JUDGMENT A.K. Shrivastava, J. -- 1. The judgment passed in this appeal shall also govern the disposal of connected Criminal Appeal No. 1/2003 (Brijmohan @ Banti v. State of M.P.), since the appellant of that appeal was also tried alongwith the appellants of this appeal and learned trial Court by common judgment convicted all of them. 2. Feeling aggrieved by the judgment of conviction and order of sentence dated 24.12.2002 passed by learned Forth Additional Sessions Judge, Morena, in sessions trial No. 56/2000, convicting the appellants as well as appellant of connected criminal appeal under sections 364-A, 302 in the alternative 302/34 and 201 in the alternative 201/34 of IPC and thereby sentencing them to suffer imprisonment as mentioned in the impugned judgment, the appellants of this appeal and appellant of connected criminal appeal No. 1/2003 have preferred these appeals under section 374 (2) of the Code of Criminal Procedure, 1973. 3. In brief the case of prosecution is that on 20.9.1999 at 12.30 in the afternoon the son of Narendra Yadav having age of 3-4 years, namely Sonu (hereinafter referred to as the deceased) was playing outside his house alongwith other children. When other children went to their school, the deceased came inside his home and again came out to play, but later on, he was not found. The family members of the deceased searched him throughout the day, but were unable to find him. At 11.10 p.m. complainant Narendra Yadav lodged the report in police station, Civil Lines, Morena, which was registered as missing case No.8/1999. In between, on telephone some unknown persons informed the complainant and his family members that they have kidnapped the deceased and also made demand of ransom from them. This fact was also disclosed by complainant Narendra Yadav to the police station, as a result of which, on 23.9.1999, a case was registered at crime No. 308/1999 against the unknown persons under section 364A of IPC. 4. The investigating agency prepared the spot map and by taking the clue of tape-recorded version of miscreants from their telephonic calls, tried to catch them. 4. The investigating agency prepared the spot map and by taking the clue of tape-recorded version of miscreants from their telephonic calls, tried to catch them. During the investigation on 27.11.1999 accused persons Brijmohan alias Banti, Rajiv alias Pappu, Ramroop and Vasudev alias Vasu were arrested and on the basis of their memorandum statements leading to recovery, skeleton of a child nearby the pond of Jauri village and one ear ring were seized from a plastic gunny bag. One T-shirt was also seized which was laying nearby the said gunny bag containing the skeleton. In presence of the witnesses, different Panchnamas of these articles were prepared and they were seized. The bones of the deceased were sent for examination in medico legal institute at Bhopal. In the report of said institution, the death was found to be homicidal, however, the sex of the deceased could not be disclosed. 5. In furtherance to its investigation, acquitted co-accused Anil was also arrested on the basis of memorandum statement of accused Brijmohan and one Atlas cycle was seized from him. 6. After the investigation was over, a charge-sheet was submitted in the committal Court which committed the case to the Court of Sessions and from where it was received by the trial Court for the trial. 7. The learned trial Judge on the basis of allegations made in the chargesheet against the accused persons, who are six in number, framed charges, details of which are mentioned in para 1 of the impugned judgment. Needless to emphasis, all the accused persons, including the appellants, abjured their guilt and pleaded complete innocence. 8. In order to bring home the charges, prosecution examined as many as 11 witnesses and placed Ex. P/1 to Ex. P/26, the documents on record. The defence of appellants is of false implication and the same defence they set forth in their statements recorded under section 313 of CrPC. However, in support of their defence, they did not choose to examine any witness. 9. The learned trial Judge on the basis of evidence placed on record, came to hold that charges which we have mentioned hereinabove are proved against the appellants, as a result of which, convicted them and passed different sentences which are mentioned in the impugned judgment. 10. 9. The learned trial Judge on the basis of evidence placed on record, came to hold that charges which we have mentioned hereinabove are proved against the appellants, as a result of which, convicted them and passed different sentences which are mentioned in the impugned judgment. 10. In this manner, this appeal and connected criminal appeal No. 1/2003 have been preferred by the appellants assailing their judgment of conviction and order of sentence. 