JUDGMENT 1. - The present appeals have been listed under the orders of Hon'ble Apex Court passed on 11th April, 2014 in Special Leave to Appeal (Cri.) No.(s). 4734/2014 as appellants Rameshwar, Dinesh @ Pillu and Mukesh are in custody for a period of more than eight years. 2. By this common judgment D.B.Criminal Appeal No.158/2010 preferred by Rameshwar and Dinesh @ Pillu, D.B.Criminal Appeal No.1066/2008 instituted by Mukesh and D.B.Criminal Appeal No.1100/2008 filed by Munesh Kumar shall be decided together. 3. On 29th July, 2006, between 3-4 P.M. Tulsi Ram a young boy aged 13-14 years as per prosecution case was kidnapped. He was recovered by the police from a hut near temple of Narayani Mata on 01st August, 2006 at 5.40 A.M.vide memo Exhibit P/10. As per police, at the time of his arrest, two of the appellants Mukesh and Dinesh were apprehended at the spot. Investigating agency had nominated four appellants namely; Mukesh, Munesh, Rameshwar and Dinesh @ Pillu, as accused. 4. All the four appellants were tried by the Court of Additional Sessions Judge (Fast Track) No.3, Bharatpur Camp at Bayana Distt. Bharatpur. The said Court on 27th September, 2008 vide impugned judgment had convicted appellants Mukesh Son of Harsahay Meena and Dinesh @ Pillu Son of Ganshiram Meena for offences under Sections 120(B), 365 and 364A IPC. Rameshwar Son of Ganshiram was convicted for offences under Sections 120B and 364A IPC. However, appellant Rameshwar was acquitted for offence under Section 365 IPC. Appellant Munesh Son of Omprakash was only convicted for offence under Section 120B IPC. Vide a separate order of even date, each appellant was sentenced as under:- Mukesh and Dinesh @ Pillu for offence under Section 365 IPC:- Four Years rigorous imprisonment and pay a fine of Rs. 500/- each and in default of payment thereof, to further undergo 15-15 days simple imprisonment; Mukesh, Dinesh @ Pillu and Rameshwar for offence under Section 364(A) IPC:- Life imprisonment and pay a fine of Rs. 1000/- each and in default of payment thereof to further undergo one month simple imprisonment; Mukesh, Dinesh @ Pillu, Rameshwar and Munesh For offence under Section 120B IPC:- Seven years rigorous imprisonment and pay a fine of Rs. 1,000/- each and in default of payment thereof, to further undergo one month simple imprisonment. All the sentences were ordered to run concurrently. 5. 1,000/- each and in default of payment thereof, to further undergo one month simple imprisonment. All the sentences were ordered to run concurrently. 5. Conviction pronounced and sentenced awarded has been assailed by the four appellants by filing three appeals. Appellant Munesh has filed S.B.Criminal Appeal No.1100/2008 which was later treated as a D.B.Criminal Appeal. Appellant Mukesh had filed Criminal Appeal No.1066/2008 whereas two brothers Rameshwar and Dinesh @ Pillu had preferred DB Criminal Appeal No.158/2010. 6. Before we advert to the evidence and recapitulate the same, it is to be noted that all independent witnesses have turned hostile and have not supported the prosecution case. Star witness of the prosecution is Tulsi Ram (PW-9) victim who was allegedly kidnapped for ransom and was recovered by the police. To corroborate his testimony, prosecution has examined his father, first informant namely Ram Khiladi Sharma (PW-1), His sister Kumari Laxmi (PW-5). PW-6 Smt. Jagvati his mother and another relation i.e. uncle (Taya) Badan Singh, PW-14 who had attested memo of recovery of Tulsi Ram (PW-9). Prosecution case also rest upon deposition of police witnesses who had recovered the child from the possession of two accused namely; Mukesh & Dinesh @ Pillu. 7. Criminal Prosecution was set into motion by Ram Khiladi (PW-1). On 29th July, 2006 at about 11.00 P.M. he presented a written complaint Ex.P/1 before SHO Rajendra Rawat, PW-17, Police Station Bhusawar Distt. Bharatpur. On the basis of written complaint, formal FIR Ex.P/2 was registered at Police Station, Bhusawar Distt. Bharatpur. In written complaint, Ramkhiladi (PW-1) had stated that on 29th July, 2006 at the house of his nephew Ramesh Sharma 3-4 calls were received. The witness has divulged the phone number as 260052. It is stated that the caller identified himself as Pillu resident of Kawai and was calling Tulsi Ram son of informant to Chantoli. It was further stated in the FIR that in Chaitoli bus stand, two persons came on a Splendor Motor Cycle, they had a talk with Tulsi Ram and later, he was taken towards Bhusawar. This information was relayed to complainant by Rameshwar Sain who was having a shop near the spot from which the child was allegedly abducted. 8. In the FIR, a suspicion was raised that the child was abducted/kidnapped by two persons. 9. The above said FIR was investigated for offence punishable under Section 365 IPC. The investigation was carried. This information was relayed to complainant by Rameshwar Sain who was having a shop near the spot from which the child was allegedly abducted. 