JUDGEMENT This criminal appeal has been preferred by the appellants Zakir and Rashid against the judgment and order dated 27-11-1993, passed by the Additional Sessions Judge, Roorkee, in Sessions trial No. 10 of 1991 State versus Zakir and others convicting the accused/appellants Zakir and Rashid U/Ss 364, 302 and 201 I.P.C. and sentencing both of them to undergo 10 years R.1. U/ S 364 I.P.C.; life Imprisonment U/S 302 I.P.C. and 2 years R.1. U/S 201 I.P.C. All the sentences were to run concurrently Co-accused Masoom Ali and Parash Nath were acquitted U/S 201 I.P.C. for which they were charged. 2. Brief facts of the case are that on 31-5-1990 Sundar Lal resident of Mohalla Bahar Qilla Manglaur lodged first information report at P.S. Manglaur, District Haridwar with the allegations that on 31-5-1990 his daughter Km. Mamtesh was sewing clothes at his house. At about 10 A.M. accused Rashid Ali came at his house and carried his daughter Km. Mamtesh on the pretext that her sister has called her. When his daughter did not return, the complainant made search for her but all in vain. He also alleged in the F.I.R. that Km. Mamtesh was aged about 13 years. He also suspected that Km. Mamtesh may be murdered by Rashid and his elder brother Zakir. On the basis of the written F.I.R. chick F.I.R. Ext. Ka.3 was prepared at the Police Station Manglaur and a case U/S 364 I.P.C. was registered against accused Rashid and Zakir in the General Diary, the carbon copy of which Is Ext. Ka.4. 3. S.I. Yogendra Kumar Sharma has conducted the investigation in the case. On 1-6-1990 he recorded the statements of the witnesses and prepared the site-plan, Ext. Ka.5, of the room of the complainant where his daughter Km. Mamtesh was sewing clothes. On 2-6-1990 the I.O. took Into his possession the cycle in which the dead body of Km. Mamtesh was allegedly carried by accused and prepared recovery memo, Ext.Ka.8. He made search of the accused. On 36-90 at about 2.30 P.M. arrested accused Zakir and Rashid. On 4-6-1990 the I.O. interrogated the accused Zakir. Accused Zakir Informed the I.O. that the scarf (Chunari) of Km. Mamtesh was kept by him at his house. At this the I.O. made entry of this fact at report no. He made search of the accused. On 36-90 at about 2.30 P.M. arrested accused Zakir and Rashid. On 4-6-1990 the I.O. interrogated the accused Zakir. Accused Zakir Informed the I.O. that the scarf (Chunari) of Km. Mamtesh was kept by him at his house. At this the I.O. made entry of this fact at report no. 14 at 8.50 A.M. and carried the accused to the place where the scarf (Chunari) was kept by him. The accused handed over the scarf (Chunari) after taking out from inside his house In presence of public witnesses Hari Kishan Gupta and Madho Ram. Sundar Lal and Saroj were also present there. The I.O. prepared recovery memo, Ext. Ka.2 of scarf and also prepared Site plan of the place of recovery, Ext. Ka. 6. The complainant Sundar Lal and his wife Smt. Saroj identified the Chunari belonged to their daughter Km. Mamtesh. The accused also confessed to the I.O. that Mamtesh was murdered by them. The I.O. prepared the site-plan, Ext.Ka.7 of the place where Km. Mamtesh was allegedly murdered. He also prepared site plan, Ext. Ka.9 of the place were the dead body of Km. Mamtesh was thrown by the accused after committing her murder. Thereafter the investigation was transferred to S.I. Ajay Kumar Yadav, who after completion of investigation, submitted charge sheet, Ext. Ka.11 against the accused/appellants Rashid and Zakir and co-accused Masoom Ali and Parash Nath. 4. On committal of the accused persons to the court of' Sessions the Additional-Sessions Judge framed charges U/Ss 364, 302, 201 I.P.C. against the accused/appellants Rashid and Zakir and charge U/S 201 I.P.C. against co-accused Masoom Ali and Parash Nath. The accused persons pleaded not guilty to the charges and claimed their trial. 