied the charges levelled against them and claimed to be tried. The prosecution examined as many as 33 witnesses and tendered 175 documents in evidence. IPC against the accused persons. The accused-appellants and the other co-accused denied the charges levelled against them and claimed to be tried. The prosecution examined as many as 33 witnesses and tendered 175 documents in evidence. Prahlad who was made as an approver was also examined by the trial Court and he did not support the prosecution story. Then the statements of the accused u/s 313, Cr. P. C. were recorded and they denied all the allegations leveled against them by the prosecution witnesses. The accused persons did not produce any evidence in defence. After hearing arguments of the learned counsel for the parties, the accused-appellants were found guilty for the offence as aforesaid and two of the co-accused were acquitted by the learned Sessions Judge. 4. We have heard learned counsel for the parties, and have gone through the entire record. 5. On behalf of accused-appellants Mahaveer Singh, Pappu and Rameshwar Singh it has been argued that there is no evidence against them and the learned Sessions Judge erred in connecting these three accused appellants on the basis of a very weak evidence, which does not connect these accused appellants with the crime It has been also argued that the test identification is of no value because the accused-appellants were shown to the witnesses at different places before the identification parade. 6. Learned counsel Mr. M. A. Khan made the following submissions on behalf of appellant Suraj:- 1- That the identification parade has been conducted after a long delay. Accused Suraj was arrested on 2-1-79 and the identification parade was conducted on 6-2-79. The prosecution failed to give explanation for this inordinate delay. 2- That there is no evidence that Suraj appellant was kept Ba-Parda. During the course of investigation, Suraj was taken from one place to another, and in that process the prosecution witnesses were fully made familiar with the face of accused Suraj. The prosecution failed to give explanation for this inordinate delay. 2- That there is no evidence that Suraj appellant was kept Ba-Parda. During the course of investigation, Suraj was taken from one place to another, and in that process the prosecution witnesses were fully made familiar with the face of accused Suraj. During the course of investigation, the prosecution witnesses who identified Suraj accused used to sit at the police headquarters just in front of the accused-appellant, and at that occasion the prosecution witnesses were fully able to recognise accused Suraj 3- That during the course of investigation accused-Suraj sustained a fracture on his hand and the same was plastered in the hospital and in that condition accused Suraj was sent for identification parade wherein none of the persons mixed with accused Suraj was having a plaster on his hand. Therefore, it became easy for the identifying witnesses to identify accused Suraj. 4- That the specimen hand writing and the questioned documents, i. e., the ransom letters, have been planted against the accused Suraj and they have been got written from accused Suraj under duress and under the apprehension that the accused shall be seriously tortured in case the desired writings were not given to the police by the accused. 5- That the opinion of the hand writing export is a weak type of evidence and no reliance can be placed on it without any corroboration. 6- That if the evidence of the prosecution is accepted to the effect that the boy was seen with the accused Suraj. then at no occasion the boy made any resistance or protest. It shows that the boy was not kidnapped but it is just possible that the boy was following accused Suraj by chance. 7- That the recovery of dead body is not sufficient to convict the accused Suraj for the offence under Section 302, IPC. 7. The learned P P. on the other hand argued that the accused-appellants have been rightly convicted by the learned Sessions Judge. The allegations levelled against the prosecution by the learned counsel are quite baseless and without any foundation. 8. We have considered the arguments of the learned counsel for the parties and have also perused the judgment under appeal. 9. The learned P P. on the other hand argued that the accused-appellants have been rightly convicted by the learned Sessions Judge. The allegations levelled against the prosecution by the learned counsel are quite baseless and without any foundation. 8. We have considered the arguments of the learned counsel for the parties and have also perused the judgment under appeal. 9. Before going into the merits of this case, we would like to quote the observations made by the Hon'ble Supreme Court in the case Kartar Singh v. The State of Punjab (AIR 1974 SC, 1193)1 ; - "It is often difficult for Courts of law to arrive at the real truth in criminal cases. The judicial process can only operate on the firm foundations of actual and credible evidence on record. Mere suspicion or suspicious circumstances cannot relieve the prosecution of its primary duty of proving its case against an accused person beyond reasonable doubt. Courts of justice cannot be swayed by sentiment or prejudice against a person accused of the very reprehensible crime of patricide. They cannot even act on some conviction that an accused person has committed a crime unless his offence is proved by satisfactory evidence of it on record. If the pieces of evidence on which the prosecution chooses to rest its case are so brittle that they crumble when subjected to close and critical examination so that the whole superstructure built on such insecure foundations collapses, proof of some incriminating circumstances, which might have given support to merely defence evidence cannot avert a failure of the prosecution case." 10. We would like to examine this case in view of the observations made above by the Hon'ble Supreme Court. This is a settled principle of law that the guilt against an accused has to be proved by the prosecution beyond a reasonable doubt. We would like to examine the case against the accused-appellants individually. 