JUDGEMENT Mridula Mishra, J. 1. Challenge in this appeal is to the judgment and order dated 29.9.2004/30.9.2004 passed by Additional Sessions Judge, Fast Track Court No. III, Vaishali at Hazipur in Sessions Trial No. 88 of 2003, whereby the sole Appellant has been convicted under Section 302/34 of the Indian Penal Code and 374/34 of the Indian Penal Code as well as 201 of the Indian Penal Code. The Appellant has been sentenced to undergo R.I. for life for his conviction under Section 302/34 of the Indian Penal Code and fine of Rs. 5,000/-, in default of payment of fine, S.I. for six months. For conviction under Section 364/34 of the Indian Penal Code, he has been sentenced R.I. for seven years with fine of Rs. 2000/- and in default of payment of fine, S.I. for two months. The Appellant has been sentenced R.I. for three years for conviction under Section 201 of the Indian Penal Code with fine of Rs. 1,000/-, in default of payment of fine, S.I. for one month. All sentences are directed to run concurrently. : 2. Background facts leading to the trial of the Appellant as projected by the prosecution are as follows: 3. On the basis of this fardbeyan Baligaon P.S. case No. 36 of 2002 was instituted on 14.9.2002 at 4 A.M. under Section 364/34 of the Indian Penal Code against two named accused persons and subsequently Section 302/201 of the Indian Penal code was added on 16.9.2002, on recovery of the dead body of the kidnapped boy, namely, Rafi Ahmad alias Ganni. 4. There is no eye-witness to the occurrence and the case is presumably based on circumstantial evidence. Circumstances, to connect two accused persons with the alleged crime, as appearing in the evidence of witnesses is that accused persons were seen going towards the house of informant, when P.W.10 and his wife had gone to bring milk. This circumstance has been connected with those three incidents, which according to P.W.10 and P.W.7, could give motive to Saiyed and Parvez, for committing the offence. 4. The case was investigated by Shambhu Saran Prasad Singh (P.W.14), who took up investigation of the case and interrogated witnesses. This circumstance has been connected with those three incidents, which according to P.W.10 and P.W.7, could give motive to Saiyed and Parvez, for committing the offence. 4. The case was investigated by Shambhu Saran Prasad Singh (P.W.14), who took up investigation of the case and interrogated witnesses. P.W. 14 in his deposition has stated that on 13.9.2002 while he was posted as Officer In-charge of Baligaon P.S., he received a telephonic information at 10 clock in the night, regarding missing of a boy at village Fatehpur Kawadih. He made entry of Sanha No. 236 and proceeded for village Fatehpur Kabadih, in order to verify the message received through telephonic information. He reached at the house of Razi Ahmad in the village, recorded his fardbeyan, and took up investigation. The recorded fardbeyan was forwarded to the police Station for institution of First Information Report. He made search for the accused persons at different places, recorded statement of the wife of the informant Kaushar Jehan (P.W.7) and immediately thereafter recorded statement of the daughter of informant, namely, Rafat Jeha ( P.W.9). He made inspection of the place of occurrence which is the house of the informant, from where the son of the informant had been kidnapped. Thereafter he recorded statement of Md. Abu Murtaza alias Abu Babu ( P.W.3) and Zahirul Haque ( P.W.4). The Investigating Officer ( P.W.14) has not disclosed in his evidence that on which date and at what time he recorded the statement of the wife of the informant ( P.W.7), daughter of the informant (P.W.9) Binda Paswan,(P.W.1) (P.W.3) Md. Abu Murtaza and (P.W.4) Md. Zahirul Haque. But from his evidence, it transpires that immediately after recording the fardbeyan and before the institution of FIR he recorded restatement of informant and thereafter recorded evidence of all witnesses. The Investigating Officer submitted charge-sheet on 15.11.2002. From evidence of P.W.14, it also transpires that since suspicion was raised by the informant against Md. Syed and Parwez, as such he made a search for these two persons. He apprehended Parwez but the date of arrest has not been disclosed in his deposition. Parwez was brought to the police station for interrogation and in course of interrogation he found that only when Syed is also arrested, everything regarding the occurrence will be clear. On the basis of secret information, he raided the house of Md. He apprehended Parwez but the date of arrest has not been disclosed in his deposition. Parwez was brought to the police station for interrogation and in course of interrogation he found that only when Syed is also arrested, everything regarding the occurrence will be clear. On the basis of secret information, he raided the house of Md. Syed, arrested him and in course of interrogation both of them accepted their guilt and made confession. Confessional statement of Md. Syed and Parwez was recorded, which was signed by them. They also became ready to show the place where dead body of the kidnapped boy has been concealed. Arrested accused persons were brought to the village Fatehpur Kawadi. On their indications and in presence of villagers the dead body of kidnapped boy was recovered from a ditch in the paddy field of Azizur Rahman, which was concealed under paddy straw. Seizure list was prepared. Inquest report was also prepared. The dead body was sent for post mortem. 5. In para 32 of his deposition P.W.14 has admitted that First Information Report was instituted on 14.9.2002 at 4 A.M. He had started investigation before institution of the First Information Report and the restatement of informant was recorded. In Para 47 of his cross-examination a suggestion was given to him that confessional statement of Md. Syed and Parwez are ante-dated. 6. They were arrested on 15.9.2002 and brought to the police station but intentionally the date of their arrest has been mentioned as 14.9.2002. He has admitted in his deposition that on confessional statement of accused persons, he has not taken signature of any independent witness, which is essential. He has failed to explain as to why on confessional statement of Saiyed date has been mentioned as 15.12.2002 instead of 15.9.2002. 