Judgment P.K.Deb, J. 1. This appeal has been directed against the judgment and order of conviction, dated 13-4-1993 passed by Shri S.K. Sharma, 4th Additional Session Judge, Dhanbad, in Sessions Trial No. 84 of 1990 whereby the accused appellant Md. Murshid was found to be guilty for the offence under Secs. 363 and 302 of tile Indian Penal Code and sentenced to undergo imprisonment for four years and for life respectively. Both the sentences were ordered to run concurrently. 2. The brief facts as is revealed from the materials on records are that on 13-4-1986 in the evening hours, the accused appellant (Md. Murshid) who was serving in the garage belonging to the informant Md. Mara/a (PW 3) slaying at his house Sadisopur in the district of Patna took away his minor son Md. Mumtaz, aged about 7/8 years from the custody of parents but die accused did not return. At about 6 p.m. on Unit date the brother of the informant namely Md. Manowar Alam (PW 11) while coming in train from Danapur towards Sadisopur saw the appellant walking away with minor Mumtaz nearby Patna Station. PW 11 after reaching home at Sadisopur enquired about Mumtaz and Murshid but the informant thought that the accused appellant might have taken Mumtaz to Patna for witnessing Circus show there and might be returning in the night hours but he did not come back nor the minor son .On the next day i.e. on 14-4-1986, search was made at patna for finding the where about of the appellants and minor Mumtaz but no trace could be found out. Then on 15-4-1986 the informant along with his nephew Nurul Hoda (PW4) came to Dhanbad in search of Murshid and Mumtaz It may mentioned here that the accused is hailing from Pandharpalha, Police station Bank More, in the district of Dhanbad There the informant reached at the residence of Jainul Abedin (PW2) and searched for the where about of Murshid and Mumtaz . As the night had fallen by that time they did not go to Md. Murshids house but on the next day i.e. on 16-4-1986, they went to the residence of Md. Murshids and found him there . On enquiry being made about Mumtaz, accused Md. Murshid replied that he would be going to hand over Mumtaz after some time, Md. Murshid was searched, then along with his elder brother Md. Murshids house but on the next day i.e. on 16-4-1986, they went to the residence of Md. Murshids and found him there . On enquiry being made about Mumtaz, accused Md. Murshid replied that he would be going to hand over Mumtaz after some time, Md. Murshid was searched, then along with his elder brother Md. Imtiaj (PW)8 and the nephew of the informant Nurul Hoda (PW4) started together to hand over Mumtaz from the hideout but on the way , he tries to escape .Then Murshid was apprehended and he was assaulted by his brother .Then Md. Murshid disclosed that he would say everything about Mumtaz if he would be allowed to leave alone. In the meanwhile a man named Sarfaraz, came to the house of Md. Murshid when such interrogation was going on Md. Imtiaj came back and assured the informant that Murshid would disclose every thing and they would wait for Sarfaraz , but in the evening hours, Sarfaraz returned alone being intoxicated and could not say any thing as to what had happened and further disclose that Murshid did never come .On the next morning i.e. on 17-4-1986, one Moulvi Saheb disclose to the informant that he heard that a dead body. The deceased Mumtaz was lying with blood stains having injuries on head, neck and on other parts of the body and a stone was also found near the dead body having stains with blood like substance . At 9.30 a.m. on the same day i.e. on dead body of the deceased Mumtaz .The accused appellant was arrested and the statement of his elder brother Imtiaj was recorded under Sec. 164 Of the Code of Criminal Procedure before the court of the Magistrate. From the post mortem report, it could be detected that the in juries caused on the head region resulted in homicidal death of the deceased Mumtaz . After investigation, charge-sheet was submitted under Secs. 364 and 302 of the Indian Penal Code. On being committed, charge was also framed by the learned Court below under the said sections of the Indian Penal Code. 3. The defence case is of total denial of the prosecution story. It should be mentioned here that in this case, there is no direct evidence except some circumstances against the appellant towards his involvement with the crime. 4. On being committed, charge was also framed by the learned Court below under the said sections of the Indian Penal Code. 3. The defence case is of total denial of the prosecution story. It should be mentioned here that in this case, there is no direct evidence except some circumstances against the appellant towards his involvement with the crime. 4. For and on behalf of the prosecution, as many as 12 witnesses have been examined which may be stated below in short. 