11. The accused-appellants Pappu, Rameshwar and Mahaveer Singh as also Suraj have been convicted for the offence u/s 364, IPC. Before convicting any person u/s 364, IPC it is to be proved that the accused kidnapped or abducted any person. Kidnapping is defined u/s 359, IPC, wherein it has been embodied that kidnapping is of two kinds. 11. The accused-appellants Pappu, Rameshwar and Mahaveer Singh as also Suraj have been convicted for the offence u/s 364, IPC. Before convicting any person u/s 364, IPC it is to be proved that the accused kidnapped or abducted any person. Kidnapping is defined u/s 359, IPC, wherein it has been embodied that kidnapping is of two kinds. Kidnapping from India and kidnapping from lawful guardianship, kidnapping from India is defined u/s 360, IPC and kidnapping from lawful guardianship is defined u/s 361, IPC, which reads as under:- "361. - Kidnapping from lawful guardianship - Whoever takes or entices any minor under sixteen years of age if a male, or under 18 years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship." The word `takes' in S. 361, IPC does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means "to cause to go to escort or to get into possession". The word entice seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. In Vardaranjan v. State of Madras ( AIR 1965 SC 942 ) , it has been observed that there is a distinction between taking and allowing a minor to accompany a person. Where the minor leaves her fathers protection knowing or having capacity to know the full import of what she is doing voluntarily joins the accused person. It cannot be said that the accused had taken her away. Something more has been shown and that is some kind of enticement held out by the accused or in active participation by him in the formation of the intention of the minor to leave the house of the guardian. 12. If the minor leaves her parental home completely uninfluenced by any promise, offer or enticement emanating from the accused, the latter cannot be considered to have committed the offence as defined in Section 361, IPC. 13. The evidence against the accused Pappu, and Rameshwar is of PW 2 Bashirkhan PW 5 Madanlal and PW 11 Bhikharam. There is no other evidence against these two accused. 13. The evidence against the accused Pappu, and Rameshwar is of PW 2 Bashirkhan PW 5 Madanlal and PW 11 Bhikharam. There is no other evidence against these two accused. The aforesaid PW 2, PW 5 and PW 11 have identified these accused. The prosecution made a futile attempt to bring incriminating evidence against the accused by producing Prahlad, so-called approver, but he did not support the prosecution case. 14. PW 2 Bashirkhan deposed that he had a shop in village Mandawar. In the front line of the market there is a shop of Kalyan Prasad. The witness further deposed that he knew Krishna son of Kalyan Prasad who is not alive now. He further deposed that just near his shop there is a people tree and a water hut, beneath the people tree. He also deposed that some one and a half years ago in the noon he saw Prahlad Palledar (PW 1) along with three persons. The witness identified those three persons as Pappu, Suraj and Mahaveer. The witness further deposed that all the four were talking in a low voice and were smoking, and at that time accused Rameshwar came and met with the above mentioned four persons and he also had a talk with them. Thereafter, Rameshwar went to the shop of Kalyan Prasad. He further deposed that after sometime he saw that the accused Suraj, Pappu, Mahaveer and Prahlad were going on the railway station road, and Krishna son of Kalyan Prasad was following those persons and Rameshwar was following Krishna. The witness also deposed that he saw the above mentioned six persons going on the road leading to the station and he saw them upto the turn which comes before the Chopar of the road The witness further deposed that the accused appellants were identified by him in Jail. Looking to the entire statement of this witness the only thing which comes out is that initially four persons were sitting just near the water hut and they were talking in a low voice, which was not heard by the witness and at that time accused Rameshwar met them. He went back to the shop of Kalyan Prasad and subsequently the accused-appellants, Prahlad and Krishna were seen going on the road leading to the station. He went back to the shop of Kalyan Prasad and subsequently the accused-appellants, Prahlad and Krishna were seen going on the road leading to the station. By this evidence it cannot be observed that the accused-appellants hatched any conspiracy to kidnap Krishna or that Krishna was following the accused-appellants under any pressure or force or that Krishna was following the accused-appellants or going with the accused-appellants because of certain inducement, allurement or threat etc. extraordinary conduct of the accused-appellant or of the kidnapped boy Krishna has been stated by this witness. The only thing which can be inferred from the whole statement of this witness is that five persons were going on the road leading to the station and Krishna was also going on the same road. If Krishna was following the accused-appellants or going with the accused-appellants under some duress or because of certain inducement or allurement, then such an assumption was possible while witnessing the conduct of the accused appellants and that of Krishna. But the witness told nothing about such an assumption, and the unnatural conduct of the accused-appellants as well as Krishna from which one can assume that the boy was going on the road under certain exceptional circumstances. 