JUDGMENT : Kanwaljit Singh Ahluwalia, J. Udai Singh s/o Moti Lal and Kripal Singh s/o Sardar Singh, both Rajput, resident of Guradiya Kalan Ka Kheda, Police Station Pagaria, District Jhalawar, were tried by the court of Additional Sessions Judge (Fast Track), Jhalawar, for abducting Kalu Singh, brother of Ram Singh (P.W.1), and also for committing murder of Kalu Singh and thereafter, for causing disappearance of evidence of murder by throwing the dead body in a pond. 2. The trial court vide impugned judgment dated 21.4.2007 held both the appellants guilty for the offences under Sections 364, 302 and 201 IPC. Having convicted the appellants for the aforesaid offences, the trial court vide a separate order of even date sentenced them as under:- U/s 364 IPC- to undergo five years R.I. and to pay a fine of Rs. 2,000/-, in default of payment of fine, to further undergo three month imprisonment. U/s 302 IPC- to undergo life imprisonment and to pay a fine of Rs. 2,000/-, in default of payment of fine, to further undergo three month imprisonment. U/s 201 IPC- to undergo five years imprisonment and to pay a fine of Rs. 1,000/-, in default of payment of fine, to further undergo two month imprisonment. 3. Aggrieved against their conviction and sentence, the appellants have preferred the present appeal. 4. The criminal proceedings were sent into motion on the basis of written report (Exhibit-P/1), presented by Ram Singh (P.W.1), before Bhanwar Singh (P.W.20), who was then posted as SHO, Police Station Pagaria, District Jhalawar. On the basis of written report (Exhibit-P/1) formal FIR (Exhibit-P/2) was registered for the offences under Sections 364 and 365 IPC. Subsequently, the offence under Section 302 and 201 IPC were also added. 5. In the written report (Exhibit-P/1), Ram Singh (P.W.1) stated that he is resident of Gangalia Khera. His elder brother Kalu Singh aged 35 years, from the childhood was staying with his maternal grandfather in village Guradiya Kalan. It was alleged that on 21.7.2006 at 5:00/6:00 PM, from the liquor vend, appellants Udai Singh s/o Moti Lal and Kripal Singh s/o Sardar Singh had abducted Kalu Singh and thereafter, either they concealed him or they had thrown his body after committing murder. It was alleged that on 21.7.2006 at 5:00/6:00 PM, from the liquor vend, appellants Udai Singh s/o Moti Lal and Kripal Singh s/o Sardar Singh had abducted Kalu Singh and thereafter, either they concealed him or they had thrown his body after committing murder. In the written report, it was stated that Udai Singh had a motive to cause murder of Kalu Singh, as earlier his son Shiv Lal had died on the well of Sardar Singh due to electrification and on suspicion it was alleged that Kalu Singh had committed the murder of Shiv Lal. It was further stated in the written report that Madan Singh, liquor vendor, Ram Lal s/o Inder Singh, Shivlal s/o Amar Lal by caste Meghwal and Ratan Lal s/o Gamer Mehar had last seen the deceased Kalu Singh with both the appellants. The above written report was submitted on 24.7.2006 at 11:10 AM. 6. In the written report (Exhibit-P/1), the complainant had alleged that on 21.7.2006, three witnesses named in the written report had seen Kalu Singh with two accused. It is a case of circumstantial evidence. 7. The prosecution has relied upon the following circumstances to secure the conviction of the appellants:- (a) The deceased Kalu Singh was last seen with both the accused-appellants. (b) Udai Singh, the appellant on 7.8.2006, had made a disclosure statement (Exhibit-P/17) and Kripal Singh, the appellant on 13.8.2006 made a disclosure statement (Exhibit- P/19) and in pursuance thereof, the dead body was recovered on 13.8.2006, vide memo Exhibit-P/4, attested by Narayan Singh (P.W.3) and Ram Lal (P.W.2). 8. First of all, we shall consider the evidence of last seen. To prove last seen, the prosecution examined the witnesses, Ram Singh (P.W.1), Ram Lal (P.W.2), Labu Bai (P.W.5) wife of the deceased, Mangilal (P.W.4) (declared hostile), Shiv Lal (P.W.6) (declared hostile), Prabhu Lal (P.W.7), Ratan Lal (P.W.8) and Madan Singh (P.W.13). 9. Ram Singh (P.W.1) in the court stated that Madan Singh, Ram Lal, Shiv Lal and Ratan Lal had seen Kalu Singh going with Udai Singh and Kripal Singh. In cross-examination, this witness stated that Kalu Singh was staying separately in another village. This witness further stated that his brother Kalu Singh was residing in Guradiya Kalan. This witness further stated that he had not seen the deceased Kalu Singh with the accused. In cross-examination, this witness stated that Kalu Singh was staying separately in another village. This witness further stated that his brother Kalu Singh was residing in Guradiya Kalan. This witness further stated that he had not seen the deceased Kalu Singh with the accused. However, he had received information regarding the occurrence from his maternal uncle Ram Lal, who came to him on the next date. 10. Ram Lal (P.W.2) stated that on 21.7.2006, at about 5:00/6:00 PM, he was sitting on the bus stand opposite the liquor vend. He saw both the appellants, namely Udai Singh and Kripal Singh with Kalu Singh going from the house of Kalu Singh. They had purchased liquor from the liquor vend and followed the passage towards Khera. This witness further stated that besides him, Madan Singh, Ratan and Shiv Lal had seen the accused going with deceased Kalu Singh. This witness further stated that the accused had old grudge with the deceased, as son of Udai Singh had died due to electrocution and Udai Singh was having suspicion that Kalu Singh was responsible for the death of his son. 11. Mangi Lal (P.W.4) in the court stated that he was employed as labourer by Narayan Singh. Three-four months ago, he had gone for work on the well of Narayan Singh. When he was returning at 6:00/7:00 PM, in the village Guradiya Kalan, three to four persons were taking liquor. Since he was carrying bundle of grass on his head, he could not identify them. This witness was declared hostile by the prosecution. 12. Labu Bai (P.W.5) in the court stated that Kripal Singh and Udai Singh came to his house to call her husband Kalu Singh. Kalu Singh happily accompanied Kripal Singh and Udai Singh. This witness also gave the description of the clothes worn by the accused. Her husband had not returned. She searched for him and informed his brother-in-law (devar) Ram Singh (P.W.1). This witness further stated that Kripal Singh and Udai Singh were having good family relations with them. The son of Udai Singh had died due to electrocution and he was suspecting Kalu Singh for the death of his son. 13. Shiv Lal (P.W.6) in the court stated that on the day of occurrence, he had taken liquor with both the appellants, Kripal Singh and Udai Singh and thereafter, he left for his house. The son of Udai Singh had died due to electrocution and he was suspecting Kalu Singh for the death of his son. 13. Shiv Lal (P.W.6) in the court stated that on the day of occurrence, he had taken liquor with both the appellants, Kripal Singh and Udai Singh and thereafter, he left for his house. What happened later, he is not aware. This witness further stated that Kalu Singh came there before he had left the place. Kalu Singh was wearing T-shirt and Lungi. 14. Prabhu Lal (P.W.7) in the court stated that on the day of occurrence, he came out of his house at 4:00/5:00 PM. He saw that Kripal Singh, Udai Singh and Kalu Singh were taking liquor. Kalu Singh asked him to join them, but he refused later. They forcibly made him to take liquor. This witness stated that he had taken two pegs of liquor and thereafter, had left the spot. 15. Ratan Lal (P.W.8) in the court stated that about three months ago, he was going from his village to the house of Guma Singh at Guradiya Kalan. On the way, he met Shiv Lal. When he reached near culvert, he saw Kalu Singh, Kripal Singh and Udai Singh going towards Guradiya Ka Khera. Kalu Singh was wearing Lungi and vest. 16. Madan Singh (P.W.13) in the court stated that he is having liquor vend in village Guradiya. On the day of occurrence, he was sitting at his shop when Kalu Singh, Kripal Singh and Udai Singh came and purchased two quarters of liquor. Kalu Singh was wearing T-shirt and Lungi. This witness further stated that later, dead body of Kalu Singh was found. 17. Now, we shall notice the medical evidence. 18. Dr. Hardayal Meena (P.W.15) stated that on 13.8.2006, he was posted as Medical Officer at Community Health Centre, Awar. He had examined the dead body. The dead body was totally decomposed. No external injury was visible, as the dead body was fully decomposed. This witness further stated that he cannot give the cause of death, as the dead body was fully decomposed. He further stated that the dead body was wrapped in a plastic tripal. This witness proved the Post-Mortem Report (Exhibit-P/13). 19. Dr. Bhupesh Dayal (P.W.16) on 8.8.2006 had examined Udai Singh and had found one old scar healed injury on the right knee (vide Exhibit-P/14). 20. He further stated that the dead body was wrapped in a plastic tripal. This witness proved the Post-Mortem Report (Exhibit-P/13). 19. Dr. Bhupesh Dayal (P.W.16) on 8.8.2006 had examined Udai Singh and had found one old scar healed injury on the right knee (vide Exhibit-P/14). 20. Having noted the last seen evidence and medical evidence, now we will notice the evidence regarding recovery of dead body at the behest of the accused. 21. Ram Lal (P.W.2) in the court stated that not only he had witnessed the deceased going with the accused, but in his presence the dead body of Kalu Singh was recovered from a dam. This witness had also attested the inquest proceedings and the recovery memo Exhibit-P/4, whereby the dead body was taken into possession. This witness further stated that in his presence, the dead body was photographed. Police had also taken into possession the clothes of the deceased vide memo Exhibit-P/7. This witness admitted that he is related to Kalu Singh being maternal uncle in relation. 