8. In the FIR, a suspicion was raised that the child was abducted/kidnapped by two persons. 9. The above said FIR was investigated for offence punishable under Section 365 IPC. The investigation was carried. Later, the child was recovered. Since subsequently before recovery, demands were received demanding Rs. 6,00,000/- as ransom, offences under Section 364 A IPC and 120B IPC were added. 10. The above said FIR was investigated. The report under Section 173(3) Cr.P.C. was submitted. After committal of the same to the Court of Sessions, same was entrusted for trial to the Court of Additional Sessions Judge (Fast Track), No.3, Bharatpur. 11. The appellants were charged for offences under Sections 365 IPC, 120B IPC and Section 364A IPC. They pleaded not guilty and claimed trial. 12. Prosecution commenced its evidence. 13. Ram Khiladi Sharma, father of victim Tulsi Ram (PW-9) appeared as PW-1, he stated that Munesh is his nephew. Munesh used to visit his house. along-with him, two persons, one of Village Tundpura and one of Village Natoz had visited his house. They had seen the child Tulsi Ram. They stayed in his house for one hour. Thereafter, these persons had met his son Tulsi Ram under the banyan tree at Chantoli. Tulsi Ram was a student of Chantoli. They had also visited school of Tulsi Ram. Witness further deposed that after 8-7 days, four telephonic calls were received. The phone was installed at the house of Rajesh. The phone has been picked up by his daughter Laxmi. In the nutshell, it is stated by the witness that his son Tulsi Ram had gone to Chantoli on being called through telephone at the instance of caller and from there to Bhusawar. This witness further stated that later, on the next day, his nephew came and had stated that the kidnappers had demanded Rs. 6,00,000/- as ransom and if it is given, he will facilitate release of the victim. 14. Without adverting to the hearsay evidence which is inadmissible and is not qualified by res-gestae, we have summarily noticed the deposition of the witness in examination-in-chief by ignoring what was stated by the witness as a hearsay evidence. 6,00,000/- as ransom and if it is given, he will facilitate release of the victim. 14. Without adverting to the hearsay evidence which is inadmissible and is not qualified by res-gestae, we have summarily noticed the deposition of the witness in examination-in-chief by ignoring what was stated by the witness as a hearsay evidence. Witness Ram Khiladi Sharma, PW-1 was thoroughly confronted by the defence in cross-examination with written report Ex.D/1 and statement recorded under Section 161 Cr.P.C. However, witness has denied the suggestion that he has involved Munesh as an accused because there was a dispute over the land with Munesh qua his share. Kumari Laxmi sister of Tulsi Ram had also testified regarding receiving of telephonic calls. She further stated in examination-in-chief that her neighbour Sohan Lal and Prahlad had seen victim Tulsi Ram with Munesh. Witness Kumari Laxmi PW-5 further deposed that Munesh came on the next day of kidnapping and in order to side track them, Munesh suggested that they should resort to traffic Jam or go to some saint or Baba for asking the whereabouts of the victim. Later, she said that that she had received a telephonic call from the kidnappers and they had demanded Rs. 6,00,000/-as ransom. She further stated that Tulsi Ram on return had stated that Mukesh and Munesh had gone to the school 3-4 days before the alleged kidnapping. He further disclosed to her that these persons had taken him to Chantoli Bus Stand. However, with the above material details, the witness was confronted with her statement Ex.D/2, recorded under Section 161 Cr.P.C. However, this witness has admitted that her father is only son of his parents having two sisters. Mother of Munesh was sister of her father, she had died and another sister who is alive is mother of Pilli. She further stated that 50 bigha of ancestral land is in possession of her father. Smt. Jagvati, mother of victim (PW-6) only corroborated the evidence of PW-1 Ram Khiladi and her daughter PW-5 Kumari Laxmi. Four persons who were running STD Booths and where calls were allegedly received have not supported the prosecution case and have turned hostile. The name of four witnesses are PW-7 Rohit, PW-10 Ghanshyam, PW-12 Mahesh Chand and PW-15 Roopchand. 15. Smt. Jagvati, mother of victim (PW-6) only corroborated the evidence of PW-1 Ram Khiladi and her daughter PW-5 Kumari Laxmi. Four persons who were running STD Booths and where calls were allegedly received have not supported the prosecution case and have turned hostile. The name of four witnesses are PW-7 Rohit, PW-10 Ghanshyam, PW-12 Mahesh Chand and PW-15 Roopchand. 