7. Mr. Ashok Jung Bahadur, Senior Counsel, representing the Appellant has submitted that right from the point of recording of the fardbeyan of the informant till submission of charge-sheet, the investigation as shown in the case diary is nothing but the master craftsmanship and ingenuinity of the police Investigating Officer. Though, P.W.14 has deposed that the dead body of the deceased was recovered on the basis of confessional statement of accused but the fact is that the dead body was recovered earlier to the recording of the confessional statement. Though, P.W.14 has deposed that the dead body of the deceased was recovered on the basis of confessional statement of accused but the fact is that the dead body was recovered earlier to the recording of the confessional statement. Confessional statement was ante-dated and the two named accused persons, were falsely implicated in this case giving some motive to them on the basis of some remote incidents, not witnessed by any one except P.W.7. Everything has been done at the instance of Mukhia of Gram Panchayat, Md. Asgar Alam ( P.W.5) and Md. Zahirul Haque (P.W.4), who is sarpanch of Gram Panchayat, Md. Syed was falsely implicated, since he did not support them in the election for the post of Mukhia, in which P.W.5 and son of P.W.4 had contested for the post of Mukhia. Parwez was implicated because he demanded his wages from P.W.4 and P.w.10, for his work, but P.W.4 and P.W.10, being in habit of taking work from him without any payment were not willing to make payment for his work. 8. The prosecution has examined altogether fifteen witnesses to prove the charges framed against the accused. P.W.1 Binda Paswan was the first person, who is said to have been examined by Investigating Officer, immediately after recording of the fardbeyan of P.W.10 and statement of P.W.7 and P.W.9, who are wife and daughter of the informant. This Binda Paswan has been declared hostile as he stated that he knew nothing about the occurrence. Izirahul Haque P.W.2 is the witness who had signed the inquest report, prepared on recovery of the dead body of the child. P.W.2 has stated that he heard about the missing of the son of the Informant aged about four and half years. He also heard that the kidnapped boy was killed. He saw the dead body of the kidnapped boy, when it was recovered. Inquest report was prepared and he put his signature on inquest report (Ext.1). He has shown his ignorance about the name of such persons who spread the news in the village regarding kidnapping of the boy. He has also shown his ignorance about the identity of such persons who has killed the boy. He did not remember the date on which he had gone to the Police Station. 8. Md. Abu Murtaza alias Abu Babu is P.W.3. He has also shown his ignorance about the identity of such persons who has killed the boy. He did not remember the date on which he had gone to the Police Station. 8. Md. Abu Murtaza alias Abu Babu is P.W.3. As per his deposition on 13.9.2002 at 6-6.15 in the evening while he was sitting at his door, he saw informant Razi Ahmad ( P.W.10) and his wife ( P.W.7) going to Budhans House for bringing milk. At that very time, he saw accused Parwez going towards the house of the informant. Thereafter P.W.3, went to his field where some labrourers were working, when he came back, he saw informant and his wife returning back to their house. The Informant and his wife, coming back to their house, found their four and half years son missing. They started searching for him but the boy could not be located. They suspected involvement of Md. Saiyed in kidnapping of their son, since one week earlier P.W.7 had some altercation with him, as he was not allowed to watch Television. Md. Syed had twisted right hand of informants wife and fractured one of her finger, as she did not allow him to take jack fruit. Fractured finger had to be plastered. Earlier Md. Syed had very good relationship with the informant and his son was very attached to him, since the missing son of the informant could not be located, as such they became suspicious of this fact that he has been kidnapped for killing. P.W. 3 in Para 4 has stated that the Investigating Officer came to the village in the morning of 15.9.2002 alongwith Mukhia Asgar ( P.W.5), Zahrul Haque ( P.W.4) and P.W. 3 also accompanied them. Two accused persons Md. Syed and Parwez were also with the Investigating Officer. They pointed out the ditch in the paddy field of Azzizur Rahman where the dead body had been concealed. The dead body was taken out from the ditch,in their presence, a seizure list (Ext.2)was prepared on which he put his signature, and signature of P.W.4 and two accused persons were also taken. This witness has admitted that he is related to informant P.W.10 whose first wife was his sister. From the evidence of this witness, it is indicated that his house is situated at a distance of 4 to 5 Zareeb, from the house of the Informant. This witness has admitted that he is related to informant P.W.10 whose first wife was his sister. From the evidence of this witness, it is indicated that his house is situated at a distance of 4 to 5 Zareeb, from the house of the Informant. This witness has also admitted that he has not seen the accused persons either kidnapping the victim boy or killing him. Statement of this witness was recorded by the Police on 15.9.2002. He has also stated that there was no criminal antecedent of Md. Syed. This witness had also stated in para 23 of his deposition that only when alarm was raised by P.W.10 he come to know that his son has been kidnapped. This witness is a hearsay witness. 9. P.W.4 Md. Zahirual Haque has stated that on 13.9.2002 at 6.30 in the evening, he was going in search of some mechanic. Near the house of Abu Babu ( P.W.3), he saw Md. Syed and Parwez going towards west. He also saw Md. Ganni in the lap of Parwez. These two persons crossed the raod and went towards north. He did not suspect any wrong because earlier also Parwez used to play with the boy. P.W.4 came back after searching Mechanic. In the Night of 13.9.2002, police vehicle came at the village, as such in the next morning he went to the house of Md. Razi Ahmad to find out the reason why police jeep had come. The wife of Md. Razi Ahmad informed him that her son is missing, since previous evening. She had also shown him her fractured finger on which there was a plaster. She informed about her altercation with Md. Syed and threat enhanced by him. She suspected that her son has been kidnapped by Md. Syed. P.W. 3 has not stated that any investigation was done by the Investigating Officer on 14.9.2002 in the village. As per his deposition at 4 A.M. on 15.9.2002 Investigating Officer along with P.W. 4 and P.W.5 came at the orchard of Md. Sageer. P.W.3 was also called there by the investigating Officer. Two accused persons had also been brought by the Investigating Officer. On identification of accused person the dead body of kidnapped boy had been recovered and seizure list prepared, on which P.W.4, and P.W.3 both had put their signatures. His statement was also recorded by the Investigating Officer. Sageer. P.W.3 was also called there by the investigating Officer. Two accused persons had also been brought by the Investigating Officer. On identification of accused person the dead body of kidnapped boy had been recovered and seizure list prepared, on which P.W.4, and P.W.3 both had put their signatures. His statement was also recorded by the Investigating Officer. Deposition of this witness has disclosed that Md. Syed comes from a respectable family. This witness had admitted that though in the night of 13.9.2002 police had come in the village and he came to know about the kidnapping of the son of the informant, he did not go there to enquire and inform that in the last evening he had seen the victim boy going with Parwez and Md. Syed. He has also admitted that the Investigating Officer had called him near the orchard on 15.9.2002, as such he had gone there. A suggestion has been given to him that since Md. Syed had opposed his son in the election as such due to enmity, he has falsely deposed. 