Y. B. SURYAVANSHI, J. ( 1 ) THE judgement in this case shall also govern the disposal of Criminal Appeal No. 46 of 1990 (Mahesh s/o Mohanlal Mali v. State of M. P.) and Criminal Appeal No. 81 of 1990 (Kalu s/o Gattulal Lodha v. State of M. P. ). ( 2 ) (I) This Death Reference No. 1/90 and the two connected Criminal Appeals Nos. 81/90 (by appellant Kalu) and No. 46/90 (by appellant Mahesh) arise out of the common judgement in S. T. No. 74 of 1986, dated 2-2-1990, by Shri K. C. Jain, IIIrd Additional Sessions Judge, Dhar. (ii) The appellant Mahesh has been sentenced to death subject to confirmation by the High Court for causing the murder of Sonu, aged 8 years, i. e. offence under S. 302, I. P. C. , hence, the proceedings under S. 366, Cr. P. C. have been submitted for confirmation. Mahesh has further been convicted under S. 364, I. P. C. for kidnapping Sonu in order to murder, and has been sentenced to undergo 4 years' R. I. with direction that both the sentences shall be concurrent. Mahesh has preferred appeal against his convictions and sentences (Criminal Appeal No. 46 of 1990 ). (iii) The appellant Kalu convicted for offences under Ss. 302 and 364, I. P. C. has been sentenced to imprisonment for life, and 4 years' R. I. respectively with similar direction. He has also preferred an appeal against his convictions and sentences (Cr. Appeal 81/90 ). (iv) Convictions and sentences of both the appellants for offences under S. 201, I. P. C. have not been separately recorded on ground that both have been convicted of the main offence under S. 302, I. P. C. One co-accused Bheru Singh, who was tried on charge under S. 201, I. P. C. has been acquitted. The State has not preferred appeal against his acquittal. ( 3 ) (I) According to the prosecution, on 23-12-85, at 10. 10 p. m. , (P. W.-1) Vallabha Vijaywargiya lodged a report Sana No. 1909 (Ex. The State has not preferred appeal against his acquittal. ( 3 ) (I) According to the prosecution, on 23-12-85, at 10. 10 p. m. , (P. W.-1) Vallabha Vijaywargiya lodged a report Sana No. 1909 (Ex. P-8), at P. S. Dhar, stating, that his brother's son Sonu, aged 8 years, at 7 p. m. was playing outside his residence-cum-office, situated at Ras Mandal (Mohalla), Kalu (appellant), his ex-servant, who often gave chocolates to Sonu, had given chocolates, that he (Vallabh PW-1 then went away to his talkies, but on his return home at 9 p. m. , did not find Sonu; that, in spite of search, Sonu was missing. This report about the missing boy gave his description also, besides the information that he has wearing a T-shirt of almond colour and green coloured shorts. This report was recorded by PW-13 Nagar, Head Constable at Police Station, Dhar and (PW-23) Shri Chouhan entrusted it to Ram chandra, H. C. , for inquiry. (ii) According to the charge-sheet, Kalu had worked before at the house of the complainant. The child Sonu was attached to him. The former (Kalu) often gave him chocolates, and even after termination of his services, Kalu visited the family. Both the appellants were friends. Mahesh (appellant) was in love with one Sunita Rathore (not, examined), whom he wanted to marry and live at Indore, but had no money. Hence, for extorting money, the appellants wrote and left a threatening letter, and accordingly, Kalu took away Sonu. Thereafter, both the appellants took Sonu towards the field of Mahesh on temptation of eating green peas. Sonu, with the T-shirt, was strangulated, and his dead body was placed in a deep ditch near a hillock (called 'bardi') and covered with stones for concealment. (iii) It is further alleged, that on 25-12-85, at 10. 15 a. m. , (PW-23) Nirbhaysingh Chouhan (S. O.) arrested both these appellants (Arrest Memo Ex. P-15, P-16 ). Mahesh, on interrogation, made a disclosure statement Ex. P-17 in presence of one Ramesh and (PW-18) Yeshwantrao. Since the information disclosed that the body was buried, the S. O. (PW-23) sought, vide a memo (Ex. D-6) addressed to the S. D. M. for disinterring the body, which probably purports to have been done in view of S. 176, Cr. Mahesh, on interrogation, made a disclosure statement Ex. P-17 in presence of one Ramesh and (PW-18) Yeshwantrao. Since the information disclosed that the body was buried, the S. O. (PW-23) sought, vide a memo (Ex. D-6) addressed to the S. D. M. for disinterring the body, which probably purports to have been done in view of S. 176, Cr. P. C. That is how (PW-16) Shri Sengar, Naib Tehsildar and Executive Magistrate on receiving information from A. D. M. reached P. S. at about 12. 30 noon, and accompanied the Police, which allegedly was led by Mahesh (appellant) to the place from where the dead body in the ditch, covered with stones, was recovered at his (Mahesh's) instance (Information memo by Mahesh P-17 at 10. 15 a. m. seizure memo P-19 at 1. 15 noon ). Shri Chouhan also prepared a site plan (Ex. P-20) at 13. 20 hours and a Panchnama Lash (Ex. P-18 ). PW-17 Jaiprakash, who had accompanied the party, had taken photographs of the spot of recovery. The dead body was brought in another vehicle and sent for postmortem vide requisition (Ex. P-22 ). The offences were registered on 25-12-85 at 3. p. m. (Ex. P-27 ). ( 4 ) IT is not in dispute that (PW-21) Dr. Dalal (who was present with Dr. Sharma) during postmortem examination, found as follows :-". Cynosis present on face, lips, eyes closed, conjunctive congested. Tongue protruding from mouth, bloody froth coming out from both the nostrils and mouth, a depression present on right cheek 1" x ", Baniyan cloth 23" long and 3" broad present as ligature around neck with one knot. This cloth used for ligature is partially stained with blood. There is a well defined slightly depressed ligature mark situated below the thyroid cartilage and encircling the neck, horizontally and completely; an abrasion " x " is present 1" on the left side of neck " "an abrasion on chest wall. . on right