15. PW-2 Rameshwar and PW-3 Prahlad who had allegedly relayed information to the family members of the victim that they had seen victim Tulsi Ram along-with Munesh had turned hostile and had not supported the prosecution case. PW-4 Ashok Kumar who was attesting witness to the site plan Ex-P/3 stated that site plan was prepared at the bus stand. 16. Victim Tulsi Ram PW-9 stated that on 29th July, 2006 at about 4.00-4.30 P.M. he was present at his house. A phone came at the house of aunt (Tai) Shila, he had gone to her house and heard the phone. The caller identified himself as Pilli and again the phone came which was heard by her mother. He came home, informed the parents and went towards Chantoli School. When he went to his school, Pilli was not there. He went ahead towards Dharmshala where two persons came on motor cycle. They asked him, whether he is Tulsi Ram, when he replied in affirmative, they stated that motor cycle of his aunt's son has been punctured, therefore, he had been called. Two persons who came there were named as Mukesh and Rameshwar. The witness took a pillion ride on the motor cycle. They turned the motor cycle towards Kanchanpura. The witness when raised noise, he was threatened by accused that in case, he will raise the noise, they will liquidate him. The kidnappers took him to Narayani Dham. They used to give him meal once a day. They kept him at Dharmshala at night. He further stated that son of aunt (Bhua) was at his parental village. He further stated that Munesh had called him by taking the name of Pilli. This witness further stated that Munesh along-with Rameshwar and Mukesh were known to him earlier. This witness further deposed that he was detained for a period of three days. Later, police accompanied by his uncle (Taya) Badan Singh, arrived, he was rescued. At that time, two accused persons namely Rameshwar and Mukesh were apprehended by the police. This witness further stated that Munesh along-with Rameshwar and Mukesh were known to him earlier. This witness further deposed that he was detained for a period of three days. Later, police accompanied by his uncle (Taya) Badan Singh, arrived, he was rescued. At that time, two accused persons namely Rameshwar and Mukesh were apprehended by the police. This witness further stated that Munesh used to have a talk with Ramesh and Rameshwar. The witness stated that as per the conversation, they used to say as and when Rs. 6,00,000/- will be received, the victim shall be released. This witness in categoric terms stated that except Munesh, Rameshwar and Mukesh, no other person was involved. Witness stated that Munesh, Dinesh and Rameshwar are present in Court but Mukesh had not come to the Court. He further stated that when police arrived at the spot, his hands and legs were tied. Police arrested two accused namely Mukesh and Rameshwar and brought them to the police station. In cross-examination, this witness has stated that at Narayani Dham where phone used to come, the same was not heard by him but kidnappers used to take name of Munesh and on phone it was stated that from other end, Munesh is calling them. This witness has further stated that on motor cycle, the two persons who came were known to him and he had identified them. The witness on this aspect was duly confronted with his statement Exhibit D/3 wherein it was stated that he only knew one person. The witness in categoric terms has stated that he knew both the persons, meaning thereby, Mukesh and Rameshwar. It will be apposite here to reproduce the following portion of the statement of the witness:- " mu nksuksa esa ls ,d dks igys ls tkurk Fkk " " eSa Mj dj pqipki cSBk jgkA eqds'k o nwljk vkneh eksVj lkbZfdy ls eq>s lySeiqj [kqnZ esa uk tkdj lh/ks dPps jkLrs ls t;iqj okyh lM+d ij gksdj egqok gksrs gq, irk ugha dgkW&dgkW gksdj ukjk;.kh /kke ij ys x;sA " 17. Constable Rajendra Singh had attested arrest memo P-17, P-18, P-19 and P-20. This witness in cross-examination has stated that Rameshwar and Munesh were arrested at Halena whereas Mukesh and Dinesh were arrested at Narayani Dham. Constable Rajendra Singh had attested arrest memo P-17, P-18, P-19 and P-20. This witness in cross-examination has stated that Rameshwar and Munesh were arrested at Halena whereas Mukesh and Dinesh were arrested at Narayani Dham. PW-17 Rajendra Rawat stated that on 29th July, 2006, he was posted as SHO, Police Station, Bhusawar on that day, Ramkhiladi resident of Mehtoli had presented application Ex.P/1, on the basis of which formal FIR was registered. This witness proved various facets of investigations and proved Ex.P/10 recovery memo of Tulsi Ram, victim. As per Ex.P/10, the victim was recovered on 01st August, 2006 at about 5.40 A.M. This witness further proved Ex.P/22 disclosure made by Munesh that the child was confined with Mukesh and Dinesh at Narayani Dham falling within jurisdiction of Police Station Tehla. To similar effect is the disclosure statement of another co-accused Rameshwar Son of Dhansi Ram Ex.P/23 recorded on 26th July, 2006 at about 11.30 P.M. Disclosure statement Ex.P/22 and Ex/P-23 are not attested by any witness. 