JUDGMENT 1. - The instant criminal appeal has been filed under Section 374 (1) of Cr.P.C. against the judgment of conviction and sentence dated 5.4.2005 passed by the learned Addl. Sessions Judge (FT), Balotra in Sessions Case No.34/2003 by which the appellant was convicted for offence under Section 302, 364, 365 and 201 IPC and following sentence was passed against him: Under Section 302 IPC Imprisonment for life and a fine of Rs.5,000/- and in default of payment of fine to further undergo one year's additional imprisonment Under Section 364 IPC Five Years RI and a fine of Rs.2,000/- and in default of payment of fine to further undergo six months RI Under Section 365 IPC Three years RI with a fine of Rs.1,000/- and in default of payment of fine to further undergo three months additional imprisonment Under Section 201 IPC Three years RI with a fine of Rs.1,000/- and in default of payment of fine to further undergo three months additional imprisonment. [all the sentences were ordered to run concurrently] 2. As per brief facts of the case, the complainant Sabbir Mohd. (PW-4) lodged a written report at Police Station, Samdari on 12.9.2009 at 7.00 pm alleging therein that his nephew Saddam aged about 8 years son of his brother Mishru Khan had gone for private tuition but he did not come back in spite of the fact that the tuition time ended at 04-04.30 PM. As per prosecution case when Saddam and two other students Nema S/o Bhalla and Manju D/o Rughnath were coming together from tuition, the accused appellant Sanwal Ram resident of village Ajeet came there and took all the three the children near the house of Bansi Lal situated at Ajeet Mazzal road and accused appellant confined Saddam somewhere, the said incident was seen by one Devi Singh. According to complainant, the accused appellant Sanwal Ram earlier committed offence of theft in their house and he was caught, therefore, due to said motive, he has kidnapped Saddam. 3. According to complainant, the accused appellant Sanwal Ram earlier committed offence of theft in their house and he was caught, therefore, due to said motive, he has kidnapped Saddam. 3. Upon aforesaid written complaint (Ex.P/10) FIR no.108/2003 (Ex.P/20) was registered on 12.09.2003 and investigating officer PW-16 Udai Singh commenced investigation, during investigation, after recording statements under Section 161 Cr.P.C. of complainant Sabbir Mohd, Devi Singh and Jagdish Singh, the accused appellant was arrested vide Ex.P/12 and upon information (Ex.P/22 and P/23) given by the accused appellant under Section 27 of the Evidence Act, the body of the deceased Saddam was recovered vide Ex.P/5 from a well situated in the agricultural field of Joga Ram. After recovery of body,the post mortem of the body was conducted by the medical board on the spot, and as per post mortem report (Ex.P/13) dated 13.9.2013 the board gave its opinion that cause of death of deceased Saddam is strangulation leading to asphyxia and death. After post mortem the dead body was handed over to the father of the deceased in presence of two witnesses, before that, cloths of the deceased were taken in possession vide Ex.P/7. The investigating officer after completing investigation filed charge-sheet in the court of Judicial Magistrate, Siwana from where case was committed to the Sessions Court, Balotra for trial. 4. During trial, the case was transferred to the court of Addl. District & Sessions Judge (FT), Balotra, the trial court after providing an opportunity to the accused appellant, framed charges under Sections 365, 364, 302 and 201 IPC against the accused appellant. The accused appellant denied the charges levelled against him and prayed for trial. 5. To prove the prosecution case, the statements of 16 prosecution witnesses were recorded and 24 documents were exhibited from prosecution side, thereafter, the statement of accused appellant under Section 313 Cr.P.C. were recorded by the learned trial court. In the statement recorded under Section 313 Cr.P.C., the accused appellant denied all the allegations made by the prosecution witnesses against him, and gave explanation that due to enmity with Chhagan Lal, Sarpanch, who is closed friend of Devi Singh, and S.H.O., he has been falsely implicated in this case so as to grab his agricultural field and well situated in village. No oral evidence was produced by the accused appellant. 6. No oral evidence was produced by the accused appellant. 