Judgment PRASUN KUMAR DEB and SURINDER SARUP JJ. 1. The sole appellant in this case has been convicted under Sections 302, 201/34 of the IPC by the impugned judgement and order dated 31-5-1989 by Smt. Sakuntla Sinha, IInd Additional Sessions Judge, Singhbhum at Chaibasa, in Sessions Trial No. 214 of 1986. The appellant has been sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs. 2,000 and in default to undergo simple imprisonment for six months under Section 302 of the IPC. No separate sentence was passed under Section 201 of the IPC. 2. The prosecution story is based totally on circumstantial evidence. It is the case of the prosecution that deceased Gujri Gagrai was a boy of 14 years old at the time of occurrence and he was employee as a servant in the house of one Krishna Singh Jamuda of Village Uligutu. Alongwith this Gujri Gagrai, another boy named Budhram Gope was also a servant in t hat house. From the evening of 17-3-1984 Gujri Gagrai was found missing in the house of Krishna Singh Jamuda and on his search Budhram Gope came to the house of the father of Gujri Gagrai namely Rashi Gagrai and informed him about the missing of his son. Then this Rashi Gagrai informant in the case went to the house of landlord and from the female folk he could learn that Gujri Gagri was missing from last evening of 17-3-1984. He smell of something unnatural and suspecting that his son might have been disappeared at the hands of his enemy i.e. accused Mohan Gagrai, he went to the house of the accused in search of his son. There also Mohan Gagrai completely denied of taking the deceased Gujri Gagrai with him or could not give any information about his son. Then on 19-3-1984 this Rashi Gagrai lodged an information with Chaibasa Mufassil police station. On the basis of which FIR (Exhibit-1) was drawn and investigation started. As the informant suspected about this accuseds involvement in this crime the accused Mohan Gagrai alongwith co-accused Nazir Honhaga were arrested. It is the case of the prosecution that in the evening of 17-3-1984 Mohan Gagrai took away Gujri Gagrai from his landlord on the plea of seeing "BAA" festival at Chaibasa and afterwards he did not return. As the informant suspected about this accuseds involvement in this crime the accused Mohan Gagrai alongwith co-accused Nazir Honhaga were arrested. It is the case of the prosecution that in the evening of 17-3-1984 Mohan Gagrai took away Gujri Gagrai from his landlord on the plea of seeing "BAA" festival at Chaibasa and afterwards he did not return. It is further case of prosecution that accused/appellant Mohan Gagrai" had confessed his guilt before the police and on his statement the deadbody of Gujri Gagrai was recoverved from wheat field on 23-7-1994. The deadbody was identified by the informant and then the same was inquested and sent for autopsy. On post-mortem it was found that death of Gujri was due to injuries on his person. 3. After closure of investigation charge-sheet was submitted against both Mohan Gagrai and Nazir Honhaga and charges were framed under Sections 302/364/201/34 of the IPC against both the accused persons vide order dated 18-9-1986. When the charges were framed and read over to the accused persons they pleaded not guilty. 4. On hehalf of the prosecution as many as ten witnesses have been examined. Out of whom the vital witnesses are PW 3 Rashi Gagrai, the informant in the case, PW 5 Budhram Gope, co-employee in the house of PW 4 Krishna Singh Jamuda and PW 6 Ravi Karai, PW 8 and 9 are the investigating officers and PW 10 is the doctor who held the post-mortem over the deadbody. 4. The defence case is total denial of the prosecution story and it is stated that they have been falsely implicated due to enemity. 5. On scrutiny of evidence on record, learned court below convicted the accused/appellant for committing murder of Gujri Gagrai but acquitted the co-accused as there was no evidence against him. 6. As stated earlier there is no eye-witness of the occurrence. The prosecution case is totally based on circumstantial evidence. Circumstances are : (i) That on the evening of 17-3-1984 this Mohan Gagrai had taken Gujri Gagrai from his landlords house on the plea of seeing "BAA" festival. (ii) That the deceased was last seen the company of accused/appellant Mohan Gagrai. (iii) That the deadbody of deceased Gujri Gagrai was recovered on the confessional statement of the accused/appellant Mohan Gagrai before the the police as admissible under Section 27 of the Evidence Act. 7. (ii) That the deceased was last seen the company of accused/appellant Mohan Gagrai. (iii) That