JUDGMENT 1. 1. By this common order, D.B. Criminal Appeal bearing No. 509/2012 filed by accused - Hakamddin @ Mamddin through Superintendent, Central Jail, Bharatpur, as well as, D.B. Criminal Appeal bearing No. 351/2012 instituted by accused - Kada @ Hameed shall be decided together. 2. Hakamddin @ Mamddin s/o. Rehmat, r/o. Vurja Khohri, Police Station, Sikri and Kada @ Hamid s/o. Tundal, r/o. Chirkhana-Ka-Bas, Police Station, Sadar, Alwar after trial were convicted by the Court of Special Judge, Scheduled Castes and the Scheduled Tribes [Prevention of Atrocities] Bharatpur vide its impugned judgment dated 21.04.2012 for offences under Sections 302 and 392 of Indian Penal Code. 3. Having convicted the appellants for the above said offences, vide a separate order of even date, both the appellants for commission of offence under Section 302 I.P.C. were sentenced to life imprisonment and to pay a fine of Rs. 5000/-, in default thereof to further undergo one-year's rigorous imprisonment; and for commission of offence under Section 392 I.P.C. were also sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs. 2000/-, in default thereof to further undergo four months rigorous imprisonment. 4. It is informed by the learned counsel appearing for the appellants that Hakamddin @ Mamddin was arrested on 10.05.2002 and has already undergone twelve-years-&-five-months sentence, whereas co-accused, Kada @ Hamid during pendency of the appeal was released on bail. 5. First Information Report, in the present case, was lodged by Kishan Lal [PW-7] alleging interalia that his son, namely Netram, aged about fourteen-years on 09.05.2002 had gone to graze sheep and thereafter he was not found. 6. Kishan Lal [PW-7] submitted a written-report [Exhibit P/6] at the Police Station on 10.05.2002 at about 10:30 A.M. In the written-report, Kishan Lal stated that he is a resident of Vurja Khohri. On 09.05.2002 at about 08:00 A.M. his son Netram, aged about fourteen-years had gone along with the thirty-five sheep to the jungle for grazing, he had not returned till submission of report on 10.09.2002 at about 10:30 A.M. He further stated that his son was wearing khakhi pant and blue shirt. A further suspicion was raised in the First Information Report that accused - Hakamddin @ Mamddin s/o. Rehmat, Rehmat s/o. Unknown and Ishaq s/o. Unknown, Mev, r/o. Vurja Khohri were after his son. A further suspicion was raised in the First Information Report that accused - Hakamddin @ Mamddin s/o. Rehmat, Rehmat s/o. Unknown and Ishaq s/o. Unknown, Mev, r/o. Vurja Khohri were after his son. In First Information Report, informant said that he believe that the above said persons along with two or three other persons have kidnapped his son and also taken his sheep. He further stated that the life of his son is in danger and the above said persons named in First Information Report are also missing from their houses. In First Information Report, it was stated that till submission of report, no clue was found regarding the whereabouts of his son, Netram. 7. It will be pertinent to note here that in above report, Kada @ Hamid was not named. 8. Prosecution case, in nut-shell is that on the next date i.e. 10.05.2002 in pursuance of disclosure statement made by accused - Hakamddin @ Mamddin [Exhibit P/16], Police party accompanied by Ramkishore [PW-1] and two divers Madan Lal [PW-2] and Rajesh [PW-3] at the instance of accused - Hakamddin @ Mamddin s/o. Rehmat got recovered the dead-body of Net Ram son of complainant. After the dead-body was recovered aggravated offences were added. 9. The charge-sheet under Section 173 of the Code of Criminal Procedure, 1973 was submitted by the Investigating Agency and after due procedure same was committed to the Court of Sessions and was entrusted for trial to the Special Judge, Scheduled Castes and the Scheduled Tribes [Prevention of Atrocities], Bharatpur. 