JUDGMENT : Ram Krishna Gautam, J. 1. This Jail Appeal under 374(2) of Cr.P.C. has been filed by convict appellant Rakesh Kumar @ Mama through Superintendent, District Jail, Kanpur Nagar, under section 383 Cr.P.C. against judgment of conviction and sentence made therein, dated 23.8.2017 passed by learned District & Sessions Judge, Kanpur Nagar in S.T. No. 419 of 2011, State vs. Rakesh Kumar @ Mama, arising out of Case Crime No. 474 of 2010, Police Station Panki, District Kanpur Nagar, whereby appellant Rakesh Kumar @ Mama has been convicted for offences punishable under sections 364, 302, 201 I.P.C. and sentenced to life imprisonment with fine of Rs. 30,000/- and in default three months' additional rigorous imprisonment under section 302 I.P.C. seven years rigorous imprisonment with fine of Rs. 10,000/- and in default two months' additional rigorous imprisonment u/s 364 I.P.C. and three years rigorous imprisonment with fine of Rs. 5000/- and in default one month's additional rigorous imprisonment under section 201 I.P.C. with direction for concurrent running of all sentences, with contention that learned Sessions Judge failed to appreciate facts and law placed before it. Convict appellant, because of his poverty and none to do pairvi for him, was held guilty and sentenced as above, inspite of his being innocent and falsely implicated in the offences. There were material contradictions in testimonies of witnesses, whereas impugned judgment of conviction and sentence was passed on the basis of conjectures and surmises. Evidence furnished in defence were not taken into account. Hence, this appeal for setting aside impugned judgment of conviction and sentence made therein. 2. Heard Sri Imranullah, learned Amicus Curiae, for the appellant and Sri Rishi Chaddha, learned AGA for the State. Perused impugned judgment as well record of Trial Court. 3. From the very perusal of record of Trial Court it is apparent that an information of missing (Ext. Ka1) was filed by Shyam Sunder, son of Indrapal, resident of House No. 181, Saraimita, Police Station Panki, district Kanpur Nagar, before In-charge, Police Station Panki, District Kanpur Nagar, on 24.11.2010 with this contention that informant's son Anuruddh, aged about 10-11 years, had gone on 23.11.2010 at about 2-2.5 P.M. for playing among children but did not come back nor was traceable after search, hence, this information of missing. Subsequently, on the same day i.e. 24.11.2010 a first information report (Ext. Subsequently, on the same day i.e. 24.11.2010 a first information report (Ext. Ka2) was submitted at Police Station Panki, district Kanpur Nagar, by informant Shyam Sunder, son of Indra Bahadur, that his son Anuruddh, aged about 10 years, of whom missing report was lodged on the same day i.e. 24.11.2010, was found dead under bushes behind K.E.S.A. near highway having throat cut injury by sharp edged weapon. Dead body was lying on spot and this information for legal action was submitted. 4. The missing report was entered at report no. 21 at 11.10 A.M. on 24.11.2010 of G.D. Entry of P.S. Panki, District Kanpur Nagar, (Ext. Ka3), which was altered in Case Crime No. 474 of 2010, u/s 364, 201, 201 I.P.C. vide G.D. Entry of the same date i.e. 24.11.2010 (Ext. Ka4) against unknown assailant. Criminal machinery was put under motion. Investigating Officer Hari Om Singh, In-charge Police Station Panki, District Kanpur Nagar, rushed on spot. A pocket diary lying near dead body of deceased was taken in possession and kept under seal with preparation of specimen seal and recovery memo (Ext. Ka13) on spot. Plain and blood stained soil in two different containers was taken and kept under seal with preparation of specimen seal and recovery memo (Ext. Ka14) on spot. 5. Inquest proceeding was got conducted in between 01.15 P.M. to 02.00 P.M. and inquest report (Ext. Ka7) was prepared on spot under handwriting and signature of PW-5. Opinion of witnesses of inquest including Investigating Officer was of murder of deceased Anuruddh by assault over neck by sharp edged weapon. Autopsy examination on dead body was thought to be necessary, hence, dead body was wrapped in a cloth with preparation of specimen seal and relevant police forms, letter to C.M.O. (Ext. Ka8), specimen seal (Ext. Ka9), police form no. 379 (photo of dead body) (Ext. Ka10), challan dead body (Ext. Ka11) and letter to R.I. Dead body under intact sealed position along with aforesaid papers were handed over to C.P. 1466 Man Singh and HG 345 Jagdish Prasad for getting the same examined under post-mortem examination, which was conducted on the dead body of deceased Anuruddh by Dr. B.K. Singh, Medical Officer, K.P.M. Hospital, Kanpur Nagar. 6. Autopsy examination report (Ext. B.K. Singh, Medical Officer, K.P.M. Hospital, Kanpur Nagar. 6. Autopsy examination report (Ext. Ka4) was with mention of ante-mortem injury of incised wound 13 cm x 4 cm on frontal neck extending from 4 cm below right angle of mandible from right side to back of neck 4 cm under occipit bone with cut of blood vessels, vertebra and trachea resulting in death owing to shock and hemorrhage of above antemortem injury. 