Judgment ( 1. ) BEING dissatisfied with the judgment dated 15th July, 1994 rendered in sessions Trial No. 227/1992 by the learned V th Add l. Sessions Judge, Indore, whereby he convicted the appellant for the offence under Sections 377 and 302 of Indian Penal Code and sentenced to suffer 10 years R. I. and imprisonment for life, respectively, the appellant has preferred this appeal. However, both the sentences were directed to run concurrently. ( 2. ) IN brief the prosecution case as narrated before the Trial Court was that prosecution witness Pratap (P. W. 2) and appellant Mohan were serving in the hotel (DHABA) of Jasbir (P. W. 1 ). Deceased, Ramesh, aged about 10 years, often used to come to meet appellant in the said Dhaba. On 1-3-1992, in the evening between 6 - 6. 30 p. m. Pratap (P. W. 2) and one Suresh had seen appellant going with the deceased boy Ramesh towards river. Thereafter deceased Ramesh did not return back to his house; therefore, his mother menabai went in search but did not find him. She enquired from Pratap (P. W. 2), who in his turn told Menabai about seeing the deceased Ramesh in the company of appellant in the evening while going towards the river. Mother menabai, her relations and villagers searched deceased Ramesh but failed to trace him out. In the night at 1. 00 a. m. Menabai, her relations and prosecution witness Pratap (P. W. 2) enquired from appellant who admitted before them regarding commission of unnatural offence (sodomy) with the deceased ramesh and thereafter commission of his murder. Appellant took them to the place where the dead body was lying. Deceased was found lying naked and near the body one pair of shoes were also lying. Thereafter one Kishanlal on 2-3-1992 at 3. 30 a. m. lodged the report in police station. Police party reached on the spot, prepared the inquest of the dead body and sent the same for postmortem. Post-mortem was performed by Dr. R. K. Singh (P. W. 3) and his report is Ex. P-3. ( 3. ) THE Investigating Officer seized blood stained, controlled earth, clothes of deceased and the shoes lying near the dead body. He also prepared the map (Ex. P-9 ). Appellant was arrested on the same day, i. e. , 2-3-1992 and sent for his medical examination. Dr. R. K. Singh (P. W. 3) and his report is Ex. P-3. ( 3. ) THE Investigating Officer seized blood stained, controlled earth, clothes of deceased and the shoes lying near the dead body. He also prepared the map (Ex. P-9 ). Appellant was arrested on the same day, i. e. , 2-3-1992 and sent for his medical examination. Dr. Bhanu Pratap Singh (P. W. 4) examined him and found some injuries on his person. His MLC report is Ex. P-6. Pair of shoes which were seized from the spot and the appellant was asked to put them on and the same were of correct size of his feet. Memorandum to this effect vide Ex. P-15 was prepared by the Investigating Officer N. L. Chouhan (P. W. 9 ). After due investigation, charge-sheet was filed for the above mentioned offences. The appellant has pleaded innocence. According to him, he was falsely implicated by witness Pratap (P. W. 2) and one Suresh because of animocity. Prosecution has examined ten witnesses in its support whereas appellant has not examined any witness in defence. The appellant has been convicted as mentioned above. ( 4. ) WE have heard Shri Ganesh Verma, learned Counsel for appellant, Shri G. Desai, learned Dy. A. G. for respondent-State and also perused the entire record carefully. ( 5. ) THE conviction of the appellant is based on circumstantial evidence and extra-judicial confession made by the appellant. According to pratap (P. W. 2), he was coming from the forest and going to hotel (DHABA ). He met on the way appellant Mohan and deceased Ramesh who were going towards river. Appellant called him but he did not stop and went to hotel (DHABA ). After sometime, he went to his house situated in the village for bringing sweater where he gathered information about missing of Ramesh. On asking by mother of the deceased, he informed about going of deceased in the company of appellant towards river in the evening. Again in the night at 8 -8. 30 p. m. brother of Ramesh, his mother, uncle, Ramesh (P. W. 7), Dulenath (P. W. 8) and other villagers came to him in the hotel and enquired about deceased Ramesh. He again disclosed the same fact before them. All these persons went in search of Ramesh. They again came back to hotel at 10. 30 p. m. brother of Ramesh, his mother, uncle, Ramesh (P. W. 7), Dulenath (P. W. 8) and other villagers came to him in the hotel and enquired about deceased Ramesh. He again disclosed the same fact before them. All these persons went in search of Ramesh. They again came back to hotel at 10. 30 p. m. and Tasked appellant Mohan about Ramesh but he denied about taking of ramesh towards Nala. Again villagers went in search of Ramesh. It was 12. 