JUDGMENT : A.V. Chandrashekara, J. 1. Appellants herein were accused in a criminal case in S.C. 118/10 which was pending on the file of Additional Sessions Judge, Raichur. Both of them have been convicted for the offences punishable under Sections 364A, 302 and 201, I.P.C. vide judgment of conviction dated 3.5.2014. They have been sentenced to undergo imprisonment for life relating to the offence punishable under Sections 302 and 364A, I.P.C. and to undergo RI for a period of 7 years and to pay a fine of Rs. 10,000/- each for the offence punishable under Section 201, I.P.C. 2. It is this judgment of conviction and sentence which is called in question on various grounds in this appeal filed under Section 374, Cr.P.C. 3. After concluding investigation, the Inspector of Police, Sindhanur, Raichur District, had filed a charge sheet against these accused for the above said offences read with Section 34, I.P.C. 4. The gist of the allegations made in the charge sheet is that both the accused had suffered huge financial loss in their business and therefore, they had made up their mind to kidnap the son of Sohan Singh, a small boy aged 8 years in order to demand ransom from Sohan Singh. On 12.3.2008 at about 7.00 p.m., both the accused kidnapped the said boy-Abhishek from the textile store of the complainant and took him on a motorcycle bearing registration No. KA-36-L-4728. They had an apprehension that if he was set free, he would disclose their names to his parents and therefore, they took him to the land of Holeyappa on the outskirts of Somlapura village and murdered him by forcibly pushing a handkerchief into his mouth and later on setting him ablaze by pouring petrol. 5. In order to bring home the guilt of the accused, the prosecution has examined in all 32 witnesses inclusive of two additional witnesses. Ten material objects and 32 exhibits have been got marked. Both the accused have been examined under Section 313, Cr.P.C. Their defence is one of total denial of all the allegations levelled against them. 6. We have heard arguments advanced by Mr. Ershad Ahmed, learned counsel for the appellants and Mr. Prakash Yeli, learned Additional SPP representing the State. 7. PW 1 - Sohan Singh, father of the deceased has testified about the incident in question. 6. We have heard arguments advanced by Mr. Ershad Ahmed, learned counsel for the appellants and Mr. Prakash Yeli, learned Additional SPP representing the State. 7. PW 1 - Sohan Singh, father of the deceased has testified about the incident in question. He knew 1st accused who had owned a small garment shop adjacent to his shop. The 2nd accused was a friend of the 1st accused and was running a small hotel at Sindhanur. On 12.3.2008, the children of PW 1 came back from their school and the younger son-Abhishek was feeling hungry and therefore, PW 1 asked his servant-Dinesh to bring idli and vada. After some time, Abhishek was not to be seen and therefore, PW 1 searched for him. In spite of his best efforts the boy could not be traced. Hence he lodged a missing complaint. At 8.00 p.m. on the next day he came to know that his son-Abhishek was found murdered and burnt in Somlapur village. Immediately his brother-Arjun Singh went to the spot and identified the body of the deceased as that of Abhishek. 8. On 21.2.2010, police summoned PW 1 to the police station and showed accused Nos. 1 and 2 to know as to whether he could identify them. According to PW 1, police told him that they had murdered his son in the year 2008. Therefore PW 1 asked the 1st accused as to why he did so and then 1st accused is stated to have confessed that he was in utter financial difficulty and therefore he kidnapped Abhishek and killed him. He is stated to have further confessed to PW 1 that he gave Re. 1 to Abhishek and lured him to come to his shop. When Abhishek came, he gave him a piece of bread mixed with sleeping tablets and with the help of accused No. 2, took Abhishek to Somlapur and forcibly inserted a handkerchief into his mouth and killed him and later on burnt his body by pouring petrol. He is stated to have used the motorcycle-M.O. 2. 9. PW 3 - Vedamitra is the Panch witness and according to the police, accused Nos. 1 and 2 confessed before him about kidnapping of Abhishek from the garment shop of Sindhanur and killing him. PW 4-Srinivas is the Panch witness and attestor to Ex. P5, inquest panchnama drawn on 13.3.2008. He is stated to have used the motorcycle-M.O. 2. 9. PW 3 - Vedamitra is the Panch witness and according to the police, accused Nos. 1 and 2 confessed before him about kidnapping of Abhishek from the garment shop of Sindhanur and killing him. PW 4-Srinivas is the Panch witness and attestor to Ex. P5, inquest panchnama drawn on 13.3.2008. PW 5 - Bhavarlal is also a co-Panch and PW P. 6 - Durgappa is the attestor to Ex. P7 - panchnama drawn at the scene of offence. PW 7 - Arjun Singh, brother of PW 1-complainant, has spoken about his familiarity with accused Nos. 1 and 2 and is stated to have gone to the scene of occurrence after police informing him about the dead body being found. PW 8 - Rangappa identified the dead body of the boy being found in the field of Holeyappa in Somlapur village. PW 9 has also deposed about the same. 10. PW 10 - Ajju @ Afzal Hussain is stated to have attempted to trace Abhishek on hearing the news from PW 1. He is stated to have asked both the accused about Abhishek being missing and 1st accused telling him that they were returning from the village after collecting dues and that they had not seen the boy. According to him, 1st accused had requested him not to inform this matter to his employer. Basappa is the owner of a Hero Honda motor bicycle. He is examined as PW 2 and has spoken about the seizure of the said vehicle by the police. He has deposed that he purchased the same from Doddabasava examined as PW 13. PW 14 is Byagar Holeyappa, owner of the land in which the dead body was found. PW 15 is Usman Khan who was working in Reliance petrol bunk at Sindhanur and according to him, 1st accused purchased 2 litres of petrol from the said bunk on the evening of 12.3.2008 and he has identified 1st accused. 11. PW 16 - Virupaksha has spoken about the motorcycle being parked near the halla in the vicinity of the scene of occurrence. He has deposed he did not tell anybody about the motorcycle being abandoned there. PW 19 - Moushin is the owner of the bakery in Sindhanur. He has deposed that accused Nos. 11. PW 16 - Virupaksha has spoken about the motorcycle being parked near the halla in the vicinity of the scene of occurrence. He has deposed he did not tell anybody about the motorcycle being abandoned there. PW 19 - Moushin is the owner of the bakery in Sindhanur. He has deposed that accused Nos. 1 and 2 were shown to him in February 2010 in the police station and he identified 1st accused coming to his shop and purchasing two cakes by paying Rs. 20/- along with the boy who was wearing earrings. He is stated to be an important witness, according to the prosecution, in regard to the theory of deceased being seen last in the company of the 1st accused at 7.30 p.m. in the year 2008. 