Judgment ( 1. ) THE appellant has preferred this appeal against the judgment dated 4-2-1999 of the learned Additional Sessions Judge, Lakhnadon (District Seoni) passed in S. T. No. 105/98 by which he has been convicted under Section 302 of the IPC and sentenced to imprisonment for life and fine of Rs. 5000/-; in default of payment of fine, to further R. I. for one year, and under Section 201 of the ipc and sentenced to R. I. for three years, and fine of Rs. 1000/-; in default of payment of fine, to further R. I. for three months. Both the sentences of imprisonment have, however, been directed to run concurrently. ( 2. ) THE prosecution case relates to the death of a child Bhagwati Bai, daughter of Shivlal (P. W. 1) and Durgabai (P. W. 2), aged one year and seven months. Both the accused and the above said parents of the deceased Bhagwati bai are the residents of the same village. According to the prosecution, about 3 or 4 days prior to 6-8-98 there was a quarrel between the accused and Durgabai (P. W. 2) in which Shivlal had intervened and beaten the accused. The accused had therefore intimidated that they would see the consequence within 3-4 days. On 6-8-98, the daughter of P. W. 1 Shivlal and P. W. 2 Durgabai had gone to play but she did not return. A search was made and it was only on 9-8-98 when the accused was interrogated that he revealed about the place where her body was buried and led the police and the witnesses to the fields from where the body was taken out after removal of the boulders beneath which it had been buried. According to the prosecution, when Shivlal (P. W. 1) had gone to Dhooma on 6-8-98 and returned from there at five in the evening, his wife Durgabai (P. W. 2) had informed him that accused Tantu had taken away the child and the child had not returned. P. W. 1 Shivlal, therefore lodged the report Ex. P-34 at the police station of a missing person which was recorded by Sub Inspector, Jagat bahadur Singh (P. W. 8), who went to the village on 9-8-98 and interrogated the accused. The accused gave information with regard to the dead body of the deceased. P. W. 1 Shivlal, therefore lodged the report Ex. P-34 at the police station of a missing person which was recorded by Sub Inspector, Jagat bahadur Singh (P. W. 8), who went to the village on 9-8-98 and interrogated the accused. The accused gave information with regard to the dead body of the deceased. Tantu stated that he had first throttled her and buried her in the fields. On the basis of the said information the recovery of the dead body was made and the accused was prosecuted for offence under Sections 302 and 201 of the ipc. The accused denied having committed any offence and stated that he had been falsely implicated. However, on trial, the learned Additional Sessions judge found the accused guilty and convicted him as stated hereinabove. ( 3. ) LEARNED Counsel for the appellant submits that since there are no eye witnesses to the incident and was manifest from Para 12 of the impugned judgment, all the prosecution witnesses have been disbelieved by the Trial court, as to the claim that any information was given to Durgabai (P. W. 2) by ranjita (P. W. 4) that the accused had taken away the child, there remains nothing that incriminates the accused, and therefore the accused deserves to be acquitted. She has further stated that merely on the ground of the recovery of the dead body allegedly at the instance of the accused where there is no other evidence to connect him with the alleged commission of the offence, the accused can not be convicted and, therefore, the conviction of the appellant is unsustainable. Learned Additional Advocate General, on the contrary, has submitted that the accused alone had the knowledge about the dead body and the place where it was buried which directly connects him with the commission of the offence and therefore, the appeal deserves to be dismissed. ( 4. ) WE have heard learned Counsel for the parties and perused the record. ( 5. ) THE first question that arises in the present case is as to whether the deceased Bhagwati Bai met a homicidal death. In respect of the medical evidence, the prosecution has examined Deepak Narayan Pandey (P. W. 9), who conducted the autopsy and gave report Ex. P-33. He has deposed that he had received the dead body of the child in advance stage of decomposition with maggots all over the body. In respect of the medical evidence, the prosecution has examined Deepak Narayan Pandey (P. W. 9), who conducted the autopsy and gave report Ex. P-33. He has deposed that he had received the dead body of the child in advance stage of decomposition with maggots all over the body. Abdomen was distended, eyes were destructed by maggots and mouth was open. There were no signs of ligature mark over neck visible, vault suture were separated from each other. In the opinion, he stated that no definite opinion can be given regarding cause of death