18. Prosecution had examined only 17 witnesses. 19. After the closure of the prosecution evidence, statement of the accused were recorded under Section 313 Cr.P.C. All incriminating evidence was put to the accused, they denied the same. Accused Mukesh pleaded false implication. Mukesh further stated that the Circle Officer of the Police intended to marry his daughter with his brother Dinesh but this alliance was not accepted by his father, therefore, he was falsely implicated. In defence, Harsahay, father of Dinesh appeared as DW-1. He alleged that his son was falsely implicated as he had not accepted the alliance of his son with the daughter of the Police Circle Officer. He denied involvement of his son in the crime. To similar effect is the statement of Kalyan Sahay DW-2 who being a neighbour had supported the narrative given by Harahay father of Mukesh. Puran DW-3, brother of Rameshwar had produced voter list regarding his and brother's age and further had denied involvement of his two brother in the crime and stated that they were arrested from the house by the police. Keshvdeo DW-4 wrongly termed as DW-3 has proved alibi of Munesh by deposing that he had gone to the jungles for grazing the buffalo. 20. Keshvdeo DW-4 wrongly termed as DW-3 has proved alibi of Munesh by deposing that he had gone to the jungles for grazing the buffalo. 20. Shri Suresh Sahni, Advocate appearing for the appellant Mukesh has submitted that PW-17 Rajendra Rawat has stated that phone of Rajesh, nephew of Ram Khiladi Sharma PW-1 was kept under surveillance. Shri Suresh Sahni, Advocate stated that prosecution has not proved the link evidence by not proving call details or by examining any person belonging to the telephone service provider. Similarly, it is stated that allegedly a mobile was recovered from Mukesh, which was allegedly used for conversation between the accused and relations of the victim and yet, no call details of the mobile have been produced or have been proved on the record. Shri Sahni, has further stated that even Splendor Motor Cycle was recovered but its ownership has not been proved. No official from the licencing/ Registration Authority has been examined to say as to whom motor cycle belonged or who was in possession of the same. He further stated that motor cycle was not even produced and was not got identified from the victim who had allegedly taken a pillion ride on the said motor cycle. Shri Sahni has further stated prosecution for reasons best known had not examined Ramesh nephew of Ram Khiladi Sharma or his Tai Shila at whose house alleged calls were received. It is stated that they were material witness as at their home allegedly telephonic calls were received. Shri Sahni has further submitted that the victim was recovered from Narayani Dham which fall within the police Station Tahla, it is contended that even though ten vehicles of the police had gone at the spot, nobody from Tehla Police Station was associated with the raiding party and no information was noted in the records of Police Station Tehla. It is further stated that Senior Officials who was supervising the raid i.e. Additional Superintendent of Police and the CEO had not been examined by the prosecution. It is further stated that Senior Officials who was supervising the raid i.e. Additional Superintendent of Police and the CEO had not been examined by the prosecution. In the light of the above arguments, it is contended by Shri Sahni, Advocate that since arrest of appellant Mukesh is accompanied by many doubtful features, it was incumbent for the prosecution to have carried the test identification parade within the meaning of Section 9 of The Indian Evidence Act and identification of other accused except Mukesh in the Court while in dock shall pale into insignificance. It is further contended that even Mukesh was not identified in the Court as on the day, examination-in-chief of the victim was recorded, as per the witness, Tulsi Ram PW-9,Mukesh was not present in the Court. 21. Shri Anil Upman, Advocate appearing for the appellant Munesh has submitted that appellant Munesh has been falsely implicated as he was demanding partition of the land and share belonging to his mother from his maternal uncle PW-1 Ram Khiladi Sharma. 