JUDGMENT 1. - Appellant was the accused on the file of Addl. Session Judge, Sikar bearing No. 60/1992 he was convicted and sentenced Under sections 364 and 302 of the Indian Penal Code under each count to undergo life imprisonment and a fine of Rs. 500 (in default to further undergo three months simple imprisonment). Both the sentences had to run concurrently. 2. Aggrieved by the aforesaid conviction, the present action for filing the appeal has been resorted to. 3. Brief facts are woven like this : (I) On 20.7.92 at about 11 a.m. informant Laxman (PW 6) lodged a written FIR (Ex.R 9) with the Police Station Kotwali, Sikar stating therein that his son Kana Ram was missing since 9.30 p.m. of 19.7.1992. Raju Taxi Wala forced to accompany him in the taxi from his house. He attempted to search his son, whose whereabouts were not known. His suspicion was on Raju Taxi Wala and he did not know as to in what manner he behaved with his son. (ii) Police Station Kotwali, Sikar Registered a case Under section 364 Indian Penal Code and investigation commenced. (iii) This FIR was forwarded at 4.05 p.m. on 20.7.92 to the court of Chief Judicial Magistrate, Sikar. (iv) The dead body of Kana Ram was found near `Pakka Talab' on the left side of Sikar-Dhojh road on 20.7.92. Inquest memo (Ex.R 3) was prepared by S.H.O., Police Station Sadar, Sikar. Time of recovery of dead body was not mentioned on the inquest memo (Ex.R 3). Site plan (Ex.R 1) was also drawn by S.H.O. Police Station Sadar on 20.7.92 but in the memo of site plan also time was not mentioned. (v) S.H.O. Police Station Sadar, Sikar took the dead body to Shri Kalyan Chikitsalya, Sikar for autopsy examination. In the post-mortem examination report (Ex.R 13) following injuries were mentioned by Dr. G.S. Tanwar (PW 1.4):- A. abrasion 3" x 1/2" at left cheek. B. lacerated punctured wound clotts blood present 1 " x 1/4" x deep x eye socket at angle of left eye. C. lacerated punctured wound 2" x 1/2" x deep entered skull at left temporal region near left ear. D. neck-ligature mark at neck present circular. E. bruise 2" x 1" x left eye-brow upper and lower eye lid swolled bluish-left eye ball contained clotted blood. Conjuctives contains blood and reddish. C. lacerated punctured wound 2" x 1/2" x deep entered skull at left temporal region near left ear. D. neck-ligature mark at neck present circular. E. bruise 2" x 1" x left eye-brow upper and lower eye lid swolled bluish-left eye ball contained clotted blood. Conjuctives contains blood and reddish. F. bruise 6" x 4" left lumber region, pupils dilated and fixed. It was opined by the doctor that all injuries were ante-mortem in nature. The cause of death was asphyxia and multiple injuries and injuries to vital organs. (vi) S.H.O. Man Prakash (PW 17), Police Station Sadar, Sikar conducted investigation in part. He prepared site plan (Ex.R 1), seized soil stained with blood through recovery memo (Ex.R 2), prepared inquest report (Ex.R 3), recovered clothes from the dead body of the deceased through Ex.R 4, carried the dead body to the hospital for post-mortem examination and arranged photographs of the place of occurrence and the dead body by photographer Surendra (PW 16). Rest of the investigation was done by Nahar Singh (PW 18), S.H.O Police Station Kotwali. (vii) After usual investigation the Investigating Officer, Nahar Singh (PW 8) submitted charge-sheet against accused appellant Raju and co-accused Pintoo Under sections 302, 364 read with Section 34 of the Indian Penal Code in the Court of Chief Judicial Magistrate from where the case was committed to the trial court. (viii) The trial court framed charges against accused appellant and the co-accused Pintoo Under sections 364 and 302 of the Indian Penal Code. The accused appellant and co-accused denied the charges and claimed trial. (ix) Prosecution examined as many as 18 witnesses in support of its case I and produced 23 documents. Thereafter the statements of accused I Under section 313 Criminal Procedure Code were recorded. No defence witness was produced by I the accused. The trial court acquitted co-accused Pintoo from the I charges framed against him whereas accused appellant was convicted I and sentenced as mentioned herein above. 