JUDGMENT : Biren Vaishnav, J. 1. The appeal arises out of a judgment dated 22.3.2012 passed by the learned Additional Sessions Judge, Una, in Sessions Case No. 78/2012, by which the appellant has been convicted for offences punishable under section 302 and 364 of the Indian Penal Code and sentenced to undergo life imprisonment. 2. According to the prosecution on 3.10.2009 between 11:30 and 4:30 in the evening, son of the complainant Navneet @ Lalu aged four was missing. It is the case of the prosecution that the accused hurt by the fact that father of the deceased Navneet had abused him in the past, kidnapped Lalu the son and with an intention to kill, drowned him in a well. The accused was therefore, charged with offences punishable under sections 302 and 364 of the IPC. 3. Mother Geetaben lodged the complaint at exh.33 on 4.10.2009. According to Geetaben, she was away engaged in labour work and so was her daughter Daksha and husband. Daksha the daughter later on came to her and informed her that Navneet was missing. On inquiring from her mother-in-law Santokben, she told her that Navneet was playing outside their house at 11 in the morning. At around 1 O' clock since Navneet did not return home, she had gone to Dhunaben's shop. Dhunaben informed her that she had seen Navneet at around 11:30 to 12 in the company of the accused Guna. Navneet was holding Guna's hand and was at Hakabhai's shop. In the company of several other villagers including Chandubhai Najabhai, they looked for Nanveet. Chandubhai in the evening on the same day informed her that the accused Guna had come forth and confessed to have drowned Navneet in the well of Lakshmanbhai's farm. Accordingly, the First Information Report was lodged. 4. Santokben, Prosecution Witness No. 7, exh.26, is the grandmother of Navneet. In her testimony she stated that she was at home in the morning of 3.10.2009 when his grandson was playing in the compound of the house. She thereafter, found Navneet missing and therefore, went to Dhunaben's shop which was close by. Dhunaben informed her that she had seen Navneet in the company of the accused Gunabhai Bhanabhai. She further stated that Dhunaben informed her that Navneet was cited in the company of Guna at Hakabhai's shop. She thereafter, found Navneet missing and therefore, went to Dhunaben's shop which was close by. Dhunaben informed her that she had seen Navneet in the company of the accused Gunabhai Bhanabhai. She further stated that Dhunaben informed her that Navneet was cited in the company of Guna at Hakabhai's shop. Santokben further stated that after having been so informed, she went to her neighbours Mansukhbhai and others. Mansukhbhai informed her that he had seen Guna and Navneet together. Navneet held Guna's hand. So all of them set out to look for Navneet @ Lalu. They went to Guna's house and found him missing. At around 4 in the evening, Chandubhai Najabhai informed her that Guna met him near the water tank and told him that as Himmatbhai in the past had abused him he had taken Lalu away and thrown him in the well of Laxmanbhai"s farm. Lalu's body was found from the well. She was also cross examined. She admitted in the cross examination that Lalu was playing close to the house till around 12 noon. He was not seen thereafter and as soon as he was found missing, she started looking for him. She further admitted in her cross examination that the police came on the next day to record her statement. 5. Dakshaben Himmatbhai Gujar, Prosecution Witness No. 9, sister of Navneet was examined at exh.29. She in her deposition stated that she had left the home to carry out the labour work. Even her mother and her father had left. Only her grandmother Santokben, her brother Navneet and sister Nita had sat back. She returned home at around 1:30 in the afternoon. At that point of time, her grandmother Santokben informed her that Navneet was missing and therefore, her mother needed to be called back from her work. She therefore, went to the place where mother worked and informed the mother Geetaben that she should return home as Navneet was missing. All of them went looking for Navneet. They went to the shop of Dhunaben who told them that she had seen Lalu in the company of Guna. Lalu was holding Ghuna's hand and was at Hakabhai's shop. Chandubhai met them at around 4 in the evening and informed them that he had met Guna near the water tank. Guna had confessed to have thrown Navneet in the well of Laxmanbhai's farm. She was cross examined. Lalu was holding Ghuna's hand and was at Hakabhai's shop. Chandubhai met them at around 4 in the evening and informed them that he had met Guna near the water tank. Guna had confessed to have thrown Navneet in the well of Laxmanbhai's farm. She was cross examined. However, nothing material comes out from her cross examination. 