22. Shri Rajneesh Gupta, Advocate appearing for appellants Rameshwar and Dinesh @ Pillu has submitted that in the present case, identity of the accused was not known to the witness. It is contended that material improvements have been made by the witnesses and there is inherent contradiction regarding arrest of Rameshwar and Dinesh @ Pillu and the oral evidence belie memo prepared by the police regarding arrest of the two appellants namely Rameshwar and Dinesh @ Pillu represented by him. 23. At the insistence of the counsel for the parties that the alleged abduction, recovery of the victim and arrest of the accused is a sham and their identity has not been proved, we have been made to dissect the evidence, analyse the same. As stated earlier, in the present case, the entire case of prosecution rest upon statement of Ram Khiladi Sharma, PW-1, father of the victim, Kumari Laxmi, PW-5, sister of the victim, Smt. Jagvati, PW-6, mother of the victim, Tulsi Ram PW-9 victim himself and PW-14 Badan Singh, uncle/Taya of the victim. 24. Rameshwar, PW-2, Prahlad PW-3, Rohit PW-7, Ghanshyam, PW-10, Mahesh Chand, PW-12, Pawan Kumar, PW-13 and Roopchand, PW-15 being independent witnesses have not supported the prosecution case. 25. 24. Rameshwar, PW-2, Prahlad PW-3, Rohit PW-7, Ghanshyam, PW-10, Mahesh Chand, PW-12, Pawan Kumar, PW-13 and Roopchand, PW-15 being independent witnesses have not supported the prosecution case. 25. Let us first examine the case of Munesh Kumar, who has been sentenced to seven years Rigorous Imprisonment and had undergone 5 years, 7 months and 21 days at the time, when he was released on bail. 26. In the written complaint, Ex.P/1, complainant had stated that telephone was received 3-4 times. The caller identified himself as Pillu. The caller stated that for meeting him or for taking him, Tulsi Ram should come to Chantoli. In the Court, complainant Ram Khiladi Sharma introduced a new version. He stated that Munesh is his nephew being son of the sister. He had come to his house along-with two persons of Village Tundpura and Natoz. They had seen the victim. They had also visited the school of the victim. On the day of occurrence, four telephonic calls were received. One was heard by her daughter Kumari Laxmi. The caller had stated that Tulsi Ram should come to Chantoli, thereafter, they will go to Bhusawar. Second phone call was received by his daughter-in-law. Kumari Laxmi, PW-5 had received the phone calls from Munesh pretending as Pillu. She stated that infact call was given by Munesh and not by Pillu as Pillu stammer. She further stated that thereafter, on telephonic call Tulsi Ram had left for Chantoli. Tulsi Ram stated that he had heard the phone and the caller identified himself as Pillu. Again, phone came and it was heard by his mother. After informing the parents, he had left for Chantoli. Smt. Jagvati, PW-6 stated that telephone came and the same was heard by Tulsi Ram.Therefore, witnesses intend the Court to believe call was given by Munesh by stating that Pillu is speaking. From where call originated, at what time, same was received nothing has been brought on record. 27. Be that as it may, we are unable to follow the reason as to why Tulsi Ram who is stated to be aged 12-13 years, left his village about 3 or 4 P.M. for going to Chantoli especially when true identity of the caller was under cloud and suspected. Furthermore, as per the witness, Chantoli bus stand is heavily populated and two Dharmsals are there. There is a tea shop on the bus stand also. Furthermore, as per the witness, Chantoli bus stand is heavily populated and two Dharmsals are there. There is a tea shop on the bus stand also. When the accused told Tulsi Ram to accompany them to Bhusawar, he has raised no noise. 28. We are of view that in all probability Tulsi was abducted or kidnapped by two persons while he was returning from school. Story of telephonic calls received at house of Rajesh and Sheela to call victim is highly improbable and is full of contradictions, which cannot be reconciled. In FIR,Ram Khiladi, PW-1 stated that two persons abducted/kidnapped Tulsi Ram, PW-9 29. Munesh has not been named in the FIR. As per Ramkhiladi Sharma, Munesh on the next day came in the Village. He was not grilled as to why he had made a telephonic call pretending himself to be Pillu. The fact that Munesh had made the telephonic call is not noted in the complaint Ex.P/1 made by Ram Khiladi Sharma, PW-1. In the Court he states that it was told to him by Rameshwar that his son was taken to Bhusawar by Munesh and two other boys. Though in the written complaint Ex-P/1 it is stated that Rameshwar had informed that two persons had taken victim towards Bhusawar, name of Munesh is not mentioned in complaint Ex.P/1. Furthermore, Rameshwar who had allegedly disclosed about the involvement of Munesh regarding taking away the victim while appearing in the Court as PW-2 has not supported the prosecution case. In cross-examination Ram Khiladi Sharma, PW-1 admitted that before lodging the report, he had known about the involvement of the Munesh but as to why he had not stated same in written complaint, no explanation is forthcoming. This witness further stated that Munesh had accompanied two persons along-with the victim on a motor cycle and this fact was known to him before lodging of the report, as to why he had not stated the same in the report Ex-P/1, the witness has offered no explanation even though, he was asked about it. Why these material facts were not noted in the statement Exhibit D/1 recorded under Section 161 Cr.P.C., no explanation is being furnished by the witness. 