4. At the outset we may state that there is no eye- witness in this case. I Entire evidence against the appellant consists of circumstantial evidence. I Following circumstances were relied upon by the trial court against accused I appellant: (i) The deceased Kana Ram was last seen in the company of the accused I appellant and Pintoo before his death. At the outset we may state that there is no eye- witness in this case. I Entire evidence against the appellant consists of circumstantial evidence. I Following circumstances were relied upon by the trial court against accused I appellant: (i) The deceased Kana Ram was last seen in the company of the accused I appellant and Pintoo before his death. (ii) Accused appellant Raju voluntarily made extra judicial confession I before Gopal (PW 7) and Ashok (PW 13) that he and his friend Pintoo I committed murder of Kana Ram. (iii) On the basis of disclosure statement made by accused appellant Raj, I iron rod (saria) used in commission of murder, was recovered and on I the basis of disclosure statement of Pintoo cord used in commission of V offence was seized. 5. Before we discuss the evidence adduced by the prosecution in support of I its case it will be necessary to mention following facts : (i) FIR (Ex.P 10) was lodged at 11 a.m. on 20.7.92 by Laxman (PW 6). (ii) Laxman (PW 6) in his cross-examination stated : "POLICE KO LAASH KE BAARE MEIN SOOCHNA BRIJLAL KE JAANE I KE BAD MILI THI JO 15-20 MINUTE BAAD MILI THI USKE BAAD [ MAINE POLICE MEIN REPORT DARJ KARAI." (Police received information about the dead body after Brijlal had gone. That is after 15-20 minutes. Thereafter I handed over report to the police.) (iii) Man Prakash (PW 17) who was S.H.O. Police Station Sadar, Sikar [ stated * "MUJHE JARIYA TELEPHONE SOOCHNA MILI Kl EK LAASH DHOJH I ROAD PER NAGA Kl DHANI PAKKA TAUAB PER PADI HAI. IS ITLA I PER MEIN MOKE PER PAHUCHA. MERE BAAD S.H.O. KOTWALI SHRI | NAHAR SINGH AUR C.O. BHI MOKE PER PAHUCHE." (I received information through telephone that the dead body was lying on Naga Ki Dhani Pakka Talab on Dhojh road. At this information 11 reached at the site and after I reached, S.H.O. Kotwali, Mr. IS ITLA I PER MEIN MOKE PER PAHUCHA. MERE BAAD S.H.O. KOTWALI SHRI | NAHAR SINGH AUR C.O. BHI MOKE PER PAHUCHE." (I received information through telephone that the dead body was lying on Naga Ki Dhani Pakka Talab on Dhojh road. At this information 11 reached at the site and after I reached, S.H.O. Kotwali, Mr. Nahar Singh and C.O. also reached at site.) (iv) Nahar Singh (PW 18) stated in his cross-examination : "LAASH Kl SOOCHNA MUJHE 11.30 PER MILI THI MUJHE SOOCHNA WIRE LESS KE DWARA MILI THI MEIN GHATNA STHAL -PER THA WAHI WIRELESS HUA THA ISLIYA DIARY MEIN LIKHA THA, I MUKADMA DARJ HO CHUKA THA LADKA GAYAB THA TAB MEIN GHATNA STHAL PER THA PHIR KAHA Kl KANA RAM KE GHAR KE SAAMNE USE SOOCHNA PRAPT HUI THI." (I received information about dead body at 11.30 a.m. I received this message on wireless when I was at site and I entered it into in diary. Case was already registered and boy was missing. Thereafter I went to the place of incident. Than he stated that he received information in front of the house of Kana Ram.) In the examination-in-chief Shri Nahar Singh stated that after registration of FIR he received information about dead body and he together with S.H.O. Sadar, Sikar, C.l. and S.P. reached at Naga Ki Dhani where S.P. directed him to go to Sikar and S.H.O. Sadar was directed to prepare inquest report etc. of the case. In the evening of 20.7.92 S.H.O. Sadar handed over site plan (Ex.P 1), seizure memo of soil stained with blood (Ex.P 2), inquest report (Ex.P. 3) and recovery memo of the clothes of the deceased (Ex.P. 4). (v) Man Prakash (PW 17) stated that dead body of Kana Ram was taken to the hospital by him for autopsy. (vi) Ex.P 1, P. 2, P 3 and P. 4 did not bear signatures of Nahar Singh (PW 18). In column No. 3D of the report (Ex.P. 10) registered at the Police Station Kotwali only dated 20.7.92 has been mentioned and column `time' was not filed so as to show at what time the FIR was sent from the police station. There is a note on the back side of this FIR (Ex.P 10) made by Chief Judicial Magistrate, Sikar which reveals that FIR was received in the court at 4.05 p.m. on 20.7.92. There is a note on the back side of this FIR (Ex.P 10) made by Chief Judicial Magistrate, Sikar which reveals that FIR was received in the court at 4.05 p.m. on 20.7.92. A perusal of post-mortem report (Ex.P. 13) reveals that autopsy of dead body of Kana Ram was conducted at 4.30 p.m. on 20.7.92 and in the said report name of Man Prakash, S.H.O. Sadar has been mentioned. (vii) Photographer Surendra (PW 16) stated that he took photographs of the dead body in the noon at about 12-1 p.m. on 20.7.1992. (viii) S.H.O., Police Station Sadar Man Prakash (PW 17) had arranged the photography of the dead body. 6. Mr. V.S. Yadav, learned counsel for the appellant, vehemently contended that co-accused Pintoo has been acquitted by the trial court and case of accused appellant is not distinguishable with that case of co-accused Pintoo. The trial Judge, relying upon the same set of evidence acquitted co-accused Pintoo whereas the appellant has been convicted. In this case grain and the chef are so inextricably mixed up that in the process of separation the court will have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution. Learned counsel further contended that even if the evidence of last seen is exhibited at its face value, it does not by itself lead to irresistible inference that the accused appellant must have murdered the deceased. He has placed reliance on Lakhanpal v. The State of M.P., AIR 1979 Supreme Court 1620 and Balak Singh v. State of Punjab, AIR 1975 Supreme Court 1960 . 