15. The other accused against whom PW2 Bashir has given evidence are Suraj and Mahaveer Singh, but the position of his statement as against Suraj and Mahaveer is also the same as was against Rameshwar and Pappu, which we have discussed above. We are, therefore, of the opinion that no adverse inference can be drawn against the accused-appellants Pappu, Rameshwar. Suraj and Mahaveer Singh on the basis of the statement of this witness unless something more is proved against them, which will be seen later on. 16. PW5 Madanlal is another witness on whose testimony the prosecution has placed reliance. He has deposed that he is a resident of Garh Himmatsingh and he had a shop at village Mandawar. Usually in the evening after closing the shop he used to go to Garh Himatsingh The witness further deposed. " ogka nks lky igys jkeyhyk gqbZ FkhA " From this statement it is not clear that Ramlila was organised at Mandawar or Garh Himmatsingh. His statement is ambiguous on this point. He further stated that he also went to see Ramlila and saw five persons sitting on a roof just near the place where Ramlila was organised. " ogka nks lky igys jkeyhyk gqbZ FkhA " From this statement it is not clear that Ramlila was organised at Mandawar or Garh Himmatsingh. His statement is ambiguous on this point. He further stated that he also went to see Ramlila and saw five persons sitting on a roof just near the place where Ramlila was organised. The witness identified those five persons and they were accused-appellants Suraj, Mahaveer, Rameshwar, Pappu and PW 1 Prahlad. He further stated that the accused-appellant s were on the roof of a house while he was on the ground, and those five persons were talking which was not heard by the witness. He further stated that there was a little attention of the above mentioned five persons towards Ramlila. After the close of Ramlila the witness left the place as also the above named five persons. The witness has given a definite date, i.e. 7/8th December, 1978. We are of the opinion that the facts given by this witness do not at all help the prosecution in order to draw an inference of guilt against the accused-appellants. We are also of the opinion that this is no evidence in the eye of law with regard to the offence for which the accused appellants have been found guilty. We think that the prosecution by adducing this evidence wanted the court to draw a doubtful inference against the accused-appellants. But we have already cited the observations of the Hon'ble Supreme Court, wherein it has been observed that mere doubt cannot take the place of the proof. The case against the accused persons is to be proved by the prosecution beyond reasonable doubt. The expected inference of the prosecution is negatived by the evidence of PW3 Pritam and PW 12 Rambabu, who have stated that long before 18.12.78 Krishna was seen in the lap of Mahaveer Singh, and as per PW3 Pritam on the shoulder of Mahaveer Singh. It is thus clear that after the happening as disclosed above by PW5 Madanlal. Mahaveer Singh had the opportunity of taking Krishna with him, but the boy was left at his house. We are of the opinion that the statements of these two witnesses i.e., PW3 Pritam and PW12 Rambabu negative the presumption as alleged by the prosecution. It is thus clear that after the happening as disclosed above by PW5 Madanlal. Mahaveer Singh had the opportunity of taking Krishna with him, but the boy was left at his house. We are of the opinion that the statements of these two witnesses i.e., PW3 Pritam and PW12 Rambabu negative the presumption as alleged by the prosecution. However, it was not possible for PW5 Madanlal while standing on the ground to have witnessed the unnatural conduct of the persons sitting on the roof of a house. Besides this, many persons were sitting on the roof of the house to see Ramlila as deposed by PW5 Madanlal, then what was the reason which drew his attention towards the accused-appellants. PW5 Madanlal is silent on this point. The witness has gone to the extent that he observed that the accused-appellants were not paying any attention towards Ramlila. We are, therefore, fully satisfied that PW5 Madanlal has given a false statement against the accused-appellants and the same cannot be believed. He is a made up witness in order to prove the circumstances against the accused-appellants. 17. PW. 11 Bhikharam has also stated the same facts as narrated by PW2 Bashir Khan. It will not be of any use to repeat the same reasons on which the statement of Bashir Khan (PW2) has been disbelieved. The statement of this witness does not lead us to any conclusion against the accused-appellants and it cannot be inferred that the accused-appellants kidnapped the boy Krishna. 18. There is no other evidence against accused Pappu and Rameshwar and we are of the opinion that the learned Sessions Judge has committed a serious error in convicting these two accused for the offence u/s 364, IPC. They are, therefore, entitled to acquittal. Moreover, the evidence of identification in the court and in the identification parade by PW2 Bashirkhan, PW5 Madanlal and PW11 Bhikharam, is of no value, because the act of these accused-appellants as disclosed by these witnesses is not of such a nature so as to conclude that those two accused kidnapped Krishna. 19. Now we come to the case of accused Mahaveer Singh. He was identified by PW2 Bashirkhan, PM5 Madanlal and PW 11 Bhikaram and all these three witnesses have levelled similar allegations against him as that of Rameshwar and Pappu accused. 19. Now we come to the case of accused Mahaveer Singh. He was identified by PW2 Bashirkhan, PM5 Madanlal and PW 11 Bhikaram and all these three witnesses have levelled similar allegations against him as that of Rameshwar and Pappu accused. Therefore, the evidence of these three witnesses cannot be read against accused Mahaveer Singh and no inference of guilt can be drawn against him also. 20. Apart from the above three witnesses, the prosecution has produced PW3 Pritam, PW12 Rambabu, PW13 Babulal, PW5 Hazarilal and PW16 Suresh wherein we find reference of accused Mahaveer Singh. PW3 Pritam has stated that on 13-12-78 at about 8-9 PM he was coming from village Mandawar and going to Mandi. At that time, just outside the village he saw a man standing near Khara Kua. The witness has given the colour and size of that man, and has further stated that a boy aged 8-9 years was sitting on the shoulders of that man. He has also stated that at time PW 12 Rambabu came there and asked PW3 Pritam as to whether he was going to Mandi and also asked the man standing near the well as to where he was taking Krishna. PW3 Pritam stated that Rambabu (PW12) identified Krishna. The witness further stated that on questioning the man on whose shoulders the boy was sitting replied that he was taking the boy to show the temple of Bharonji. Hawa Maka and Jharna. Then the witness and Rambabu told the man that it was too early and too cold, let the sun may rise a bit more then he may take the boy to show the temple etc. On this that man who has been identified as Mahaveer Singh in the court, came back with PW3 Pritam and PW 12 Rambabu. The witness admitted in cross-examination that he did not speak anything to Kalyan Prasad about this happening, but Rambabu informed Kalyan Prasad about the same. 21. PW 12 Rambabu has stated that between 12/13th Dec. 1978 at about 8-9 AM he was going from Mandawar to Mandawar Mandi and near Khara Kua he saw a man having Krishna in his lap and he was taking the boy towards Jharna of the village which is about 1 Km. from Mandawar. 