side with fracture of 6th to 10th ribs"; "liver, spleen, kidneys, bladder, right and left lungs congested. Heart" Rt. ventricle shows fluid blood and left ventricle empty ". . " and strangulation of neck has resulted in blockage of air passage and vascularity resulting into asphyxia and shock. . on right side with fracture of 6th to 10th ribs"; "liver, spleen, kidneys, bladder, right and left lungs congested. Heart" Rt. ventricle shows fluid blood and left ventricle empty ". . " and strangulation of neck has resulted in blockage of air passage and vascularity resulting into asphyxia and shock. As rigor mortis has set in all over body even upto fingers of hand denotes the time since death is between 24 to 48 hours ". . " the cause of death is asphyxia and shock because of strangulation, Homicidal in nature" (Ex. 24-A Post Mortem Report ). ( 5 ) FURTHERMORE, it is alleged, that Shri Badrilal Soni (PW-24) C. I. , on 25-12-85, interrogated accused Kalu in the presence of Panch witnesses (PW-19) Balu and Mukund, and the disclosure, statement Ex. P-21 was recorded at 11-30 p. m. Kalu led them to a house of his maternal uncle in Palkars Bada and three torn pieces of T-shirt concealed under fuelwood (firewood) were recovered (seizure memo Ex. P-22, time 11. 45 p. m. ). ( 6 ) KALU and Mahesh are said to have taken bicycles on hire on 18-12-85 and 23-12-85 respectively, from the cycle shop of (PW12) Altaf. Both appellants were also seen together at 8. 30 p. m. on 23-12-85 in the campus of Sheshnag Talkies, where they ate Sev-maxture purchased from the vendor (PW-7) Padam. The Clothes of the deceased including the three torn pieces of T-shirt (recovered at the instance of Kalu) were sent to F. S. L. Sagar and as per Report (Ex. P-30 and P-31), presence of blood was confirmed on pieces of T-shirt and further more it was opined (Report Ex. P-29) that on the basis of similar fibres, thread etc. , these were parts of the same T-shirt. In the Test Identification held before (PW-15) Shri Kushwah, Naib Tehsildar and Executive Magistrate, (PW-2) Smt. Savitribai and (PW -3) Mohanlal respectively, the mother and father of the deceased, identified the articles being the clothes worn by Sonu. (PW-22) Inspector Chaudhary on 30-12-85 took over investigation from Shri Tomar and on 2-1-86 seized a 'sak-Chitthi (Ex. P-25) from Tulsibai, mother of accused Mahesh and according to (PW-13) Manohar Saraf, she is alleged to have sold some silver articles prior to this incident concerned register was also seized which are of no significance in this case. (PW-22) Inspector Chaudhary on 30-12-85 took over investigation from Shri Tomar and on 2-1-86 seized a 'sak-Chitthi (Ex. P-25) from Tulsibai, mother of accused Mahesh and according to (PW-13) Manohar Saraf, she is alleged to have sold some silver articles prior to this incident concerned register was also seized which are of no significance in this case. Then on 7-1-86 Shri Chaudhary is said to have formally seized the two cycles hired as aforesaid by those appellants Accused Bherusingh (since acquitted) is said to have helped the other accused in causing disappearance of evidence. Upon those allegations the three accused were sent for trial. ( 7 ) THOSE two appellants were charged firstly, for kidnapping Sonu in order to murder (Section 364, Cr. P. C.) secondly, for sharing the common intention and in furtherance of their common intention for committing murder of Sonu; thirdly for causing disappearance of evidence, etc. punishable under S. 201, IPC. Charges were framed properly but S. 34 IPC (read-with) should have been referred besides the substantive S. 302, IPC. The appellants denied the charges and stated that they have been falsely implicated. Indeed the defence case is that of total denial of all the circumstances alleged by the prosecution. The learned Additional Sessions Judge found those appellants guilty and sentenced them as referred in the opening para of this judgement. ( 8 ) THE learned counsel S/shri Jaisingh and P. S. Hada and Nissar Ahmad for the appellants and the learned Government Advocate, Shri D. D. Vyas for the State heard at length, and we have perused the record minutely. ( 9 ) IT is unnecessary to labour on the point that the body of Sonu, aged 8 years, son of Mohanlal, who was missing since 7 p. m. on 23-12-85 was found at a solitary place about 3-miles from Dhar in the vicinity of a hillock towards a place called, Matlabpura. It is not in dispute that Sonu's death was homicidal as mentioned earlier in the post-mortem report (supra para 3 ). Thus, the crucial points for consideration are whether those appellants had kidnapped Sonu; committed his murder, and caused disappearance of evidence, etc. It is not in dispute that Sonu's death was homicidal as mentioned earlier in the post-mortem report (supra para 3 ). Thus, the crucial points for consideration are whether those appellants had kidnapped Sonu; committed his murder, and caused disappearance of evidence, etc. ( 10 ) CASE against appellant Kalu :-the learned lower Court's findings are that Kalu was an ex-employee of the complainant Vijaywargiya, who ceased to be so 6 months prior to the incident; but he used to visit the family since 3 months prior to the incident and also gave biscuits and toffies to the child (paras 18 and 19 of the judgement); secondly at 7 p. m. on 23-12-85, Kalu had taken the child on a bicycle, and thereafter the child was not returned; thirdly, that Kalu's explanation when asked about the above, namely that he had left the child at the house is false; fourthly, that before the incident, Kalu had taken him on a bicycle; fifthly the common circumstance against both the appellants is that after Sonu was missing at 8. 