ORAL JUDGMENT Deshmukh, J. - The appellants-accused both of P.Ws. 1. were minors at the time when the incident had taken place. The prosecution case in brief is as follows : That the complainant, Pratap Govind Pandit is residing at Uttamnagar, Taluka-Haveli, District Pune along with his wife Baby and his son, Vijay. He is doing the business of selling ice-cream near Shivaji-Putala at Kothrud, Pune. Vijay, who was taking education in 7th Standard at the relevant time was having holiday on 7th September, 1989, i.e. the date of the incident as it was a Ganpati Visarjan day. On that day the complainant had gone to Kothrud for selling ice-cream. His wife and sister had gone to meet him at about 12 mid-night to make enquiries whether Vijay had come to him as he was not in the house since 3.30 p.m. Pratap Pandit told P.Ws. 1. that he had not come and all of P.Ws. 1., therefore, returned to the house and tried to search out Vijay. As the deceased Vijay could not be found a missing report was lodged at Uttamnagar Police Chowki on the next day. 2. Inspite of the best efforts made by the parents and relatives of Vijay he could not be found but it was noticed by the complainant that another person by name Shridhar Swami, who used to move with Vijay freely in the locality, is also not found at Uttamnagar. Accordingly, they made enquiries regarding the absence of Shridhar Swami with Laxman Swami with whom Shridhar Swami was staying. Laxman Swami on enquiry told P.Ws. 1. that Shridhar Swami had gone to native place, Naichapur, Taluka Umarga, Dist, Osmanabad. The complainant Pratap Pandit thought that probably Shridhar Swami might have taken Vijay with him to Naichapur. On 22nd September, 1989 he along with his wife Baby, and Laxman Swami, went to Naichapur. There they met Shridhar Swami but he did not give any information. They, therefore, lodged another missing report on the same date by entertaining suspicision for loss of Vijay against Shridhar Swami himself. P.Ws. 5, A.S.I. Ghante called Shridhar Swami and it is alleged that at that time Shridhar Swami gave him the details regarding the incident. Thereafter Shridhar Swami was brought to Deccan Gymkhana Police Station by Ghante along with complainant Pratap Pandit and his wife Baby. P.Ws. 5, A.S.I. Ghante called Shridhar Swami and it is alleged that at that time Shridhar Swami gave him the details regarding the incident. Thereafter Shridhar Swami was brought to Deccan Gymkhana Police Station by Ghante along with complainant Pratap Pandit and his wife Baby. There the enquiries were made with Shridhar Swami when he disclosed the incident. Thereafter the investigation proceeded and even his skeleton was recovered. On the basis of the information given by Shridhar Swami, it seems that Pratap Pandit, father of the deceased Vijay, filed a complaint, Exhibit-24 on 24th September, 1989 involving the present two accused for committing the murder of Vijay in a field where the skeleton was found. 3. The allegations in the complaint were that on the day of the incident accused No. 1 Raghunath Ghosale had intercourse with Shalan, P.Ws. 4 in a temple where accused No. 2 Rupesh kept a watch by standing in the front door of the temple. At that time Shridhar Swami as well as the deceased Vijay had seen that accused No. 1 was having intercourse with Shalan. Shalan noticed the same and out of fear told accused No. 1 that Vijay, who is residing in the same locality, is likely to spread the news of their affair in the village. Accused No. 1 told Shalan that she should not be afraid and he will take care of Vijay. Accordingly Vijay was taken beyond the river in the sugar-cane field. Shridhar Swami, who had heard the conversation between Shalan and accused No. 1 thought of some foul play at the hands of accused persons and hence he followed P.Ws. 1. - secretly even upto the sugarcane field. Shridhar Swami found that accused No. 1 felled down Vijay and pressed the neck by sitting on his chest, while accused No. 2 helped him by holding the legs of Vijay. Vijay tried to raise shouts. But he could not utter more than a couple of words and, thereafter, he died there in the field. Out of fear Shridhar Swami left Uttamnagar locality and went to his native place where after few days the complainant Pratap Pandit and his wife Baby followed him. 4. Vijay tried to raise shouts. But he could not utter more than a couple of words and, thereafter, he died there in the field. Out of fear Shridhar Swami left Uttamnagar locality and went to his native place where after few days the complainant Pratap Pandit and his wife Baby followed him. 4. On the, basis of the evidence led before him, the learned Trial Judge held both the accused guilty of offence punishable under Section 302 read with Section 34 and Section 364 read with Section 34 of the Indian Penal Code (IPC) and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 1000/- each, in default, to suffer rigorous imprisonment for two months. Though the accused were also tried for offence punishable under Section 403 read with Section 34 of the IPC, however, on the basis of the evidence, the learned Trial Judge acquitted both the accused of the said offence. 