10. P.W.5 Md. Asgar Alam is the Mukhia of Bela Dargah Gram Panchayat. He had put his signature on the fard beyan as an attesting witness, which according to P.W.14, the Investigating Officer was recorded in the Night of 13.9.2002 at about 11.30. As per the evidence of P.W. 5 police came at his residence at 4 A.M. on 15.9.2002 and along with the I.O. he came to the orchard. P.W. 5, who is resident of Mauza Rasulpur, has stated that on 13.9.2002 at 7 P.M. in the evening, he had come to village Kawadih, and came to know about the kidnapping of the son of Md. Razi, aged about four and half years. He went to the house of Md. Razi Ahmad, met him and his wife. They narrated before him that on 13.9.2002 at 6 Oclock in the evening they had gone to bring milk, on way, they met Md. Parwez, who was coming towards their house. When they came back after fetching milk from Budhans house, their son was found missing. Their son had been playing at the Verandah, when they had left for fetching mild. They suspected that it might have been done by Md. Syed, since he had some altercation with P.W. 7 on 2.9.2002 Md. Parwez, who was coming towards their house. When they came back after fetching milk from Budhans house, their son was found missing. Their son had been playing at the Verandah, when they had left for fetching mild. They suspected that it might have been done by Md. Syed, since he had some altercation with P.W. 7 on 2.9.2002 Md. Syed had also twisted her finger, due to which finger had to be plastered. Md. Syed had also enhanced threat to them that he will teach them a lesson. P.W. 5, in para 3 of deposition has disclosed that for the first time he met the investigating officer, at 4 A.M. on 15.9.2002, when police came at his residence and brought him to the orchard. The Investigating Officer brought him along with two accused persons and others at the Orchard of Sageer Ahmad, and from a ditch, in the paddy field of Azizur Rahman the dead body of the boy was recovered. Eyes of the deceased were bulging out, his tongue protruded and blood coming out from the mouth and nostrils. Subsequently he came to know that Md. Syed used to take settlement of the orchard of Razi Ahmad but for this year it was settled with some other person. P.W.5 is a hearsay witness, as per his deposition, he has not witnessed either kidnapping of the victim or killing by any one. Whatever he has deposed regarding motive alleged against accused that is on the basis of the disclosure made by the wife of Md. Razi Ahmad. P.W.5 has stated that his statement was recorded by the Police on the day the dead body was recovered. In para 12 of his deposition, this witness had admitted that no complaint had been made by P.W. 10 and P.W. 7 at Gram Panchayat, against Md. Syed regarding twisting of the finger of P.W. 7 or enhancing threat. He has also admitted that prior to this Md. Syed had never been roped in any criminal case. This witness has also admitted in para 14 that on 13.9.2002 he had information regarding the kidnapping of Razi Ahmads son, but at that time suspicion was raised only against Parwez Sah. So far name of Syed is concerned, he came to know only after the arrival of the Police on 15.9.2002. This witness has also admitted in para 14 that on 13.9.2002 he had information regarding the kidnapping of Razi Ahmads son, but at that time suspicion was raised only against Parwez Sah. So far name of Syed is concerned, he came to know only after the arrival of the Police on 15.9.2002. Suggestion has been given to this witness that since, Syed had opposed him in the election, he has falsely deposed against him. 11. P.W.6 Abdul Qyum has stated that on 13.9.2002 at 6.30 P.M., he was coming from Chiknauta Bazar after purchasing some medicines, while returning to his house he saw Md. Syed alongwith Md. Rafi Ahmad alias Ganni, four and half years son of Md. Razi Ahmad. The boy was in the lap of Md. Syed and he was going towards the orchard crossing the road and accused Parwez was also with him. P.W.6 came back to his house. Next day in the morning, he came to know about the kidnapping of the son of Md. Razi Ahmad. On third day, he came to know that dead body of victim boy has been recovered from the orchard. Thereafter he came to the house of Razi Ahmad and knew about the incident. This witness is resident of village Patehpur, which is situated in the district of Muzaffarpur and the place of occurrence is at village Kawadih, within the jurisdiction of Vaishali district. In para 6 of his deposition, P.W.6 has admitted that his house is situated at a distance of half kilometers from the house of informant Razi Ahmad. He has admitted in para 10 of his deposition that there are two roads from Chiknauta to Patehpur, one is pitched road and other is the muddy village road. The road which passes through village Kawadih is the muddy road and during rainy season, it is filled with water. He was cross examined, for the reason that the occurrence had taken place in the rainy season and there was least probability of this witness ofpassing through village Kawadih, while coming from Chiknauta Bazar. P.W. 6 had no reason of witnessing the accused persons taking away the victim boy. This witness has also admitted in para 16 of his deposition that Md. Syed comes from a respectable family. Statement of this witness was also recorded on 15.9.2002 as per his statement in Para 7 of his deposition. 12. P.W. 6 had no reason of witnessing the accused persons taking away the victim boy. This witness has also admitted in para 16 of his deposition that Md. Syed comes from a respectable family. Statement of this witness was also recorded on 15.9.2002 as per his statement in Para 7 of his deposition. 