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2017 DIGILAW 1885 (RAJ)

RAJKUMAR @ RAJU v. STATE OF RAJASTHAN

2017-08-22

KAILASH CHANDRA SHARMA, MOHAMMAD RAFIQ

body2017
JUDGMENT : MOHAMMAD RAFIQ, J. 1. These appeals are directed against the judgment dated 15.11.2008 passed by the learned Additional Sessions Judge (Fast Track) No. 2, Jaipur Metropolitan, Jaipur in Sessions Case No. 16/2008 whereby the accused-appellants were convicted and sentenced as under: Rajkumar @ Raju: U/s. 302/34 IPC-life imprisonment with fine of Rs. 10,000/-, in default of payment of fine, to further undergo ten months imprisonment. U/s. 201 IPC - for a period of 7 years rigorous imprisonment and fine of Rs. 5,000/-, in default of payment of fine, to further undergo five months imprisonment. U/s. 364 IPC - for a period of 10 years rigorous imprisonment and fine of Rs. 5,000/-, in default of payment of fine, to further undergo five months imprisonment. Appu @ Raju: U/s.302 IPC - life imprisonment with fine of Rs. 10,000/-, in default of payment of fine, to further undergo ten months imprisonment. U/s. 201 IPC - for a period of 7 years rigorous imprisonment and fine of Rs. 5,000/-, in default of payment of fine, to further undergo five months imprisonment. U/s. 364 IPC - for a period of 10 years rigorous imprisonment and fine of Rs. 5,000/-, in default of payment of fine, to further undergo five months imprisonment. 2. The relevant facts of the case are that one Raju Khatri lodged a report at Police Station Ramganj, Jaipur on 14.08.2002 narrating that his son Saurabh, aged about 5 years, is missing from his house and despite extensive search, he has not been found. Another report on the same facts was again lodged by Raju Khatri on 28.08.2002, wherein it was alleged that his son Saurabh has been missing and it seems that someone has enticed him and taken him away. It was also stated in the said report that he has not gone with any relative or known person otherwise he would have returned. Thereafter, the police recovered a dead body from a deserted house of Pratap Nagar in Sanganer and also recovered certain clothes, and shoes. Thereafter an FIR No. 241/2002 was registered for the alleged offence under Sections 364, 302, 201/34 IPC and the police started investigation. During investigation, the accused appellants were arrested and subsequently charge sheet was submitted by the police against the accused for the alleged offence under Sections 364, 302, 201/34 IPC. Thereafter an FIR No. 241/2002 was registered for the alleged offence under Sections 364, 302, 201/34 IPC and the police started investigation. During investigation, the accused appellants were arrested and subsequently charge sheet was submitted by the police against the accused for the alleged offence under Sections 364, 302, 201/34 IPC. Thereafter the case was committed to the learned District & Sessions Judge, Jaipur City, Jaipur which came to be transferred for trial initially to the court of learned Additional District & Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur and subsequently to the court of learned Additional District & Sessions Judge (Fast Track) No. 1, Jaipur City, Jaipur. Thereafter charges were framed under Sections 364, 201, 302/34 IPC, to which the accused appellants denied and claimed trial. In support of its case, prosecution examined 23 prosecution witnesses and also got 29 documents exhibited. The accused appellants were examined under section 313 of Cr.P.C., 1973 in which also they denied the prosecution evidence and pleaded innocence. In support of its case, defence produced 3 witnesses and got 16 documents exhibited as defence exhibits. After hearing both the sides, the learned trial court below convicted the accused appellants as above. Hence this appeal. 3. Shri Vijay Choudhary, learned counsel for the accused-appellant Rajkumar @ Raju has argued that the accused appellant has been falsely implicated in the present case and he has nothing to do with the present case. It is a case of circumstantial evidence and it is basic rule of criminal law that in cases of circumstantial evidence, story of the prosecution should make out a chain of events which in totality should make out a circumstance in which each and every part of the chain should unerringly point towards guilt of the accused and if the chain is not compete, the case of the prosecution fails and benefit of doubt always goes to the accused. It is submitted that in the instant case, the only circumstance pointed out by the prosecution against the accused-appellant was of his pointing out to the police the place of occurrence and extra judicial confession in police custody, whereas it is the fundamental principle of the criminal jurisprudence that confession of the accused recorded in police custody cannot be read against him and the other evidence of pointing out the place of incident also cannot be taken against the accused appellant as it cannot be treated as discovery of new fact as the police had already visited the place of occurrence and recovered the dead body of the boy and the said place was also allegedly pointed out by the other accused person. 