Bhuri Singh and Another vs State

J.C. Gupta and S.K. Agarwal, JJ.—This appeal arises out of judgment and order dated 9.6.1980 passed by the then v. Additional Sessions Judge, Agra in Session Trial No. 476 of 1979 whereby the abovementioned Appellants have been convicted and sentenced to life imprisonment u/s 302, I.P.C., read with Section 34 of the Indian Penal Code.

The murder of a boy aged about 8 years, Nand Lal, led to the prosecution of the Appellants Bhuri Singh and Summera. Nand Lal was the only son of Yad Ram, P.W. 1 and at the relevant period, he was studying in Primary School, Lal Darwaza, Fatehpur Sikri. It is said that on 5.3.79 he had gone to his school at 10 in the morning and when he was coming back home at about 4 p.m. after the closure of school and had reached near the temple of Hanumanji, Kunwar Sahab son of Mehi Lal, Appellants Summera son of Jyoti Kachchi and Bhuri Singh son of Kesaria met him and they called Nand Lal and took him with them. This was seen by Ram Bharose and Churamani. When the child did not reach home upto 5 p.m., his father Yad Ram went out in search of his son along with some other persons and when he was not found, he lodged a written report Ex. Ka-1 on the next morning on 6.3.79 at 9.05 a.m. about the missing of his child. Constable Clerk Shyam Lal, P.W. 7 prepared check report Ex. Ka-5 on the basis of the written report of Yad Ram and registered the case in the General Diary whose copy is Ex. Ka-6. Sub-Inspector Jorawar Singh, P.W. 8 was present at the police station when the F.I.R. was lodged. He recorded the statement of First Informant Yad Ram at the Police Station and of other witnesses on reaching the village of incident. At about 2 p.m. he got an information that accused Bhuri Singh was present near the crossing of Bharatpur road. He immediately rushed to that place and arrested accused Bhuri Singh. On interrogation, the Investigating Officer came to know of the complicity of the said accused and other accused persons. It is further alleged that Bhuri Singh Appellant told the Investigating Officer that he could get the dead body of Nand Lal recovered from the place where the same was buried. The Investigating Officer then came to that place along with accused and witnesses from where the dead body of Nand Lal was recovered at the instance of accused Bhuri Singh. Inquest was held and necessary papers were prepared. One wooden Takhti (a wooden plank used for writing purpose), one bag, two books, two holders, chalk sticks were also found with the dead body. These articles were taken into possession by the Investigating Officer through Memo Ex. Ka-3. The Investigating Officer then visited the place where Nand Lal was said to have been murdered and from there he took into his possession blood stained and plain earth through Memo Ex. Ka-4. The Investigating Officer also made a site map Ex. Ka-11. He thereafter recorded the statements of Yad Ram, P.W. 1, Bhagwant Singh, P.W. 2, Sahib Singh P.W. 4, Pooran P.W. 5 and others. The investigation was then taken over by Station Officer Virendra Singh who on 21.3.79 submitted charge-sheet against Bhuri Singh, Soni, Babu Lal, Kunwar Sahab and Summera.

From the evidence collected during investigation, it was revealed that accused Soni alias Kishan Singh told accused Kunwar Sahab at the hotel of Bajrang Baba that he had a dream that ten maunds of gold was lying buried in the Mahal of Jodha Bai and whosoever makes sacrifice of the only son of a person shall get that gold. Accused Kunwar Sahab talked about this dream to accused Bhuri Singh and Summera and thereafter they planned to kidnap and kill Nand Lal the only son of Yad Ram for that purpose. When Nand Lal on 5.3.79 was returning from his school, the aforesaid three accused persons intercepted him near the temple of Hanumanji. Nand Lal at that time was accompanied by two other children Pooran P.W. 5 and Wazir. Accused Kunwar Sahab gave ten paise each to Pooran and Wazir to bring cigarettes and also allured Nand Lal by giving him 4 annas. On this pretext, the accused persons took Nand Lal to Ghora Mahal and there Bhuri Singh and Summera caught hold of Nand Lal while Kunwar Sahab stabbed him in his abdomen as a result of which he met a spontaneous death. Since his murder was committed in consequence of the dream told by Soni alias Kishan Singh, the accused persons cut off both the ears of Nand Lal and thereafter placed the dead body in a pit over the hillock at a distance of about 100 paces from ''Ghora Mahal'' and covered the dead body with stones, from where the same was got recovered by accused Bhuri Singh after he was arrested by the Investigating Officer on 6.3.79.

