N. G. Nandi ( 1 ) THE appellant stands convicted for the offence undersections 364/302, Indian Penal Code by the learned Additional Sessions Judge, New Delhi insessions Case No. 132/86 in FIR No. 173/86, Police Station, Delhi Cantt. ( 2 ) THE facts leading to the present appeal, shortly stated, are that one S. C. Gain who resided at WZ 1290, Nangal Rai, New Delhi, alongwith his wife Sulataand daughter Vijaya aged about 7 years, lodged a report on 31/03/1986 vided. D. No. 77-B at 10. 10 a. m. stating that his daughter Vijaya went from the house toplay with the children in the neighbourhood; that she did not return to the houseand had been missing; that the complainant S. C. Gain further reported on 1st April,1986 that het he came to know that one boy named Rajan, who was resident of Lajwantigarden used to come to his house and used to offer toffees, biscuits, etc. to hisdaughter and the complainant had been told by the children of the locality that Rajanhad taken complainant s daughter Vijaya on a cycle; that a suspicion was expressedon Rajan; that the offence came to be registered; that the dead body of Vijaya wasnoticed by the villagers in Ganda Nallah under the bridge of Brig. Hoshiar Singhmarg; that the dead body was identified by the complainant; that Rajan was chargesheeted and charge under Section 228 of the Code of Criminal Procedure came tobe framed; that the learned Trial Judge, appreciating the prosecution evidence andfurther statement of the accused under Section 313 of the Cr. P. C. , found the accusedguilty of the offences charged and convicted the accused to undergo R. I. for a periodof seven years and to pay a fine of Rs. 2,000. 00 for the offence under Section 364, IPCand also sentenced the accused to undergo imprisonment for life for the offenceunder Section 302, IPC. Both the sentences were made to run concurrently. It is thisfinding of guilt and the consequent sentences imposed which have been assailed inthis appeal under Section 374 (2) of Cr. P. C. by the appellant/convict. ( 3 ) MS. Both the sentences were made to run concurrently. It is thisfinding of guilt and the consequent sentences imposed which have been assailed inthis appeal under Section 374 (2) of Cr. P. C. by the appellant/convict. ( 3 ) MS. Neelam Grover, learned Counsel-amicus curiae, for the appellant, hasassailed the conviction contending (i) that the appellant is a juvenile and could nothave been tried by the regular Court of Sessions and, therefore, the trial is vitiatedand the conviction and the sentence is liable to be set aside, (ii) that the case restssolely on circumstantial evidence, that there is no direct evidence, that the motiveis not established by the prosecution evidence and, therefore, the conviction onlyon the circumstance of last seen together cannot be sustained. ( 4 ) WE would first deal with the contention as regards the appellant being ajuvenile and the trial, therefore, being vitiated. In this regard, reference may be hadto the order dated 9. 7. 1996 and the statement of Maheshwari Prasad, S/o Gouriprasad, Incharge Head Master, Janta High School, Aliganj, District Jarnui, Biharrecorded on the same date by this Court. ( 5 ) IT has been stated by the witness Maheshwari Prasad, the Incharge Headmaster, Janta High School, Aligan), District Jamui, Bihar that he is the Actingprincipal of the said school, that a register regarding admission of children in theschool has been maintained, that in the said register, the date of birth of the studentwho is admitted in the school is also mentioned. Referring to the original registerbrought by the witness, it has been stated that in the admission registerregarding the year 1980 at serial No. 40, the name of Raj Kishore Prasad, S/o Shivnandan, r/o Village Bareo is recorded. The date of admission of the student isshown as 29/02/1980. The date of birth of this student is recorded as 2/01/1969. The boy was admitted in Class VII. The Certificate, Ex. Public Witness PW-26/1 isissued by the witness with regard to the date of birth of student Raj Kishore Prasad. The statement is also recorded of Rajeshwar Prasad Rajesh, S/o Sh. Laxmi Nonia,r/o Village and Post Office Aliganj, Distt. Jarnui, Bihar who has stated that theappellant Rajan is the sister s son of the witness. He was born in the house of thewitness at Village and Post Office Aliganj Distt. The statement is also recorded of Rajeshwar Prasad Rajesh, S/o Sh. Laxmi Nonia,r/o Village and Post Office Aliganj, Distt. Jarnui, Bihar who has stated that theappellant Rajan is the sister s son of the witness. He was born in the house of thewitness at Village and Post Office Aliganj Distt. Jamui, Bihar, that Rajan was born infebruary, 1971, that the witness does not remember the exact date, that he got Rajanadmitted in February, 1980 in Janta School, Aliganj; that prior to that he wasstudying in a middle school which was washed off in floods and there is no traceof that school any more nor any record of that school is available. ( 6 ) IT will be seen from the above that according to the witness Maheshwariprasad, the Acting Principal of Janta High School, Aliganj, Distt. Jarnui, Bihar, thebirth date of the student Raj Kishore Prasad, as per the school register, is 2/01/1969 and that the said student, as per the Certificate Ex. Public Witness PW-26/1 wasadmitted to the said school on 29/02/1980 in Class VII. In face of thedocumentary evidence Ex. Public Witness PW-26/1, the date of birth of the appellant. Raj Kishoreprasad being 2/01/1969, no credence can be attached to the oral