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2015 DIGILAW 88 (RAJ)

Balbeer Singh v. State of Rajasthan

2015-01-09

KANWALJIT SINGH AHLUWALIA, R.S.CHAUHAN

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Hon'ble CHAUHAN, J.—Aggrieved by the judgment dated 6.8.2004 passed by the Additional Sessions Judge (Fast Track), Sikar, the appellants, Balbeer Singh and Hari Prasad, have preferred this appeal before this court. By the said judgment, Balbeer Singh was convicted for offences under Sections 364, 302, 120B and 201 IPC and was sentenced as under:- i. for offence u/s.364 IPC, he was sentenced to life imprisonment, imposed with a fine of Rs.500/- and directed to undergo six months simple imprisonment in default thereof, ii. for offence u/s.302 IPC, he was equally sentenced to life imprisonment, imposed with a fine of Rs.500/- and directed to undergo six months simple imprisonment in default thereof, iii. for offence u/s.120B IPC, he was sentenced to six months rigorous imprisonment, imposed with a fine of Rs.200/- and directed to undergo one month's simple imprisonment in default thereof, iv. for offence u/s.201 IPC, he was sentenced to seven years rigorous imprisonment, imposed with a fine of Rs.500/- and directed to undergo six months simple imprisonment in default thereof. The sentenced were to run concurrently. 2. On the other hand, Hari Prasad was convicted for offences under Sections 120B and 201 IPC and was sentenced as under:- i. for offence u/s.120B IPC, he was sentenced to six months rigorous imprisonment, imposed with a fine of Rs.200/- and directed to undergo one month's simple imprisonment in default thereof, ii. for offence u/s.201 IPC, he was sentenced to seven years rigorous imprisonment, imposed with a fine of Rs.500/- and directed to undergo six months simple imprisonment in default thereof. The sentences were to run concurrently. 3. Briefly, the facts of the case are that on 13.10.2003, Mohanlal Jat (P.W.1) submitted a written report (Ex.P.1) at Police Station Khatu Shyamji, District Sikar. He claimed that “on 5.10.2003 his son, Raju, went to the Dashehra fair. He left in a tractor. Pema Ram S/o. Mota Ram, Nemi Chand S/o. Moti Ram, Sardar Mal S/o. Dhukal Ram went with Raju in the said tractor. When these persons were returning along with Raju, from the Dashehra fair, Balbeer Singh caught hold of Raju's hands and took him back into the fair. He told Raju that they will return tomorrow morning. Raju told Balbeer that he would like to return back home. Balbeer Singh again told Raju that they will leave in the morning. They all went to see a movie. He told Raju that they will return tomorrow morning. Raju told Balbeer that he would like to return back home. Balbeer Singh again told Raju that they will leave in the morning. They all went to see a movie. Around 12.00 O'clock at night, they left for the village Ganeda. Raju was accompanied by Balbeer, Chhitar Sharma, and Hari Sharma. After having covered some distance, they stopped at a place called “Talai Joda” near village Khora. Balbeer told Chhitar and Hari Sharma to wait at that place, as he and Raju were to go and fetch a motorcycle which belonged to someone known to Balbeer. Balbeer and Raju left the place. They went to the western side. About 10-15 minutes later Balbeer came all alone and told Chhitar that he could not find the motorcycle. Thus, they would need some more time. Having said so, Balbeer went to the western side. Subsequently, Chhitar and Hari Sharma went back to their homes. He further claimed that he suspects that Balbeer had kidnapped Raju. He also suspects that Balbeer could have even killed him. Therefore, he requested that action be taken against Balbeer, and police should try to find his son, Raju”. 4. On the basis of this report, an formal FIR (Ex.P.2), namely FIR No.86/2003, was chalked out for offence under Section 364 IPC. Subsequently, with the recovery of Raju's dead body, offence under Section 302 IPC was added. During the course of investigation, Balbeer Singh, Hari Prasad, Dilip and Gopal were arrested. After a thorough investigation, these four persons were put up for trial. While Hari Prasad, Dilip and Gopal were charged for offences under Sections 201 and 120B IPC, Balbeer was charged for offences under Sections 364, 302, 201 and 120B IPC. In order to establish its case, the prosecution examined twenty-five witnesses and submitted seventy-six documents. Although the defence did not examine any witness, it did submit fifteen documents. After going through the oral and documentary evidence, by judgment dated 6.8.2004, the learned Judge convicted Balbeer Singh and Hari Prasad, as aforementioned, but acquitted Dilip and Gopal of offences under Sections 201 and 120B IPC. Hence, this appeal by Balbeer Singh and Hari Prasad before this court. 