22. Narayan Singh (P.W.3) also stated in the court that in his presence, vide memo Exhibit-P/4, the dead body was recovered and after post mortem, the dead body was handed over to him vide memo Exhibit-P/9 for cremation. 23. Ganga Ram (P.W.11) stated that he being a driver, had searched the pond along with ten to eleven persons for four to five days, but the dead body was not found. However, later he had put the net and the dead body was entrapped. The dead body was fully decomposed and was emitting foul smell. The dead body was tied with plastic Palli and in the said Palli one quintile stone was kept. In cross-examination, this witness stated that after they have searched for dead body for 4-5 days, they had not returned to carry search after 2-3 days. 24. Gopal (P.W.18) stated that police party had taken him to Vinayaka Bandh to take out the dead body. From Vinayaka Bandh, one dead body was recovered, which was tied in a plastic Palli and when plastic wrap was opened, the dead body had decomposed and was emitting foul smell. 25. Kalu Ram (P.W.19) had attested the inquest proceedings. He stated that the dead body was identified to be of Kalu Singh. 26. From Vinayaka Bandh, one dead body was recovered, which was tied in a plastic Palli and when plastic wrap was opened, the dead body had decomposed and was emitting foul smell. 25. Kalu Ram (P.W.19) had attested the inquest proceedings. He stated that the dead body was identified to be of Kalu Singh. 26. Bhanwar Singh (P.W.20) stated that the accused had made a disclosure statement and in pursuance thereof, the dead body was recovered. 27. We have noted the whole evidence led by the prosecution, without noticing the testimony of the witnesses, who had participated in the investigation. 28. Mr. Amarjeet Singh Narang, the learned counsel for the appellants, has urged that the entire story of the prosecution is improbable. It has come in the FIR that the relations between the parties were estranged, as Kalu Singh was suspected to be responsible for the death of son of Udai Singh, who died due to electrocution. It is contended that in that eventuality, there was no reason for Kalu Singh to accompany the two accused to the liquor vend. 29. It is true that the witnesses have stated that the accused was suspecting the deceased Kalu Singh to be responsible for the death of son of Udai Singh, but no definite evidence regarding motive has been led. The prosecution has not proved the fact that Kalu Singh was named as accused in any FIR or in a complaint or he was ever prosecuted. The witnesses have stated that Udai Singh and Kripal Singh were suspecting Kalu Singh to be responsible. In this context, the statement of Labu Bai (P.W.5), widow of the deceased assumes importance. She has stated that relations between two families were good. Therefore, the testimony of other witnesses, who had seen the deceased going with the accused seem reliable. Therefore, the argument advanced by the learned counsel for the appellant is not acceptable. 30. Consequently, we find that the dead body was found from the pond. The police or nobody would have ever known the whereabouts of the dead body, had same were not disclosed by Udai Singh by making disclosure statement (Exhibit- P/17). 31. The learned counsel for the appellants has assailed the disclosure statement (Exhibit-P/17) made by Udai Singh on the ground that same is not witnessed by any independent witness and thus, we should hold that the statement (Exhibit- P/17) was not made voluntarily. 31. The learned counsel for the appellants has assailed the disclosure statement (Exhibit-P/17) made by Udai Singh on the ground that same is not witnessed by any independent witness and thus, we should hold that the statement (Exhibit- P/17) was not made voluntarily. It is only in the cases where the investigation is tainted, the court insist for the independent persons as witness to the disclosure statement. 32. In the present case, no suggestion has been given that police officer that for mala fide reasons, he has involved the appellants. Therefore, in the facts and circumstances of the case, to us, the disclosure statement suffered by Udai Singh (Exhibit-P/17) is credible. The disclosure statement suffered by Udai Singh was recorded on 7.8.2006. 