7. On the other hand Mr. R.S. Agrawal, the learned Public Prosecutor, controverted the arguments advanced by the learned counsel for the appellant. Mr. Agrawal, the learned Public Prosecutor has supported the judgment of the trial court and asserted that co-accused Pintoo was rightly acquitted as there was no evidence against him whereas the evidence produced against the accused appellant is sufficient for his conviction. 8. We have given our anxious and thoughtful consideration to the arguments advanced before us and carefully perused the testimony of the witnesses as well as the documents filed on behalf of the prosecution. Now we take up the circumstances relied upon by the trial court one by one. 9. 8. We have given our anxious and thoughtful consideration to the arguments advanced before us and carefully perused the testimony of the witnesses as well as the documents filed on behalf of the prosecution. Now we take up the circumstances relied upon by the trial court one by one. 9. Last SeenThe evidence that deceased Kana Ram was last seen in the company of the accused appellant and co-accused Pintoo before his death, is based on the testimony of Bidami (PW 8), Om Prakash (PW 10) and Mool Chand (PW 11). Bidami is the grand mother of deceased Kana Ram. She stated that in her presence accused appellant and one more boy came in a taxi and persuaded deceased Kana Ram to accompany them but she intervened and prevented Kana Ram (sic) to go with them. In her presence accused appellant Raju and another boy left and leaving Kana Ram and Om Prakash, she went for sleep. When she got up in the night she did not find Kana Ram but she again slept. In the morning at about 6 a.m. when Laxman came from duty, she narrated the facts to him. In the cross-examination she admitted that she had no suspicion about Kana Ram. Her statement was recorded after the arrest of accused appellant Raju.Om Prakash (PW 10) has admitted in his cross-examination that the deceased Kana Ram was the son of his brother. He has stated that at about 9 or 9.30 p.m. he, Bidami and Kana Ram was sitting in the shop of Madha Ram. From the side of railway gate Raju came in a taxi accompanied with one boy. Raju told Kana Ram to accompany him but was prevented by Bidami thereafter Raju and that boy left. Bidami went inside and slept. Shop of Mool Chand was open. He asked Kana that he knew one person came in the taxi but did not know another. At this Kana Ram informed him that he was Pintoo. After half an hour when he again came in taxi and asked him to accompany them as they wanted to teach him taxi driving. Kana Ram reluctantly accompanied them thereafter Mool Chand closed his shop and he (Om Prakash) had gone to the hospital to his brother and slept. At this Kana Ram informed him that he was Pintoo. After half an hour when he again came in taxi and asked him to accompany them as they wanted to teach him taxi driving. Kana Ram reluctantly accompanied them thereafter Mool Chand closed his shop and he (Om Prakash) had gone to the hospital to his brother and slept. Next day in the morning at about 8 a.m. when he had gone in the house of Bidami he came to the know that the father of Kana Ram had gone in search of him. He intimated Bidami that Pintoo and Raju had taken Kana Ram in a taxi. Om Prakash (PW 10) also stated in his examination-in-chief that he had come from Sikar to getting (sic) treatment of his brother who was admitted in Sikar Hospital. Mool Chand (PW 11) also stated that Bidami prevented Kana and Raju and Pintoo had gone in a taxi. Bidami went inside and slept. After some time Raju and Pintoo came again in taxi and Kana Ram reluctantly accompanied them. Om Prakash, thereafter had gone to the hospital and he (Mool Chand) closed the shop and slept. In his cross-examination he stated that Kana Ram used to go with them. When Raju and Pintoo took him in a taxi, he and Om Prakash neither made hue and cry nor attempted to stop them. They had not informed about