5. PW 1 Md. Fakruddin of village Azad Nagar, Bhuli, is a hearsay witness of the alleged murder, PW 2 Jainul Abedin of Dhansar is the brother-in-law of the informant who is also a witness of seizure of the blood stained stone and wearing apparels of the deceased and also the inquest report. PW 3 Md. Murtaza is informant as well as father of the deceased boy. PW 4 Nurul Hoda is nephew of the informant who was also a witness to the fardbeyan and identified the dead body of the deceased boy which was lying in the field near Bhuli Bye Pass Road, PW. 5 Md. Ajmat Ansari is only a tendered witness. PW 6 Dr. Vinod Kumar held autopsy over the dead body of the deceased boy Md. Mumtaz and found the following ante-mortem injuries on his person: (i) Lacerated wound 1/4" X 1/2" X scalp deep on the left parital region of head. (ii) Abrasion 1/2" x 1/5", 3/4" X 1/4", 1/2" X 1/6" and 1/2" X 1/5" seen on the right side of neck. Mumtaz and found the following ante-mortem injuries on his person: (i) Lacerated wound 1/4" X 1/2" X scalp deep on the left parital region of head. (ii) Abrasion 1/2" x 1/5", 3/4" X 1/4", 1/2" X 1/6" and 1/2" X 1/5" seen on the right side of neck. (iii) Abrasion 1/2" X 1/5" seen on the left side of neck; (iv) Abrasion 3/4" X 1/2" at the outer angle of left eye; (v) Abrasion 1 "X 1/2" seen 11/2" in front of left ear; (vi) Abrasion 2" X 1" on the posterior aspect of left forearm; (vii) Abrasion 2 1/2" X 1" on the back of left arm; (viii) Abrasion 2" X 1/2" on the exterior aspect of left fore arm; (ix) Abrasion 1/2" X 1/2" on the front of right thigh; (x) Abrasion 2" X 1" a the right knee (xi) Abrasion 1 1/2" X 3/4" on the front thigh; (xii) Abrasion 1/2 X 1/3 "on the left flank of waist; (xiii) Multiple pin head size abrasion in an area of 2" X 1 1/2" on the left flank of lower part of chest; and (xiv) Abrasion 1/2" X 1/2" on upper outer aspect of left thigh. According to the doctor, the death was prior to 18 to 36 hours at the time when post-mortem was performed i.e. on 17-4-1986 at 1 p.m. According to the doctor, the death was in comma as a result of head injury caused by hard and blunt force impact may be stone". 6. PW 7 Bageshwar Sharma is the Assistant Sub-Inspector of Police of Bhuli Out Post who identified the handwriting of Jagdish Paswan on the fard beyan (Ext. 3). He also held inquest and prepared the report (Ext. 4) and also the seizure list (Ext. 5) PW 9 Md. Imtiaj is the elder brother of the accused, according to whom, the accused Md. Murshid had made extra-judicial confession before him that he had killed the deceased boy by hitting him with stone as his pay for six months had been withheld by the deceaseds father, the informant (PW 3). 5) PW 9 Md. Imtiaj is the elder brother of the accused, according to whom, the accused Md. Murshid had made extra-judicial confession before him that he had killed the deceased boy by hitting him with stone as his pay for six months had been withheld by the deceaseds father, the informant (PW 3). This was his statement under Sec. 164 of the Code of Criminal Procedure but the same has not been supported by him during the course of trial and he has given plausible reasons as to in what circumstances and on how being influenced by the police, he was made to make the statement under duress. PW 9 Kiyamuddin Ansari had only been tendered PW 10 Imamul Abedin is the brother of the brother-in-law of the informant PW 3, PW 11 Md. Manowar Alam is the brother of the informant. PW 3 and PW 12 is the Bench Clerk of the Judicial Magistrate of the Civil Court at Dhanbad who endorsed the statement recorded under Sec. 164 of the Code of Criminal Procedure of PW 8 Md. Imtiaj. 7. It may be mentioned here that the learned Court below found the appellant guilty for kidnapping but he recorded the conviction only under Sec. 363 of the Indian Penal Code and not under Sec. 364 of the Indian Penal Code. It observed that kidnapping could not be proved to be with the intention of murder but strangely enough, he also recorded the conviction of the accused under Sec. 302 of the Indian Penal Code. 8. It has already been mentioned that in this case there is no direct evidence or any other evidence except the circumstances leading to the involvement of the accused with the alleged crime. The circumstances alleged from the side of the prosecution are that the accused Murshid while serving in the garage belonging to the informant PW 3 was staying at his residence at Sadisopur in the district of Patna and on the relevant date i.e. on 13-4-1986 he took away the deceased boy without information of his parents. The second circumstance against the accused appellant is-that he was seen accompanying the deceased boy near Patna Station by PW 11 while he was coming from Sadisopur by train from Danapur. The third circumstance against the accused appellant is that there were materials to show that the accused Md. The second circumstance against the accused appellant is-that he was seen accompanying the deceased boy near Patna Station by PW 11 while he was coming from Sadisopur by train from Danapur. The third circumstance against the accused appellant is that there were materials to show that the accused Md. Murshid had brought the boy at his residence at village Pandarpalha and that he made extra judicial confession before others including PW 8 his elder brother Md. Imtiaj. 9. For the purpose of conviction on the basis of circumstantial evidence, it is necessary that chain of circumstances must be proved to the hit by the prosecution and that chain of circumstance must lead to a single conclusion that the accused had committed the offence without any doubt whatsoever. The circumstances must be of such nature that, those must be completed into a chain and such chain should be devoid of any other explanations on any hypothesis except the guilt of the accused. The collusiveness of the circumstances should be wholly inconsistent with the innocence of the accused. In this connection, reference may be made to 1979 Cr.L.J. 1089. In the light of the above principles, we are to consider the circumstances proved in this case. 10. Before coming to the chain of circumstances, we have seen that in the present case, there is a missing link due to the fact that there is no evidence to the effect as to how the accused brought the deceased at Dhanbad either from Sadisopur or from Patna. There