4. Learned counsel submitted that the learned trial court below has failed to consider that complainant himself has time and again changed his version. Out of 3 reports presented by the complainant in the police station, not even in a single report the accused appellant has been named. It was only after recording of extra judicial confession that the complainant has changed his version and has come with a new story implicating the accused appellant with other accused appellant in the alleged offence. Therefore, this extra ordinary delay of recording statements of the complainant that too without any explanation in the present case goes to the root of the case and belies the entire prosecution story. The complainant (father of the deceased) had changed his version in all the three alleged reports also goes to show that complainant himself was not having any idea as to where his son had gone and with whom. It was only after deliberations of police personnel that he has come with this story and, therefore, also the entire prosecution story smirks of doubt and as such not at all believable. 5. It was only after deliberations of police personnel that he has come with this story and, therefore, also the entire prosecution story smirks of doubt and as such not at all believable. 5. It is submitted that the learned trial court has wrongly held that the accused-appellant has taken a false plea of alibi and that too at the final stage of the case as it is amply clear that all the vital prosecution witnesses have been suggested by the accused during his cross examination that he was not even in Jaipur and was at his residence in Bhilwara and particularly when it was not the case of prosecution that the accused appellant was ever seen with the deceased initially in their first version. It is submitted that the accused-appellant right from his initial defence took the same plea and has also been categorically stating in his statement under Section 313 Cr.P.C., 1973 and has supported the said plea with the help of defence witnesses and documentary evidence. It is also established law that the plea of alibi, if held false, can only be taken as an additional circumstances in chain of events then only the prosecution has proved the final case beyond reasonable doubt but in the instant case the learned trial court below after holding the plea of alibi as false, has taken this as a major circumstances against the accused-appellant which cannot be said to be true spirit of law. 6. Shri Vijay Choudhary, learned counsel for the accused-appellant has argued that the story of prosecution that the accused-appellant Rajkumar @ Raju was lastly seen together with the deceased has not at all been established in the present case as the prosecution witnesses Kanhaiya Lal (PW-1) and Bajrang Lal (PW-3), witnesses of last seen, have not supported the case of the prosecution and were declared hostile. In these circumstances, the said theory of last seen is also not acceptable in the present case. 7. It is submitted that the first investigating officer in the present case i.e. Ratan Prakash (PW-20) has categorically stated in his statement before the learned court below that he has not got any evidence against the accused-appellant in the present case and as per his version the accused appellant was not involved in the present case. The said witness has not been declared hostile by the prosecution. The said witness has not been declared hostile by the prosecution. It is also established law that unless a prosecution witness is not declared hostile, the prosecution is bound by his testimony. 8. Shri S.N. Kumawat, learned counsel for the accused-appellant Appu @ Raju has argued that admittedly there is no eye witness of the occurrence and the case hinges on the circumstantial evidence. There are no circumstances, on the basis of which, it can be said that the accused appellant has committed the offence. The learned trial court has not properly considered this aspect of the case and erred in convicting the accused appellant. 