this incident to anybody. He further stated that as he was illiterate he did not know numbers of taxi and in his statement recorded Under section 161 Criminal Procedure Code (Ex.D. 5) he had not disclosed taxi numbers. Police recorded his statement after two days to the incident, that is the next day from the day when he opened the shop. On our independent appraisal of the statements of these witness we have come to the conclusion that the prosecution is able to establish following facts:- A. Accused appellant Raju and Pintoo came in a taxi and persuaded deceased Kana Ram to accompany them but he was prevented and they left the place in taxi. B. They again came after one and half hour in the taxi and again persuaded Kana Ram to accompany them. Kana Ram reluctantly accompanied them. Kana Ram used to go with them in the taxi earlier also. B. They again came after one and half hour in the taxi and again persuaded Kana Ram to accompany them. Kana Ram reluctantly accompanied them. Kana Ram used to go with them in the taxi earlier also. Om Prakash and Mool Chand did not tell about this incident to anybody till the next morning. Bidami, grand mother of deceased Kana Ram had no suspicion about this incident. We have also carefully scrutinised the statements of Nahar Singh (PW 18) and Man Prakash (PW 17) as well as the statement of Laxman (PW 6), the informant. As already observed by us, Laxman (PW 6) in his cross-examination has categorically stated that information about dead body was received by the police after Brijlal had gone and thereafter he handed over the report to the police. In the FIR (Ex.R 9) Investigating Officer Nahar Singh (PW 18) had written 11 a.m. the time of receiving FIR. The FIR registered at the police station, Kotwali (Ex.R 10) did not bear the time when it was forwarded from the police station but on the back of the said document there is a note of Chief Judicial Magistrate, Sikar which goes to show that it was received in the court at 4.05 p.m. A perusal of statement of Nahar Singh (PW 18) reveals that he was orally instructed by S.R to attend procession of B.J.R as such the site plan (Ex.R 1), recovery memo of soil stained with blood (Ex.P. 2) inquest report (Ex.R 3), recovery memo of the clothes of the deceased (Ex.R 4) were prepared by Man Prakash, S.H.O., Police Station Sadar, Sikar (PW 17). He also arranged photography of the dead body and took the dead body to the hospital for autopsy. Statement of photographer Surendra Singh (PW 16) goes to show that he did photography at about 12-1 in the noon on 20.7.92 and a perusal of post-mortem report (Ex.R 13) goes to show that for the purpose of post-mortem, dead body was taken by Man Prakash, S.H.O. Sadar (PW 17), was conducted at 4.30 p.m. on 20,7.92. Statement of photographer Surendra Singh (PW 16) goes to show that he did photography at about 12-1 in the noon on 20.7.92 and a perusal of post-mortem report (Ex.R 13) goes to show that for the purpose of post-mortem, dead body was taken by Man Prakash, S.H.O. Sadar (PW 17), was conducted at 4.30 p.m. on 20,7.92. All these cumulative facts reveal that Nahar Singh (PW 18) was not available for the investigation of this case till 4 p.m. in the evening on 20.7.92 and this is the reason that neither he took dead body to the hospital nor the document Ex.R 1, R 2, P. 3 and R 4 bore his signatures. Sending FIR at 4.05 p.m. and leaving time column blank also reflect that I.O. Nahar Singh (PW 18) was not available for investigation. We cannot disbelieve the statement of Laxman (PW 6) who stated that the FIR was handed over after the information of dead body was received and these facts find corroboration from the statement of Man Prakash (PW 17) who stated that after receiving the information of dead body on telephone he immediately went to the spot. According to him he alone had gone whereas Nahar Singh (PW 18) stated that along with Man Prakash he, C.O. and S.R had also gope. According to the statement of Nahar Singh (PW 18) he had received the wireless message about the dead body after he had gone to inspect the place of occurrence from where the deceased was said to have been taken in a taxi. We cannot believe the statement of Nahar Singh. It appears that after receiving the information of the dead body of the deceased the FIR was registered and the Investigating Officer Nahar Singh (PW 18) deliberately mentioned 11 a.m. All the documents referred as above and the statement of Laxman (PW 6) goes to show that the FIR (Ex.R 9) is a post investigative document. As discussed herein above the circumstance of last seen is of no help to the prosecution. 