JUDGMENT : A. B. CHAUDHARI, J. (i) Being aggrieved by the Judgment and Order dated 04th April, 2013 passed by District Judge-1 and Additional Sessions Judge, Nagpur, in Sessions Trial No. 27 of 2012, by which the appellant - Ayush son of Nirmal Pugaliya was convicted of the offences punishable under sections 364, 302 and 201 of Indian Penal Code, and was sentenced to undergo Imprisonment for Life for the offence punishable under section 364 and the same sentence for offence punishable under section 302, Indian Penal Code and Rigorous Imprisonment for two years and a fine of Rs. 1,000/- for offence punishable under section 201, Indian Penal Code, and in default of total fine, further Rigorous Imprisonment for six months, the present appeal has been filed by him in this Court. (ii) The State of Maharashtra, being aggrieved by the Judgment and Order of acquittal of the accused Ayush Nirmal Pugaliya of offence under section 364-A, Indian Penal Code, has filed Criminal Appeal No. 543 of 2013. (iii) The State of Maharashtra has filed one more appeal bearing Criminal Appeal No. 391 of 2013 for enhancement of sentence awarded to Accused No. 1 Ayush Nirmal Pugaliya to death penalty. 2. Hearing of these appeals commenced with effect from 25th February, 2015. Learned Adv. Mr. A.M. Rizwy with Advs. Mr. H. G. Katekar and Mr. A. A. Sonak commenced their arguments first in Criminal Appeal No. 348 of 2013 against conviction of Ayush. The evidence was read, documents were referred. During the process of reading of evidence of PW 4 Shubham and PW 5 Ridam, this Court came across somewhat strange procedure adopted in recording the evidence of these two witnesses. This Court found that learned Trial Judge did not allow the defence counsel to put omissions, intended to contradict them and instead made an order granting liberty to the defence Advocate, to put questions on omissions directly to the Investigating Officer. That was found obviously in contravention of section 145 of the Evidence Act. We quote section 145 of the Evidence Act as under :- "145. Cross-examination as to previous statements in writing. That was found obviously in contravention of section 145 of the Evidence Act. We quote section 145 of the Evidence Act as under :- "145. Cross-examination as to previous statements in writing. - A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." On 25th February, 2015, therefore, this Court made an order asking the learned Special Public Prosecutor to take a stand. On 26th February, 2015, he filed application bearing No. 141/2015 and prayed for recording of additional evidence. This Court had, therefore, made an order, operative part of which is reproduced below :- "(i) Criminal Application No. 141/2015 is disposed of. (ii) The Special Prosecutor as well as the Defence Counsel and the accused shall appear before the Principal District Judge, Nagpur on 3-3-2015. The Principal District Judge, shall then fix a date for recording of additional evidence of Shubham Baid (PW 4), Ridam Puriya (PW 5) and the concerned Investigating Officer, as aforesaid on one single date by taking into consideration convenience of all. (iii) The appellant shall be produced before the learned Principal District Judge, Nagpur on 3-3-2015 at 11.00 a.m., sharp. (iv) After appearance of the parties on 3-3-2015, the Court shall fix the next date for recording of additional evidence. The evidence shall then be certified to this Court on or before 16.03.2015 by Special Messenger. This Court shall consider the matter thereafter." In accordance with the aforesaid order dated 26th February, 2015, the learned Principal District Judge recorded the additional evidence and transmitted the same to this Court and as such the appeals were again listed for further hearing which was commenced from 28th April, 2015. Facts : 3. Accused Ayush was charged for commission of offences under sections 363, 364-A, 302 and 201 of Indian Penal Code. Accused Nos. 2 and 3 in the trial, who are his real brothers, were also charged for offence under section 201 read with section 34, Indian Penal Code. Facts : 3. Accused Ayush was charged for commission of offences under sections 363, 364-A, 302 and 201 of Indian Penal Code. Accused Nos. 2 and 3 in the trial, who are his real brothers, were also charged for offence under section 201 read with section 34, Indian Penal Code. But Accused No. 2 Navin was convicted of the said offence and he underwent the sentence, while Accused No. 3 Nitin was acquitted of the said offence. Resultant, it is only Accused Ayush whose appeal is required to be decided along with the appeals filed by the State. 4. It is the case of the prosecution that on 12th October, 2011, complainant - Prashant Katariya lodged a report with Police Station, Nandanwan, Nagpur, stating that he was a resident of Shantinath Apartment No. 2, Hiwari Layout, Nagpur, with his family members, namely wife Chhaya, daughter Muskan and son Kush, aged about 8 years. His workplace is at Kalamna. He stated in the report that on 11th October, 2011, Kush, who was studying in Centre Point School, did not go to the school because in the evening, there was a programme in the school and he was supposed to attend that programme. Complainant was in his workplace as usual, when at about 5.58 p.m., he received two missed calls on his Mobile Phone No. 9422806489 from Phone No. 3228289. In return, he made phone calls on Telephone No. 3228290, but were disconnected by the other side. At that time, he received a phone call from his wife Chhaya, who informed that Kush was kidnapped because she received a phone call from somebody and, therefore, he should come home immediately. The complainant Prashant, therefore, returned home. On his return, Chhaya told him that at about 4.00 p.m., Kush and his two friends by names Ridam and Shubham were playing in the balcony of her house. She provided money to Kush for purchasing chips and thereafter Kush and his friends went out and bought chips and started eating in the gallery while she was doing household work. At about 6.00 p.m., she received a call on her Land line Phone No. 2777956 when a male person asked her where was her son? She provided money to Kush for purchasing chips and thereafter Kush and his friends went out and bought chips and started eating in the gallery while she was doing household work. At about 6.00 p.m., she received a call on her Land line Phone No. 2777956 when a male person asked her where was her son? She asked that person as to who was he and from where was he talking and in response that person told her that her son was kidnapped by them and she should make arrangement of Rs. 2 crores within two hours. He further instructed her not to call police; else they would throw Kush after cutting him into pieces. He also told her that later they would tell her the location for bringing money. After the talk, the said person disconnected the telephone. Prashant then stated in his report that he made enquiries with Ridam and Shubham about Kush and they told him that when the trio had gone to the shop for bringing chips, Ayush was standing at the shop. Shubham told him that then they were eating chips in the balcony when Ayush had called Kush. One Activa scooter was parked there. Both of them went on that scooter by road towards South. On learning the name of Ayush, his niece Priya told him that one Neha had made a phone call to Priya's mother and had obtained mobile phone number of of Priya and thereafter Ayush had made a phone call from his phone No. 917126957552 to Priya on her Mobile Phone No. 9503435313 and told her that he wanted to talk to her. The complainant Prashant then went on to state in his report that though search was made for finding out Kush, he was not found. He further stated that he had acquaintance with some officials of Crime Branch, Nagpur, and therefore, he provided information to them to make enquiry secretly. He, however, did not lodge report to the Police Station because he was worried about the life of his son Kush and since he had acquaintance with the Crime Branch, he did not lodge report. Since he did not receive any phone call thereafter, he was lodging the report about kidnapping of his son and demand of ransom in the sum of Rs. 2 crores. 5. Since he did not receive any phone call thereafter, he was lodging the report about kidnapping of his son and demand of ransom in the sum of Rs. 2 crores. 5. On the basis of the said report, Nandanwan Police registered crime against accused Ayush for offences punishable under sections 363, 364-A, 368 and 120-B of Indian Penal Code by taking entry in General Diary at Sr. No. 37 on 12th October, 2011 at 2.15 p.m. During investigation, accused Ayush was arrested and after his arrest, he made a disclosure statement about the dead body of the deceased Kush which was recovered after his disclosure statement was made. The clothes of the accused Ayush were also discovered by Accused No. 2 Navin and were seized. It revealed during investigation that one Vaibhav Bhupendra Vasani, aged about 21 years, resident of Suryanagar, Nagpur, is a friend of Ayush since childhood and he was conversant with the conduct, behaviour and habits of Ayush. Vaibhav disclosed that on many occasions, both of them had gone from the road located in front of the incomplete building where the dead body of Kush was found. The Investigating Officer, after completion of investigation, submitted the charge-sheet before Judicial Magistrate First Class, Court No. 1, Nagpur, which was registered as Regular Criminal Case No. 65 of 2012 and which was thereafter committed to the Court of Sessions. After committal, the charge was framed against all the accused persons. 6. As earlier stated, we are concerned only with the appeal against conviction preferred by accused Ayush who was named as Accused No. 1. In the trial, he did not plead guilty and, therefore, trial was held. Defence of the accused was of total denial and accused Ayush by way of his Written Submissions appended to his statement [Exh.325] under section 313, Criminal Procedure Code, submitted that the Crime Branch officials had taken him into custody unlawfully on 11th October, 2011, interrogated him thoroughly and thereafter his custody was handed over to Nandanwan Police on 13th October, 2011 and was, thus, kept in illegal detention from 10.30 p.m., of 11th October, 2011 till 12.15 a.m., of 13th October, 2011. He then submitted that his parents were also called in the Crime Branch. He submitted that on 14th October, 2014 itself, the Investigating Officer had come to know from Vaibhav Vasani about the whereabouts of the dead body of Kush. He then submitted that his parents were also called in the Crime Branch. He submitted that on 14th October, 2014 itself, the Investigating Officer had come to know from Vaibhav Vasani about the whereabouts of the dead body of Kush. He stated that Investigating Officer had forcibly obtained his signatures on various blank papers and had also pressurized the witnesses Raja Gaur and Ravi Sawarkar to depose against him falsely and both of them are still working at the shop of his family. Setting up the plea of alibi, he stated in para 3 of his Written Submissions that in fact, on 11th October, 2011, he was at his factory for the entire day engrossed and held up in the work, as the factory was to be inaugurated shortly. He also placed Additional Written Submissions [Exh.343] on record and submitted that the factory was to be inaugurated within one month from the date of incident and, therefore, he was busy in construction, fixing of machineries, interior management etc., and employees from his shop were also required to come to factory after completion of work in the shop. The Crime Branch Officials had taken him into custody from his factory premises, since officers had come with Prashant Katariya and Sunny Katariya. 7. The prosecution examined in all thirty-five witnesses before the Trial Court. The accused Ayush did not examine himself, nor tendered any defence evidence. Written Notes of Arguments were filed by the counsel for the parties. The Trial Judge in answer to Point No. 1 held that no offence under section 364-A, Indian Penal Code, was proved, though offence under section 364, Indian Penal Code, was proved. In answer to Point No. 2, the Trial Judge held that Accused Ayush committed murder of Kush in the incomplete building located at Suryanagar, near Lata Mangeshkar Garden, Nagpur, and was, thus, guilty of offence under section 302, Indian Penal Code. In answer to Point No. 3, Accused was also held guilty of offence under section 201, Indian Penal Code. Submissions : 8. Mr. A. M. Rizwi, learned counsel for the Appellant Ayush with Mr. H. G. Katekar and Mr. In answer to Point No. 3, Accused was also held guilty of offence under section 201, Indian Penal Code. Submissions : 8. Mr. A. M. Rizwi, learned counsel for the Appellant Ayush with Mr. H. G. Katekar and Mr. A. A. Sonak, Advs., made the following submissions :- [a] The case of the prosecution is admittedly not based on any direct evidence or on the basis of any evidence of eye-witness, but admittedly it is based on the circumstantial evidence, including 'last seen' theory and so on and so forth. The legal position as to the appreciation of evidence by the Court under section 3 of the Evidence Act in respect of prosecution cases based on circumstantial evidence is well settled and if the instant case is viewed in the light of those legal principles, it would be seen that the prosecution failed to complete the chain of events and circumstances to prove any offence against the appellant Ayush and, therefore, the benefit of doubt must go to the accused in accordance with our Criminal Jurisprudence. [b] The crucial gap between 'the appellant-accused Ayush must be guilty and may be guilty' has not been filled up by the prosecution and, therefore, this is a case where there can be suspicion about the appellant-accused Ayush, but not the proof, to hold him guilty