JUDGMENT 1. - This appeal is directed against the judgment and order dated 24.4.1995 passed by the Additional Sessions Judge, Deeg, in Sessions Case No. 32/94, whereby, he convicted the accused appellant for the offence under section 302 1PC and sentenced him to undergo life imprisonment and a fine of Rs. 500/-, and in default of payment of fine. to further undergo one years' rigorous imprisonment and for the offence under section 379 1PC, to undergo three year's rigorous imprisonment and a fine of Rs. 250/-, and in default of payment of fine, to further undergo six months' simple imprisonment. It was also ordered that both the substantive sentences shall run concurrently. 2. In short, the facts of the case are that complainant Fazru S/o Shri Sadi Mev lodged a written report Ex. P1 on the spot to the SHO, Deeg, stating therein that his son Pahlu went to the forest along with goats for grazing on 29.1.1994 at 8.00 a.m. But he did not return home in the evening, search was made but Pahlu could not be located. On 30.1.1994, at about 10.00 a.m., Hamida (maternal grandfather of deceased) informed certain persons that dead body of Pahlu is lying in the field near Nala. On receiving this information. complainant along with some other persons went to the site where the dead body of Pahlu was lying, a rope was tied on his neck. Somebody has murdered Pahlu and thrown his dead body there. Goats were also missing. On the basis of this report a case was registered under sections 302/379 IPC and investigation commenced, Panchayat Nama of dead body was prepared. Post-mortem was conducted by Dr. Govind Singh. According to him, cause of death was "Axphyxia due to strangulation". 3. On 7.2.1994, another written report was given by Fazru to SHO, Police Station, Deeg informing that Deenu S/o Jaicom informed him that Babudeen @ Battarcy had committed murder of Pahlu and also stolen the goats. Now Ibrahim, father of Babudeen has paid him (Fazru) Rs. 7,000/-, cost of goats. Accused Babudeen was arrested and at his instance stolen goats were recovered from Bhobal S/o Manohari. After completing the investigation, charge-sheet was filed against the accused appellant in the Court of Additional Chief Judicial Magistrate, Deeg for the offence under sections 302, 379 IPC. The learned Magistrate committed the case for trial to the Court of Additional Sessions Judge, Deeg. Accused Babudeen was arrested and at his instance stolen goats were recovered from Bhobal S/o Manohari. After completing the investigation, charge-sheet was filed against the accused appellant in the Court of Additional Chief Judicial Magistrate, Deeg for the offence under sections 302, 379 IPC. The learned Magistrate committed the case for trial to the Court of Additional Sessions Judge, Deeg. 4. After hearing the arguments charges under sections 302, 379 IPC were framed, accused pleaded not guilty and claimed trial. 5. The prosecution examined 14 witnesses in support of its case, statement of accused under section 313 Cr.P.C. was recorded. He denied all the allegations and charges levelled against him, but did not examine any witness. 6. The learned Additional Sessions Judge after hearing the learned Additional Public Prosecutor and learned counsel for the accused held that the prosecution is able to prove its case beyond reasonable doubt against the accused and held him guilty for committing murder of Pahlu and also selling goats to Bhobal and, therefore, convicted and sentenced the accused appellant as stated above. Aggrieved by that, the accused appellant has filed this appeal and challenged the judgment on the following grounds. 7. 1. Shri Hamida PW 3 who is maternal grand father of deceased has stated that he filed a written report at P.S. Deeg, thereafter police arrived at the spot. Therefore, that report was the first information report which has been withheld by the prosecution. Ex.P/I , being subsequent report, is hit by the provisions of Section 162 Cr.P.C. and appellant deserves acquittal on this ground alone. 2. That the trial Court has placed reliance on the statement of PW 4 Deenu who has been examined by the prosecution, as a witness of last seen, but this witness is not of sterling worth, therefore, no reliance should be placed on his statement. 3. That the recovery of stolen goats at the instance of accused has not been proved because all the witnesses relating to the recovery were declared hostile as they have not supported the prosecution case. Therefore, no conviction can be based on such type of evidence. 8. We have heard the learned counsel for the appellant and the learned Public Prosecutor and carefully perused the record of the trial Court. 9. Therefore, no conviction can be based on such type of evidence. 8. We have heard the learned counsel for the appellant and the learned Public Prosecutor and carefully perused the record of the trial Court. 