The post-mortem on the dead body of Nand Lal was conducted by Dr. K. P. Singh P.W. 9 who found a stab wound 1-1/2" ? 1" ? abdominal cavity deep on the left side abdomen on upper part 1/2" above umbilicus, through the wound loops of intestines were protruding. One stab wound was also found on the left lower back side which was corresponding to the stabbed injury caused on the abdomen. One lacerated wound measuring 4/10" ? 3/10" ? bone deep on left side temple was also found. The doctor also found the following post-mortem injuries:

(1) Irregular lacerated wound 1" ? 2/10" ? 1/10" on the right ear pinna.

(2) Lacerated wound irregular in an area 2-1/2" ? 1" ? around the root of the left ear, with complete absence of the left ear pinna.

(3) Lacerated wound irregular 2" ? 1/2" ? muscle deep on the front and left lower part of the foot and toe and fingers.

In the opinion of the doctor death had occurred due to shock and haemorrhage as a result of ante-mortem injuries. Post-mortem report is Ex. Ka-13.

Only accused Bhuri Singh and Summera were committed to the Court of Session to stand their trial because accused Kunwar Sahab could not be arrested as he was absconding.

To substantiate charges against the Appellants, the prosecution relied upon a number of circumstances which we may narrate as follows:

(1) that the accused Bhuri Singh, Summera and Kunwar Sahab had planned to commit the murder of the only son of Yad Ram with the hope that they would get about 10 maunds of gold buried in the Mahal of Jodha Bai as has been seen by Soni alias Kishan Singh in his dream ;

(2) that accused Bhuri Singh, Summera and Kunwar Sahab were seen sitting together in the lawn of record office at about 12 or 12.30 noon on 5.3.79 by P.W. 4 Sahib Singh when he was returning from Seikh Salim Chishti School after noting down the examination scheme ;

(3) that Nand Lal had gone to his school in the morning at about 10 a.m. and was returning from there at about 4 p.m. along with his schoolmates Pooran Singh P.W. 5 and Wazir and at that time Nand Lal was carrying with him a bag containing Takhti, Pen etc. and when they came near the temple of Hanumanji at Lal Darwaja, Kunwar Sahab, Appellants Bhuri Singh and Summera came there and Kunwar Sahab allured Nand Lal, giving him four annas and also gave 10 paise each to Pooran and Wazir to bring cigarettes from a nearby shop and when they came back Kunwar Sahab falsely told Pooran and Wazir that Nand Lal had already left for home though in fact Nand Lal had been kidnapped by him and his associates ;

(4) that Nand Lal was last seen in the company of Kunwar Sahab, Summera and Bhuri Singh while entering into the temple from its northern gate by P.W. 2 Bhagwant Singh, Churamani and Ram Bharose ;

(5) that after sometime Bhagwant Singh, P.W. 2 and Churamani saw all the three accused persons going with Nand Lal towards the hillock from the temple ;

(6) that Bhagwant Singh then told the above facts to Yad Ram whereupon they went to the house of Bhuri Singh, Summera and Kunwar Sahab but they were not found there ;

(7) that when Nand Lal was not found in the night despite a search made by his father Yad Ram and others. Yad Ram lodged a written report Ex. Ka-1 at the police station against Kunwar Sahab, Summera and Bhuri Singh and case u/s 363, I.P.C. was registered at the police station ;

(8) that when Bhuri Singh was arrested at about 2 p.m. on 6.3.79, he led the police party to the recovery of dead body of Nand Lal along with his school bag from a pit on the hillock and blood stained earth was also recovered from ''Ghora Mahal'' ;

(9) that accused Bhuri Singh burnt his blood stained clothes and threw their ash in river Terahmorai ;

(10) that the accused persons have changed their defence from time to time.

