Judgment N.N.Singh and D.P.S.Choudhary JJ. 1. Both the appeals have been heard together. Hence this judgment shall dispose of both the appeals. These appeals arise out of the judgment and order dated the 29th September, 1986 passed by the 10th Additional Sessions Judge, Munger in Sessions Case No. 161 of 1986 convicting all the four appellants under Section 302/34 of the Indian Penal Code and sentenced each of them to life imprisonment. All the appellants have been further convicted under Section 201 of the Indian Penal Code and sentenced to rigorous imprisonment for seven years. The sentences are to run concurrently. 2. The prosecution case in brief is that Rajiv Kumar Sinha PW-14 the Informant, in his fardbeyan (Ext. 5) alleged that on 19-12-1985 his son, Abhay Kumar alias Makhan aged about 14-15 years returned home after witnessing matinee show cinema and took a bread and after changing his cloth left the home at 5.00 p.m. and went towards Ara machine at the southern side of Goshala. He did not return home till about 7.00 p.m. Thereafter, the Informant became anxious and started search of the boy but he could not get any trace of him ( the boy). On 20-12-1985 in the morning he lodged information in the Police Station in the shape of Sanaha which is Ext. 4 that the boy did not return home for the whole day. It is further case of the prosecution that on the next day, i.e. on 21-12-1985 in the morning at about 9.00 a.m., when the Informant was going towards the market he saw the people coilectd at the Goshala and were talking that a dead body is lying in the Gobar Gas Plant of the Goshala. The Informant identified the dead body which was of his son, Abhay Kumar alias Makhan floating in the Gobar Gas Plant. Thereafter, the fardbeyan of the Informant was recorded and the case was registered against unknown. The Investigating Officer, Laleshwar Prasad Singh PW-15 prepared the inquest reprot (Ext.7) and the dead body was sent for post-mortem examination. After investigation the Investigating Officer submitted charge-sheet against all the four accused persons and after cognizance, the trial took place in the Court below. 3. The case of the defence is that they have been falsely implicated in this case because of enmity. After investigation the Investigating Officer submitted charge-sheet against all the four accused persons and after cognizance, the trial took place in the Court below. 3. The case of the defence is that they have been falsely implicated in this case because of enmity. One of the accused, Jai Shankar Prasad Singh alias Don had pleaded that Dina Babu owes Rs. 400/- to him and on demand he became annoyed and falsely implicated him. 4. The prosecution in all examined 15 witnesses out of which PW-1 (Brihaspati Mahto), PW-12 (Roshan Kumar) and PW-13 (Bablu Kumar) were declared hostile by the prosecution. PW-2 (Asha Sinha) mother of the deceased, PW-8 (Manoj Kumar Sinha) and PW-11 (Bipin Bihari Sinha) have been tendered for cross-examination. PW-3 (Rajni Kumari) is sister of the deceased. She stated that on 7-12-1985 when she was returning home from school along with Bablu, accused Don called Bablu and took him towards Goshala. She further stated that after the murder of Makhan, her elder brother Bablu told her that "who calls him Goonda and death was hanging on the head of Makhan." In cross-examination she stated that before death of his brother this fact was not disclosed to herby Bablu. 5. PW-4 (Ram Bilash Sharma) stated that on 19-12-1985 at about 6.00 p.m. when he was returning from the work-shop and reached near Goshala Chowk, he saw Makhan standing there and all the four accused persons were surrounding him. Next day in the evening he came to know that Makhan is traceless since yesterday. Thereafter, on 20-12-1985 in the morning when he was going to work shop and reached near the Gobar Gas Plant he was told that a dead body was lying in the plant. He identified all the four accused in the dock and stated that they were surrounding the deceased in the evening of 19-12-1985 near Goshala Chowk. It was pointed out on behalf of the appellants that this witness is a liar and the story of seeing the appellants surrounding the deceased is an after thought to implicate the accused persons. It he had seen the accused persons surrounding Makhan in the evening, what prevented him to disclose this fact to the Informant, when he was searching his son in the evening of 19-12-1985. 6. PW-5 (Jagat Devi) is aunt of the deceased and wife of PW-9. It he had seen the accused persons surrounding Makhan in the evening, what prevented him to disclose this fact to the Informant, when he was searching his son in the evening of 19-12-1985. 6. PW-5 (Jagat Devi) is aunt of the deceased and wife of PW-9. She stated that on 13-11-1985, on the day of Dipawali, accused Don and others were exploding crackers infront of her house. She forbid them for such conduct. She further stated that on 19-12-1985 her husband told her that in the evening when Makhan was going towards Goshala, all the accused persons were following him. She further stated that Don had threatened her with revolver that he would kill her husband PW-9 (Dina Nath Prasad) has not stated this fact that he told his wife that he had seen the appellants following the deceased in the evening of 19-12-1985 PW-7 (Umashankar Prasad) is cousin of the Informant. He stated that on 17-12-1985 at about 7.00 p.m. while he was talking with Dina Babu PW-9 at his door, accused Don and three other accused persons were standing at the Betal shop of Brihaspati Mahto PW-1 and were abusing Dina Babu and also gave threat that he will destroy him and his family members. He further stated that on 7-12-1985 Don had asked Bablu as to who