of the serious offence of murder. [c] It is the case of the complainant Prashant Katariya himself that having received knowledge about disappearance of his son Kush or his kidnapping he went to the officers of the Crime Branch without lodging any report to the Police Station and, thus, the Crime Branch Officers without getting the FIR registered, started looking for Kush and the appellant Ayush. They, in fact, took Ayush into their custody on 11th October, 2011 itself from his factory premises and it is a matter of mystery which is not explained by the prosecution as to why the Crime Branch Officials having received first information from Prashant Katariya, did not have the FIR registered with the concerned Police Station and then proceed with the Investigation. What information was given by Prashant Katariya to the Crime Branch Officials is not forthcoming and, therefore, the prosecution is guilty of suppressing the initial information from the complainant in relation to the alleged offence, since it cannot be believed that the Crime Branch officials would not reduce the information into writing in respect of such a serious offence when they came to know that kidnapping was for ransom. The burden lay on the prosecution to resolve this controversy, but the prosecution deliberately failed to bring the truth before the Court and, therefore, must be looked with suspicion by this Court and the Trial Court miserably failed to circumspect on this aspect of the matter. [d] Appellant was, in fact, taken into custody by the Crime Branch from his factory and since they did not find anything upon his interrogation, they handed over his custody to Nandanwan Police Station. The story of the prosecution is that Kush was playing with PW 4 Shubham and PW 5 - Ridam in the gallery of his house at about 4.00 -4.30 p.m. and that since Ayush had called Kush by gesture, Kush had gone down to him and by sitting on his Activa scooter, they went away. Admittedly, the building had a watchman to guard. But there is neither any statement of watchman on record, nor any evidence about the crucial role to be played by watchman, including keeping a watch on the residents of the building, or as in the instant case, the boys going out of the building and entering the building. The prosecution is guilty of suppressing the investigation from the Court about the evidence of watchman. [e] Referring to the evidence of PW 4 Shubham and PW 5 Ridam together, learned counsel for the appellant submitted that both of them are child witnesses of the age of eight years and if their evidence originally recorded and additional evidence recorded after 26th February, 2015 order is carefully seen, one must come to the conclusion that the crucial version of both these witnesses about the last seen theory is in the form of omissions amounting to contradictions duly proved from the Investigating Officer and the same being on material points, the evidence of both these boys is worthless and does not take the prosecution case anywhere. The omissions amounting to contradictions in the evidence of both these witnesses have been ignored by the learned Trial Judge and, therefore, this Court is requested to give appropriate weight to the fact that the material omissions in their evidences would demolish the prosecution case as to the theory that Kush had gone down from the building and boarded the Activa scooter along with Ayush. The evidence of these two boys, even as per the prosecution being on the limited factual aspect as above, does not take the prosecution case further. PW 31 Sunil Jaiswal, Investigating Officer, had already admitted in his evidence about existence of omissions in the evidence of both these witnesses and the defence is entitled to rely on the evidence of PW 31 Sunil Jaiswal even to that extent and, thus, it was not necessary for the defence to repeat and put those omissions again at the time of recording of additional evidence after the order dated 26th February, 2015 made by this Court, since the defence is entitled to rely on the omissions in the evidence of PW 31 originally recorded by the Trial Court. In this connection, this Court had reserved the order to be made on this issue along with the Judgment after this Court had framed the question on 27th April, 2015. [f] Referring to the evidence of both the witnesses - PWs 4 and 5, the learned counsel for the appellant submitted that the evidence of these two boys is not trustworthy and they are clearly the tutored witnesses brought by the prosecution before Court. [g] With reference to PW 12 - Kamal Sunderlal Khilwani, the counsel for the appellant contended that he is clearly a got-up witness on the theory of visit by Ayush and Kush to his shop in the afternoon for making purchase of Five Star Chocolates before the incident of assault. In the first place, it is claimed that his statement was recorded by the Investigating Officer on 12th October, 2011 itself and there is no projection of relevant facts by the Investigating Officer before the Court as to how he reached to PW 12 Kamal Khilwani and how did he know that Ayush had purchased Five Star Chocolate from him, when the shop of PW 12 Kamal is located in the area on Kamptee Road, almost 2-3 kms., away from the residence of the deceased. Not only that the remand paper dated 16th October, 2011 indicates that at Sr. No. V, there is a ground for claiming custody that the statement of the person who sold the chocolates was to be recorded. Therefore, it is risky to believe PW 12 Kamal being a planted witness. Further, the photographs of Ayush were already shown to him before holding the Test Identification Parade, which was nothing but a farce. It was incumbent on the part of Investigating Officer to make investigation about the wrappers of Five Star Chocolates, the date of the supply thereof to PW 12 Kamal Khilwani and the bills of purchase by him, but that was not done. This was all the more important because the prosecution is relying on the covers or wrappers of the Five Star Chocolates having blood stains ultimately alleged to have been found on the spot of the occurrence in the incomplete building. Therefore, the theory of the prosecution about the purchase of chocolates from PW 12 Kamal by Ayush and consequent last seen theory or the visit of Ayush with Kush is a part of tainted investigation and must be rejected. Consequently, reliance placed by the prosecution on the wrappers of Five Star Chocolates [Exh.59] should be rejected. [h] The Test Identification Parade held for PW 12 Kamal Khilwani is of no assistance to the prosecution because there is evidence on record to show that the photographs of Ayush were shown to him and not only that there was publication thereof in the newspapers on large scale. Apart from that, the prosecution miserably failed to explain the huge delay in holding the Identification Parade for PW 12 Kamal, i.e., the delay of about two months. The explanation furnished by the prosecution that PW 12 Kamal was away at Jabalpur is lame and should not be accepted. [i] The prosecution has presented PW 3 Shaikh Shahid Shaikh Ahmad to prove that the ransom call was made by Ayush from his Coin Box Phone No. 3228289. In the first place, there is evidence on record to show that the said Coin Box Telephone belongs to Parvez Khan of Bhaldarpura, Nagpur, and not to Shaikh Shahid. There is no evidence on record to show as to how it came to Shaikh Shahid. There is no evidence on record for showing the location and ownership of the phone produced by the prosecution. There is no evidence on record to show as to how it came to Shaikh Shahid. There is no evidence on record for showing the location and ownership of the phone produced by the prosecution. There is no evidence as to the source of information about these calls. Mr. Rizwy invited the attention of the Court to the timings in relation to the alleged phone call for ransom made and the phone call made by PW 1 Chhaya, which, according to him, are exactly at the same time and, therefore, it is impossible to infer that any phone call was made from Shaikh Shahid's Coin Box phone by anybody, much less Ayush. The evidence about CDR produced before the Court is wholly unsatisfactory and is not co-relating to alleged calls made for ransom, or as the case may and there is no tallying, whatsoever. With reference to the evidence of PW 22 Chandrakant Kisan Bhor from Reliance Telephone Company, he then submitted that the mobile from Ayush was seized at the Crime Branch Office on 12th October, 2011 at 0.35 hours, which shows that the Office of the Crime Branch was still active and that lends support to the fact that Ayush was in their custody from 11th October, 2011. The prosecution also failed to examine Parvez Khan to prove as to whether really the phone was in his name, as claimed by Chandrakant. The alleged discovery evidence regarding pencil cutter at the behest of appellant Ayush is required to be rejected outright. In the first place, the discovery is said to have been made from an open place accessible to one and all, i.e., in the open space with bushes. Secondly, the prosecution did not collect the evidence of finger prints thereon. The blood group on the cutter is not determined in the C.A. Report. Similar is the case of alleged discovery of the clothes of Ayush and the said evidence is also liable to be rejected. There is no blood detected on the T-shirt, but the prosecution claims to have detected the blood on the full pant with the blood group of deceased. As a matter of fact, the theory of discovery of clothes at the instance of his brother is liable to be rejected, since the evidence does not inspire confidence at all. There is no blood detected on the T-shirt, but the prosecution claims to have detected the blood on the full pant with the blood group of deceased. As a matter of fact, the theory of discovery of clothes at the instance of his brother is liable to be rejected, since the evidence does not inspire confidence at all. Secondly, the DNA test, that was carried out, admittedly shows that the results were partial. In the case of DNA showing partial results, the inference should not be accepted, since the results are not conclusive. That was held by this Court in the case of Gajanan vs. Smita [First Appeal No. 835/2009]. Therefore, the incriminating evidence tendered by the prosecution about shirt and trouser is no evidence in the instant case and ought to be ignored. [j] The evidence about discovery of the dead body of Kush from the incomplete building is a cock and bull story. The report shows that death took place between 72 to 96 hours, while the dead body was recovered on 15th October, 2011 between 9.45 and 10.50 a.m, from the waste contaminated dirty water in the abandoned water tank having two feet water in it. The counsel contended that there is a witness by name Vaibhav Vasani, the alleged friend of appellant Ayush, whose statement was recorded by the Investigating Officer, but was not produced before the Court for evidence. His statement under section 161, Criminal Procedure Code, shows that it was he who had knowledge about existence of dead body in the incomplete building under construction even before the discovery of dead body was allegedly made. There is, therefore, reason to believe that the place where the dead body was found, was already known to the officers even before the discovery was allegedly made from Ayush and, therefore, the alleged evidence of discovery from Ayush is false and nothing but a farce to show discovery. Such evidence is liable to be rejected and shows how the entire investigation is tainted. The prosecution was under obligation to explain these suspicious circumstances and in the absence of which the investigation must be termed as tainted investigation in the light of the fact that PW 2 Prashant Katariya had not lodged FIR with the Police Station, but had informed the Crime Branch Officials secretly. The prosecution was under obligation to explain these suspicious circumstances and in the absence of which the investigation must be termed as tainted investigation in the light of the fact that PW 2 Prashant Katariya had not lodged FIR with the Police Station, but had informed the Crime Branch Officials secretly. Such an information, if given by Prashant, as claimed by him, must have been reduced to writing by the Crime Branch, but the prosecution did not produce the said first information or FIR before the Court, but is relying on the second information report, which has been shown as First Information Report by the prosecution. To substantiate his contentions, learned Counsel for the Appellant placed reliance on the following decisions :- 1. Kishore Chand vs. State of Himachal Pradesh; AIR 1990 SC 2140 . 2. Deepak Shelke vs. State of Maharashtra; 2013 MhLJ (Cri.) Online 2 = 2014 ALL MR (Cri) 309. 3. Santosh Dhande vs. State of Maharashtra; 2005 ALL MR (Cri) 928. 4. Salim Akhtar vs. State of Uttar Pradesh; AIR 2003 SC 4076. 5. Gajanan Deshpande vs. Smita Deshpande; 2011(5) Mh.L.J. 936 . 6. Sujit Biswas vs. State of Assam; 2013 ALL SCR 2153. 