30 p. m. , both those appellants were seen at the Talkies, where they had purchased Sev-mixture from PW-7 Padam and thus, they had returned after the commission of the offence; sixthly, on 25-12-85, at Kalu's instance, the three torn pieces of the T-shirt of the deceased, whose identity has been established, were recovered under Section 27 of the Evidence Act; Seventhly, the extra-judicial confessional statement by co-accused Mahesh before the witnesses, namely that I and Kalu had taken Sonu on bicycle towards Matlabpura (near the place of the incident where the dead body was found ). ( 11 ) ACCORDING to the learned counsel for the appellant Kalu, the central circumstance from the above findings is; that Sonu was last seen together with accused Kalu and as there is no direct evidence about the offences alleged and the case being based on circumstantial evidence alone, the chain of evidence is not complete. Since it is a Death Reference and also in appeals the entire evidence has to be reassessed and reviewed in appeal, we propose to evaluate the evidence in details regarding the circumstances and findings aforesaid. ( 12 ) BEFORE proceeding with the evidence, it will be convenient to say a few words about the locations. Since it is a Death Reference and also in appeals the entire evidence has to be reassessed and reviewed in appeal, we propose to evaluate the evidence in details regarding the circumstances and findings aforesaid. ( 12 ) BEFORE proceeding with the evidence, it will be convenient to say a few words about the locations. The house of Vijaywargiya, who is also a legal practitioner, is located in Res Mandal area. It is his office-cum-residence. Adjacent to Vijaywargiya's house is situated the house of one Chhabra. Then there is a street, which ultimately goes towards the Talkies called "sheshnag Cinema". The house and small shop of PW-5 Ramesh Chandra Joshi, who has been called "shastri" by PW-1 Vallabh Vijaywargiya, is hardly 25 feet away across the road from the house of Vijaywargiya. In this background, PW-1 Vallabh Vijaywargiya had deposed that the family owns a cinema where the accused Kalu was engaged as a servant. Kalu also worked then as a domestic servant in their house. Kalu used to take the child for toffies and biscuits and the Child, Sonu, aged 8 or 9 years, was very much attached to him. The services of Kalu were discontinued about 6 months prior to the incident. But for the last 3 months or so, Kalu again visited the house and used to take the children to give them toffies and biscuits. The statements of PW-2 Savitribai and that of her husband PW-3 Mohanlal Vijaywargiya, as regards the services of Kalu are similar to that of PW-1 Vallabh Vijaywargiya. This evidence in itself is noutral except its relevancy and significance that the child was attached to the accused Kalu and that this circumstance had furnished an occasion and an opportunity for Kalu to kidnap the child. ( 13 ) IN the above perspective, PW-1 Vallabh Vijaywargiya had deposed that on 23-12-85 at 7 p. m. he had seen Kalu with Sonu at the biscuit shop. After a while, PW-1 Vallabh went to their cinema and returned at about 9 p. m. and on his return at about 9 p. m. , his younger brother PW-3 Mohan told him that Sonu is not in the house and thus, the search began. Naturally, he called Kalu and asked the whereabouts of Sonu since he had seen Kalu with Sonu at 7 p. m. At that, Kalu stated that. He also said that. Naturally, he called Kalu and asked the whereabouts of Sonu since he had seen Kalu with Sonu at 7 p. m. At that, Kalu stated that. He also said that. Then PW-1 Vallabh continued the search and in the meanwhile his Munshi, Narendra, also arrived. PW-1 told aim that let Kalu sit here and he be not followed to go elsewhere. PW-1 Vallabh then proceeded to the Police Station, where report about the missing child was lodged and was recorded by PW-13 Nagar, Head Constable, vide Rojnamcha (Ex. P-8 ). That was at 22. 10 hours. PW-22 Chouhan (S. O.) then entrusted the enquiry to Head Constable, Ramchandra. ( 14 ) ACCORDING to PW-2 Smt. Savitribai (mother of Sonu), her husband (PW-3 Mohan), who was at the talkies, returned at 8 p. m. and enquired about Sonu, who was not in their house. She too had said that Kalu in spite of his services being discontinued, visited their house and used to give biscuits. There is no cross-examination by defence. She has identified the clothes of the deceased, which statement is not in dispute. According to PW-3 Mohanlal, he had come to partake meals at 8 p. m. and on finding that Sonu was not outside the house at about 8. 30 p. m. he went back to the talkies. He searched for Sonu and ultimately told his brother (PW-1), who called Kalu, who was at the talkies and, on enquiries, gave the explanation as deposed to by PW-1 Villabh. ( 15 ) THE story that Sonu has gone with Kalu is confirmed by other witnesses also, besides PW-1. Shailesh Kumar (PW-4) lives just opposite the house of PW-1. While he was going to deliver the laundry clothes at Parawala's house, he had seen Kalu talking to Sonu. Some client of PW-1 had come and Sonu had told him that he (PW-1) is at the talkies. There is no cross-examination of this witness. Then we have PW-5 Ramesh Chandra Joshi, who is a teacher but runs a petty shop opposite the house of PW-1 Vallabh. His evidence is that many a times, Kalu came to his shop with Sonu for biscuits and toffies and on 23-12-85, Kalu purchased a packet of Windsor biscuits and two toffies for Rs. 1. 50 and thereafter Kalu had taken Sonu on cycle towards the house of Chhabda and that lane led towards the talkies. His evidence is that many a times, Kalu came to his shop with Sonu for biscuits and toffies and on 23-12-85, Kalu purchased a packet of Windsor biscuits and two toffies for Rs. 1. 