JUDGMENT : ARUN MISHRA, J. 1. Appellant has come up in this appeal on being convicted for commission of an offence under sections 364, 302 and 201 of Indian Penal Code. He has been acquitted of commission of an offence under section 377, Indian Penal Code. Sentence of 10 years R.I. and a fine of Rs. 1,000 has been imposed for commission of an offence under section 364, Indian Penal Code, life imprisonment and a fine of Rs. 2,000 under section 302, Indian Penal Code and R.I. of 5 years and fine of Rs. 500/- has been imposed under section 201 of Indian Penal Code, in default of payment of fine, accused/appellant has to undergo imprisonment for three months, six months and one month respectively. 2. Prosecution case in short is that on 19-9-1996, Rahul aged 10 years, a student of Class Vth, was playing along with other children after school time was over. Sheelabai had gone to attend her service and thereafter she went to the Doctor, when she came back, Rahul was not found in the house, Rahul was searched in the Colony but he could be traced on the next day that is on 20-9-1996 a report was lodged at 1.40 PM as to missing of Rahul. PS, Kotwali was informed telephonically by an unknown person that dead body of a child was lying in the Septic Tank situate in the premises of a vacant house in the Forest Colony. From the Septic Tank, dead body was taken out, it was identified to be of Rahul by Sheelabai and Devendra, mother and uncle of deceased. His half pant was not found on the body. On the basis of information furnished by the accused/appellant, half pant and slippers of deceased Rahul were seized from the kitchen of the house of Forest Colony. It was possible to enter into the house by opening the rear door from outside. In the post-mortem report cause of death could not be ascertained as body has decayed, it was not possible to pin point the cause of death. Accused was involved in yet another case under section 377, Indian Penal Code in which he was convicted, thus, a charge-sheet was filed for commission of offence under sections 302, 201, 377 and 363 of Indian Penal Code. Accused was involved in yet another case under section 377, Indian Penal Code in which he was convicted, thus, a charge-sheet was filed for commission of offence under sections 302, 201, 377 and 363 of Indian Penal Code. Accused was ultimately charged for commission of offence under sections 364, 377, 302 and 201 of Indian Penal Code. 3. Accused abjured the guilt and contended that he had been falsely implicated. 4. Trial Court has convicted the appellant and sentenced him as aforesaid, aggrieved by his conviction and sentence, this appeal has been preferred. 5. Shri Siddharth Datt, learned counsel appearing for appellant has submitted that in the instant case the conviction is based on circumstantial evidence, chain of circumstances connecting the accused for commission of offence is incomplete. The impact and effect of last seen with the accused in the facts of his case is immaterial as accused used to play with the deceased even as per the prosecution version. There was a gap of 5 days, they were last seen as per prosecution case on 19-9-1996 whereas dead body was found on 23-9-1996, it was possible that deceased would have remained in the company of some other person during the intervening period as in the post-mortem report time of death was indicated in between 72 hours to 120 hours. He has relied upon decisions of Apex Court in Eradu and Others vs. State of Hyderabad, AIR 1956 SC 316 , Bodhraj alias Bodha and Others vs. State of Jammu and Kashmir, (2002) 8 SCC 45 and Jaswant Gir vs. State of Punjab, (2005) 12 SCC 438 . He has further submitted that recovery as per information furnished under section 27 of Evidence Act has not been proved, witnesses of the information memo Yakub (PW-8) and Gulam Hussain (PW-9) have not supported the prosecution case. Recovery of half pant and slippers was not such to complete the chain of circumstances so as to fasten the guilty upon the accused appellant, particularly when body was found from the Septic Tank situated in the same premises, consequently accused deserves to be acquitted. Recovery of half pant and slippers was not such to complete the chain of circumstances so as to fasten the guilty upon the accused appellant, particularly when body was found from the Septic Tank situated in the same premises, consequently accused deserves to be acquitted. The trial Court has acquitted the appellant under section 377, Indian Penal Code, thus, conviction of appellant for previous commission of an offence under sections 363, 377, 307 and 201 of Indian Penal Code in S.T. No. 230/96 as per judgment delivered on 31-1-1997 could not have been taken into consideration. Similarly pendency of yet another case in the Court of CJM, Khandwa for commission of a similar offence under sections 363, 377, 506 and 201 of Indian Penal Code could not have been taken into consideration. Thus, in the facts and circumstances of the case as guilt has not been established beyond reasonable doubt, the appellant deserves to be acquitted. 