the deadbody of deceased Gujri Gagrai was recovered on the confessional statement of the accused/appellant Mohan Gagrai before the the police as admissible under Section 27 of the Evidence Act. 7. Let us now see independently as to how the above circumstancea could be proved from the side of the prosecution. That Mohan Gagrai the accused/appellant had taken away Gujri Gagrai from the house of his land lord Krishna Singh Jamuda, does not find place in the first information report. It is stated by the informant Rash Gagrai that he was informed so by PW 5 Budhram Gope. But he could not give any explanation why the same had not been reported to police at the time of recording of Fardbeyan. Budhram Gope (PW 5) stated that he was present when Mohan Gagrai came to the house of Krishna Singh Jamuda, when they were taking their meals and asked Gujri Gagrai to came with him for seeing "BAA" festival. But after the meals both the boys went to take rest and after working from his sleep he could not see the presence of Gujri Gagrai in the house. Although, at the trials stage he is telling so but in his earlier statement he did not say so and for the first time he is coming with this fact in the trial Court. However, even if that statement is taken to be true then also the fact remains that although there was proposal to deceased Gujri to accompany the accused/appellant to see "BAA" festival, he did not see actually as to with whom Gujri went away from the house. In that way, Mohan Gagrai the accused/appellant was the person with whom the deceased was last seen has also not been proved by any cogent and reliable evidence. 8. PW 6, Rabi Kerai, has also stated before the trial Court that he alongwith deceased Gujri was to accompany the accused appellant Mohan Gagrai to see "BAA" festival. But after returning from home after taking meal he could not find either Mohan Gagrai or deceased Gujri. So his evidence also does not support the prosecution case in any way to prove the circumstances as mentioned above. 9. The last circumstance regarding discovery of the deadbody at the instance of the accused/appellant Mohan Gagrai, there is practically no evidence. But after returning from home after taking meal he could not find either Mohan Gagrai or deceased Gujri. So his evidence also does not support the prosecution case in any way to prove the circumstances as mentioned above. 9. The last circumstance regarding discovery of the deadbody at the instance of the accused/appellant Mohan Gagrai, there is practically no evidence. It is settled principle of law that the prosecution must come up with specific statement of accused which is recorded by police for the purpose of discovery of material facts for being admissible under Section 27 of the Evidence Act. There is no such statement recorded or in evidence available in the deposition of either PW 9 or PW 8. Even it is not there that on showing of accused/appellant Mohan Gagrai, the deadbody of Gujri was recovered from the wheat filed. So thi6 part of the prosecution case has no basis when no evidence can be brought regarding admissibility of any part of statement of accused/appellant under Section 27 of the Evidence Act with regard to discovery of material fact i.e. discovery of the deadbody. 10. Mr. M. Patro appearing for and on behalf of the accused/ appellant has submitted that learned court below had recorded an order of conviction only on surmises and conjucture and not on the actual evidence recorded during the course of trial. Practically no circumstances could be proved from the side of the prosecution to connect the accused/appellant with the alleged crime. 11. Mr. S. K. Datta, advocate appearing for and on behalf of the State straneously argued supporting the impugned judgment stating that alteast the evidence connected with the recovery of the deadbody could be proved beyond all reasonable doubt. According to him when investigating officer has stated about making such statement by the accused/appellant, then the same is admissible. According to him the statement made by the accused before the police although inadmissible but when the same is reteriated by the police officer before the trial court the same become admissible. This argument is totally misconcieved. 12. As we find no circumstances could be proved from the side of the prosecution against accused/appellant then the conviction recorded cannot be sustained in law. The appeal is accordingly allowed. The impugned judgment of conviction and order of sentence is hereby set aside. The accused/appellant is set free and is discharged from his bail bonds.