21. PW 12 Rambabu has stated that between 12/13th Dec. 1978 at about 8-9 AM he was going from Mandawar to Mandawar Mandi and near Khara Kua he saw a man having Krishna in his lap and he was taking the boy towards Jharna of the village which is about 1 Km. from Mandawar. The witness further stated that on his asking the man, who was identified by the witness as Mahaveer Singh in the court replied that he was taking the boy to show Jharna. The witness all stated that PW3 Pritam has also asked the man the same question and the same reply was given to Pritam also. The witness has also deposed that Mahaveer Singh came back with them up to Mandi. As we have quoted part of the statement of these witnesses, we find that there is a material contradiction in between their statements to the effect that PW3 Pritam says that the boy was sitting on the shoulder of Mahaveer Singh whereas PW12 Rambabu says that he was in the lap of Mahaveer Singh. PW3 Pritam says that it was PW12 Rambabu who asked Mahaveer Singh about the boy but PW12 Rambabu says that both of them asked about the boy. PW3 Pritam says that they prohibited Mahaveersingh from going to Jharna and other places as it was too early and too cold, but PW12 Rambabu does not say so. PW12 Rambabu has stated that he is the Munim of Kalyan Prasad. It is the case of the prosecution that Mahaveer Singh was also well known to Kalyan Sahai and the boy was very much familiar with Mahaveer Singh, and Mahaveer Singh frequenlty used to visit the house of Kalyan Sahai. It is strange that the munim of Kalyan Sahai failed to identify that person who was well known to Kalyan Sahai and frequently used to visit his house and with whom the boy was also familiar. Moreover, Kalyan Sahai father of the boy Krishna has specifically given the age of the boy as 10 years. A boy of 10 years will never like to sit in the lap or on the shoulder of a person. Moreover, Kalyan Sahai father of the boy Krishna has specifically given the age of the boy as 10 years. A boy of 10 years will never like to sit in the lap or on the shoulder of a person. It is also strange that a boy of 10 years if taken by force will not complain for the same specially to the munim of his father, and if the boy was taken under certain inducement or allurement, and if that purpose is not fulfilled, then the boy must have complained for the same. By producing these two witnesses, PW3 Pritam and PW12 Rambabu the prosecution expected that a presumption would be drawn to the effect that Mahaveersingh attempted to kidnap the boy prior to 18.12.78 but no such inference can be drawn against accused Mahaveer Singh on such type of evidence. PW3 Pritam has given a definite date while PW12 Rambabu has not given any definite date. As per the statement of PW12 Rambabu, accused Mahaveer Singh brought back the boy without any objection or suggestion whereas PW 3 Pritam says that on their suggestion Mahaveer Singh brought back the boy to Mandi. PW12 Rambabu has admitted in cross-examination that he knows all the servants of Kalyan Sahai and he narrated this incident to Kalyan Sahai. If the statement of this witness would have been true on this point, then Kalyan Sahai would have asked the boy Krishna and also Mahaveer Singh as to why and when Krishna was taken by Mahaveer Singh and in doubtful circumstances Kalyan Sahai would have become alert, but no such thing happened as per the report lodged by Kalyan Sahai the boy was kidnapped on 18.12.78. The gap of 5 days is more important the evidence of PW3 Pritam and PW 12 Rambabu is. 22. In the light of foregoing discussion, we are of the opinion that no reliance can be placed on the testimony of PW 3 Pritam and PW 12 Rambabu and no inference of guilt can be drawn against accused-appellant Mahaveer Singh. 23. Now there remain PW 15 Hazarilal and PW 16 Suresh who have spoken against accused Mahaveer Singh in their statements. PW 15 Hazarilal deposed that on 27-12-78 he had gone to village Raisinghpura in order to search the boy of Kalyansahai on the request of Kalyan Sahai In the evening they reached the village Raisinghpura. 23. Now there remain PW 15 Hazarilal and PW 16 Suresh who have spoken against accused Mahaveer Singh in their statements. PW 15 Hazarilal deposed that on 27-12-78 he had gone to village Raisinghpura in order to search the boy of Kalyansahai on the request of Kalyan Sahai In the evening they reached the village Raisinghpura. stayed there at night and in the morning they went to Deoki Bund along with Mahaveer Singh. He further deposed that Mahaveer Singh was well known to him In the ransom letters it was directed that ransom money is to be given at Deoki Bund. The witness further stated that he had seen those ransom letters which were in the handwriting of accused Suraj. The witness claimed that he was familiar with the handwriting of accused Suraj, because a khata in favour of this witness was written by Suraj in the Bahi of this witness. But the witness failed to identify the hand-writing on ransom letters in the trial Court. This witness (PW 15) further deposed that Mahaveer Singh informed him and other persons that the son of Kalyan Sahai was taken away by Suraj Prasad, who could be found near-about village Behror. On this the witness took Mahaveer Singh to village Behror, but neither they found the boy nor any address of Suraj Prasad. The witness further stated that in the incident of kidnapping four persons are involved and they are Pappu, Prahlad and Suraj and four persons will divide the ransom money to the tune of Rs. 8,000/- each. By this evidence prosecution tried to prove a link between accused Mahaveer Singh and accused Suraj This witness is a liar when he says that he was familiar with the handwriting of accused Suraj and he failed to identify the ransom letters which is the main limb of the prosecution case. Moreover, the