6. In defence, four documents, Ex.D/1 statement of Sabir Khan, Ex.D/2 statement of Mishru Khan, Ex.D/3 statement of witness Bashir Khan and Ex.D/4 statement of Deen Mohd. recorded under Section 161 Cr.P.C. were exhibited. 7. After recording evidence, the learned trial court granted an opportunity of hearing to the parties and finally convicted the accused appellant on the basis of circumstantial evidence of last seen and recovery of dead body and articles at the instance of the accused appellant vide judgment dated 5.4.2005 in Sessions Case No.34/2003. 8. In this appeal, while challenging the aforesaid judgment, the learned counsel for the appellant vehemently argued that there is no eye witness in this case, but learned trial court erroneously convicted the accused appellant while relying upon the circumstantial evidence of last seen and recovery of articles and dead body at the instance of the accused appellant which is not proved by the prosecution beyond doubt, therefore, the judgment impugned deserves to be quashed. 9. Learned counsel for the appellant first of all argued that complainant Sabir Mohd. submitted a hand written report (Ex.P/10) for the allegation of kidnapping of his nephew Saddam in which it is alleged that his nephew Saddam S/o Mishru Khan aged about 8 years, resident of village Ajeet went for private tuition, when he was coming back at 4.30 pm to the house along with two other students Nema S/o Bhalla and Manju S/o Rughnath, the accused appellant Sanwal Ram called all the three children and took them near the house of Banshi Lal from where Saddam is missing and said fact was disclosed to him by one Devi Singh S/O Dhok Singh resident of village Ajeet. Further, it is stated that Sanwal Ram committed an offence of theft earlier in the house of Mishru Khan, therefore, he was arrested and for that incident to take revenge, he took the said action of kidnapping. 10. According to the learned counsel for the appellant in the FIR name of Devi Singh to prove the fact of last seen is disclosed, but later on, prosecution produced three more witnesses to prove the fact of last seen namely PW-6 Jagdish Singh, PW-11 Mohd. 10. According to the learned counsel for the appellant in the FIR name of Devi Singh to prove the fact of last seen is disclosed, but later on, prosecution produced three more witnesses to prove the fact of last seen namely PW-6 Jagdish Singh, PW-11 Mohd. Khan and PW-12 Bashir Khan, but upon perusal of statement of these witnesses it will emerge that there are major contradictions in their statements with regard to fact and evidence of last seen, therefore, the conviction, which is based upon the last seen, is not sustainable in law. 11. Learned counsel for the appellant further argued that as per prosecution case, dead body of deceased Saddam was recovered from the well which is said to be situated in the agricultural field of Joga Ram S/o Bhikha Ji in which the accused appellant after killing him thrown the dead body while tiding one brick upon the body, but this allegation is not corroborated from the medical evidence in the post mortem report conducted by the medical board, it is specifically observed that no muscular or bodily injury was found upon the body of the deceased and the cause of death was strangulation leading to asphyxia and death. Further, it is submitted that in the statement of PW- 13 Dr. S. Lal to conduct the member of the medical board who performed the post mortem specifically stated before the court that there was no mark of injury or fracture upon the body of the deceased and as per the opinion of the medical board, Saddam died due to strangulation. The doctor further stated before the court that there was no ligature mark upon the neck, but there was fracture of thyroid bone, therefore, the allegation of prosecution which is based upon the evidence of last seen cannot be treated to be proved in absence of corroborative evidence. 12. With regard to recovery of dead body vide Ex.P/21 and recovery of pair of sleeper and steel Tiffin as per information given by the accused appellant under Section 27 of the Evidence Act, it is submitted that prosecution has failed to prove its case beyond reasonable doubt because as per prosecution case dead body was found in the well situated in the agricultural field of Joga Ram having depth of 80 feet in which water was in existence upto 20 feet. Learned counsel for the appellant submits that even if prosecution case is accepted, the body of the deceased was thrown by the accused appellant from the height of 80 feet then obviously injuries were to be caused to the body, but as per post mortem report (Ex.P/13) and statement of Dr. S.Lal (PW-13) no injury was found upon the body of the deceased, therefore, there are serious doubt upon the prosecution evidence. 