statementof the maternal uncle Rajeshwar Prasad Rajesh as regards the date of birth of theappellant/convict and we are inclined to accept the school Certificate, Ex. Public Witness PW-26/1 with regard to the age of the appellant on the date of the commission of the offenceand for this reason, the contention in this behalf by learned Counsel for theappellant/convict deserves to be rejected. ( 7 ) IT is not much disputed that Vijaya, minor daughter of the complainants. C. Gain was missing from 31/03/1986 and her dead body was seen by thevillagers in the Ganda Nallah, under the bridge of Brig. Hoshiar Singh. Accordingto the post-mortem report, Ex. Public Witness Public Witness 13/a, the cause of death is asphyxia as a resultof ante-mortem drowning. It is not in dispute that there is no direct evidence andthe prosecution, for the purpose of establishing the guilt of the accused, relies on thecircumstance of deceased having been last seen in the company of appellant, Rajan. Accordingto the post-mortem report, Ex. Public Witness Public Witness 13/a, the cause of death is asphyxia as a resultof ante-mortem drowning. It is not in dispute that there is no direct evidence andthe prosecution, for the purpose of establishing the guilt of the accused, relies on thecircumstance of deceased having been last seen in the company of appellant, Rajan. ( 8 ) IN the FIR, it is alleged that one boy named Rajan, aged 18/19 years whoresides somewhere in Lajwanti Garden, used to visit the house of the complainantfor watching T. V. or on some other pretext and used to give biscuits, toffees to Vijayawhich the complainant has come to know from the children of the neighbourhoodand that one boy had also seen Rajan taking Vijaya with him on the bicycle. ( 9 ) PUBLIC Witness Public Witness 9, Bimal Roy, S/o Saran Roy deposed that before about one year, atabout 11. 30 a. m. , when he was waiting for the bus at Nangal Rai Bus Stand, he sawthe accused going on bicycle and the girl named Vijaya was sitting on the frame ofthe cycle and they were going towards the side of Delhi Cantt; that the witness lateron came to know that the girl Vijaya was missing; that he told the father of thedeceased about he having seen the accused going on the cycle with Vijaya. In thecross-examination, it has been deposed that on the next day morning, at about 7 or8 a. m. , he came to know about the missing of Vijaya. ( 10 ) PUBLIC Witness Public Witness 24, the complainant S. C. Gain stated in the evidence that on 3 1/03/1986, in the morning, he had left for his office, that he returned home at about4. 45 p. m. and then he came to know that his daughter Vijaya, aged about 7 years,was missing from the house; that he had lodged a report. Ex. Public Witness Public Witness 17/a. It is furtherstated that one girl, with whom his daughter was playing, told him that his daughterwas called by the accused and thereafter taken on a cycle, that this fact was also toldto the witness by a boy named Bimal and, therefore, he again went to the policestation. Ex. Public Witness Public Witness 17/a. It is furtherstated that one girl, with whom his daughter was playing, told him that his daughterwas called by the accused and thereafter taken on a cycle, that this fact was also toldto the witness by a boy named Bimal and, therefore, he again went to the policestation. The evidence of Public Witness Public Witness 9 suggests that he informed Public Witness Public Witness 24 the complainantabout he having seen the accused going on the cycle with Vijaya. Public Witness Public Witness 24 has also,in his evidence, stated that Bimal told him about he having seen Vijaya taken oncycle by the accused. Nothing has been suggested from the cross-examination of Public Witness PW9 so as to discard his evidence as regards the fact of accused having taken Vijaya onthe bicycle with him as the witness having seen the same. Appreciating the evidenceof Public Witness Public Witness 9 and Public Witness Public Witness 24, the circumstance of the deceased having been last seen in thecompany of the accused, is sufficiently suggested. ( 11 ) THE evidence of Public Witness Public Witness 15, Rajinder, a child witness, suggests that about 2 years ago, the accused present in. Court had come to the stall run by the son of hispaternal aunt which was situated opposite Sangam Cinema, New Delhi; that thewitness was working at the said stall helping in the business of selling chhole-bhature ; that the accused was accompanied by a small girl; that the accused hadordered for two plates of chhole-bhature ; that the accused gave the witness acurrency note of Rs. 50. 00, that the witness did not have the change and, therefore,went to the pan shop and getting the change, returned Rs. 40. 00 to the accused andasked the accused to collect the remaining Rs. 6. 00 afterwards as he did not have thesame that time, that the accused again came to the stall of the witness after the showwas over and at that time also, the accused was accompanied by the small girl andthe witness gave the balance Rs. 6. 00. The evidence of this child witness, Public Witness Public Witness 15stands corroborated by the evidence ofpw 9 and Public Witness Public Witness 8 and all this substantiates theprosecution version that the deceased was last seen in the company of the accused. 6. 