JUDGMENT : A.S. SUPEHIA, J. 1. Since it was noticed by us that the convict - Aman S/o Ashok Narayan Panchal (Pawar) is aged around 25 years and while considering the evidence while dealing with the application seeking suspension of sentence, it was found that the conviction of the accused by the trial court appears to be perverse, we have heard the learned advocates for the respective parties on the main appeal itself. 2. Hence, after hearing the learned advocates for the respective parties at length, we are deciding the captioned appeal. 3. The convict has already undergone 6 years 3 months and 27 days incarceration as on 21.02.2024. 4. The captioned Criminal Appeal is filed under Section 374 of the Code of Criminal Procedure, 1973, challenging the judgment and order of conviction and sentence dated 11th November 2022 passed by the Special (Atrocity) Judge and 5th Additional Sessions Judge, Anand, in Special (Atrocity) Case No. 94 of 2017, whereby the accused has been charged for the offences punishable under Sections 363, 302 and 201 of the Indian Penal Code, 1860 (IPC) as well as under Section 3(2)(5-a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 5. The trial court, after examining the evidence, convicted the accused and sentenced him to suffer life imprisonment with fine of Rs. 1,500/- and in default of payment of fine, to further suffer simple imprisonment for three months, for the offence under Section 302 of the IPC; for the offence under Section 363, the accused has been sentenced to undergo simple imprisonment for three years with fine of Rs. 1,000/- and in default of payment of fine, to further undergo simple imprisonment for one month; for the offence under Section 201, the accused has been sentenced to undergo simple imprisonment for two years with fine of Rs. 500/- and in default of payment of fine, to further undergo simple imprisonment for one month. 6. The case of the prosecution, as per the charge (Exh.4), is that on 27th September 2017 at around 17:30 hours, the present accused had kidnapped the deceased, who was 11 years 3 months and 26 days of age and murdered him since he had seen the accused with his sister - Payal (PW-16). It is the case of the prosecution that the accused kidnapped the deceased on a motorcycle bearing Reg. It is the case of the prosecution that the accused kidnapped the deceased on a motorcycle bearing Reg. No. GJ-23-DJ-1570 and thereafter he committed his murder and threw his dead body at Mathupura sim near the canal, after strangulating him. The charge under the Atrocity Act as mentioned herein above was also framed against the accused. 7. Since the deceased was missing on 27th September 2017, an FIR came to be registered on 28th September 2017 by the father of the deceased (PW-1) Sunilbhai Becharbhai Vasava and an offence under Section 363 of the IPC was registered. Thereafter, the dead body of the deceased was found on 30th September 2017. Prior to the discovery of the dead body, it is the case of the prosecution that the Investigating Officer, through his reliable sources, had found out that the kidnapping and murder was committed by the present accused. This fact had been stated by the Investigating Officer (PW-20) Navalsinh Narubhai Jadav in his evidence at Exh.67. 8. Learned advocate Mr. Thakkar appearing for the accused has submitted that the entire case of the prosecution is premised on circumstantial evidence and there is no link established by the prosecution to suggest that the present accused has committed the offence. He has submitted that the motive alleged by the prosecution for commission of the crime appears to be that the sister of the deceased was being harassed by the accused, as he wanted to talk with her. He has referred to the deposition of PW-16, Payalben Sunilbhai Vasava, who is the sister of the deceased, and has submitted that her evidence does not inspire confidence as she, in her police statement, has never disclosed such facts. Similarly, he has referred to the testimony of the complainant (PW-1), Sunilbhai Becharbhai Vasava, as well as the mother of the complainant (PW-3) Ramilaben Sunilbhai Vasava and has submitted that both of them have remained silent in naming the accused, and only after the accused was arrested on 10th October 2017, the story is created with regard to kidnapping and murder by the accused. It is submitted by him that there is no direct evidence of any witness which would suggest that the deceased was last seen together with the present accused. 9. Learned advocate Mr. It is submitted by him that there is no direct evidence of any witness which would suggest that the deceased was last seen together with the present accused. 9. Learned advocate Mr. Thakkar has submitted that only because of the contents of the discovery panchanama (pointing panchnama) at Exh.33 that the trial court has convicted the present accused. It is submitted that though the prosecution has alleged that the accused has confessed to his crime, however, there is no evidence in this regard as no confessional statement under Section 164 of the Code of Criminal Procedure, 1973 has been collected or produced by the prosecution. Thus, it is urged before this Court that the conviction recorded by the trial court is required to be quashed and set-aside. 