12. P.W.6 in para 15 of his deposition has admitted that he has instituted a case against the father of Md. Syed and contesting if, in connection with purchase of some land from Baiju Mahto. A suggestion has also been given to this witness that due to this enmity he has falsely deposed in the case. 13. Kaushar Jehan ( P.W.7) is the wife of the informant and mother of victim boy Rafi alias Ganni. As per her deposition, on 13.9.2002 at 6.30 in the evening she along with her husband Razi Ahmad had gone to fetch milk from Budhans House. At that time her daughter P.W. 9 was cooking food and her son Md. Rafi @ Ganni was playing at Darwaja. While going, on way she met Parwez, who was going towards her house. She asked Parwez for putting manure in her field and he replied that he will do it tomorrow. When she came back her son was not found there. She asked her daughter, who replied that Ganni had been playing at Darwaja and Parwez might have taken him. Parwez and Syed earlier also used to play with her son. She along with others started looking for her missing boy. They also came to the house of Syed and Parwez and asked about her son. They replied that, they had last seen Ganni at 4 Oclock playing at Darwaja. The boy was searched every where in the village, but he could not be found. She came to know from rumor that someone has heard cry of a child, coming from orchard. She along with her husband went towards orchard but there also did not find any sign of her son. Sayed was displeased with them as they have refused to give him settlement of orchard, though earlier he used to take annual settlement of orchard. She had also stopped him from watching television in her house and that was also one of the reason for his displeasure. Sayed was displeased with them as they have refused to give him settlement of orchard, though earlier he used to take annual settlement of orchard. She had also stopped him from watching television in her house and that was also one of the reason for his displeasure. She had also restrained him from taking away jack fruit, and for that he had twisted her finger and enhanced threat to teach her lesson. For all these incidents, she suspected that Md. Syed and Parwez had kidnapped her son. As per her deposition, dead body of her son could be recovered by the police when it was pointed out by Md. Syed and Parwez, in presence of other witnesses. 15. P.W.7 in para 14 of her deposition has stated that in between her house and the house of Budhan, there is house of Abu Babu (P.W.3) but on the date of occurrence, while going to Budhans House they did not meet P.W.3, since, he was inside the house. This statement of P.W.7 completely contradicts the evidence of P.W.3, who has stated that he saw the informant and his wife going towards Budhan House in the evening. In para 18 P.W.7 has stated that on the date of occurrence subsequent to the missing of her son, she met with Syed and Parwez but she did not have any talk with them, though in the earlier paragraph she herself has stated that she and her husband had gone to the house of Syed and Parwez and asked about their son and they also started searching for the boy along with them. In para 19 and 20, she contradicts herself and states that Parwez and Syed did not assist them in searching of the boy. 14. P.W.8 Shamim Ahmad has stated that the occurrence is of 13.9.2002 at about 6.15 P.M. He was near Masjid when he saw Syed and Parwez coming from eastern side. At that very time, he saw Razi Ahmad and his wife near the house of Abu Babu ( P.W.3), who were going to fetch milk. Razis wife had some talk with Parwez and thereafter he came back to his house. Subsequently he came to know that son of Razi, namely, Ganni aged about four and half years is missing. He was informed by the wife of Tamana that she had heard cry of a child coming from orchard. Razis wife had some talk with Parwez and thereafter he came back to his house. Subsequently he came to know that son of Razi, namely, Ganni aged about four and half years is missing. He was informed by the wife of Tamana that she had heard cry of a child coming from orchard. On this information he went towards orchard, made some search but did not see any one. He came back and went to sleep. Subsequently police came in the village. Next day in the morning again, he went to the orchard, where Asgar P.W.5, P.W.4, and P.W.6 and police were present along with Md. Syed and Parwez. Sayed confessed that at that very place they had assaulted the boy, strangulated him and as directed by Parwez the dead body was put in the orchard in a ditch and concealed under paddy straw. The place, at which boy had been strangulated, some foot prints were seen. He has also stated about the reason for enmity in between Md. Syed and informants wife as per the information given by P.W.7. This witness has admitted his relationship with the informant, who is his cousin, and residing in the same house in which informant and his family resides. The house is partitioned by a wall. As per this witness the police had come in the night at 8.30 P.M of 13.9.2002 and search was made by the police in orchard. He had also gone along with the police to the orchard and Syed was also there with the police. He has also stated that no complain was made by Razi Ahmad against Syed in connection with twisting of her wifes hand and fracturing of her finger. 17. P.W.9 Rafat Jahan is the married daughter of the informant. She was at her parents house and preparing breads at the Verandah of the house. Her parents had gone to Budhans house for fetching milk and her four and half years old brother was sitting at Chowki, and playing alone. Her parents came back within 15-20 minutes, asked about Ganni as he was not found present in the house. Her parents started searching for the child. She also searched him went upto the Mosque, asked from villagers and came back to her house. She came to know from her mother that when she was going for fetch milk, on way she met Parwez. Her parents started searching for the child. She also searched him went upto the Mosque, asked from villagers and came back to her house. She came to know from her mother that when she was going for fetch milk, on way she met Parwez. Her mother suspected that Parwez might have kidnapped her son as such she went to his house, in search of Ganni. There she met with Parwez and Syed, asked them about her son, on which both of them became frightened. They denied to have seen the child. In order to allege motive against accused persons, she has also narrated those incidents and threat enhanced by Syed. She has admitted that Parwez earlier used to work as labourer in her house and Ganni was very attached to him. 15. P.W.9 Rafat Jahan has stated that her statement was recorded by the Investigating Officer in her house. Her mother remained unconscious due to kidnapping of her son for two three days. The deposition of P.W.9 in para 10 is completely in contradiction of the statement of P.W.7 in para 26, where she has disclosed that her statement was recorded by the I.O. twice, once prior to the recovery of the dead body and second time after the recovery of his dead body. In case, she remained unconscious for three days, there was no probability of recording of her statement, before she gained her consciousness. P.W. 9 has also stated that her mother is a Pardanassen lady, and she hardly came out of her house. If that is so, there was no occasion for her to go to Budhans place for fetching milk, meeting Parwez and Syed on way to her house, and going out throughout the village in search of her son. P.W. 7, in complete contradiction of her daughters statement, has deposed that she used to look after cultivation work in absence of her husband. 