9. Special Public Prosecutor appearing for the State commenced his arguments in all these appeals beginning with the appeal filed by the Appellant against the conviction and sentence on 28th April, 2015. He made the following submissions :- [1] Opening his arguments with the evidence of PW 14 Roma Gabriya Agastin, Mr. R. M. Daga, learned Special Public Prosecutor, contended by reading the relevant portion of her evidence that she was a Facebook Friend of appellant Ayush and had strong affinity with each other. On 11th September, 2011, she had met Ayush near Centre Point School, Nagpur, and he had stated to her that he was likely to get a huge cash in the near future and would present a gift to her. Mr. Daga contended that this affair was the reason why Ayush had begun his search for huge money. On 11th September, 2011, she had met Ayush near Centre Point School, Nagpur, and he had stated to her that he was likely to get a huge cash in the near future and would present a gift to her. Mr. Daga contended that this affair was the reason why Ayush had begun his search for huge money. He then replied to the argument in so far as the decision on the question framed by this Court on 27th April, 2015 is concerned, and submitted that the defence cannot be permitted to read as evidence the omissions put to him in the deposition originally recorded, particularly with reference to the order dated 26th February, 2015 by which additional evidence was ordered to be recorded by this Court. He submitted that the defence did not avail of the opportunity of proving the omissions in the additional evidence of PW 4 and has merely chosen to rely on the evidence of Investigating Officer originally recorded for that purpose. Refuting the contention raised by Mr. Rizwy that he was entitled to read and rely on that part of deposition of Investigating Officer Sunil Jaiswal as omission, Mr. Daga contended that this Court had earlier made an order for recording additional evidence on 26th February, 2015, because it was found by this Court that the omissions were not allowed to be put to the witnesses first, but liberty was granted by Trial Court to the defence to put questions directly to the Investigating Officer. This Court had found that procedure contrary to section 145 of the Evidence Act and, therefore, in order to remove that defect in recording the evidence, additional evidence was ordered to be recorded with specific liberty to put the omissions to all the three witnesses, namely PWs 4 and 5 and finally PW 31, the Investigating Officer, for proving the same, if any. Mr. Daga then contended that if the contention raised by Mr. Rizvy is accepted, then the order asking recording of additional evidence would become nugatory. Referring to section 145 of the Evidence Act and the decisions in the cases of [1] Tahsildar Singh and another vs. State of U. P., AIR 1959 SC 1012 , and [2] Ibrahimkhan Pirkhan Pathan vs. State of Maharashtra [2003 Cri.L.J. 1802], Mr. Rizvy is accepted, then the order asking recording of additional evidence would become nugatory. Referring to section 145 of the Evidence Act and the decisions in the cases of [1] Tahsildar Singh and another vs. State of U. P., AIR 1959 SC 1012 , and [2] Ibrahimkhan Pirkhan Pathan vs. State of Maharashtra [2003 Cri.L.J. 1802], Mr. Daga contended that these provisions and the decision above clearly show the methodology of proof of omissions contemplated by law and the correct methodology was adopted only after the order of recording of additional evidence was made by this Court on 26th February, 2015 and, therefore, according to him, the earlier evidence of PW 31 Sunil Jaiswal, Investigating Officer, for proving the omissions without those omissions being put to the witnesses cannot be read at all. Mr. Daga, therefore, contended that it will have to be held that omissions in the evidence of PW4-Shubham will have to be held to have not been proved from the Investigating Officer. In reply, Mr. Rizwy, learned counsel for the appellant, at this stage, contended that in so far as PW5-Ridam is concerned, he had admitted that he had not stated the facts regarding omissions in his statement and, therefore, the question of proving the same did not arise. Insofar as PW4-Shubham is concerned, he submitted that the omissions occurring in his additional evidence were already put to the Investigating Officer and were proved in the evidence originally recorded and the defence is entitled to read that evidence as admissible evidence. Mr. Rizvy submitted that the decisions cited by Mr. Daga are distinguishable. At any rate, according to Mr. Rizvy, even if these questions were asked in the cross-examination, it would have made no difference and at any rate the very first paragraph of the additional evidence of PW 31 shows that both the boys were not put under any restriction to answer the questions or give statement to the police as they desired. [2] Turning back to the merits, learned Special Public Prosecutor Mr. Daga then invited our attention to the evidence of PWs 4 and 5 simultaneously. He submitted that the evidence of both these witnesses is most natural and trustworthy and without any element of any tutoring, nay, according to him, that is not even the suggestion given by the defence to these two witnesses. Daga then invited our attention to the evidence of PWs 4 and 5 simultaneously. He submitted that the evidence of both these witnesses is most natural and trustworthy and without any element of any tutoring, nay, according to him, that is not even the suggestion given by the defence to these two witnesses. These two witnesses fully corroborate each other on all the points, including the material points. Both the boys - PWs 4 and 5 are of innocent age of eight to nine years, and were the friends of deceased Kush being in the same school. First of all, they had gone to purchase chips from the Chandak Shop where Ayush was standing and they came back and started eating chips in the balcony having pillars with gaps therein. Ayush was making gestures at Ridam for calling him towards him, and responding to those gestures, Kush told both the boys PWs 4 and 5 that he was being called by Ayush and accordingly went down. PWs 4 and 5 remained in the balcony and saw Ayush starting Activa scooter and Kush following him and thereafter Kush sitting on the scooter and going towards South with him. Mr. Daga submitted with reference to the alleged omissions sought to be projected by the defence that the material portion, if seen carefully, is not omission. He then submitted that the statements of these boys were immediately recorded by the Investigating Officer and if the omissions are carefully analyzed, it would be seen that as to the minor details about sitting on the scooter, it would make no difference, if the entire evidence is looked from the broad spectrum. On the contrary, the evidence of both these witnesses is most natural and will have to be accepted. The omission about sitting of Kush on the scooter has not been proved after additional evidence was recorded, though the defence had an opportunity to prove the omissions in the evidence of Investigating Officer - PW 31 in so far as the evidence of PW 4 is concerned. But then the fact that Ayush had given a signal or gesture to Kush and responding thereto, Kush told both the boys that he was being called by Ayush near him and that thereafter he followed Ayush who was going on the scooter and then both of them disappeared has gone unchallenged. According to Mr. But then the fact that Ayush had given a signal or gesture to Kush and responding thereto, Kush told both the boys that he was being called by Ayush near him and that thereafter he followed Ayush who was going on the scooter and then both of them disappeared has gone unchallenged. According to Mr. Daga, in fact, there is no cross-examination on the crucial evidence of these two witnesses, nor there is a denial, nor there is any suggestion given by the defence. He, therefore, urged that the evidence of both these witnesses should be accepted. [3] With reference to the evidence of PW 12 Kamal Khilwani, he argued that his evidence was recorded within a period of about ten to eleven months from the date of incident and his substantive evidence identifying both, i.e., appellant Ayush and deceased, from his photographs has not been put to challenge. Identification of accused Ayush in the Court made by him is the substantive evidence and in the absence of any damage to his evidence in the cross-examination, there is no reason why his evidence should not be accepted. After all, he is an independent witness having nothing to do with any of the parties and runs a shop in some other area of Nagpur. As honest citizen, he has supported the prosecution limited to whatever he had seen, namely Ayush and Kush coming to his shop at about 4.30 p.m., thereafter Ayush making a demand for a Dairy Milk Chocolate, whereupon he told him that he did not have Dairy Milk Chocolate and then Ayush started arguing with him as to how was it that he did not have a Dairy Milk Chocolate when he was having a big shop and thereafter PW 12 Kamal told him that he was having Five Star Chocolate to which Ayush agreed, paid money and purchased Five Star Chocolates and this went on for about ten to twelve minutes and at that time Kush was sitting on the scooter parked just in front of his shop. Mr. Daga contended that if the evidence of PW 12 Kamal is carefully perused, not a single omission or improvement is to be found in his evidence and he being an independent witness has deposed whatever was seen by him and his evidence is, thus, trustworthy. Mr. Daga contended that if the evidence of PW 12 Kamal is carefully perused, not a single omission or improvement is to be found in his evidence and he being an independent witness has deposed whatever was seen by him and his evidence is, thus, trustworthy. He was a person who had sold Five Star Chocolate to Ayush and had ample opportunity to remember the faces of both the appellant Ayush and the deceased Kush. In reply to the submission made by Mr. Rizwy about the remand paper of 16th October, 2011, he contended that the said remand paper was never put to PW 31 Sunil Jaiswal, nor the remand paper was exhibited or proved in evidence. Had it been put to PW 31 Investigating Officer with a specific question as now sought to be argued, PW 31 would have given appropriate answers or explanation, as the case may be, but in the absence of any opportunity to him, no such argument can be built up that the PW 12 is a planted witness. Mr. Daga contended that any rate, PW 31 stated in his evidence that during investigation, he came to know about PW 12 - Kamal Khilwani and, therefore, he recorded his statement, to which there is no further challenge. [4] The Test Identification Parade in respect of PW 12 Kamal Khilwani was delayed by some period, but then there is an explanation given by the Investigating Officer PW 31 that PW 12 had gone to Jabalpur at the place of his relatives and despite some visits by Investigating Officer to his house to find out whether he had come back or not, he did not find him and, therefore, there was delay in holding the identification parade. The delay has, thus, been explained satisfactorily and no questions on this aspect were asked to PW 12 Kamal Khilwani. The counsel then contended that the Test Identification Parade was correctly held and no fault can be found out with the same. At any rate, in substantive evidence, Kamal Khilwani identified the appellant-accused in the Court after a short period of about one year. [5] Mr. The counsel then contended that the Test Identification Parade was correctly held and no fault can be found out with the same. At any rate, in substantive evidence, Kamal Khilwani identified the appellant-accused in the Court after a short period of about one year. [5] Mr. Daga then invited our attention to the statement under section 313, Criminal Procedure Code and the questions put to the appellant Ayush in relation to PWs 4, 5 and PW 12 and submitted that the only answer given by him to the questions was that their evidence was false. [6] Relying on the evidence of PW 3 Shaikh Shahid, Mr. Daga contended that Sheikh Shahid was knowing appellant Ayush because Ayush used to come to his shop for purchasing cold drinks etc. Sheikh Shahid deposed about phone calls made from his Coin Box Phone by Ayush and there is no denial in the cross-examination on this important aspect. The CDR was brought on record and duly proved by PW 22 Chandrakant in relation to these calls made from his coin box phone and timings are also tallying. The submission that PW 1 Chhaya at the same time made an outgoing call is factually incorrect and should be rejected. The prosecution was required to prove the possession of Coin Box Telephone with Sheikh Shahid and it was wholly unnecessary to prove the owner of the said instrument, since the proof of ownership was not required. The limited question was whether phone calls were made from the said coin box phone or not and the prosecution has duly proved the same by appropriate evidence. He, therefore, prayed for rejection of these submission on that count. [7] As to discovery of the dead body at the behest of the appellant Ayush, he submitted that the memorandum was duly recorded and the discovery was duly proved by the witnesses and in particular PW 10 Suresh who was an independent witness. The evidence of discovery has been duly proved before the learned Trial Judge. There is hardly any challenge to the said evidence in the cross-examination. The evidence of discovery of dead body should be accepted. The evidence of discovery has been duly proved before the learned Trial Judge. There is hardly any challenge to the said evidence in the cross-examination. The evidence of discovery of dead body should be accepted. The submission that at the time of discovery of the dead body, in no photograph the appellant Ayush is to be seen is misconceived, because the Investigating Officer had taken complete care not to make exhibition of the photograph of the appellant Ayush, since the investigation was to be made carefully and the identification issue was to be handled sensitively. [8] As regards the submission about Vaibhav Vasani, about whose statement much was said, Mr. Daga submitted that the Investigating Officer clarified in his evidence after recess that there was a mistake. Date of recording of statement of Vaibhav as "14" was wrongly mentioned, when the same should have been "24" and then there is no cross-examination on that aspect. If the defence really wanted to show that Vaibhav's statement was recorded on 14th October, 2011 and, therefore, the knowledge about the dead body being in the incomplete building was already with the police, nothing prevented the defence from bringing Vaibhav into the witness