30. PW-4 Ashok Kumar had stated that in the night, when the occurrence had taken place, Munesh was called by her maternal uncle. He had accompanied them for the search of victim. Why these material facts were not noted in the statement Exhibit D/1 recorded under Section 161 Cr.P.C., no explanation is being furnished by the witness. 30. PW-4 Ashok Kumar had stated that in the night, when the occurrence had taken place, Munesh was called by her maternal uncle. He had accompanied them for the search of victim. Statement made by PW-4 Ashok Kumar in his cross-examination regarding the conduct of the Munesh rules out his involvement in the crime. Kumari Laxmi PW-5 had stated that Munesh was inciting them to hold a traffic Jam or was suggesting them to ask some saint or baba regarding whereabouts of victim. She further stated that after the abduction, caller stated that Munesh will bring Rs. 6,00,000/- at platform No.1 at Kota. However, in cross-examination she stated that her statement and statement of her parents were recorded on 30th July, 2006 by the police. However, these material facts were not stated by the witness in her statement recorded under Section 161 Cr.P.C. She had also not divulged the material facts to the police and they have not been incorporated in her statement recorded under Section 161 Cr.P.C. 31. Kumari Laxmi very candidly admitted that her father is only one brother having two sisters and Munesh is son of one sister who had died. She further admitted that his father is in possession of 50 bigha of land of the family. Tulsi Ram, victim in cross-examination admitted that he had disclosed to the police that by taking name of Pillu, telephonic call was given by Munesh but as to why same was not recorded in his statement Ex.D/3 recorded under Section 161 Cr.P.C., no explanation was offered. He further stated that he over-heard on the phone received by the accused that the caller was Munesh. This witness stated that he had gone to Chantoli at his own accord. Thus, it is apparent that name of Munesh has been introduced as an afterthought not only after Tulsi was recovered but after statements of the witnesses under Section 161 Cr.P.C. were recorded. Pawan Kumar, PW-13 stated that on 29th July, 2006, a telephonic call was received and a girl stated that she is daughter of maternal uncle of Munesh and she relayed information regarding abduction. Pawan Kumar, PW-13 stated that on 29th July, 2006, a telephonic call was received and a girl stated that she is daughter of maternal uncle of Munesh and she relayed information regarding abduction. At that time, Munesh started weeping and after taking motor cycle, he had gone in the Village Mehcholi i.e. Village of his maternal uncle. They (including Munesh) had also gone for the search of the victim. The statement made by Pawan Kumar, PW-13 read along-with statement of Ashok Kumar, PW-4 in no way show the conduct of the Munesh to be the one who was involved in the crime. 32. Having appreciated the evidence of the witness, it is to be noted that disclosure statement Ex-P/22 as made by Munesh is not attested by any witness what to say of any independent witness. Ex.P/22 is recorded on 31st July, 2006 at 11 P.M. It is only signed by SHO Police Station, Bhusawar Distt. Bharatpur. It was held in Harjit Singh & Ors. v. State of Punjab AIR 2002 Supreme Court 3040 that disclosure statement should be signed by independent person and Investigating officer should not associate any eye witness with the recovery memos. In the present case, no witness was associated at the time when disclosure statement was made. It is necessary for the prosecution to prove that the disclosure statement was made voluntary without any duress or coercion. To justify voluntary character of disclosure statement, it ought to be recorded in the presence of witnesses, it is to be noted that Section 27 of Indian Evidence Act is an exception to Section 25 of the Indian Evidence Act which says that nothing stated to police is admissible in evidence. Since Section 27 carve out an exception, it is necessary that prosecution must show some material to the Court to be satisfied that same was not fabricated, therefore, it is necessary that it should have been made in presence of some witnesses. 33. Since Section 27 carve out an exception, it is necessary that prosecution must show some material to the Court to be satisfied that same was not fabricated, therefore, it is necessary that it should have been made in presence of some witnesses. 