H. C. MITTAL, J. ( 1 ) APPELLANTS Sayta Veer son of Ajab Singh. Bharat Veer and another Satya Veer son of Shayam Singh have been convicted and sentenced to undergo imprisonment for life under Section 302/34, I. P. C. and to three years R. I. under Section 201, LP. C. by special Judge/additional Sessions Judge, Muzaffarnagar. Aggrieved by this: order, the present appeal has been filed. ( 2 ) IT is-note worthy that according to their statements under Section 313, Cr. P. C. on 1-5-1985, appellant Satya Veer son of Shyam Singh was eighteen years, appellant Bharat Veer was sixteen years and the other appellant Satya Veer son of Ajab Singh was sixteen years and eleven months of age. These ages given by the appellants have not been challenged by the prosecution nor the lower court had made any observation to the contrary that the age given by the three appellants were incorrect. In this way, on the date of occurrence i. e. 16-2-1983, all the three appellants were admittedly below sixteen years. ( 3 ) THAT case against the appellants is based on circumstantial evidence. On 5-3-1983, Radhey Lal, father of Sheo Kumar (deceased), aged eighteen years, had lodged the report at police station Bhaura Kalan, district Muzaffarnagar, stating that his aforesaid son Sheo Kumar had gone to Vaish College, Shamli at about 9. 30 a. m. On 16-2-1983. He did not return in the evening. Radhey Lal had made enquiries from the costudents. Kiratpal and Yashpal, students of the aforesaid college had informed that they had seen Sheo Kumar in the College at about 11. 30 a. m. He had searched his son at several places and also in the houses of his relative, but was not traceable. On 5th March, 1983, Raghubir Singh, Veer Sen Sukkha and Sheo Kumar went to search Sheo Kumar, also alongwith Radhey Lal. Radhey Lal returned back to his home, but the other four continued their search. They returned after some time and informed that they had noticed a gunny bag in Krishna River. The reporter suspected that this bag may not contain the dead body of his son. ( 4 ) AFTER receipt of this information, a report Ext. Ka 1 was lodged by Radhey Lal at Police Station Bhaura Kalan district Muzaffarnagar. They returned after some time and informed that they had noticed a gunny bag in Krishna River. The reporter suspected that this bag may not contain the dead body of his son. ( 4 ) AFTER receipt of this information, a report Ext. Ka 1 was lodged by Radhey Lal at Police Station Bhaura Kalan district Muzaffarnagar. Sub Inspector B. S. Yadav (P. W. 13) proceeded to the River where the dead body of Sheo Kumar was allegedly lying. The bag was taken out. After opening the bag a decomposed body was recovered. Radhey Lal had recognized this dead-body to be that of Sheo Kumar. Sub Inspector, B. S. Y adav, had prepared the inquest report and sent the dead body in a sealed cover to the mortuary for post-mortem. Dr. V. K. Misra (P. W. 7) had conducted the postmortem. He found that the deceased was about eighteen years of age. He had died about three weeks back. The bogy was distented. The doctor had stated that the features of the dead-body had distorted. The hair of head had fallen and some had become loose. The skin of the body was not in its original colour. The right hand, the upper arm and fore-arm were missing. The doctor had found the following ante-mortem injuries on his person:1. Incised wound 2. 5 cm. x 1 cm. x muscles on left hip spindle shaped. Margins clean cut and sharp. 2. I. W. 21/2cm. x 11/2 cm. x cheston the back of chest left side 6 cm. below inferior angle of the scapula. Spindle shaped. Margins sharp and clean cut obliquely. 3. Incised wound 2 cm. x 1 cm. x chest on the left side back 8 cm. below Injury No. 3 at 5 Oclock position. Margins clean cut. Spindle shaped obliquely. 4. Incised wound 2 cm. X 11/2 cm. x neck tissue deep in the root of neck Right side, Spindle shaped margin sharp and clean cut obliquely. 