00 in the midnight when he also joined villagers to search deceased Ramesh but their all efforts went in vain. They all came back to hotel and complained to the master of Mohan regarding his non-disclosure of the whereabouts of ramesh who was seen in his company in the evening. The owner of the hotel allowed them to take Mohan for interrogation and they took him to village. They delivered threat and also showed lathi to him upon which appellant asked them not to assault him, he would disclose the truth. Thereafter he took them to a field where the dead body of Ramesh was lying. The appellant also confessed about commission of unnatural act (sodomy) with the deceased and commission of his murder. Thereafter the matter was reported to the police. ( 6. ) IN cross-examination of Pratap (P. W. 2), suggestion was given to him that he had taken Rs. 200/- from Mohan and on demand, did not return the same to him, because of this, he falsely implicated the appellant. In cross-examination, nothing substantial has come which may damage the testimony of this witness. ( 7. ) THE another witness of extra-judicial confession is Ramesh (P. W. 7) who has been declared hostile. But this witness has admitted the fact of disclosure before him by Pratap (P. W. 2) regarding seeing the deceased ramesh in the company of Mohan in the evening. In examination-in-chief, this witness has also supported the prosecution case about voluntary disclosure of dead body of deceased by appellant Mohan. Appellant Mohan had taken all of them to the field where the wheat crop was standing and the nude dead body of Ramesh was lying in the said field. According to this witness, appellant mohan did not disclose before him about murder of deceased Ramesh. ( 8. Appellant Mohan had taken all of them to the field where the wheat crop was standing and the nude dead body of Ramesh was lying in the said field. According to this witness, appellant mohan did not disclose before him about murder of deceased Ramesh. ( 8. ) IN cross-examination, this witness has stated that on interrogation in the night by Kishannath (not examined), at the initial stage, appellant did not disclose anything about Ramesh but when Kishannath given him beating and threatened him, he took them near the dead body. This witness has also stated that they went to the police station and lodged the report. In our opinion, though, this witness has been declared hostile but his testimony can be relied upon for lending corroboration to the statement of Pratap (P. W. 2) regarding evidence of last seen of deceased in the company of the appellant. On the same day, immediately after the last seen, when the villagers were searching boy Ramesh, Pratap (P. W. 2) disclosed before this witness Ramesh about seeing of deceased in the company of appellant and thereafter deceased was not seen anywhere and found dead in the field. In examination-in-chief his evidence is available about voluntary disclosure by the appellant and taking them near the dead body. But in cross-examination, his say is that appellant mohan, at the first instance, did not disclose and denied about deceased but on beating and threatening by Kishannath, he pointed out the dead body. Therefore, the evidence of this witness about recovery of dead body at the instance of the appellant can not be relied upon because his disclosure was not voluntary. ( 9. ) NEXT witness is Dulanath (P. W. 8 ). This witness has testified that he went in search of deceased Ramesh, alongwith his mother Menabai. They enquired from Mohan but he did not tell anything. When deceaseds uncle kishannath threatened Mohan, he went with Kishannath and pointed out the dead body which was lying in the wheat field. This witness has also been declared hostile on the ground that appellant did not disclose before him about killing of deceased. ( 10. ) FATENATH (P. W. 10) has stated that he came to know in the night between 10-11 p. m. that deceased Ramesh was taken by Mohan. This fact was disclosed to him by Pratap (P. W. 2 ). ( 10. ) FATENATH (P. W. 10) has stated that he came to know in the night between 10-11 p. m. that deceased Ramesh was taken by Mohan. This fact was disclosed to him by Pratap (P. W. 2 ). Pratap (P. W. 2) had seen them going towards "nala" in the evening. Thereafter deceased did not come back to house. Therefore, they went to Mohan and asked about the deceased. He did not disclose whereabouts of the deceased. Therefore, they had given 2-3 slaps to him on which he took them to the field where the dead body of deceased was lying. The appellant Mohan also disclosed before them about commission of unnatural offence (sodomy) and his murder. They tied appellant Mohan and sent Kishannath to police station, thereafter police party reached in the village and arrested the appellant. ( 11. ) THE statements of above mentioned witnesses establish one fact clearly that the confession made by the appellant before them was not voluntary but the same was made because of beating and threat. Therefore, the same could not be relied upon being inadmissible in evidence in view of the provision of Section 24 of the Evidence Act which says that any confession made by accused person is irrelevant if the same was made because of inducement, threat or promise. In the present case, all the aforesaid witnesses, i. e. , Pratap (P. W. 2), Ramesh (P. W. 7), Dulanath (P. W. 8) and Fatenath (P. W. 10) have stated that in the initial stage, appellant did not disclose anything about deceased Ramesh but when he was given beating and threat, he took them and pointed out the dead body as also confessed about commission of unnatural offence with him and his murder. On this point see: Kishore Chand Vs. State of Himachal Pradesh, (1991) 1 SCC 286 , Madan Gopal Kakkad Vs. Naval dubey and another, (1992) 3 SCC 204 and Veera Ibrahim Vs. State of maharashtra, AIR 1976 SC 1167 . ( 12. ) EXCLUDING extra-judicial confession, now we are left with the evidence of last seen together, seizure of pair of shoes of the appellant from the spot, his immediate arrest on the same day and presence of number of unexplained injuries on his person. ( 13. State of maharashtra, AIR 1976 SC 1167 . ( 12. ) EXCLUDING extra-judicial confession, now we are left with the evidence of last seen together, seizure of pair of shoes of the appellant from the spot, his immediate arrest on the same day and presence of number of unexplained injuries on his person. ( 13. ) SO far as the evidence of last seen together is concerned, the statement of Pratap (P. W. 2) is worth placing reliance and the same is duly corroborated by Ramesh (P. W. 7) and Fatenath (P. W. 10) before whom Pratap (P. W. 2) immediately in the same evening, after seeing the deceased in the company of the appellant going towards the river, disclosed this fact. The appellant was caught by the villagers in the same night and thereafter arrested immediately in the morning by the police on 2-3-1992. He was medically examined by Dr. Bhanu Pratap Singh (P. W. 4) who found abrasions and scratches on face and neck. According to this witness, the injuries could be caused by teeth biting by a child. This witness found him sexually fit. He has also opined that injuries could be sustained by using force or resistance. Pyarelal (P. W. 5) has stated that pair of shoes were seized from the spot lying near the dead body and the appellant was asked to put on. They were of correct size to the feet of the appellant. He has proved the memorandum of all these proceedings vide Ex. P-15. Investigating Officer N. L. Chouhan (P. W. 9) has also deposed this fact in paragraph four of his deposition. Therefore, this is also a very strong circumstance against the appellant. ( 14. ) THE post-mortem was conducted by Dr. R. K. Singh (P. W. 3), who found in total 45 injuries on the person of the deceased. All are abrasions, contusions and scratches. He also found on left thigh as well as just above the anus number of abrasions and injuries caused by teeth biting. Injury on and inside the anus was also present with clotted blood. On pressing, blood was coming out. He opined that deceased died because of asphyxia due to throttling as well as injuries on the head and abdomen. The death was homicidal and injury at the anus could be caused by unnatural intercourse. His report is ex. P-3. ( 15. Injury on and inside the anus was also present with clotted blood. On pressing, blood was coming out. He opined that deceased died because of asphyxia due to throttling as well as injuries on the head and abdomen. The death was homicidal and injury at the anus could be caused by unnatural intercourse. His report is ex. P-3. ( 15. ) IN view of the medical evidence of Dr. R. K. Singh (P. W. 3), there is absolutely no room for doubt regarding homicidal death of the deceased and commission of unnatural offence with him. The appellant has not explained injuries on his person in his accused statement. Therefore, this circumstance also goes against him. ( 16. ) EXCLUDING the evidence of extra-judicial confession and pointing out the dead body of deceased by the appellant, we are having convincing and clinching evidence of last seen of the appellant in the company of the deceased, thereafter deceased was not seen alive anywhere and his dead body was found in the wheat field in nude condition, medical report supporting the homicidal death and commission of cornal intercourse against the order of nature, presence of number of injuries including injury by teeth biting by a child on the person of appellant, immediately in the same night he was taken into custody by the villagers and handed over to the police, and presence of his shoes on the spot near the dead body, unerringly pointing towards the guilt of the appellant for commission of highly inhuman and brutal murder of a child aged ten years as well as sodomy with him, excluding all reasonable hypothesis of innocence in his favour. ( 17. ) LOOKING to the proximity of time of evidence of last seen together, immediate disclosure of witnesses regarding this fact, finding of the dead body within few hours, taking into custody of the appellant by the villagers and his medical examination, there appears absolutely no doubt regarding commission of the offences by the appellant as charged against him. Therefore, we uphold the judgment and finding passed by the learned Trial Court. ( 18. ) IN the result, the appeal fails and is hereby dismissed. Criminal Appeal dismissed.