5. The order of conviction and sentence passed by the learned Trial Judge is challenged in - this appeal by both the accused persons. 6. Shri Chitnis, the learned Counsel appearing for the appellants contended that the conviction is unwarranted for both the offences under Section 302 read with Section 34 as well as for offence under Section 364 read with Section 34 of the IPC. According to him, the learned Trial Judge has no jurisdiction to try the case against accused No. 2, Rupesh, as he was less then 16 years of age. Apart from the fact that - both the accused persons were minors at the time of the commission of the offence, the accused persons had produced their school leaving certificates to indicate their ages. Inspite of the fact that the trial Judge had no jurisdiction to try accused No. 2., the learned trial Judge has not only proceeded with the trial but had recorded convictions and awarded sentence against accused No. 2 also. He, therefore, contends that the entire trial is vitiated thereby. 7. On the basis of the evidence also, according to him, the conviction is not called for. 8. He, therefore, contends that the entire trial is vitiated thereby. 7. On the basis of the evidence also, according to him, the conviction is not called for. 8. The learned A.P.P. for the State, however, contended that no fault can be found with the findings recorded by the learned trial Judge having regard to the fact that the offence is committed by the accused persons of a child by removing from the lawful custody of his parents and by brutally murdering him in a sugarcane field for no fault of his. 9. We have gone through the entire evidence on record. It is not disputed before us that the entire case rests on the evidence of Shridhar Swami, P.Ws. 2, who claimes to be the eye witness of the incident. After going through the judgment of the learned trial Judge also, we find that heavy reliance is placed on the evidence of Shridhar Swami. There is, therefore, no doubt, in the facts of this case that the conviction stands on the proper evaluation of the evidence of P.Ws. 2, Shridhar Swami, who is examined by the prosecution as the sole eye witness in this case. The prosecution has also relied upon the evidence of Shalan, P.Ws. 4, by way of corroboration to the evidence of Shridhar Swami. 10. Shridhar Swami, P.Ws. 2, has narrated the incident in detail in his deposition before the Court and has stated that on 9th September, 1989 he had gone to Kanifnath temple for flying pigeons. As one of the pigeons, which we limping sat on the temple, he climbed on the temple for getting it down. While he was catching the pigeon, he saw the sexual intercourse which, was going on between accused No. 1, Raghunath and Shalan, P.Ws. 4. At that time he had also seen Vijay Pandit collecting grass. When Vijay was proceeding towards the temple,- he saw the said intercourse which was going on between accused No. 1 and Shalan. Shalan also saw Vijay, who had seen the intercourse. Thereafter Shalan and Raghunath went inside the temple for changing clothes. When he was getting down from the temple, he heard Shalan saying to accused Raghunath that Vijay had seen their intercourse and will inform about it in the whole village, which will affect her image in the eyes of the people. Thereafter Shalan and Raghunath went inside the temple for changing clothes. When he was getting down from the temple, he heard Shalan saying to accused Raghunath that Vijay had seen their intercourse and will inform about it in the whole village, which will affect her image in the eyes of the people. She even told accused No. 1 because of this she intends to commit suicide or to run away. Thereupon accused Raghunath told her not to worry and he further told her that he will take care of it. Thereafter Shalan went to her house. According to Shridhar Swami, they had used his bed-sheet at the time of intercourse which was kept by him in the temple as he used to sleep there daily. Then accused to a told accused No. 2, Rupesh, to bring Bhel and Vada. After Bhel and vada was brought, accused No. 1 Raghunath