9. According to prosecution, Ex.P/1 is the FIR which was handed over by PW 1 Fazru to SHO at the place where the dead body of Pahlu was found, and on that, case was registered. The learned counsel has submitted that PW 3 Hamida has stated before the trial Court that he along with Niyamat and Khurshid went to Police Station, Deeg and lodged a written report, thereafter police arrived at the place of occurrence but the report has not been placed on record by the prosecution and has been withheld. He has also submitted that PW 14 Radhey Shyam, A.S.I., has stated that Ex.P/1 report was handed over by Fazru to SHO on the spot but according to Fazru he handed over the report at P.S. Deeg and not at the place of occurrence. There is clear discrepancy, where this report was given to concerned Police Officer and moreover, being subsequent report is hit by the provision of Section 162 Cr.P.C. 10. We have perused the statement of PW 14 Radhey Shyam, PW I Fazru, the complainant, and PW 3, Hamida. Radhey Shyam has stated that Ramzan informed that a dead body is lying in a field. But the details were not available, therefore, it was entered in daily diary Ex.P120. He along with Constable Brijendra Singh, Phool Singh, Devendra Singh proceeded to the place of occurrence. He also informed SHO on Q.S.T. Shri Fazru handed over Ex.P/I report on the spot to SHO which was sent to Police Station for registration of the case with Brijendra Singh Constable. But Fazru has not supported this version. Initially, he stated that Ex.P/1 report was given by him at the spot but later on he changed his statement and specifically stated that he gave report Ex.P/1 at the Police Station and not at the place where dead body was lying. SHO Jagdish Prasad and Constable Brijendra Singh have not been examined. Therefore, there is clear discrepancy about the fact that where Ex.P/1 report was given by Fazru to the Police Officer. 11. SHO Jagdish Prasad and Constable Brijendra Singh have not been examined. Therefore, there is clear discrepancy about the fact that where Ex.P/1 report was given by Fazru to the Police Officer. 11. Similarly, PW 3 Hamida has stated that he along with Niyamat and Khurshid went to P.S. Deeg and submitted a written report, thereafter police arrived at the place of occurrence. Even if Ex.P/1 was given at the spot to SHO, it was a subsequent report. The report filed by Hamida has been withheld by prosecution. He has not been declared hostile. We see no reason to disbelieve the statement of Fazru and Hamida in this regard. Therefore, we hold that the report lodged by Hamida which was earlier in time has been withheld by prosecution and the case of prosecution about the fact of handing over Ex.P/1 at the spot by Fazru is also not proved. 12. The prosecution case is based on circumstantial evidence. The circumstances relied upon by the prosecution against the accused are; (1) that the deceased was last seen in the company of the accused; (2) that the goats of Pahlu were recovered at the instance of accused. 13. It has been held by the Supreme Court in Balwinder Singh v. State of Punjab, AIR 1996 SC 607 as follows. The circumstances relied upon by the prosecution against the accused are; (1) that the deceased was last seen in the company of the accused; (2) that the goats of Pahlu were recovered at the instance of accused. 13. It has been held by the Supreme Court in Balwinder Singh v. State of Punjab, AIR 1996 SC 607 as follows. "When in a criminal trial of the father for the murder of his daughters, trial Court got swayed by emotional considerations and allowed suspicion surmises and conjectures to take the place of legal proof because though the prosecution relied on, the evidence of last seen together based on evidence of his wife and others, the extra judicial confession made by the accused, the recovery of dead body of a child from canal and disclosure statement made by accused leading to recovery of bones of a child from place when the accused had cremated the dead body of the child, however, the evidence led by the prosecution to establish the circumstance of "last seen together" was not established beyond a reasonable doubt, inasmuch as there were 5 days' delay in lodging FIR from the day when the wife was asserting to have last seen the accused with the daughters and her conduct was also unnatural for a mother to be silent when accused had taken the daughters from her telling that he is taking them away for killing them, and the extra judicial confession was surrounded by suspicious circumstances as the complaint was lodged by the person to whom the accused was alleged to have made the confession, after delay of 3 days and the fact relating to the recovery of dead body or it being claimed by the accused or the allege disclosure statement by accused was also not established, the finding of guilt by the trial Court was not sustainable in law." 14. It has also been held by the Supreme Court in Jaharlal Das v. State of Orissa, AIR 1991 SC 1388 as under : "When the circumstance that was relied on by prosecution namely that the accused and the deceased were last seen together was not proved beyond doubt nor was it mentioned in the inquest report, the recovery of dead body at the instance of accused was also not proved nor it was mentioned in the inquest report as to how the body was discovered and there was no panchnama made under section 27 of Evidence Act of the recovery of body, the doctor who examined accused stated that there was no sign of recent sexual intercourse or such intercourse within one hour of his examination, the accused was entitled to acquittal on benefit of doubt." 