16. Razi Ahmad is the informant of the case, examined as P.W.10. He has stated that on 13.9.2002 at about 6 P.M. in the evening he along with his wife had gone for bringing milk from the house of Budhan Mian. When he was going for fetching milk, his son Rafi alias Ganni was playing at Verandah and his daughter Rafat Jahan was making breads at the Verandah. Rafi alias Ganni was playing alone at the door on a Chauki. When he was going for fetching milk, his son Rafi alias Ganni was playing at Verandah and his daughter Rafat Jahan was making breads at the Verandah. Rafi alias Ganni was playing alone at the door on a Chauki. P.W. 10, has further stated that while going to fetch milk, he met Parwez, who talked to his wife. His wife had asked him to put fertilizer in the field and Parwez agreed to do it on the next day. He thereafter left for his house. He along with his wife, came back to his house after fifteen minutes and did not find his son inside the house. He made search for his son at different places in the village and asked from villagers about his son. He also enquired from his daughter about Ganni and she replied that he was playing there only. He along with his wife went to the house of Parwez, and met Parwez, his wife and Syed. He enquired from them about his son but they denied to have any knowledge about his where about, as such they came back to their house at about 8 P.M. Thereafter, some one informed about hearing of crying sound of a child coming from orchard. They went to orchard in search of the boy but nothing was found. He has given details of altercation with Md. Syed, in order to alleged motive. In para 12 of his deposition, P.W. 10 has said that when he and his wife did not succeed in locating the child, their suspicion became strong that he has been kidnapped for killing. In para 13 he has stated that on the date of occurrence itself at 11 Oclock in the night, Investigating Officer had come at his residence along with Constables and Chowkidar, as he was informed telephonically by some one, regarding the missing of child. The I.O. had recorded his fardbeyan in the night and Md. Asgar Alam, P.W. 5, had put his signature on it. This statement of P.W. 10 is completely in contradiction of the statement of P.W. 5, who has stated that for the first time he met I.O. on 15.9.2002 at 4 A.M. P.W.10 has stated that the Investigating Officer had arrested Parwez on 14.9.2002 and Syed was arrested by I.O. in the night of 15.9.2002 after interrogating Parwez. This statement of P.W. 10 is completely in contradiction of the statement of P.W. 5, who has stated that for the first time he met I.O. on 15.9.2002 at 4 A.M. P.W.10 has stated that the Investigating Officer had arrested Parwez on 14.9.2002 and Syed was arrested by I.O. in the night of 15.9.2002 after interrogating Parwez. Parwez and Syed had admitted their guilt in their confessional statement and on their disclosure the dead body was recovered by the Police. P.W. 10 got information regarding recovery of the dead body at 70 clock in the morning on 15.9.2002. Thereafter he went to orchard and the dead body was sent for post mortem to Samastipur. In para 17 of his deposition, this witness has admitted that in the same house, he resides along with his co-sharers Shamim, Md. Hasan and others. None of these persons, except Md. Shamim has been examined as witness in the case. In para 24 of his deposition, he has admitted that two persons from Kawadih and one from Paharpur had seen Syed taking away the child, but their names have not been disclosed by him before the police. 20. P.W.11 is Dr. Ravi Bhusan Srivastava, who has conducted post mortem on the dead body of the deceased. P.W.11 had found three ante-mortem injuries on the person of the deceased: (1) Left lower ear lobe sharply cut and detached from the left ear lobe. (ii) Bruise 3"x 1/2" on right side of middle of neck and another bruise 3 1/2"x 2" on left side of middle of neck. Both bruises are depressed. On the dissection-head and neck-echymosis of subcutaneous tissue at the site of injury No. (2) present. Hyoid bone fracture larynx and trachea congested containing froaphy mucous. Scalp and skull intact. Brain tissue and membrane congested and oedemntous. (2) Thorax-as per column No. III abdomen- as per column No. IV, cause of injury- Injury No. I by sharp weapon and Injury No. II by hard and blunt substance like thumb and fingers. Cause of death-Ashyxia and shock caused by Injury No. II. Time elapsed since death- about 24 hours. 17. P.W. 12 Nasrin Bano is the wife of informants nephew. She had stated that on 13.9.2002 at 7.30 in the evening, she heard crying of child coming from orchard side. At the time, she had no knowledge about the disappearance of Ganni. Cause of death-Ashyxia and shock caused by Injury No. II. Time elapsed since death- about 24 hours. 