00. The evidence of this child witness, Public Witness Public Witness 15stands corroborated by the evidence ofpw 9 and Public Witness Public Witness 8 and all this substantiates theprosecution version that the deceased was last seen in the company of the accused. Thus, the circumstance of deceased having been last seen in the company of theaccused has been sufficiently established from the evidence on record. ( 12 ) ON behalf of the appellant, reliance has been placed on the decision in thecase of Padala Veera Reddy v. State of Andhra Pradesh, AIR 1990 Supreme Court79. Referring to para 10, it has been contended that the claim of circumstances,applying the test laid down in the case (supra) has not been established in the instantcase. The tests laid down in the case (supra) are- (1) the circumstances from Which an inference of guilt is sought to bedrawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringlypointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all humanprobability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must becomplete and incapable of explanation of any other hypothesis thanthat of the guilt of the accused and such evidence should not only beconsistent with the guilt of the accused but should be inconsistent withhis innocence. ( 13 ) IT may be appreciated that in the instant case, there is no direct evidencewith regard to the commission of the offence and the only evidence relied on by theprosecution is the circumstantial evidence in the nature of deceased having been lastseen together with the accused, and, therefore, the motive for committing the crimewould assume significance, as laid down in the decision in the case of Badha Satyavenkata S. Rao v. State of Andhra Pradesh, 1994 SCC (Cri.) page 1554. Accordingto the prosecution, the motive for committing the offence by the accused is theimmoral advances made by the accused to the mother of the deceased. Accordingto the prosecution, the motive for committing the offence by the accused is theimmoral advances made by the accused to the mother of the deceased. ( 14 ) PUBLIC Witness Public Witness 12, Sulata, W/o S. C. Gain, the mother of the deceased deposed thatthe accused used to talk vulgar things and teased her in the factory where they wereworking together, that she reported about this misconduct/misbehaviour of theaccused to the factory owner; that the factory owner turned the accused out ofservice; that before the accused was turned out from the employment, he used tovisit the house of the complainant and gave eatables, etc. to Vijaya, daughter of thewitness aged about 7 years and he also used to take her out of the house. ( 15 ) IN the cross-examination, it has been deposed that the accused was in theemployment prior to the witness joining the factory; that the accused never abusedthe witness; that the witness did not like the behaviour by the accused at all; thatshe did not tell about this misconduct to her husband; that on the day when herdaughter was missing, her husband made enquiries from the house of the accused,that he had gone to the house of the accused at about 5 p. m. but the accused did notmeet him there; that her husband had gone again to the house of the accused at about9. 30 p. m. and the accused methim there; that the accused was brought to their houseby her husband, who was accompanied by one or two other persons of the localityand the accused was detained at their house for about one hour and after about onehour, the accused was let off. ( 16 ) THE evidence of Public Witness Public Witness 12, the mother of the deceased, clearly suggest thatshe reported about the misconduct/misbehaviour by the accused to the factoryowner as a result of which the accused was turned out of the employment and priorto this, the accused was visiting the house of the complainant and used to giveeatables to Vijaya. It is also suggested that the witness did not like/tolerate theimmoral advances/misbehaviour by the accused at all. It is also suggested that the witness did not like/tolerate theimmoral advances/misbehaviour by the accused at all. Appreciating the evidenceof Public Witness Public Witness 12, it cannot be said that the accused could be motivated to commit themurder of the daughter of Public Witness Public Witness 12 inasmuch as Public Witness Public Witness 12 never responded to theimmoral advances towards her attempted by the accused. ( 17 ) THE foregoing discussion would reveal that all what has been establishedby the prosecution is that the deceased was last seen in the company of the accused. The evidence of child witness Public Witness Public Witness 15 is also corroborated by the evidence of Public Witness Public Witness 15and Public Witness Public Witness 8, Dalip Kumar and the cinema tickets Ex. P1 and P2 of Sangam Cinemabearing Nos. 76028 and 76029, which are recovered from the accused in personalsearch vide Memo, Ex. Public Witness Public Witness 6/a dated 1/04/1986 and the register Ex. Public Witness Public Witness 8/cand nothing further. ( 18 ) IN the above view of the matter, in our opinion, the learned Trial Judgecould not have justifiably recorded the finding of guilt and the consequentlyimposing the sentences against the accused inasmuch as the complete chain ofcircumstances pointing to the guilt of the accused and accused alone cannot be saidto have been established in absence of motive to commit the crime and, therefore,the conviction and the consequent sentences would be liable to be set aside. ( 19 ) IN the result, the appeal is allowed. The conviction recorded and thesentences imposed in Sessions Case No. 132/86 in FIR No. 173/86 Police Stationdelhi Cantt. are hereby set aside. The appellant is ordered to be set at libertyforthwith, if not required in any other case.