JUDGMENT Kanwaljit Singh Ahluwalia J. (Oral) - A five year old child, namely Deepchand went missing on the intervening night of 26th & 27th of July, 1986. His dead-body was found in a Well at Village Singhana, abutting Singhana-Chirawa Road Police Station Surajgarh, District Jhunjhunu. 2. The case of the prosecution, in brief, is that the accused carried the dead-body and had thrown the same in the Well nearby Village Singhana, which is at a distance of six kilometers from the house of accused and complainant - Hanuman Singh (PW-5), the father of the deceased child. 3. The Investigating Agency, in pursuance of the case, being First Information Report (Exhibit-P/6) No.97/1986 registered at Police Station Surajgarh District Jhunjhunu, nominated Satveer son of Lalman and Rawat Singh son of Mag Singh as accused and sent them for trial. They were tried by the Court of Sessions Judge, Jhunjhunu. The said Court, vide its impugned judgment dated 22.09.1987, acquitted Rawat Singh but held Satveer son of Lalman guilty of offences punishable under Sections 302/34 and 201/34 of the Indian Penal Code. 4. Having convicted the appellant for the above said offences, the trial Judge, vide a separate order of even date, sentenced the appellant as under :- "For offence under section 302/34 I.P.C. : The appellant was sentenced to undergo life imprisonment and to pay a fine of Rs. 250/- and in default of payment of fine to further undergo three months rigorous imprisonment. "For offence under section 201/34 I.P.C. : The appellant was sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs. 250/- and in default of payment of fine to further undergo three months rigorous imprisonment. Both the substantive sentences were ordered to run concurrently." Aggrieved against his conviction and sentence, the appellant has preferred present appeal. It is a case of circumstantial evidence. The prosecution, in order to secure conviction of the appellant, relied upon the following circumstances :- "1. Motive, which has emerged in the testimony of Gurudayal Singh (PW-7), brother of complainant - Hanuman Singh (PW-5). 2. Evidence of last seen, it is a case of the prosecution that Banwari (PW-3) and Dhandi (PW-4) had seen a person carrying the child on his shoulder. 3. Extra Judicial Confession, allegedly made by the appellant before Hanuman Singh (PW-5), complainant/father of the child and Ramji Lal (PW-6). 4. 2. Evidence of last seen, it is a case of the prosecution that Banwari (PW-3) and Dhandi (PW-4) had seen a person carrying the child on his shoulder. 3. Extra Judicial Confession, allegedly made by the appellant before Hanuman Singh (PW-5), complainant/father of the child and Ramji Lal (PW-6). 4. Recovery of dead-body of Child : - Case of the prosecution is that Disclosure (Exhibit-P/19) was made by the appellant before Roop Singh (PW-15), Investigating Officer, and in pursuance thereof recovery of the deadbody of the child from the Well situated at Village Singhana, Singhana-Chirawa Road was effected at behest of the appellant vide recovery memo Exhibit-P/1, which was attested by Subhash (PW-1) and Hawa Singh (PW-2). 5. Recovery of Pant and shirt from the appellant from his house in pursuance of the disclosure made and the report of State Forensic Science Laboratory Rajasthan, Jaipur (Exhibit-P/22)." Before we deal with the each and every incriminating circumstance relied by the prosecution, it will be appropriate for us to reproduce here true translation of the written-report (Exhibit-P/5) submitted by Hanuman Singh (PW-5) before Roop Singh (PW-15), who on 27.07.1986 was posted as Station House Officer, Police Station Surajgarh. The above said written-report (Exhibit-P/5), when translated into English reads as under :- "To, The In-charge Saheb, Police Station Surajgarh Sub : Regarding kidnapping of a minor child, namely Deepchand son of Shri Hanuman Ram. Sir, It is humbly submitted that I Hanumana Ram son of Surjaram, by caste Jat is resident of Village Kidwana. My son Deepchand, aged five-years after taking dinner slept with me. When I woke up in the morning at 04:00 A.M., I saw that my child is not on the cot. After arising from the bed, I searched for him here and there. He has not found. I also searched for him in the Village but he has not found anywhere. Some unknown persons had kidnapped my child from the cot. I have received no information regarding the whereabouts of child yet. I have come to lodge the report. The legal action be taken and my child after searching be got returned to me. I also searched for him in the Village but he has