13. For the recovery of sleeper and Tiffin it is submitted that both the articles were recovered from open place, therefore, learned trial court has committed a grave error while relying upon the recovery of sleeper and Tiffin from open place. In view of the above, it is prayed that prosecution has failed to prove its case beyond reasonable doubt. In support of his arguments, learned counsel for the appellant invited our attention towards the judgment of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 in which golden principles to decide the case upon circumstantial evidence are laid down by the Hon'ble Supreme Court, which are still in existence. Learned counsel for the appellant further invited our attention towards the recent judgment of the Hon'ble Supreme Court delivered in the case of Sangili v. State of Tamil Nadu reported in AIR 2014 SC 3756 and submits that prosecution has failed to prove its case beyond reasonable doubt, therefore, while giving benefit of doubt, the accused appellant may be acquitted from the charge and the judgment impugned may kindly be set aside. 14. Per contra, learned Public Prosecutor as well as learned counsel for the complainant vehemently argued that although there is no eye witness in this case, but there is reliable evidence of last seen mentioned in the FIR for this allegation against the accused appellant Sanwal Ram for kidnapped the deceased Saddam because the dead body of deceased Saddam was recovered from the well of Joga Ram upon information given by the accused appellant, so also, articles belonging to the deceased, which is sleeper and steel Tiffin. Therefore, it cannot be said that prosecution has failed to prove its case beyond reasonable doubt. Therefore, it cannot be said that prosecution has failed to prove its case beyond reasonable doubt. Learned counsel for the complainant as well as learned Public Prosecutor submits that complete chain of facts is in existence to prove the guilt, as such the learned trial court rightly arrived at with the finding that accused appellant is guilty for committing offence of kidnapping and murder of deceased Saddam, so also, to destroy the evidence, therefore, the instant appeal may kindly be dismissed. 15. After hearing the learned counsel for the parties, first of all we have perused written report (Ex.P/10) submitted by the complainant Sabir Khan, uncle of the deceased, which reads as under : lsok esa Jheku Fkkuk vf/kdkjh egksn;] iqfyl Fkkuk lenM+h fo"k;&cPps dk vigj.k gks tkus ckcrA egksn;] mijksDr fo"k;kUrxZr ys[k gS fd esjk Hkrhtk lnke S/o fe=q [kka mez 8 o"kZ fuoklh vthr diM+k Qhdk vklekuh pkSdM+hnkj deht o Hkwjs jax dh isaV iguh gqbZ Fkh ok izkbZosV V~;q'ku i<+us x;k gqvk Fkk djhc 4 30 p.m. ij ogka ls NqV~Vh gks xbZ ogka ls usek S/o Hky] eatw S/o :xukFk o lnke rhuksa lkFk lkFk vk jgs FksA fins ls lkaoyjke S/o eaxykjke pkS/kjh fuoklh vthr us vkokt nh rhuksa cPpksa dks lkFk&lkFk esa vthr ls ety tkus okys jkLrs ls caphyky ds ?kj rd ysdj x;k ckn esa lnke dks ogka ls xk;c dj fn;k ;g nsoh flag S/o /kksd flag jktiwr fuoklh vthr us ns[kkA lkaoyjke S/o eaxykjke blh ?kj esa igys Hkh pksjh dh FkhA vkSj idM+k Hkh x;kA blh dk cnyk ysus ds fy, blus ;g dne mBk;kA vr% Jhekuth ls fuosnu gS fd vki blds f[kykQ dkuwuh dk;Zokgh djsA izkFkhZ Sd/- 'kkchj eksgEen S/o twyenhu vthr&& 16. In aforesaid written report, the name of Devi Singh was disclosed as witness of last seen, so also, name of two students Nema S/o Bhalla and Manju S/o Raghunath are mentioned, who were accompanying Saddam when he was returning from private tuition to the home. Admittedly, no investigation was made from Nema S/o Bhalla and Manju S/o Rughnath, whose names are mentioned in the written complaint upon which FIR was registered. Admittedly, no investigation was made from Nema S/o Bhalla and Manju S/o Rughnath, whose names are mentioned in the written complaint upon which FIR was registered. Further, the complainant specifically mentioned that one Devi Singh S/o Dhok Singh is the witness of last seen in whose presence the accused appellant called all the three children and upon asking all the three children went with him and near the house of Banshi Lal, Saddam was kidnapped. 