9. It is submitted that the learned trial court has formulated four questions and examined the witnesses accordingly and mainly on the basis of the statement of PW-7 to PW-13, who are the family members of complainant as well as brother, sister, mother, father etc. of the deceased and having admitted enmity with the accused appellant, has found the prosecution story as correct and overlooked the contradictions in their statements. It is submitted that the learned trial court has failed to appreciate the statement of Kanhaiya Lal (PW-1), Shankar Lal (PW-2) and the Bajrang Lal (PW-3), who are the independent witnesses and stated the correct facts but the prosecution has declared them hostile and supported concocted story. The learned trial court has further committed serious error on relying upon the statement of Gajendra Sharma, who was a tutored witness of prosecution and he had stated every fact as per prosecution because his FIR was also pending before the same Police Station and as such his statement carries no weightage because he had been taken on the spot on 02.01.2003 whereas the dead body was recovered on 18.09.2002. The recovery of alleged stone and other articles were already identified and recovered by Police on 19.09.2002 in the presence of family members of alleged deceased, hence this statement does not support the prosecution case and rather proves that prosecution has built up a false case just to entangle the appellant in the offence without any evidence against him. 10. Learned counsel argued that the prosecution has failed to place any document or other evidence, which establishes that the dead body was of Saurabh. 10. Learned counsel argued that the prosecution has failed to place any document or other evidence, which establishes that the dead body was of Saurabh. More so, when none of the articles which alleged to have been recovered are bearing any specific identification, rather every article is a common article and in the statement there are many discrepancies and the important fact that the stone which the prosecution has alleged recovery, as an article used for murder of the child, does not bear the blood stain whereas according to the prosecution many attacks have been made with the help of that stone. Thus, the prosecution story is totally false and is not sustainable. 11. Learned counsel submitted that it is the duty of the prosecution to prove its case beyond all reasonable doubt and the accused has nothing to prove in his favour but the learned trial court without considering all these aspect of the case, convicted and sentenced the accused appellant. The learned trial court has though came to conclusion that there is no motive to establish on record by prosecution neither any documentary or oral evidence, however, surprisingly convicted the accused-appellant on the basis of assumption and misinterpretation of circumstantial evidence. The statement of Jagdish Narain (PW-5) is about the recovery of some video cassette (Ex. P10) and Lal Chand (PW-6) gave statement regarding 'Naksha Mauka' and he is brother-in-law of complainant. Lal Chand (PW-6) has specifically stated that complainant Raj Kumar had expressed not only doubt but had confirmed that Ashok, Mukesh, Sanjay, Ajay and Deepak have murdered Saurabh and as and when they talked about the appellant then he used to say that Mukesh etc. have murdered Saurabh. In spite of that the learned trial court has not paid any heed to this statement and only directed to conduct a specific investigation against the said person while convicted appellant on wrong premises. The learned trial court has mainly relied on last seen theory on the basis of statement of Dimple Khatri (PW-7) sister of deceased, Mahendra Khatri (PW-8) brother of deceased, Lallu @ Lalit Khatri (PW-9) uncle, Sona (PW-10) mother, Kamla (PW-11) aunt, Babu Lal (PW-12) grand-father and Raju Khatri (PW-13) father, who had stated that the accused had taken the deceased for a scooter ride in the evening of 14.08.2002 and thereafter he had not come back along with deceased child. But the learned trial court has overlooked the important fact that in the same breath the witnesses had agreed that the accused came at 4.45 PM. Thereafter, he again came at 6.00 PM. Before it, it came to the knowledge of the family persons that child was missing somewhere, hence the above witness are interested witnesses and on the basis of their statement, accused-appellant cannot be held accused in the matter as well as cannot be convicted for the alleged offence. 12. It is contended that the learned trial court has relied on the statement of I.O. Raghuveer Singh (PW-19), I.O. Ratan Prakash (PW-20), I.O. Hakim Singh (PW-16) and Ram Singh (PW-21). They had only concocted story of prosecution to implicate the accused in the offence, which he had not committed. The most important aspect in the case is also that I.O. Raghuveer Singh (PW-19) has very lightly stated that the named accused in the FIR No. 241/2002 registered at Police Station, Sanganer has been left out only on the basis of interrogation with them but after many days on the basis of subsequent statement developed by the complainant party, a story has also been developed by the Investigating Officer and finally roped the appellant falsely in the offence. 