JUDGMENT : Kanwaljit Singh Ahluwalia, J. 1. Kalulal son of Daulatram, by caste Nai and one Dinesh son of Dev Singh Dangi were sent for trial for having caused murder of Jadaw Bai wife of the complainant Nanu Ram (P.W.1). The accused Dinesh was found to be delinquent juvenile in conflict with law and the trial was assigned to concerned Juvenile Justice Board. 2. The court of Additional Sessions Judge, Jhalawar, District Jhalawar, vide impugned judgment dated 20.8.2011, convicted the appellant Kalulal for the offences under Sections 302, 397 and 201 IPC and vide a separate order of even date, sentenced the appellant as under:- U/s. 302 IPC- to undergo life imprisonment and to pay a fine of (2 of 11 ) [DBCRLA-1065/2011] Rs.1,000/-, in default of payment of fine to further undergo one month additional S.I. U/s. 397 IPC- to undergo seven years R.I. and to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo one month additional S.I. U/s. 201 IPC- to undergo three years R.I. and to pay a fine of Rs.5,00/-, in default of payment of fine to further undergo fifteen days additional S.I. 3. Aggrieved against the conviction and sentence, the appellant has preferred the present appeal. 4. The criminal proceedings were set into motion on written report (Exhibit-D/1) submitted by Nanu Ram (P.W.1) before Sallauddin (P.W.10), SHO Police Station Sadar, Jhalawar. On the basis of written report (Exhibit-D/1), formal FIR (Exhibit-P/1) bearing No.191/2009 was registered at Police Station Sadar, Jhalawar. 5. In the written report (Exhibit-D/1), Nanu Ram (P.W.1) stated that his son Durgalal was confined in District Jail, Jhalawar. On 9.6.2009, he along with his wife Jadaw Bai had gone to meet their son. 6. In the evening, they reached at Jhalawar and in the night they stayed at the bus stand. In the morning, at bus stand, Kalulal son of Daulatram Nai and Dinesh son of Dev Singh Dangi met them. They were known to the complainant Nanu Ram and his wife Jadaw Bai. After taking tea, Kalulal and Dinesh accompanied old couple to visit Jail to meet Durgalal. The complainant stated that since permission was given to three person, his wife Jadaw Bai along with Kalulal and Dinesh had gone to meet Durgalal in the jail and he kept waiting outside. After taking tea, Kalulal and Dinesh accompanied old couple to visit Jail to meet Durgalal. The complainant stated that since permission was given to three person, his wife Jadaw Bai along with Kalulal and Dinesh had gone to meet Durgalal in the jail and he kept waiting outside. After all the three met Durgalal in jail, they sat at a tea vend, where Kalulal served complainant tea and Kachori. Thereafter, Kalulal and Dinesh had taken Jadaw Bai to the medical shop for purchase of medicine. The case of the complainant is that he remained there and waited for the arrival of his wife. But since she had not turned up, he in the night took meals at a shop and thereafter, returned to house in the evening. The complainant made a grievance that her wife was having Silver ornaments and Rs.3,000/- in cash. The complainant contacted Dev Singh father of Dinesh, who informed him that Dinesh had gone along with Kalulal 8 or 10 days ago and had not returned. The complainant in his written report stated that he returned to his village and thereafter went to the house of his daughter Kamlesh. There also the complainant searched for his wife. The complainant stated that Ashok Kumar Kashi Khedi Wala informed his son Baddhe Singh that his mother Jadaw Bai has been killed by Dinesh and Kalulal. Ashok Kumar also informed that above facts have been disclosed to him by Dinesh and he and Dinesh are arriving in village. The complainant stated that Ashok Kumar after one or one quarter hours, came along with Dinesh. Then the complainant and his son enquired from Dinesh about whereabouts of Jadaw Bai and he informed that he alongwith Kalula had taken the old lady to bring medicine. Dinesh while weeping disclosed that he along with Kalulal had taken the old lady to Gindaur Khana, where Kalulal had given a push to the lady and she fell in the trenches. Dinesh further informed that Kalulal had removed ornaments worn by her and cash. Dinesh further informed that Kululal kept him along for 7-8 days and thereafter he turned him out and he had not shared the ornaments and cash with him. Dinesh further informed that Kalulal had removed ornaments worn by her and cash. Dinesh further informed that Kululal kept him along for 7-8 days and thereafter he turned him out and he had not shared the ornaments and cash with him. The complainant stated that he along with Dinesh went to search for Kalulal but Dinesh ran away and thus, committed cheating and in order to take away cash and onaments they committed murder of his wife. 7. We may notice here that