5. Mr. Jitendra Singh Tanwar, the learned counsel for the appellants, has raised the following contentions: firstly, the entire case is based on circumstantial evidence. Hence, this appeal by Balbeer Singh and Hari Prasad before this court. 5. Mr. Jitendra Singh Tanwar, the learned counsel for the appellants, has raised the following contentions: firstly, the entire case is based on circumstantial evidence. However, links are glaringly missing in the chain of circumstances. Therefore, the circumstances do not point unerringly to the guilt of the appellants. Hence, the conviction is misplaced. 6. Secondly, no matter how strong suspicion may be, in the absence of cogent proof, the appellant could not have been convicted. Therefore, the appellants' conviction is a moral one, and not a legal one. 7. Thirdly, there is an inordinate delay in lodging of the FIR. For, while the alleged incident is said to have taken place on 5.10.2003, the FIR was not lodged till 13.10.2003. However, the prosecution has not explained the reason for the said delay. Therefore, the time taken between the incident, and in lodging of the FIR was used to falsely implicating the appellants. 8. Fourthly, the learned Judge has erred in convicting Balbeer for offence under Section 302 IPC ostensibly on the ground that there was evidence of last seen, and that he had absconded immediately after the alleged murder. However, both these evidence are weak evidence which do not unerringly point to his guilt. 9. Fifthly, there is a time gap between Raju being seen with Balbeer, and the discovery of Raju's body in a well. Due to the time gap the live link between the last seen and the guilt of the accused has snapped. Thus, the evidence of last seen could not be read against the appellants. 10. Sixthly, Chhitar (P.W.2) and Hari Prasad Sharma (P.W.12) are unreliable witnesses as they have given parrot like testimonies before the learned trial court. Further, their conduct in maintaining a studied silence about the alleged extra-judicial confession made by Balbeer to them casts a shadow of doubt over the veracity of their testimonies. Furthermore, the learned trial court has already disbelieved their testimonies with regard to the alleged extra-judicial confession allegedly made by Balbeer to them. More-over, even if they were to be believed, they are merely witnesses of last seen. 11. Seventhly, but for these two evidence of last seen, and alleged absconding by Balbeer, there is no other evidence which connects Balbeer to the alleged offence. 12. More-over, even if they were to be believed, they are merely witnesses of last seen. 11. Seventhly, but for these two evidence of last seen, and alleged absconding by Balbeer, there is no other evidence which connects Balbeer to the alleged offence. 12. Eightly, even if Mohan Lal (P.W.1) claims that there was a motive for Balbeer and Hari Prasad to kill Raju, his son, the said motive is a double edged sword. According to Mohan Lal (P.W.1), since Balbeer and his family members believed that Mohan Lal and his family members were practicing black magic upon Balbeer’s family, therefore, Balbeer and Hari Prasad, his brother-in-law, killed his son. However, this motive would also form the basis for falsely implicating Balbeer and Hari Prasad. The false implication is further proven by the fact that besides implicating Balbeer Singh, he has also implicated Dilip, Balbeer’s brother, Hari Prasad and and Gopal, both of them are Balbeer’s brother-in-laws. However, As there was no evidence against Dilip and Gopal, the learned has acquitted them. Acquittal of Dilip and Gopal proves that there was over-implication by Mohan Lal. 13. Ninthly, according to Dr. Amar Singh Choudhary (P.W.9), the body was extremely decomposed. Therefore, the cause of death could not be discovered. Hence, the prosecution has failed to prove that the cause of death was homicidal in nature. Hence, Balbeer could not have been convicted for offence