7. Last seen evidence came on case diary as a result convict appellant was apprehended and upon his disclosure of fact and pointing out, weapon of offence Gandasa having blood stain over it, was recovered in presence independent witnesses Chandra Prakash and Dinesh Kumar. Recovery memo (Ext. Ka5) was prepared on spot by I.O. Hari Om Singh. Reports of Forensic Science Laboratory (Ext. Ka17) and (Ext. Ka 18) were with this finding that materials 1 to 8 sent for chemical examination under sealed docket were of having blood stain over their major part, whereas blood stained soil, half naker and Kalawa were with stain of human blood and Gandasa, Swetar and Kardhani were having blood stain with disintegration. 8. Investigation resulted in filing of charge-sheet (Ext. Ka16) against Rakesh Kumar @ Mama, son of Late Krishna Kumar, permanent resident of Village Gabadaha, P.S. Chaubeypur, district Kanpur, present address residing as a tenant in the house of Lalji Tiwari situate at Saraimita, district Kanpur Nagar. Chief Metropolitan Magistrate, Kanpur Nagar, took cognizance over it on 23.2.2011. Offences charge-sheeted, were exclusively triable by Court of Sessions, hence, the Magistrate committed case to Court of Sessions. Chief Metropolitan Magistrate, Kanpur Nagar, took cognizance over it on 23.2.2011. Offences charge-sheeted, were exclusively triable by Court of Sessions, hence, the Magistrate committed case to Court of Sessions. Case was transferred to Court of Additional Sessions Judge, Kanpur Nagar, who, after hearing leaned D.G.C. (Criminal) and learned counsel for accused, framed following charges against accused Rakesh Kumar @ Mama on 23.4.2011: ^^eSa] MkŒ fot; y{eh] vij tuin U;k;k/kh'k] dksVZ uaŒ 2] dkuiqj uxj] vki vfHk;qDr jkds'k dqekj mQZ ekek ij fuEufyf[kr vkjksi yxkrh gwa %& ¼1½ ;g fd fnukad 23-11-2010 dks le; yxHkx 3 cts xzke ljk;ehrk cgn Fkkuk iudh dkuiqj uxj] vuq:) ds ?kj ds ikl frjkgs ij cPpksa ds lkFk [ksyrs le; vuq:) mez 10 o"kZ dks fof/kiw.kZ laj{kdrk ls mldh laj{kd dh lgefr ds fcuk gR;k djus ds bjkns ls vigj.k dj vius dejs ljk;ehrk ij ys x;sA bl Ádkj vkius HkkŒnaŒfoŒ dh /kkjk 364 dk n.Muh; vijk/k fd;k gS tks esjs ÁlaKku esa gSA ¼2½ ;g fd mDr fnukad dks gh yxHkx 3 cts fnu ds i'pkr xzke ljk;ehrk esa vig~rk vuq:) mez 10 o"kZ mijksDr dks vki dslk ds ikl ccwy dh >kfM+;ksa dh ydM+h dkVus ds cgkus gR;k ds mn~ns'; ls ys x;s o >kfM+;ksa ds chp cus ,d xM~<s esa iSj ls Bksdj ekjdj fxjkdj xaMkls ls xnZu dkVdj gR;k dj nhA bl Ádkj vkius HkkŒnaŒfoŒ dh /kkjk 302 dk vijk/k fd;k gS tks esjs ÁlaKku esa gSA ¼3½ ;g fd mDr fnukad] le; o LFkku ij vkius lk{; dks foyksfir djus ds vk'k; ls e`rd vuq:) dh yk'k dks >kfM+;ksa esa cus xM~<s esa fNik fn;kA bl Ádkj HkkŒnaŒfoŒ dh /kkjk 201 dk vijk/k fd;k gS tks esjs ÁlaKku esa gSA ,nr}kjk eSa funsZ'k nsrh gwa fd vki vfHk;qDr dk fopkj.k mijksDr vijk/k ds fy, bl U;k;ky; }kjk fd;k tk;sxkA** "That on 23.11.2010 at about 3.00 P.M. at Village Saraimita within area of Police Station Panki, Kanpur Nagar, you kidnapped Anuruddh, aged about 10 years, while he was playing near his village at Tiraha with other children from his parents lawful guardianship without their consent with a view to commit murder him, thereby you committed offence punishable u/s 364 I.P.C. within cognizance of this Court. On above date about 3.00 P.M. and thereafter you took abductee Anuruddh, aged about 10 years, behind K.E.S.H.A. under bushes of acacia tree (Babool tree) with intention to kill him and thereafter you gave him a hit of your leg in a trench and after following Anuruddh did commit murder by cutting his throat with Gandasa thereby you committed offence of murder punishable u/s 302 I.P.C. within the cognizance of the Court. You on above date, time and place with a view to evade evidence of offence of murder got the dead body of Anuruddh hided in the trench, thereby you committed offence punishable u/s 201 I.P.C. within the knowledge of the Court." (English translation by Court) 9. Charges were read over and explained to accused Rakesh Kumar @ Mama, who pleaded not guilty and claimed for trial. 10. Prosecution examined PW-1 informant Shyam Sunder, PW-2 S.I. Deepak Chandra Dixit, In-charge police outpost, the then Head Constable Moharrir of P.S. Panki, PW-3 Dinesh Kumar, PW-4 Dr. B.K. Singh, PW-5 S.I. Dedh Chhail and PW-6 Chhaviram. 11. With a view to have explanation, if any and version of accused over incriminating evidence furnished by prosecution, he was examined and his statement u/s 313 Cr.P.C. was recorded. Wherein the accusation was denied with contention that he is innocent, has been falsely implicated, not aware of lodging of missing report (Ext Ka1) or lodging of first information report (Ext. Ka2) or inquest proceeding conducted there at or registration of case crime number. He had never confessed or disclosed any fact nor there was any recovery of Gandasa on his pointing out. It was a planted recovery. 12. Smt. Kalpna Devi, wife of informant Shyam Sunder, was examined as DW-1. 