12. PW 20 - Siddu @ Siddalinga was working in the shop of PW 1 and has spoken about Dinesh being sent to a nearby hotel to bring idli to Abhishek and Abhishek being not found within a few minutes. He has spoken about going near the scene of occurrence along with Arjun Singh and identifying the dead body near the bushes in Somlapura village. He suspected that these accused might have committed the murder of Abhishek as they were not seen in town. Dinesh who was working under PW 1 has spoken about idli being brought by him to Abhishek and Abhishek being not found. PW 22-Sheru Singh is the brother of the deceased and he is examined as an additional witness. 13. Mehaboob Pasha had not been cited as a witness in the charge sheet, but came to be examined as an additional witness, as PW 23. He has testified about knowing accused Nos. 1 and 2 in the year 2008 while working under 1st accused and about 1st accused taking Abhishek on a motorcycle. PW 24 - Dr. Vishwanath Reddy, medical officer of Sindhanur conducted post mortem on the dead body of Abhishek and has opined that death was due to asphyxia as a result of gagging the mouth. One Shafiulla - PW 27 has testified to the effect that 2nd accused had approached him to give him a job and 1st accused was working under him from the end of 2008 to 2009 for one year. He identified 2nd accused in the police station on being shown by the inspector of police. 14. One Shafiulla - PW 27 has testified to the effect that 2nd accused had approached him to give him a job and 1st accused was working under him from the end of 2008 to 2009 for one year. He identified 2nd accused in the police station on being shown by the inspector of police. 14. PW 28 - Ranchod Singh deposed that Ist accused had come to his place and requested him to give a job and was working as salesman for 4-5 years. He was summoned to the police station on 23.3.2010. PW 29 - S.S. Hullur, Circle Inspector of Police conducted partial investigation and PW 31 - Maruti S. Gullari was the police officer who received the oral complaint from Sohan Singh and registered it in Crime No. 52/08 and found the dead body of a six year old boy in a field in Somlapur village and recorded the statements of CWs-8 to 11 and 16 and received post mortem report. PW 32 - Sridhar, Deputy Superintendent of Police conducted further investigation and filed charge sheet. 15. Both the accused have been examined under Section 313, Cr.P.C. in regard to the incriminating materials emanating from the case of the prosecution. Their defence is one of total denial of all the allegations. 16. Following are the charges leveled against the accused on 05.08.2011 by the learned Additional Sessions Judge, Raichur: "That, you on 12.03.2008 at about 19.00 hours near Variety garments at Sindhanur you/accused in furtherance of your common intention kidnapped Abhishek 8 year old boy for ransom so as to make his father make payment and thereby you/accused committed an offence punishable under Section 364-A r/w 34 of IPC within the cognizance of this Court. Secondly, on the above said date at about 21.00 hours at barren land of Holeyappa situated in the village limits of Somalapur in furtherance of your common intention murdered the said boy and thereby you/accused committed an offence punishable under Section 302 r/w 34 of IPC within the cognizance of this Court. Secondly, on the above said date at about 21.00 hours at barren land of Holeyappa situated in the village limits of Somalapur in furtherance of your common intention murdered the said boy and thereby you/accused committed an offence punishable under Section 302 r/w 34 of IPC within the cognizance of this Court. Lastly, on the above said date time and place you/accused in furtherance of your common intention knowing that an offence of murder has been committed by you, in order to get yourself screen off from the said offence caused disappearance of certain evidence by setting the dead body ablaze using petrol and thereby you/accused committed an offence punishable under Section 201 r/w 34 of IPC within the cognizance of this Court". 17. Following are the points framed for consideration by the learned Sessions Judge in paragraph No. 6 of the impugned judgment at page 3 and 4. (i) Whether the prosecution proves beyond all reasonable doubt that on 12.03.2008 at about 19.00 hours near Variety Garments at Sindhanur, the accused No. 1 and 2 in furtherance of their common intention kidnapped Abhishek 8 years old boy for ransom so as to make his father make payment and thereby committed an offence punishable under Section 364-A r/w 34 of IPC? (ii) Whether the prosecution proves beyond all reasonable doubt that on the above said date at about 21.00 hours at barren land of Holeyappa situated in the village limits of Somalapura accused No. 1 and 2 in furtherance of their common intention murdered the said boy and thereby committed an offence punishable under Section 302 r/w 34 of IPC? (iii) Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place, accused No. 1 and 2 in furtherance of their common intention knowing that an offence of murder has been committed by them, in order to get themselves screen off from the said offence caused disappearance of certain evidence by setting the dead body ablaze using petrol and thereby committed an offence punishable under Section 201 r/w 34 of IPC? 18. The learned Sessions Judge has answered point Nos. 1 to 3 in the affirmative and has ultimately convicted the accused and sentenced as mentioned above. 19. 18. The learned Sessions Judge has answered point Nos. 1 to 3 in the affirmative and has ultimately convicted the accused and sentenced as mentioned above. 19. On a plain reading of the gist of the charge sheet and the charges leveled against the accused on 05.08.2011, it is evident that prosecution has relied upon circumstances. The circumstances relied upon by the prosecution are; (i) Deceased being last seen in the company of the accused and the murder being committed for gain and destruction of evidence of murder by setting the body ablaze by using petrol; (ii) Motive; and (iii) Abscondence of the accused after the commission of offence. 20. In 1952 in the case of Hanumant Govind Nargundkar and Another Vs. State of Madhya Pradesh reported in AIR 1952 SC 343 , Hon'ble Apex Court has explained the ambit of circumstantial evidence as follows; "In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof. In cases where the evidence is of a conclusion of guilt to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused". 