box, the prosecution having discharged its burden. Criticism of the evidence of Investigating Officer PW 31, particularly his explanation that Vaibha's statement was not recorded on 14th, but was recorded on 24th is without any foundation and the defence had opportunity to call Vaibhav Vasani into the witness box. Mr. Daga, therefore, contended that the arguments about remand paper dated 16th October, 2011 or Item V therein cannot be accepted without proof thereof. [9] As regards the evidence about discovery of cutter and the clothes, Mr. Daga argued, pointing out the evidence of the relevant witnesses, that the discovery was made carefully by the Investigating Officer in relation to the clothes and the cutter. There is evidence of sealing thereof immediately after the seizure. The evidence is not shaken in the cross-examination on both discovery of clothes and cutter and finally the C.A. Report shows the human blood and not only DNA Test Report [Exh.53] shows the blood group of the deceased on cutter and also on full pant of the accused Ayush. There is evidence of sealing thereof immediately after the seizure. The evidence is not shaken in the cross-examination on both discovery of clothes and cutter and finally the C.A. Report shows the human blood and not only DNA Test Report [Exh.53] shows the blood group of the deceased on cutter and also on full pant of the accused Ayush. The articles, namely Exh.9 [Five Star chocolate wrapper, Exh.11 [Sandal], Exh.16 [full pant, Exh.19 [cutter, Exh.20 [sleeper] are all having blood stains and, therefore, the evidence about discovery and finding of blood on cutter as well as full pant of the accused of the blood group of the deceased is a very strong circumstance proved foolproof by the prosecution. Blood-mixed earth seized from the spot is also matching. [10] Inviting our attention to the evidence of PW 21 Raja and PW 23 Ravi Sawarkar, servants of the appellant working in his automobile shop, Mr. Daga submitted that they are the independent witnesses in the first place and they have honestly deposed before the Court, though they still are on the employment roll of the employer/shop of family of accused. Their evidence has mostly gone unchallenged. Their evidence shows that appellant had come to the shop and they saw blood stains and immediately his brother ordered one of the witnesses to go home and get other clothes of Ayush and then Ayush changed the clothes by going inside and thereafter went away. Mr. Daga contended that the evidence of these two witnesses clearly shows that the appellant, after committing murder, had come back to the shop and changed the clothes and thereafter gone out and made telephone calls from the shop of Shaikh Shahid demanding ransom in the sum of Rs. 2 crores to PW 1 Chhaya. [11] Hitting out at the plea of alibi of appellant-accused, Mr. Daga, learned Special Public Prosecutor, contended that he took the plea of alibi specifically, but then failed to prove the same. He did not examine himself before the Court, but merely filed Written Submissions on the question of alibi. The plea of alibi must be held to be a false plea taken by him about which the Trial Court has rightly made discussion with which no fault can be found out. He did not examine himself before the Court, but merely filed Written Submissions on the question of alibi. The plea of alibi must be held to be a false plea taken by him about which the Trial Court has rightly made discussion with which no fault can be found out. The plea of alibi is destroyed by the evidence of PWs 21 and 23, his own servants and the other voluminous evidence on record. The plea of alibi, therefore, is required to be rejected. [12] The prosecution had examined Ajay and his father, Watchmen of the incomplete building, in order to wipe out any possible attack about non-examination of watchman when dead body was found. Non examination of watchman of residential building of PW1-Chaya and PW2-Prashant, could not make any difference. Finally, Mr. Daga prayed for dismissal of the appeal filed by appellant Ayush. Criminal Appeal No. 543 of 2013 : 10. In support of the appeal, Mr. Daga, learned Counsel for the appellant, contended that the learned Trial Judge has recorded acquittal of the appellant of the charge under section 364-A, Indian Penal Code, which provides for death sentence in respect of kidnapping for ransom. He invited our attention to the reasons given by the learned Trial Judge and submitted that the reasons are clearly faulty, perverse and must be held to be illegal. He argued that there is ample evidence on record about satisfaction of the ingredients of section 364-A, Indian Penal Code and, therefore, the State has filed this appeal seeking conviction under section 364-A and sentence as well. He submitted that the Trial Court interestingly has convicted the appellant of offence under section 364 and imposed sentence of life imprisonment, but then for no reasons, has acquitted the appellant of offence under section 364-A, Indian Penal Code. 11. In reply, Mr. Rizwy, learned counsel for the respondent - Ayush, argued that the finding recorded by the Trial Court acquitting the appellant of the offence under section 364-A, Indian Penal Code, is legal, correct and proper and on the same evidence, in fact, the respondent Ayush is required to be acquitted of all the charges, including the one under section 364-A, Indian Penal Code. He, therefore, prayed for dismissal of appeal preferred by the State. Criminal Appeal No. 391 of 2013 : 12. In support of the appeal, Mr. He, therefore, prayed for dismissal of appeal preferred by the State. Criminal Appeal No. 391 of 2013 : 12. In support of the appeal, Mr. Daga, learned Counsel for the appellant-State, submitted that this appeal has been filed for enhancement of sentence from life to death for the respondent - Ayush. Mr. Daga submitted that the murder of a small child of eight years, who was the only son of the complainant Prashant was committed brutally, as is clear from the injuries on the person of the deceased, inasmuch as even the brain matter had come out and cuts were given on the neck by the cutter. The learned counsel contended that the murder of Kush was so brutal that the appellant deserves to be given death sentence. He cited some decisions and submitted that the facts in the decisions cited are akin to the case at hand and, therefore, applying those decisions in the absence of any mitigating factor and in such cases, the young age of the accused playing no role as held by the Apex Court, the Criminal Appeal filed by the State for enhancement of sentence to death sentence deserves to be allowed. 13. Per contra, learned counsel for the respondent accused submitted that the respondent Ayush is, in fact, entitled to acquittal and, therefore, question of imposition of death penalty does not arise. Hence he prayed for dismissal of this appeal. Consideration: 14. We have perused the entire record and proceedings of the trial so also evidence and the additional evidence, that was recorded before the trial Judge, oral as well as documentary. We have gone through the judgment made by the learned trial Judge. We have heard learned counsel for the rival parties at length in all these appeals. At the outset, it would be essential to answer the question that was framed by this Court on 27.04.2015 since we had recorded that the answer to the question would be given in the final judgment itself. With this preface, we proceed further. 15. During the course of hearing of all these appeals, Mr. Asif Rizvy, learned counsel appearing for the appellant-accused Ayush Pugaliya, had started reading of the evidence of PW4-Shubham Baid and PW5-Ridam Puriya, the child witnesses who were playing with the deceased Kush in the balcony. With this preface, we proceed further. 15. During the course of hearing of all these appeals, Mr. Asif Rizvy, learned counsel appearing for the appellant-accused Ayush Pugaliya, had started reading of the evidence of PW4-Shubham Baid and PW5-Ridam Puriya, the child witnesses who were playing with the deceased Kush in the balcony. It was found that the learned trial Judge had adopted a strange procedure of asking defence counsel to put the questions in respect of the omissions found in the deposition of both these witnesses by granting liberty to that effect directly to the Investigating Officer instead of these witnesses first. It is not in dispute that for the purpose of contradicting these witnesses, these omissions were sought to be utilised by the defence. This Court, upon hearing counsel for the rival parties, found that the procedure followed by the learned Judge was wholly illegal and irregular and, therefore, had made an order on 26-2-2015 on Criminal Application No. 141/2015 that was filed by the Special Public Prosecutor in this Court, directing recording of the additional evidence in exercise of the powers under section 391 of the Code of Criminal Procedure. 16. In accordance with the directions contained in the said order, the Principal District and Sessions Judge, Nagpur recorded additional evidence and certified the evidence, which was received by this Court and then accordingly, further hearing commenced. During the course of hearing and reading of the evidence or rather additional evidence, the defence counsel read the evidence of PW31-Sunil, the Investigating Officer, originally recorded in relation to the proof of omissions in the evidence of PW4-Shubham and PW5-Ridam, which was objected to by Mr. R. M. Daga, learned Special Public Prosecutor. During the course of hearing and reading of the evidence or rather additional evidence, the defence counsel read the evidence of PW31-Sunil, the Investigating Officer, originally recorded in relation to the proof of omissions in the evidence of PW4-Shubham and PW5-Ridam, which was objected to by Mr. R. M. Daga, learned Special Public Prosecutor. This Court, therefore, was required to frame the following question : "Whether the evidence of PW31 Sunil Jaiswal, Investigating Officer, originally recorded by the Trial Judge for proving omissions in the evidence of PWs 4 and 5 which were admittedly put without being put to PWs 4 and 5 and in the wake of the recording of additioanl evidence for the reasons stated in the orders dated 25th/26th of February, 2015, the defence or the appellant could be allowed to rely upon the cross-examination of PW31 Sunil Jaiswal, originally recorded in relation thereto i.e. the omissions in the evidence of PWs 4 and 5 put to PW31 Sunil Jaiswal or defence could be allowed to refer to the additional evidence on further cross-examination only?" 17. The counsel for the parties were called upon to address the Court on the said question and accordingly the submissions were made by them. Mr. Rizvy, learned defence counsel submitted that insofar as the PW5-Ridam is concerned, he admitted in the additional evidence that he had not stated the facts regarding the omissions pointed out to him to the police who recorded his statement and, therefore, the question of proving the same cannot arise. Insofar as the omissions in the evidence of PW4-Shubham is concerned, he submitted that the omissions were already proved by the Investigating Officer in the evidence originally recorded or before recording of additional during the trial and there is no prohibition in reading of original evidence of PW31-Sunil to that effect nor did this Court made any such order prohibiting the defence from placing reliance on the said evidence. He further submitted that PW31-Sunil specifically stated that both these witnesses PW4-Shubham and PW5-Ridam were not put to any restriction namely; to state only in question and answer from and not to state any addition and, therefore, according to Mr. Rizvy, it would have made no difference. 18. Per contra, Mr. He further submitted that PW31-Sunil specifically stated that both these witnesses PW4-Shubham and PW5-Ridam were not put to any restriction namely; to state only in question and answer from and not to state any addition and, therefore, according to Mr. Rizvy, it would have made no difference. 18. Per contra, Mr. Daga, learned Special Public Prosecutor contended that the order for recording additional evidence was made by this Court on 26-2-2015 having found that the recording of evidence by the learned trial Judge was in violation of practice and procedure and the provisions of section 145 of the Indian Evidence Act. This Court also found that PW4-Shubham and PW5-Ridam were not asked the omissions but the trial Judge had allowed to put the same directly to the Investigating Officer, resulting into violation of principles of natural justice. In other words, according to Mr. Daga, the recording of that evidence was found to be contrary to law and consequently was vitiated and, therefore, the order for recording of additional evidence was made, which was accepted by both the sides. The defence was given opportunity to cross-examine the witnesses during the recording of additional evidence but the defence knowingly abandoned the chance of cross-examining the PW31-Sunil during the recording of additional evidence. Therefore, the defence cannot be allowed now to rely upon the evidence of PW31-Sunil that was originally recorded for proving the omission. In case, PW4-Shubham, even if the same is found not necessary in relation to PW5-Ridam, the learned Special Public Prosecutor referred to the decision of Tahsildar Singh (supra) 19. We have carefully considered the submissions made by learned counsel for the rival parties on the above question. We find that the order dated 26-2-2015 was made by this Court for recording of additional evidence and the said order was accepted by both the parties to this appeal. Both the parties to the appeal appeared before the learned Principal District and Sessions Judge and also participated in the process of recording of additional evidence as per the order of this Court. Hence, it is necessary to read the provision of section 145 of the Evidence Act, which is reproduced again : "145. Cross-examination as to previous statements in writing. Hence, it is necessary to read the provision of section 145 of the Evidence Act, which is reproduced again : "145. Cross-examination as to previous statements in writing. - A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." 