under Section 302 IPC. 14. Tenthly, as far as Hari Prasad is concerned, he has been convicted only for offences under Sections 201 and 120B IPC. However, as the prosecution has failed to prove the commission of murder, the question of making the evidence disappear does not even arise. In order to bring home the charge of offence under Section 201 IPC, the prosecution is required to establish the commission of a crime. Therefore, Hari Prasad could not have been convicted for offence under Section 201 IPC. 15. Eleventhly, Raju’s body was recovered from a well belonging to one Dhakawale. However, the well neither belongs to Balbeer, nor to Hari Prasad. Therefore, the body was recovered from an open place. Hence, the fact that Hari Prasad took police to the said well would not link him to the alleged crime. 16. Lastly, there is no evidence of criminal conspiracy. Therefore, Balbeer and Hari Prasad could not have been convicted for offence under Section 120B IPC. 17. Therefore, the body was recovered from an open place. Hence, the fact that Hari Prasad took police to the said well would not link him to the alleged crime. 16. Lastly, there is no evidence of criminal conspiracy. Therefore, Balbeer and Hari Prasad could not have been convicted for offence under Section 120B IPC. 17. On the other hand, Mr. N.S. Dhakar, the learned Public Prosecutor, has raised the following pleas: firstly, the prosecution has established its case by submitting cogent and convincing evidence against both the appellants. 18. Secondly, the delay in lodging of the FIR has been explained by Mohan Lal (P.W.1). According to him, he had spent about a week’s time searching for his son, Raju. It is only when he was told that Raju was last seen in Balbeer’s company that on 13.10.2003 he lodged the FIR. Since he was not too sure whether his son had been killed, initially the FIR was lodged for offence under Section 364 IPC. Therefore, the inordinate delay has been explained by the prosecution. Hence, it is not fatal to the case of the prosecution. 19. Thirdly, both Chhitar (P.W.2) and Hari Prasad (P.W.12) are reliable witnesses. They have clearly stated that Balbeer had threatened them that if they were to reveal the extra-judicial confession, he would kill them too. Therefore, they had maintained silence over the extra-judicial confession. Even if the learned trial court has disbelieved the witnesses with regard to the extra-judicial confession, it would not discredit their testimony. For, the principle of falsus in uno, falsus in omnibus is inapplicable to criminal trials in India. Most importantly, both these witnesses have clearly stated that Balbeer had taken Raju with him for getting a motorcycle from a person known to him. However, after ten minutes he had come all alone. Therefore, there is a strong evidence of last seen. 20. Fourthly, once there is evidence of last seen, it was for Balbeer to explain as to what became of Raju. His silence on this issue points towards his guilt. 21. Fifthly, besides the evidence of last seen and absconding, the prosecution has also proved the motive for the alleged murder. 22. Sixthly, according to Chhittar (P.W.2) and Hari Prasad (P.W.12), Raju was last seen in Balbeer’s company. His silence on this issue points towards his guilt. 21. Fifthly, besides the evidence of last seen and absconding, the prosecution has also proved the motive for the alleged murder. 22. Sixthly, according to Chhittar (P.W.2) and Hari Prasad (P.W.12), Raju was last seen in Balbeer’s company. Moreover, the well from which Raju’s body was discovered is located at Village Khora, which happens to be the village of Balbeer’s in-laws. Therefore, even if there is time gap between the time of disappearance and the recovery of the body, nonetheless, the evidence of last seen is well established. 23. Seventhly, even if the prosecution has failed to prove the cause of death, it was for Balbeer to explain as to what happened to Raju after he was last seen with him. 24. Eightly, as far as Hari Prasad is concerned, the body was discovered at his behest. Even if the well did not belong to him, or to Balbeer, it cannot be claimed that the body was recovered from an open place. The fact that the body was dumped into the well was known only to Hari Prasad and Balbeer. Therefore, the discovery of the body at the instance of Hari Prasad clearly connects him to the alleged offence. 