13. Hakim Singh (PW-16) is the person, who had reached on 18.09.2002 at house no. 194/307 and found the dead body and the articles viz. pant with belt, shirt and black shoes and then they locked the room and on 19.09.2002 got photographs of the dead body and prepared the Panchnama (Ex. P10) on which complainant has made sign and also prepared recovery memo (Ex.P.16) and then dead body was handed over for postmortem. Hakim Singh (PW-16) in cross examination has admitted that the complainant was not only having doubt but was of confirm view that his child had been murdered by Ashok, Mukesh, Sanjay, Ajay, the sons of Shyam Lal and further admitted that there is no dust on the clothes and other articles, hence he does not support the prosecution case. 14. Hakim Singh (PW-16) in cross examination has admitted that the complainant was not only having doubt but was of confirm view that his child had been murdered by Ashok, Mukesh, Sanjay, Ajay, the sons of Shyam Lal and further admitted that there is no dust on the clothes and other articles, hence he does not support the prosecution case. 14. Investigating Officer Raghuveer Singh (PW-19) has stated that the accused was arrested on 31.12.2002 and on 02.01.2003 he had made the confession before him that he had abducted Saurabh and thereafter murdered him but nowhere I.O. has mentioned in his investigation or statement that at which place deceased was murdered and why blood stains were not found on the clothes or on the stone used as weapon/arm for murder. Further the I.O. has failed to meet out the discrepancies in spite of specific questions and more-so, the statement of PW-19 are sort of leading in the nature for which note has been put on the statement, hence the statement of PW-19 does not carry any weight rather reflect that the prosecution has left the named accused persons and challaned the innocent appellant. The learned trial court has relied upon the statement of prosecution witnesses from PW-7 to PW-13 and PW-16 to PW-21 according to which the accused was not sent by anyone while dropping Saurabh at 5.00 PM but the learned trial court has failed to appreciate that none of the witnesses has specifically stated that he had seen Saurabh on the scooter of appellant and further the learned trial court has not paid any heed to the fact that appellant had again came to collect the article for the murder of Saurabh at 6.00 PM, then how the prosecution justifies that appellant had kidnapped the child or handed over to co-accused without any eye witness. 15. 15. Learned counsel for the accused-appellant submitted that it is further submitted that the learned trial court has wrongly discarded the statement of Smt. Sushila (DW-1) and further committed serious error on relying on the concocted statement of Shri Raghuveer Singh (PW-19), who had managed the videography in which appellant has been shown that he is making confession before them and this videography was admittedly made after arrest, hence it carries no weightage and further no independent witness or report to the effect that same was tempered or developed with an object to involve the appellant in the offence, hence on the basis of such poor evidence appellant cannot be convicted, as such judgment deserves to be set aside on this count alone. 16. It is argued that entire prosecution case and investigation become false on one count alone that prosecution has tried to built up the case that Saurabh was murdered and dead body was concealed in the area of Pratap Nagar, which is falling within Police Station, Sanganer Sadar and Sanganer Sadar had given F.R. that neither any accused nor any other clue has been found and closed the investigation. But the Police Station, Ramganj had continued the investigation and in spite of collecting artificial statements and recovery memos why the investigation was handed over to proper Police Station having jurisdiction, it demonstrates that neither the investigation is fair nor any recoveries and story prepared by prosecution is fair, therefore, appellant deserves acquittal form the charge and judgment deserves to be quashed on this count alone. 