conduct of Mahaveer Singh as shown by this witness does not show any mala fides on the part of Mahaveer Singh and no adverse inference can be drawn against accused-appellant Mahaveer Singh on the basis of the evidence of PW 15 Hazarilal. It has been stated by PW 15 Hazarilal that Mahaveer Singh told them that the boy was taken away by Suraj in conspiracy with Pappu and Prahlad. It has been stated by PW 15 Hazarilal that Mahaveer Singh told them that the boy was taken away by Suraj in conspiracy with Pappu and Prahlad. The name of a particular village where Suraj could be found was also given by Mahaveer Singh to him and that village was visited by this witness and other companions including Mahaveer Singh. If the information of Mahaveer Singh was correct then the boy must have been found in village Behror. It has not been explained by this witness as to why he went to search the boy Krishna and what was his relation with Kalyan Sahai. PW 15 Hazarilal has also stated one thing more that in the ransom letter his name was referred to and it was directed that ransom money was to be sent by Hazarilal. The witness admitted all these facts, but he never claimed that he had gone to village Deoki Bund, the place shown in ransom letter for receiving the ransom money. Looking to the entire statement of PW 15 Hazarilal we find that it cannot be read as against Mahaveer Singh and the conviction of Mahaveer Singh cannot be sustained on his evidence. One more factor for disbelieving the statement of PW 15 Hazarilal is that he stated about the kidnapping of the boy in the court, but did not state so before the police, and it is admitted by him that he did not state this fact before the police. 24. PW 16 Suresh stated that Kalyan Prasad informed him about the kidnapping of his son by Mahaveer Singh and Suraj. On his asking Kalyan Prasad informed him that Kanhiya and Krishna brother of Rameshwar informed Kalyan Piasad that Krishna was kidnapped by Mahaveer and Suraj. Then he and Kalyan Prasad went to Raisingpura where they met with Mahaveer on 27.12.78. Hazarilal, Prahlad and PW 16 Suresh asked Mahaveer about the boy and Mahaveer told them that the boy had been kidnapped by Suraj and he did not know his whereabouts, but at the same time he stated that Mahaveer told them that Suraj was in his reach and if Krishna was found then some money should be paid to him (Mahaveer). On this PW 15 Hazarilal PW 16 Suresh and Rameshwar prombed to pay Rs. 10,000/- to Mahaveer and after that promise Mahaveer accompanied them. On this PW 15 Hazarilal PW 16 Suresh and Rameshwar prombed to pay Rs. 10,000/- to Mahaveer and after that promise Mahaveer accompanied them. The witness further seated that they went to Rapi (Behror). I he witness fruiter stated that Mahaveer told them that the ransom letter might had been received by Kalyan Sahai and. therefore they should go to Deoki Bund. The witness further repeated the same facts as narrated by PW 15 Hazarilal and also stated about the extra judicial confession of Mahaveer Singh, which has not been deposed by PW 15 Hazarilal. In cross-examination the witness admitted that Kalyan Prasad informed them on 27.12.78 that his son was kidnapped by Suraj and Mahaveer Singh and he came to know about this fact through Kishan and Kanhaiya brother of Rameshwar. He further stated in cross-examination that at the time when Kalyan Prasad told him that the boy had been kidnapped by Mahaveer Singh and Suraj. Kanhaiya and Kishen were also present. They went to Deoki Bund and came back on 30.12.78. He also stated that he d d not tell Kalyan Prasad about the talks in between PW 15 Hazarilal, PW 16 Suresh and Mahaveer Singh accused. The witness also stated that on his return Kishan and Kanaiya were not found in the village and he did not inform the police about the said talks with Mahaveer Singh wherein Mahaveer Singh had given a confessional statement. The witness disowned his police statement Ex. D. 8. We have gone though the entire statement of this witness and we find that he has given a very irresponsible version just contrary to PW 15 Hazarilal. This witness has deposed several facts which are said to have been disclosed by accused Mahaveer Singh and that disclosure amounts to extra judicial confession. But Suresh (PW 16) has made lot of improvements in his statement and after reading his entire statement it appears that the witness wanted to falsely implicate Mahaveer Singh on one ground or the other, and that is why he has given different versions before the trial court and gave a best suited statement in order to achieve the end, i e. to implicate Mahaveer Singh in this case. Due to the reasons mentioned above, we are not inclined to accept the testimony of PW 16 Suresh as against accused Mahaveer Singh. 25. Due to the reasons mentioned above, we are not inclined to accept the testimony of PW 16 Suresh as against accused Mahaveer Singh. 25. There is one more witness Babulal (PW 13) in whose statement a reference of accused Mahaveer Singh has been given. He has deposed that he is a class IV employee in the Education Department and is posted at Mandawar school. At about 10 A.M. when he was coming back from the school, he saw Kirshna playing with glass globule's " dkap dh xksyh " The witness further stated that he asked the boy not to play there. On this the boy Krishna told that the man standing near him was a Palledar of their shop. The witness was asked to identify that person in the trial court who was standing near the boy and he identified accused Mahaveer Singh in the court. We have gone through the entire statement of this witness and without referring any particular portion of his statement, we are of the opinion that his statement is full of doubts The witness has stated that the school hours were from 7 AM to 12-30 P.M. but because of examinations the school was off at 10 A.M. We are unable to accept this version of the witness due to the fact that in the month of December the schools do not start at 7 A. M. and usually the school hours are from 10-30 to 5-30 PM. In the first part of his statement the witness has given correct time, but subsequently he has changed his version and has stated that because of half yearly exams, the school was closed at 10 A.M. Usually in the month of December, the schools are run from 10 or 10-30 A.M. but where there are two or three shifts, the school starts at about 8 A. M. and is closed by 6 P.M. Therefore, it cannot be accepted that the witness was coming back from the school to his house after school hours. His statement cannot be believed also on the point that he had asked the boy not to play and when the boy was restrained then there was no occasion for the boy to have given the identity of the person standing near him, who was subsequently identified as Mahaveer Singh. 