25. Lastly, conspiracy has to be inferred from the facts given. Prosecution has proved that Raju was last seen in Balbeer’s company, that his body was discovered at Hari Prasad’s instance. Therefore, the prosecution has proven the conspiracy between the two appellants. Thus, the learned Public Prosecutor has supported the impugned judgment. 26. Heard the learned counsel for the parties and perused the material on record. 27. Undoubtedly, this case is based on circumstantial evidence. Therefore, the principle regarding appreciation of evidence in a case of circumstantial evidence would have to be kept in mind. Recently, in the case of Balkar Singh vs. State of Haryana (2014 (13) SCALE 63), the Hon’ble Supreme Court has observed as under:- “...Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” Therefore, these principles would have to be kept in mind while appreciating the evidence before this court. 28. One of the settled principle of criminal jurisprudence is that there is a vast distance between “may be true” and “must be true”. The prosecution has to cover the said distance. The prosecution is required to prove its case beyond a reasonable doubt. The case must be proven by cogent and convincing evidence. Therefore, no matter how strong the suspicion may be, but it cannot take the place of proof (Ref. to Sujit Biswas vs. State of Assam ( (2013) 12 SCC 406 )). 29. Although the learned counsel for the appellants has harped on the inordinate delay in lodging the FIR, but the said contention is misplaced. For, Mohan Lal (P.W.1) clearly states in his testimony that Raju, his son, had left for Dashehra fair on 5.10.2003. He further claims that Sardar, Nemi Chand and Pema Ram had told him that they had met with Balbeer and Hari Prasad at the fair. He further explains the delay of eight days as according to him, he kept on looking for his son amongst his relatives. It was but natural for the father to search for his missing son. Even eight days later, Mohan Lal (P.W.1) had lodged a FIR for kidnapping. In the FIR he had merely expressed his suspicion that chances are that his son may have been killed by Balbeer. Thus, a valid reason has been given for the delay in lodging the FIR. Hence, the delay is not fatal to the case of the prosecution. 30. In the FIR he had merely expressed his suspicion that chances are that his son may have been killed by Balbeer. Thus, a valid reason has been given for the delay in lodging the FIR. Hence, the delay is not fatal to the case of the prosecution. 30. The learned counsel for the appellants has questioned the veracity of the testimony of Chhitar (P.W.2) and Hari Prasad Sharma (P.W.12) ostensibly on the ground that both have been disbelieved by the learned Judge as far as extra-judicial confession allegedly made by Balbeer is concerned. However, the learned Judge has given cogent reasons for disbelieving both these witnesses on the point of extra-judicial confession. According to the learned Judge, despite the alleged extra-judicial confession being made to these witnesses, these witnesses maintained a studied silence over the entire issue. Although they claimed that they had told Mohan Lal (P.W.1) that Raju was seen for the last time in Balbeer's company, neither of them revealed the fact that Balbeer had made an extra-judicial confession to them after he had come back and met them at night. Both these witnesses have feebly tried to explain their silence on the ground that Balbeer had threatened them that in case they were to reveal either the fact that Raju was with him, or the fact that he had made an extra-judicial confession, he would also kill them. Since both these witnesses failed to reveal the alleged extra-judicial confession at the earliest point of time, the learned Judge was justified in disbelieving them on this specific point. 