17. It is contended that as per the statement of Raghuveer Singh (PW-19) there is no blood stain found on the stones of floor and they had collected only sand from site but no other article connecting the appellant from site has been recovered. Hence, entire finding of learned trial court is perverse and illegal, as such deserves to be set aside. It is argued that Raghuveer Singh (PW-19), Ratan Prakash (PW-20) and Ram Singh (PW-21) have failed to give specific reasons for not involving name of accused in the FIR. Appellant has been intentionally and malafidely roped by the prosecution just to give advantage to named accused. The learned trial court admitted that the investigation has not been properly conducted, it has many lacunas and chain of circumstances is incomplete having lots of missing links. Appellant has been intentionally and malafidely roped by the prosecution just to give advantage to named accused. The learned trial court admitted that the investigation has not been properly conducted, it has many lacunas and chain of circumstances is incomplete having lots of missing links. It is clear that murder was committed by some other person in some other manner and not by the accused appellant. The learned trial court has totally failed to consider this aspect of the case and erred in convicting the accused appellant. 18. Shri R.S. Raghav, learned Public Prosecutor and Shri Rajendra Singh Tanwar, learned counsel for the complainant opposed the appeals and submitted that there is no evidence of last seen against the accused-appellants proved by Dimple Kharti (PW-7), sister of the deceased and Babulal (PW-12), who happens to be grandfather of deceased Saurabh and also happened to be maternal grandfather of the accused. Apart from that, the recovery of the stone with the use of which the deceased was put to death and his clothes was made at the instance of accused-appellants, who had also identified the place of occurrence. 19. Learned Public Prosecutor referred to the statement of Dimple (PW-7) and Sona (PW-10) and Babu Lal (PW-12) that the motive for the accused-appellant to commit murder of Saurabh S/o Raju Khatri aged 5 years was that during a pilgrimage to Vaishno Devi temple about three months ago when Mona, wife of the appellant Appu @ Raju demanded from Sona (PW-10), the mother of the deceased water bottle to drink water, she refused to give water to her on the pretext that water would be needed for her son Saurabh, who was aged 5 years. 20. It is submitted that the dead body, which was recovered from the deserted house at Pratap Nagar was of Saurabh has been proved by several circumstances. Dr. P.C. Vyas (PW-22), who conducted the postmortem report has opined that death must have been taken place 3-6 weeks ago, which approximate the timing of the deceased Saurabh missing from his house. He also opined that the dead body was that of a male child. The postmortem report prepared by three Doctors therefore cannot be disbelieved. His hair were as long as 7 inches because his mother Sona (PW-10) stated that his hair were to be offered to deity for 'jadula' and therefore he was having long hair. He also opined that the dead body was that of a male child. The postmortem report prepared by three Doctors therefore cannot be disbelieved. His hair were as long as 7 inches because his mother Sona (PW-10) stated that his hair were to be offered to deity for 'jadula' and therefore he was having long hair. The deceased was put to death by use of the stone recovered at the instance of accused-appellant has been proved not only by Investigating Officer Raghuveer Singh (PW-19), but also by Dr. P.C. Vyas (PW-12). 21. Learned counsel for the complainant argued that mere fact that in first missing person report lodged on 14.8.2002 (Ex. P12) and second one on 28.8.2002 (Ex. P13) the doubt was not expressed against any accused and that in the report (Ex. D9) dated 19.9.2002, complainant doubted the role of Ashok, Mukesh @ Suman, Sanjay, Ajay and Deepak that those accused might have been responsible for the disappearance of his son, particularly when what has been held by the learned trial court is based on the proof against accused-appellants. It is therefore prayed that the appeals be dismissed. 22. We have given our anxious consideration to the rival submissions and perused the material on record. 23. The most significant incriminating circumstance, which has been relied by the prosecution against accused-appellants is that of last seen and curiously this circumstance is available only against one accused Appu and not against accused Raj Kumar. The prosecution in this behalf has relied on the testimony of Dimple (PW-7) sister of the deceased and Babulal (PW-12), the paternal grandfather of the deceased. Besides this, Sona (PW-10), mother of the deceased has also been relied by the prosecution. Dimple Khatri (PW-7) has stated that they were four sisters and one brother, who was still living. In addition, deceased Saurabh was also her younger brother. All brothers and sisters were studied in Padavati School, which was situated near their house. While she and her sister Sapna used to go school at around 7.00 am and returned at about 12 noon, her younger sister Shivani, Arti and Saurabh used to go to school at 12 O'clock and return at 5.00 pm. Her mother was earning his livelihood by ironing the clothes. While she and her sister Sapna used to go