21. In the constitutional bench decision reported in AIR 1963 SC 200 in the case of M.G. Agarwal Vs. State of Maharashtra, Hon'ble Apex Court has dealt about the appreciation of evidence in cases based on circumstantial evidence. It is held as follows in paragraph 18; (18) "There is another point of law which must be considered before dealing with the evidence in this case. The prosecution case against accused No. 1 rests on circumstantial evidence. State of Maharashtra, Hon'ble Apex Court has dealt about the appreciation of evidence in cases based on circumstantial evidence. It is held as follows in paragraph 18; (18) "There is another point of law which must be considered before dealing with the evidence in this case. The prosecution case against accused No. 1 rests on circumstantial evidence. The main charge of conspiracy under Section 120-B is sought to be established by the alleged conduct of the conspirators and so far as accused No. 1 is concerned, that rests on circumstantial evidence alone. It is a well-established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused persons's conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused is entitled to the benefit of doubt. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. It is in the light of this legal position that the evidence in the present case has to be appreciated". It is in the light of this legal position that the evidence in the present case has to be appreciated". In the light of the principles enunciated by the Hon'ble Apex Court in the cases referred to above, the evidence placed on record before the trial Court will have to be reassessed since this is the final Court on facts. 22. Hence, following points arise for consideration of this Court: (i) Whether the trial Court is justified in coming to the conclusion that the prosecution has proved all the circumstances relied upon by it to bring home the guilt of the accused, beyond all reasonable doubt? (ii) Whether the trial Court is justified in convicting the accused and sentencing them to undergo imprisonment for life for the offence punishable under Sections 364 and 302 of IPC and 7 years of RI for offence punishable under Section 201 of IPC? (iii) Whether any interference is called for and if so to what extent? REASONS 23. Point No. (1): The case of the prosecution is that Abhishek aged about 8 years was the son of PW. 1/Sohansingh and he was abducted by these accused with a specific motive of demanding ransom from PW. 1 and later on murdering him in the barren land of Holeyappa within the limits of village Somalapur of Raichur District at about 11.00 p.m. on the night of 12.03.2008. Whether anybody has spoken anything about the demand for ransom, is the question. Sohansingh who is examined as PW. 1 is the father of deceased Abhishek. He has deposed that his wife had gone to her native place for confinement and therefore he had to look after his two children inclusive of Abhishek. On 12.03.2008 both his children came back from the school and changed their uniform and came near his shop at about 6.00 p.m. Siddu, Dinesh and Rahim were working in his shop and at that time Abhishek wanted some food to eat since he was feeling hungry. PW. 1/Sohansingh asked his worker-Dinesh to bring idly from the near by hotel since PW. 1 was engaged in answering the customers. When Dinesh brought idli, he looked for Abhishek and was not to be found. In spite of searching here and there, he could not be traced. He thought that he might have gone to his elder brother Arjun Singh's shop. By 9.30. 1 was engaged in answering the customers. When Dinesh brought idli, he looked for Abhishek and was not to be found. In spite of searching here and there, he could not be traced. He thought that he might have gone to his elder brother Arjun Singh's shop. By 9.30. p.m. he closed his shop and came back to his house and his elder brother also came back from his shop and Abhishek was not with him. Therefore, he again searched for Abhishek for 2-3 hours and later on informed the police about Abhishek being not traced in spite of search. 24. On the next day at about 8.00 a.m. the dead body of his son was found in Somalapur village and therefore his brother and some people in the locality went there and identified the dead body as that of Abhishek. On the same day at about 5.00 p.m. post mortem was conducted and gold studs in the ear of Abhishek were in tact. 25. The best person who could have spoken about the alleged demand for ransom was PW. 1, the father of the deceased. He has not spoken anything about the alleged ransom for money. At paragraph No. 23 of his deposition, he has specifically deposed that at no point of time accused Purushottam had sought for any financial help. It is his case that himself and Purushottam were in good terms and that he had no grudge or ill will against him. Next witness, Arjun Singh - PW. 7 is the elder brother of PW. 1 and both of them were staying together in one house. PW. 7 was running a textile shop of his own. He also knew accused Nos. 1 and 2 prior to the incident. After receiving news about half burnt dead body being found in the land of Holeyappa, he went there and identified the body as that of Abhishek. He has not spoken anything about the alleged demand for ransom made by accused No. 1 or accused No. 2 with himself or with his brother. Therefore, there is absolutely no evidence in regard to the alleged demand for ransom made by accused Nos. 1 and 2. 26. PW. 10/Mr. Ajju @ Afzal Hussain was working in the shop of Sohansingh from the year 2005. He has spoken about the number of children that Sohansingh had. Therefore, there is absolutely no evidence in regard to the alleged demand for ransom made by accused Nos. 1 and 2. 26. PW. 10/Mr. Ajju @ Afzal Hussain was working in the shop of Sohansingh from the year 2005. He has spoken about the number of children that Sohansingh had. He has deposed in his examination in chief that he was summoned to police station two years after the incident and he was enquired by the police. He is stated to have informed the police stating that on the date of the incident he was going to the market and accused Nos. 1 and 2 came on a motor bicycle. He is stated to have asked accused Nos. 1 and 2 as to whether they had seen Abhishek the second son of employer. Accused No. 1 is stated to have answered that he was returning from the village after collecting debts from the customers and that he had not seen Abhishek. Accused No. 1 is stated to have requested him not to inform this matter to his employer. It is his case that police recorded his statement and showed the motor bicycle which is identified as M.O. 2. 