10. Per contra, learned APP, while vehemently opposing the present Appeal, has submitted that the judgment and order of the trial court does not require any interference by this Court. He has referred to the deposition of the sister of the deceased (PW-16), Payalben Sunilbhai Vasava, and submitted that her evidence categorically reveals that the accused was having forcing her to have an affair and the deceased had seen both of them, therefore, the accused had decided to eliminate the deceased. Learned APP has further referred to the forensic evidence, FSL report at Exh.68 and submitted that the FSL report also reveals that the deceased was strangulated. It is further submitted that as per the case of the prosecution the deceased was taken on the motorcycle by the present accused and hence, it is alleged by him that the conviction recorded by the trial court may not be interfered with. 11. While adopting most of the arguments which are advanced by the learned APP, learned advocate Mr. Apurva Jani appearing for the respondent no. 2 has submitted that there is ample evidence which would suggest that the present accused has committed the offence. He has further submitted that in order to eliminate the deceased, the accused had enticed him on his motorcycle and thereafter committed his murder by strangulating him. He has further submitted that the discovery panchanama would clearly reveal that the accused was having the knowledge about the place of the offence, from where the dead body was found. 12. Learned advocate Mr. He has further submitted that the discovery panchanama would clearly reveal that the accused was having the knowledge about the place of the offence, from where the dead body was found. 12. Learned advocate Mr. Jani has submitted that in order to see that the affair between the accused and the sister of the deceased is not known to anyone and as the deceased had seen both of them together, the accused committed his murder. Learned advocate Mr. Jani has referred to the deposition of the complainant as well as the mother of the deceased and has submitted that their evidence clearly points out the complicity of the accused in the offence. Therefore, he has urged that the present appeal may not be entertained. 13. We have heard the learned advocates for the respective parties, scaled the evidence as pointed out by them and also perused the findings of the trial court. The entire case of the prosecution is premised on the circumstantial evidence. There is no eye-witness, who has actually seen the deceased along with the present accused. The theory of last seen together is also not established in the present case. 14. The trial court has heavily placed reliance on the discovery panchanama, Exh.33, wherein it is recorded that the accused had pointed out the place from where the dead body of the deceased was concealed by him. Though, one of the pancha, PW-32, Imtiyazkhan Pathan, has supported the panchnama, the same has to be ignored since it does not satisfy the requirement of section 27 of the Evidence Act. The Supreme Court in the case of Subramanya vs. State of Karnataka, AIR 2022 SC 5110 has clarified the manner in which the panchanama is required to be drawn for accepting its evidentiary value. It is observed thus: “82. Keeping in mind the aforesaid evidence, we proceed to consider whether the prosecution has been able to prove and establish the discoveries in accordance with law. Section 27 of the Evidence Act reads thus: “27. 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.” 83. 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.” 83. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act. 84. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.” Thus, the law requires that the Investigating Officer has to draw the discovery panchnama as contemplated under section 27 of the Evidence Act. In the instant case, in the discovery panchanma at Exh.32, no statement of the accused is recorded under section 27 of the Evidence Act. The panchnama only refers to the statement of panchas, who have stated that “the accused wants to voluntary show something.” This will not satisfy the requirement of section 27 of the Act. There is another aspect which is worth noting which makes the discovery panchnama vulnerable. In the present case, before the place from where the dead body was found was pointed out by the accused, such place was already known to the public since the dead body was found on 30th September 2017. The accused was arrested on 10th October 2017 and the panchnama was prepared on 11.10.2017. Thus, the trial court has fell in error in placing reliance on the panchnma for convicting the accused. Even, if it is presumed that the circumstance of pointing out of the place from where the dead body was found is to be accepted in evidence, there is no further link established by the prosecution which would remotely suggest that the accused committed the crime. 