school at around 7.00 am and returned at about 12 noon, her younger sister Shivani, Arti and Saurabh used to go to school at 12 O'clock and return at 5.00 pm. Her mother was earning his livelihood by ironing the clothes. Shivani, Arti and younger brother Saurabh had on the fateful day returned from the school at around 3.00 pm because the following day was 15th August and the school was preparing for that day. At that time, her father Rajkumar Khatri and grandfather Babulal Khatri were also at home. Her cousin Appu, who was son of her aunt Sushila Devi, sister of her father came to their house at around quarter to 5. He talked to her father for about five minutes and then took her younger brother Saurabh (deceased) with him for a ride on his scooter. Appu did not drop Saurabh after the ride. After some time her grandfather, who was sitting on a cot outside house made enquiry why Appu did not return back. He asked her father (informant) to search for Saurabh. Despite making the efforts of search, he could not be traced out. Her father told her sister Shivani to go to the shop to call her mother. Her mother returned with Shivani and told them that Appu had come to her alone with some headgear clothes around quarter to 5 for ironing out creases and came again at around quarter to 6 to collect them. Her mother then telephoned her aunt Sushila Devi (mother of the appellant Appu) on the STD booth adjacent to their house at Pratap Nagar, Sheopur. She told that Appu had not yet returned home. 24. It was thereafter that her father lodged the missing person report. On that very day, Appu and her brother in law (Jeeja) Raj Kumar came to their house at around quarter to 10.00 pm. When enquiry was made from Appu, he told that he left Saurabh on the door steps of their house in the evening itself. When they were not satisfied and made persisted enquiries from him, each time he gave the same explanation. This witness further stated that Saurabh did not accompany any stranger and he usually went for a ride on scooter only with Appu because he was quite close to him. When they were not satisfied and made persisted enquiries from him, each time he gave the same explanation. This witness further stated that Saurabh did not accompany any stranger and he usually went for a ride on scooter only with Appu because he was quite close to him. Appu's marriage was solemnised in April, 2002 i.e. about 4-5 months ago. Thereafter, in May, 2002, this witness and Saurabh had stayed in the house of Appu for about 20-25 days, as a result of which Saurabh developed an intimacy with Appu. Saurabh often went with Appu on his scooter for a ride as no one in their family had the scooter. This witness then on the aspect of motive stated that in June, 2002 they went to pilgrimage of Vaishno Devi temple. There were around 25-30 people. Her mother and father had organised the pilgrimage as their wish to have a male child was fulfilled. Appu and his wife also accompanied them. While they were standing in a queue for 'darshan', her mother was holding a water bottle in her one hand and Saurabh in another. It being month of June was quite hot. Whoever would feel urge to drink water, went to handpump, but Mona did not go to handpump and instead demanded from her mother (this witness) the water bottle, which she refused saying that this water was needed for Saurabh. Then her mother gave bottle to Appu on his assurance that he would fill it with the handpump, but when he refused to do so, her mother snatched the water bottle from Mona, thereupon Appu got infuriated and started quarreling with her mother Sona. Mona, Mamta, sister of Appu and husband of Mamta, Rajkumar also started quarreling with her mother Sona. Owing to this incident, their relations remained strained for quite sometime. 25. Babulal (PW-12), paternal grandfather of the deceased as also the maternal grandfather of the accused, has also stated that in the evening of 14th August around 5.00 pm when accused came to their house, he offered a scooter ride to Saurabh. At that time, Raju was sitting on the steps outside the house and he was on a cot. While Appu took him for ride, but did not return back. At that time, Raju was sitting on the steps outside the house and he was on a cot. While Appu took him for ride, but did not return back. After 10-15 minutes when Saurabh was not traceable, he went for his search, then Raju asked his daughter Shivani to enquire from her mother Sona, who told that Appu came to her about 5.30 pm and he was alone. All family members then frantically searched for Appu. Around 10 pm Appu, Rajkumar, his brother in law came to their house. Appu gave the explanation that he had dropped Saurabh at the house within few minutes. This witness also stated that Saurabh had intimacy with Appu and used to frequently