6. Shri S.K. Rai, learned GA appearing for State has submitted that there is evidence of last seen in the instant case, witnesses are independent and after the accused was last seen in the company of accused, deceased Rahul was not seen thereafter by anybody, the recovery of half pant and slippers as per the seizure memo (P.3) has been duly proved by Jaswant (PW-6) and Ashok (PW-17). Recovery was made as per information memo (P/7) furnished under section 27 of Evidence Act. Accused was involved in two other similar cases of taking away small child and committing sexual intercourse and trying to cause their death in the similar manner, though in the instant case commission of an offence under section 377, Indian Penal Code has not been established due to decay of body, it was not possible to ascertain the cause of death and whether an offence under section 377 was committed or not. Thus, accused was given benefit of doubt under section 377, Indian Penal Code. Circumstance of last seen assumes importance in the facts of this case coupled with the recovery of clothes and slippers of deceased at the behest of accused/appellant. Consequently, conviction and sentence recorded by trial Court is a reasonable view adopted by trial Court, no case for interference in this appeal is made out. 7. Circumstance of last seen assumes importance in the facts of this case coupled with the recovery of clothes and slippers of deceased at the behest of accused/appellant. Consequently, conviction and sentence recorded by trial Court is a reasonable view adopted by trial Court, no case for interference in this appeal is made out. 7. The main question for consideration is whether chain of circumstances is complete in the instant case so as to fasten the guilt upon the accused/appellant. No doubt about it that evidence of last seen by itself may not be enough so as to fasten the guilt in the facts of instant case, but for the recovery that has been made at the instance of accused in the instant case. We have to consider whether the witnesses of last seen as well as of seizure are reliable and seizure has been proved to have been made at the instance of accused, whether articles seized belonged to deceased Rahul. It is clear that deceased used to play with accused Dhamma alias Dharmendra. After he came back from school on 19-9-1996 and went to play near the house, he was not traceable thereafter. 8. There is statement on record of Chandrabai (PW-2) to the effect that Dharmendra and Rahul used to play together along with other children. Sheelabai (PW-15) has stated that her son Rahul was not in the house when she came back to the house, he was wearing a half pant and blue shirt. Asha Acharya (PW-16) has stated that she saw Rahul playing in the playground at about 6.30 PM along with other children. Dhamma alias Dharmendra was also sitting on parapet thereafter she saw that Dharmendra accompanied with Rahul going towards the temple situated in Sarvodaya Colony. She had informed this fact to mother of Rahul. She knew Dharmendra very well. Nothing has come in the cross-examination of Asha Acharya (PW-16) an independent witness so as to disbelieve her. Ashok (PW-17), a resident of Sarvodaya Colony, has also stated that before four days of the date on which dead body was found he had seen accused Dharmendra in the company of deceased Rahul at about 7 PM. They both were going together. Ashok (PW-17), a resident of Sarvodaya Colony, has also stated that before four days of the date on which dead body was found he had seen accused Dharmendra in the company of deceased Rahul at about 7 PM. They both were going together. He has also stated that he did not entertain a doubt as to intention of Dharmendra, this statement is truthful as there was no reason to entertain any doubt, it was not unusual affair for a boy to play with other children. He was not having any grudge against accused Dharmendra. No doubt about it that evidence of last seen by itself may not be enough so as to establish the guilt of accused/appellant as dead body was found in decayed condition after four days when they were last seen. 9. In Bodhraj alias Bodha and Others vs. State of Jammu and Kashmir (supra), the Apex Court has observed that theory of last seen together will come into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small, that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to establish that deceased was last seen with the accused when there is a long gap possibility of other persons coming in between exist. In the absence of any other positive evidence to conclude that the accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. Apex Court in Jaswant Gir vs. State of Punjab (supra) has observed that merely last seen version by itself does not lead to irresistible conclusion that appellant and his companion had killed the deceased and thrown the dead body in a culvert, it cannot be presumed that appellant and his companion were responsible though grave suspicion arise against the accused. There was considerable time gap between last seen and the date on which dead body was found. There is no dispute with the propositions and we fully agree that merely on the basis of last seen evidence in the instant case, we cannot base the conviction. There was considerable time gap between last seen and the date on which dead body was found. There is no dispute with the propositions and we fully agree that merely on the basis of last seen evidence in the instant case, we cannot base the conviction. However, evidence of last seen in this case is reliable, consequently, it becomes significance whether recovery of half pant and slippers of deceased was made at the instance of accused/appellant. 