13. Learned Sessions Judge, Kanpur Nagar, got this file back to his court and after hearing arguments of learned D.G.C. (Criminal) as well learned Amicus Curiae for appellant passed impugned judgment of conviction and sentence made therein, mentioned as above, against which this appeal. 14. 12. Smt. Kalpna Devi, wife of informant Shyam Sunder, was examined as DW-1. 13. Learned Sessions Judge, Kanpur Nagar, got this file back to his court and after hearing arguments of learned D.G.C. (Criminal) as well learned Amicus Curiae for appellant passed impugned judgment of conviction and sentence made therein, mentioned as above, against which this appeal. 14. Learned Amicus Curiae vehemently argued that informant PW1 in his testimony has said that there was close relationship and frequent visit of convict appellant Rakesh Kumar @ Mama at the house of informant but after this missing of Anuruddh he neither received any telephonic call nor was available at his residence, whereas DW-1, wife of informant, in her testimony, has stated that Rakesh Kumar @ Mama was not in relationship nor had ever visited her house. PW-3 in his testimony has stated that accused Rakesh Kumar @ Mama was in company of the persons making search of Anuruddh but learned Sessions Judge failed to take notice of it. Informant had said that it was mother of landlord, who apprised that Anuruddh was in company of appellant Rakesh Kumar @ Mama but name of this lady could not be told by informant nor she was examined nor named first information report was got lodged against convict appellant. PW-2 has proved the report to be not under signature of informant and was with incorrect parentage of informant, but reason of writing this incorrect parentage could not be explained. PW-4 has stated that informant was all alone at the time of registration of first information report on 24.11.2010, whereas recovery of dead body upon pointing out of accused Rakesh Kumar @ Mama at 11.00 A.M. of 24.11.2010 has been said by PW-3, but even then report was lodged against unknown person. Hence, there remained suspicion and prosecution failed to prove its case beyond reasonable doubt. 15. PW-1 informant Shyam Sunder in his testimony, in examination in chief, has said that he was residing at House No. 181, Saraimita, within the area of Police Station Panki, District Kanpur Nagar. His son Anuruddh, aged about 10 years, was reported to be out of house since 2-2.5 P.M. and did not come back, by his daughter at about 6.00 P.M. on 23.11.2010. He made search of his son. His son Anuruddh, aged about 10 years, was reported to be out of house since 2-2.5 P.M. and did not come back, by his daughter at about 6.00 P.M. on 23.11.2010. He made search of his son. Persons of nearby houses of same Mohalla were also searching his son but of no clue, hence, at about 11 to 11.15 A.M. of 24.11.2010 missing report was lodged at police station Panki. Report was submitted in form of application, which was proved and exhibited as Exhibit Ka1. While coming back from police station, he received an information about lying of dead body of his son behind bush near K.E.S.A. he along with many others of Mohalla reached the place and found dead body of Anuruddh. Hence, subsequent report of murder of Anuruddh by cutting his neck by sharp edged weapon was got lodged at police station Panki on the same day, which was on record, proved and exhibited as Exhibit Ka2. Police rushed on spot, performed inquest proceeding under signature of this witness, which is on record. Accused Rakesh Kumar @ Mama was very close to him. On 25.11.2010 Chhaviram and Sandeep residents of same Mohalla came to him and apprised that while they were coming back after doing work in factory area on 23.11.2010 at about 3.00 P.M. they had seen Rakesh Kumar @ Mama in company of Anuruddh, moving towards bushes behind K.E.S.A. and thus, created belief that accused Rakesh Kumar @ Mama had murdered Anuruddh, which was apprised to Investigating Officer. Accused Rakesh Kumar @ Mama was apprehended and on his pointing out weapon of offence Gandasa was recovered. This registration of missing report and thereafter first information report, under his signature, has been further corroborated by testimony of PW-2 S.I. Deepak Chandra Dixit, who was posted as Head Moharrir at police station Panki on 24.11.2010 by his testimony that while being posted at police station Panki on 24.11.2010, Constable Clerk Nand Kishore in his handwriting and signature had registered missing report at 11.10 A.M. on the report submitted by informant Shyam Sunder. Original G.D. was before him at the time of recording of his testimony. He identified handwriting and signature of Constable Clerk Nand Kishore, which was carbon copy prepared under one and common process, compared it from original G.D. and proved and exhibited as Exhibit Ka3. Original G.D. was before him at the time of recording of his testimony. He identified handwriting and signature of Constable Clerk Nand Kishore, which was carbon copy prepared under one and common process, compared it from original G.D. and proved and exhibited as Exhibit Ka3. On same day, at about 13.15 P.M. informant Shyam Sunder again came at police station and submitted report regarding murder of his son Anuruddh and lying of his dead body behind bushes near K.E.S.A. which was entered at G.D. Entry no. 24 at 13.15 P.M. on 24.11.2010. This missing report was converted into an offence of murder and was registered as Case Crime No. 474 of 2010, u/s 364, 302, 201 I.P.C. This G.D. entry was proved and exhibited as Exhibit Ka4. In cross examination there is no contradiction, exaggeration and embellishment in his testimony nor there is any dispute or any explanation in answer to question put under section 313 regarding his testimony. 