In order to prove guilt of the accused persons, prosecution before the trial court produced 11 witnesses in all. They are P.W. 1 Yad Ram, P.W. 2 Bhagwant Singh, P.W. 3 Ram Singh, P.W. 4 Sahib Singh, P.W. 5 Pooran, P.W. 6 Constable Sukhvir Singh who escorted the dead body of Nand Lal for post-mortem examination, P.W. 7 Constable Clerk Shyam Lal who registered the case at the police station on the basis of written report Ex. Ka-1 lodged by Yad Ram P.W. 8 S.I. Jorawar Singh who did the initial investigation and also arrested accused Bhuri Singh and recovered the dead body of Nand Lal on the pointing out of accused Bhuri Singh from a pit on the hillock, P.W. 9 Dr. K. P. Singh who conducted the post-mortem examination and proved post-mortem report as Ex. Ka-13, P.W. 10 Amar Singh is the formal witness who proved relevant general diary entries regarding the sending of case property for chemical examination, and P.W. 11 Hori Lal.

The accused persons in their statements recorded u/s 313, Cr. P.C. denied the prosecution allegations and stated of their false implication on account of enmity with the first informant. They produced Narendra Singh D.W. 1 and Summer Singh D.W. 2 in defence.

Learned Sessions Judge came to the conclusion that from the circumstances established, the guilt of both the accused persons is proved beyond reasonable doubt and accordingly the learned Sessions Judge has convicted both the Appellants u/s 302/34, I.P.C. and sentenced each of them to life imprisonment.

We have heard learned Counsel for the Appellants and the learned A.G.A. appearing for the State.

Learned Counsel for the Appellants submitted before us that the entire case depended upon circumstantial evidence and the circumstances relied upon by the prosecution to connect the Appellants with the murder of Nand Lal have not been established beyond doubt. It was further submitted that the evidence with regard to the recovery of dead body of Nand Lal at the instance of accused Bhuri Singh cannot be treated as an incriminating circumstance as it has not been shown by any evidence that the accused had himself concealed the dead body in the pit from where the same was recovered. At best, it could be said that the accused had the knowledge where the dead body of Nand Lal was lying. It has also been argued by the Appellants'' counsel that the learned Sessions Judge has committed grave error of law in taking into consideration the confessional statement of accused Bhuri Singh alleged to have been made by him to the Investigating Officer while in police custody. In short, the submission of the learned Counsel for the Appellants is that the case against the Appellants is not free from doubt and they are entitled to acquittal. On the other hand learned A.G.A. tried to support the order of the learned Sessions Judge by urging that the circumstances which have been established from the evidence on record are conclusive in nature and are not capable of being explained by any other hypothesis excepting guilt of the accused.

Before we start discussion on the evidence adduced at the trial, we may just point out the principles governing conviction on the basis of circumstantial evidence.

In the case of Jaharlal Das Vs. State of Orissa, , the Apex Court enumerated following principles:

(1) that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established ;

(2) that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused ;

(3) 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 none else and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.

The Apex Court in the case of Dhananjay Chatterjee alias Dhana Vs. State of W.B., , held that in a case based on circumstantial evidence, the Court has to be satisfied that the circumstances from which the conclusion of guilt is to be drawn have not only been fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis, except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not mere indignation of the Court can form the basis of conviction and the more serious the crime, the greater care should be taken to scrutinize the evidence lest suspicion takes the place of proof.

It is thus well settled that each circumstances relied upon by the prosecution must be established by cogent, succinct and reliable evidence ; and if the circumstances established are such as cannot be explained on any hypothesis except the guilt of the accused, conviction of the accused can be based. In other words, the circumstances should be of an incriminating character and all the proved circumstances must provide a complete chain, no link of which should be found missing and the circumstances must unequivocally point to the guilt of the accused and must be entirely incompatible with the hypothesis of innocence of the accused, and this responsible duty has to be discharged by the Court with utmost care and caution.

Before launching a discussion on the merits of the circumstances relied upon by the prosecution, we may painfully point out that despite some of the important and vital circumstances having been not found proved and the chain being not completed, the learned Sessions Judge yet has come to the conclusion that the Appellants were guilty of the offences charged for.

We have already set out above, the circumstances relied upon by the prosecution. We now propose to examine each one of the circumstances relied upon by the trial court in the order under appeal in which they have been set out.

Motive:

The prosecution alleged as a background of this case and also its motive that one Soni alias Kishan Singh had a dream that about 10 maunds of gold was lying concealed in the ''Jodha Bai Mahal'' and any one who would kill a minor and only son of his parents would get the same. He told about this dream to accused Kunwar Sahab at the hotel of Bajrang Baba. Thereafter Kunwar Sahab talked to the present Appellants and they decided to eliminate Nand Lal the only child of Yad Ram, First Informant.