5. The prosecution, in support of its case examined in all 11 witnesses. P.W.l, Sundar Singh is the father of deceased Km. Mamtesh. He is also the complainant of the case. He deposed that the deceased at the time of the occurrence was 13 years of age. He has stated that on the day of occurrence when he returned his home after finishing his work, his daughter Km. Mamtesh was not at his home and when he inquired from his wife then she told him that at about 10-30 A.M. Rashid carried her with him on the pretext that her sister has called her. He has stated that on the day of occurrence when he returned his home after finishing his work, his daughter Km. Mamtesh was not at his home and when he inquired from his wife then she told him that at about 10-30 A.M. Rashid carried her with him on the pretext that her sister has called her. He, made search of his daughter but could not be traced. Thereafter he lodged the report of the incident at the Police Station. This witness has further deposed that Chunari of his daughter was handed over by accused Zakir from beneath his staircase and this witness had identified the said scarf (Chunari) as material exhibit-l. This witness has also proved the F.I.R. Ext.Ka.l. 6. P. W.2, Narendra is the witness of circumstantial evidence. According to this witness on the day of occurrence at about 10-10.30 A.M. he had seen deceased Mamtesh along with accused Rashid entering the house of Masoom Ali. 7. P. W.3, Narendra Kumar is the witness' of the fact that in the night of occurrence he had seen accused Rashid and Zakir throwing a gunny-bag from , their bicycle near the bridge of Manglaur canal. 8. P.WA, Smt. Saroj is the mother of the deceased. She has deposed that on the day of the occurrence at about 10 A.M. accused Rashid carried her daughter .the deceased with him on the pretext that sister of deceased had called her. This witness also stated that when accused Zakir, was brought to his house by the police handcuffed, he had handed over the scarf (Chunari) to the police and she had recognized the scarf of her daughter. She also stated that when the deceased went out of her house she was wearing the said scarf. 9. P.W.S, Jagdish is the witness of the fact that on the day of occurrence at about 10-10.30 A.M. the deceased Km. Mamtesh was seen by him lying on a cot in the house of Masoom Ali and Zakir was throwing water-drops on her face. 10. P.W.6, Vijay Pal is also the witness of circumstantial evidence. According to this witness on the day of the occurrence when he was going to market accused Zakir met him and he was nervous. Mamtesh was seen by him lying on a cot in the house of Masoom Ali and Zakir was throwing water-drops on her face. 10. P.W.6, Vijay Pal is also the witness of circumstantial evidence. According to this witness on the day of the occurrence when he was going to market accused Zakir met him and he was nervous. When this witness asked the accused Zakir as to why he was nervous, the accused confessed his guilt and alleged that the deceased Mamtesh made his false complaint to the parents of the accused. He also told this witness that his parents had gone to Saharanpur and he and accused Rashid are at his house. Rashid called Mamtesh to his house and committed her murder by throttling her and the dead body of the deceased was thrown away in the night by them by tying in a gunny bag. 11. P. W. 7, Madho Ram is the witness of recovery of the scarf of deceased Km. Mamtesh. This witness has deposed that the accused Zakir had handed over the scarf of the deceased from taking out underneath of his stairs. This witness also proved his signatures on recovery memo, Ext. Ka.2. 12. P. W.8, Suresh is the witness of the fact that on the day of occurrence he was working at the shop of Om Dutt. He was smoking Bidi near the road. In the electric light he saw the accused Zakir, Rashid and Masoom Ali coming along with a bicycle having gunny bag on it, from the side of Manglaur and they thrown the said gunny bag in the canal. 13. P.W.9, S.I. Yogendra Kumar Sharma, has investigated the case. He has narrated the steps taken by him during investigation and proved the prosecution papers prepared by him during the investigation. 14. P.W.10, Jai Chand has deposed that the accused Zakir had come to him for help and told him that Km. Mamtesh made his 'complaint to his parents about money and due to this reason he has murdered' her by throttling her neck. Accused also informed this witness that he and his brother co-accused Rashid had thrown her dead body in Cheetal park by tying it in a gunny bag. 15. P.W.11, Ajay Kumar Yadav is the second Investigating Officer of the case. This witness after completing the investigation, has submitted charge sheet against the accused parsons. Accused also informed this witness that he and his brother co-accused Rashid had thrown her dead body in Cheetal park by tying it in a gunny bag. 15. P.W.11, Ajay Kumar Yadav is the second Investigating Officer of the case. This witness after completing the investigation, has submitted charge sheet against the accused parsons. He has proved the charge sheet, Ext. Ka.11. 