17. The statement of Sabbir Mohd. (PW-4) were recorded in the trial in which same allegations were levelled by him, but said witness improved his statement before the court and said further that at the time of search Jagidsh S/o Roop Singh informed that Sanwal Ram was going and three children namely Saddam, Nema and Manju were following to whom Sanwal Ram called and they went as per instruction given by Sanwal Ram. 18. The PW-11 Mohd. Khan is the witness of last seen. The said witness stated before the court that on 11.9.2011 when I was working upon the water tank in the village, at that time, Sanwal Ram was going along with Saddam, one girl and one boy. 19. Likewise, PW-12 Bashir Khan stated before the court that I along with Sattu Khan and Bhanwar Singh were coming out from the gate in the village Ajeet, at that time, we saw Sanwal Ram was going along with Saddam towards the well and Joga Ram. After perusing the statement of above witness, we are of the opinion that name of three other witnesses of last seen namely PW-6 Jagdish Singh, PW-11 Mohd. Khan and PW-12 Bashir Khan were not disclosed by the complainant in the FIR, later on, planted by the complainant party to prove the prosecution case. 20. After perusing the statement of above witness, we are of the opinion that name of three other witnesses of last seen namely PW-6 Jagdish Singh, PW-11 Mohd. Khan and PW-12 Bashir Khan were not disclosed by the complainant in the FIR, later on, planted by the complainant party to prove the prosecution case. 20. In our opinion, the prosecution is required to prove its case beyond reasonable doubt upon every fact which is alleged against the accused so as to convict him but here in this case, name of one witness Devi Singh was disclosed in the FIR, but later on, four witnesses were planted so as to prove the evidence of last seen and upon perusal of statement of all the witnesses, we find that there are major contradiction with regard to evidence of last seen, therefore, it is not safe to accept the prosecution case so as to prove the allegation against the accused appellant on the basis of last seen. 21. With regard to second question which is recovery of dead body, admittedly, as per prosecution case, the dead body of the deceased was recovered from a well situated in the agricultural field of Joga Ram vide Ex.P/5 on 13.9.2003 in the presence of two witnesses Kamrudin and Safi Mohd. Out of these two witnesses prosecution did not produce witness Safi Mohd., so as to prove the fact of recovery at the instance of accused appellant. We have perused the statement of Kamrudin (PW-3) to consider the evidence of recovery of dead body at the instance of accused appellant. The witness Kamrudin (PW-3) stated before the court that on 13.9.2003 in the morning at 9.30 am when I was in the village Ajeet, at that time, police came there along with Sanwal Ram and asked that two persons may come with us and therefore, he went to the well of Joga Ram where dead body was recovered from the well. The said witness specifically stated before the court that " fQj ogka [kM+sa nhu eksgEen dks xkao okyksa ds lkeus csjs esa mrkjkA nhu eksgEen us yk'k csjs esa ls fudkykA yk'k ds dej ds bZV ca/kh gqbZ Fkh ftldks nhu eksgEen us dej ij ls bZV dks [kksydj igys fudkyk Fkk ckn esa yk'k dks ckgj fudkyk FkkA yk'k vkSj nhu eksgEen dks yksxksa us jLlh ls cka/kdj ckgj fudkyk FkkA " 22. We have perused the statement of PW-15 Deen Mohd. The said witness also specifically stated that " fQj iqfyl okyksa us jLls ds }kjk eq>s dqa, esa vUnj mrkjkA fQj eSaus ikuh esa dq,a esa nks rhu Mqcfd;k yh FkhA eSa rhljh Mqcdh esa ln~nke dks ikuh ds uhps ls mij ysdj vk;kA ln~nke ejk gqvk FkkA ln~nke ds dej ds bZV cka/kh gqbZ FkhA tks diM+s ds cVh gqbZ jLlh ls bZV cka/kh gqbZ FkhA gkftj vnkyr bZV dks igpkudj xokg us dgk fd ;gh bZV ln~nke ds dej ds ca/kh gqbZ FkhA bZV vkVhZdy&4 gSA " 23. Upon perusal of above statement, it is obvious that as per prosecution case one brick was tied upon the body and at the time of recovery of dead body from the well having height of 80 feet, the dead body was taken out. Upon consideration of this evidence, we are of the opinion that if the case of prosecution is accepted as a whole, there must be a corroborative medical evidence. PW-13 Dr. S.Lal who was member of the medical board specifically gave following statement in the court that there was no mark and injury upon the body of the deceased, so also, specifically stated that there was no ligature mark upon the neck. The relevant portion of the statement of PW-13 Dr. PW-13 Dr. S.Lal who was member of the medical board specifically