16. PW-1 Shyam Sunder in his cross-examination has said that Exhibit Ka1 is with wrong parentage, whereas parentage written is Indrapal and in Exhibit Ka2 his parentage is Indra Bahadur, but this change is of no material effect. Because it has categorically been stated that missing report was lodged on the same day when this report of offence of murder was lodged on 24.11.2010. Missing of Anuruddh was brought in the knowledge of this witness in the evening at about 6.00 P.M. on 23.11.2010 and he was in search of his son and ultimately got missing report lodged on 24.11.2010 on which first information report was lodged. 17. Hence, on overall appreciation of testimony of PW-1 there is no material contradiction, exaggeration or embellishment and minor discrepancies, being argued vehemently by learned Amicus Curiae for the appellant, are of such nature, which makes this witness a natural witness and not tutored one. 18. PW-5 S.I. Dedh Chhail, in his testimony, has stated that while being posted as S.I. at police station Panki on 24.11.2010, he conducted inquest proceeding of deceased Anuruddh, aged about 10 years, in Case Crime No. 474 of 2010, u/s 364, 302, 201 I.P.C. at village Saraimita near bushes behind K.E.S.A. Murder was committed by sharp edged weapon by assault over neck and inquest report (Ext. Ka7), letter to C.M.O. (Ext. Ka8), specimen seal (Ext. Ka9), Photo of dead body (Ext. Ka10), Challan of dead body (Ext. Ka7), letter to C.M.O. (Ext. Ka8), specimen seal (Ext. Ka9), Photo of dead body (Ext. Ka10), Challan of dead body (Ext. 11) were in his handwriting. They were proved by him and exhibited. 19. Investigating Officer Hari Om Singh, the then Station Officer, Police Station Panki, died in a road accident and could not be examined by prosecution. But PW-5 was fully aware with handwriting and signatures of I.O. Hari Om Singh because of doing work with him, hence, spot map, recovery memos of small pocket diary, plain and blood stained soil, weapon used in committing offence Gandasa under blood stain, dockets sent for chemical examination to Forensic Science Laboratory, Agra and charge sheet prepared under handwriting and signatures of I.O. Hari Om Singh were secondarily proved by PW-5. Spot map was exhibited as Exhibit Ka12, recovery memo of diary as Exhibit Ka13, recovery memo of plain and blood stained soil as Exhibit Ka14, docket as Exhibit Ka15 and charge-sheet as Exhibit Ka16. Report of Forensic Science Laboratory was exhibited as Exhibit Ka 17 and Serology report as Exhibit Ka18. Docket obtained from Forensic Science Laboratory was opened in the Court. Weapon of offence Gandasa marked as material exhibit 1 and clothes marked as material exhibit 2 were proved by this witness PW-5. No substantial question has been put by learned counsel for defence in cross-examination nor there is any dispute nor any answer or explanation except unawareness in the answer to question put u/s 313 Cr.P.C. regarding testimony of PW-5. Hence, it is almost un-rebutted testimony, wholly reliable and worth believing. 20. This has further been corroborated by testimony of PW-4 Dr. B.K. Singh that while being posted as Senior Surgeon at K.P.M. Hospital, Kanpur Nagar, on 25.11.2010 he was on postmortem duty and at 1.25 P.M. he conducted postmortem examination on dead body of Anuruddh, aged about 10 years, son of Shyam Sunder, brought by Constable Man Singh and Home Guard Jagdish Prasad of Police Station Panki under sealed and intact position. On external examination body was of average built with passing of rigor mortis from upper limb but present in lower limbs, eyes were closed and mouth was semi open. On external examination body was of average built with passing of rigor mortis from upper limb but present in lower limbs, eyes were closed and mouth was semi open. An incised wound 13 cm x 4 cm over front of neck starting from 4 cm below right angle of mandible from right side up to back of neck 4 cm under occipit bone with cut of blood vessels, vertebra and trachea were under antemortem injury. In internal examination trachea and vessels of neck were found cut. Two ounce liquid was inside stomach. Membrane was normal, small and large intestine contained gas, semi-digested food and fecal material. Cause of death was owing to shock and hemorrhage of above antemortem injury. Death was by assault of Gandasa over neck. It was from 2-2.5 P.M. till any time of night of 23.11.2010. Postmortem report was prepared under his handwriting and signature at the time of examination. He proved it and was exhibited as Exhibit Ka6. A suggestive question has been put to this witness that this injury may occur by falling on sharp edged weapon but this was answered in negative. 