10. Extra Judicial ConfessionThe second circumstance relied upon by the trial court in convicting the accused appellant is that accused appellant Raju voluntarily made extra-judicial confession before Gopal (PW 7) and Ashok (PW 13) that he and his friend Pintoo committed murder of Kana Ram.We have carefully examined the statements of Gopal and Ashok. 10. Extra Judicial ConfessionThe second circumstance relied upon by the trial court in convicting the accused appellant is that accused appellant Raju voluntarily made extra-judicial confession before Gopal (PW 7) and Ashok (PW 13) that he and his friend Pintoo committed murder of Kana Ram.We have carefully examined the statements of Gopal and Ashok. Gopal (PW 7) is a Peon in Beswa School and in his cross-examination he admitted that the day on which extra- judicial confession said to have been made by the accused before him, he came from Beswa to Sikar to collect his salary. He is a chance witness and it cannot be believed that why the accused appellant would make confession before him. Neither he was a friend nor relative of accused appellant Raju. He is by cast balai and according to him the confession was made in the house of Raghunath Pandit where had gone on the persuasion of Gudia, daughter of Raghunath Pandit. He has admitted in his examination-in-chief that he had not said about this confession to anybody. The prosecution has failed to prove as to on what basis the police came to know about the fact that accused appellant Raju had made confession before Gopal (PW 7). Ashok (PW 13) is the owner of the taxi which was recovered by the police. He also did not disclose the fact about the confession to anybody and did not lodge the report to the police. He has given the reason for not informing the police that accused appellant Raju asked him not to disclose the fact as the police might harass him. These statements of the witnesses are not trust-worthy. It appears that these witnesses are made up witnesses and on the basis of the testimony of these witness the fact about extra-judicial confession, cannot be believed. Evidence of extra-judicial confession is a very week type of evidence and the prosecution has failed to connect the accused appellant with the crime. 11. Recovery Of Iron Rod (Saria)Maan Prakash (PW 17), SHO, Sadar on 20.7.92 prepared site- plan (Ex.R 1) of the incident. A perusal of site-plan reveals that towards the North of road there is a tank and towards the North-Western side of the said road there is a field of Kesar Khati and near the said field Johrda has been shown. Recovery Of Iron Rod (Saria)Maan Prakash (PW 17), SHO, Sadar on 20.7.92 prepared site- plan (Ex.R 1) of the incident. A perusal of site-plan reveals that towards the North of road there is a tank and towards the North-Western side of the said road there is a field of Kesar Khati and near the said field Johrda has been shown. This site was already inspected on 20.7.92 by Man Prakash (PW 17), SHO, Sadar and the place from where the recovery had been effected was also inspected on the said date. Nahar Singh (PW 18) had recovered Iron Rod (Saria) on 24.7.92 on the basis of. disclosure statement made by accused appellant. Nahar Singh (PW 18) prepared site-plan of the place of recovery (Ex.R 7) in which near the field of Kesar khati and Johrda "Mark-K" has been shown which is an open place from where Iron Road (Saria) was recovered. A detailed study of site plan (Ex.R 1) and site plan (Ex.P. 7) goes to show that the place where the recovery of saria was effected, was already inspected on 20.7.92 by SHO, Maan Prakash (PW 17) and the said place has been shown in site-plan (Ex.P. 1) but on 24.7.92 another SHO Nahar Singh (PW 18) effected recovery of Iron Rod at the instance of the accused appellant. It cannot be believed that place which was earlier inspected by Maan Prakash, SHO, Police Station Sadar, How recovery of Saria (Iron Rod) could have been effected by another SHO. The recovery of Iron Rod as such, is not trust-worthy and it does not connect the accused appellant with crime. The disclosure statement of the accused appellant made Under section 27 of the Evidence Act also cannot connect him with the crime under these circumstances. 12. Thus, all these three circumstances relied upon by the trial court do not connect the accused appellant with crime and the finding of the trial court deserves to be set aside. 13. Consequently we allow this appeal and set aside the judgment of the trial court dated 27.3.93 and we acquit the accused appellant from the charges Under sections 364 and 302 of the Indian Penal Code. The accused appellant be set at liberty forthwith, if not required in any other case. *******