10. Before we proceed to notice details of evidence of the prosecution, suffice it to say, case of prosecution, being a case of circumstantial evidence rest upon the following circumstances:- A. THAT upon disclosure statement, Exhibit P/16 made by accused - Hakamddin @ Mamddin, dead-body of Netram, aged about fourteen-years s/o. Kishan Lal [PW-7], was recovered from the well situated at Village Vurja Khohri. B. THAT in pursuance of the above said disclosure statement, accused had taken Police party to the well and got dead-body recovered vide memo [Exhibit P/2]. C. THAT accused - Hakamddin @ Mamddin and Kada @ Hamid were last seen with deceased Netram by Mukundi [PW-5] and Puran Singh [PW-6]. B. THAT in pursuance of the above said disclosure statement, accused had taken Police party to the well and got dead-body recovered vide memo [Exhibit P/2]. C. THAT accused - Hakamddin @ Mamddin and Kada @ Hamid were last seen with deceased Netram by Mukundi [PW-5] and Puran Singh [PW-6]. D. THAT the contents of disclosure statement [Exhibit P/16] made by accused - Hakamddin @ Mamddin to the effect that the deceased Netram was strangulated with a turban [safa] is corroborated by the medical evidence. E. THAT upon disclosure statement [Exhibit P/17] made by accused - Hakamddin @ Mamddin sheep belonging to the father of deceased were recovered from possession of accused - Kada @ Hamid. 11. Having noted that it is not a case of direct evidence and the conviction of the appellants is based upon above said circumstances, as enumerated before us, it will be appropriate for us to notice the brief gist of the evidence. 12. PW-1 Ramkishore stated that two-&-half years ago at about 06:00 P.M. he was sitting in the house and heard that the Police had come in the Village. He went there and saw that the Police had taken accused - Hakamddin @ Mamddin to the well, where Hakamddin @ Mamddin had thrown the dead-body of Netram. In his presence at instance of accused - Hakmuddin @ Mamddin dead-body was recovered from the well by Rajesh and Madan Lal, PW-2 & PW-3 respectively. Exhibit-P/1 - Panchanama/Inquest of dead-body was prepared and he having attested the same, had appended his signatures thereupon. The dead-body was taken in possession by the Police vide memo [Exhibit P/2]. The Police had also recovered a turban [safa] hanging around the neck of deceased - Netram vide a separate memo [Exhibit P/3]. The Police had also prepared a site-plan of the place of recovery of the dead-body [Exhibit-P/4]. 13. To similar effect is the statement of PW-4 - Nannuram. He deposed that PW-2 Madan Lal and PW-3 Rajesh were engaged by the Police for taking the dead-body out of the well. Nanuram, PW-4, Madan Lal, PW-2 and Rajesh, PW-3 also proved that at the pointing out of the accused on the asking of the Police, they i.e. Madan Lal, PW-2 and Rajesh, PW-3 had taken dead-body out from the well. Rajesh [PW-3] specifically stated that Hakamddin @ Mamddin disclosed that the dead-body was thrown in the particular well. Nanuram, PW-4, Madan Lal, PW-2 and Rajesh, PW-3 also proved that at the pointing out of the accused on the asking of the Police, they i.e. Madan Lal, PW-2 and Rajesh, PW-3 had taken dead-body out from the well. Rajesh [PW-3] specifically stated that Hakamddin @ Mamddin disclosed that the dead-body was thrown in the particular well. PW-4 - Nannuram also proved Exhibit P/5 site-plan of the spot. 14. PW-5 Mukundi stated that on the day of occurrence, at about 09-10 A.M. he had seen deceased Netram with appellants Kada @ Hamid and Hakamddin @ Mamddin on the berm of 'kachha' well. This witness was specifically confronted with the statement, PW-5 recorded under Section 161 of Code of Criminal Procedure, wherein name of Kada @ Hamid is not recorded. Puran Singh [PW-6] also deposed that at about 09:30 P.M. on the day of occurrence, he and Mukundi saw Rajjak, Hakamddin @ Mamddin and Kada @ Hamid along with the deceased - Netram near the well, at that time Netram was grazing sheep. This witness was also confronted with the statement, Exhibit P/5 recorded under Section 161 of Code of Criminal Procedure, wherein name of Kada @ Hamid is not mentioned. Kishan Lal [PW-7] reiterated as to what was stated in the First Information Report with a little variation that the number of sheep instead of thirty-five was thirty-three. 15. At this stage, Mr. Vijayant Nirwan, the learned counsel appearing for the accused-appellants, who was appointed as amicus-curiae by the Coordinate Bench, has submitted that this witness has improved his earlier version given in the First Information Report by introducing the witnesses who had allegedly last seen the deceased in the company of the accused and disclosed the fact to the witness. 16. PW-8 Santa, mother of deceased in no way had advanced the case of prosecution except to corroborate the testimony of Kishan Lal [PW-7] to the extent that earlier she had taken meals for her son as he was not found later her husband had taken meals for the son, who remained untraced. 17. PW-9 Chhajan stated that on the day of occurrence, he had seen Hakamddin @ Mamddin, Kada @ Hamid and Rajjak taking sheep and on questioning, they had answered that they had purchased sheep from Kishan Lal, father of deceased. 