10. Coming to question of seizure, an important aspect in this case, when we consider recovery made pursuant to the information memo under section 27 of Evidence Act, drawn by Baldev Singh Thakur (PW-24), Investigating Officer, Recovery was made in presence of Jaswant (PW-6) and Ashok (PW-17), it was disclosed in the information memo that half pant and slippers were lying in the kitchen of the house. Pursuant thereto accused accompanied the police to the Forest Colony in an unoccupied house of SDO, half pant and slippers were seized as per seizure memo (P.3). The seizure was made on 29-9-1996, the articles were put for identification, identification was done, articles were correctly identified to be of Rahul by Sheelabai (PW-15) and Devendra (PW-14), memo (P/2) of identification proceedings was drawn by Naib Tehsildar G. P. Kude (PW-5), he has proved the identification memo (P.2). Jaswant (PW-6) a resident of Sarvodaya Colony has clearly stated that accused opened the door and thereafter at his instance recovery of half pant and slippers was made and a seizure memo (P.3) was drawn, he has proved his signature in portion “A to A” he has withstood the cross-examination and has clearly stated that accused first went inside and he pointed out the half pant and slippers of deceased. Thereafter recovery was made and seizure memo was drawn. Ashok (PW-17) has also stated that at the instance of accused, seizure of half pant and slippers was made. Thus, seizure of the aforesaid articles at the instance of accused has been proved. Baldav Singh Thakur (PW/24) has also clearly stated that he has drawn information memo (P/7) and seizure memo (P.3). Ashok (PW-17) has also stated that at the instance of accused, seizure of half pant and slippers was made. Thus, seizure of the aforesaid articles at the instance of accused has been proved. Baldav Singh Thakur (PW/24) has also clearly stated that he has drawn information memo (P/7) and seizure memo (P.3). In the circumstances the fact that Yakub (PW-8) and Gulam Hussain (PW-9), witness of drawing information memo have not supported furnishing of information is of no consequence, no dent is caused in the prosecution case with respect to seizure, Yakub (PW-8) has admitted that he has signed the information memo (P.7), his signatures are in portion “A to A” similar is the statement of Gulam Hussain (PW-9). 11. In the facts of this case, as recovery of half pant and slippers of deceased has been proved coupled with the fact that he was last seen in the company of accused, in our opinion, circumstances unerringly indicates towards guilt of accused/appellant. In the post-mortem report it was not possible to give an opinion as to cause to death due to decay of body, consequently, accused had been acquitted for commission of an offence under section 377, Indian Penal Code. Motive in such a case is not material. In the case of such a nature where there was decay in body, the evidence of last seen as well as of recovery of half pant and slippers assumes significance. Articles seized have been identified and proved to be of deceased Rahul by Sheelabai (PW-15) and Devendra (PW-14). Even if we ignore the conviction of appellant for commission of yet another similar offence under sections 363, 377, 307 and 201, Indian Penal Code in ST No. 230/96 as per judgment dated 31-1-1997 and even ignoring pendency of yet another case for commission of an offence under sections 363, 377, 506 and 201 of Indian Penal Code, in our opinion, in the offence of the nature as in the instant case aforesaid could only be the evidence and that has been adduced by prosecution, same is found to be reliable so as to base conviction of the appellant under sections 364, 302 and 201 of Indian Penal Code. Section 364 of Indian Penal Code lays down whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. The view taken by the trial Court is found to be based on evidence and reasonable one. The guilt has been established beyond periphery of doubt by clinching circumstantial evidence. 12. We place on record the appreciation for the assistance rendered by Shri Siddharth Datt, learned counsel for accused on behalf of Legal Services Committee of this Court. 13. Consequently, we do not find any ground to interfere in the conviction and sentence imposed by the trial Court. Appeal being devoid of merit is hereby dismissed.