26. His statement cannot be believed also on the point that he had asked the boy not to play and when the boy was restrained then there was no occasion for the boy to have given the identity of the person standing near him, who was subsequently identified as Mahaveer Singh. 26. By the statement of PW 12 Rambabu the prosecution tried to establish that the boy was seen in the lap of a person who was subsequently identified as Mahaveer Singh and the boy was known to Rambabu (PW 2). because he was a munim of Kalyan Prasad father of the kidnapped boy. Rambabu has admitted in his cross-examination that he knew all the servants of Kalyan Prasad. This shows that Mahaveer Singh had never been an employee of Kalyan Prasad, but on the other hand from the statement of other witnesses the prosecution wanted to establish that accused Mahaveer Singh was familiar with the family of Kalyan Prasad and deceased Krishna was very much familiar with him. It was also made to be stated from the mouth of Krishna that Mahaveer Singh was a regular palled of the shop. Thus, it is clear that the prosecution has presented a conflicting evidence as against accused Mahaveer Singh. 27. We have already discussed the evidence brought forward by the prosecution against accused Mahaveer Singh and we are of the opinion that the statements of the prosecution witnesses who have referred the name of the accused Mahaveer Singh cannot be believed. Therefore, accused Mahaveer Singh cannot be convicted on the basis of such evidence. He is entitled to the benefit of doubt which doubt is there in the evidence of the prosecution witnesses. 28. Therefore, accused Mahaveer Singh cannot be convicted on the basis of such evidence. He is entitled to the benefit of doubt which doubt is there in the evidence of the prosecution witnesses. 28. Now, we take up the case of accused-appellant Suraj against whom the prosecution has produced the following type of evidence:- (a) that the deceased boy Krishna was seen in the company of accused Suraj at various places; (b) that the accused Suraj wrote the ransom letters to Kalyan Prasad father of the deceased Krishna; (c) that the dead body of Krishna was recovered at the information and instance of accused Suraj from a well; (d) that the sweater and pair of chappals were recovered on the information and at the instance of accused Suraj; (e) that the accused Suraj was identified by the prosecution witnesses in the court as well as in the identification parade; (f) that accused Suraj was seen in the company of other co-accused and was also seen going towards Station road along with other co-accused followed by deceased Krishna; (g) that the clothes of the deceased were recovered on the information and at the instance of accused Suraj which were identified by the prosecution witnesses at the test identification. 29. We have already discussed the evidence of PW 2 Bashirkhan, PW 5 Madanlal and PW 11 Bhikharam and have disbelieved their statements. Therefore, no inference of guilt can be drawn against accused Suraj on the basis of those statements. 30. There is no direct evidence of kidnapping the deceased by the accused Suraj. The prosecution has produced circumstantial evidence on the basis of which it has been submitted by the learned P. P. that it will be presumed that the accused Suraj kidnapped the deceased in order to commit his murder, in case the ransom amount was not paid to him. PW 6 Ghudya, PW 23 Mst. Kamod and PW 24 Gangasahai are the witnesses who have stated that the accused Suraj was seen along with Krishna in their respective villages. PW6 Ghudya has stated that some two years back Suraj Lal came to his well for drinking water. At that time a boy aged about 8 years was with him. The boy was blue half-pant and bush-shirt Accused Suraj drew water from the well by a bucket belonging to the witness. PW6 Ghudya has stated that some two years back Suraj Lal came to his well for drinking water. At that time a boy aged about 8 years was with him. The boy was blue half-pant and bush-shirt Accused Suraj drew water from the well by a bucket belonging to the witness. The witness had asked the accused that he could take water from the earthen pitcher kept by him but the accused refused to take water from that pitcher saying that he is a Brahmin by caste and cannot drink water from a pitcher belonging to Meena community. This witness in cross-examination has admitted that accused Suraj was not known to him from before the day when he came to drink water from the well. It is also admitted by this witness that the police made known to him the name of the accused Suraj. Accused Suraj was not identified by this witness either in the court or in the identification parade. When the accused Suraj was not known to the witness, it was obligatory on the part of the prosecution to have got the identification done by this witness. This is a strong infirmity in the prosecution case and because of this infirmity, we are not prepared to accept the version given by PW6 Ghudya. 