31. However, merely because a witness may have been untruthful on a given point, it would not make him an unreliable witness. The maxim Falsus in Uno, Falsus in Omnibus i.e., false in one thing false in all is also relevant. This maxim, as it has been consistently held, does not apply to India particularly in criminal trials. It means that any witness may make a statement which may be incorrect to some extent, but that does not inevitably follow that other portion of the statement, which is correct has also to be disbelieved. To put it differently, the statements of witnesses may be tainted with falsehood, and very often there is fringe or embroidery to a story. The falsehood should be considered in weighing the evidence. To put it differently, the statements of witnesses may be tainted with falsehood, and very often there is fringe or embroidery to a story. The falsehood should be considered in weighing the evidence. But when there is reason to believe that the main part of deposition is true, the same should not be rejected simply because of want of veracity on some minor point (Ref. to Nisar Ali vs. State of U.P., AIR 1957 SC 366 , Ugar Ahir vs. State of Bihar, AIR 1965 SC 278, Kesho Ram Bora vs. State of Assam, AIR 1978 SC 1096 , State of Jammu and Kashmir vs. Hazara Singh, AIR 1981 SC 451 and Gangadhar Behra vs. State of Orissa, AIR 2002 SC 3663). Therefore, even if Chhitar (P.W.2) and Hari Prasad Sharma (P.W.12) have been disbelieved on the point of extra-judicial confession, it would not make them untrustworthy witnesses. 32. The entire prosecution case revolves on the two nuclei of evidence of last seen and absconding of Balbeer. Nemi Chand (P.W.6) informs the court that “last year, Dashehra festival was on 5th October”. According to him, “Sardar, Pema Ram, Raju and he had gone to the village Bai to attend the Dashehra fair. All four of them had gone in a tractor. They had left the village about 4.00 PM and had reached the fair at 5.00 PM. They kept on roaming in the fair till 8.00 PM. At 8.00 PM, Sardar and Pema Ram went to the bus stand, and Raju and he kept on roaming till 8.45 PM. Subsequently, Mukesh Sharma, Raju and he took the road to their village. However, after sometime they rested on the way. Suddenly Balbeer and Hari Prasad came where this witness was sitting with Mukesh and Raju”. He further claimed that “Balbeer asked them to go with him for seeing a movie. Both this witness and Raju had declined to do so. Thereafter, Balbeer caught hold of Raju's hands and forced him to come with him. He took Raju with him”. Further according to this witness, “around 9.30 PM, Pema Ram and Sardar came to the place where this witness and Mukesh were sitting. Pema Ram and Sardar asked this witness about the whereabouts of Raju. This witness told him that Balbeer had taken Raju with him. According to this witness, they did not see Raju thereafter”. Further according to this witness, “around 9.30 PM, Pema Ram and Sardar came to the place where this witness and Mukesh were sitting. Pema Ram and Sardar asked this witness about the whereabouts of Raju. This witness told him that Balbeer had taken Raju with him. According to this witness, they did not see Raju thereafter”. The testimony of Nemi Chand (P.W.6) has further been corroborated by Sardar (P.W.5) and Prema Ram (P.W.14). 33. Chhitarmal (P.W.2) and Hari Prasad Sharma (P.W.12) further continued the story of the prosecution as far as the evidence of last seen is concerned. According to Chhitarmal (P.W.2), “he had gone to Dashehra fair around 6.00 PM. After leaving the fair, he went to the shops belonging to goldsmiths. He walked through the bazar near the bus stand and reached the old Haveli belonging to Baniyas. Inside the Haveli, a picture was being shown on the VCR. He sat down to watch the film”. According to him, “around 8.45 PM, Balbeer, Raju and Hari Sharma (Hari Prasad) came and sat right next to him. Since these three persons belonged to his village, they were known to him. Balbeer proposed that all five of them should watch a movie. Balbeer bought the movie tickets for all five of them. After the movie ended at midnight, Mukesh decided to stay back. Therefore, Balbeer, Hari Prasad, Raju and this witness decided to walk back to their village. Raju claimed that since a tractor belonging to the village was available, they should go on the tractor. But Balbeer pursuaded them to walk on the road as further down the road he could get a motorcycle and they could use the motorcycle as a mode of transportation. All the four decided to walk on the road in order to reach their village. When they came close to the village Khora about one kilometer before the village, at a place called Talai Joda, Balbeer asked this witness and Hari to stay at the said place, while he and Raju would go and fetch a motorcycle. Balbeer took Raju towards the western side of the road. This witness and Hari rested on the road. After sometime, Prem