27. He is subjected to cross-examination. He has deposed that on the next date he was not on duty and that he did not know anything about the incident. He does not remember whether accused No. 1 had attended cremation of the dead body of Abhishek. The police recorded his statement two years after the incident. Accused No. 1 was admittedly working in Vimal Garments opposite to the shop run by PW. 1. It is his case that, when he was summoned to the police station after two years of the incident, police assaulted him. It is his case that, he was staying in Sindhanur for a period of six months and did not inform the police anything about the request made by accused No. 1 not to disclose to his employer. He has further deposed that he did not inform his employer about accused No. 1 making such a request to him. 28. Whether the evidence of Ajju really inspires the confidence of the Court is the question. If accused No. 1 had really requested him not to inform his employer, he would not have kept quiet. He was summoned to the police station two years after the incident. 28. Whether the evidence of Ajju really inspires the confidence of the Court is the question. If accused No. 1 had really requested him not to inform his employer, he would not have kept quiet. He was summoned to the police station two years after the incident. Inordinate delay in the alleged disclosure of such an important fact to the police or PW 1 or PW 7 about accused No. 1 making a request not to inform to his employer, is a very feeble evidence and much credence cannot be attached to the evidence of Ajju. When accused No. 1 had told him that he had not seen Abhishek, it is un-understandable as to how accused No. 1 could make a request to him not to tell his employer. This piece of evidence is considered as an extra-judicial confession by the trial court. There is absolutely no acceptable evidence to consider this piece of evidence as extra judicial confession. An extra judicial confession, if voluntary, can be relied upon by the Court, along with other evidence, in convicting the accused as held by the Hon'ble Apex Court in the case of Mulk Raj Vs. The State of U.P., reported in AIR 1959 SC 902 . 29. What is deposed by PW. 1 is that two years after the incident, he was summoned to the police station and both the accused were in the police station and they were shown to him and he identified them. It is his case that, accused No. 1 disclosed to him that he lured his son by showing a one rupee coin and gave him a piece of bread mixed with sleeping tablet and later on he was taken on motor bicycle with the assistance of accused No. 2 to the barren land in Somalapur village. It is his case that accused No. 1 told him about piercing a kerchief in the mouth of Abhishek and later on setting him ablaze by burying petrol. Even if this is accepted as true, whether said disclosure would be an extra judicial confession is to be looked into. 30. Confession made by accused Purushottam, while in police custody that too in the presence of investigating officer cannot be proved against the accused in view of the legal inhibition found under Section 26 of the Evidence Act. Even if this is accepted as true, whether said disclosure would be an extra judicial confession is to be looked into. 30. Confession made by accused Purushottam, while in police custody that too in the presence of investigating officer cannot be proved against the accused in view of the legal inhibition found under Section 26 of the Evidence Act. Usually, and as an important caution, Court requires some material corroboration to an extra judicial confession statement as held by the Hon'ble Apex Court in the case of Ratangond V/s. State of Bihar, reported in AIR 1959 SC 18 . It would not be proper to convict a person on the basis of extra judicial confession alone unless corroborated by other evidence. The nature of corroborative evidence must necessarily depend upon the facts of each case. 31. Viewed from any angle the alleged disclosure made by accused No. 1 to PW. 1 in the police station on 21.02.2010 in the presence of investigating officer cannot be considered as an extra judicial confession within the purview of Section 26 of Evidence Act, to be the basis for conviction. 32. In fact, PW. 1 has deposed that Purushottam had also joined him in searching for his son and he joined him after 12.30 mid night. He has deposed that parents of Purushottam had come to the place where the dead body of Abhishek was cremated. It is his case that, five to six months after the incident Purushottam vacated his shop and went to a different place. From this it is clear that accused No. 1 was very much in Sindhanur town for a period of five months after the incident. The theory of abscondence relied upon on the I.O. is not at all proved. 33. Prosecution has relied upon the seizure of one motor bicycle bearing No. KA-36/L-4728 on 21.02.2010 in the house of one Basava S/o. Mallappa of Athnur village. According to the prosecution this vehicle was used by accused Nos. land 2 to abduct the deceased and taking him to Somalapur village. This is not a recovery in terms of Section 27 of the Evidence Act. If this vehicle had been seized at the spot when the body of Abhishek was noticed, it would have been something different. Therefore, much credence cannot be attached to Ex. land 2 to abduct the deceased and taking him to Somalapur village. This is not a recovery in terms of Section 27 of the Evidence Act. If this vehicle had been seized at the spot when the body of Abhishek was noticed, it would have been something different. Therefore, much credence cannot be attached to Ex. P4 and the panchanama drawn in regard to the seizer of the vehicle in question. 34. Admittedly, the gold stud worn in his ear were intact when his body was found. If really murder had been for gain, it would not have been found. In fact the evidence of PW. 3/Veda Mithra, who is a close friend of PW. 1 discloses that, after the incident accused No. 1 and his father stayed in Sindhanur for one year and they were running a shop. He has feigned ignorance as to whether the father of accused No. 1 was present in Sindhanur after the incident. But he has deposed that accused No. 1 was very much present for a period of one year after the incident. His evidence does not probabalize the circumstance of abscondence of accused No. 1 even remotely. 35. Ex. P3 is the spot panchanama stated to have been drawn by the police on 21.02.2010 in the presence of Veda Mithra. This does not disclose anything about the same being identified by accused as the place where the dead body was burnt. Therefore, the evidence of Veda Mithra, who is examined as PW. 3 is not of much assistance to the case of the prosecution. 