16. The accused persons in their statements U/5 313 Cr.P.C. have denied the prosecution case. Accused Zakir also stated that he had enmity with the complainant sundar as he had taken forcible possession of his house and also wanted to take possession of his another house and due to this enmity false complaint was lodged against them. However, no evidence, oral or documentary, was produced in defence. 17. The Additional Sessions Judge on his appreciation of the evidence, found the accused/appellants Rashid and Zakir guilty under Sections 364, 302 and 201 I.P.C. and sentenced each of them to undergo imprisonment for life U/5 302 I.P.C.; 10 years R.I. U/S 364 I.P.C. and two years R.I. U/s 201 I.P.C. The Sessions Judge however acquitted the co-accused Masoom Ali and Parash Nath U/S 201 I.P.C. 18. Feeling aggrieved, the accused/appellants have come up in appeal before this Court. 19. We have heard the learned counsel for the appellants, learned A.G.A. and perused the record. 20. Learned counsel for the appellant has first of all argued that one of the accused Rashid was a juvenile on the date of occurrence. Therefore, he could not have been tried by the Sessions Judge and the imprisonment for life could not have been awarded against him. 21. Our attention has been invited towards some documents available in the record of the trial court. The learned counsel for the appellant has invited our attention towards the committal order dated 01-01-1991. This order shows that the court had held that appellant Rashid is a juvenile. The incident in this case is alleged to have been taken place on 31-05-1990 and when the court had held in the committal order dated 01-01-1991 Rashid is a juvenile then certainly in our opinion the case of appellant Rashid could not have been tried by the Sessions Judge and the imprisonment of life awarded to him could not have, been passed. 22. 22. Again our attention has been invited towards the statement of the appellant Rashid recorded under Section 313 Cr.P.C. It reveals that this statement was recorded on 01-07-1993 and the age of Rashid was shown as 17 years therein. Therefore, it is quite clear that the age of the appellant - Rashid was below 16 years on the date of the occurrence. 23. The documents which are available in the record of the trial could thus clearly established this aspect that the appellant Rashid was juvenile on the date of the occurrence. Hence his case should have been dealt with as a Sessions trial. 24. The Hon'ble Supreme Court in the cases reported in AIR 1981 Supreme Court page 2037 Raghubir Singh Vs State of Haryana and in A.I.R.1982 Supreme Court page 806 Munna Vs State of U.P. has clearly ruled that "Section 27 of the Cr.P.C. is not 'a. specific provision to the contrary' within the meaning of Section 5 of the Code of Criminal Procedures." It has also observed by the Hon'ble Apex Court that "Section 27 contemplates is that a child under the age of 16 years may be tried' by a Chief Judicial Magistrate or any Court specially empowered under the Children Act, 1960." 25. The Hon'ble Apex Court has discussed the relevant provision of the Cr.P.C. 1973 with which they were directly concerned in order to decide this point and those provisions are as follows : - "Section 4 reads : (1) All offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with accordingly to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." Section 5 reads : "Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law, for the time being in force, or any special jurisdiction or power conferred, or any special form, of procedure prescribed, by any other law for the time being in force." Section 27 reads: "Any offence not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is brought before the Court is under the age of sixteen years, may be tried by the Court of a Chief Judicial Magistrate, or by any Court specially empowered under the Children Act, 1960, or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders." 26. In view of the aforesaid provision, it is quite clear that "Section 27 is not a specific provision to the contrary within the meaning of Section 5 of the Code. The intention of the Parliament was not to exclude the delinquent children for offences punishable with death or imprisonment for life, inasmuch as much as Section 27 does not contain any expression to the effect "notwithstanding anything contained in any Children Act passed by any State Legislature." 