33. Thus, taking contraction in the evidence of Ram Khiladi, PW-1, father of victim, Kumari Laxmi, PW-5, sister of victim, Smt. Jagvati, mother of victim and Tulsi Ram, PW-9 victim himself regarding receipt of telephonic call which led Tulsi Ram PW 9 to leave his house and the fact that no record regarding origin of telephonic call, time of its receipt has been gathered along-with the fact that the name of Munish had not surfaced in the FIR, in the statement of witnesses recorded under Section 161 Cr.P.C., evidence regarding his conduct in the statement of Ashok Kumar PW-4 and Pawan Kumar PW-13, non-attestion of disclosure statement, we are of the view that it is not safe to uphold the conviction of the appellant Munesh for offence under Section 120 B IPC especially when a very per found suggestion has been given by the defence that Munish was demanding share of his mother which was in possession of Ramkhiladi PW-1 his maternal uncle i.e. father of victim. 34. Taking totality of the circumstances, we are firmly of the view that Tulsi Ram PW-9 was abducted while he was returning from the school by two persons. In the FIR, it is also stated that two persons abducted Tulsi Ram. Tulsi Ram has also stated in his statement Ex.D/3 recorded under Section 161 Cr.P.C. that at the time of abduction, he was wearing school uniform. Munesh has been introduced as an accused as an afterthought after recording of the FIR and statement of witnesses under Section 161 Cr.P.C. At the cost of repetition, it is again to be noted that in the present case all independent witnesses have turned hostile and have not supported the prosecution case. 35. The reason stated by us for recording of acquittal of Munesh also make us circumspect and put us on guard to insist that in the present case prosecution ought to have proved identity of the accused beyond any shadow of doubt. Even though, two persons Mukesh and Dinesh @ Pillu were apprehended by the police as per the Investigating Officer along-with the victim. Even though, two persons Mukesh and Dinesh @ Pillu were apprehended by the police as per the Investigating Officer along-with the victim. Circumstances of the case require us to question arrest of the accused as it has been shown in the police record. In particular facts of the case, as a matter of abundant caution, we are bound to insist that the identity of the accused should be proved by the prosecution, as we are also of the view that family of the victim was overzealous to involve Munesh and the Investigating Agency to involve Rameshwar as accused. 36. Having examined the evidence of Munesh, now, we shall examine the case against accused Rameshwar and Dinesh @ Pillu. It is to be noted that reasons stated by us for acquittal of Munesh are also germane for appreciation of evidence against Rameshwar and Dinesh @ Pillu. We shall observe that prosecution has failed to prove identity of the accused Rameshwar and Dinesh @ Pillu. PW-9 Tulsi Ram is the only witness who had come into contact with the accused at the time of abduction/kidnapping. Tulsi Ram, PW-9 stated "I told the police that two persons came on motor cycle". Attention of the witness was drawn to his statement Ex.D/3 recorded under Section 161 Cr.P.C. portion A to B where it is only stated that "out of two persons, he knew only one accused" to answer this confrontation witness replied that it was wrongly recorded as he knew both. He further stated in his statement that except Mukesh why he had not named other person, witness could not disclose the reason as to why he had told the same to the police. Witness was further confronted with his police statement recorded under section 161 Cr.P.C. when he told to the Court that he had disclosed the name of Rameshwar but later said as to why it was not recorded in statement Ex.D/3 recorded under Section 161 Cr.P.C. no explanation or reason could be furnished, therefore, we have to note that Rameshwar was not been named by the victim in his statement recorded under Section 161 Cr.P.C. 37. Ram Khiladi (PW-1) in Court stated that two persons belonging to Village Tundpura and one of Village Natoz had come to his house and seen Tulsi Ram. They had stayed for one hour. Ram Khiladi (PW-1) in Court stated that two persons belonging to Village Tundpura and one of Village Natoz had come to his house and seen Tulsi Ram. They had stayed for one hour. They again came to his house and had met Tulsi under the banyan tree. This material fact has not been stated in the complaint made to police. In cross-examination witness Ram Khiladi, PW-1 admitted that the fact Munesh along-with two persons of Village Tundpura and one of Village Natoz had come to his house was not stated by him in complaint EX.P/1 and statement recorded under Section 161 Cr.P.C. Ex.D/1. He had also not disclosed the fact of Tulsi Ram meeting accused under the banyan tree in his complaint Ex.P/1 and statement recorded