6. Geetaben Himmatbhai Ranchodbhai, Prosecution Witness No. 11, exh.32 is the mother of deceased Navneet. She also testified on the same lines as her daughter Daksha. When she was away for her labour work, Dakshaben came over in the afternoon informing her that Navneet's grandmother Santokben had informed about the missing of Navneet. On returning home, Santokben narrated the same facts to Geetaben. All of them went looking for Neeta. Dhunaben the shop owner informed her that she had seen Navneet holding hand of Guna. Dhunaben, Mansukhbhai and others went looking for Navneet. They met Chandubhai in the evening who informed her that he had met Guna near a water tank and he had confessed to her throwing Navneet in the well of Lakshmanbhai's farm. All of them soon went to the farm and found the body of Navneet @ Lalu lying in the well. 7. Chandubhai Najabhai Katariya, Prosecution Witness No. 8 was examined at exh.27. He stated that on the date of the incident he was at his farm. In the afternoon, at around 12, Santokben had approached him inquiring about Lalu's whereabouts. After she left, according to him, he along with Mansukhbhai and others went around looking for Lalu. They could not find him and, therefore, he returned to his farm. It was learned from Dhunaben and Bharatbhai that at around 10:30 in the morning, Lalu was seen in the company of Guna. When he was coming over to the village at 4:30 in the afternoon, he met Guna near a water tank. He questioned Guna on missing of Lalu. It was at that point of time, Guna confessed to having thrown Lalu in the well of Lakshmanbhai's farm. According to Guna the motive was the accusation that Himmatbhai had leveled and abused him in the past. He further in his testimony stated that later in the evening, Lalu's grandmother Santokben, mother Geeta and other villagers had come to him inquiring of Lalu and it was at that point of time that they informed him of Guna's confession. According to Guna the motive was the accusation that Himmatbhai had leveled and abused him in the past. He further in his testimony stated that later in the evening, Lalu's grandmother Santokben, mother Geeta and other villagers had come to him inquiring of Lalu and it was at that point of time that they informed him of Guna's confession. In his cross-examination, he agreed that when the incident happened he was at his farm. The police had come to record his statement on the same day. His statement was recorded at Santokben's place. 8. Dhunaben Vashrambhai Mathurbhai, Prosecution Witness No. 6, was examined at exh.25. According to this witness, when she was at the shop at 12 noon, she had seen Navneet playing near the shop. The shop was close to Himmatbhai's house. She further testified that she saw the accused Guna Bhana coming over holding Navneet's hand and taking him to the shop of Bharatbhai Hakabhai. Guna purchased a Pan from Hakabhai's shop. Thereafter, Ghuna holding Lalubhai's hand left towards his house. Later on at around 12:30 in the afternoon Santokben, Lalu's grandmother approached her inquiring of Lalu. She then informed Santokben that she had seen Lalu in the company of Guna leaving towards his house. The family members started looking for Navneet. She also in her testimony stated that Chandubhai had informed her that when he met Guna, Guna had confessed to have thrown Lalu in the well of Lakshmanbhai's farm. In her cross examination, she admits that Chandubhai had come inquiring about Lalu at around 1 in the afternoon. She further stated that after Guna left Santokben came inquiring about Navneet. In her cross examination, she admitted that Bharatbhai's shop where she had seen Navneet along with Guna was next door. She agreed that the police had come to record her statement at 5 in the evening on the same day. When the police came to record statement Santokben, Mansukhbhai and others were present. 