18. In cross-examination, this witness stated that Kada @ Hamid was not known to him earlier. 17. PW-9 Chhajan stated that on the day of occurrence, he had seen Hakamddin @ Mamddin, Kada @ Hamid and Rajjak taking sheep and on questioning, they had answered that they had purchased sheep from Kishan Lal, father of deceased. 18. In cross-examination, this witness stated that Kada @ Hamid was not known to him earlier. Later-on, this witness stated that the name of Kada @ Hamid was disclosed by Hakamddin @ Mamddin. 19. PW-10 Constable Dalveer Khan had arrested accused - Hakamddin @ Mamddin. PW-11 Constable Jaswant Singh had recovered thirty-three sheep, in number in pursuance of disclosure statement made by accused - Hakamddin @ Mamddin from Kada @ Hamid. 20. PW-12 Dhan Singh, Constable had attested the arrest memo of Kada @ Hamid. Dr. Girish Kumar Goyal [PW-13] on 11.05.2002 had conducted an autopsy on the dead-body of deceased and had opined that the cause of death was asphyxia due to strangulation. He had further stated that no food material was found in the intestine of the deceased. PW-15 Kailash Chand Meena had presented the charge-sheet. 21. We need not notice the testimony of remaining witnesses who had participated in the investigation. 22. Suffice it to say, PW-18 Manoj Kumar Gupta had conducted investigation and proved various facet of the investigation. This witness, in cross-examination stated that the accused - Kada @ Hamid had not made any disclosure statement under Section 27 of the Indian Evidence Act and the sheep were recovered from an open and accessible place, they were not confined in any 'bara'. Kishan Lal, father of Netram had accompanied the Police party and had identified the sheep. PW-21 Ramchand stated that when the accused were taking sheep, they disclosed that they purchased the same from Kishan Lal. 23. Thereafter, prosecution has closed its evidence and the statement of the accused were recorded under Section 313 Cr.P.C. and all incriminating evidence were put to them, they denied the same and pleaded false implication. 24. No witness was examined in the defence. 25. Having heard the learned counsel appearing for the parties, we have to answer whether it is safe to rely upon disclosure statement, Exhibit P/16, which is only drawn by the Investigating Officer and is not attested by any witness. 26. 24. No witness was examined in the defence. 25. Having heard the learned counsel appearing for the parties, we have to answer whether it is safe to rely upon disclosure statement, Exhibit P/16, which is only drawn by the Investigating Officer and is not attested by any witness. 26. Section 27 of the Indian Evidence Act, 1872 is an exception to Section 25 of Act which state that no confession made to a Police officer shall be proved as against a person accused of any offence. 27. It is true that there is no presumption that the custodial statements made by accused have been extracted through compulsion, yet prosecution as a rule of prudence ought to share with the Court that such statement was made voluntarily without any duress or coercion on the part of the Investigating Officer. About the voluntary character of such disclosure statement, the Court ought to be satisfied. To test that such statement was made voluntarily, without any pressure or was not recorded by the Investigating Officer at his own and he had not obtained signatures of the accused maker of the statement forcibly, it is required that witnesses ought to be associated at the time of making of disclosure statement. 28. It is true that the Court will not insist upon quantity, but quality of evidence, without laying any rule, this Court in the facts and circumstances of the present case is of view that non-association of the witnesses at time of recording disclosure statement is to be construed against the prosecution as contents of disclosure statement were not noticed in recovery memo. Thus, voluntary character of the disclosure regarding the place where the dead-body was allegedly thrown is lacking. Examination of witnesses by the Investigating Officer would have provided necessary aid to the Court to determine the voluntary character of the disclosure statement. 29. The Courts have ordinarily insisted that the witness to be associated at time of disclosure in normal circumstances should be an independent witness. What to talk of independent witness, in the present case, no witness has been examined by the Investigating Officer to say that in his presence accused had suffered disclosure statement. 