called Vijay Pandit to eat Vada. Vijay Pandit came near P.Ws. 1. and all of P.Ws. 1. ate vada and bhel. Thereafter accused No. 1 told Vijay that they will go to guava garden for eating guava. Vijay said to him that he will come after sometime after going home and keeping the grass. After sometime Vijay came there, and went towards the river along with some boys for Gauri and Ganapati Visarjan. Thereafter both the accused went towards the river. As there some stains on his bed-sheet he went to wash the same in the river-bed. While he was washing the bed-sheet he noticed accused No. 1, Raghunath, talking something to Vijay. Thereafter he – seen Vijay crossing the river and both the accused following him. Because of the suspicion he also followed P.Ws. 1., In the garden they plucked some fruits and proceeded further towards sugar cane field. He followed P.Ws. 1., thereafter, also by hiding himself from their sight. When Vijay and two accused persons went near the Mango trees in the sugar cane field accused No. 1 felled down Vijay, sat on his chest and was pressing the neck of Vijay. When Vijay Pandit started moving his legs, accused No. 1, Raghunath asked accused No. 2, Rupesh to catch the legs of Vijay and accordingly, accused No. 2. caught hold of both the legs of Vijay. Accused No. 1 pressed the neck and throttled Vijay. When Vijay Pandit started moving his legs, accused No. 1, Raghunath asked accused No. 2, Rupesh to catch the legs of Vijay and accordingly, accused No. 2. caught hold of both the legs of Vijay. Accused No. 1 pressed the neck and throttled Vijay. At that time Vijay shouted twice only as "Oh mother, Oh mother" and thereafter he did not say anything. He has further stated that he had seen this incident from a distance of about 10 ft. Thereafter both the accused persons left the sugar-cane field and went towards the river. Immediately he also started running towards the river. When he reached near the river and continued to wash the bed-sheet both the accused, Raghunath and Rupesh, came near him. At that time accused No. 1 was having a knife in his hand and he gave threat to him that he should not live in the temple and should leave the village immediately and go back to his native place. Otherwise he will be killed. As he had no money to, go back to the village he asked accused No. 1 to give him money. Accused No. 1 thereupon gave him Rs. 30/-. When the accused gave threats to him the other boys from the village namely Balu Sutar and Shivaji Sutar were present near him. Thereafter he took his bed-sheet and went to the temple. The accused again came near him and at that time also accused No. 1 told accused No. 2 that the does not go back to the village, he wilt finish him. Accused No. 2 also said to accused No. 1 that as they had already committed one sin, they should not commit another one, upon which accused No. 1 gave abuses to accused No. 2. Thereafter both the accused left the temple and went away. Immediately thereafter he went to his native place by collecting his articles. 11. The entire story on the basis of which the complaint is filed is narrated by this witness. According to the prosecution, no other person has seen the incident except Shridhar Swami. The learned trial Judge has placed heavy reliance on the evidence of this witness for holding the accused persons guilty of both the offence under Section 302 as well as under Section 364 of the IPC. 12. According to the prosecution, no other person has seen the incident except Shridhar Swami. The learned trial Judge has placed heavy reliance on the evidence of this witness for holding the accused persons guilty of both the offence under Section 302 as well as under Section 364 of the IPC. 12. The evidence of Shridhar Swami is challenged by the Counsel appearing for the appellants on several grounds, as, according to him, he is not a truthful witness and his evidence is full of contradictions and omissions on all material particulars. Shridar Swami is a person of 29 years of age. Accused No. 1 Raghunath was just about 17 years of age at that time and accused No. 2 was just about 15 years of age. Both the accused persons were minors. The deceased Vijay was a student studying in seventh standard and was about 12 years old at the relevant time. The evidence of Shridhar Swami suffers from many improbabilities. Firstly, Shridhar Swami claims to have seen the incident right from the beginning commencing from the intercourse upto the murder of Vijay. He claims to have seen the incident from the close quarters. However, he has no where stated that he had seen accused No. 1 carrying with him any weapon from the