20. Upon perusal of the above provisions, it is clear that if it is intended by the defence to contradict the witness with his previous statement, his attention must before writing can be proved be drawn to this parts of the statement. The first part of this provision shows that a witnesses may be cross-examined as to the previous statements without such writing being shown to him or being proved. The second part, however, shows that if there is an intention to contradict him by such a previous statement or writing, his attention must be drawn to the said part of the writing if such statements or parts thereof are used for the purpose of contradicting him. It is an admitted position in the present case that the omissions were brought and intended to be proved only with a view to contradict the witnesses PW4-Shubham and PW5-Ridam and not for merely making cross-examination. Therefore, in our opinion and in order to adhere to the principles of natural justice, it was necessary to have the said writing or previous statements show to these witnesses PW4-Shubham and PW5-Ridam before proceeding to prove the same from PW31-Sunil. The trial Judge had, however, not allowed the defence to draw the attention to these two witnesses, PW4-Shubham and PW5-Ridam, to the previous statements and had granted liberty to ask the questions relating thereto directly to the Investigating Officer PW31-Sunil. This Court found that the same was clearly illegal and, therefore, made the order directing the recording of additional evidence. The trial Judge had, however, not allowed the defence to draw the attention to these two witnesses, PW4-Shubham and PW5-Ridam, to the previous statements and had granted liberty to ask the questions relating thereto directly to the Investigating Officer PW31-Sunil. This Court found that the same was clearly illegal and, therefore, made the order directing the recording of additional evidence. In our opinion, in the above background, the proof of these omissions through PW31-Sunil in the deposition that was originally recorded i.e. before recording of additional evidence was, thus, held to be contrary to requirement of section 145 of the Evidence Act to the full knowledge of the defence. In other words, the evidence of PW31-Sunil originally recorded with reference to the proof of omissions for PW4-Shubham and PW5-Ridam was found to have been recorded in contravention of the said provision of law. Consequently, we must hold that the said part of evidence originally recorded cannot be read and relied as evidence. The further reason is that this Court had allowed the defence to prove those omissions during the course of recording of additional evidence but then it clearly appears from the record that insofar as the omissions qua additional evidence of PW4-Shubham is concerned, the same were not put to the Investigating Officer PW31-Sunil Jaiswal when his evidence was recorded as additional evidence. We, therefore, hold that the defence is not entiteld to read or rely upon the cross-examination of PW31-Sunil originally recorded for proving the omissions in the evidence of PW4-Shubham and PW5-Ridam. 21. We then find substance in the submissions made by Mr. Rizvy, learned counsel for the defence that PW5-Ridam in his additional evidence admitted that he had not stated the facts about the omissions in his submission when his statement was recorded under section 161 of the Code of Criminal Procedure. That being so, we are inclined to agree with Mr. Rizvy, learned defence counsel that the question of proving the same from PW31-Sunil would not arise. However, as stated earlier, insofar as PW4-Shubham is concerned, the defence has failed to avail of the opportunity to prove the omissions in the additional evidence of PW4-Shubham. To sum up, our answer to the aforesaid question is in the Negative. 22. Having thus disposed of the above question, we proceed to deal with the matter on merit thereof. However, as stated earlier, insofar as PW4-Shubham is concerned, the defence has failed to avail of the opportunity to prove the omissions in the additional evidence of PW4-Shubham. To sum up, our answer to the aforesaid question is in the Negative. 22. Having thus disposed of the above question, we proceed to deal with the matter on merit thereof. The defence did not dispute before us the factum about the homicidal death of Kush and at any rate, the trial Court has recorded the finding about it which is based on evidence. We agree with the said finding and hold that Kush died homicidal death. We are fully aware of the fact that this is a case having no ocular evidence in relation to the murder of Kush but the case is based on the circumstantial evidence. We have carefully gone through the decisions and decisions cited by learned counsel for the rival parties as to the appreciation of the evidence in relation to the circumstantial evidence in a case of serious charge of murder. We need not cite all those decisions here. But then, we have kept in mind the principles in relation thereof and accordingly we proceed to record the findings. 23. The information about crime commenced with the telephone that was received by PW1-Chaya Prashant Katariya. She deposed that about 6.00 p.m. on the fateful day, her residential landline telephone No. 2777956 started ringing and having received the same she heard voice of a boy asking her where was her son. She asked him as to who he was and in response he stated that they have kidnapped her son and should provide Rs. 2,00,00,000/- within two hours. He further told her that the place of receiving the money would be given later on and she should not disclose the conversation to police otherwise he would kill Kush by cutting and throwing parts of his body. He then disconnected the phone. PW1-Chaya went panic and then made a phone call to her husband and told him accordingly and asked him to return home immediately. Thereafter, everybody started searching the boy and making enquiries. 24. PW2-Prashant Shantilal Kataria, husband of PW1-Chaya deposed that he had gone to his workplace located at Kapsi at about 9.30 a.m. namely on 11-10-2011. He received a phone call from Hema at about 5.30 p.m. that Kush was not being found. Thereafter, everybody started searching the boy and making enquiries. 24. PW2-Prashant Shantilal Kataria, husband of PW1-Chaya deposed that he had gone to his workplace located at Kapsi at about 9.30 a.m. namely on 11-10-2011. He received a phone call from Hema at about 5.30 p.m. that Kush was not being found. Therefore, he had told her to make his search. He then deposed about 5.58 p.m. he received two missed-calls on his mobile phone number 9422806489 from No. 0712-3228289. He immediately dialled from his phone the said number but it was disconnected. Thereafter, he received phone call from PW1-Chaya who told him everything. He then went to Centre Point School and made enquiry with PW4-Shubham and PW5-Ridam who met him at the school. They told him that they along with Kush were eating chips brought from Chandak provisions in the gallery of the house of PW2-Prashant. They saw Ayush standing in front of Chandak Provisions. Accused Ayush made sign calling Kush and accordingly Kush went near him. Thereafter, they saw accused Ayush starting scooter and both Ayush and Kush going on that scooter. After this, PW2-Prashant went to the house of Ayush but he was not found at his house. Since there was a threat given to kill Kush, he did not think it proper to lodge a report on the very day to the Police Station. But then he had known some officers from the Crime Branch, hence requested them to make secret enquiry but on that day Kush was not found. Thereafter, on the next day on 12-10-2011, he went to Police Station Nandanwan and lodged report Exh.-86 and 87. He mentioned in the report Exh.-86 that some unknown persons had kidnapped Kush and had made a demand for ransom of Rupees Two Crores. He did not give the name of Ayush since Kush was in his custody and there was a threat to kill him. On 15-10-2011 from Nandanvan Police Station, he was informed that Kush was murdered and he then identified the dead body as well as clothes shown to him. 25. It is necessary to consider the evidence of PW1-Chaya and PW2-Prashant in juxta position for appreciating the submissions made before us by counsel for the rival parties. On 15-10-2011 from Nandanvan Police Station, he was informed that Kush was murdered and he then identified the dead body as well as clothes shown to him. 25. It is necessary to consider the evidence of PW1-Chaya and PW2-Prashant in juxta position for appreciating the submissions made before us by counsel for the rival parties. PW1-Chaya, mother of deceased Kush, in the routine course of the activities of her home, at about 3.00 p.m. on 11-10-2011, Kush asked her for money and she gave him Rs. 30/- and then Kush, PW4- Shubham and PW5-Ridam were eating chips at her house in the gallery and at that time, taking rest at her house but at about 4.30 p.m., she found none of them were present and, therefore, started searching and then made phone call to her husband after making search for some time and her husband also told her to search in the vicinity and finally, when she was not successful in tracing out Kush, she again made a phone call to her husband, particularly after she received a phone call at about 6.00 p.m. at her house on landline telephone No. 2777956 when a boy asked her to arrange for Rs. 2,00,00,000/- within two hours or Kush would be killed and accordingly, PW2-Prashant rushed to his house and also realised that he had also received two missed calls at about 5.58 p.m. on his mobile phone No. 9422806489 from telephone Nos. 0712-3228289 and that when he had dialed that number, the responding person had cut the call. This evidence is most natural and corroborate each other in full particulars. PW2-Prashant then went to Center Point School since PW4-Shubham and PW5-Ridam had gone to the School and made enquiries about Kush. The boys disclosed to him that appellant-Ayush had called Kush near him near Chandak Provisions and Kush had gone along with him on the scooter. Immediately after returning from the Centre Point School, PW2-Prashant went to the house of appellant-Ayush but he was not present. PW1-Chaya, his wife had told him that there was a threat to kill Kush and, therefore, he did not immediately lodge report to the Police Station. He having acquaintance with the Crime Branch Officers, informed them with a request to find his son secretly. PW1-Chaya, his wife had told him that there was a threat to kill Kush and, therefore, he did not immediately lodge report to the Police Station. He having acquaintance with the Crime Branch Officers, informed them with a request to find his son secretly. On the next day, being unsuccessful, he lodged report to the Police Station, Nandanvan on 12-10-2011 at about 1.40 p.m. This evidence, in our opinion, is the most natural and any other prudent person would have behaved in the same manner having been afraid of the threat that Kush, who was kidnapped, would be killed. The criticism made by the learned defence counsel for viewing his conduct with suspicion cannot be accepted. The submission that PW2-Prashant made delay in lodging the FIR, in the above background, also cannot be accepted. The criticism that the Crime Branch officials must have recorded or reduced to writing the information given by Prashant to them about the incident and that as such the said information reduced to writing was being withheld by the prosecution, in our opinion, is nothing but a figment of imagination and an attempt to take undue advantage of the fact that PW2-Prashant instead of going to the Police Station had gone to Crime Branch Officers. But then we find that his evidence in that context is most natural since he stated that he was acquainted with the Crime Branch officers and looking to the threat of murder of Kush, who was kidnapped, he did not want to take any risk of making it known to others and on the contrary, wanted to get his son with the help of Crime Branch officers secretly. The submission that all this conduct should be looked with suspicion and adverse inference should be drawn against the prosecution is not acceptable because to raise a suspicion must have some foundation. We find no element of suspicion in the above happening nor even any remote indication that any information was reduced to writing as per the version of PW2-Prashant by Crime Branch officials. 26. The next submission made by defence in this connection is that the appellant-accused Ayush was taken into custody by Crime Branch Officers and that it is the stand taken in the statement under section 313 of the Code of Criminal Procedure as well. 26. The next submission made by defence in this connection is that the appellant-accused Ayush was taken into custody by Crime Branch Officers and that it is the stand taken in the statement under section 313 of the Code of Criminal Procedure as well. We have carefully examined the stand taken by the defence on this aspect of the matter and we find that there is no foundation for the criticism. There is no evidence whatsoever on the record to show even the oral evidence that Crime Branch had taken custody of the appellant-accused. The attempt of defence to show that nothing was found by the Crime Branch upon interrogation of the appellant and that it was satisfied that he is not involved at all is without any basis. It is true that PW1-Chaya stated in her evidence that the building was guarded by watchman for 24 hours. But then PW2-Prashant categorically stated in his evidence that he made enquiry with the watchman and found that he did not know anything to which there is no challenge. It is true that the Investigating Officer did not record statement of watchman of building but then that by itself would make no difference as it would have been an additional piece of evidence. But then not examining watchman of the building cannot affect case of the prosecution since that was not the only available evidence. 