go for a ride on his scooter. During his marriage also, he stayed in the house of Appu for about 15-20 days. 26. Sonu, mother of deceased (PW-10) has stated that Appu came to her around quarter to 5 on his scooter. He gave to him a headgear clothes ('pagri') for ironing and told that he would return after sometime from the home of the informant and he should keep the 'pagri' ready. Appu then returned back at around 5.45 PM to collect the 'pagri'. After some time, her daughter Shivani came to her and told that Saurabh was not traceable. Even this witness has stated that she made a telephonic call to Sushila, mother of Appu and her sister-in-law, who told that Appu had not returned back home. After sometime, Appu came to their house on his own and when this witness and others enquired from him, he told that he had left Saurabh at the door steps of their house. When it is proved by statement of Sona (PW-10) that accused was seen in the house of the deceased at about 5.45 PM, it cannot be believed that having left that house, which is situated at Ramganj Bazar in the thickly populated area of Ramganj Bazar, he would travel during this peak hour of traffic upto the distance of 16 to 17 kms. to Pratap Nagar and after committing the incident would return back to Ramganj Bazar to be able to collect the cloth (pagri), which he gave to Sona for ironing. 27. The testimony of aforesaid three discussed witnesses has to be examined in the context of the fact that the missing person report (Ex. to Pratap Nagar and after committing the incident would return back to Ramganj Bazar to be able to collect the cloth (pagri), which he gave to Sona for ironing. 27. The testimony of aforesaid three discussed witnesses has to be examined in the context of the fact that the missing person report (Ex. P12) was submitted by the informant on 14.8.2002 that his son aged about 5 years was missing since 4 O'clock from the house. His height was about 3 feet and colour was whitish. He was wearing a T-shirt and pant of cream colour. He was bear feet. Despite making enquiry from all relatives, he could not be traced. It was thereafter that the informant submitted another written report (Ex. P13) on 28.8.2002 to SHO Police Station Ramganj, District Jaipur in which it is stated that his son Saurabh, aged 5 years was missing. He had gone out of house for playing and somebody had enticed him to accompany him. It was in between that a news report was published in various newspapers that dead body of a child without clothes was found in a deserted house at Pratap Nagar. On that basis, the Sub-Inspector of Police Station Sanganer submitted a written letter to SHO Police Station Sanganer on 18.9.2002. On the very next day, the informant gave a written report (Ex. D9) to SHO Police Station Sanganer i.e. on 19.9.2002 that on reading about the news item in the paper, he has contacted the Police Station Sanganer. He went to inspect the dead body and could identify him from his belongings namely; his clothes, shoes and belt. He thereupon alleged that Ashok, Mukesh @ Suman, Sanjay, Ajay and Deepak might have been responsible for his murder. He had full confidence that it must be these people, who initially caused disappearance of Saurabh and then murdered him. After abducting his son, these person had threatened the informant that they would kill him as well. 28. Though the Investigating Officer Raghuveer Singh (PW-19) has not conducted any investigation against those named persons in the third written report (Ex. D9), but the fact shows that the informant himself was throughout shifting his stand as to who could be responsible for causing disappearance and murder of his son. The testimony of Investigating Officer that the accused-appellants Rajkumar and Appu @ Raju identified the place of incident of which memos (Ex. D9), but the fact shows that the informant himself was throughout shifting his stand as to who could be responsible for causing disappearance and murder of his son. The testimony of Investigating Officer that the accused-appellants Rajkumar and Appu @ Raju identified the place of incident of which memos (Ex. P5 & P6) were prepared has no meaning because the information furnished by the accused-appellants vide memo Ex. P23 & 24 did not lead to discovery of any new fact. The place wherefrom the dead body was recovered was already known to the police. The recovery of scooter of the accused Appu @ Raju vide Ex. P7 also cannot be taken as a circumstance against him as it was his own scooter. The recovery of stone (Ex. P8) weighing about 2 kg by which the deceased was allegedly put to death, is again a neutral circumstance. This stone was found lying near the dead body and, therefore, the memo of information under section 27 of the Evidence Act prepared at the instance of accused-appellant Appu @ Raju vide Ex. P24 also has no significant value. Moreover, much contrary to the earlier stand of the informant in the written report (Ex. P12) that the deceased was bare foot, the police has in the present case even shown the recovery of shoes along with T-shirt and pant allegedly of the deceased vide memo (Ex. P16). As per the FSL report (Ex.P25), the blood could not be detected from the stone though blood was found on the T-shirt, pant and pair of shoes of the deceased. 