calls him Goonda. Bablu replied that he does not know. This witness has further stated that earlier to this occurrence PW-12 (Roshan Kumar) handed over to him a chit of paper stating that it was given to him by accused Don. He tore the said paper but his younger brother, Vijay Shankar PW-10 collected the torn pieces and pasted it. That chit of paper has been marked Ext.3. PW-12 (Roshan Kumar) says that a man gave him a chit of paper and does not say that accused Don has given him this paper. This chit of paper was handed over to the Police as stated by the Investigation Officer PW-15 in paragraph-21. This paper was shown to accused Don during his statement under Section 313 of the Code of Criminal Procedure and he denied that it is written by him. The contents of Ext.3 is not relevant to the merit of the case nor it goes against accused Don. 7. PW-10 is not material witness. This paper was shown to accused Don during his statement under Section 313 of the Code of Criminal Procedure and he denied that it is written by him. The contents of Ext.3 is not relevant to the merit of the case nor it goes against accused Don. 7. PW-10 is not material witness. He only says that Ext.3 was preserved by him which was earlier torn by his brother, Umashankar Prasad. 8. PW-14 (Rajiv Kumar Sinha) is the Informant. In examination in chief he tried to support his fardbeyan and further stated that Bablu had told him that two weeks earlier Don had threatened to kill Makhan and death was hanging on his head. He further stated that Dina Bablu told him that in the evening of 17-12-1985 that Don and other accused, in drunken state threatened to destroy the family of his brother. From the evidence of the Informant it appears that neither in the fardbeyan nor in the Sanaha he made suspicion against any of the accused persons. The Sanaha was lodged on 20-12-1985, till that date the dead body of his son was not recovered, hence it is possible that till then he might not have disclosed the names of the accused persons due to apprehension that it may cause harm to his son, but when the dead body was recovered on 21-12-1985, there was no reason for him not to name the accused persons as suspect in his fardbeyan. His explanation that he was nervous is not convincing. The Informant in examination-in-chief stated that on 20-12-1985, in the morning, his elder brother, Dina Nath Prasad PW-9 told him that he had seen Makhan in the evening of 19-12-1985 going towards the Goshala and all the four accused persons were following him. The Informant had lodged Sanaha after talk with his brother, but this fact is neither mentioned in the Sanaha nor in his fardbeyan (Ext. 5). 9. The learned appellants lawyer pointed out that Ext.2 is the informatory petition dated 18-12-1985 filed by PW-9 Dina Nath Prasad before the SDO, Khagaria regarding threat given to him on 17-12-1985 in the evening by the appellants. This informatory petition has no legal value because under Section 39 Cr. PC any such petition should have been filed before a Judicial Magistrate and not before any other authority. This informatory petition has no legal value because under Section 39 Cr. PC any such petition should have been filed before a Judicial Magistrate and not before any other authority. It was further submitted on behalf of the appellants that this exhibit is ante-dated with the help of the brother of the Informant PW-10 who is a staff working in the SDO Court, Khagaria. Therefore, Ext.2 has no relevancy in this case. 10. PW-6 (Dr. Satish Chandra Prasad), Civil Assistant Surgeon, Khagaria held the post-mortem on the dead body of Makhan on 21-12-1985 at 3.00 p.m. and found the following injuries : Rigor mortis was absent from all the limbs. The body as a whole was moderately blotted with few blebs on abdomen and thighs. Both hands were tied behind trunk with yellow plastic tape above ankles. The clothes and lymbs were smeared with dung. The head and face were swollen and dark brown in colour. Eyes were semi open, oedematous and congested eye balls, pupils were dilated. Mouth was open, lips swollen and dark brown in colour tongue protruded and held between teeth. Blood and blood froth coming out of mouth nostrils and ears. The neck above thyroid cartilage was tied tightly with a piece of cloth with double knot behind neck. On removal of cloth the underlying skin was bruised 1/2" broad from one side of the neck to the other side. He has opined that the death was caused due to asphyxia caused by strangulation. Time elapsed since death within 48 hours of postmortem examination. He has proved the postmortem report which has been marked Ext. 1. From the condition of the dead body as found in the tank it was clear that its hand and neck were tied, which leads to the conclusion that it was a homicidal death caused by strangulation. 11. The Investigation Officer, Laleshwar Prasad PW-15 visited the place of occurrence on 21-12-1985 at 9.30 a.m. and found the dead body floating in the Gobar Gas Plant. He prepared the inquest report (Ext. 7) in which it is mentioned that he found the hands and legs were tied with plastic tape. According to him, the place of occurrence is Gobar Gas Tank of the Goshala. He also found the Choklet covers, plastic tape and few bricks scattered in the earth. He prepared the inquest report (Ext. 7) in which it is mentioned that he found the hands and legs were tied with plastic tape. According to him, the place of occurrence is Gobar Gas Tank of the Goshala. He also found the Choklet covers, plastic tape and few bricks scattered in the earth. The plastic tape found in that room tallied with the plastic tape which was used in tying the hands and feet of the victim and the bricks lying there tallied with the bricks kept in the Jhola which was tied in the reck of the dead body used for drowning in the Gobar Gas Plant. He prepared seizure list (Ext.8) and then sent the dead body for postmortem examination. 