17. P.W. 12 Nasrin Bano is the wife of informants nephew. She had stated that on 13.9.2002 at 7.30 in the evening, she heard crying of child coming from orchard side. At the time, she had no knowledge about the disappearance of Ganni. She came out of her house, hearing the sound of cry and saw Parwez and Syed coming on the bicycle and Firoz scolding his brother Syed. Parwez and Syed thereafter went towards orchard. She proceeded towards village and on way she saw Firoz standing with his bicycle. At that time also crying sound of the child was coming from the side of orchard. Parwez and Syed thereafter came from the orchard and crying sound of child was stopped. Firoz enquired from Syed as to what has happened, and replied that he knows nothing. Thereafter all three of them went towards the village. She came at the house of P.W. 7, her husbands maternal aunt, who informed about the disappearance of Ganni. P.W. 12 informed P.W. 7 about the crying sound coming from orchard side and several villagers went to the orchard for searching the child but nothing was found. She also suspected that Parwez and Syed had killed the child. She has said that her statement was recorded by the Police after two days of the occurrence, but she did not show him the place from where sound of crying was coming. She was also given suggestion that since her husband has been given share in the property by the informant, as such she has falsely deposed in the case. She has admitted that she has not seen any one taking away Gani. She has not seen Parwez lifting Gani from his house. She did not have any personal knowledge regarding settlement transaction in between Syed and informant prior to the occurrence. P.W.13 and P.W.15 are formal witnesses. P.W. 13 has proved letter No. 149 dated 4.7.2002 issued by Subash Ram, who wasIn-charge of Malkhana at Baligaon P.S. which was marked as Ext.5. P.W.15 Md. Sohab Alam has proved a letter dated 4.7.2004 in the handwriting of Sashi Kant Singh, Officer In-charge of Baligaon P.s. This letter was marked as Ext.10. 18. P.W.13 and P.W.15 are formal witnesses. P.W. 13 has proved letter No. 149 dated 4.7.2002 issued by Subash Ram, who wasIn-charge of Malkhana at Baligaon P.S. which was marked as Ext.5. P.W.15 Md. Sohab Alam has proved a letter dated 4.7.2004 in the handwriting of Sashi Kant Singh, Officer In-charge of Baligaon P.s. This letter was marked as Ext.10. 18. Counsel for the Appellant has submitted that as per evidence of P.W. 10 and P.W. 14 fardbeyan was recorded in the night of 13.9.2002 at 11.30 P.M. P.W.14 the Investigating Officer, immediately thereafter forwarded the fardbeyan for institution of formal FIR and FIR of Baligaon P.S. case No. 36 of 2002 was instituted at 4 A.M. on 14.9.2002. P.W.14 has also stated that immediately after recording of fardbeyan and before institution of formal FIR, he interrogated P.W.7 and P.W.9 the wife and daughter of the Informant. He also recorded re-statement of the informant but this evidence of P.W.14 has completely been denied by P.W.7 and P.W.9. As per the evidence of P.W.14, P.W.1 was interrogated early in the morning on 14.9.2002 but P.W. 1 has not supported the case of the prosecution and he was declared hostile. Even P. Ws. 3,4,5, 7 and 9 have not admitted that they were interrogated by the I.O. prior to 15.9.2002. This indicates, that investigation in fact did not start immediately after recording of fardbeyan and institution of First Information Report. Investigation, in reality started in the morning of 15.9.2002. All witnesses were examined on this date only. A question arises that in this circumstance, whether it could be believed that fardbeyan itself was recorded in the night of 13.9.2002 at 11.30 P.M and FIR was instituted at 4 A.M. on 14.9.2002. Since, investigation did not start immediately thereafter but it started on 15.9.2002, as such there is strong probability that fardbeyan itself was recorded on 15.9.2002 and investigation started thereafter. So far the evidence of P.W.14 regarding recording of fardbeyan and institution of FIR is concerned, it shows that everything was ante-dated. P.W.14 has stated that Sanha entry No. 236 was made at 11 PM but that Sanha was not produced before the Court, as such it is also doubtful Whether any Sanha entry was made by him at 11 P.M. in the night of 13.9.2002. 19. P.W.14 has stated that Sanha entry No. 236 was made at 11 PM but that Sanha was not produced before the Court, as such it is also doubtful Whether any Sanha entry was made by him at 11 P.M. in the night of 13.9.2002. 19. In support of this contention that FIR is a concocted and ante-dated document, the Appellants counsel has pointed out the signature of P.W.5 Sageer Ahmad on the fardbeyan made on 13.9.2002. P.W. 5 has been shown as the attesting witnesses, who signed the fardbeyan of the informant but on the other hand P.w.5, who is Mukhia of Bela Dargah Gram Panchayat and resident of village Mouza Rasulpur Kawa has stated in para 2 of his deposition that on 13.9.2002 at 70 clock, he came at Kawadih and having come to know about the kidnapping of Razi Ahmads son, he went to his house. Razi Ahmad disclosed before him, his suspicion against Parwez and Syed and also shown him his wifes plastered finger. Thereafter he returned to his house and again he came back to village Kawadih only with the Investigating Officer on 15.9.2002 at 4 A.M. The Investigating Officer has come to his house at 4 A.M. on 15.9.2002 and he along with him came to the place of the occurrence. At that time Syed and Parwez were also accompanying the Police. The question is, that if P.W.5 had not come to village Kawadih prior to 4 A.M. on 15.9.2002, then how he could have signed the fardbeyan in the night of 13.9.2002 at 11.30 P.M. This evidence of P.w.5 only indicates that everything was done on 15.9.2002, right from recording of fardbeyan to preparing seizure list, inquest report on recovery of the dead body. There is possibility that fardbeyan was recorded on 15.9.2002 but shown to be recorded on 13.9.2002 at 11.30 P.M. by ante dating it. 20. Counsel for the Appellant also submits that the genuineness of fardbeyan and the FIR is doubtful for one more reason i.e., unexplained delay in dispatching and forwarding the FIR to the Court of C.J.M, Vaishali. Fardbeyan is said to have been recorded on 13.9.2002 at 11.30 P.M. Formal FIR is claimed to have been instituted at 4 A.M. on 14.9.2002 but it was forwarded to the Court and produced before Chief Judicial Magistrate, Vaishali at Hazipur on 16.9.2002. Fardbeyan is said to have been recorded on 13.9.2002 at 11.30 P.M. Formal FIR is claimed to have been instituted at 4 A.M. on 14.9.2002 but it was forwarded to the Court and produced before Chief Judicial Magistrate, Vaishali at Hazipur on 16.9.2002. This unexplained delay if connected with other latches and lacuna in the prosecution evidence, it simply indicates that prosecution case has been concocted after due deliberation, in order to falsely implicate the Appellant and other accused Parwez. The FIR was produced in the Court on 16.9.2002 which was instituted for offence under Section 364/34 of the Indian Penal Code. On the same date petition was filed for adding Section 302/34 I.P.C. in the FIR. There was no reason for submitting FIR instituted under Section 364/34 of the Indian Penal Code on 16.9.2002 and simultaneously filing an application for adding Section 302 IPC in the FIR. 26. Counsel for the Appellant submits that forwarding of the FIR to the Court immediately after its institution is indispensable and absolute. It has to be forwarded earliest with earlier dispatch, which is implicit from the use of word forthwith in Section 157 of the Code of Criminal Procedure. The word forthwith only means that FIR has to be forwarded promptly, without undue delay. Main object behind this promptness is to avoid possibility of any improvement in the prosecution case and introduction of any distorted version by deliberation and calculation. Other purpose is enable the concerned Court to keep a watch on the progress of investigation. Since there is complete absence of promptness, as such in the background of the present case, there is all possibility of concoction and deliberation in the FIR, as two days delay has not been explained by the prosecution. 