due to Advance stage of Decomposition. ( 6. ) IN the backdrop of the evidence adduced in this case, learned counsel strongly urges that since the prosecution has failed to prove that the death was homicidal, charge under Section 302 of the IPC and the consequent conviction falls. ( 7. ) KEEPING in view the above contention, we now proceed to exam-ine the evidence as to when and how the name of the accused figured during the investigation of the case. Though the prosecution witnesses namely Shivlal (P. W. 1), Durgabai (P. W. 2), Chironjabai (P. W. 3) and Ranjita (P. W. 4) have stated that Ranjita had informed Durgabai that accused Tantu had taken the girl with him and Durga Bai in turn informed Shivlal (P. W. 1) and Chironjabai, who also deposed to the same, this fact is not mentioned in the statements Ex. D-1, D-2 and D-3 recorded under Section 161, Cr. PC with which they have been duly confronted. This shows that all these witnesses with a view to rope in the accused for the major charge under Section 302 of the IPC have modulated their version to connect the accused with the initial kidnapping of the child and on the basis of the recovery of the body of the child at the instance of the accused, to secure his conviction. The confirmation of the fact that these prosecution witnesses did not have any knowledge about the involvement of accused Tantu is manifest from the report Ex. P-34 lodged by Shivlal P. W. 1 (father of the deceased) in which there is not even a whisper with regard to any role played by the accused in the missing of the child. The learned Additional sessions Judge, has therefore rightly discarded the evidence of these witnesses. ( 8. P-34 lodged by Shivlal P. W. 1 (father of the deceased) in which there is not even a whisper with regard to any role played by the accused in the missing of the child. The learned Additional sessions Judge, has therefore rightly discarded the evidence of these witnesses. ( 8. ) LEARNED Counsel for the appellant submits that having turned down the testimony of these witnesses as unreliable, the Trial Court ought not to have based conviction on the evidence adduced by the prosecution. We can not be oblivious of the fact that if the other evidence adduced by the prosecution is reliable, cogent and satisfactory, the conviction can be founded on such evidence provided it inspires confidence. We, therefore, proceed to examine the evidence of the remaining part of the prosecution case namely the recovery of the dead body at the instance of the accused. ( 9. ) WE may, at this juncture, observe that how the prosecution discovered the accused is a mystery, but be that as it may, the evidence of Jagat bahadur Singh (P. W. 8), Investigating Officer shows that while he proceeded for investigation and called the accused, the accused gave him information with regard to the place where the body of the child was lying buried under the boulders. Though the information referred by Jagat Bahadur Singh (P. W. 8) also contains confessional statement about commission of murder which is not admissible, and the Trial Court ought not to have brought on record that part of the statement which did not concern the information with regard to the place and the thing which was to be discovered, we will proceed to examine the case only on the basis of the information which is admissible under Section 27 of the evidence Act. This information was recorded by Jagat Bahadur Singh (P. W. 8)in memorandum Ex. P-6. It was on this information that the accused led the police party to the place giving putrid smell of which Panchnama Ex. P-7 was made and the dead body was recovered vide Panchnama Ex. P-8. It is after this recovery of the dead body that the offence was registered vide Ex. P-11. ( 10. ) LEARNED Counsel submits that even this evidence has been artifi-cially introduced as the body had become fully decomposed according to the autopsy Surgeon, Dr. P-7 was made and the dead body was recovered vide Panchnama Ex. P-8. It is after this recovery of the dead body that the offence was registered vide Ex. P-11. ( 10. ) LEARNED Counsel submits that even this evidence has been artifi-cially introduced as the body had become fully decomposed according to the autopsy Surgeon, Dr. D. N. Pandey (P. W. 9), mother of the deceased Durgabai (P. W. 2) and Laxman Singh (P. W. 5 ). Therefore, learned Counsel contends that on account of putrid smell, it must have been discovered by the passers-by as the body was buried on a path of the agricultural fields where lot of activity goes on. As a matter of fact body was not buried under the ground but kept on the boulders stacked on the ground and covered by the boulders. ( 11. ) IN the case of Gambhir Vs. State of Maharashtra ( AIR 1982 SC 1157 ), in Para 27 it is observed as follows :- "27. The various recoveries made in various installment most of them on the pointing of the accused appears to be suspicious. On 27th of