50 and thereafter Kalu had taken Sonu on cycle towards the house of Chhabda and that lane led towards the talkies. The third witness is PW-6 Mohan, a servant of Chhabda, who was then standing in the gallery. He had seen Kalu and Sonu at the shop of PW-5 Ramesh chandra and thereafter saw Kalu passing through their lane on the cycle with Sonu sitting on the cross-bar. ( 16 ) THERE are absolutely no cogent reasons to disbelieve the above evidence, which has been rightly found trustworthy by the trial Court. Pausing here, we may refer to the evidence of PW-12 Altaf cyclewala, who on the basis of usual register (Article-C) maintained by such shopkeepers giving cycles on hire, had said that on 18-12-85, Kalu has taken on hire cycle No. 17, at 8. 30 a. m. which was returned by Kalu's father on 25-12-85 with Rs. 17/- as rental charges. To recall, the two witnesses referred above have specifically asserted that Kalu was with a cycle, and even PW-7 Padam had said that when at 8. 30 p. m. both the appellants had taken Sev-mixture from this vendor, they had a cycle, though according to PW-12 Altaf, in the morning at 9. 10 a. m. on 23-12-85, Mahesh has also taken a cycle No. 4, which was returned on 25-12-85. The report Ex. P-8 lodged by PW-1 about missing boy also mentions that as usual, Kalu had given chocalate to Sonu while the latter was playing outside the house. Thus, Kalu's presence is not an afterthought, introduced due to surmises or suspicions. ( 17 ) KALU's conduct is also noteworthy. Biscuits and toffies were already given to the child, as stated by PW-5 Ramchandra. But the evidence shows that Kalu was seen taking away the boy on cycle. Ordinarily, we could have expected a cycle ride upto the cinema, which was not far away. From 7 p. m. to 8. 30 p. m. , i. e. 1 hours' duration was more than sufficient for taking away the child to the lonely place (about 3/4 Kms) on a cycle and for returning at the cinema at 8. Ordinarily, we could have expected a cycle ride upto the cinema, which was not far away. From 7 p. m. to 8. 30 p. m. , i. e. 1 hours' duration was more than sufficient for taking away the child to the lonely place (about 3/4 Kms) on a cycle and for returning at the cinema at 8. 30 p. m. A boy 8/9 years old would not have gone with a stranger, but his attachment to Kalu provided opportunity and facilitated taking/kidnapping. And then as he was the last person in the. company of Sonu, on being questioned his explanation was that he had left Sonu at the premises and a client sitting in the office, my have taken him. How Sonu would go with a stranger ? The anchor sheet of the submissions on behalf of defence counsel is that Kalu had given an explanation when questioned, which is reasonably probable or plausible and in any case when two inferences could be drawn, the one favourable to accused be accepted. The argument is attractive but does not hold water. Kalu in his statement under S. 313, Cr. P. C. denies each and every, i. e. all circumstances put to him; even the fact that he was ex-servant, used to give toffies and biscuits; about purchasing toffies/biscuits from PW-5 Rameshchandra on 23-12-85 at 7 p. m. etc. The explanation, in the totality of facts and circumstances, is just a cock and bull story. Out of seven circumstances and findings of trial Court, referred earlier in para 10, and we may call them different facets of the principal circumstance, viz. "last seen together" have been proved and denial of those proved incriminating circumstances is itself an additional proof against Kalu. Pershadi v. State of U. P. , AIR 1957 SC 211 . ( 18 ) MOTIVE : the motive alleged in the prosecution story has already been referred in paragraph No. 3 (ii) above. This aspect has been discussed by the learned trial Court in paras 61 to 67 of the judgement. According to the learned counsel for the appellant Kalu, there is absolutely no evidence about 'motive', which plays an important role when the case is based on circumstantial evidence. This aspect has been discussed by the learned trial Court in paras 61 to 67 of the judgement. According to the learned counsel for the appellant Kalu, there is absolutely no evidence about 'motive', which plays an important role when the case is based on circumstantial evidence. The evidence of PW-8 Deepak, at best, shows that some boring machine operation prior to this incident was in progress in the vicinity of Kalamkhedi, and he had gone with both the accused to that place. That place is in the direction of Utawad and Ganawad. It has come in the evidence of PW-12 Altaf that Kalu's profession was 'hamali' but he operated boring machine also. At best, the evidence of PW-8 Deepak only establishes the association of the two appellants but is not material to prove any motive. Though the learned trial Court has found that there was no motive at all but on reappraisal of the evidence, we find that Kalu might have harboured a grievance because his services were terminated. According to PW-3 Mohan, who is also an owner of the talkies, the shopkeeper at the talkies had complained against Kalu pilfering biscuits and toffies and, therefore, he was turned out. In this regard, PW-7 Padam had deposed that because of pilfering, Kalu was even slapped and turned out. But in view of Padam's statement under S. 164, Cr. P. C. he has been disbelieved, but his police statement and particularly statement recorded under S. 164, Cr. P. C. which is cryptic cannot be accepted to be replicas of the statement in the Court. That discrepancy in our view, may be ignored. In fact, the evidence of PW-3 Mohan and PW-7 Padam furnishes the humiliating backgrounds in which the services of Kalu were terminated. If that is so, Kalu silently nursed a grievance. Human conduct is very complex. Even trivial incidents, in our experience of life, prompt a person to do ghastly acts, which otherwise normal persons would not do. Therefore, in our view, this motive existed though it could be said that it was not a strong motive. If that is so, Kalu silently nursed a grievance. Human conduct is very complex. Even trivial incidents, in our experience of life, prompt a person to do ghastly acts, which otherwise normal persons would not do. Therefore, in