not found anywhere. Some unknown persons had kidnapped my child from the cot. I have received no information regarding the whereabouts of child yet. I have come to lodge the report. The legal action be taken and my child after searching be got returned to me. Signed Hanuman Ram Son od Surjaram by caste Jat resident of Kidwana." From the above written-report (Exhibit-P/5), it is discernible that on the intervening night of 26th & 27th of July, 1986 Deepchand, aged five-years, child of the complainant - Hanuman Singh (PW-5) went missing and having searched for the child, the complainant lodged written-report (Exhibit-P/5). On the basis of such written-report on 27.07.1986 at 04:00 P.M., a formal First Information Report (Exhibit-P/6) bearing No.97/1986 was registered at Police Station Surajgarh for the offence punishable under Section 364 I.P.C. Thereafter, the investigation commenced. Now we shall deal with the circumstances relied by the prosecution. 1. Motive : 5. Complainant - Hanuman Singh (PW-5), father of deceased child in the Court deposed that two months ago, Satveer was apprehended by the Excise Department for dealing in alcohol and for this reason, Satveer was having a grudge against him. This witness further stated that he had refused to give liquor without payment to Satveer and Prahlad and thereafter, they had not talked with each other. Regarding motive, we reproduce here following lines from the examination-in-chief of Hanuman Singh (PW-5) :- ^^lrohj dks vkcdkjh okyksa us 6 ekg igys 'kjkc ds ekeys esa idMk Fkk ftlds dkj.k og esjs ls jaft'k j[krk gSA eSusa lrohj o Ágykn dks 'kjkc m/kkj nsus ls euk fd;k mlds ckn mudh esjs ls dksbZ ckr ugha gqbZA vkcdkjh okyksa us lrohj dks idMk ml le; mlus eq>s ns[k ysus dh /kedh nh FkhA** Thus, Hanuman Singh (PW-5) has stated that since he got the accused apprehended, therefore, accused was having a grudge against him and on this score Satveer, accused-appellant had threatened him. Contrary to this, Gurudayal Singh (PW-7), brother of complainant (PW-5) in the Court stated that the complainant had refused to give alcohol to the accused without any payment and, therefore, accused had left a threat. Contrary to this, Gurudayal Singh (PW-7), brother of complainant (PW-5) in the Court stated that the complainant had refused to give alcohol to the accused without any payment and, therefore, accused had left a threat. The exact words stated by this witness are as under :- ^^djhc 12 ekg igys dh ckr gS guqeku fpMkok ls 'kjkc ykdj csprk FkkA lrohj o Ágykn nks ckj guqeku ls 'kjkc ys x;s o rhljh ckj ysus vk;s rc guqeku us dgk fd vc m/kkj ugha nsxkA lrohj us tkrs le; guqeku dks dgk fd rsjs dks ns[ksaxsA lrohj vkSj Ágykn ds tkus ds ckn eSa vius ?kj pyk x;kA** Thus, to us it is difficult to resolve above contradiction in the prosecution evidence. Complainant Hanuman Singh (PW-5), father of deceased child has deposed that he got accused apprehended by the Excise Department and, therefore, accused was having a grudge against him, whereas Gurudayal Singh (PW-7) says that since complainant refused to give liquor without any payment, therefore, accused was having a grudge. Complainant-Hanuman Singh (PW-5) has stated that he had refused to give liquor without payment and thereafter, accused had left the place. Be that as it may, it is evident that the relations between the parties were not cordial. 6. Thus, the motive in itself cannot be a ground to uphold the conviction of the accused, as the Court has to be on guard because the motive in itself can be a reason for the complainant to implicate the accused on the basis of the suspicion. In a case of circumstantial evidence motive alone is not sufficient to convict a person. Now we shall deal with the evidence of last seen. Evidence of last seen : The evidence of last seen has emerged in the testimony of Banwari (PW-3) and his wife Dhandi (PW-4). Banwari (PW-3) has stated that in the night of the alleged occurrence, he saw one person carrying a child on the shoulder, but this witness has not identified the appellant as a person who was carrying the child. 7. Similar is the evidence of Dhandi (PW-4). She also stated that she along with her husband saw a person carrying a child on the shoulder, but she also has not stated that she recognized the appellant as one who was carrying the child. Therefore, Banwari (PW-3) and Dhandi (PW-4) in no way have advanced the case of prosecution. 