5. Incised wound 2 cm. x 1 cm. x muscle on the face Right side 2 cm. below the right eye. Spindle shaped clean cut margins obliquely. ( 5 ) FURTHER investigations were conducted by B. S. Yadav (P. W. 13 ). He had arrested Satya Veer son of Ajab Singh on 9-5-1983 from the house of his maternal grand-father Moosa. Incised wound 2 cm. x 1 cm. x muscle on the face Right side 2 cm. below the right eye. Spindle shaped clean cut margins obliquely. ( 5 ) FURTHER investigations were conducted by B. S. Yadav (P. W. 13 ). He had arrested Satya Veer son of Ajab Singh on 9-5-1983 from the house of his maternal grand-father Moosa. During investigation, he promised to hand over the weapons and the other materials relating to this offence. Consequently, this Satya Veer along with Police Officer and witnesses went to the sugar- cane field of Om Prakash son of Kaboel Jat in village Jungle Gram Senta and brought out a knife, a pair of chappal and a torn piece of red colour shirt and hair of the head. The chappal and pieces of shirt were shown to Radhey Lal who identified those to be that of his son. ( 6 ) AFTER 9th March, 1983, the case had been transferred to Police Station Shamli where it was registered. Subhash Chandra Garg (P. W. 11) had investigated the case from 19th March, 1983 onwards. After recording the statements of the witnesses and sending the materials relating to this occurrence to the Chemical Examiner, he had submitted charge-sheet against the appellants. ( 7 ) THE case against the appellants was based on circumstantial evidence. The first circumstance alleged by the prosecution that the appellants had enmity with the deceased because he had informed their fathers that their names had been struck off from rolls of their classes. This was not found established. It was, however, found that the deceased was seen between 11. 00 to 11. 30 a. m. on 16-2-1983 along with the appellants by Narendra (P. W. 3 ). Thereafter at about 12. 00 noon, Ramu (P. W. 2) who was filling manure in his buggy behind Shamli Sugar-mill, had seen the three appellants and the deceased going from Shamli towards Simbhalka. On enquiry, they had informed that school had been closed and they were going towards their village. The other circumstance is that, Om Prakash (P. W. 6), had seen the appellants at about two farlongs from the bridge on Krishna River. He found that the clothes of the appellants were wet. When they were asked as to why their clothes were wet. , they had kept mum. The other circumstance is that, Om Prakash (P. W. 6), had seen the appellants at about two farlongs from the bridge on Krishna River. He found that the clothes of the appellants were wet. When they were asked as to why their clothes were wet. , they had kept mum. The other circumstance is the recovery of the knife and the clothes of the deceased on the pointing out by appellant Satya Veer son of Ajab Singh. The last circumstance is that after the arrest of Satya Veer son of Ajab Singh and the recovery of the dead-body, the remaining two appellants had gone together to Raghubir Singh (P. W. 5) and made extra judicial confession about their guilt. They had sought the help of the witness in saving them from the prosecution and arrest ( 8 ) RELYING on the above circumstantial evidence, the learned Sessions Judge had found the offences mentioned - above established against them and had convicted and sentenced each of them. ( 9 ) THE learned, counsel for the appellant urged that the evidence of prosecution was not of such a character which could inspire confidence, and to indicate the chain of circumstances which lead to the only conclusion that none else except the appellants had committed the murder. The learned counsel has taken us through the evidence of the prosecution. We have also heard the Deputy Government Advocate. ( 10 ) THE first question enumerated by the lower court as one chain of circumstance was, whether the dead body recovered on 5-3-83 from Krishna River belonged to Shoo Kumar. The lower court has relied upon a statement of Radhey lal, the father of Shiv Kumar. The lower court has noted in its judgment, the position of dead body as described by the Investigating Officer in inquest report. The Investigating Officer had noted that the dead body had decomposed. Maggots were present all over the body. The investigating officer had also stated that all the skin of the body had decomposed. The eyes had also decomped. There were only sockets at the said place. A major portion of the nose was also decomposed. In such a state of body it was difficult even for a father to recognise the dead body. In this respect the statement of Dr. V. K. Misra, P. W. 7 is worth noticing. Dr. The eyes had also decomped. There were only sockets at the said place. A major portion of the nose was also decomposed. In such a state of body it was difficult even for a father to recognise the dead body. In this respect the statement of Dr. V. K. Misra, P. W. 7 is worth noticing. Dr. Misra had stated in the very opening paragraph of his cross-examination that the feature of the dead body had distorted to a great extent and it was very difficult to recognise the dead body from the