21. Thus, it was a clear cut case of homicide by cutting neck and vessels by assault of sharp edged weapon Gandasa over neck i.e. murder punishable u/s 302 I.P.C. 22. In Hanumant vs. State of Madhya Pradesh, (1952) AIR SC 343, as long back as in 1952, Hon'ble Mahajan, J. expounded various concomitant of proof of a case based purely on circumstantial evidence and said: ".......circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved......it must be such as to show that within all human probability the act must have been done by the accused." (Emphasis added) 23. In Hukam Singh vs. State of Rajasthan, (1977) AIR SC 1063, Court said, where a case rests clearly on circumstantial evidence, inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with innocence of accused or the guilt of any other person. 24. In Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) AIR SC 1622 Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that the chain is complete. 24. In Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) AIR SC 1622 Court while dealing with a case based on circumstantial evidence, held, that onus is on prosecution to prove that the chain is complete. Infirmity or lacuna in prosecution cannot be cured by false defence or plea. Conditions precedent before conviction, based on circumstantial evidence, must be fully established. Court described following condition precedent: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved. (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (Emphasis added) 25. In Ashok Kumar Chatterjee vs. State of Madhya Pradesh, (1989) AIR SC 1890, Court said: "..........when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused. (3) the circumstances, taken cumulatively; should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." (Emphasis added) 26. (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." (Emphasis added) 26. In C. Chenga Reddy and Others vs. State of Andhra Pradesh, (1996) 10 SCC 193 , Court said: "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." (Emphasis added) 27. In Bodh Raj @ Bodha and Others vs. State of Jammu and Kashmir, (2002) 8 SCC 45 Court quoted from Sir Alfred Wills, "Wills Circumstantial Evidence" (Chapter VI) and in para 15 of judgment said: "(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum. (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability. (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits. (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt. (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted." (Emphasis added) 28. The above principle in respect of circumstantial evidence has been reiterated in subsequent authorities also in Shivu and Another vs. Registrar General High Court of Karnataka, (2007) 4 SCC 713 and Tomaso Bruno vs. State of U.P. (2015) 7 SCC 178 . 29. In Ganesh K. Gulve vs. State of Maharashtra, (2002) AIR SC 3068 Court has propounded as under: "In order to appreciate the evidence, the Court is required to bear in mind the set up and environment in which the crime is committed. 29. In Ganesh K. Gulve vs. State of Maharashtra, (2002) AIR SC 3068 Court has propounded as under: "In order to appreciate the evidence, the Court is required to bear in mind the set up and environment in which the crime is committed. The level of understanding of the witnesses. The over jealousness of some of near relations to ensure that everyone even remotely connected with the crime be also convicted. Everyone's different way of narration of same facts. These are only illustrative instances. Bearing in mind these broad principles, the evidence is required to be appreciated to find out what part out of the evidence represents the true and correct state of affairs. It is for the courts to separate the grain from the chaff." 30. In present case in hand, none of witnesses are with ocular testimony of offence of murder. Rather trial was based on circumstantial evidence coupled with confession, making disclosure of fact following recovery of weapon of offence, recovery of blood stained Gandasa upon pointing out of accused- convict appellant from nearby bushes, place of occurrence of murder, last seen testimonies of two eyewitness, who had seen the deceased with accused-appellant Rakesh Kumar @ Mama on the date and time of missing in close proximity of time near place of recovery of dead body with no intermediate clue. 31. Missing report (Ext. Ka1) coupled with ocular testimonies of PW-1 informant and PW-2 formal police witness, who got the same lodged at police station, establishes that Anuruddh, aged about 10 years, who was out of his house for playing with