27. On the basis of the aforesaid observation made by the Hon'ble Apex Court, we are of the view that what Section 27 contemplates is that a child under the age of 16 years may be tried by a Chief Judicial Magistrate or any Court specially empowered under the Children Act, 1960. The provision of Section 27 of the Code of Criminal Procedure is merely an enabling provision which does not express any contrary expression to undo the saving provided in Section 5 of the Code. 28. In the result, the appeal on behalf of the appellant, namely, Rashid is liable to be allowed. The entire trial relating to the appellant Rashid deserve to be quashed as the appellant should have been dealt with In accordance with the provision of U.P. Children Act (1 of 1952). 29. 28. In the result, the appeal on behalf of the appellant, namely, Rashid is liable to be allowed. The entire trial relating to the appellant Rashid deserve to be quashed as the appellant should have been dealt with In accordance with the provision of U.P. Children Act (1 of 1952). 29. Let us now proceed with the case of another appellant Zakir. 30. We have given our anxious consideration with regard to the evidence adduced by the prosecution. We are of the view that this case rests on circumstantial evidence. Our attention has been invited .towards three circumstances of the case. First-last seen, second extra judicial confession made by the appellant before the P. W.6 and P. W.10 and third- circumstance is the recovery of Chunni of Km. Mamtesh on the pointing out of the appellant. Now, we have to scrutinized the evidence available on record in order to come to a definite conclusion whether each and every piece of incriminating circumstance is clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the appellant - Zakir. 31. The record reveals that P.W.2 - Narendra S/o Kallan is a witness produced by the prosecution for establishing this aspect that the appellant was lastly seen in the company of the deceased - Km. Mamtesh. The deposition of P.W.2 shows that he saw Km. Mamtesh at 10:00 - 10:30 a.m. on 31-05-1991 going in the house of Masoom Ali. He has also stated that Km. Mamtesh was following accused - Rashid. It is pertinent to mention here that Masoom Ali is the father of the appellants Rashid and Zakir. This witness has further deposed that he did not see Km. Mamtesh thereafter. The important thing in the evidence of this witness is that he saw. Km. Mamtesh lastly' going inside the house of Masoom Ali along with the accused/appellant Rashid. Therefore, the evidence of this witness pertaining to the fact of last seen against the appellant - Zakir is of no avail. 32. Another important aspect which does not attaches reliance on the deposition of this witness is that he could not say about the clothes which appellant Rashid was wearing at the time of last seen, but this witness fully remembered the clothes which Km. 32. Another important aspect which does not attaches reliance on the deposition of this witness is that he could not say about the clothes which appellant Rashid was wearing at the time of last seen, but this witness fully remembered the clothes which Km. Mamtesh was wearing at the time of last seen and this type of conduct of the witness makes his testimony doubtful. 33. The evidence of last seen in a case of circumstantial evidence is itself a very weak type of evidence and unless corroborated by the other clinching evidence, no conclusion can be drawn on the basis of this witness with regard to the guilt of the accused/appellant: 34. The prosecution has further produced another witness P.W.3 - Narendra Kumar S/o Sri Bishamber in order to show that the appellants Rashid and Zakir were seen by this witness in the night throwing a bag in the canal. It is pertinent to mention here that the dead body of Km. Mamtesh has not at all been recovered in this case. This witness has stated that he had gone to Nasirpur in connection to the business of wood and he came back from that village in the night at about 3:00 a.m. and when reached near the canal he saw that Rashid and Zakir were throwing a bag in the canal and he asked them as to what they have been doing then the accused/appellants replied that their sister was ill, therefore, they are throwing some "TOTKA" in the