36. PW. 7 the elder brother of PW. 1 has deposed about the identification of dead body of Abhishek and identifying him with the ear ring he had worn and the clothes. He has deposed that police summoned to the police station on 21.02.2010 and informed him that accused Nos. 1 and 2 had kidnapped his brother's son and killed him. This alleged disclosure made by police to PW. 7 is only a hearsay evidence and much credence cannot be attached to the same. Similar is the evidence of Rangappa who had been summoned to the police station two years after the incident and police disclosing him to about accused Nos. 1 and 2 having murdered the Abhishek. 37. Abdul Rahim who is examined as PW. 11 was also working in the shop of PW. Similar is the evidence of Rangappa who had been summoned to the police station two years after the incident and police disclosing him to about accused Nos. 1 and 2 having murdered the Abhishek. 37. Abdul Rahim who is examined as PW. 11 was also working in the shop of PW. 1/Sohansingh along with Dinesh and Ajju. He has spoken about the Abhishek returning from the school and asking his father to give him some snacks. PW. 1 asked Dinesh to bring snacks from the nearby hotel and later on Abhishek was not to be found and a search was conducted on the same day. He was also summoned to the police station two years after the incident and police told him about accused Nos. 1 and 2 murdering Abhishek and burning his dead body. This is found in paragraph No. 2 of his examination in chief and this is also a hear say evidence and cannot be considered as an admissible evidence. 38. Dodda Basava examined as PW. 13 was the owner of motor bicycle bearing No. KA-36/L-4728. He knew accused No. 2 as he was borrowing money from him for the purpose of running tea shop. It is his case that on 12.03.2008 at about 7.00 p.m. he went to the tea shop of accused No. 2 and accused No. 2 requested him to give his motor bicycle for some time and accordingly he handed over his motor bicycle to accused No. 2. On the next day i.e. on 13.03.2008 at about 10.30 a.m. accused No. 2 returned the motor bicycle and while returning the motor bicycle accused No. 2 had came along with accused No. 1 in the motor bicycle. Then accused No. 2 is stated to have introduced accused No. 1 as his friend to him. Later on he sold the motor bicycle to one Basava S/o. Mallappa resident of village in Devadurga Taluk. On 21.02.2010, the police came to his house along with accused No. 2 and he is stated to have enquired with accused No. 2. Then he is stated to have told him that himself and accused No. 1 kidnapped Abhishek and murdered him and tried to burn his body by burying petrol. This alleged statement stated to have made by accused No. 2 when he was in police custody, by no stretch of imagination, could be construed as an extra judicial confession. Then he is stated to have told him that himself and accused No. 1 kidnapped Abhishek and murdered him and tried to burn his body by burying petrol. This alleged statement stated to have made by accused No. 2 when he was in police custody, by no stretch of imagination, could be construed as an extra judicial confession. This alleged disclosure is inhibited under Section 26 of the Evidence Act. 39. He has specifically deposed that he saw accused No. 2 for the first time after the murder of Abhishek. In fact specific suggestions have been put to PW. 13 stating that accused No. 2 had not requested him to give his motor bicycle and that he had not taken his motor bicycle. Even if accused No. 2 had taken the motor bicycle from PW. 13, prosecution has to link the same to the murder and there is no evidence to that effect and important link is very much missing. His evidence cannot be considered as one of the circumstance relating to the deceased being last seen in the company of the accused. 40. Prosecution has relied upon the evidence of PW. 15/Osman Khan, who was working in Reliance Petrol Bunk at Sindhanur. It is his case that on 12.03.2008 at about 8.00 p.m. Purushottam i.e. accused No. 1 came to his petrol bunk with one empty bottle and asked him to fill two liters of petrol to the bottle. Accordingly, he filled two liters of petrol and accused No. 1 paid the charges and left the petrol bunk. Two years after the incident, he was summoned to the police station and police wanted him to identify as the person who purchased petrol from him and he identified accused No. 1 as the person who purchased two liters of petrol on the day at about 8.00 p.m. on 12.03.2008 from Reliance Petrol Bunk where he was working. He came to know about the murder of Abhishek by accused Nos. 1 and 2 after kidnapping him. 41. Prosecution wants to rely upon this about the purchase of two liters of petrol by accused No. 1 on the mid night on 12.03.2008 from the petrol bunk in which PW. 15 was working, as a link. In his cross examination he has feigned ignorance about the quantum of petrol sold on 12.03.2008 in the petrol bunk. 41. Prosecution wants to rely upon this about the purchase of two liters of petrol by accused No. 1 on the mid night on 12.03.2008 from the petrol bunk in which PW. 15 was working, as a link. In his cross examination he has feigned ignorance about the quantum of petrol sold on 12.03.2008 in the petrol bunk. According to him the bottle did not have any label. To a specific question as to whether petrol would be filled to the bottles, he has deposed that normally petrol would not be filled to the bottles and they would give petrol in bottles only when the customer is in need of it for emergency purpose. What was the emergency that accused No. 1 had, to purchase two liters of petrol in a bottle on that day is not spoken to by PW. 15. He has specifically deposed that a receipt would invariably be issued for the sale of petrol and he does not remember the number of the receipt. Nothing came in the way of police to have seized the receipt book dated 12.03.2008 and it would have established as to whether two liters of petrol was really sold in Reliance Petrol Bunk at Sindhanur by PW. 15 to accused No. 1. 42. Admittedly, about 17 workers were working in the said petrol bunk. He does not know the colour of shirt worn by accused No. 1 on 12.03.2008, when he approached him for two liters of petrol. On analyzing the whole evidence of PW. 15/Osman Khan, his evidence does not inspire confidence since selling of petrol by filling in bottle is not an usual practice. The inordinate delay in recording statement of this witness does not inspire the confidence of this court. 