11. The contention of learned counsel for the appellants is that there is no eye-witness to the incident and the conviction has been based solely on the recovery of skeleton of the deceased at the alleged instance of the appellants. The contention of learned counsel is that looking to the evidence of witnesses of seizure of skeleton and other articles namely Virendra Singh (PW-2) and Atar Singh (PW-5) as well as of investigating Officer Chandrapal Singh Tomar (PW11 ), it is difficult to place reliance on the recovery for the simple reason that the recovery is made from an open place which is accessible to everybody, and therefore, the recovery is also highly doubtful. It has been further contended by learned counsel that testimony of complainant N arendra Singh Yadav (PW -4) is also quite relevant. In support of his contention, learned counsel has placed heavy reliance on the decision of Supreme Court Trimbak v. State of M.P., AIR 1954 SC 39 , which has been placed reliance by learned Single Bench of this Court in Bhagirath v. State, 1958 JLJ 900 . Learned counsel has also placed reliance on some more decisions, they are Bakhshish Singh v. State of Punjab, 1971 CAR 169 (SC); Makhan Singh v. State of Punjab, 1988 (Supp) SCR 526; Prabhoo v. State of Uttar Pradesh, AIR 1963 SC 1113 ; and Mani v. State of Tamil Nadu, AIR 2008 SC 1021 . On these premised submissions, it has been argued by learned counsel that the charges are not proved against the appellants, and therefore, by allowing this appeal of the appellants, who are languishing in the jail for last eleven years as they were arrested on 27 .11.1999, they be acquitted and released from the jail. 12. On the other hand, Shri Bansal, learned Public Prosecutor, argued in support of the impugned judgment. 13. 12. On the other hand, Shri Bansal, learned Public Prosecutor, argued in support of the impugned judgment. 13. Having heard learned counsel for the parties, we are of the considered view that this appeal and connected criminal appeal No. 1/2003 deserves to be allowed. 14. In the present case, there is no direct evidence against the appellants and prosecution has based its case totally of circumstantial evidence. The law in regard to circumstantial evidence is now well settled. The Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 has laid down what are the tests when a case rests on circumstantial evidence, they are :- (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the• accused and must show that in all human probability the act must have been done by the accused. The same tests have been adopted by the apex Court in its later decisions K. V. Chacko alias Kunju v. State of Kerala, (2001) 9 SCC 277 and Ashish Batham v. State of M.P., 2002 (2) JLJ 373 (SC). In Ashish Batham's case in para 6 it has been categorically held by the Supreme Court that when the case rests on circumstantial evidence, the Court should be quite aware and should not adopt conjecture and suspicion as to be a strict legal proof. In this decision, the Supreme Court has placed heavy reliance on its land mark decision Hanumallt Govind Nargulldkar and another v. State of Madhya Pradesh, AIR 1952 SC 343 , wherein emphasis has been put on the warning given by Baron Alderson to the jury in Reg. In this decision, the Supreme Court has placed heavy reliance on its land mark decision Hanumallt Govind Nargulldkar and another v. State of Madhya Pradesh, AIR 1952 SC 343 , wherein emphasis has been put on the warning given by Baron Alderson to the jury in Reg. v. Hodge, [( 1838) 2 Lewin 227], which reads thus :- "The mind was apt to take a pleasure in adapting circumstances to one another, and even in starining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete." "It is well to remember that in case where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and .it must be such as to show that within all human probability the act must have been done by the accused." 15. By keeping the above-said principles in our mind as well as the warning given by Baron Alderson in Reg. v. Hodge (supra) that in the case of circumstantial evidence, the Court should be aware and should not permit the conjectures and surmises to take place of legal proof, we shall now examine the evidence of the prosecution. 16. The only circumstance, which has been placed reliance by prosecution in the present case, is the recovery of skeleton at the instance of appellants as well as the recovery of a T-shirt of the deceased which was lying nearby the skeleton. We shall now examine how far the prosecution was successful in proving the recovery. 17. 16. The only circumstance, which has been placed reliance by prosecution in the present case, is the recovery of skeleton at the instance of appellants as well as the recovery of a T-shirt of the deceased which was lying nearby the skeleton. We shall now examine how far the prosecution was successful in proving the recovery. 17. In the present case, memorandum statements under section 27 of the Evidence Act of appellants are Ex. P-4, P-5 and P-6 and that of Brijmohan appellant of connected criminal appeal is Ex. P-3 and these memorandum statements are dated 27.11.1999. The witnesses are Virendra Singh (PW-2) and Atarsingh (PW-5). On the basis of memorandum statement, skeleton of a child having head and some bones in a gunny bag was seized nearby the dry bank of pond of Jauri village. The seizure memo is Ex. P-10. The seizure memos of ear ring; stone boulders, one grey colour T-shirt of a child; one electric wire; and the bunch of hair of the head of the deceased were also prepared. The witnesses to all seizure memos are also Virendra Singh (PW-2) and Atarsingh (PW-S). Apart from these memorandum statements, the gunny bag was also opened in presence of these witnesses. A Panchnama (Ex. P-7) in that regard was prepared. All these articles were seized on 27.11.1999, hence, according to us, the evidence of Virendra Singh (PW-2) and Atarsingh (PW-5) is quite material. Apart from the testimony of these two witnesses, the evidence of investigating Officer Chandrapal Singh Tomar (PW-11) is also quite relevant. 