Chand Jangid, Balvir Khedad and Lal Chand met this witness and Hari Prasad. They asked them as to what they were doing so late in the night. Balbeer took Raju towards the western side of the road. This witness and Hari rested on the road. After sometime, Prem Chand Jangid, Balvir Khedad and Lal Chand met this witness and Hari Prasad. They asked them as to what they were doing so late in the night. This witness informed him that Balbeer and Raju had gone to a Dhani (a hamlet) for getting a motorcycle”. This witness further claimed that “they bought sugarcane from these persons and these persons continued to walk towards their village”. Further, according to him, “after 10-15 minutes Balbeer came all alone from the western side of the road”. 34. Hari Prasad Sharma (P.W.12) gives a parrot like testimony as that of Chhitarmal (P.W.2). Even if this testimony were to be believed, it merely proves that Raju had left with Balbeer and was not seen thereafter. 35. However, the fact remains that Raju's body was discovered on 13.10.2003. Thus, there is a time gap of eight days. Moreover, the dead body was not discovered anywhere near where Balbeer had left Chhitar and Hari Prasad. According to Chhitar Mal (P.W.2) and Hari Prasad Sharma (P.W.12), Balbeer had come back within a short span of time. Thus, the live link in terms of time and the live link in terms of distance is conspicuously missing in the present case. 36. In the case of Sahadevan & Anr. vs. State of Tamil Nadu ( (2012) 6 SCC 403 ), the Hon'ble Supreme Court has elaborately dealt with the importance of last seen theory in criminal jurisprudence. It has held as under:- 28. With the development of law, the theory of last seen has become a definite tool in the hands of the prosecution to establish the guilt of the accused. This concept is also accepted in various judgments of this Court. The Court has taken the consistent view that where the only circumstantial evidence taken resort to by the prosecution is that the accused and deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt. 29. This concept is also accepted in various judgments of this Court. The Court has taken the consistent view that where the only circumstantial evidence taken resort to by the prosecution is that the accused and deceased were last seen together, it may raise suspicion but it is not independently sufficient to lead to a finding of guilt. 29. In Arjun Marik vs. State of Bihar (1994 Supp.(2) SCC 372), this Court took the view that where the appellant was alleged to have gone to the house of one Sitaram in the evening of 19.7.1985 and had stayed in the night at the house of deceased Sitaram, the evidence was very shaky and inconclusive. Even if it was accepted that they were there, it would, at best, amount to be the evidence of the appellants having been last seen together with the deceased. The Court further observed that: (SCC p.385, Para 31) “31. ... it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record a finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction, on that basis alone, can be founded”. 30. Even in State of Karnataka vs. M.V. Mahesh ( (2003) 3 SCC 353 ), this Court held that (SCC p.354, Para 3) “3. ... merely being last seen together is not enough. What has to be established in a case of this nature is definite evidence to indicate that the deceased had been done to death of which the respondent is or must be aware as also proximate to the time of being last seen together. No such clinching evidence is put forth. It is no doubt true that even in the absence of the corpus delicti it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the Court”. 31. In State of U.P. vs. Satish ((2005) 3SCC 114), this Court had stated that (SCC p.123, para 22) the principle of last seen comes into play “where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.” 