gave following statement in the court that there was no mark and injury upon the body of the deceased, so also, specifically stated that there was no ligature mark upon the neck. The relevant portion of the statement of PW-13 Dr. S. Lal is as follows : " e`Rrd ds firk us ln~nke dks f'kuk[r fd;k Fkk tks iqfyl vf/kdkjh ds lkFk mifLFkr FksA ln~nke ds 'ko dk ijh{k.k tksxkjke ds csjs ds ikl esa fd;k x;k FkkA tks 10 10 ,0 ,e0 ij fd;k x;k FkkA cksM+Z ds lnL; M+ka0 fnus'k pkj.k] M+ka0 ds0 ds0 jek.kh] M+ka0 ,l0 yky Lo; us fd;k FkkA iqfyl us yk'k dq,a ls cjken dh FkhA ftldk yk'k dk cksM+Z us eqvk;uk fd;k Fkk rks fuEu fLFkfr ikbZ xbZA lkekU; xBu Fkk 'kjhj dkA ukd vkSj dku ls [kwu vk jgk FkkA thHk esa lwtu Fkk o nkarksa ds chp nch gqbZ FkhA vka[ks [kqyh gqbZ FkhA Fkak;jkbV gM~M+h dk vfLFkHkax Fkk] xys esa ykbZxspj ekdZ ugha FkkA 'kjhj esa dksbZ [kjksap ugha Fkh] ;k QzsDpj ugha FkkA 'kjhj esa dksbZ vU; pksV ugh FkhA gkVZ] yhoj] yax] fdM+uh ukseZy FksA esfM+dy cksM+Z dh jk; ds vuqlkj e`R;q dk dkj.k ln~nke dh e`R;q dk dkj.k xyk ?kksaVus ls gqbZ FkhA iksLVekVZe fjiksVZ b,Dlih&13 ij bZ ls ,Q gLrk{kj Mka0 ds0 ds0 jek.kh o th ls ,p gLrk{kj Mka0 fnus'k pkj.k ds gS tks esjs le{k fd;s x;s FksA dkSt vkQ M+SFk b,Dlih&14 cksM+Z us fn;k Fkk ftlesa lh ls M+h ds0 ds0 jek.kh o bZ ls ,Q Mka0 fnus'k pkj.k ds gLrk{kj gS tks esjs le{k FksA esfM+dy cksM+Z us e`R;q ds dkj.k dk izek.k i= vyx ls tkjh fd;k Fkk ftlesa kn~nke dh e`R;q xyk ?kksaVus ls ne ?kqVus ls gksuk ik;k Xk;kA " 24. Upon consideration of above evidence and statement of the doctor, we are of the opinion that prosecution has failed to prove the case against the appellant beyond reasonable doubt that death of deceased was caused due to throttling by the accused appellant, so also, prosecution has failed to prove the fact beyond reasonable doubt that dead body of Saddam was recovered from the well because there was no mark of injury upon the body because as per prosecution case, dead body was thrown in well having 80 feet height while tiding brick upon his body. 25. 25. In the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 the following parameters/guidelines are laid down by the Hon'ble Supreme Court, which reads as under:- "A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made: "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." In the case of Sangili v. State of Tamil Nadu reported in AIR 2014 SC 3756 the Hon'ble Supreme Court gave following verdict upon consideration of circumstantial evidence, which reads as under: "23. In Mani v. State of Tamil Nadu this Court made following pertinent observation on this very aspect: 26. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case.... 24. The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case.... 24. There is a reiteration of the same sentiment in Manthuri Laxmi Narsaiah v. State of Andhra Pradesh , in the following manner: 6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence. 25. Likewise, in Mustkeem alias Sirajudeen v. State of Rajasthan this Court observed as under: 24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of Maharashtra , some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p.185) (i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established; (ii) 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; (iii) The circumstances should be of a conclusive nature and tendency; (iv) They should exclude every possible hypothesis except the one to be proved; and (v) 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." 26. On the basis of above discussion and assessment of the entire evidence, we are of the opinion that finding given by the learned trial court on the basis of circumstantial evidence of prosecution so as to prove the allegation is not sustainable in law because the prosecution has failed to lead trustworthy reliable evidence to complete the chain of circumstances so as to arrive with the finding that the accused appellant committed an offence of murder none else. 27. Consequently, while giving benefit of doubt, to the accused appellant, this Cr. appeal filed by the accused appellant Sanwal Ram is hereby allowed. The judgment dated 5.4.2005 passed by the learned Addl. Sessions Judge (FT), Balotra in Sessions Case NO.34/2003 convicting and sentencing the accused appellant for the offences under Sections 302, 364, 365 and 201 IPC is hereby quashed, the accused appellant Sanwal Ram be set at liberty unless required in any other case.Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.Appeal allowed. *******