our view, this motive existed though it could be said that it was not a strong motive. Absence of motive is also a circumstance for assessing the evidence but if circumstances prove guilt of the accused, absence of motive does not weaken it and it often happens that only the culprit himself knows what moved him to a certain course of action (Rajinder Kumar v. State of Punjab, AIR 1966 SC 1322 . ( 19 ) RECOVERY said to be under Section 27, Evidence Act :-according to the evidence of PW-19 Balu s/o Chandrasen, and PW-24 Badrilal Soni (Inspector) Kalu Appt. made a statement that an handkerchief and pieces of Sonu's T-shirt have been placed concealed by him in Palkar's Bada under the firewood. The information memo is Ex. P-21; and they have stated that Kalu then led the police to the place and from the house belonging to Bheru (acquitted accused, who is said to be 'mama' of Kalu), the torn pieces of T-shirt were recovered and seized. This evidence led under S. 27 of the Evidence Act does not inspire confidence. To, recall, PW-1 Vallabh, in para 7, had stated that after enquiry, at 9 p. m. he had asked Kalu to remain in the office but at 2'o clock in the night, Kalu went away; contra PW-3 Mohanlal, in para 6 states that on the same night at about 10 or 11 p. m. , Kalu was entrusted to the police. But the I. O. has not stated where Kalu remained. But his formal arrest has been shown on 25-12-85. The T-shirt was used for strangulation and it is difficult to understand why torn pieces thereof would be brought and concealed at the house of Bheru by accused Kalu. This conduct does not appear to be natural or reasonable. Similarly, according to para 8 of PW-19 Balu, the house was locked and Kalu got it unlocked but Shri Soni (PW-24) does not say anything about this circumstance. If Kalu had the key of that lock, then it would have been found and mentioned in the Personal Search Memo on the occasion of his arrest. Similarly, according to para 8 of PW-19 Balu, the house was locked and Kalu got it unlocked but Shri Soni (PW-24) does not say anything about this circumstance. If Kalu had the key of that lock, then it would have been found and mentioned in the Personal Search Memo on the occasion of his arrest. We have no hesitation in disbelieving and discarding this piece of evidence, which is very suspicious. ( 20 ) EXTRA-JUDICIAL confessional statement by co-accused Mahesh :- According to PW-1 Vallabh, at about 9 p. m. PW-9 Rajendra Bundela along with accused Mahesh and Mahesh's 'jeeja' Shankarlal came at his house. It is common experience that in cases of missing persons, the relations, friends, acquaintances and even strangers (that is why we see photographs of missing persons for public display) get engaged in search and if PW-9 Rajendra Bundela was active in the search, he cannot be blamed for this act. On that occasion, Mahesh was questioned as to whether he had taken Sonu with him. Mahesh told. This evidence is assailed on the ground that according to PW-1 Vallabh, this question was put at the residence of Shastriji (PW-5 Rameshchandra Joshi) and was in the presence of Shankar Lal and PW-9 Rajendra Bundela. It is argued that according to para 7 of the statement of PW-9 Rajendra Bundela denies that Mahesh was questioned at the place of PW-5 Rameshchandra Joshi. The two places, the house of the accused and that of PW-5 Rameshchandra Joshi are just across the road hardly 25 feet away and PW-9 Rajendra Bundela has also stated about the aforesaid confession allegedly made by Mahesh namely. Secondly, according to PW-1 Vallabh (para 5), Mahesh was then taken to Police Station by Shankarlal and Rajendra Bundela; contra, in para 8 of PW-9 Rajendra Bundela states that the Police, in a jeep, arrived at PW 1's house and that is why Mahesh was taken in custody. He further clarifies, in para 20, that while they were in the process of taking Mahesh to the Police Station, the police arrived and Mahesh was handed over to the police. According to his police statement Ex. D-4, while they were taking Mahesh, he was handed over to the police in a jeep. He further clarifies, in para 20, that while they were in the process of taking Mahesh to the Police Station, the police arrived and Mahesh was handed over to the police. According to his police statement Ex. D-4, while they were taking Mahesh, he was handed over to the police in a jeep. Those discrepancies, as to details, are not material as the witnesses were examined almost after 1 years of the incident, and some such minor discrepancies are natural and due to passage of time also PW-9 Rajendra Bundela had deposed that all persons were searching to trace out Sonu. He had come to know only on 24-12-85 that Mahesh and Kalu had taken away Sonu, referred in para 2 of his statement. Therefore, he had taken the police at the house of accused Mahesh, in Naugaon Mohalla, where he lived, but Mahesh was not found in the night of 24th December, 1985. On 25-12-85, brother-in-law of Mahesh woke him up at 7. 30 a. m. and then all the three went to the house of PW-1 Vallabh. Thirdly, we find that there is some verbal variation in what those two witnesses have deposed about the exact words spoken by accused Mahesh; but certainly, without any doubts, the substance of his statement was that both Kalu and Mahesh had taken Sonu on cycle to Matlabpura, where ultimately the dead body was found. In the said confession, it is not stated that "both of them had murdered Sonu", but virtually it is confessed that both of them had taken Sonu (deceased) on cycle towards Matlabpura i. e. towards the place of incident. Fourthly, it was contended that the statement of co-accused Mahesh cannot be used against another accused Kalu. Section 30 of the Evidence Act provides, that "when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person, who makes such confession. " In the instant case, the confession aforesaid substantially