children, since 2 to 2.30 P.M. of 23.11.2010 did not turn up and was missing. He was searched vehemently and in absence of any trace this report was got lodged. Subsequently after recovery of dead body under throat cut situation F.I.R. (Ext. Ka2) was lodged on the same day and oral testimony of informant PW-1 coupled with testimony of PW-2 as well documentary evidence written report (Ext. Ka2), chick F.I.R. (Ext. Ka3), G.D. Entry (Ext. Ka4) establishes incident, lodging of report for offence of kidnapping and murder along with offence of hiding of evidence against unknown assailant. This was without specific accusation against specific person i.e. informant or other family member were with no animosity for lodging report against convict appellant. Ka2), chick F.I.R. (Ext. Ka3), G.D. Entry (Ext. Ka4) establishes incident, lodging of report for offence of kidnapping and murder along with offence of hiding of evidence against unknown assailant. This was without specific accusation against specific person i.e. informant or other family member were with no animosity for lodging report against convict appellant. But the information given two persons of same locality to informant about last seen in close proximity of time developed belief of informant, who gave this clue to Investigating Officer, upon which convict appellant was apprehended, who made confession as well as disclosure of fact followed by recovery of weapon of offence having blood stain over it. 32. Section 359 I.P.C. defines kidnapping to be of two kinds; kidnapping from India and kidnapping from lawful guardianship. 33. Section 361 I.P.C. provides Kidnapping from lawful guardianship - Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. 34. Section 364 I.P.C. provides punishment in specified classes of kidnapping - whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. 35. In the present case deceased Anuruddh was out for playing among children and was of ten years of age, was seen in company of convict appellant, who took him behind K.E.S.A. in bushes, where he was murdered and this taking was with no consent of lawful guardianship of informant (father) or other family member. Hence this kidnapping was from lawful guardianship for the purpose of murder, as murder has resulted out of this kidnapping. 36. Hence this kidnapping was from lawful guardianship for the purpose of murder, as murder has resulted out of this kidnapping. 36. Place of occurrence is the place from where dead body was recovered because blood stained soil taken from the spot and weapon of offence recovered from nearby place as well as lying of dead body under above throat cut position was of above spot and under serological report this weapon of offence Gandasa recovered from nearby of spot was having blood stain over it and soil too was with blood stain. Hence this was place of occurrence. 37. Inquest report (Ext. Ka7) coupled with autopsy examination report (Ext. Ka4) and oral testimony of PW-4 Dr. B.K. Singh established death of Anuruddh, aged about 10 years, owing to above written antemortem injury given by sharp edged weapon resulting cut of vessels and trachea over neck. Hence this was not a natural death or accidental death. Rather culpable homicide amounting to murder punishable under section 302 I.P.C. 38. PW-6 Chabiram is a crucial witness of last seen, who in his testimony, in examination in chief, has stated that being a factory labour in 2010 he was residing as tenant in House No. 181 Saraimita, within area of police station Panki, district Kanpur Nagar. He was fully acquainted with accused, present in docket of court i.e. Rakesh @ Mama because of his being resident of same Mohalla. This witness was to go to his village on 23.11.2010, hence, came from his job after lunch break to his residence at Saraimita. Sandeep was accompanying him. At 3.00 P.M. they saw Rakesh @ Mama together with Anuruddh, son of Shyam Sunder (informant) going towards bushes behind K.E.S.A. He went his village and came back on 25.11.2010. He knew about missing of Anuruddh. He along with Sandeep apprised informant-Shyam Sunder about above last seen. This was told to Sub Inspector also. This witness was not cross-examined on the date on which he was examined in chief i.e. 2.12.2016. Rather he was resumed after about one month ten days on 12.1.2017 in which he reiterated his statement of examination in chief that he was on his duty and was to go to his village on 23.11.2010, hence, took leave after lunch break and was coming back for going to his village. Rather he was resumed after about one month ten days on 12.1.2017 in which he reiterated his statement of examination in chief that he was on his duty and was to go to his village on 23.11.2010, hence, took leave after lunch break and was coming back for going to his village. He witnessed accused in company of deceased at about 2.40 to 3.00 P.M. going towards bushes behind K.E.S.A. He stated as under: "Ghatna ki tarikh 23.10.2010 samay lagbhag 3.00-2.45 ka tha. Maine Rakesh Mama ko Anuruddh ke sath KESA ke pas jhariyon