9. Maheshbhai Pachangbhai, Prosecution Witness No. 10, was examined at exh.30. Maheshbhai was a labourer engaged in the labour work of a diamond unit. This witness testified that he left for work at 6 in the morning and returned at around 11:30 or 12 in the noon. On the date of the incident when he had returned home, he had seen accused Guna in the company of Navneet, Himmatbhai's son. Maheshbhai was a labourer engaged in the labour work of a diamond unit. This witness testified that he left for work at 6 in the morning and returned at around 11:30 or 12 in the noon. On the date of the incident when he had returned home, he had seen accused Guna in the company of Navneet, Himmatbhai's son. He had seen both of them at a Pan shop. Navneet was holding Guna's hand. He thereafter, went back home. In the afternoon, when he came out of his house, he met Dhunaben and others. He was told that all of them were looking out for Navneet. When all of them went to Guna's house to look for him, they found him missing. In the evening, Chandubhai had met him who informed him that he met Guna in the evening and Guna had confessed to have thrown Navneet in the well of Lakshmanbhai's farm. In his cross examination, he admitted that on the date of the incident he did not venture out to go to the factory. He however, stayed home. He met Chandubhai in the evening when Chandubhai narrated the fact of Guna confessing to him committing the act. 10. Dr. Vikas Parsottambhai Gohel, Prosecution Witness No. 13, exh.35, had carried out the postmortem of the body of Navneet. In the opinion of the doctor, the death was due to drowning and asphyxia. He further in his examination-in-chief stated that the death occurred due to drowning when thrown in the well. 11. Case of the prosecution is essentially based on circumstantial evidence particularity on the theory of "last seen together". These circumstances against the accused are : "(a) Navneet was found missing. He was last seen in the company of the accused Guna. This last seen together theory is based on the testimony of Dhunaben Prosecution Witness No. 6 and Maheshbhai Prosecution Witness No. 10. (b) Since Navneet was not found, inquiries were made and on the basis of confession made by Guna before Chandubhai, body of Navneet was found from the well of Lakshmanbhai's farm. (c) The accused Guna confessed before Chandubhai Prosecution Witness No. 8 to have thrown Navneet in the well. The motive purportedly was the fact that Navneet's father Himmatbhai had in past abused him." 12. (c) The accused Guna confessed before Chandubhai Prosecution Witness No. 8 to have thrown Navneet in the well. The motive purportedly was the fact that Navneet's father Himmatbhai had in past abused him." 12. Coming to the last seen together theory, the fact that Navneet was last seen together with Guna needs to be assessed reading together the testimonies of Santokben Prosecution Witness No. 7 grandmother of deceased Navneet, Dhunaben Prosecution Witness No. 6 and Maheshbhai Prosecution Witness No. 10. Santokben, Lalu's grandmother has come out with the fact that Lalu was playing in the vicinity of the house at around 11 to 11:30 in the morning. Finding that he was missing at around 12, she went to look out for him. She went to Dhunaben's shop. Dhunaben informed her that she had seen Navneet with Guna at shop. She further in her testimony stated that it was Bharatbhai who had informed her of having seen both Guna and Navneet together living in the direction of Guna's house. 13. Dhunaben Prosecution Witness No. 6 has in her testimony stated that while she was at her shop at 12 in the afternoon, she had seen Guna. Navneet was holding his hand. Both of them were at Bharatbhai Hakabhai's shop. She saw Guna giving something to eat to Lalu. Lalu was holding Guna's hand and both of them left towards Guna's house. In the afternoon, at around 12, Santokben came inquiring about Laluwhen she told the grandmother that she had seen Lalu in the company of Guna leaving in the direction of Guna's house. 14. Maheshbhai Prosecution Witness No. 10 confirms the fact of having seen Navneet in Guna's company at Bharatbhai Hakabhai's shop. From the evidence of Maheshbhai it also comes out that during sometime in the afternoon i.e., at 12 noon he had seen both Guna and Navneet together at Bharatbhai Hakabhai's shop. 15. From the testimonies of the complainant Geetaben, mother of Lalu and that of Dakshaben sister of Lalu, the same picture emerges. Dhunaben had informed them that Lalu was seen in the company of the Guna in the afternoon. From the above depositions of the witnesses, the fact that deceased Navneet was last seen together in the company of Guna and was seen particularly, going towards the direction of Guna's house stands concluded. 16. Dhunaben had informed them that Lalu was seen in the company of the Guna in the afternoon. From the above depositions of the witnesses, the fact that deceased Navneet was last seen together in the company of Guna and was seen particularly, going towards the direction of Guna's house stands concluded. 