33. The learned counsel for the appellants has assailed the recovery on the ground that the police knew before disclosure made by the accused and knew the fact that the dead body was in the pond before the disclosure statement was suffered by the accused. To fortify this submission, the learned counsel for the appellants, has referred the testimony of Ganga Ram (P.W.11). This witness stated in the court that for 4-5 days they searched for the dead body in the pond. But the same was not traceable, later they had thrown the net in the pond. The learned counsel for the appellants has referred to the following lines in the cross-examination of Ganga Ram (P.W.11):- ^^igys ge 4&5 fnu rd vk;s fQj chp esa 2&3 fnu ugha vk;s** 34. The learned counsel for the appellants stated that thus, the recovery was made after eight days of the occurrence. The learned counsel further stated that the disclosure statement was made by Udai Singh on 7.8.2006 and recovery of the dead body was effected on 13.8.2006 and thus, if we count eight days back, then the police on 5.8.2006, knew about the place where the dead body was thrown. We cannot count days broadly specified by the witness to be accurate. The witness has in general terms stated that they searched for 4-5 days and after a gap of 2-3 days, they again resumed the search for the dead body in the pond. From 7.8.2006 till 13.8.2006, five days intervene. We cannot count days broadly specified by the witness to be accurate. The witness has in general terms stated that they searched for 4-5 days and after a gap of 2-3 days, they again resumed the search for the dead body in the pond. From 7.8.2006 till 13.8.2006, five days intervene. Thus, if the statement of Ganga Ram (P.W.11) is taken in broad terms, it is due to the disclosure statement made by the appellant Udai Singh, the dead body was recovered. Therefore, recovery of the dead body was effected on the basis of disclosure statement (Exhibit-P/17) made by Udai Singh. Therefore, we take into consideration the recovery of dead body at the behest of the appellant, Udai Singh along with the testimony of the witnesses, who had last seen Udai Singh along with the deceased, Kalu Singh, we are of the view that the prosecution has succeeded to complete the chain of circumstances to arrive at the conclusion that the appellant Udai Singh is responsible for causing murder of Kalu Singh. 35. Now, we shall take the case of Kripal Singh. It is the case of the prosecution that Udai Singh had suffered the disclosure statement (Exhibit-P/17) on 7.8.2006. Thereafter, the recovery of dead body was effected on 13.8.2006. It is the case of the prosecution that again on 13.8.2006, the appellant Kripal Singh suffered disclosure statement (Exhibit-P/19). There can be no disclosure of fact already known to the investigating agency. The investigating agency on 7.8.2006 due to disclosure statement (Exhibit-P/17) made by Udai Singh was aware about the place where the dead body was thrown. Therefore, the subsequent disclosure statement (Exhibit-P/19) made by Kripal Singh on 13.8.2006 is not a reliable piece of evidence. Otherwise, also, the disclosure statement subsequent made qua fact already known to the investigating agency is not admissible. 36. Furthermore, in the present case, the search of dead body was carried on 13.8.2006 and the dead body was found on the same day. Therefore, there was no necessity for Kripal Singh to make a disclosure statement. As already stated, Ganga Ram (P.W.11) had stated that 4-5 days before the occurrence, they were searching the pond. As already held by us, search was carried because of disclosure statement dated 7.8.2006, (Exhibit-P/17) made by Udai Singh. The search was in progress, therefore, there was no need to record the disclosure statement by Kripal Singh. As already stated, Ganga Ram (P.W.11) had stated that 4-5 days before the occurrence, they were searching the pond. As already held by us, search was carried because of disclosure statement dated 7.8.2006, (Exhibit-P/17) made by Udai Singh. The search was in progress, therefore, there was no need to record the disclosure statement by Kripal Singh. Thus, we shall rule out the disclosure statement (Exhibit-P/19) from consideration. Once, the disclosure statement (Exhibit-P/19) is excluded and it cannot be said that the dead body was recovered at the instance of the appellant Kripal Singh. Hence, qua the appellant Kripal Singh, we are only left with the evidence of last seen, which in itself is not sufficient to complete the chain of circumstances to arrive at the conclusion that the appellant Kripal Singh had also committed the offence. The possibility cannot be ruled out that Kripal Singh may not have accompanied the deceased and co-accused Udai Singh till the place of offence. Thus, as a matter of abundant caution, we shall extend the benefit of doubt to the appellant Kripal Singh. 37. As a result of above discussion, the appeal qua the appellant Udai Singh is dismissed by affirming the conviction recorded and sentence awarded by the trial court. However, the appeal qua the appellant Kripal Singh is accepted by setting aside his conviction and sentence and he is acquitted of the charges by extending benefit of doubt. 38. In view of the acceptance of the appeal filed by Kripal Singh, we order that he be released forthwith, if not required in any other case. 39. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant, Kripal Singh is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Hon'ble Apex Court. Appeal of U dismissed and that of K allowed.