32. Undoubtedly, the last seen theory is an important event in the chain of circumstances that would completely establish and/or could point to the guilt of the accused with some certainty. But this theory should be applied while taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen. 37. In the present case, but for the evidence of last seen, there is no other evidence to connect Balbeer to the alleged crime. The prosecution has tried to make out a weak case that Balbeer had strangulated Raju with a muffler; that Balbeer and Hari Prasad had buried the dead body in a field, that they had dragged the body and subsequently, thrown it into a well belonging to one Dhakawale. This story has been woven by the prosecution through the alleged statement given by the present appellants, and through the statements of co-accused Gopal and Dilip made by them under Section 27 of the Evidence Act. However, the incriminating statement made by them under Section 27 of the Evidence Act cannot be read in evidence. Therefore, no evidence exists to establish that initially, Balbeer and Hari Prasad had buried Raju's corpus, dragged it later on, and thrown into a well. 38. The learned Public Prosecutor has stressed the fact that Balbeer has not offered any explanation as to what happened to Raju after they had left together. But such a non-explanation merely raises a strong suspicion about Balbeer's culpability. It does not prove his guilt. Since nothing has been reco-vered from Balbeer, since Raju's body was not even discovered at his behest, the court is left only with a strong suspicion. But strong suspicion cannot take the place of proof. Moreover, criminal jurisprudence does not permit a moral conviction; it requires a legal conviction. Just the evidence of last seen is too fragile a peg for convicting Balbeer of offence under Sec. 302 IPC. 39. The prosecution has also harped upon the fact that after the alleged murder on 5.10.2003, Balbeer had absconded. However, in the case of Matru @ Giril Chandra vs. The State of U.P. ( AIR 1971 SC 1050 ), the Apex Court has opined as under:- 15. The appellant's conduct in absconding was also relied upon. 39. The prosecution has also harped upon the fact that after the alleged murder on 5.10.2003, Balbeer had absconded. However, in the case of Matru @ Giril Chandra vs. The State of U.P. ( AIR 1971 SC 1050 ), the Apex Court has opined as under:- 15. The appellant's conduct in absconding was also relied upon. Now mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime: such is the instinct of sell-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the Courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the F.I.R. was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence. 40. This view has also been expressed in the case of Sujit Biswas (supra). Therefore, merely because Balbeer may have absconded does not unerringly point towards his guilt. 41. Through Mohan Lal (P.W.1), the prosecution has tried to establish a convincing motive for the alleged murder of Raju. The prosecution has pleaded that Balbeer and his family members, including Dilip, Balbeer's brother, and an co-accused in the present case, and Balbir's two brother-in-laws, Hari Prasad and Gopal, were convinced that Mohan Lal and his family members were practicing black magic on Balbeer's family. Therefore, in retaliation, Balbeer and his family members killed Mohan Lal's son, Raju. Except for Mohan Lal, no other witness reveals this motive for the crime, despite the fact that Chhitar Mal (P.W.2) and Hari Prasad Sharma (P.W.12) claim to have known Mohan Lal. Therefore, in retaliation, Balbeer and his family members killed Mohan Lal's son, Raju. Except for Mohan Lal, no other witness reveals this motive for the crime, despite the fact that Chhitar Mal (P.W.2) and Hari Prasad Sharma (P.W.12) claim to have known Mohan Lal. Moreover even if this motive were to be believed, the mere existence of a motive is too weak a basis for convicting a person for an offence. In the case of Ramreddy Rajesh Khanna Reddy & Anr. vs. State of A.P. ( (2006) 10 SCC 172 ), the Apex Court has clearly stated that “the motive by itself is not sufficient to prove the guilt of the accused”. Thus, even if a motive can be said to exist in the present case, in absence of other independent cogent evidence, it is insufficient to prove the guilt of the present appellants. 