is no evidence to that effect except the statement of the informant that he was told by the accused Md. Murshid that he had brought the boy from Patna and that the mother of the accused had also reported the same but the mother has not been examined in the case and the so-called statement of the accused before the informant is inadmissible in evidence. PW 8 has also not supported this statement although it was there in his statement under Sec. 164 of the Code, which it is not a substantive piece of evidence. So the chain has been broken even if the evidences available on record are taken to be totally true. There is no explanation from the side of the learned Additional Public Prosecutor on this point rather she had to concede that there is a missing link in this case. So the chain has been broken even if the evidences available on record are taken to be totally true. There is no explanation from the side of the learned Additional Public Prosecutor on this point rather she had to concede that there is a missing link in this case. Again except PW 11, no body has said as to the seeing of accused along with the deceased boy at Patna. This noticing of the witness is also not free from doubt. According to him, he saw the accused in the company of the deceased from a distance of 200 yards that too from a running train. Such occular evidence is not free from doubt. So from 13-4-1986 to 17-6-1986 it could not be proved by any cogent evidence by the prosecution that the deceased boy was in the company of the accused till his alleged murder. 11. About taking away or kidnapping as contemplated under Sec. 363 of the Indian Penal Code on which the learned court below based his conviction against the accused, we do not find cogent or reasonable evidence to that effect. For proving die offence under Sec. 363, I.P.C, four ingredients the required to be proved by the prosecution, namely: (i) the person who was taken away was a minor at the relevant lime; (ii) minor at that time was lawfully entrusted to keeping of lawful guardian; (iii) the accused took or enticed away such minor out of such keeping; and (iv) he so look or enticed away without the consent of such guardian. 12. In the present case, it was true that the deceased was taken away from the keeping of (lie informant but from the evidence of the informant, it is clear that he was in the knowledge when live appellant took the deceased Mumtaz. away from the house. From his evidence ii is further clarified that such taking away was even not only in his knowledge but within his sight as he siated that he was sitting on the verandah at 3.30p.m. when the accused look (lie deceased Mumtaz away from inside the house and he did not make any objection to such taking away. Even if there was no valid consent from his suit" in taking away but there was definitely a tacit, consent, from his. side. Even if there was no valid consent from his suit" in taking away but there was definitely a tacit, consent, from his. side. So the conditions required for kidnapping under Sec. 363 of die Indian Penal Code could not be proved. We have also mentioned that the learned trial court has misconceived while ii brought down the charge from Sec. 364 to Sec. 363 of the Indian Penal Code in holding die accused guilty for the reasons that the kidnapping was not with the intention of murder hoi a the same lime he recorded the conviction under Sec. 302 of the Indian Penal Code which was on the same sequel of kidnapping. 13. About the charge under Sec. 302 of the Indian Penal Code., we have already observed above that the prosecution could not able to prove the chain of circumstances, rather there was a big missing link. Moreover even if we hold for arguments sake that in admissible evidence un which the learned court below relied on were really true then also this possibility cannot be brushed aside that the minor boy got injuries on the head region by fail on a hard substance although the same has been denied by the doctor, bus (he doctors evidence is also hoi cogent when he could not give the exact reasons for which the was caused. This possibility cannot be brushed aside that die deceased boy might, have sustained injuries by fall from a running (rain and the accused to shirk his responsibility out of fear did not disclose the actual fact because it should be borne in mind that at the time of occurrence, the .accused was also very young in age. 14. Again the deceased was said to be last .seen in the company of the appellant on 13-4-1986 at. Puma Railway Station by PW 11, although that evidence is not believable but. still if that be (rue also then what happened afterwards from 13-4-1986 evening to the morning of 17-6-1986 there was nothing on record. Even if that evidence is also taken in(o consideration then also is. cannot be said that the deceased was really last seen in the company of the accused in the chain of circumstances as there was a big missing link. 15. From all these above, We are of, the view that die conviction recorded by the learned court below is not tenable. 16. cannot be said that the deceased was really last seen in the company of the accused in the chain of circumstances as there was a big missing link. 15. From all these above, We are of, the view that die conviction recorded by the learned court below is not tenable. 16. in the result, this appeal is allowed and the judgment and order of conviction and sentenced passed against die appellant is set. aside and we acquit him on giving benefit of doubt. The appellant is in jail. He shall be released forth if not wanted in any other Case 17. R.N. Sahay, J. I agree