7. Similar is the evidence of Dhandi (PW-4). She also stated that she along with her husband saw a person carrying a child on the shoulder, but she also has not stated that she recognized the appellant as one who was carrying the child. Therefore, Banwari (PW-3) and Dhandi (PW-4) in no way have advanced the case of prosecution. So far evidence of last seen is concerned, their evidence is only to the effect that they have seen a person or a man carrying a child but who was said person or a man, the witnesses have not divulged the details. Extra-judicial-confession : The extra-judicial-confession has emerged in the testimony of Hanuman Singh (PW-5), complainant/father of deceased child and Ramji Lal (PW-6). 8. Complainant - Hanuman Singh (PW-5), father of deceased child has stated that he was searching for his son Deepchand and in the early hours of morning he had gone to the house of his brother - Gurudayal Singh (PW-7). The witness stated that his brother told him that since Satveer and Prahlad had come to him in the night, therefore, he should search for the child from by contacting them. Complainant-Hanuman Singh (PW-5), along with Ramji Lal went to the house of Satveer. To be precise, the exact words stated by complainant - Hanuman Singh (PW-5) reads as under :- ^^eSa o jkethyky us lrohj dks iwNk rks mlus dgk fd pkgs esjs gkFk rqMok nks yMdk esjs gkFk ls mrj x;kA** Now this extra-judicial confession, as stated by Hanuman Singh (PW-5) is totally belied by Ramji Lal (PW-6). 9. Ramji Lal (PW-6) has stated that Satveer denied having seen the child. He had only stated that at the most you can get him tortured from the Police get his hands broken but the child is not with him. Ramji Lal (PW-6) has further stated that except this accused had not divulged any information regarding the child. 9. Ramji Lal (PW-6) has stated that Satveer denied having seen the child. He had only stated that at the most you can get him tortured from the Police get his hands broken but the child is not with him. Ramji Lal (PW-6) has further stated that except this accused had not divulged any information regarding the child. Therefore, we shall reproduce here the exact words stated by Ramji Lal (PW-6) :- ^^eSaus lrohj dks iwNk fd guqeku ds yMds nhipUn dks D;k mlus xk;c dj fn;k ;k dgh ns[kkA lrohj us crk;k fd mlus yMds dks ugha ns[kkA mlus eq>s dgk fd T;knk ls T;knk esjs dks Fkkus esa fiVok nksxs ijUrq yMdk esjs ikl ugha gSA blds vykok eq>s lrohj us yMds ds ckcr vkSj dksbZ ckr ugha dghA eSa guqeku ds lkFk Fkkus x;k o fjiksVZ nhA** 10. Ramji Lal (PW-6) contradicts Hanuman Singh (PW-5) regarding extra-judicial confession. Curiously enough, it is stated by Ramji Lal (PW- 6) that thereafter, he accompanied Hanuman Singh (PW-5) to the Police Station and presented a report. The written-report (Exhibit-P/5) presented by Hanuman Singh (PW-5) is totally silent regarding extra-judicial confession. 11. Even otherwise, we cannot comprehend as to why Satveer will make a confession to complainant with whom he is having estranged relation. There was no reason with the accused to blurt out the confession before complainant that too at the time when even report was not made, case was not registered, therefore, there was no pressure upon the accused to suffer confession. Rather Ramji Lal (PW-6) deposed that accused stated in his own rustic way that since complainant is having suspicion, he may take the accused to the Police and got him tortured by breaking his hands but he had not seen the child. Thus, no way what is stated by the accused can be termed as a confession and furthermore, non-mentioning thereof in the written-report is sufficient for us to discard the evidence of extra-judicial confession relied by the prosecution against the appellant. Recovery of dead-body in pursuance of the disclosure. 12. The case of the prosecution is that on 28.07.1986 the appellant made a disclosure (Exhibit-P/19) before Roop Singh (PW-15), Investigating Officer. In pursuance thereof, the appellant led the Police party and got the child recovered vide memo Exhibit-P/1, which was attested by Subhash (PW-1) and Hawa Singh (PW-2) respectively. Recovery of dead-body in pursuance of the disclosure. 12. The case of the prosecution is that on 28.07.1986 the appellant made a disclosure (Exhibit-P/19) before Roop Singh (PW-15), Investigating Officer. In pursuance thereof, the appellant led the Police party and got the child recovered vide memo Exhibit-P/1, which was attested by Subhash (PW-1) and Hawa Singh (PW-2) respectively. The only question before us, whether accused had made a disclosure under section 27 of the Indian Evidence Act or not. Investigating Officer/Sub Inspector Roop Singh (PW-15), in cross-examination has stated that Village Kidhwana was having population of two-three thousands and before the recovery, he had gone to the Village and had reached at the Well at 10:30 A.M. The suggestion has been given by the prosecution that the dead-body was found in the Well by the Villagers, before Police arrived and the people had gathered around there. 