21. In the case of Sushil Kumar v. State of Rajasthan reported in (2005) 9 SCCC 283, it has been observed by the Apex Court that in each case, as an universal rule, the case of the prosecution cannot be held unreliable, simply because there is some delay in dispatch of the FIR and its production before the Court. Reliability of the prosecution case, will depend on facts of each case. If investigation had started promptly, there is no reason to suspect the genuineness of the prosecution case. Reliability of the prosecution case, will depend on facts of each case. If investigation had started promptly, there is no reason to suspect the genuineness of the prosecution case. So far the present case is concerned, the investigation started on 15.9.2002, it is evident from the deposition of P Ws.3,4,5,7,9 and 10. Preparation of Inquest report, seizure list, sending of the dead body for post mortem and interrogation of the witnesses, all started on 15.9.2002, as such the investigation also did not start promptly in order to wipe out the allegation made by defence that FIR is an ante-dated, concocted and maneuvered document. 22. Counsel for the Appellant submits that this is a case in which none of the witnesses have been examined as eye-witness. Even informant can be categorized as hearsay witness. No one has seen the Appellant Md. Syed and another accused Parwez either taking way the victim boy Gani or killing him. The implication of these two accused is on the basis of circumstantial evidence and motive alleged by the informant, on account of some incident prior to the date of occurrence. All witnesses have admitted that they came to know about those incidents, which could have given motive to Appellant Md. Syed and Parwez for commission of the offence, from the disclosure made before them by P.W.10 informant and his wife P.W.7. The evidence of P.W.10, P.W.7 and P.w.9 regarding the previous occurrence due to which enmity has developed in between the Appellant and informant and his family is falsified from their own evidence. P.W.7, P.W.9 and P.W.10 all have admitted that while informant along with his wife was going to the house of Budhan Mian for fetching milk, they saw Parwez coming from other direction. P.w.7 asked him to put fertilizer in her field and he replied that on the next day, he will do it. If there would have been any enmity persisting in between them, there was no reason for this cordial talk. It has also come in the deposition that when they found Md. Rafi alias Gani missing from his house, they immediately went to the house of Parwez to inquire about the child. Md. Syed was also present there. Both Md. Syed and the Parwez proceeded along with P.W.7 and P.W.10 for searching of the boy. This shows if there would have been any animosity in between the parties, Md. Rafi alias Gani missing from his house, they immediately went to the house of Parwez to inquire about the child. Md. Syed was also present there. Both Md. Syed and the Parwez proceeded along with P.W.7 and P.W.10 for searching of the boy. This shows if there would have been any animosity in between the parties, Md. Syed and Parwez would not have enhanced their cooperation and helped them in searching out the child. So far the incidents regarding settlement of orchard, watching the television and asking for Jack fruit of the shares of informants daughter, are concerned, all these are the incidents which no other person had seen. Even evidence of P.W.9 and P.w 10 on this point is of hear say witness. There is no corroboration of this evidence, except the evidence of P.w.7. 23. Counsel for the Appellant submits that because of these incidents, no complain was instituted by the informant and his wife before any forum neither it was disclosed by them before any one prior to the occurrence, as such giving motive for commission of such heinous offence on the basis of uncorroborated statement of P.w.7 is not proper, safe and legally sound, specially, when no one has seen them either kidnapping the child or committing his murder. 24. Counsel for the Appellant has further submitted that so far the confessional statement of Appellant Md. Syed and Parwez Sah is concerned, i.e. also ante-dated. In fact no confessional statement of these accused persons were recorded on 14.9.2002. These two persons were apprehended by the Investigating Officer at the instance of P.W.5 and P.W.4, who are mukhia and Sarpanch of the Gram Panchayat because the Appellant had opposed them in the election of mukhia. P.W.5 himself was a candidate and son of P.W.4 was also contesting. The Appellant did not support them in the election and just in order to take their revenge, these witness have implicated the Appellant in connivance with the I.O. The I.O. has managed to show recovery of the dead body on the basis of Appellants confessional statement. The confessional statement is an ante dated document. In support of this it has been stated that the date of confessional statement is 15.12.2002 and not 15/9/2002. The dead body is said to have been recovered at 4 A.M. on 15.9.2002. The confessional statement is an ante dated document. In support of this it has been stated that the date of confessional statement is 15.12.2002 and not 15/9/2002. The dead body is said to have been recovered at 4 A.M. on 15.9.2002. There was no possibility of recording of confessional statement of these two persons on 15.9.2002. They were apprehended in the mourning of 15.9.2002 subsequent to the recovery of the dead body, as such everything in this case is the master craftsmanship of the Investigating Officer in connivance with P.w.5,6, and P.W.10. It has also been submitted that the confessional statement of these two accused persons is word to word same as deposed by P.W.12. Same lines and words have been put into the mouth of these two accused persons in their confessional statement. On comparison of the confessional statement and the evidence of P.W.12 I find much substance in the submission of the counsel appearing for the Appellant. 