27. As regards the phone calls received by PW1-Chaya and PW2-Prashant, the prosecution has brought on record the evidence of PW24-Vasant Jadhav, who is Nodal Officer of BSNL examined at Exh.- 200. He stated that by a request letter dated 25-11-2011 Exh.-201, from Police, CDR of Mobile No. 9423478239, 9422806489, 9423073785 and the landline No. 0712-2777956 were sought. PW24-Vasant Jadhav stated that mobile phone No. 9423478239 is in the name of Nitin Pugaliya and CDR of the said mobile phone was provided by him along with forwarding letter Exh.-205. The mobile phone No. 9422806489 is in the name of Prakash Kataria and CDR of the said mobile number Exh.-202 was also provided. PW16-Chetan More, who is Nodal Officer of Airtel Company, examined at Exh.-141 stated that as per Office record, mobile phone No. 9503425313 is in the name of Prakash Katariya, r/o Hiwari Nagar, Nagpur while Mobile No. 9503662476 is in the name of Jyoti Narendra Karnaji r/o Khamgaon. PW16-Chetan More, who is Nodal Officer of Airtel Company, examined at Exh.-141 stated that as per Office record, mobile phone No. 9503425313 is in the name of Prakash Katariya, r/o Hiwari Nagar, Nagpur while Mobile No. 9503662476 is in the name of Jyoti Narendra Karnaji r/o Khamgaon. He stated that he provided CDR of the above phone number registered in the name of Prakash Katariya for the period from 10-10-2011 to 12-10-2011 were handed over to police. 28. PW1-Chaya had received the phone call at about 6.00 p.m. on her landline No. 2777956 when a boy spoke to her about kidnapping and demand of Rs. 2,00,00,000/- within two hours. PW22-Chandrakant Bhor, who is Nodal Officer of Reliance Company, examined at Exh.-179 stated that pursuant to the request letter dated 30-11-2011 from Police Exh.-180, he provided CDR and SDR prints of No. 0712-3228289, Exh.182. The said phone was registered in the name of Parvez Khan, r/o Nagpur as per the record of the company. 29. With the assistance of learned counsel for rival parties, we have perused the timings etc. of making of the calls from telephone No. 0712-3228289 to the landline No. 0712-2777956 received by PW1-Chaya so also the missed calls made to Prashant Katariya on his mobile phone No. 9422806489. The defence counsel had made submissions that the timings did not tally or it was not possible to have conversation within a few seconds and that, therefore, the prosecution did not prove or link up the telephone entries is not sound and is contrary to the record. On the contrary, all the entries and the timings of making of phone call to the aforesaid phone numbers clearly show that phone call was made on the aforesaid landline No. 2777956 at 17.59 hrs. in the possession of PW1-Chaya from telephone No. 3228289. The time of talk about 26 seconds about the information of kidnapping, threat to kill and the demand for Rs. 2,00,00,000/- is enough and we do not find anything strange as contended to disbelieve it. The further submission about month and date mentioned in these documents that the month and dates must have been mentioned in accordance with the American way of writing is not acceptable to us in the absence of any question being asked to any of the witness to that effect. The further submission about month and date mentioned in these documents that the month and dates must have been mentioned in accordance with the American way of writing is not acceptable to us in the absence of any question being asked to any of the witness to that effect. We, therefore, do not accept the submission that there was no tallying about the phone calls made. Another criticism that was levelled in this connection about seizure of mobile phone was that the seizure was made on 12-12-2011 Exh.-117 at about 0.25 hrs. at the Crime Branch office. That may be so and we do not find anything suspicious about it because the Crime Branch officers were already alerted by PW2-Prashant and it might be that the seizure was made at the office of Crime Branch but then that by itself there was no evidence to show that the appellant was in the custody of Crime Branch as contended. It may be that the Crime Branch must have been assisting the investigation. 30. The next evidence, which is required to be considered in the above context, is the evidence of PW3-Shaikh Shahid. PW3-Shaikh Shahid stated in his evidence that he is running the General Stores and also doing the business as travelling agent and has a phone instrument having phone No. 3228289, which is in the name of Parvez Khan, r/o Bhaldarpura, Nagpur and he has been using that phone instrument. The instrument is at a distance of 9 to 10 ft. where he is sitting in the shop. He further stated that he knows appellant-Ayush and identified him in the court also. He stated that Ayush had a shop of auto parts and used to come to his shop for drinking cold drinks etc. He then stated that on 11-10-2011 at about 6.00 p.m. appellant-Ayush had come to his shop and made about 5-6 phone calls from the said instrument having No. 3228289. Significantly, this evidence itself has gone totally unchallenged. We have checked up his cross-examination and we did not find anything to shake his evidence. However, he has given one omission that Ayush was at his shop for about 10-15 minutes and except this, there is no other infirmity in his evidence. Significantly, this evidence itself has gone totally unchallenged. We have checked up his cross-examination and we did not find anything to shake his evidence. However, he has given one omission that Ayush was at his shop for about 10-15 minutes and except this, there is no other infirmity in his evidence. In our opinion, this infirmity about his presence for 10-15 minutes would be of no avail since the evidence that Ayush had made 5-6 phone calls would clearly nullify the fact of the said omission. This witness knows Ayush very well because he used to come to his shop for drinking cold drinks etc. This witness is an independent witness having no interest for either side. This witness fairly disclosed that the phone is in the name of Parvez Khan and he has been using it. We believe this witness. The statement that Parvez Khan has not been examined by the prosecution, in our opinion, would make no difference. It is true that the telephone number in the name of Parvez Khan was unauthorizedly used by this witness but that may not be relevant in the present matter. As stated earlier by us, the phone calls made were made from this telephone number 3228289 by appellant-Ayush to PW1-Chaya and PW2-Prashant. Rather the fact is established by PW3- Shaikh Shahid that phone calls were made from his telephone number and also as established earlier on the basis of CDR and SDR of the phones including the timing at about 6.00 p.m. at which they were made from phone number 3228289. The time i.e. 6.00 p.m. stated by him went unchallenged. In our opinion, it is thus firmly established that the appellant-Ayush made phone calls from this telephone number 3228289 to PW1-Chaya giving threat and demanding ransom. 31. In the background of the above evidence, we think that the grievance made by the State about acquittal of the appellant-Ayush under section 364-A of the Indian Penal Code or rather the appeal of the State need to be considered at this stage. section 364-A of the Indian Penal Code reads thus, "364-A. Kidnapping for ransom, etc. 31. In the background of the above evidence, we think that the grievance made by the State about acquittal of the appellant-Ayush under section 364-A of the Indian Penal Code or rather the appeal of the State need to be considered at this stage. section 364-A of the Indian Penal Code reads thus, "364-A. Kidnapping for ransom, etc. - Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international intergovernmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine." 32. This section was introduced by Act No. 42/93, section 2 w.e.f. 22-5-1993 and, thereafter, the words for "any other person" were added by substituting by Act 24/95 w.e.f. 26-5-1995. Perusal of the above provision shows that any person threatening to cause death of a person in detention after kidnapping in order to compel any person to pay a ransom shall be guilty of kidnapping for ransom. Upon discussion of the above evidence and comparing the reason for acquittal of the said charge, it would be appropriate for us to quote the reason given by learned trial Judge in paragraph 38 of the judgment, "38. ...In ordinary course a person making a plan of kidnapping for ransom is expected to make prior arrangement for keeping or concealing person to be kidnapped. However, no evidence is come forward to the effect that accused Aayush had made such type of arrangement. On the contrary, prosecution story indicates that from the shop of PW12 Kamal Khilwani accused Aayush had taken Kush to a incomplete building located at Surya Nagar, Nagpur and immediately killed him. Aforesaid state of affairs would go to indicate that kidnapping of Kush was not for ransom, but with intent to commit murder. In said circumstances for want of cogent evidence kidnapping for ransom is not proved." 33. Aforesaid state of affairs would go to indicate that kidnapping of Kush was not for ransom, but with intent to commit murder. In said circumstances for want of cogent evidence kidnapping for ransom is not proved." 33. The trial Judge had, in the earlier part of this paragraph 38, discussed the evidence of PW14-Roma Agastin that the appellant Ayush had made phone calls to Roma in the month of September-2011 when she was at Bengaluru and told her that he was about to get huge cash amount to gift her precious gifts on her birthday so much so that she would not be required to undertake any service for any period. She further stated that even though she asked him repeatedly the source of money, appellant-Ayush did not disclose the same to her. We have, at this stage, seen the evidence of PW11-Dhiraj Sharma and PW14-Roma and we find that she is an independent witness and her evidence has not been shaken on the material particulars. Her evidence that, "Accused Ayush by making a telephone call to me told that he is about to get huge cash amount and he will give me a precious gift on my ensuing birthday and I will not require to make service for any period." is consistent except about the making of telephone calls. But then the fact that she was at Bengaluru on that day and at that time was using mobile No. 9535192721 is not under challenge. Therefore, if she was at Bengalure and the evidence about Ayush telling her of getting huge cash amount and so and so forth is trustworthy, we do not find that non mention of telephone in her statement to police would damage her evidence in any manner. The close acquaintance of appellant-Ayush with her is also not a fact in dispute. In the light of the evidence of various witnesses discussed above, we are firmly sure that it was the appellant who threatened PW1-Chaya on her telephone to cause death of Kush or else make arrangement for payment of Rs. 2,00,00,000/- within two hours and that he would tell place later on. The reason recorded by the learned trial Judge quoted by us above that the kidnapping was not for ransom but with intent to commit murder, in our opinion, is clearly lame and contrary to record. 2,00,00,000/- within two hours and that he would tell place later on. The reason recorded by the learned trial Judge quoted by us above that the kidnapping was not for ransom but with intent to commit murder, in our opinion, is clearly lame and contrary to record. We think, the prosecution has with the above evidence coupled with the evidence about kidnapping of Kush which is being discussed herein, the appellant must be held guilty of the offence punishable under section 364-A of the Indian Penal Code by reversing the finding of acquittal recorded by the learned trial Judge. 34. Next, the most important aspect of this case is the evidence of PW4-Shubham and PW5-Ridam along with PW27-Santosh Chandak and PW12-Kamal Khilwani. The learned counsel for the rival parties have focused on these witnesses with full force at their command. Counsel for the defence severely criticized the evidence of these witnesses. This Court was required to give somewhat long period for allowing the counsel for the rival parties to make submissions. Not only that, this Court had even directed the trial Judge to record additional evidence of these witnesses by order dated 26-2-2015. We have carefully considered the evidence of PW4-Shubham and PW5-Ridam originally recorded by the trial Judge and additional evidence recorded after order was made by this Court on 26-2-2016. We have carefully considered the submissions as well as criticism made by learned defence counsel. Having carefully seen the omissions in the evidence of these witnesses and the proof thereof, we would discuss the evidence. 35. The following is the evidence of PW4-Shubham, which is without any omission, "On 11-10-2011 I myself, Kush and Ridam were eating chips in a gallery of the house of Kush during noon time. We all three had brought the chips from Chandak Provisions and for the purpose Kush had asked Rs. 30/- to his mother. Ayush was standing at Chandak Provisions when we had gone there to bring chips. Chandak provisions is located in front of our apartment. At Chandak Provisions Kush wished Ayush by saying Hai and Hallow. We have taken three pockets of chips." "We then came back to gallery and started eating chips. Ayush had given a call to Kush by making a sign by his hand. Chandak provisions is located in front of our apartment. At Chandak Provisions Kush wished Ayush by saying Hai and Hallow. We have taken three pockets of chips." "We then came back to gallery and started eating chips. Ayush had given a call to Kush by making a sign by his hand. Kush felt that Ayush is calling 'for providing him a chocolate' and by saying so to us he started to go on ground floor. Till that time Kush had already finished his chips. When Kush came on the ground floor in front portion of apartment I was noticing him. When Kush was about to reach near Ayush, Ayush started his Activa scooter and proceeded by a road with scooter. Kush started running following scooter. 