beginning. When the accused No. 1 was throttling the deceased Vijay, a person of 29 years of age, double the age than that of both the accused persons, was expected to intervene in the matter and remove accused No. 1 from pressing the neck of the deceased Vijay. At any rate, he could have raised shouts as admittedly he was not alone there, as it was a Ganesh and Gauri immersion day. In his evidence Shridhar Swami has stated that the deceased Vijay was in the company of several boys when he came near the river on the Ganesh and Gauri immersion day. Being Ganesh Gauri immersion day number of boys and other persons from the village most have gathered there near the river for immersion. Shridhar Swami could have raised shouts for getting help as at that time there was no there given to Shridhar Swami by the accused No. 1. In fact, according to his evidence he was following P.Ws. 1. secretly by hiding himself. Shridhar Swami could have raised shouts for getting help as at that time there was no there given to Shridhar Swami by the accused No. 1. In fact, according to his evidence he was following P.Ws. 1. secretly by hiding himself. If he had really that suspicion in the mind he would not have failed either to intervene or to raise shouts for seeking help of other persons when accused No. 1 was attempting to press the neck and throttle the deceased Vijay. The conduct of Shridhar Swami, in keeping quiet all the while in spite of entertaining suspicion on the basis of conversation between accused No. 1 and Shalan, does not inspire confidence, as Shridhar Swami is much more of major age than that of both the accused persons. 13. The prosecution has tried to place reliance on the evidence of Shalan by way of corroboration to the evidence of Shridhar Swami. What Shalan has stated in her deposition is that in the afternoon before her lunch she alone had gone to the temple. She found accused No. 1 Raghunath standing beyond the temple. When she went near accused No. 1 he expressed his desire to have sexual intercourse with her. Therefore he laid one bed-sheet in the grass behind the temple. Then they both slept on the bed sheet and accused No. 1 had sexual intercourse with her. At that time the deceased Vijay saw P.Ws. 1. Due to fear of spreading this incident in the village by Vijay she became afraid. At that time accused No. 1 said to her that she should not be afraid and he will manage the whole affair. Thereafter she went home and in the evening at about 4.30 p.m. she had gone to the river for immersion of Ganapati. At that time the deceased Vijay was present on the Bank of the river along with other boys for the immersion of Ganapati. Thereafter, she-saw both the accused going towards the river. After that she saw both the accused and deceased Vijay going across the river. Thereafter she returned back home. In the same evening the mother of Vijay made enquiries with her about him and she told her that she fact seen him on the river. There after on 24th September, 1989 when she was called in the police chowki, she came to know that the accused had killed Vi jay. Thereafter she returned back home. In the same evening the mother of Vijay made enquiries with her about him and she told her that she fact seen him on the river. There after on 24th September, 1989 when she was called in the police chowki, she came to know that the accused had killed Vi jay. 14. Looking to the evidence of Shalan, she is not deposing to anything except her having intercourse with accused No. 1. At the time of Ganpati immersion she found the deceased Vijay in the company of several boys on the bank of the river. She also noticed the two accused persons coming there near the river. She saw both the accused and deceased Vijay going across the river. Thereafter she returned back home. 15. If we consider the entire deposition of Shridhar Swarili, he has stated that apart from him Shalan also followed both the accused persons and Vijay right upto the sugar-cane field, and she was also present when accused No. 1 was pressing neck and throttling the deceased Vijay. Shalan has not deposed to having seen the main incident of committing murder of Vijay at all. She has stated that she saw both the accused and deceased Vijay going across the river and thereafter she returned back home. She has not corroborated the evidence of witness Shridhar Swami regarding accused No. 1 calling the deceased to eat bhel and vada. She has not corroborated regarding the rest of the incident at all. Apart from the incident regarding the sexual intercourse Shalan has not supported the witness Shridhar. Swami in any manner. Even while describing