canal. This witness has also deposed that he knew that the sister of the appellants was having some ailment during those days. The important thing in the testimony of this witness is that he saw the appellants throwing the bag in the canal in the light of the scooter which he was riding at that time, but when he was asked about the number of scooter, then he could not tell, the same. This circumstance clearly makes his testimony doubtful and it is quite unbelievable that the number of the scooter which this witness was riding at the relevant time was not in his memory. This circumstance clearly makes his testimony doubtful and it is quite unbelievable that the number of the scooter which this witness was riding at the relevant time was not in his memory. The another aspect which is making the testimony of this witness doubtful is that it does 'not appeal to reasons as to what was the compelling circumstance with this witness to return to his home in the dark hour of the night at about 3:00 a.m. Therefore, this possibility cannot be ruled out that this witness has been introduced only to create the chain of circumstance. 35. Another important aspect is that this witness did not disclose, the fact of throwing the bag in the canal by the appellant to anyone before his statement was recorded by the Investigating Officer. This witness has stated that he came to-know with regard to this fact that Km. Mamtesh was missing in the next morning. But even then he did not disclose this fact to anyone that he saw the appellants in the night throwing a bag in the canal. No satisfactory explanation has been given by this witness as to why he kept mum on this issue. 36. Another witness P.W.5 - Jagdish has been produced by the prosecution in order to show that he saw Km. Mamtesh lying over the cot in the house of the appellant. This witness has deposed that although he saw Km. Mamtesh lying over the cot but he did not have any suspicion on this situation as Km. Mamtesh use to frequently visit the house of Masoom Ali off and on. This witness has deposed that he saw Km. Mamtesh lying over the cot in the house of accused/ appellant on 31-05-1990, but he did not disclose this fact to anyone for about two days even after hearing the knowledge of the fact that Km. Mamtesh was missing. This witness has deposed that on the next day he went in his relationship and he came back to his house in the evening and thereafter he did not think it, proper to disclose this fact to the family member of Km. Mamtesh, hence he disclosed this thing to Sunder Lal father of Km. Mamtesh on the next day, i.e. third day of occurrence. Mamtesh, hence he disclosed this thing to Sunder Lal father of Km. Mamtesh on the next day, i.e. third day of occurrence. The prosecution has also not offered any satisfactory explanation with regard to the silence of this witness for two days as it was in the knowledge of this witness that Km. Mamtesh was missing and her whereabouts were not known even then this witness did not think it proper to disclose the material fact to the family members of Km. Mamtesh for two days. 37. Under the aforesaid circumstances, the evidence of last seen of the appellant in the company of Km. Mamtesh as well as evidence of throwing a bag in the canal by the accused/appellants and the evidence with regard to this fact that Km. Mamtesh was lying over the cot in the house of the accused/appellants does not appear to be convincing. 38. Therefore, it cannot be said with certainty that the bag which was being thrown by the accused/appellants in the canal was actually having a dead body as the dead body of Km. Mamtesh has not at all been recovered in this case. 39. Another important circumstance on which the prosecution has invited our attention is the recovery of Chunni belonging to the deceased - Mamtesh. The prosecution has produced P. W. 7 - Madho Ram who has stated that Chunni belonging to Km. Mamtesh was recovered on the pointing of the accused / appellant Zakir. This witness has stated that he did not see this Chunni worn by Km. Mamtesh prior to the date and time of recovery of same. Another witness of this circumstance is P. WA - Smt. Saroj who is the mother of the deceased but merely recovery of Chunni in the house of the accused/appellant does not conclusively establishes the guilt of the accused/appellant. We cannot take the risk of allowing mere suspicion, howsoever strong to take the place of proof. 