13. Gurudayal Singh (PW-7), brother of complainant - Hanuman Singh (PW-5) and Banwari (PW-3) in the Court stated that in the morning at 04:00 A.M. Hanuman Singh (PW-5) came to him and told that the child is missing. He advised him to search for him. The witness has stated that Hanuman Singh (PW-5) searched for him. We reproduce here following lines from the examination of Gurudayal Singh (PW-7) :- ^^lqcg pkj cts gqueku esjs ikl vk;k o dgk fd mldk yMdk xqe gSA eSaus mlls dgk fd ryk'k djks fey tk,xkA guqeku us gh mls ryk'k fd;kA** 14. Thus before disclosure was recorded, search regarding the child was already complete. The fact which is already in knowledge of the Investigating Agency cannot be made subject matter of disclosure under section 27 of the Indian Evidence Act. 15. Therefore, we shall not rely upon disclosure statement (Exhibit-P/19), as doubt is cast upon its authenticity, especially when disclosure statement (Exhibit-P/19) was not witnessed by any independent person. Recovery of clothes : 16. The case of the prosecution is that the accused made disclosure and got pant and bushirt recovered vide Exhibit-P/14 and the same were stained with the blood. 17. Hoshiyar Singh (PW-10) has deposed in the Court that vide recovery memo Exhibit-P/14, accused got recovered one shirt and pant from his residence and the same was stained with the blood. The clothes recovered from the appellant, along with underwear of the child were sent to the State Forensic Science Laboratory Rajasthan, Jaipur. 18. 17. Hoshiyar Singh (PW-10) has deposed in the Court that vide recovery memo Exhibit-P/14, accused got recovered one shirt and pant from his residence and the same was stained with the blood. The clothes recovered from the appellant, along with underwear of the child were sent to the State Forensic Science Laboratory Rajasthan, Jaipur. 18. As per the report of the State Forensic Science Laboratory Rajasthan, Jaipur, (Exhibit-P/22), blood stains on the pant of the accused were not sufficient for the test and on the bu-shirt blood stains were found disintegrated. Therefore, the report of State Forensic Science Laboratory Rajasthan, Jaipur has also not advanced the case of prosecution. 19. In the light of the discussions made herein above, we are of the view that the prosecution has not been able to prove circumstances relied and, hence, prosecution has failed to complete the chain of circumstances to arrive at a conclusion that the offence, if any, has been committed by the appellant alone and none else. 20. In the present case, the prosecution has miserably failed to qualify the test to complete the chain of circumstances laid by the Courts for convicting the accused on the basis of circumstantial evidence. As a parting note, we shall notice here that out of fifteen witnesses relied by the prosecution, Pooran (PW-8), Phoola (PW-11) and Prahlad (PW-14) have turned hostile to the prosecution. 21. Hanuman (PW-12) in no way has advanced the case of prosecution, as he has not stated anything incriminating against the appellant, except to say that the appellant was armed with the gun. We have not noticed the testimony of Dr. Mahaveer Singh (PW-9), who had conducted autopsy on the dead-body of the child, as admittedly the child had died due to violence. Thus, taking totality of circumstances and in view of discussions made herein above, we find that the prosecution has failed to prove its case against the appellant. 22. As a result thereof, the present appeal is, hereby, accepted. The conviction pronounced and sentence awarded by the trial Court upon the appellant is set aside and he is acquitted of the charges. 23. We find from the record that the Division Bench of this Court on 21.10.1987 had suspended the sentence of the appellant and had ordered him to be released on bail. Therefore, the bail bonds and the surety bonds executed by the appellant stand discharged. 24. 23. We find from the record that the Division Bench of this Court on 21.10.1987 had suspended the sentence of the appellant and had ordered him to be released on bail. Therefore, the bail bonds and the surety bonds executed by the appellant stand discharged. 24. The trial Court shall call the appellant to comply with the provisions of Section 437-A of the Cr.P.C.