42. According to Dr. Amar Singh Chaudhary (P.W.9), the cause of death is unknown. Therefore, the prosecution has failed to make out a case of homicidal death. According to this witness, the person had died within seven to fifteen days. However, the cause of death is unknown. Therefore, the prosecution has failed to prove that Raju had died a homicidal death. Hence, the prosecution has failed to prove that Balbeer had committed the alleged murder of Raju. 43. Balbeer has also been convicted for offence under Section 364 IPC. However, the said conviction is unsustainable. For, firstly, according to the prosecution, Balbeer and Mohan Lal (P.W.1) happen to be neighbours. The families knew each other very well. According to the testimony of Sardar (P.W.5), Nemi Chand (P.W.6), and Prema Ram (P.W.14), Balbeer had taken Raju for a movie. According to Chhitar Mal (P.W.2) and Hari Prasad Sharma (P.W.12), Raju had not only seen the film with them voluntarily, but had also decided to accompany them in order to return to his own village. Thus, in the present case, there is neither an element of taking away, or enticing the deceased, Raju. Moreover, there is no evidence that Raju has been killed by Balbeer. Hence, the elements of offence under Section 364 IPC are conspicuously missing. Hence, the learned Judge was not justified in convicting Balbeer for offence under Section 364 IPC. 44. Thus, in the present case, there is neither an element of taking away, or enticing the deceased, Raju. Moreover, there is no evidence that Raju has been killed by Balbeer. Hence, the elements of offence under Section 364 IPC are conspicuously missing. Hence, the learned Judge was not justified in convicting Balbeer for offence under Section 364 IPC. 44. In the case of Palvinder Kaur vs. The State of Punjab ( AIR 1952 SC 354 ), while dealing with the scope and ambit of Section 201 IPC, the Apex Court has opined that “it is essential to prove that an offence has been committed, that the accused knew or had reason to believe that such offence had been committed and with the requisite knowledge and with intend to screen the offender from legal punishment causes the evidence thereof to disappear or gives false information respecting such offences knowing or having reason to believe the same to be false”. 45. In the present case, the prosecution has failed to prove that the offence of murder has been committed. Therefore, even if Raju's dead body was discovered at the behest of Hari Prasad, he could not be convicted for offence under Section 201 IpC. Moreover, Raju's dead body was not discovered from a well either belonging to Balbeer, or belonging to Hari Prasad. It was discovered from Dhakawale well situated in Village Khora. Hence, the dead body has been discovered from an open place where other villagers would have easy access to. Therefore, Hari Prasad cannot be convicted for offence under Section 201 IPC. 46. Merely because Hari Prasad is Balbeer's brother-in-law, a conspiracy between the two cannot be inferred. Moreover, according to Chhittar Mal (P.W.2) and Hari Prasad Sharma (P.W.12), Balbeer had taken Raju with him. But the prosecution has neither established as to how Raju's body reached the well from where it was discovered, nor revealed Hari Prasad's role in dumping the body in the well. As mentioned above, the prosecution has relied on certain statements made under Section 27 of the Evidence Act to show that initially, Raju's body was buried, later it was exhumed and according to Hari Prasad's statement given under Section 27 of the Evidence Act, his dead body was thrown into a well. But the said part of the statement given under Section 27, Evidence Act obviously, cannot be read against Hari Prasad. But the said part of the statement given under Section 27, Evidence Act obviously, cannot be read against Hari Prasad. Therefore, there is not an iota of evidence from which a conspiracy can be inferred between Balbeer and Hari Prasad. Hence, neither of them could be convicted for offence under Section 120B IPC. 47. For the reasons stated above, this court grants the benefit of doubt to both the appellants. This appeal is allowed. The judgment dated 6.8.2004 passed by the Additional Sessions Judge (Fast Track), Sikar is hereby, quashed and set aside. Balbeer Singh is acquitted of offences under Sections 364, 302, 120B and 201 IPC; Hari Prasad is acquitted of offences under Sections 120B and 201 IPC. Balbeer Singh shall be released forthwith, if not wanted in any other case. Since Hari Prasad is already on bail, his bail bonds stand discharged. 48. Keeping, however, in view the provisions of Section 437-A Cr.P.C, the appellants, namely Balbeer and Hari Prasad, are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each and a surety bond in the like amount each, 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 appellants, on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.