under Section 161 Cr.P.C. Ex.D/1. Thus, story that the victim and family members knew the abductors/kidnappers has been introduced at a highly belated stage. Taking the confrontations brought on record by the defence to the statements made of witnesses before police into consideration, it can be safely inferred that witnesses were not known to kidnappers/abductors. Thus, in our opinion it was incumbent for the prosecution to have carried test identification parade. Normally, in a case where accused are apprehended at the spot, Court will not insist for prosecution to prove the identity of the accused but in the present case, regarding arrest of the accused Mukesh and Dinesh @ Pillu, there is inherent contradiction which cannot be reconciled to save the case of the prosecution. Now, let us take note of that contradiction. 38. Tulsi Ram, victim PW-9 in the Court stated " tc iqfyl igqWaph ml le; esjs ikl eqds'k o jkes'oj Fks ftudks iqfyl idM+ dj ys vkbZ FkhA ". In cross-examination also Tulsiram PW-9 has categorically stated that Dinesh @ Pillu was never present when he was rescued and arrest of the accused was effected. However, as per police record and the arrest memos Dinesh @ Pillu and Mukesh were arrested at the spot. Contrary to this, victim Tulsi Ram PW-9 has stated that at Police Station, Bhusawar at about 10.00 P.M., he was brought along-with Mukesh and Rameshwar from Narayani Dham whereas Dinesh @ Pillu and Munesh were brought from Halena Police Station. Against the police record, contradictory assertion has been made by the victim PW-9 Tulsi Ram. 39. Contrary to this, victim Tulsi Ram PW-9 has stated that at Police Station, Bhusawar at about 10.00 P.M., he was brought along-with Mukesh and Rameshwar from Narayani Dham whereas Dinesh @ Pillu and Munesh were brought from Halena Police Station. Against the police record, contradictory assertion has been made by the victim PW-9 Tulsi Ram. 39. Rameshwar and Munesh had allegedly made disclosure statement Ex.P/23 and P/22 respectively. 40. We have already discarded the disclosure statement made by Munesh accused Ex.P/22 for non-attestion of the same by the witnesses. Similarly, we shall apply the same reasons enumerated by us above to ignore the disclosure statement Ex.P/23 made by Rameshwar. Once we ignore disclosure statement, P/23, there is no evidence with us to connect the Rameshwar with the crime. Similarly after taking the testimony of PW-9, Tulsi Ram into consideration, we hold that Dinesh @ Pillu was not arrested at the spot, thus, there is no evidence on the file to connect Dinesh @ Pillu with the crime. Thus, as a matter of abundant caution, we are of the view that in the present case, test identification parade of the accused ought to have been carried and in view of the contradiction emerging between the police record and statement of Tulsi Ram PW-9, we are left with no option except to extend benefit of doubt to accused Dinesh @ Pillu and Ramehwar with a heavy heart. 41. Once we have doubted the prosecution case qua three accused out of four accused sent for trial to uphold conviction of the solitary accused Mukesh, we have to be extra cautious. Tulsi Ram, PW-9 in the Court while identifying Dinesh @ Pillu and Rameshwar had stated that Mukesh was not present in the Court on the date his testimony was recorded. Subsequently, thereto this witness had never identified Mukesh. PW-9 Tulsi Ram stated that Mukesh once came along-with Munesh. We have already doubted by giving detailed reasons the story that Munesh along-with other co-accused came to the house or to the school of the Tulsiram. Tulsi Ram, PW-9 stated " blls igys eSa mldks ugha tkurk FkkA " later this witness stated that " eSa eqds'k dks psgjs ls tkurk FkkA ". If the witness knew Mukesh by face, then it was very necessary for the prosecution to have got Mukesh identified in the Court. Tulsi Ram, PW-9 stated " blls igys eSa mldks ugha tkurk FkkA " later this witness stated that " eSa eqds'k dks psgjs ls tkurk FkkA ". If the witness knew Mukesh by face, then it was very necessary for the prosecution to have got Mukesh identified in the Court. Since prosecution has failed to even identify the spot, in view of the contradiction regarding arrest of Dinesh @ Pillu and Rameshwar, it will not be safe for us to sustain the conviction of Mukesh as prosecution has failed to prove his identity. 42. As a result of above discussion, we extend benefit of doubt to all the four appellants and accept their appeal and set aside the conviction and sentence awarded upon the appellants and acquit them of the charges. 43. As a parting note, we must state that in the present case, efforts made by the Investigating Agency to apprehend the kidnappers/abductors have not succeeded to secure conviction of the persons allegedly apprehended because of inherent weaknesses in the prosecution case.Appeals allowed. *******