the sexual intercourse Shalan has not stated anything regarding the presence of Shridhar Swami or noticing by him of the sexual intercourse. She also does not support Shridhar Swami regarding the presence of accused No. 2 in front of the temple door at the time of sexual intercourse. She is emphatic about the presence of accused No. 1 only at the time of intercourse. She also does not support Shridhar Swami that at the instance of accused No. 1, accused No. 2 brought Bhel and vada and not only by accused Nos. 1 and 2 but Vijay also ate Bhel and Vada. She is emphatic about the presence of accused No. 1 only at the time of intercourse. She also does not support Shridhar Swami that at the instance of accused No. 1, accused No. 2 brought Bhel and vada and not only by accused Nos. 1 and 2 but Vijay also ate Bhel and Vada. Shalan speaks of the presence of accused No. 2 for the first time when she had gone for Ganapati immersion much after the incident of intercourse near the river and not before that. In these circumstances, it is very difficult to accept that Shalan corroborates even noticing the incident of intercourse by witness Shridhar Swami. The evidence of Shalan is, therefore, of no help to the prosecution for the offence under Section 364 or 302 of the IPC. 16. The uncorroborated testimony of Shridhar Swami (P.Ws. 2) alone will have to be considered on its intrinsic value, We have already pointed out the conduct of this witness at the time of the incident Secondly we and many infirmities which make it unsafe to rely on the evidence of this witness. He and also A.S.I. Ghante, P.Ws. 5, have stated that the incident is narrated by witness Swami to Ghante at Naichapur. The statement made by this witness, as recorded, is not coming forward. Assuming that the same is' not recorded what is stated by Shridhar Swami to Ghante in village Naichapur or at Umarga is also not coming forward. Except saying that Shridhar Swami has disclosed the entire incident, Ghante has not stated anything as to what was disclosed by Shridhar Swami at that time. We must look to the evidence of P.Ws. 3, Pratap Pandit, regarding this aspect. According to him, he, his wife and uncle of Shridhar Swami, were brought together by Ghante to Deccan Gymkhana Police Station, at Pone, along with Shridhar Swami. At that time he was told that his son Vijay is at Pone. If really Shridhar Swami had disclosed about the death of Vijay it is impossible to consider that Ghante will tell Pratap Pandit (P.Ws. 3) by concealing the death, that his son is at Pone. The information given by Shridhar Swami, therefore, assumes importance but that information which he had given to Ghante at Naichapur or at Umarga is not coming forward. 3) by concealing the death, that his son is at Pone. The information given by Shridhar Swami, therefore, assumes importance but that information which he had given to Ghante at Naichapur or at Umarga is not coming forward. None of the witnesses has deposed as to what information was given by Shridhar Swami to Ghante or to anyone else at that time. 17. One more circumstance, which requires consideration, in this Case is that after the entire incident was -narrated by Shridhar Swami to Ghante (P.Ws. 5) at Naichapur or at Umarga then there was no difficulty in getting the complaint recorded on the basis of that information supplied by Shridhar Swami or even recording-a complaint by the father of the deceased, P.Ws. 3, Pratap Pandit. Before the complaint, Exhibit-24, is recorded on 24th September, 1989 the entire investigation is complete. The required Panchanamas are drawn. The bones and skeletons were recovered and thereafter the complaint, Exhibit-24, is recorded by P.Ws. 3, Pratap Pandit. If really the incident would have been narrated leading to the death of Vijay at the hands of accused persons at Naichapur or at Umarga then there was no reason as to why the complaint is not recorded either at Naichapur or at Umarga or even after arriving at the Police Station at Decant Gymkhana, Pone. The complaint came to be recorded after the entire investigation is complete. Even the complainant, Pratap Pandit, had to admit that he came to know of the murder of Vijay after the Panchanamas were drawn and after the investigation is practically completed. At that time he was told that his son is killed. In these circumstances, it is very difficult to accept that Shridhar Swami narrated the entire incident to P.W. 5, Ghante at Naichapur or at Umarga. If he had disclosed the entire incident as deposed to by him in the Court, there was no reason as to why that information was not given to the parents of the deceased