Jadaw Bai along with her husband Nanu Ram (P.W.1) had left her village on 9.6.2009 and on 10.6.2009, they had visited the jail. Thereafter, the dead body of Jadaw Bai was recovered on 13.6.2009 and autopsy on her dead body was carried on 14.6.2009. The written report (Exhibit-D/1) was made on 22.6.2009 after twelve days of the occurrence. Thus, evidence of last seen as narrated by complainant had surfaced after twelve days of the occurrence and nine days after the dead body was found. The prosecution to secure conviction of the appellant relied upon following incriminating circumstances:- a) That the accused Dinesh and Kalulal were last seen with Jadaw Bai deceased. b) That the co-accused Dinesh had made extra judicial confession before Ashok Kumar (P.W.3), Nanu Ram (P.W.1) and Baddhe Singh (P.W.4). c) That the accused Kalulal and Dinesh got recovered ornaments belonging to deceased, which they have kept concealed. 8. The prosecution to prove above incriminating circumstances, examined nineteen witnesses and proved documents from Exhibit-P/1 to Exhibit-P/31 on record. No witness was examined in defence. However, defence relied upon two documents i.e. Exhibit- D/1 the written report submitted by Nanu Ram (P.W.1) and Exhibit-D/2, the statement of Nanu Ram (P.W.1) recorded under Section 161 Cr.P.C. 9. Autopsy on the dead body of Jadaw Bai was conducted by Dr. Sanjay Jain (P.W.9). This witness in the court deposed that on 14.6.2009, while he was posted as Assistant Professor, at about 6:00 PM, he had conducted autopsy on the dead body of an unidentified woman along with Dr. Chetna Jain and Dr. Madhurima Verma, who were members of the Medical Board. This witness in the examination-in-chief stated that the dead body recovered was nothing but a skeleton and was having no skin and hair. This witness had examined skull, which was having fracture of 6x3cm. This witness stated that so far neck is concerned, it had no skin. Chetna Jain and Dr. Madhurima Verma, who were members of the Medical Board. This witness in the examination-in-chief stated that the dead body recovered was nothing but a skeleton and was having no skin and hair. This witness had examined skull, which was having fracture of 6x3cm. This witness stated that so far neck is concerned, it had no skin. We shall reproduce the following portion from the examination-in-chief of Dr. Sanjay Jain, as under:- mDr e`rdksa dk 'ko vkaf'kd :i ls dadky dh fLFkfr esa FkkA flj ij dksbZ peM+h ;k cky ugha FksA ,oa flj dh [kksiM+h esa ck;sa fgLls ij (6x3) lseh ds {ks= esa flj dh vLFkh ugha ikbZ xbZ FkhA psgjs dh vfLFk;ka fn[kus ;ksX; FkhA ftl ij dksbZ peM+h ;k ekalisf'k;ka ugha FkhA xnZu esa dsoy xnZu dh gfM~M;ka ikbZ xbZA Nkrh esa peM+h yxHkx vuqifLFkr FkhA ,oa ilfy;ka vkxs dh rjQ vuqifLFkr FkhA tcfd lkbZM ,oa ihNs dh rjQ fn[kkbZ ns jgh FkhA tks fd vkxs dh rjQ VwVh gqbZ FkhA 10. As per opinion of the Medical Board, deceased Jadaw Bai had died due to Coma and shock as as result of injuries in the head. Dr. Sanjay Jain (P.W.9) has proved the post mortem report on record as Exhibit-P/10. 11. As is evident, at the time of autopsy, dead body was not identifiable. Exhibit-P/5 is the inquest/Panchayatnama carried with regard to unknown lady. In inquest report (Exhibit-P/5) it is specifically recorded that in 15-20 feet deep trenches, a dead body was found and the deceased had died about 8-10 days ago. It is further noted in the inquest report that the dead body was omitting foul smell. Police took into possession the clothes of the deceased along with silver anklet worn by the deceased. 12. In the present case, after the dead body was cremated, the prosecution witnesses from the silver anklets recovered from the dead body, identified the deceased to be Jadaw Bai wife of Nanu Ram (P.W.1). 13. Nanu Ram appeared in the court as P.W.1. This witness stated in the court that on 10.6.2009, he had gone to Jhalawar bus stand to visit his son, where he met Kalulal and Dinesh. We may notice here that the prosecution has not proved from the jail record by examining any jail official that the deceased Jadaw Bai along with Kalulal and Dinesh had visited the jail. This witness stated in the court that on 10.6.2009, he had gone to Jhalawar bus stand to visit his son, where he met Kalulal and Dinesh. We may notice here that the prosecution has not proved from the jail record by examining any jail official that the deceased Jadaw Bai along with Kalulal and Dinesh had visited the jail. So far visit of Nanu Ram (P.W.1) to jail is concerned, he has already stated that he had not gone inside the Jail to meet his son. 14. We have been baffled with the question that as to why report regarding last seen has been lodged after twelve days of the occurrence. If the deceased Jadaw Bai was not traceable, and she