30. Mr. 29. The Courts have ordinarily insisted that the witness to be associated at time of disclosure in normal circumstances should be an independent witness. What to talk of independent witness, in the present case, no witness has been examined by the Investigating Officer to say that in his presence accused had suffered disclosure statement. 30. Mr. Vijayant Nirwan, the learned amicus-curiae appearing for the accused/appellants, has relied upon the case of Harjit Singh and Others v. State of Punjab, reported in A.I.R. 2002 Supreme Court 3040 to say that the Hon'ble Apex Court had observed that absence of signature of independent witness on disclosure statement will not inspire confidence. 31. It is to be noted here that in the present case the dead-body was recovered vide memo P/2, which is silent regarding contents of disclosure statement P/16. 32. Learned amicus-curiae further relied upon the case of Bakshish Singh v. The State of Punjab, reported in A.I.R. 1971 Supreme Court 2016 to say that mere recovery of dead-body by Police on information given by the accused is not a conclusive circumstance but it merely raises strong suspicious against accused. 33. A perusal of Exhibit P/5, site-plan prepared further reveals that the well from where dead-body was recovered is situated in the fields from where crop had already been harvested. 34. There is merit in the contention of the learned counsel appearing for the accused-appellants that the place of recovery is an open and accessible place. 35. Hence, without laying any general rule, but in the facts and circumstances of the case, we shall rule out the disclosure statement for non-association of any witness from consideration, especially when the recovery of dead-body has been effected from an open and accessible place. 36. Having not relied upon disclosure made by accused - Hakamddin @ Mamddin and recovery of dead-body, we are left with evidence of last seen so far accused - Hakmaddin @ Mamddin is concerned. 37. It is to be noted here that so far witnesses of last seen, namely PW/5 Mukundi & PW/6 Puran Singh are concerned, they had not named Kada @ Hamid as one who was last seen with the accused in their statements under Section 161 Cr.P.C. made before the Police. 37. It is to be noted here that so far witnesses of last seen, namely PW/5 Mukundi & PW/6 Puran Singh are concerned, they had not named Kada @ Hamid as one who was last seen with the accused in their statements under Section 161 Cr.P.C. made before the Police. They have been duly confronted with their previous statements made to Police under Section 161 Cr.P.C., in the cross-examination carried on behalf of appellant - Kada @ Hamid. 38. Thus, in our opinion, Mukundi, PW-5 & Puran Singh, PW-6 are not reliable witnesses as they have improved the version of prosecution in Court, by introducing Kada @ Hamid as accused. Therefore, we are of the view that implicit reliance cannot be placed upon testimony of Mukundi, PW-5 & Puran Singh, PW-6. 39. Once we discarded disclosure statement and recovery made from an open and accessible place allegedly at the instance of accused - Hakamddin @ Mamddin, we also ignore statement of witnesses regarding last seen, thus in our humble opinion remaining circumstances will not complete the chain of circumstances to arrive at a conclusion that it is only the accused and nobody else had committed offence of murder. 40. It is to be noted here with pinch of salt, identification of sheep belonging to Kishan Lal, PW-7 which were allegedly taken by his son Netram, deceased for grazing has not been carried. The recovery of the sheep from accused - Kada @ Hamid on the basis of disclosure statement made by Hakamddin @ Mamddin, Exhibit P/17 in no way will advance the case of prosecution, especially disclosure statement, Exhibit-PW-17 is also not attested by any witness and suffer from same vice for which we have kept out of consideration disclosure statement, Exhibit P/16 and recovery Memo P/2. The reasons stated by us to discard disclosure statement, Exhibit P/16 shall also prevail for ignoring disclosure statement, Exhibit P/17 which led to recovery of sheep. 41. Taking totality of circumstances, we shall extend the benefit of doubt to the accused and, hence, judgment of conviction and sentence, qua appellants is, hereby, set aside and they are acquitted of the charges. 42. Resultantly, both the appeals stand allowed. *******