implicates both the appellants, and the test namely, that "the confessing accused must tar himself and other person, implicating that they are tarred with one and the same brush", is satisfied. " In the instant case, the confession aforesaid substantially implicates both the appellants, and the test namely, that "the confessing accused must tar himself and other person, implicating that they are tarred with one and the same brush", is satisfied. The above confession has been made before PW-1 Vallabh and PW-9 Rajendra Bundela, and we don't find any reasonable ground to disbelieve them. PW-1 Vallabh, looking to his station in life, and being uncle of the deceased Sonu, would be the last person to falsely implicate innocent persons. However, we want to make it clear that this Section itself provides, that the "court may take into consideration such confession" and thereby make it evident on which the Court may act, but it does not say that the confession amounts to proof. In other words, there must clearly be other evidence and confession is only one element in the consideration of other facts proved in the case and then it can be put into scale and weighed with other evidence. The confession of co-accused can be used only in support of other evidence, and cannot be made foundation of a conviction. ( 21 ) AS we would make it clear later, this confessional statement by Mahesh cannot be the sole foundation for conviction of Mahesh. But it is relevant and has been taken into consideration as regards the co-accused Kalu as "the evidence of last seen together against his tell-tale circumstance. " Such evidence of confession, under S. 30 of the Evidence Act, can be considered but not as "substantive piece of evidence" Ramchandra v. State of U. P. , AIR 1957 SC 381 . We are also aware of the decision in Baburao Bajirao Patil v. State of Maharashtra, 1971 Cri App R (SC) 255, which lays down the principle that "the Court should begin with other evidence and then turn to confession of accused in order to lend assurance to the conclusion of guilt. " ( 22 ) WE had the benefit of going through various decisions referred by the learned counsel on the evidentiary aspect of the accused last seen with the deceased. At the very outset, we want to make it clear that every case, ultimately hinges on its own facts and peculiar circumstances and there cannot be any authority on facts, but it is the principles laid down therein, which have to be borne in mind. At the very outset, we want to make it clear that every case, ultimately hinges on its own facts and peculiar circumstances and there cannot be any authority on facts, but it is the principles laid down therein, which have to be borne in mind. A few decisions need to be referred. A Division Bench decision of this Court in Vishnu Prasad v. State (Criminal Appeal No. 488/85, decided on 4-9-89), was referred. It was an appeal arising out of conviction under Ss. 302/398/201, IPC. The recoveries relied upon were not proved and were not legally admissible. The circumstantial evidence on the question of "last seen together" consisted of the statements of 3 witnesses. But the prosecution did not examine those witnesses. Many other material witnesses on that aspect were not examined, and para 15 of the judgement refers to the lapses on the part of the prosecution. The decision is quite distinguishable on facts. (II) Rama v. State of M. P. (1983 MP Weekly Notes, Note No. 92 at page 123) is a case of circumstantial evidence. The appellant allegedly, had grudge against the deceased, who had tried to molest the appellant's sister. But the sister did not support this ground and, therefore, the motive failed. The deceased and the appellant had taken drinks together at about 7. 30 p. m. , which, on facts of the case, was ignored. The recovery of the axe and 'dhoti' was not proved to be stained with human blood. The appellant allegedly had an axe. But PW-5 did not state that. Hence, the evidence was disbelieved. (iii) Rajinder Kumar v. State of Punjab, AIR 1966 SC 1322 was referred by the learned Government Advocate. The principle laid down is "that presence or absence of motive is relevant circumstance for assessing the evidence. The circumstances which prove the guilt of the accused, are, however, not weakened at all by this fact that the motive has not been established. It often happens that only the culprit himself knows what moved him to a certain course of action". The dead body in that case was discovered buried in the compound of the neighbour of the appellants the child was last seen alive in Rajendra's house playing with him. It often happens that only the culprit himself knows what moved him to a certain course of action". The dead body in that case was discovered buried in the compound of the neighbour of the appellants the child was last seen alive in Rajendra's house playing with him. The 14 circumstances mentioned by the trial Court and the High Court in para 4, were found established but on facts of that case, their Lordships of Supreme Court observed that the three circumstances alone (in the alleged chain) were sufficient, without anything more, to justify the conclusion that the appellant had murdered the child. Of course, on that case, the child was last seen with the appellant at 3. 