in presence of Nanu Ram (P.W.1) had gone with accused and not returned, the natural action for Nanu Ram (P.W.1) was to immediately lodge report to the police regarding the fact that his wife is missing. Nanu Ram (P.W.1) in the court deposed that his daughter Kamlesh got a dream and disclosed that her mother has been murdered by Kalulal and Dinesh. Thus, in the present case, dream came first and investigation followed later. We shall reproduce the following portion from the testimony of Nanu Ram (P.W.1), as under:- esjh yM+dh us dgk fd firkth vki dgka ls vk jgs gks esjh ekrkth dks ekj fn;k gSA eSus iwNk fd rq>s dSls ;kn gS rks mlus dgk fd eq>s liuk vk;k Fkk fd esjh eka dks dkyw o fnus'k ekj jgk FkkA fQj esjs ls dgk fd vki xkao esa jguk dgha ij Hkh er tkukA esjh yM+dh esjs xkao ij vkbZ vSkj dgk fd rqe fdlh ls dqN er dguk vki lh/ks ekek&Hkkatk pkSjkgk >kykokM+ vk tkukA fnus'k us mlds firk dks Qksu fd;k fd eq>s <w<s er tkuk eSa ?kj ij vk x;k gwaA esjh yM+dh us fnus'k ls ckr djh rks mlus dgk fd dkyw jkexate.Mh esa dke dj jgk gSA 15. Nanu Ram (P.W.1) further stated that his daughter Kamlesh, his Nephew Mangilal, brother-in-law of Kamlesh, Bhim husband of Kamlesh caught hold of Kalulal and they gave beating to him and thereafter Kalulal informed that he along with Dinesh had committed murder of Jadaw Bai by giving her a push in the trenches. Nanu Ram (P.W.1) further stated that his daughter Kamlesh, his Nephew Mangilal, brother-in-law of Kamlesh, Bhim husband of Kamlesh caught hold of Kalulal and they gave beating to him and thereafter Kalulal informed that he along with Dinesh had committed murder of Jadaw Bai by giving her a push in the trenches. We shall reproduce the following portion from the testimony of Nanu Ram, as under:- fQj tc dkyw yky dks esjh yM+dh deys'k ckbZ] mldk Hkk.tk ekaxhyky] ,oa deys'k dk nsoj] deys'k dk ?kjokyk Hkhe ;s lc yksx dkyw dks idM+ dj Fkkus ij vk;s vkSj mldks ekjihV djds iwNk rks dkyw o fnus'k us crk;k fd tM+ko ckbZ dks ekjdj [kku esa Qsad fn;k gSA fQj Fkkukf/kdkjh us dgk fd rqeus mldks ekjk D;ksa rqe mlls tsoj Nhu ysrsA dkyw us dgk fd eq>s bldks dtkZ nsuk FkkA 16. In cross-examination, Nanu Ram (P.W.1) stated that report was lodged to police, 3 to 4 days after her wife was missing. In the court, this witness stated that accused were arrested first and then he lodged the report. This witness in cross-examination stated as under:- esjh iRuh tM+ko ckbZ ds ?kqe gksus dh fjiksVZ mlh fnu ugha dh FkhA ftl fnu og xk;c gqbZ FkhA rhu pkj fnu ckn fjiksVZ ntZ djok;h FkhA pksj dks idM+ dj ysdj vk xbZ rc fjiksVZ ntZ djok;h FkhA dkyw vkSj fnus'k dks geus iqfyl esa is'k dj fn;k FkkA fjiksVZ eSus cksydj Fkkukf/kdkjh dks fy[kokbZ FkhA fQj dgk fd esjh yM+dh deys'k us Hkh fy[kokbZ FkhA 17. However, Nanu Ram (P.W.1) stated that the fact that they arrested the accused and produced him before the police, has not been recorded in his statement made to the police. However, in cross-examination, he again stated to be correct that Dinesh and Kalulal were apprehended by them and later they were handed over to the police, thereafter report was lodged. 18. We may notice here that the police has shown the arrest of accused Kalulal and Dinesh on 23.6.2009 vide arrest memo Exhibit-P/12 and Exhibit-P/21. 19. Ashok Kumar (P.W.3) was brother-in-law (Devar) of Kamlesh daughter of Nanu Ram (P.W.1). This witness stated that Dinesh met him at bus stand of Jirapur. This witness asked Dinesh about Jadaw Bai and Dinesh informed that he along with Kalulal had committed her murder. Whereas, in cross-examination, this witness stated that Dinesh was changing his version. 19. Ashok Kumar (P.W.3) was brother-in-law (Devar) of Kamlesh daughter of Nanu Ram (P.W.1). This witness stated that Dinesh met him at bus stand of Jirapur. This witness asked Dinesh about Jadaw Bai and Dinesh informed that he along with Kalulal had committed her murder. Whereas, in cross-examination, this witness stated that Dinesh was changing his version. This witness denied to be incorrect that he, Baddhe Singh, Nanu Ram, Prem Singh and his Bhabhi had given beating to Dinesh. 