15. The prosecution case is that the deceased was last seen in the company of the accused by PW 4 Deenu at 11.00 a.m. on 29.1.1994. The trial Court has believed the statement of Deenu. 16. The learned counsel has submitted that the statement of Deenu is not of sterling worth, there are major contradictions in his statement. Moreover, when he left the company of accused and Pahlu, two other persons Dulla and Sukhan were also present there along with their goats therefore, it is wrong to say that the deceased was last seen in the company of accused by Deenu. No reliance should be placed on the statement of Deenu. 17. We have gone through the statement of Deenu. He is a child of 12 years and son of brother in law of Fazru. He has stated that for the last three days (before the murder of Pahlu) instead of going to school he was going to fields with Pahlu where accused used to meet them. One Rahil informed him that accused is a thief, either he will take away goats of Pahlu or will kill him. On 29.1.1994, accuse threatened him therefore he returned to his school at 11.00 a.m. He has also admitted that when he left the company of Pahlu, Dulla and Sukhan were also present along with their goats. Therefore, in the light of this admission of Deenu, it is not correct to say that deceased was seen last with the accused. On 29.1.1994, accuse threatened him therefore he returned to his school at 11.00 a.m. He has also admitted that when he left the company of Pahlu, Dulla and Sukhan were also present along with their goats. Therefore, in the light of this admission of Deenu, it is not correct to say that deceased was seen last with the accused. Deenu has also stated that " ftl fnu csVjh vfHk;qDr us /kedkdj Hkxk;k ;g /;ku esa vk x;k Fkk fd csVjh&igyw dks vkt ekjsxk] ysfdu igyw tc ykSVdj ugha vk;k rks Hkh ;g ckr fdlh dks ugha crkbZ FkhA " Ex. P3, the report, was filed by Fazru after eight days wherein it has been mentioned that Deenu has informed that accused has murdered Pahlu, whereas Fazru in his statement under section 161 Cr.P.C. Ex.D/1, specifically stated that Deenu informed him, what had happened in the forest on the same day. But in spite of that, nothing was mentioned in Ex.P/1. 18. Fazru and Jaicom have also admitted that on the same day they were informed by Sheodan, Himmat, Israil (relatives of accused) about accused. Fazru has also stated that from the very day he was suspecting accused but nothing was mentioned in Ex. P/1. The explanation given for this omission is not at all satisfactory. Looking to the contradiction in the statement of Fazru, Jaicom and Deenu, and the fact that Ex.P/3 was filed after 8 days, we are of the opinion that it is unsafe to place reliance on the statement of Deenu. Therefore, the evidence led by the prosecution to prove that deceased was seen last in the company of accused is not trustworthy. 19. The second circumstance against the accused is that the stolen goats and Dangi were recovered from the possessions of Bhobal S/o Manohari at his instance. In Ex.P/3 Fazru has mentioned that he has been given Rs. 7,000/- by the father of the accused as cost of the stolen goats bUt there is no evidence to prove it. Even Fazru has not stated on oath about it. It was the case of the prosecution that Pahlu had gone to forest along with his goats. But in the evening Pahlu did not return to his house, he was found missing along with his goats. Even Fazru has not stated on oath about it. It was the case of the prosecution that Pahlu had gone to forest along with his goats. But in the evening Pahlu did not return to his house, he was found missing along with his goats. When accused was arrested, he gave the information about the stolen goats which were recovered from PW 12 Bhobal which were seized by investigating officer in presence of PW 9 Roshan, PW 10 Gopi. But these both witnesses were declared hostile because they have not supported the prosecution case. Similarly, PW 12 Bhobal has also not supported the prosecution case. He has specifically stated that he had never purchased goats from the accused. Goats and Dangi were not seized by the police from his possession. The disclosure statement and the consequent recovery pursuant thereto is indeed of such an incriminating nature that if found to have been proved by reliable and trustworthy evidence, it would go a long way to furnish proof of the guilt of the accused and connect him with the crime, but if the evidence is not reliable, the entire chain of circumstantial evidence will he affected. 20. Therefore, in view of the above discussion, the prosecution has failed to prove the offence against the accusal appellant beyond reasonable doubt. Hence, this appeal is allowed and we set aside the conviction and sentence of appellant and acquit him for the offences under section 302 & 379 1PC. The appellant who is in jail at present he released forthwith, if not required in any other case.Appeal allowed. *******