30 p. m. and the dead body was later discovered which fact was known only to the appellant. On the date of theincident, the appellant had made contradictory statements is to where the child had gone and, therefore, it was held, that these three circumstances are indicative of explanation of no other reasonable hypothesis than that he killed the boy. On the basis of this authority, the learned Government Advocate's submission is that the so-called links in the chain of evidence in a case based on circumstantial evidence vary and some link may be missing but this is not enough to break the chain of evidence if other links are strong. (iv) In Makhan Singh v. State of Punjab, AIR 1988 SC 1705 , the extra-judicial confession, for reasons stated therein, was held to be a weak piece of evidence. The appellant was alleged to have committed murder of his father to have lands transferred to him. The deceased, by a will, had actually transferred the lands to the son of the accused and, therefore, motive was said to be absent. Even the bodies were recovered about 3 months after the death, and the prosecution did not examine any of the relations to identify the dead body though one of such relations was present there. Para 13 of this authority refers to non-examination of Manjeetsingh, though according to the defence, he had taken the deceased. This stand taken by the defence was not negatived by examining Manjeet, though he was present in the Court. (v) State of U. P. v. Krishna Gopal, AIR 1988 SC 2154 cited by the learned Government Advocate, elucidates the concept of "proof-beyond reasonable doubt". This stand taken by the defence was not negatived by examining Manjeet, though he was present in the Court. (v) State of U. P. v. Krishna Gopal, AIR 1988 SC 2154 cited by the learned Government Advocate, elucidates the concept of "proof-beyond reasonable doubt". Their Lordships, at page 2161, observed, that "doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to more vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case. . . . . . . . . . . . . . " "the concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many or such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of administration of criminal justice. " (vi) The decision in Gambhir v. State of Maharashtra, AIR 1982 SC 1157 lays down, that when a case rests on circumstantial evidence, it must satisfy 3 "tests" :- " (1) The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and (3) the circumstances taken cumulatively should form a chain as complete that there is no escape from the conclusion that even on human probabilities, the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. " The facts are distinguishable. Besides, in that case, the appellant even other persons visited the woman, who was found murdered. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. " The facts are distinguishable. Besides, in that case, the appellant even other persons visited the woman, who was found murdered. In the case before us, the circumstances fully establish that the child was taken away on a cycle by accused Kalu and none else and the dead body was found only on 25-12-85. In the instant case, the circumstance of the deceased and accused Kalu seen together, in itself, is a very strong evidence; and the extra-judicial confession of Mahesh, which we are inclined to take into consideration, lends further assurance, and then we have to keep in mind that the entireunfortunate episode was complete during the duration of 1 hours, and the appellant Kalu had denied the entire circumstances established against him. The explanation, in the totality of circumstances by accused Kalu is false. (vii) Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 has been referred, which decision pertains not only to discussion of circumstantial evidence but also other evidentiary aspects, such as benefit of doubt, i. e. that when two possibilities are available the one favourable to the accused has to be preferred. The scope of S. 31 (1) and S. 3 of the Evidence Act and S. 313 of the Cr. P. C. of putting all circumstances of the accused has been considered, which cannot be otherwise used against him. The decision approves the observations on circumstantial evidence made in the case of Hanumant v. State of Madhya Pradesh, AIR 1952 SC 343 . The dominant question for determination was whether the deceased Manju, wife of the appellant, had committed suicide or her death was homicidal ? Manju was a highly emotional and sensitive woman and of psychotic nature, and was actually disappointed disgusted, frustrated and suffered from depression and in all probabilities, she wanted to end her life herself. Since two views were possible one pointing to the guilt and the other innocence, the accused was entitled to have the benefit of the one, which was favourable to him. Since two views were possible one pointing to the guilt and the other innocence, the accused was entitled to have the benefit of the one, which was favourable to him. Their Lordships at page 1646, observed :- "we must hasten to add that we do not suggest that this was not a case of murder at all but would only go to the extent of holding that at least the possibility of suicide, as alleged by the defence, may be there and cannot be said to be illusory. " (viii) The decision in Mithiyabai v. State of M. P. , 1988 Cri LR (MP) 40 was also referred on circumstantial evidence. On facts of that case, there was no evidence that the accused was seen with the deceased in close proximity of time and place of the incident. The dead body was recovered from open place accessible to all. The conviction, on facts discussed the rein ended under S. 411, I. P. C. and the appellant was acquitted on charges under S. 302/404, IPC. To that decision, one of us (Y. B. Suryawanshi, J.) was a party, and the facts are quite distinguishable. In the instant case, that decision cannot be pressed into service to canvass the contention that Kalu was not seen at the place of incident which was 3/4 Kms. away. After the child was kidnapped and to repeat, 1 hours' time was more than enough for the appellant to go to that place and return at 8. 