29. The informant and the other family members did not doubt the role of Appu and believed him when he gave explanation at the earliest point of time that he had dropped Saurabh on that very day and it appears that investigation in the present case was earlier conducted by some other police officer. But then, it was entrusted to Raghuveer Singh (PW-19). He adopted a noble method to solve the case, which is evident from what he has stated in his statement before the Court. He has stated that he had interrogated the named accused, but he did not find them responsible for disappearance of the deceased Saurabh. But then, it was entrusted to Raghuveer Singh (PW-19). He adopted a noble method to solve the case, which is evident from what he has stated in his statement before the Court. He has stated that he had interrogated the named accused, but he did not find them responsible for disappearance of the deceased Saurabh. He stated in the Court that during his investigation, he did not find a single witness confirming the fact that Appu @ Raju was seen dropping deceased Saurabh at the door steps of his house. Since the house of the deceased was situated in a densely populated area, had the accused actually dropped Saurabh, someone must have surely seen him. On that basis, he arrested Appu @ Raju. It was thereafter that supplementary statements of all prosecution witnesses were recorded by this new Investigating Officer, but surprisingly in that process, he also recorded the confession of the accused and got video recording of the same prepared in the presence of himself and another police officer Shri Ram Singh. In this video recording, the accused is shown to have accepted his guilt of committing the murder of Saurabh. 30. Such a video recording of the statement of the accused is wholly illegal, being hit by Article 20(3) of the Constitution of India. The entire investigation thus appears to have been made on being doubt founded on a small dispute between the two families, who were closely related to each other, which could not be blown out of proportion to take the shape of motive of a murder and that too of a small child aged 5 years, who was so intimately attached to accused-appellant Appu. 31. Critical analysis of the evidence aforementioned thus clearly show that not only the individual circumstances against the accused-appellants have not been proved by any clinching or reliable evidence, but all the circumstances cannot be joined together to form a chain of circumstances so complete as to rule out every single hypothesis compatible with the innocence of the accused-appellants and point out a finger of doubt against the accused and none else. Moreover, we do not find any shade of evidence against Rajkumar @ Raju, the brother-in-law of Appu @ Raju, who too has been convicted for offence under section 302/34 and 201 IPC. Both accused are therefore held entitled to benefit of doubt. 32. Moreover, we do not find any shade of evidence against Rajkumar @ Raju, the brother-in-law of Appu @ Raju, who too has been convicted for offence under section 302/34 and 201 IPC. Both accused are therefore held entitled to benefit of doubt. 32. In the result, both the criminal appeals are allowed. The impugned judgment and order dated 15.11.2008 passed by learned Additional Sessions Judge (Fast Track) No. 2, Jaipur Metropolitan, Jaipur, in Sessions Case No. 16/2008 is set aside. Accused-appellants, namely, Rajkumar alias Raju S/o Shri Ram Singh and Appu @ Raju S/o Panchu Lal, are acquitted of the charges for offence under Sections 302/34, 364 and 201 IPC and Sections 302, 201 and 364 IPC, respectively. They are in the Central Jail, Jaipur. They be set at liberty forthwith if not required to be detained in any other case. 33. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, accused-appellants Rajkumar alias Raju S/o Shri Ram Singh and Appu @ Raju S/o Panchu Lal, are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each and a surety bond in the like amount before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months, with an undertaking that in the event of filing of Special Leave Petition against this judgment or on grant of leave, they, on receipt of notice thereof, shall appear before the Supreme Court. 34. Office to place a copy of this judgment in connected appeal.