43. Mr. Balayya, examined as PW. 17 is owning land in Somalapur village. According to him in the year 2008 himself and one Virupaksha had been to Somalapur in search of agricultural labours. At about 8.30 p.m., when both of them were returning to their home, they saw a motor bicycle parked near the halla, which was shown to him at later point of time. He has identified the said motor bicycle as MO. 10. He has identified the said motor bicycle shown to him in the year 2010 after a long gap. In his cross examination PW. He has identified the said motor bicycle as MO. 10. He has identified the said motor bicycle shown to him in the year 2010 after a long gap. In his cross examination PW. 17 has specifically deposed that he did not disclose to anybody about a motor bicycle being seen by him near halla. After some time dead body was found and he informed the people about the motor bicycle and did not inform the police about the motor bicycle. The natural course of conduct would be to inform the police about a motor bicycle being abandoned near the place where the dead body was found. Inordinate delay of two years in identifying the said vehicle does not inspire confidence. This has been considered as a very strong link by the learned Sessions Judge. Similar is the evidence of Virupaksha who had allegedly gone with PW. 17 Balayya and noticing MO. 10 near the halla. This also stands on the same footing and does not inspires confidence. It is ununderstandable as to how he could identify a motor bicycle as the one noticed by him two years earlier to the incident, when it was shown to him in the police station. 44. Prosecution has relied on motive as circumstance. According to the prosecution, 1st accused was in utter financial difficulty and therefore he wanted ransom from PW 1 and in this regard abducted his eight-year old boy. This, according to the prosecution, is the motive. As per Section 8 of the Evidence Act, motive is a relevant fact. The provision deals with the following three aspects: (i) a fact which shows or constitutes a motive for any fact in issue or relevant fact; (ii) the acts constituting preparation for any fact in issue or relevant fact; and (iii) the conduct of the person either previous or subsequent to the offence. Motive is that which moves a man to do a particular act. There can be no action without a motive. Proof of presence of motive, preparation, opportunity or the previous attempts would be relevant as they go to show not only the mens rea in committing a crime, but also provide sufficient information in establishing the commission of the offence. Motive may create a very strong suspicion but it cannot take the place of proof. Proof of presence of motive, preparation, opportunity or the previous attempts would be relevant as they go to show not only the mens rea in committing a crime, but also provide sufficient information in establishing the commission of the offence. Motive may create a very strong suspicion but it cannot take the place of proof. Mere possibility of the existence of motive cannot make the accused guilty, as held by the Hon'ble apex court ion the case of SARWAN SINGH RATTAN SINGH v. STATE OF PUNJAB ( AIR 1957 SC 637 ). The facts which tend to show total absence of motive may also be adduced. Where the prosecution case depends on circumstantial evidence, motive assumes importance and goes a long way to prove the case of the prosecution, as held by the Hon'ble apex court in the case of SHIVAJI v. STATE ( AIR 1973 SC 55 ). Mere existence of motive by itself is not an incriminating circumstance and it cannot give rise to an inference of guilt nor can it form the basis for conviction. Motive for the crime even if adequate, cannot by itself sustain a criminal charge. If the evidence against the accused is clear and clinching, failure on the part of the prosecution to establish motive is of no consequence. 45. In the present case, as already discussed, PW 1 was the best person to speak about the motive of the 1st accused to murder his son, but he has not spoken anything about motive. He admits that he knew the 1st accused very well and was not at loggerheads with him at any point of time. He has not spoken anything about the demand for ransom made by 1st accused. Sheru Singh, elder son of PW 1 has deposed that himself and his brother Abhishek came back from school and went to the shop of 1st accused for playing and 1st accused gave Re. 1 to buy chocolates. It is his evidence that 1st accused had asked Abhishek to come to his shop so that he would take him on motorcycle. Therefore himself and his brother went back to the shop. Since his brother Abhishek was feeling hungry, his father sent Dinesh to get idli. 1 to buy chocolates. It is his evidence that 1st accused had asked Abhishek to come to his shop so that he would take him on motorcycle. Therefore himself and his brother went back to the shop. Since his brother Abhishek was feeling hungry, his father sent Dinesh to get idli. He has deposed that Abhishek had told him that he was going to the shop of Purushottam-1st accused and when he (Sheru Singh) went there, they were not to be found. This, according to the prosecution, is the theory of deceased being last seen in the company of the 1st accused. 46. Sheru Singh had not been cited as a witness in the charge sheet, but he came to be examined as an additional witness on 13.1.2004. In his cross-examination, he has specifically deposed that he did not tell his father that 1st accused had asked Abhishek to come to his shop afterwards and police did not record the statement. He has specifically deposed that there was no dispute or enmity between his father and Purushottam and Purushottam and his family attended the funeral of his brother. He has further deposed that their relationship with 1st accused was very cordial and there was no money transaction between his father and Purushottam. This speaks in volumes about the absence of motive and the evidence of this boy assumes importance with regard to absence of motive. 47. What credibility could be attached to the evidence of Sheru Singh, is the question. The trial court has attached much importance to the evidence of Sheru Singh on the ground that both of them came back from school and Abhishek went to the shop of 1st accused and after some time, they were not to be found. He has deposed that for the first time he has deposed before the Court to that effect. If really accused No. 1 had given chocolate and had asked him to come after some time later and that he would take him in a motor bicycle, he would have naturally disclosed to his father soon after the dead body was found. 48. Prosecution has examined PW 23 - Mehaboob Pasha who was also not cited as a charge sheet witness. He has deposed that he knew PW 1 and his children as also accused Nos. 1 and 2. 