from 22nd to 24th September, 1989. The information is not reduced to writing even to the concerned person and no explanation is coming forward as to why atleast the parents were not informed regarding the murder of Vijay. In these circumstances, it would be unsafe to rely on the sole testimony of Shridhar Swami. In fact, the first missing report was lodged on 10th September, 1989 and-according to P.Ws. In these circumstances, it would be unsafe to rely on the sole testimony of Shridhar Swami. In fact, the first missing report was lodged on 10th September, 1989 and-according to P.Ws. 3, Pratap Pandit, he suspected that Vijay might have been taken by Shridhar Swami to his village. He went to the village and enquired with Shridhar Swami but, according to him, Shridhar Swami did not disclose to him anything. Thereafter his suspicion continued and the second missing report Exhibit-25 is lodged at Naichapur. It is only after the second missing report was filed, that Shridhar Swami was called by P.Ws. 5, Ghante. This also indicates that P.Ws. 3 Pratap Pandit had grave suspicion on the basis of the conduct of Shridhar Swami as Swami was moving in the company of deceased Vijay in Uttamnagar from 9th September, 1989 he left Uttamnagar and went to his native village, Naichapur, without informing anything about the incident. 18. In fact, it is not necessary to consider the other circumstances as even other circumstances are taken into consideration the chain is not complete. This position is accepted even by the learned trial Judge. Leaving the testimony of Swami apart, there is no evidence which culminates in a chain to convict both the accused persons. Even the learned trial Judge has also found it little difficult to accept the other circumstances. While considering the evidence of doctors and C.A. report, the learned trial Judge has found that there are two different opinions be between two doctors that on the basis of C.A. report the skull and bones in question definitely cannot be said to be that of the victim. These circumstances indicate that the chain cannot be said to be complete. However, some pieces of guava fruits, which were found in the Panchanama, found favour with the learned trial Judge. It is very difficult to consider that if the body could decompose because of the eating away of the flesh by the dogs and fox, how it can be considered that guava fruits will remain intact when the Panchanama was made after about two weeks of the incident The finding of guava fruits in the Panchanama of the scene of offence does not support at all. If fox and dogs could eat the flesh of the body then it is impossible to consider that in spite of that guava fruits will remain as it is, at the spot without being decomposed or eaten away by other animals, birds or ants. In our opinion, therefore, the prosecution relied not only on the circumstantial evidence but also on the eye witness account of Shridhar Swami. As already pointed out, it will be unsafe to rely upon the sole testimony of Shridhar Swami because of the several infirmities appearing in his evidence. So also the chain is not complete pointing out the guilt of the accused. It is highly doubtful regarding the presence of accused No. 1 right from the beginning till end. 19. It was also argued before us by the learned Counsel appearing for the appellants that the learned trial Judge has no jurisdiction to try the case against accused No. 2 in this case as he was less than 16 years of age at the relevant time and was a child to be dealt with only by a juvenile Court. There is no doubt that for that purpose the accused persons had produced the extracts of school leaving certificates. As per these extracts, the date of birth of accused No. 1, Raghunath is 1.6.1972 while that of accused No. 1, Rupesh is 25.7.1974. Accused No. 1, therefore, admittedly according to this circumstance, was less than 16 years of age. The learned trial Judge has not considered this aspect of the matter. If the accused No. 1 is really less than 16 years of age, as per the certificate, then, the learned trial Judge has no jurisdiction to proceed against him. Though the trial vitiates in that aspect also as the entire evidence was before us we thought it fit to appreciate the evidence available to us and consider the case on merits itself as being otherwise would have resulted in injustice to the accused persons who are in jail from 1989 till today. 20. In the result the order of conviction and sentences passed by the learned trial Judge is set aside. The appellants-accused shall be set at liberty forthwith if not required in any other matter. Appeal allowed.