25. Another submission which have been made by the counsel for the Appellant is that none of the witnesses examined by the prosecution is a natural, genuine and trustworthy. The evidence on record as deposed by all the witnesses as well as P.W.14 indicates that in between the house of the informant and the house of P.W.3, P.W.4 and P.w.6, there is difference of 400 to 500 yards, there are houses of other persons adjacent to the house of the informant. In fact some of the persons are residing in the same house, in which the informant is residing and only partitioned by a wall. None of those persons have been examined as witness. They could only some opportunity to see, if any one would have lifted the child while he was playing. Persons examined as witnesses are those who are residing quite at a distance. They are all chance witnesses. The evidence of chance witnesses have to be scrutinized with much caution and care. P.w.5 has not seen even going and coming of the informant, his wife and coming of Parwez towards the house of the informant. As per his evidence he only heard about the missing of the child and motive for occurrence was disclosed before him by P.W.10. P.W.3 says that he was at his darwaza when P.w.7 and P.W.10 were going to fetch milk. At that very time he saw Parwez coming towards the house of P.W.10. As per his evidence he only heard about the missing of the child and motive for occurrence was disclosed before him by P.W.10. P.W.3 says that he was at his darwaza when P.w.7 and P.W.10 were going to fetch milk. At that very time he saw Parwez coming towards the house of P.W.10. P.W.7 in her evidence says that when she crossed the house of P.W.3, he was not present at darwaza, because he was inside his house. If this is the deposition of P.W.7 then P.W.3 has not seen either going of P.w.7 and P.W.10 or coming of parwez towards the house of P.W.10. Similarly P.W.4 and P.w.6 have stated that they saw Parwez and Saiyed at the same time i.e. in between 6 to 6.30. One of the witnesses has only seen Parwez simply going towards the house of the informant, when other witness saw Parwez along with child in his lap. It is further contradicted in the evidence of P.W.6 who says that he saw Parwez and Syed both coming with the child. It is most improbable evidence considering the fact that at the same time different witnesses cannot see these accused persons in different manner. Either the evidence of P.w.3 is correct or the evidence of other two witnesses P.W.4 and P.w.6. In sum and substance evidence of these witnesses do not inspire confidence that they actually had seen P.W.7 and P.W.10 going towards Budhans house and accused persons proceeding towards the house of P.W.10 as coming from his house along with the child. 26. P.W.9 is the daughter of the Informant. She was present in the house where the child was playing. She has not stated that Parwez and this Appellant Md. Syed had come there for lifting the child. She has not seen that any person took away the child. So far P.w. 12 is concerned, she has stated that she heard the crying sound of a child at 70 clock. At that time she was not knowing about the kidnapping of the Gani. There was no reason for her to have suspicion about kidnapping of Gani, even then she went to the house of P.W.7 to give information that she has heard the crying sound of a child. Thereafter hectic search was made in the orchard. At that time she was not knowing about the kidnapping of the Gani. There was no reason for her to have suspicion about kidnapping of Gani, even then she went to the house of P.W.7 to give information that she has heard the crying sound of a child. Thereafter hectic search was made in the orchard. If the search would have been done at that time, then there was no reason for not finding out the dead body at that very time. 33. Counsel for the Appellant submits that the entire prosecution case has been maneuvered and concocted by the I.O. in connivance with the interested witnesses. Except suspicion, there was no substantial evidence to connect this Appellant to the alleged offence. There is no evidence of recovery on the basis of the confessional statement of the Appellant for conviction under Sections 302/34, 364/34 and 201 of the Indian Penal Code. Despite this fact, on the basis of the evidence of witnesses, who are chance witness, inimical witness and who have got sufficient motive to falsely implicate the Appellant, the trial Court has passed a judgment of conviction against the Appellant. 27. I find that there is sufficient material of ante dating of the FIR, delayed dispatch of the FIR without explaining the delay. According to the evidence, of doctor and the post mortem report there were some injuries on the person of the deceased caused by sharp cutting weapon. In the confessional statement, there is nothing to show that any assault was made to the deceased child by the accused persons with any sharp cutting weapon. The Prosecution has not been able to explain injury No. I, caused by sharp cutting weapon on the person of the deceased. Except some distant circumstance and weak motive as alleged by P.W.7. There is actually no evidence on record to connect Appellant with the offence. I do not find that the guilt of the Appellant on the basis of the charge framed against him has been proved, considering the evidence on record. Suspicion, how so ever be strong, unless it is proved beyond all reasonable doubt, there cannot be any conviction of the accused. The trial Court has not been cautious enough to make a distinction in between the suspicion and substantial evidence to prove charge. 35. Suspicion, how so ever be strong, unless it is proved beyond all reasonable doubt, there cannot be any conviction of the accused. The trial Court has not been cautious enough to make a distinction in between the suspicion and substantial evidence to prove charge. 35. For the reasons stated above, I am of the view that the prosecution has failed to prove charges framed against Appellant Md. Syed under Sections 302/34, 364/34 and 201 of the Indian Penal Code. His conviction, based on the impugned judgment and the sentence awarded by the trial Court are set aside. The appeal is allowed. Appellant is acquitted of all the charges. He is directed to be released forthwith, if not wanted in connection with any other case. 28. The trial court has convicted both the accused persons i.e. md. Syed and Parwez. For reasons unknown Parwez did not prefer any appeal against the impugned judgment of conviction but considering the fact that the judgment of conviction is being set aside against one of the accused, whose case stands on similar footing as that of Parwez. The conviction of Parwez Sah is also set aside. His conviction and sentence are also set aside. He is also directed to be released forthwith, if not wanted in any other case.