31. The other witness who had seen the deceased Krishna in the company of accused Suraj is PW 23mt. Kamod. She has stated that the accused Suraj was known to her prior to the occurrence. She has further stated that some two and a half years back accused Suraj had come to her house along with a boy aged about 5-6 years, Suraj stayed there for about half an hour and within that period she had no talks with the boy in the absence of Suraj accused when he had gone to answer the call of nature. The witness stated that her aunt in-law was serious on that day, Suraj left her house along with the boy. We are of the opinion that the statement of this witness cannot be believed, because she has given an implicating statement and not a natural statement. When Suraj had come with a boy to her house who was a stranger to the witness, she did not ask anything either from the boy or from the accused Suraj. We are of the opinion that the statement of this witness cannot be believed, because she has given an implicating statement and not a natural statement. When Suraj had come with a boy to her house who was a stranger to the witness, she did not ask anything either from the boy or from the accused Suraj. She has admitted in cross-examination that when Suraj had gone to answer the call of nature, the boy was all alone, but she did not ask the boy anything. She has also not mentioned any extraordinary conduct. She has given the age of the boy as 5-6 years, whereas the boy kidnapped in this case was 10 years of age. Therefore, it cannot be inferred that the boy which was seen by Smt Kamod (PW 23) in the company of accused Suraj was the deceased Krishna. Moreover, as per the prosecution case the boy was kidnapped either by force or by inducement. The hoy was aware of his house and was in the company of a stranger. Therefore, after getting a chance of saying something, the boy could not have remained silent. The silence of the boy and no enquiry by the witness from the boy show that the boy said to have been seen by PW 23 Mst. Kamod was not a stranger to the witness and to the accused Suraj, otherwise the conduct of the boy might have been different and this shows that statement of PW 23 is false. 32. The third witness is PW 24 Ganga Sahai, who has stated that two and a half years before at about 9 A.M. accused Suraj came to his field along with a boy aged about 10 years from the side of village Karnawar. He has stated that the boy was shearing a blue half pant and a bush-shirt and was without any shoe or chappal. The accused Suraj had asked for some break fast for boy saying that the boy was hungry. On this the witness took the boy and the accused Suraj to his house but in the mean time the belt of his diesel pump of the well was broken and as such he went back to his field and his daughter Batto gave breakfast to the boy and the accused Suraj. After taking breakfast accused Suraj went away. On this the witness took the boy and the accused Suraj to his house but in the mean time the belt of his diesel pump of the well was broken and as such he went back to his field and his daughter Batto gave breakfast to the boy and the accused Suraj. After taking breakfast accused Suraj went away. Although this witness identified the accused Suraj in the parade, but his statement does not appear to be trustworthy. The witness did not state about any extra ordinary conduct of the boy. This witness also says that the boy was following accused Suraj. The breakfast was demanded by saying that the boy was hungry and on that occasion the hoy did not speak a single word. The boy was taken in the village and possibly the boy had seen many villagers. Deceased Krishna was definitely a stranger to accused Suraj and as such it was not possible that the deceased Krishna might have followed the accused Suraj. Therefore, this evidence also cannot be believed in order to convict the accused Suraj for the offence u/s 364 and 302, IPC. 33. Now we come to the ransom letters. It is an established fact that Kalyan Prasad (PW 14) had received ransom letter which bore the signature of deceased Krishna. Those signatures of Krishna have been correctly identified by Kalyan Prasad, and this identification cannot be disbelieved due to the fact that Krishna was the son of Kalyan Prasad and his father must be knowing his handwriting. The ransom letters were handed over to the police vide Ex. P.7, P.8 and P.9 and they were sealed. PW 30 Bhavrukhan, Munsif & Judicial Magistrate, Nagor, who was working as such on 16.1.79, has stated that the envelopes which were properly sealed were opened by him and in those envelopes letters marked Ex. 7,8 and 9 were found. He has further stated that he took specimen hand-writing of the accused and the ransom letters were copied on different papers by accused Suraj. They were sent for comparison to the hand-writing expert Shri Santokhsingh (PW 33), who examined these documents. 7,8 and 9 were found. He has further stated that he took specimen hand-writing of the accused and the ransom letters were copied on different papers by accused Suraj. They were sent for comparison to the hand-writing expert Shri Santokhsingh (PW 33), who examined these documents. He examined and compared the ransom letters with the specimen hand writing and opined that the person who wrote the enclosed writings and signatures, stamped and marked as B-1 to B-5 on Ex.P. 19 and P.20 also wrote the red enclosed writings and signatures similarly stamped and marked Q-9A, Q-10A and Q-14A, which are Ex P.31, P. 11 and PW 17 respectively. Similarly, the person who wrote the red enclosed writings stamped and marked S-1 to S-31, S-31 to S-31/1, S.32 to S-42 also wrote the red enclosed writings similarly stamped and marked as Q-1 to Q-14. We do not find anything in his cross-examination so as to weaken his testimony. Therefore, it can be easily observed that the ransom letters received by Kalyan Prasad (PW 14) were in the hand-writing of the accused Suraj and they also bore the signatures of deceased Krishna. A part of the letters was written by the deceased Krishna wherein some tragic words were written and it was suggested to his father that ransom money should be paid immediately, otherwise he will be murdered. The learned Sessions Judge has discussed this evidence at length, and we endorse the same. It will be of no use to repeat the same finding in our judgment. Therefore, a definite conclusion can be drawn against the accused Suraj that at the time when ransom litters were written by him the deceased Krishna was in the company of accused Suraj and he was keeping the boy with him without the consent of his father. Thus, from the ransom letters it can be inferred that the boy was kidnapped possibly by some one else but was in the custody of accused Suraj and he was keeping the boy with him in order to extort money from Kalyan Prasad, father of the boy. 34. The other circumstantial evidence brought on record by the prosecution is that on the information and at the instance of accused Suraj the dead body of Krishna was recovered from a well. PW 9 Babulal and the Investigating Officer have proved the recovery memo Ex.P. 12. 