30 p. m. at the talkies. (ix) In fact, the learned counsel prefaced the submission with the observations of their Lordships of the Supreme Court in Kashmira Singh v. State of M. P. , AIR 1952 SC 159 and it was urged and as suggested in the cross-examination of P. W. 1 Vallabh (Para 7) and P. W. 3 Mohanlal (Para 5) that this incident had caused repercussions in the public. According to P. W. 3, he was not aware whether there was 'charge' of the police station but he admits that was a Magisterial enquiry about the lethargy or negligence of the police. The observations in the above decision lay down the importance of "dispassionate judicial scrutiny" "uninfluenced by the ghastly nature of the offence". According to P. W. 3, he was not aware whether there was 'charge' of the police station but he admits that was a Magisterial enquiry about the lethargy or negligence of the police. The observations in the above decision lay down the importance of "dispassionate judicial scrutiny" "uninfluenced by the ghastly nature of the offence". We do not agree with the submission that the findings or conclusions by the trial Court were not dispassionate, but were influenced by such extraneous considerations. We have reassessed the entire evidence before us and have come to the conclusion that so far as Kalu is concerned, we have no doubt that the charges under Ss. 364 and 302, IPC are proved against him. ( 23 ) CASE against Mahesh :- there is no direct evidence that the appellant Mahesh was last seen in the company of the deceased, unlike the case of Kalu. Kidnapping from lawful guardianship occurs in S. 361, IPC. The offence of Kidnapping a minor is complete no sooner the minor is actually taken out of the custody of the guardian. There could be no abetment of this offence in such a case on the hypothesis that the offence is a "continuing one" unless the conspiracy is established. The offence of Kidnapping was complete when Kalu had taken away Sonu. ( 24 ) THERE are only two circumstances involving the appellant Mahesh. Firstly, the alleged recovery of the dead body at his instance. On 25-12-85, Mahesh was arrested at 10. 15 a. m. (Ex. P-13 ). He was interrogated in the presence of P. W. 18 Yeshwantrao, by P. W. 23 Shri Chouhan. He is said to have made a disclosure statement (Ex. P-17), and the contents regarding "past history" of the appellant marked in red ink is clearly inadmissible. It is said that he led the police party and the witness to the place and the body placed under stones was recovered at his instance. This information Ex. P-17 was given on 10. 15 a. m. The Police Officer concerned was obviously negligent, or at least not aware of the provisions of law that such evidence is independently admissible under S. 27 and S. 8 of the Evidence Act. But he thought that S. 176, Cr. P. C. is attracted because Mahesh stated that the body is "buried" and, therefore, he sought orders from the Magistrate, vide Ex. D-6. But he thought that S. 176, Cr. P. C. is attracted because Mahesh stated that the body is "buried" and, therefore, he sought orders from the Magistrate, vide Ex. D-6. Now, the clauses in S. 174 (i) and (ii) R/w 176, Cr. P. C. clearly state when the order of "disintering the body" from a Magistrate is required. Unfortunately, this has resulted in great delay so much so that the actual time of the recovery, as recorded in Ex. P-19, is 1. 20 noon. The learned counsel for the appellant has rightly pointed out that there cannot be a discovery of a fact when the fact is known to all and sundry. P. W. 9 Rajendra Bundela, in para 11, admits that at about 9 a. m. at the place of P. W. 1 Vallabh, he had come to know the place where the dead body was. Obviously, Mahesh, in his extra-judicial confessional statement, had given them a sufficient clue. That is why he further stated that at about 9. 30 a. m. he had gone on a motorcycle, and many others had followed to the place where the dead body was seen. P. W. 16 Malkhansingh Sengar, Naib Tehsildar, who was deputed by the A. D. M. , had reached at the Police Station some time at 12. 30 noon. Even P. W. 18 Yeshwant, a panch witness, in para 8, states that while he was going with the police party led by Mahesh, on the way, he could see many persons going towards that place, and some of them returning on cycles and motorcycles; though in para 11, he denied the suggestion that before the arrest of the appellant, the news was abroad that the corpse had been found. The timings are important, and in all these circumstances, we do not attach any significance to the recovery of the dead body said to have been at the instance of Mahesh, which is the main plank of the prosecution case against him. ( 25 ) THE only circumstance, which survives against the appellant Mahesh is extrajudicial confessional statement. As stated earlier, it cannot, in the absence of any other evidence, be the foundation for conviction. If other circumstances had been proved, it might have lent assurance, so far as the appellant Mahesh is concerned. ( 25 ) THE only circumstance, which survives against the appellant Mahesh is extrajudicial confessional statement. As stated earlier, it cannot, in the absence of any other evidence, be the foundation for conviction. If other circumstances had been proved, it might have lent assurance, so far as the appellant Mahesh is concerned. There are strong suspicious circumstances against the appellant Mahesh, but suspicions however strong cannot take the place of proof. ( 26 ) (A) For the reasons abovesaid and the discussion, this Death Reference No. 1/90 in respect of Mahesh s/o Mohanlal is rejected. Criminal Appeal No. 45 of 1990 filed by the appellant Mahesh is allowed. Accordingly, the convictions of the appellant both under Ss. 364 and 302, IPC and the sentences awarded to him thereunder by the trial Court are set aside. He be released forthwith if not required for any other offence. (b) Criminal Appeal No. 81 of 1990 preferred by appellant Kalu s/o Gattulal is dismissed. His convictions under Ss. 302/364, IPC and the sentences awarded to him thereunder by the trial Court are maintained, with a direction that the sentences shall be concurrent. (c) The case articles shall be disposed of, as directed by the trial Court. Order accordingly. .