48. Prosecution has examined PW 23 - Mehaboob Pasha who was also not cited as a charge sheet witness. He has deposed that he knew PW 1 and his children as also accused Nos. 1 and 2. He was working in the shop of 1st accused, and in the year 2008 business was stated to be not that good. It is his case that both Abhishek and Sheru Singh used to visit their shop for playing. On 12.3.2008, both Abhishek and Sheru Singh came to their shop and 1st accused asked as to whether they would like to eat something. They told 1st accused that they would be interested to eat 'Boor,' a Rajasthani sweet. Purushottam is said to have given Re. 1 to each of the boys and asked Abhishek to come to his shop later so that he would take him on motorcycle. To a pointed question by the court under Section 165 of the Evidence Act, PW 23 has deposed that Abhishek later came back to the shop and was talking to 1st accused-Purushottam. To another question, he has answered that 1st accused and Abhishek disappeared. The court asked him as to whether he had informed this fact to PW 1-Sohan Singh. He has specifically deposed that he did not inform this fact to PW 1. This answer raises a serious doubt about Abhishek being called by accused No. 1 and later on both of them being not found there. 49. In his further examination-in-chief, PW 23 has deposed that after some time, the father of 1st accused asked him to close the shop and accordingly he went back to his house. Next day he came to know that Abhishek had been kidnapped and killed and his body was burnt. After some months, his owner, i.e. 1st accused closed shop because of financial difficulty and started working in another shop and after some time, the family of 1st accused shifted to some other place. According to him, police summoned him to the police station in 2010 and both the accused were shown to him and he identified them. The normal course of human conduct would be to inform PW - 1 about the disappearance of Abhishek and accused No. 1 if they had together disappeared, soon after hearing the news of the murder of Abhishek. 50. The normal course of human conduct would be to inform PW - 1 about the disappearance of Abhishek and accused No. 1 if they had together disappeared, soon after hearing the news of the murder of Abhishek. 50. In his cross-examination, PW 23 has specifically deposed that police did not summon him on the next day of the incident. It is his case that there was no enmity between the 1st accused and Sohan Singh even after 2008 and he has feigned ignorance as to whether there was any monetary transaction between them. He has admitted that 1st accused and himself were in garments shop and after some time, 1st accused left the shop. He has specifically deposed that he has deposed to these facts for the first time before court. 51. If Abhishek was kidnapped and the 1st accused and the boy had disappeared, this would have been a strong circumstance and no normal man would keep quiet without informing this fact to the police after coming to know that the boy had been killed and burnt. The learned judge has attached too much importance to the evidence of this witness on the ground that this witness was working under 1st accused and there is no reason to disbelieve his version. One cannot forget that his version given before the court is for the first time and police had not recorded his statement at any point of time. The 10 has not spoken anything about the recording of statement of this witness. 52. The prosecution has relied on the theory of last seen' as a circumstance in the present case. What is held in the case of JASWANT GIR v. STATE OF PUNJAB, ([2005] 12 SCC 438) is that it is not possible to convict a person solely on the basis of last seen' evidence in the absence of other links in the chain of circumstantial evidence. It is further held that the court, in such circumstances, should extend the benefit of doubt to the accused. 53. In the present case, the alleged abduction took place at 8.00 p.m. on 12.3.2008 and the dead body of Abhishek was seen on the next day. There was a gap of more than 12-14 hours. It is further held that the court, in such circumstances, should extend the benefit of doubt to the accused. 53. In the present case, the alleged abduction took place at 8.00 p.m. on 12.3.2008 and the dead body of Abhishek was seen on the next day. There was a gap of more than 12-14 hours. The witnesses who had allegedly seen Abhishek and the 1st accused disappearing from his shop had kept quiet and for over 2 years this was not intimated either to the police or PW 1 or the uncle of the deceased. 'Last seen' theory comes into play where the time gap between both the deceased and accused were seen last alive and when the deceased found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible. 54. In another decision, the Hon'ble apex court has reiterated that it would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a time gap and there is possibility of other persons interfering within the meantime. In the absence of any other positive evidence to conclude that the accused and deceased were last seen together, it would be hazardous to come to the conclusion of guilt in those cases. 55. The owner of Hero Honda motorcycle from whom allegedly the 2nd accused had taken the vehicle, came back on the next morning and handed it over to him, and at that time the 1st accused was present. In the light of this fact being deposed by the owner of the said vehicle, the theory of last seen' does not get much credence in the present case. 56. Mr. Sridhar was the Circle Inspector from 14.8.2008 to 16.9.2012 and it was he who filed charge sheet. According to him, he procured the 1st accused from Rajasthan through his ASI and interrogated him and he confessed to the crime. Such confessional statement, even if it is found, will not be admissible evidence unless some distinct recovery is made pursuant to Section 27 of the Evidence Act. The alleged confession stated to have been made to him by the 1st accused is found in page 2 of his examination-in-chief. Such confessional statement, even if it is found, will not be admissible evidence unless some distinct recovery is made pursuant to Section 27 of the Evidence Act. The alleged confession stated to have been made to him by the 1st accused is found in page 2 of his examination-in-chief. On the basis of such confessional statement, 2nd accused was procured through his PSI and he also confessed his version of the crime. 57. During cross-examination, Sridhar has deposed that he doubted the involvement of accused Nos. 1 and 2 because they had absconded from Sindhanur after the incident. He has specifically admitted that if any person shifts from one place to another for work, it would not be an evidence to suspect. The 1st accused was running a cloth store in Sindhanur and was there for 6 months to one year and himself and his family members had also participated in the cremation of the dead body of Abhishek. It is not the case of the prosecution that the 2nd accused had also absconded from the place. 