ke pichhe jate dekha tha. Yah bat maine jo dekha tha wo bata raha hun, kisi ke kahne par nahin bata raha hun. Maine daroga ji ko bhi apane bayano main bataee thi." 39. xxx xxx xxx 40. There is no inconsistency in his testimony nor any exaggeration or embellishment. He has fully proved last seen of deceased being taken towards bushes behind KESA by accused-appellant Rakesh @ Mama at about 2.45 to 3.00 P.M. on 23.11.2010 i.e. very corresponding to time of missing of deceased and recovery of dead body from above spot has been proved by formal witnesses. Hence, death owing to antemortem injury, written in autopsy examination report (Ext. Ka4) proved by PW-4 Dr. B. K. Singh with opinion of infliction of injury and death resulting to it from 2.45 P.M. to 3.00 P.M. to night of 23.11.2010 i.e. a close proximity of time with no probability of some one else intervening in between has been proved by this witness for which there is no explanation of convict- appellant in reply to question no. 18 put under section 313 Cr.P.C. 41. PW-3 Dinesh Kumar is another witness of fact, though he is a relative of informant, but he has proved his presence on place of occurrence on the basis of information of missing of Anuruddh. He stated on oath that after receiving information of missing of Anuruddh on 23.11.2010 he came to Kanpur at about 10.30 P.M. on 23.11.2010 when Shyam Sunder and his family members were in search of Auruddh. This search started at 7.00 A.M. on 24.11.2010. Dead body was recovered in his presence at about 11.15 A.M. This was firstly seen by accused-appellant Rakesh @ Mama but at that time Shyam Sunder was not there because he had previously gone to police station for getting a missing report lodged. This search started at 7.00 A.M. on 24.11.2010. Dead body was recovered in his presence at about 11.15 A.M. This was firstly seen by accused-appellant Rakesh @ Mama but at that time Shyam Sunder was not there because he had previously gone to police station for getting a missing report lodged. Police brought accused-appellant Rakesh @ Mama by Jeep. Under evidence of this witness Jeep was halted near Kharanja road where he, Chandra Prakash, Shyam Sunder Chhavinath and others were present. Rakesh @ came down from Jeep, went towards north for about 40 steps in bushes situated there at. He got recovered a Gandasa (sharp edged weapon) having wooden handle and a diary. This Gandasa was wrapped in a cloth and sealed at spot with preparation of specimen seal and recovery memo, which was read over to this witness and he had put his signature over recovery memo. His statement was recorded by Investigating Officer. It is true that he has not witnessed the murder committed by accused-appellant but has seen above recover upon pointing out of accused-appellant. There is no material contradiction or embellishment in his testimony. Rather he has formally proved Exhibit Ka5 recovery of weapon of offence upon pointing out of accused-appellant Rakesh @ Mama for which he is wholly reliable. 42. Investigating officer collected these evidence and had recovered weapon of offence upon pointing out of accused-appellant Rakesh @ Mama. Investigating Officer Hari Om Singh had died, hence, his evidence was proved as secondary evidence by PW-5 S.I. Dedh Chhail in which material exhibit 1 and material exhibit 2 i.e. weapon of offence Gandasa along with recovery memo of this recovery of Gandasa (Ext. Ka5) has been formally proved by PW-5. Hence Exhibit Ka5 coupled with testimonies of PW-6 Chhabiram and PW-3 Dinesh Kumar has fully proved the weapon of offence Gandasa having blood stain over it recovered upon pointing out of convict appellant Rakesh @ Mama. Hence, there was complete chain by adding each proved links being offence of kidnapping punishable u/s 364 I.P.C. offence of murder punishable u/s 302 I.P.C. and offence of evading evidence punishable u/s 201 I.P.C. which established the commission of offence by convict appellant with no chance of intervention by any one else. 43. Hence, there was complete chain by adding each proved links being offence of kidnapping punishable u/s 364 I.P.C. offence of murder punishable u/s 302 I.P.C. and offence of evading evidence punishable u/s 201 I.P.C. which established the commission of offence by convict appellant with no chance of intervention by any one else. 43. So far as testimony of DW-1 Kalpana Devi is concerned, admittedly, she was ot present on the place of occurrence or at her home on the day of occurrence. She was at her parental house, where she received information of missing of her son. Hence, her testimony regarding this accusation is of no avail excepting one point that convict appellant Rakesh @ Mama was of no visit to the home of informant for which this testimony was unbelievable. 44. This has never been disputed by accused/convict appellant, whereas fully proved by prosecution that convict appellant Rakesh @ Mama was resident in same Mohalla at the time of this occurrence and was fully acquainted by prosecution witnesses. He was lastly seen in close proximity of time of commission of this occurrence by PW-6 Chhabiram and upon his pointing out blood stained weapon of offence Gandasa was recovered. Thus, testimony of DW-1 is of no substance for creating any doubt what to say a reasonable doubt. 