40. The prosecution has vehemently placed its reliance over another circumstance which is the extra judicial confession of the accused/appellant made before P.W. 6 - Vijay Pal and P.W. 10 - Jai Chand. Learned G.A. has submitted that the evidence with regard to the extra judicial confession made by the accused/appellant is a strong circumstance which leads to hypothesis of guilt and exclude every possibility of innocence of the appellant. 41. Learned G.A. has submitted that the evidence with regard to the extra judicial confession made by the accused/appellant is a strong circumstance which leads to hypothesis of guilt and exclude every possibility of innocence of the appellant. 41. P.W.6 - Vijay Pal is the witness before whom it is alleged that appellant Zakir made a extra judicial confession. This witness has deposed that when Zakir met him in the market he was quite scared and when this witness asked Zakir as to why he was scared then he told him that he had murdered Km. Mamtesh in his house. The evidence of this witness does not appear to be convincing as firstly the appellant Zakir is alleged to have made the extra judicial confession before this witness in the open market. Secondly, the status of this witness is nothing but he is simply a carpenter as he is not in the capacity to either Influence the police or any of the authority. In case, if the accused made extra judicial confession as well as sought some prosecution from a person then certainly he would have liked to make the extra judicial confession at some safer or secluded place. The accused would have also sought the protection from such a person who has got some influence in the society. 42. Another witness P. W. 10 - Jai Chand before whom the accused/ appellant had made the extra judicial confession is also an electrician by his trade. This witness has stated that appellant - Zakir came to him and sought his help. This witness has also stated that Zakir made a extra judicial confession before him and stated that he committed murder of Km. Mamtesh and thereafter had thrown her in a canal. In the cross examination this witness has stated that he is not in visiting terms with appellant - Zakir. This witness has stated that he does not know as to Zakir was engaged in which occupation. He has also stated that Zakir had never come to him before this incident. This witness has also stated that he did not hear anything about the missing of Km. Mamtesh prior to the extra judicial confession made by the appellant. This witness has also stated' that he did not inform Sunder Lal - father of Km. Mamtesh with regard to the extra judicial confession made by the appellant. This witness has also stated that he did not hear anything about the missing of Km. Mamtesh prior to the extra judicial confession made by the appellant. This witness has also stated' that he did not inform Sunder Lal - father of Km. Mamtesh with regard to the extra judicial confession made by the appellant. Therefore, the testimony of this witness also does not inspire any confidence. 43. Keeping in view the entire circumstantial evidence and after scrutinizing the every aspect of the matter very cautiously, we do not find anything incriminating in this case which may lead to a hypothesis of the guilt of the accused/appellant. The circumstances in this case do not conclusively prove themselves into a complete chain unerringly pointing to the guilt of the accused/ appellant - Zakir. Mere moral conviction or a suspicion howsoever grave and strong, cannot take the place of proof. Therefore, on the basis of the overall assessment of the entire circumstances of the case we are of the view that the prosecution could not establish the guilt of the accused/appellant - Zakir beyond reasonable doubt. 44. We accordingly set aside the conviction and sentence of the accused/ appellant Zakir under Sections 364;302, 201 I.P.C. The impugned judgment and order passed by Additional Sessions Judge, Roorkee dated 27-11-1993 is hereby set aside. 45. Thus, the appeal on behalf of the appellants - Rashid and Zakir is allowed. However, the conviction and sentence imposed against the accused/ appellant Zakir is concerned, the same is set aside. At the same time, the appeal on behalf of the appellant Rashid is also allowed and the entire trial relating to the appellant Rashid is quashed as his case should have been dealt with in accordance with the provision of U.P. Children Act (1 of 1952).