18. On going through the evidence of Virendra Singh (PW-2), we find that only information was supplied by Brijmohan, appellant of connected criminal appeal, that in a plastic gunny bag the dead-body of the deceased is lying at the outskirts nearby the pond of the village and similar type of statement has been given in respect to the appellant of this case. In para 5 of the examination-in-chief, this witness has categorically stated that when this witness alongwith the investigating agency reached nearby the pond, the appellants carried them at a place where the gunny bag was lying having holes and from those holes the bones were coming out and they were exposed. The gunny bag was torn and skeleton of a child was taken out from it. The gunny bag was torn and skeleton of a child was taken out from it. One wire was also found wrapping the neck as well as one earring was also found inside the gunny bag. One T-shirt of a child was also lying openly nearby the gunny bag. Similar type of the statement is that of the Atar Singh (PW- 5). This witness (PW- 5) also says that in the police Station appellants supplied information to the inspector that dead-body of a child is lying inside the plastic gunny bag at the outskirts of the village nearby a pond and at the instance of appellants a plastic gunny bag was recovered in which the skeleton of a child, electric wire and one earring was found which was sticking at the ear place of the skeleton. It is pertinent to mention here that nowhere these independent witnesses are saying that appellants told that they have kept the dead body of the deceased inside a plastic gunny bag and they will get it recovered. Whatever the evidence these witnesses have deposed is that anyhow they got information or we may infer that it was in their knowledge that the skeleton inside a gunny bag is lying nearby the pond. According to us, there is material distinction turning the fate of the case between the two type of statements. In the former type of the statement, we can infer that accused persons were having possession of the dead-body for some time and they hide the dead-body nearby the pond, while in the later case, anyhow they got information that the skeleton of the deceased is lying nearby the pond. If the evidence would have been adduced in consonance to the first instance, it could be one of the material circumstance to indicate that appellants are having some connection with the offence, but in the later instance, this possibility is also lost. The Supreme Court in Trimbak (supra) has dealt similar type of situation and laid down the law of the land. 19. The evidence of investigating Officer Chandarpal Singh Tomar (PW. 11) is also in the same manner and fashion. The Supreme Court in Trimbak (supra) has dealt similar type of situation and laid down the law of the land. 19. The evidence of investigating Officer Chandarpal Singh Tomar (PW. 11) is also in the same manner and fashion. In para 3 of his testimony, Investigating Officer has stated that in presence of witnesses Virendra Singh (PW-2) and Atarsingh (PW-5), appellants gave information that a dead-body of a child having age 3 1/2 years is lying near by the pond and on the basis of such memorandum statement, at the instance of appellants nearby the pond they found one gunny bag in which the skeleton was found and nearby the said gunny bag, a T-Shirt of the deceased was also lying. Thus, from the statement of Investigating Officer also, we are unable to infer that appellants were having possession of the dead body of the deceased at some point of time, and therefore, according to us, the recovery part of the skeleton is also not helpful to the prosecution. 20. Apart from what we have held hereinabove. It will be quite relevant to mention here that gunny bag in which the skeleton of the deceased was found was lying at an open place freely accessible to everybody as well as the T-shirt was also lying separately at an open place, and therefore, in these state of affairs, such type of recovery would not be helpful for the prosecution. In this regard, we may place reliance on the decisions of Supreme Court Makhan Singh (supra) and Mani (supra). 21. Except this evidence, there is no other evidence against the appellants. Looking to the quality of evidence of recovery, if we will rely on such type of recovery, it would amount to allow conjectures and surmises as a strict legal proof which is not permissible in the eye of law as held by the Supreme Court in Hanumant Govind Nargundkar which is based on the warning given by Baron Alderson to the jury in Reg. v. Hodge (supra). 22. For the reasons stated hereinabove, we are unable to uphold the conviction of the appellants. Eventually, by allowing this appeal and connected criminal appeal No. 1/2003, we hereby acquit the appellants as well as Brijmohan, appellant of connected criminal appeal, from all the charges. They are in jail they be set at liberty forthwith if not required in any other case. Eventually, by allowing this appeal and connected criminal appeal No. 1/2003, we hereby acquit the appellants as well as Brijmohan, appellant of connected criminal appeal, from all the charges. They are in jail they be set at liberty forthwith if not required in any other case. Let a copy of this judgment be kept in the record of connected Criminal Appeal No. 1/2003 [Brijmohan @ Banti v. State of M.P.].