face. He had also stated that on account of the dead body lying in a water the skin had changed its colour. He had also opined that the death of the person whose autopsy was conducted could be between 3-4 weeks before the post-mortem. The month was of March. In such a month it was not probable that the muscle and skin on the face would have been present. In this situation it was not at all possible even for Radhey Lal to say with exactness that the dead body belonged to his son Shiv Kumar. One more fact there is worth noticing. Panches of inquest present at the spot had not been able to say cause of death. They had opined that the dead body be sent for post mortem for determination of cause of death. After the dead-body lying for more than four weeks in water even the clothes could not have been easily recognised. In view of all these facts we hold that Radhey Lals identification of dead body was based on presumption that the dead body belonged to his son. ( 11 ) THE recovery of the dead body was an important fact in the whole chain of circumstances. When this chain stands demolished then the other evidence of the prosecution becomes very weak to connect the appellants with the crime. ( 12 ) THE lower court had come to the conclusion that the prosecution had failed to prove the motive part of the story. It was not established that the names of the appellants had been struck off from the role of the school and Shiv Kumar had communicated this fact to the parents of the appellants. On receiving this information the parents of appellants had chided them. This was an important fact which could connect the appellants with the alleged crime. It was not established that the names of the appellants had been struck off from the role of the school and Shiv Kumar had communicated this fact to the parents of the appellants. On receiving this information the parents of appellants had chided them. This was an important fact which could connect the appellants with the alleged crime. The prosecution ought to have collected evidences from the institution where the appellants and Shiv Kumar was studying. ( 13 ) ONE of the circumstance was that Narendra (p. W. 3) had seen Shiv Kumar coming with the appellants out of the gate of Vashya Inter College, Shamali at 1 1. 30 a. m. on 16. 2. 1983. The learned counsel for the appellants has stated that if Narendra had actually seen Shiv Kumar coming out of the college gate with the appellants then this fact ought to have been stated in the First Information Report. The Investigating Officer had stated that Radhey Lal had not disclosed the name of Narendra in his statement under Section 161 of the Code of Criminal Procedure. On the other hand Radhey Lal stated in his First Information Report that he had inquired from Kritpal and Yashpal who had informed him that they had seen Shiv Kumar at about 11. 30 a. m. on 16-2-1983 in Vaishya Inter College Shyamali. Narendra had stated in cross-examination that he had informed Radhey Lal P. W. I on 17th February 1983 that he had seen the appellants its with Shiv Kumar on 16-2-1983. If it was so, the name of Narendra also ought to have been mentioned in the First Information Report Ext. Ka 1 alongwith Kritpal and Yashpal. The above circumstances make the testimoney of Narendra not at all reliable. ( 14 ) THE prosecution had alleged that Om Prakash P. W. 6 had seen the appellant coming from the side of the bridge of Krishna river towards their village. Their clothes were wet. They had informed that they had bathed in the river and that is why their cloths were wet. This witness had admitted that he is educated up to class, VII. He further stated that he saw the appellants when he was returning from Delhi where his son was admitted in a hostle. He admitted in cross-examination that he had stayed in the village for 4-4 1/2 hours. This witness had admitted that he is educated up to class, VII. He further stated that he saw the appellants when he was returning from Delhi where his son was admitted in a hostle. He admitted in cross-examination that he had stayed in the village for 4-4 1/2 hours. Thereafter he had gone back to the Delhi. He also stated that he had not informed the fact about the noticing of the clothes of the appellants being wet to any other person of his village. He had informed this fact to the villagers only after he had returned to the village. It does not transpire from the statement of the Investigating Officer as to how he came across this witness and why he felt necessary to interrogate him. The