12. From the evidence noted above it is clear that there is no direct evidence as to how and when the murder took place. The learned appellants lawyer stated that this is a case of circumstantial evidence, and the Court below has convicted the appellants only on the basis of circumstantial evidence. He further stated that for basing a conviction on circumstantial evidence, the essential ingredients to prove the guilt of the accused persons are as follows : (1) Circumstances in which the conclusion is drawn should be fully proved; (2) They should be conclusive in nature; (3) The facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence. (4) They should exclude the possibility of guilt of any person other than the accused; and (5) The circumstances taken cumulatively, should form the chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by accused and non-else. 13. We proceed to examine the four circumstances enumerated by the learned Trial Court in paragraph 16 of the judgment which are basis of conviction of the appellants. Regarding Point No. 1 : That the accused Don had given threats on 7-12-1985 through Bablu that death was hanging on the head of Makhan has not been supported from the evidence of Bablu PW-13 who has been declared hostile. Regarding Point No. 2 : That on 17-12-1985 the accused persons had abused Dina Nath Prasad, uncle of the victim and had threatened to destroy the family regarding which Ext.2, which is an informatory petition, filed before the S.D.O., Khagaria has been produced. Regarding Point No. 2 : That on 17-12-1985 the accused persons had abused Dina Nath Prasad, uncle of the victim and had threatened to destroy the family regarding which Ext.2, which is an informatory petition, filed before the S.D.O., Khagaria has been produced. We have already discussed above that this exhibit was not filed before the proper authority, hence it has no legal value, Moreover the signature of Dina Nath Prasad on Ext.2 is undated. Regarding Circumstance No. 3 That the accused persons were annoyed by the protest and objections raised by Jagat Devi PW-5 and her busband PW-9 against their conduct could not be motive for the murder of Makhan because it was given two months earlier at the time of Dipawali. Besides this fact is not mentioned either in Ext. 3 or Ext. 4. It appears that it is an after thought after the dead body was recovered. Regarding Circumstance No. 4 : Last seen the victim being followed by the accused persons in the evening of 19-12-1985. It is not mentioned either in Ext. 4 or Ext. 5. This fact was so important that after the recovery of the dead body, it was natural for the Informant to mention this fact in the fardbeyan which was recorded on 21-12-1985. In view of this vital omission in the fardbeyan (Ext.5) the evidences of the PWs who produced this fact for the first time in the Court, appears to be tutored version. We, therefore, come to the conclusion that these four circumstances on which the Trial Court has relied upon are not conclusive to fasten the guilt against the appellants. 14. We do not find much sub-stance in the submissions made on behalf of the learned A.P.P. that the four appellants abducted the victim, a minor boy while he was going towards Goshala, and thereafter they killed him. He submitted that PW-4 (Ram Bilas Shamra) stated that he had seen all the accused persons surrounding the deceased boy near Goshala. Therefore, the inference may be drawn that thereafter they abducted the boy. It was also claimed that subsequent recovery of the dead body proved beyond doubt that after abduction of the boy they killed him. He submitted that PW-4 (Ram Bilas Shamra) stated that he had seen all the accused persons surrounding the deceased boy near Goshala. Therefore, the inference may be drawn that thereafter they abducted the boy. It was also claimed that subsequent recovery of the dead body proved beyond doubt that after abduction of the boy they killed him. It has been held by the Honble Supreme Court that if abduction or kidnapping is proved, the death taking place just after that, even in absence of evidence and motive of murder, there shall be conviction under Section 302/34 of the IPC. The medical evidence shows that the murder of the victim took place shortly after he was last seen in the evening being followed by the accused persons. The Doctor stated that the death took place within 48 hours of his post-mortem. All these factors leads to the conclusion that the appellants have murdered the boy after abducting him in the evening. In support of the contention the learned A.P.P. relied on the case law Gurunam Singh etc. v. State of Punjab, AIR 1998 SC page 2673. We have analysed this case law and come to the conclusion that the facts of this case are quite different. There is no charge of abduction or kidnapping against the accused persons. It is also not the case of the prosecution that at any point of time the boy was abducted. There is no evidence worth reliance that accused persons had abducted the victim boy from the lawful guardianship or when he was going towards Goshala in the evening. In absence of such evidence this case law has got no application with the facts of the present case. 15. We, therefore, come to the conclusion that the circumstantial evidence taken cumulatively do not prove conclusively the guilt of the accused persons. In the result, this appeal is allowed. The conviction and sentence of all the four appellants is set aside. They are ordered to be released from the liabilities of their bail bonds.