58. Explaining the meaning of the 'absconder,' the Hon'ble Supreme Court has held that 'to be an absconder in the eye of law, it is not necessary that a person should run away from, his house. It is sufficient if he hides himself to evade the process of law even if the hiding place he his home.' This is reiterated in the case of KARTARE v. STATE OF UTTAR PRADESH (1996 SC 76). In another decision reported in the case of PARASA RAJA MINIKYALA RAO v. STATE OF ANDHRA PRADESH (AIR 1984 SC 432), the Hon'ble apex court has held as follows: "How a person reacts in a given case may be the determinative factor so far as that case is concerned. That cannot be applied as a rule of universal application to all cases irrespective of the fact situation in that particular case. There can be no empirical formula as to how one reacts in a given situation and its effect and impact. It would be almost like trying to put a square peg ion a round hole." 59. Abscondence is a a very weak evidence in cases based on circumstantial evidence. In criminal cases based on circumstantial evidence, mere non-explanation of the accused will not lead to the proof of guilt. It would be almost like trying to put a square peg ion a round hole." 59. Abscondence is a a very weak evidence in cases based on circumstantial evidence. In criminal cases based on circumstantial evidence, mere non-explanation of the accused will not lead to the proof of guilt. The prosecution is expected to discharge its initial burden in the matter of proving the guilt of the accused beyond all reasonable doubt, as held by the Hon'ble apex court in the case of STATE OF UTTAR PRADESH v. KRISHNA GOPAL ( AIR 1988 SC 2154 ). The chain of circumstances in criminal cases based on circumstantial evidence must be completed so as to sustain conviction of the accused. In the absence of corroborative evidence to complete the chain of circumstances, it would not be possible and prudent to fasten the guilt on the accused on the solitary circumstance of either absconding or the deceased being last seen in his company. 60. Even otherwise, there is no clinching evidence to show that the deceased was seen in the company of accused Nos. 1 and 2 on the evening of 12.3.2008. The prosecution has made an attempt to prove the following circumstances: (i) abscondence of the accused from Sindhanur; (ii) accused No. 2 allegedly purchasing 2 litres of petrol on the evening of 12.3.2008 in a bottle (iii) 1st accused luring Abhishek with Re. 1 and giving him bread mixed with sleeping tablets; (iv) taking motorcycle by 2nd accused from Basava on the evening of 12.3.2008; (v) 1st accused and Abhishek disappearing from the shop of 1st accused; and (vi) murder being committed for gain, i.e. kidnapping for demanding ransom from PW 1. 61. These circumstances are links in the chain and even one missing link would create a serious doubt in the mind of the court. Suffice to state that the prosecution has not been able to prove these circumstances beyond all reasonable doubt and they have remained only as suspicion and therefore, cannot take the place of proof. 62. Inordinate delay in recording the statements of material witnesses and non-disclosure of material facts to the police or important persons relating to several aspects has raised a serious doubt in the mind of the court. 62. Inordinate delay in recording the statements of material witnesses and non-disclosure of material facts to the police or important persons relating to several aspects has raised a serious doubt in the mind of the court. It is true that this court has great sympathy for PW 1 for having lost a minor son due to barbarous act; but that alone cannot be the basis for conviction of the accused. In fact, in his examination under Section 313, Cr.P.C., the 2nd accused has answered question No. 42. To a pointed question as to whether he has anything to say, he has stated that after the incident he was in Sindhanur for 2 months and thereafter left for Wadi and worked under Shafiulla. All incriminating materials put to him have been emphatically denied. 63. The 1st accused has also answered question No. 42 in his examination under Section 313, Cr.P.C. stating that his father's shop was situated adjacent to the shop of PW 1 and his shop was managed by his father. He has further deposed that he was working in Vimal Garments and both himself and 2nd accused made efforts to search Abhishek and they participated in the funeral ceremony. It is his case that he was very much present in Sindhanur for 8 months after the incident and police had recorded his statement not once but 5 times. Later on, he went to Koppal and started business with his uncle after some time went to Rajasthan to visit his relatives and there, police came and took him to Sindhanur on the pretext of recording statement. 64. This explanation of accused Nos. 1 and 2 will have to be viewed in the light of the inability of the prosecution to prove the chain of links in the present case. The learned judge has not tested the evidence relating to each circumstance on the touchstone of intrinsic probabilities and is more persuaded by the fact that Sheru Singh, elder brother of the deceased was with him when he came back from school and that one of the workers in the shop of the 1st accused has deposed against 1st accused. 65. On re-appreciation of the evidence, we are of the considered opinion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt in regard to the alleged abduction of Abhishek, son of PW 1. 65. On re-appreciation of the evidence, we are of the considered opinion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt in regard to the alleged abduction of Abhishek, son of PW 1. Hence, point No. (1) is answered in the negative. 66. In view of the negative finding on point No. (1), the judgment of conviction and sentence passed against both the accused is not sustainable either in law or on facts and it is liable to be set aside. In the result, the following order is passed: ORDER The appeal filed under Section 374, Cr.P.C. challenging the judgment of conviction and sentence passed in S.C. 118/10 by the learned Additional Sessions Judge is allowed in its entirety and consequently judgment of conviction and sentence is set aside. Both the accused are acquitted of all the offences alleged against them. They shall be released forthwith if they are not required in any other case. Office to send Release Intimation to the concerned jail authorities at the earliest.