Investigating Officer must explain the circumstances which lead him to interrogate a particular witness. If this is not done then the very veracity of the witness becomes doubtful and it then appears that such a witness had been introduced in the prosecution story without any proper basis on back ground. This is the case with the P. W. 6 Om Prakash. The lower court had erred in believing him. ( 15 ) ONE of the important evidence collected by the prosecution is regarding the recovery of Chappal, piece of shirt and hairs of the deceased. ( 16 ) TO prove the recovery the prosecution had examined P. W. 8 Vijendra Singh and P. W. 13 Baljeet Singh Yadav. Vijendra Singh had stated that he had gone alongwith sub inspector and in his presence satyaveer had handed over the aforesaid articles to the Investigating Officer. He had further admitted that Satyaveer resided in his village since his childhood. He was not aware of the name of father of Satyaveer. He had also admitted that he had got no field near the field of Om Prakash from which the articles were recovered. From the statement of P. W. 13 Baljeet Singh Yadav it transpires that signature of Radhey Lal were not obtained on two recovery memos Ext. Ka 5 and Ext. Ka 6. These recovery memo are regarding plain earth and blood stained earth and knife. There is signature of Radhey Lal only on Ext. 4 regarding the recovery of Chappal, hair and tom piece of shirt. Ka 5 and Ext. Ka 6. These recovery memo are regarding plain earth and blood stained earth and knife. There is signature of Radhey Lal only on Ext. 4 regarding the recovery of Chappal, hair and tom piece of shirt. If Radhey Lal was actually present at the spot where recovery was made then his signature ought to have been present on Ext. Ka 5 and Ext. Ka 6 also. It appears that the signature of Radhey Lal was obtained on Ext. Ka 4 at a subsequent time. In this way the fact of recovery also becomes doubtful. It appears to be a cooked story. ( 17 ) THE evidence relating to extra judicial confession before Raghubir Singh, P. W. 5 is also not of such a character on which reliance can be placed. Raghubir Singh stated that Bharat Veer and Satya Veer had come to his house 4-5 days after the recovery of the dead-body. They had stated that as Satyaveer had been arrested they will be also arrested. This witness is resident of village Kurana where Radhey Lal also resides. He admitted that after the two appellants had made the confession he had not informed this fact to any body of his village. He had disclosed this fact for the first time to the Investigating Officer on the next morning. This also is not believable. Keeping in view the anxiety and agony of Radhey Lal this witness ought to have disclosed the fact regarding the confession of the two appellants first of all to Radhey Lal. The offence was alleged to have been committed in a very brutal manner. In such a, situation any prudent person would inform the father first about the alleged confession made by the two accused - appellants. The statement of Raghubir Singh on the point of confession is also not reliable. ( 18 ) FROM what has been said by us it transpires that the circumstantial evidence collected by the prosecution was not of such a character as to lead to this conclusion that the appellants had committed the crime. The important chains in the circumstantial evidence were missing. The lower court had erred in believing the prosecution story. ( 19 ) THE appellants, as, we have stated above, were below 16 years of age. The learned counsel for the appellants has drawn our attention to Javendra and another v. State of UP. The important chains in the circumstantial evidence were missing. The lower court had erred in believing the prosecution story. ( 19 ) THE appellants, as, we have stated above, were below 16 years of age. The learned counsel for the appellants has drawn our attention to Javendra and another v. State of UP. The provision of U. P. Children Act (Act No. I of 1952) was applicable to the matter and according to Section 2 they could not be sentence to imprisonment. They were child within the meaning of Section 2 (4) of the aforesaid Children Act Under Section 27 of the aforesaid act they could be only sent to an approved school for such period of stay till they attained the age of 18 years. ( 20 ) FOR the reasons mentioned above the appeal is allowed. The judgment and order of the lower court are set aside. The appellants are acquitted of the charges levelled against them Their bail bonds are cancelled and sureties are discharged.