February when the Investigating Officer alongwith the panchas peeped inside the room after removing the tin roof they found foul smell coming out. If the body had decomposed just within one day of the occurrence obviously much more foul smell would be coming out from the well, on 1st of March, where two corpses were lying. It has come in evidence that people used to go towards the well to ease themselves. They must have come to know about the foul smell specially when the dog squad was there and it would have been not at all difficult for the dog to locate the place where the foul smell was coming from. In our opinion, this must have been known to all concerned that foul smell was coming out of the well and people must have tried to find the reason thereof. In such a situation it was not at all necessary for the accused to have pointed out the place where the dead bodies were lying. " In view of the above observations of Their Lordships, we find substance in the argument of the learned Counsel. ( 12. In such a situation it was not at all necessary for the accused to have pointed out the place where the dead bodies were lying. " In view of the above observations of Their Lordships, we find substance in the argument of the learned Counsel. ( 12. ) HOWEVER, now we proceed to consider the case on the hypothesis that the dead body was recovered from the fields pointed out by the accused. Whether on the basis of this allegation alone conviction of the appellant can be sustained, needs to be examined. ( 13. ) IN the case of K. K. Jadav Vs. State of Gujarat ( AIR 1966 SC 821 ), their Lordships have observed that the mere fact that the dead body was pointed out by the appellant or was discovered as a result of a statement made by him would not necessarily lead to the inference about the commission of the offence of murder. It is, therefore, clear that merely because there has been a discovery at the instance of the accused, the consequence of conviction for the charge of murder will not always entail. In another case in Bakshish Singh Vs. Slate of Punjab ( AIR 1971 SC 2016 ) the Apex Court has observed in Para 8 of the judgment as under :- "8. Therefore the only incriminating evidence against the appellant in his pointing the place where the dead body of the deceased had been thrown. This, in our opinion, is not a conclusive circumstance though undoubtedly it raises a strong suspicion against the appellant. Even if he was not a party to the murder, the appellant could have come to know the place where the dead body of the deceased had been thrown. Further, as mentioned earlier, at the bank of the river where the dead body was thrown into the river, there were broken teeth and parts of the human body lying. Hence anyone who saw those parts could have inferred that the dead body must have been thrown into the river near about that place. " ( 14. Further, as mentioned earlier, at the bank of the river where the dead body was thrown into the river, there were broken teeth and parts of the human body lying. Hence anyone who saw those parts could have inferred that the dead body must have been thrown into the river near about that place. " ( 14. ) LEARNED Additional Advocate General submits that in view of the ratio of the case in K. K. Jadav, in the present case also the evidence of recovery does not suffer from any defect and it is the police who traced out the accused and collected the evidence against him and therefore conviction of the appellant should be maintained. We are afraid, we can not accede to the said submission of the learned Additional Advocate General. We have noticed hereinabove that though initially the name of accused Tantu has not figured even till the report ex. P- 34 of the missing person, the prosecution witnesses modulated their story to introduce his name deliberately to show that he had kidnapped the child and thereafter committed her murder and with a view to screen his offence, buried the dead body under stones. The Trial Court has also not believed these witnesses but on the peculiar understanding of the remaining evidence of the prosecution, it has come to its conclusion with regard to the commission of offence which we have noticed. We, therefore, find that there is no substance in the case to connect the accused with the crime. Though on account of the discovery of the dead body which we are quite convinced, must have been noticed by passer-by on account of putrid smell in the area, some suspicion is aroused against the accused, but suspicion can not take the place of proof. Therefore, in view of the facts and circumstances of the case, we can not uphold the conviction of the accused. ( 15. ) IN the result, this appeal is allowed. The conviction of the appellant and the sentences awarded to him are set aside. He is acquitted of the charges. He be released from custody, if not, required in connection with any other matter. Criminal Appeal allowed.