16. It is in light of this that the next link is the question of extra judicial confession that the accused Guna made to Chandubhai needs to be examined. Before examining the testimony of Chandubhai it is evident from the testimonies of the witnesses namely, Geetaben, Santokben and Dakshaben that all of them while looking for Lalu had gone over and met Chandubhai. Chandubhai in the evening when he met the family members of Navneet and the villagers, had informed them about the confession that the accused Guna made to him when he met him at the water tank. Chandubhai is examined as Prosecution Witness No. 8. He also in his deposition states that he had come to know that Lalu is missing when Santokben had approached her in the afternoon. Lalu was last seen together with the accused Guna was an information that he got from Dhunaben and Bharatbhai the Pan shop owner where both Guna and Navneet were seen together. He further testified that when he met Guna in the evening near the water tank, Guna confessed to him of having thrown Lalu in the well of Lakshmanbhai's farm. What comes out from the cross examination of this witness is that his statement along with Santokben and others was recorded on the same day i.e. on the date of the incident. 17. When Chandubhai informed the family members about the accused Guna having confessed to him of having thrown Lalu in the well at around 5 in the evening, all of them went to Lakshmanbhai's farm and found the body of Lalu in the well. 18. Mr. Madansingh Barod, learned advocate for the appellant, would contend that even if the prosecution theory based on the testimonies of Dhunaben and Maheshbhai proved the circumstance that Guna and Navneet were last seen together, merely because of the extra judicial confession made by Guna to Chandubhai, would not in any manner link the accused to the crime, particularly, when the extra-judicial confession is a weak piece of evidence. 19. 19. The fact that confession was made by accused Guna to Chandubhai is not in doubt. The defence has not even questioned the genuineness of the confession made by the accused to Chandubhai. It is not the case of the defence that such a confession was made on inducement or threat or promise. The genuineness of the confession made by Guna to Chandubhai that he had thrown deceased Lalu in the well of Lakshmanbhai's farm needs to be believed particularly, when the fact was seen established when the family members went to the well and found the body of Lalu. 20. Lalu's body was found on the same day in the evening. The body was found from a well. The sketch of the map which is at exh.40 shows that well was in the farm which was at a distance which would lead us to believe that Lalu was taken by Guna to the farm at a distance and thrown in the well. From the sketch it becomes evident that the Well was situated in a field at a distance where Lalu couldn't have walked to, on his own and fall-off into the well accidentally. Unless carried to the spot, access to the well was not possible. The proximity of the time when the body was found together with the last seen together theory preceding the death, which was in the immediate past, linked the commission of the crime at the hands of the accused. In view of the positive evidence which has come on record that the deceased was last seen together with the accused, there is no other conclusion possible but to hold the accused/appellant guilty. 21. From the evidence of Santokben and Chandubhai, the motive to commit the crime by the accused is evident that he was upset at Lalu's father Himmatbhai abusing him in the past which pushed him to commit the act of taking Lalu to the farm at a distance and throwing him into the well and causing his death. Even when the 313 statement of the accused is seen there is only a denial to the suggestions put. 22. Even when the 313 statement of the accused is seen there is only a denial to the suggestions put. 22. Therefore, once the proximity of the body having been found on the same date when seen in light of the last seen together theory, as found from the testimonies of Dhunaben Prosecution Witness No. 6 and Maheshbhai Prosecution Witness No. 10 and having found the confession at the hands of Guna to Chandubhai genuine, the link in the chain of circumstances is complete to establish that Lalu's death was homicidal and was at the hands of the accused. 23. Accordingly, we see no reason to disturb the findings of the learned Sessions Judge in finding the accused guilty for the offences punishable under sections 302 and 364 of the IPC. 24. The appeal is therefore, dismissed. R&P may be sent back to the concerned trial Court.