'On road upon corner Ayush had stopped the scooter and at that time Kush sat in my view sight upon a scooter and thereafter accused and Kush were gone together by scooter.' I myself and Ridam were eating chips when Kush had gone from gallery." The underlined portion indicated by us into inverted coma is in the form of omission in the evidence of PW4-Shubham. However, we find that in the additional evidence, the defence got proved the only omission about providing him a chocolate but failed to prove or get proved the omission indicated above by us namely; 'On road upon corner Ayush had stopped the scooter and at that time Kush sat in my view sight upon a scooter and thereafter accused and Kush were gone together by scooter.' We, thus, hold that the omission indicated by us above has not been proved by defence from the additional evidence of PW31-Sunil, the Investigating Officer. Consequently, this court will have to reject the submission that the said portion of evidence namely; unproved omission; should also be ignored. We, thus, find that PW4-Shubham has clearly proved that Kush had been called by appellant-Ayush on a road where he was standing and then Kush went near him, the appellant started his scooter, Kush followed him and then Kush sat on the scooter and both of them went together by scooter. We, thus, find that PW4-Shubham has clearly proved that Kush had been called by appellant-Ayush on a road where he was standing and then Kush went near him, the appellant started his scooter, Kush followed him and then Kush sat on the scooter and both of them went together by scooter. We have also seen the cross-examination of these two witnesses and we do not find any discrepancy or infirmity in the evidence of these witnesses and on the contrary, it has been brought that they saw from the gaps between pillars in the gallery where they were playing, Kush going towards Ayush and so on and so forth. 36. Now coming to the evidence of PW5-Ridam, he stated thus in paragraph 2 of his evidence : "On 11-10-2011 there was a concert at our school at 5.00 p.m. and therefore, during day time I myself, Kush and Shubham were at home. At about 3.30 p.m. I myself, Kush and Shubham were together at a gallery of the house of Kush. At that time we all decided to eat chips and therefore, Kush had taken Rs. 30/- from his mother and then we all three have gone to bring chips at Chandak provisions located in front of our apartment. Ayush Bhaiya was standing near Chandak Provisions. We have taken three pockets of chips and came back to gallery of Kush. While eating chips we were playing. We say that Ayush is calling Kush by making sign by his hand. Upon this Kush told that 'Ayush is calling him for providing chocolates.' Kush and gone towards ground floor by saying so and I myself and Shubham remained in gallery. We saw that Ayush has started his scooter and proceeded by a lane. Kush ran away following scooter. Ayush had stopped the scooter in a lane upon corner, and then Kush sat on that scooter, and then both of them had gone. Thereafter we have gone in a lane, but both of them were not found to us." In the additional evidence, the omission is brought on record about reason for going out namely that appellant-Ayush was calling him for providing chocolate. Thus, providing chocolate is an omission and not that Kush had gone towards the ground floor. Thereafter we have gone in a lane, but both of them were not found to us." In the additional evidence, the omission is brought on record about reason for going out namely that appellant-Ayush was calling him for providing chocolate. Thus, providing chocolate is an omission and not that Kush had gone towards the ground floor. However, in his additional evidence, he admitted that he had not stated to police that, "Ayush had stopped the scooter in a lane upon corner, and then Kush sat on that scooter, and then both of them had gone." It is recorded in the additional evidence that the omission pertains to the act of sitting of the deceased on the scooter only. We thus find from the evidence of PW5-Ridam, that Kush had sat on the scooter and that Ayush had stopped the scooter in the lane upon corner, is omission and this evidence will have to be ignored. But there is no omission as such about the material portion that 'Ayush and Kush were gone together by scooter and the theory about both of them seen together last on the road from the galley of the house of Kush.' The evidence of PW5-Ridam, thus, in our opinion, corroborates the evidence of PW4-Shubham on material particulars if not on all particulars and from their evidence, the prosecution has clearly proved that the appellant Ayush had called Kush on the road near him near Chandak provisions and thereafter, both of them had gone together that was at about 4.00 p.m. We have no hesitation in holding that the evidence of both these witnesses, though child witnesses, is trustworthy, natural and wholly acceptable. The criticism that these are child witnesses are tutored, does not appeal to us. There is whatsoever nothing on record to show any kind of tutoring. We also do not find that merely because those witnesses are child witnesses, their evidence should not be believed. Both these boys were of the age of 8 years at the relevant time and have been studying in Centre Point School, which is prime school in the city of Nagpur where the children of rich class people are admitted. We do not find that both these child witnesses have had anything against the appellant- Ayush to involve him. Both these boys were of the age of 8 years at the relevant time and have been studying in Centre Point School, which is prime school in the city of Nagpur where the children of rich class people are admitted. We do not find that both these child witnesses have had anything against the appellant- Ayush to involve him. We further find that their statements were immediately recorded leaving no scope for any manipulation or tutoring on 12-10-2011 itself. The evidence of witnesses was recorded by the trial court after asking them the usual questions, which were required to be asked to a child witness and thereafter oath was administered to these witnesses. On the contrary, we find that the evidence of these two witnesses inspires confidence. These are innocent boys having had no axe to grind. 37. The evidence of PW27-Santosh Chandak is also relevant. He runs his shop opposite the building where PW1-Chaya resides. On 11-10-2011, at about 3.30 to 3.45 p.m., he was present at the shop. At about 3.30 to 4.00 p.m. accused Ayush came to his shop and demanded cold drinks. Ayush stopped at his shop for about 10 minutes by sitting. At that time, Kush, Ridam and one child (Shubham) had been to his shop and they purchased three pockets of chips from his shop and had gone. Thereafter, Ayush had also gone. He, thus confirmed the presence of Ayush at his shop at the relevant time. He also confirmed that these three children had come to his shop for purchase of packets of chips. 38. We then come to the evidence of PW12-Kamal Khilwani. PW12 Kamal has a grossery shop namely; Hari Om Traders at Teka Naka, Kamptee Road, Nagpur. Hiwari Layout is at a distance of 5 km. from his shop. Surya Nagar is at a distance of 3 km. On the fateful day, one boy with a child had come to his shop at about 4.30 p.m. by Scooter of Grey colour when he was at his shop. The boy who he identified as Ayush had asked him for Dairy Milk chocolate, which was not available at his shop. He told him accordingly and stated that 5 Star chocolates were at his shop, whereupon the boy started arguing that his shop is big and how Dairy Milk chocolate is not available at his shop. The boy who he identified as Ayush had asked him for Dairy Milk chocolate, which was not available at his shop. He told him accordingly and stated that 5 Star chocolates were at his shop, whereupon the boy started arguing that his shop is big and how Dairy Milk chocolate is not available at his shop. He, then asked him whether 5 Star Chocolate should be given. At that time, he saw the child sitting on the scooter. That boy asked that child whether he would like to have 5 Star chocolate. The child replied in affirmative. Upon providing two currency notes of Rs. 10, three 5 Star chocolates were provided and, thereafter, the boy as well as the child had gone from there. This witness thus identified Ayush in the court and was also shown photographs of Kush, which he identified in his substantive evidence before the Court. He also identified the Tshirt of sky blue colour and jeans pant of blue colour of appellant-Ayush which he had on his person on the day of incident. He then stated that test identification parade was held in the Central Jail and he identified the appellant-Ayush from amongst 8 persons in all of the similar age and also identified his scooter vide Exh.-51 memorandum. In the cross-examination, he admitted that he did not state that Ayush and child were at his shop for about 10-15 minutes. We have read his entire cross-examination and except one more omission that Ayush was having T-Shirt of sky blue colour and Jeans full pant of blue colour, there is no infirmity in his evidence. He is an independent witness having nothing to do either with the deceased or with the accused. Much criticism was made by the learned defence counsel on the evidence of this witness that he was a 'planted' witness. A submission was made that in the remand papers dated 16-10-2011 at Sr. No. 5, it is stated that as a ground for claiming police custody of Ayush, a statement of the person who sold chocolates was to be recorded, when as a matter of fact, a claim is made by the prosecution that his statement was recorded on 12-10-2011. The defence counsel, therefore, contended that the investigation is tainted and the Investigating Officer had deliberately involved the appellant and that is clear from the evidence of this witness PW12-Kamal Khilwani. The defence counsel, therefore, contended that the investigation is tainted and the Investigating Officer had deliberately involved the appellant and that is clear from the evidence of this witness PW12-Kamal Khilwani. According to him, the story projected by the Investigating Officer about recording of statement on 12-10-2011 is thus clearly falsified and this makes the entire prosecution case wholly suspicious and riddled with tainted investigation. 39. We have carefully considered the submissions of the learned defence counsel. However, we are unable to accept this submission. The remand paper dated 16-10-2011 at Sr.No. 5 in the first place does not mention name of PW12-Kamal Khilwani and there is a reason to believe the explanation that the Investigating Officer might be searching for some other person selling the chocolate and that is why the mention was made at Sr.No. 5. Not only that, the said remand papers or entry at Sr. No. 5 therein was never put to the Investigating Officer PW31-Sunil. We, therefore, find that in the absence of opportunity of explaining about entry at Sr.No. 5 in the remand papers dated 16-10-2011, such an argument cannot be built up and at any rate the said remand paper dated 16-10-2011 was were neither admitted in the evidence nor was proved or exhibited. To say that the said remand paper is a document of police would not take the argument any further as the court has to act only on the admissible or proved evidence. 40. The next submission about test identification parade of the appellant is vitiated or was a farce also does not appeal to us. Nothing has been brought on record to show that the publication of photo of Kush that was made on large scale was actually seen by PW12-Kamal and he does not say so. Therefore, merely because photographs of the deceased were published or news about crime was published, one would not automatically come to a conclusion that PW12-Kamal must be knowing about the appellant and the deceased. There is one more reason for saying so namely; PW31-Sunil stated in his evidence that PW12-Kamal Khilwani had gone to Jabalpur and it took some time waiting his arrival for bringing him for test identification parade and that evidence has not been challenged. The evidence of PW31-Sunil that Pw12-Kamal had gone to Jabalpur is an evidence explaining the delay, that had occurred in holding test identification parade. The evidence of PW31-Sunil that Pw12-Kamal had gone to Jabalpur is an evidence explaining the delay, that had occurred in holding test identification parade. The trial Court accepted the explanation for delay in holding parade, which we also do. There is no challenge to the evidence that the witness had gone to Jabalpur for sufficient period and after his return, he was asked to remain present for the parade. The submission that there is delay of two months, which would affect the test identification parade, does not appeal to us. That apart, what we find that his substantive evidence is that, PW12-Kamal identified the appellant-Ayush before the Court and his evidence was recorded or rather he identified the appellant-Ayush on 8-12-2012 whilst the incident had taken place on 11-12-2011. We have seen the dictum laid down by the Apex Court and we find that there is no reason to disbelieve the identification made by PW12-Kamal before the Court in his substantive evidence that too within a short period of one year. We, thus, accept the evidence of PW12-Kamal Khilwani. 