15. The trial court has also heavily placed reliance on the evidence of the PW-16, who is the sister of the deceased. It is alleged by the prosecution that the sister of the deceased (PW-16) was being approached by the accused and since the deceased had seen them together, the accused murdered him. 15. The trial court has also heavily placed reliance on the evidence of the PW-16, who is the sister of the deceased. It is alleged by the prosecution that the sister of the deceased (PW-16) was being approached by the accused and since the deceased had seen them together, the accused murdered him. A bare perusal of the evidence of the PW-16 at Exh.56 would suggest that she has not established herself as a sterling witness. In her police statement, she has never named the present accused and it is only after the present accused came to be arrested that the story has been developed by her that the accused had threatened her and asked her to talk with him. She has deposed in her evidence that the accused had threatened her that if she does not talk with him, he would commit the murder of his brother. However, no complaint has been made in this regard. She has not referred to the said incident even in her police statement. 16. PW-1, who is the complainant, is examined at Exh.9. He has also not stated anything about such facet between the accused and his daughter (PW-16) in the FIR, which was registered on 28th September 2017. His evidence also does not, in any manner, suggest any link between the accused and his daughter. Similarly, in the evidence of PW-3/Ramilaben Sunilbhai Vasava, i.e. the mother of the deceased, examined at Exh.21, though she has stated that the accused was roaming around her house on 30th September 2017, however, that itself would not be sufficient to hold the accused guilty for a serious offence like murder. 17. The Investigating Officer (PW-20), Navalsinh Narubhai Jadav, who is examined at Exh.67 has, in his deposition, referred that after the registration of the FIR on 28th September 2017, he came to know from reliable sources that one dead body was lying at Bakrol canal. Thereafter, he has deposed that he came to know from reliable sources that the accused was meeting with the sister of the deceased and accordingly the investigation was further undertaken and thereafter he recorded the statement of the accused. It is alleged that the accused had confessed about the love affair with the sister of the deceased and the deceased had seen him with along with his sister. It is deposed that the accused confessed to his crime. It is alleged that the accused had confessed about the love affair with the sister of the deceased and the deceased had seen him with along with his sister. It is deposed that the accused confessed to his crime. In the entire evidence, it was not pointed out to us whether any statement under Section 164 of the Cr.P.C. was recorded, in which the accused had confessed about his crime. No confessional statement has been produced on record, hence the version of the Investigating Officer with regard to the confession of crime by the accused has to be ignored. Even otherwise any confessional statement made in the custody before the police is hit by Section 25 of the Evidence Act. 18. As per the charge Exh.4, the motive of murder is love-affair of the accused with the sister of the deceased. It is alleged that the accused eliminated the deceased since he had seen him with his sister. However, the evidence does not even remotely suggest that the accused was having an affair with PW-16, Payalben. Even the trial court has disbelieved the fact of love affair by holding that PW-16, Payalben, was 15 years of age and the accused was 19 years of age, hence it is recorded that “the consent of minor cannot be considered as consent.” These findings by the trial court are absolutely perverse and has no bearing on the evidence. Thus, the motive of crime, which is alleged by the prosecution is not established. 19. Thus, neither the prosecution has miserable failed to establish the theory of last seen together nor the motive for commission of the crime. It is no more res integra that if a case of prosecution rests on circumstantial evidence then the circumstances, from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence. [Vide Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 ]. [Vide Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 ]. Thus, we find that the observations and the findings recorded by the trial court in the judgment and order are perverse and they do not, in any manner, reconcile with the evidence. 20. Under the circumstances and in light of the aforesaid observations, the appeal succeeds. The judgment and order dated 11th November 2022 passed by the Special (Atrocity) Judge and 5th Additional Sessions Judge, Anand, in Special (Atrocity) Case No. 94 of 2017 is set-aside. The convict - Aman S/o Ashok Narayan Panchal (Pawar) is acquitted of the charges under Sections 363, 302 and 201 of the Indian Penal Code as well as under Section 3(2)(5-a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and he shall be set at liberty forthwith. 21. In view of the disposal of the main appeal, learned advocate Mr. Thakkar does not press the application for suspension of sentence and the same is disposed of accordingly. 22. Records and proceedings to be sent back to the court concerned.