34. The other circumstantial evidence brought on record by the prosecution is that on the information and at the instance of accused Suraj the dead body of Krishna was recovered from a well. PW 9 Babulal and the Investigating Officer have proved the recovery memo Ex.P. 12. Babulal (PW 9) has stated that when the dead body of Krishna was recovered there was a half pant of blue colour on the person of the deceased which was taken into possession by the police and its memo Ex. P. 30 was prepared which bears his signature. The half pant so recovered was kept under seal. The Investigating Officer also prepared site plan of the well, which is Ex. P. 14. PW 9 Babulal further proved Panchayatnama Ex P.15. Babulal (PW 9) has further stated that the accused Suraj had disclosed the name of the father of the boy. The Investigating Officer has also proved the various documents which have been produced by the prosecution before the trial court, and the same have been discussed at length by the trial court. It will be of no use to discuss them in our judgment. 35. After going through the entire evidence on record, we are fully satisfied that two circumstances have been fully proved against accused Suraj to the effect that it was accused Suraj who wrote the ransom letters and at the time of writing of those ransom letters the boy Krishna was in his possession because these letters also bear the handwriting of deceased Krishna. The second circumstance is the recovery of dead body at the instance of accused Suraj. Now the question arises as to whether by these circumstances it can be inferred that it was accused Suraj who not only kidnapped the boy but also committed his murder. We have already discussed the case against all other accused and by this discussion it can be safely concluded that Krishna was kidnapped whose dead body was subsequently recovered from a well at the instance of accused Suraj. We have also observed that looking to the ransom letters this much is clear that the boy was in the custody of accused Suraj and it can be safely inferred that accused Suraj is the person who had kidnapped the boy. We have also observed that looking to the ransom letters this much is clear that the boy was in the custody of accused Suraj and it can be safely inferred that accused Suraj is the person who had kidnapped the boy. For what purpose the boy was kidnapped can be known by the conduct of accused Suraj who wrote the ransom letters asking that if the amount was not paid the boy shall be murdered, and ultimately the dead boy of the boy was recovered at the instance of accused Suraj. These circumstances are sufficient to conclude that accused Suraj kidnapped the boy Krishna in order that he may be murdered or may be so disposed of as to put in the danger of murder. We. therefore, find that accused Suraj has been rightly convicted for the offence u/s 364, IPC by the trial court and his conviction u/s 364, IPC is maintained. 36. The next question arises as to whether in the circumstances proved against accused Suraj an inference of murder of Krishna can be drawn against him As per the statement of Shri Ghanshyam Dutta (PW32) some of the articles, i.e., chappal and sweater, worn by the deceased before his kidnapping, were recovered on the information and at the instance of co-accused Harinarain and Kailash who have been acquitted by the trial court. By this recovery this much can be inferred that chappal and sweater were not found in possession of accused Suraj, but were found in possession of some other person. Therefore, it cannot be held with certainty that Krishna remained throughout in the company of accused Suraj, but also remained in the company of some other persons and as such it cannot be held beyond doubt that it was the accused Suraj who committed the murder of Krishna. Moreover, mere pointing out the dead body or the place of recovery is not sufficient to give rise to an inference that the murder must have been committed in all probabilities by accused Suraj. This fact can only give rise to the inference that the accused Suraj has caused the disappearance of the evidence relating to the offence. Moreover, mere pointing out the dead body or the place of recovery is not sufficient to give rise to an inference that the murder must have been committed in all probabilities by accused Suraj. This fact can only give rise to the inference that the accused Suraj has caused the disappearance of the evidence relating to the offence. In the case Ramchandra v. State of UP ( AIR 1957 SC 381 ) their Lordships of the Supreme Court observed that where the modus operandi as disclosed in the letters from the accused demanding ransom from the father of the boy who they have kidnapped is by putting him in fright of the boy being murdered and there is likelihood of the boy being murdered in case the ransom money was not paid for one reason or the other, the accused are guilty of the aggravated form of kidnapping and extortion under Sections 364 and 386 IPC. 37. When the case against the accused is based on circumstantial evidence, then in that case the essential requisite is that the alleged circumstances should be proved. It is only thereafter that they should be weighed as a whole, and when weighed they should unmistakeably point to one and one conclusion only that the accused and none other has committed the alleged crime. Those circumstances do not lie but precaution should be taken not to draw artificial inference because the appearance of the circumstances might be receptive. 38. In the result we allow the criminal Jail Appeal No. 45/82 of Mahaveer Singh and Criminal Appeal No. 429/82 of Pappu and Rameshwar Singh and set aside the conviction and sentence passed against them by the trial court. They are acquitted of all the charges levelled against them. Accused appellant Mahavir Singh, Pappu and Rameshwar Singh are on bail. They need not surrender to their bail bonds, which are hereby cancelled. 39. The criminal jail appeal No. 449 of 1982 of accused-appellant Suraj is partly allowed. His conviction and sentence under Section 302, IPC are set aside and he is acquitted from the charge u/s 302, IPC. But the conviction and sentence of accused-appellant Suraj under Section 364 and 365, IPC are maintained. He is in Jail and shall serve out the remaining sentence.Appeal allowed. *******