41. We, thus, find that the prosecution has clearly established that the appellant-Ayush had taken with him the deceased Kush and had made a round at the shop of PW12-Kamal and thereafter he took him to the secluded place or under construction building where ultimately, dead body of Kush was found as discovered by accused with serious injuries on his person. 42. The next submission is evidence of PW21-Raja Gour and PW23-Ravi Sawarkar. These two witnesses are employees of the appellant working in his auto parts shop. Both of them have deposed against the appellant. They stated that both were working as servants in the shop of appellant. Navin and Nitin, brothers of appellant were attending the shop. On 11-10-2011, in their presence, Ayush had gone from the shop at about 11.45 a.m. by gray coloured Activa scooter with No. MH-31/BY2354. At 5.15 p.m. a phone call from Ayush was received by Navin that he met with an accident and his clothes should be called at the shop. In their presence, Navin told PW23-Ravi to go at the house and bring clothes of Ayush. After some time, Ayush had been to the shop. He was having a T-Shirt and blue coloured Jeans on his person. He saw that there were blood stains on the T-Shirt. In their presence, Navin told PW23-Ravi to go at the house and bring clothes of Ayush. After some time, Ayush had been to the shop. He was having a T-Shirt and blue coloured Jeans on his person. He saw that there were blood stains on the T-Shirt. Ayush came at the shop by the Activa Scooter by which he had gone. PW23-Ravi went to the house by vehicle of Navin and brought clothes of Ayush and he gave those clothes to Navin. Navin gave those clothes to Ayush. Ayush changed the clothes in the shop behind a partition of shop. Ayush and Navin, were behind the partition for about 15 minutes. After 15 minutes, Ayush again went to C.A. Road by feet. Again after 10-15 minutes, he came back to the shop. Thereafter, after 5-10 minutes after closing the shop, he has went to his home. These witnesses also identified the clothes which were shown to them. These witnesses were cross-examined at length. We have carefully seen their cross-examination. We do not find any infirmity in the evidence of both these witnesses. On the contrary, we find that both the witnesses, who have been working as servants in the shop of the appellant have supported the prosecution. The timing of arrival of Ayush at the shop with blood stained clothes and then changing of clothes etc. with further fact that the brothers, one of whom was convicted by the trial Court under section 201 of Indian Penal Code and who did not file any appeal but accepted the verdict of the trial Court, shows a strong evidence. The evidence of both these witnesses is natural and trustworthy. We accept the evidence of both these witnesses. Both of them identified clothes shown to them in the Court. PW23-Ravi identified the polythene bag as well as clothes. 43. The next evidence is of PW10-Suresh Bhamkar, who is a very important witness as to the discovery of the dead body of the deceased Kush from the under construction building. We have carefully perused the evidence of PW10-Suresh and we have also considered the submissions made by the learned defence counsel so also the criticism of these witnesses. It may be true that PW10-Suresh Bhamkar acted as Panch witness on many occasions, but then that by itself, according to us, would be no ground to reject his evidence. We have carefully perused the evidence of PW10-Suresh and we have also considered the submissions made by the learned defence counsel so also the criticism of these witnesses. It may be true that PW10-Suresh Bhamkar acted as Panch witness on many occasions, but then that by itself, according to us, would be no ground to reject his evidence. We would rather find out whether his evidence is trustworthy or not. The appellant-accused, while in custody of the police, made a discovery statement, which was duly recorded in the presence of this witness PW10-Suresh. Accordingly Exh.-114 and Exh. 114/A panchanama were recorded. We have perused these documents carefully in order to test the submissions made by learned defence counsel. We find that pursuant to the statements made by appellant-Ayush for discovering the dead body of the deceased Kush, the police party along with panch witness went to the incomplete building at Surya Nagar, Nagpur and there they found the dead body lying in water tank. The entire scene or the place where the dead body was found so also the building was duly described so also photographs were taken. The statement that in no photograph, the appellant was seen and that, therefore, there is a reason to believe that there was no discovery made by appellant and that is why he has not seen the only photograph does not appeal to us. On the contrary, the Investigating Officer took full care not to show the identity of the accused to anybody and we accept the said explanation. PW10-Suresh then was shown the articles which were seized from the spot pursuant to the discovery statement regarding the dead body and other articles. He proved all the relevant documents including the spot panchanama Exh.-115. He identified the T-Shirt and half pant shown to him before the Court, which was found on the dead body of the child. Reading of his entire evidence, to our mind, does not show any evidence of interestedness or tutoring or any untrustworthiness as contended by learned defence counsel. We believe the evidence of PW10-Suresh, who is an important witness on the discovery, Spot Panchanama and seizure of articles etc. 44. Next is the evidence of PW17-Rajesh Belkhode, who is a witness of memorandum statement-Exh.156 and Seizure Panchanama-156-A of the weapon namely; cutter. We have perused the evidence and we find nothing to disbelieve him. We believe the evidence of PW10-Suresh, who is an important witness on the discovery, Spot Panchanama and seizure of articles etc. 44. Next is the evidence of PW17-Rajesh Belkhode, who is a witness of memorandum statement-Exh.156 and Seizure Panchanama-156-A of the weapon namely; cutter. We have perused the evidence and we find nothing to disbelieve him. He is an independent panch witness and there is no reason to disbelieve the evidence of PW17-Rajesh. He also identified the cutter before the Court, which was seized under the panchanama Exh.-156/A. 45. Next is the evidence of PW25-Kunal Watkar on memorandum panchanama Exh.-207 and 207/A upon statement made by accused No. 2-Navin on 20-10-2011 for discovery of Jeans and T-Shirt from a gutter near Kasturchand Park, Nagpur. Those were the clothes which the appellant-Ayush had on his person at the relevant time. All those clothes were identified by PW25-Kunal in the Court so also PW23-Ravi Sawarkar, as stated earlier. We have no reason to disbelieve PW25-Kunal. The submission that the theory of discovery of these articles from the gutter is improbable does not appeal to us. The reason is that they were well packed in the plastic bag and were then put in the gutter. Eventually, the blood stains were found on the articles and that was human blood. The appellant or his brother Navin had no explanation for discovering as to how the blood stains were found on the clothes of the person of the appellant-Ayush. 46. The next submission is about watchman in the incomplete building namely; PW33-Fattesingh and PW34-Ajay. Both of them have stated that they had left the incomplete building since they had no work there and there is no reason why the evidence of these two witnesses could be disbelieved. The contentions raised by the defence that there was no investigation in relation to PW33-Fattesingh and PW34-Ajay, as to their role, does not appeal to us. The duo namely; father and son had already left the place of the incomplete building about a year back leaving behind some belongings. There is no reason for us to disbelieve their evidence and, therefore, we do not accept the contentions in relation thereto. 47. The next contention is about Vaibhav, r/o Surya Nagar, Nagpur. Strong criticism made by learned defence counsel about the Investigating officer PW31-sunil on this aspect has been considered by us. There is no reason for us to disbelieve their evidence and, therefore, we do not accept the contentions in relation thereto. 47. The next contention is about Vaibhav, r/o Surya Nagar, Nagpur. Strong criticism made by learned defence counsel about the Investigating officer PW31-sunil on this aspect has been considered by us. At the outset, we find that if at all the defence wanted to bring the truth before the Court in relation to Vaibhav, nothing prevented the defence from summoning Vaibhav before the court. To criticise, the Investigating officer, in the absence of any foundation in relation to Vaibhav, in our opinion, is unfair. The further criticism that PW31-Sunil had tampered with the case diary and changed the case diary, also does not appeal to us. On the contrary, as stated by the trial Court in paragraph 48 on its judgment, PW31-Sunil gave explanation that he had recorded statement of Vaibhav on 24-10-2011 but there was wrong mention about the date of his statement. In our opinion, much capital cannot be made of the mistake about which he has given his explanation. On the contrary, we find that his version that Vaibhav's statement was recorded on 24-10-2011, finds support from the fact that discovery of dead body was made on 15-10-2011 which we have believed. As discussed earlier, it will have to be held and as held by the trial court that the disclosure from Vaibhav must have come after discovery of the dead body and it would be wrong to criticise PW31-Sunil, who fairly explained that it was a mistake in recording his date of statement. 48. We are also inclined to accept the submissions made by learned Special Public Prosecutor that plea of alibi has been clearly demolished by evidence of PW21-Raja Gour and PW21-Ravi Sawawrkar, whose evidence we have believed and who were working as servants in the shop of the appellant. 49. To sum up, we have thus come to the conclusion that the judgment of the trial court convicting the appellant for an offence punishable under sections 364, 302 and 201 of the Indian Penal Code is legal, correct and proper. However, the judgment and order made by the learned trial court, acquitting the appellant for an offence punishable under section 364-A, Indian Penal Code is illegal and liable to be set aside. 50. However, the judgment and order made by the learned trial court, acquitting the appellant for an offence punishable under section 364-A, Indian Penal Code is illegal and liable to be set aside. 50. Consequently, Criminal Appeal No. 348/2013 filed by the appellant-Ayush is rejected. Insofar as the Criminal Appeal No. 391/2013 filed by the State for conversion of life imprisonment of accused to death sentence is concerned, we have considered all the decisions cited before us by the learned Special Public Prosecutor. We have also considered the decision in the case of Sunder vs. State, 2013 (3) SCC (Cr) 98 which, according to the learned Special Public Prosecutor is applicable on facts of the case. Also, we find that the present case is not a rarest of rare case nor we find that the appellant can be said to be menace to the society. We, therefore, dismiss the appeal for enhancement of sentence to death sentence. 51. However, we allow Criminal Appeal No. 543/2013 filed by the State and set aside the order of acquittal of the appellant under section 364-A of the Indian Penal Code and hold the appellant guilty of the offence under section 364-A of the Indian Penal Code. We thus now proceed for hearing the appellant on the question of sentence for the offence since we found him guilty for an offence punishable under section 364-A of the Indian Penal Code. 52. We have heard learned counsel for rival parties on the point of sentence having held the respondent-Ayush Pugaliya guilty for an offence punishable under section 364-A of the Indian Penal Code. Mr. Daga, learned Special Public Prosecutor for the State, prayed for the death sentence, since according to him, section 364-A of the Indian Penal Code having undergone changes after amendment was brought into force with a view to take care of such types of serious offences and that is why death sentence is provided in the said provision. On the contrary, learned counsel for respondent-Ayush submitted that he is a young person having no antecedents and hence leniency may be shown to him. 53. Upon hearing learned counsel for the rival parties, we are of the opinion that the case at hand is neither the rarest of rare case nor the respondent-Ayush could be said to be menace to the society. 53. Upon hearing learned counsel for the rival parties, we are of the opinion that the case at hand is neither the rarest of rare case nor the respondent-Ayush could be said to be menace to the society. That being so, we are of the opinion that sentence of imprisonment for life would subserve the interest of justice. 54. To conclude, we make the following order ORDER (i) Criminal Appeal No. 348/2013 filed by appellant-Ayush Pugaliya is dismissed. (ii) Criminal Appeal No. 391/2013 filed by the State of Maharashtra for enhancement of sentence of respondent-Ayush Pugaliya to death sentence is dismissed. (iii) Criminal Appeal No. 543/2013 filed by the State of Maharashtra against finding of acquittal of the respondent-Ayush Pugaliya under section 364-A of the Indian Penal Code recorded by the trial Court is allowed. The order of acquittal of the respondent-Ayush Pugaliya recorded by the trial Court is reversed. The respondent-Ayush Pugaliya is sentenced to undergo rigorous imprisonment for life for commission of an offence punishable under section 364-A of the Indian Penal Code. (iv) The above sentence of life imprisonment shall run concurrently with the sentence imposed by the trial Court.