20. Baddhe Singh (P.W.4) is son of the deceased Jadaw Bai. This witness in the court stated that after her mother was missing, 3-4 days later his father informed that Kalulal and Dinesh had taken his mother to the hospital for taking medicine. The following lines from the examination-in-chief of witness Baddhe Singh are important to be reproduced as under:- fQj iqfyl us tc dkyw o fnus'k dks idM+k rc irk pyk fd bUgksaus gekjh eka dks ekj fn;k gSA 21. Baddhe Singh (P.W.4) stated that after the police had apprehended Kalulal and Dinesh, thereafter, he and his father Nanu Ram had lodged the report Exhibit-D/1 at police station Sadar, Jhalawar. This witness stated that the investigating agency had recovered silver ornaments of the deceased. In vernacular this witness stated as under:- ^^nks vkoysa pkanh ds iqfyl us esjs lkeus o pkanh ds nks xfV~V;ka esjs lkeus cjken dh FkhA ftldh QnZ izn'kZ ih&3 gS ftl ij , ls ch esjs gLrk{kj gSA^^ 22. We find that lodging of the report and recovery of ornaments to be padding. We may again at the cost of repetition assert here that Jadaw Bai deceased was missing since 9.6.2009 or 10.6.209 and skeleton was recovered on 13.6.2009. Skeleton was having silver anklets. They were not taken by the accused. Furthermore, in the present case report was lodged on 22.6.2009 as admitted by Baddhe Singh (P.W.4) son of the deceased Jadaw Bai, after the accused were apprehended by the police. Thereafter, after the accused were apprehended and alleged recoveries were effected then story of last seen was coined and the written report (Exhibit-D/1) was lodged. We also find that skeleton which was identifiable was identified by the witnesses only with the help of silver anklet. Thereafter, after the accused were apprehended and alleged recoveries were effected then story of last seen was coined and the written report (Exhibit-D/1) was lodged. We also find that skeleton which was identifiable was identified by the witnesses only with the help of silver anklet. For carrying identification of the dead body, silver anklet recovered from dead body were not mixed with any other articles, even, though, silver ornaments recovered from the accused were identified by the witnesses in presence of Jal Singh (P.W.16). We may also notice here that the identification of ornaments recovered from the accused was carried by the witnesses on 12.8.2009, after about two months of the occurrence. We also cannot vouchsafe that when the accused were arrested, articles were recovered thereafter, written report (Exhibit-D/1) was lodged leading to registration of FIR. Considering the nature of investigation we cannot rule out that ornaments recovered were first shown to the witnesses and later identification proceedings were carried. 23. In the present case, investigation is highly tainted. We have already held that story of last seen has emerged at a highly belated stage after the accused were arrested. Therefore, we discard the evidence of last seen, as an incriminating circumstance. 24. So far, extra judicial confession made by co-accused Dinesh is concerned, same cannot be relied against the present appellant. We may also notice here that the witnesses have admitted that they have apprehended the accused and have given beating to them and thereafter, co-accused Dinesh had made confession. Thus, we cannot hold that confession made by Dinesh was voluntary and was without any durress or coercion. The witnesses stated that Dinesh and Kalulal were apprehended and brought to the police and there accused confessed about their guilt. Any confession made in presence of police officer or at the police station is hit by Section 25 of the Indian Evidence Act and same is also not admissible. We may repeat here that no confession has been made by Kalulal and confession made by coaccused Dinesh in the present case cannot be construed as incriminating circumstance qua the present appellant. 25. We have already held that the investigation to be tainted and recoveries to be padding. We may repeat here that no confession has been made by Kalulal and confession made by coaccused Dinesh in the present case cannot be construed as incriminating circumstance qua the present appellant. 25. We have already held that the investigation to be tainted and recoveries to be padding. Even if we assume that the accused led to recovery of ornaments of the deceased, same itself shall not be sufficient to hold that the offence has been committed by the appellant, as the prosecution has failed to complete the chain of circumstances to arrive at a conclusion that the offence has been committed by the appellant only and nobody else. We may further state that mere recovery in itself is not sufficient to infer guilt of accused. 26. Hence, taking totality of circumstances, we accept the present appeal and set aside the conviction and sentence awarded upon the appellant Kalulal and acquit him of all the charges. 27. In view of the acceptance of the appeal, in above terms, we order that the appellant Kalulal be released forthwith, if in custody and not required in any other case. 28. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant Kalulal is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- and a surety bond in the like amount, before the trial court. The bonds so furnished shall be effective for a period of six months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant on receipt of notice thereof, shall appear before the Hon'ble Apex Court.