45. Section 25 of Evidence Act, 1872 provides that no confession made to a police officer, shall be proved as against a person accused of any offence. 46. But Section 27 of Evidence Act, 1872, is an exception to this general rule, which provides how much of information received from accused may be proved-provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 47. For application of section 27 of the Evidence Act the statement must be split into its components and to separate the admissible portion. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected, as has been propounded by Apex Court in Smt. Selvi vs. State of Karnataka, (2010) AIR SC 1974. 48. Only those components or portions which were the immediate cause of the discovery would be legal evidence and not the rest which must be excised and rejected, as has been propounded by Apex Court in Smt. Selvi vs. State of Karnataka, (2010) AIR SC 1974. 48. In the present case PW-6 Chhabiram and PW-3 Dinesh Kumar have proved this recovery, which has been assailed to be related witness, whereas Apex Court in State of Madhya Pradesh vs. Rammi, (1999) 1 JLJ 49 has propounded that where a witness was related to deceased and resident of another place, even then his evidence regarding recovery of weapons and clothes cannot be discarded. 49. A fact discovered in an information supplied by the accused in his disclosure statement is a relevant fact and that is only admissible in evidence if something new is discovered or recovered from the accused, which was not within the knowledge of the police before recording the disclosure statement of the accused. It is not necessary that a disclosure statement must be signed by maker of the same or that thumb impression must be affixed to it. 50. In the present case upon arrest convict appellant did disclosure followed by recovery of weapon of offence having blood stain over it corresponding to injury found on person of deceased from nearby place of occurrence. In furtherance of above, disclosure was fully deposed and proved by witnesses of recovery. 51. To conclude we find the assailed judgment and sentence made therein, fully based on facts and evidence placed on record before Trial Judge. There is no illegality, irregularity or incorrectness in appreciation of facts and law placed before Trial Court and requiring any interference by this Court. 52. So far as sentence regarding appellant is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual case. 52. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. 52. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of Court to constantly remind itself that right of victim, and be it said, on certain occasions persons aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime, which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with the crime has been perpetrated, enormity of crime warranting public abhorrence and it should respond to society's cry for justice against the criminal. Sumer Singh vs. Surajbhan Singh and Others, (2014) 7 SCC 323 , Sham Sunder vs. Puran, (1990) 4 SCC 731 , State of M.P. vs. Saleem, (2005) 5 SCC 554 , Ravji vs. State of Rajasthan, (1996) 2 SCC 175 . 53. Hence, applying the principles laid down by the Apex Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, we find that punishment imposed upon the appellant by Trial Court in impugned judgment and order is not excessive or exorbitant and no question arises to interfere in the mater on the point of punishment imposed upon them. 54. In view of the above facts and circumstances, impugned judgment and order dated 23.8.2017 deserves to be affirmed and appeal is liable to be dismissed. 55. In the result, the Criminal Appeal is dismissed. Impugned judgment and order dated 23.8.2017, detailed above, is hereby confirmed/affirmed. 54. In view of the above facts and circumstances, impugned judgment and order dated 23.8.2017 deserves to be affirmed and appeal is liable to be dismissed. 55. In the result, the Criminal Appeal is dismissed. Impugned judgment and order dated 23.8.2017, detailed above, is hereby confirmed/affirmed. The appellant, who is in jail, shall serve out the sentence awarded to him by the Trial Court. 56. Copy of this order along with lower Court record be sent to Court concerned forthwith. 57. A copy of this order be also sent to Appellant through concerned Jail Superintendent. 58. Before parting, we find it appropriate to place on record our commendation to learned counsel, who has argued this appeal as Amicus Curiae with ability and actually assisted the Court effectively. We provide that he shall be paid counsels fee as Rs. 11,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Mr. Imranullah, Amicus Curiae, without any delay and in any case, within 15 days from the date of receipt of copy of this judgment.