The learned Sessions Judge has found that this motive has been proved from the oral evidence and murder was committed with a view to sacrifice the only child of Yad Ram so that the accused might get 10 maunds of gold lying hidden in ''Jodha Bai Mahal''. According to the learned Sessions Judge, accused Bhuri Singh himself disclosed about this motive when he was interrogated after his arrest by the Investigating Officer on 6.3.79 near the Tiraha of Bharatpur. We have carefully gone through the statements of the Investigating Officer and Hori Lal P.W. 11 who were examined to prove the motive. Even as per the prosecution case, accused Bhuri Singh gave the said statement while he was in police custody and his statement squarely falls within the category of ''confession'' which is not receivable in evidence because of the bar created u/s 26 of the Evidence Act. For the same reason the recitals made in panchayatnama Ex. Ka-2, in the general diary on 6.3.79 cannot be read in evidence, being repetition of the statement of the accused which he is alleged to have made to the Investigating Officer in police custody. Apart from this, confessional statement, no evidence of any kind whatsoever has been brought on record to prove the alleged motive. During the interrogation of accused Bhuri Singh, the Investigating Officer is alleged to have come to know that a conspiracy was hatched at the hotel of Bajrang Baba to kill Nand Lal, when Soni alias Kishan Singh had told accused Kunwar Sahab about the dream which he had in the preceding night yet no evidence was collected by the Investigating Officer in this regard. In a case based upon circumstantial evidence, motive is of vital importance. In the present case, the Investigating Officer even after having interrogated accused Bhuri Singh did not think it necessary for reasons best known to him, to collect any evidence regarding the motive for committing the murder of an innocent child of about 8 years of age. We, therefore, find that the prosecution has miserably failed to prove that the present Appellants had any motive to commit the murder of the deceased child Nand Lal.

The next circumstance which has been found established by the learned Sessions Judge is that on 5.3.79 Sahib Singh P.W. 4 saw the present Appellants sitting in the lawn of the record room along with Kunwar Sahab at about 12 noon. To establish this circumstance, we have the solitary evidence of Sahib Singh P.W. 4, a boy of about 16-17 years of age. He simply stated that on 5.3.79 at about 12-12.30 noon when he was coming back from his school, he saw Summera, Bhuri Singh and Kunwar Sahab sitting in the lawn of the record office. He admitted in his cross-examination that he had told this fact to Yad Ram and others on that very evening at about 6-6.30 p.m., yet this fact is neither mentioned by the first informant Yad Ram in his report Ex-Ka-1 nor such a fact was stated by him in his statement recorded in the trial court. In any view of the matter, this circumstance was in no way incriminating.

The next circumstance relied upon by the prosecution was that on 5.3.79 when deceased Nand Lal was returning from his school along with Pooran P.W. 5 and Wazir, accused persons met them near the temple where Kunwar Sahab gave Pooran and Wazir 10 paise each and asked them to bring cigarettes while Nand Lal was given 4 annas. When Wazir and Pooran came back, Kunwar Sahab made a false statement by telling them that Nand Lal has already left for his house. This circumstance has not been found established by the learned Sessions Judge himself on the ground of the evidence being shaky. To prove this circumstance, prosecution produced only Pooran P.W. 5. We have ourselves gone through the statement of P.W. 5 Pooran and find no reason to disagree with the finding recorded by the learned Sessions Judge. Pooran P.W. 5 in his statement admitted that Yad Ram P.W. 1 is his uncle. In cross-examination he stated that since shop was closed, he had not brought cigarettes and when he came back he found that Kunwar Sahab alone was standing there and Nand Lal was not there. He further stated that 4 annas were given to Nand Lal by Kunwar Sahab only. He further admitted that at that moment Summera and Bhuri Singh were standing at a little distance from Kunwar Sahab. He further admitted that the house of Summera was situated nearby. He further stated that when they were coming back from school Kunwar Sahab met them near the house of Indu and according to him the house of Indu was situated at a distant place from the temple of Hanumanji while Bhuri Singh and Summera met him near the temple. It is also significant to note that in his statement given to the Investigating Officer u/s 161, Cr. P.C., he had not stated that when he, Nand Lal and Wazir were returning from school Bhuri Singh, Kunwar Sahab and Summera met them near the temple. Though the witness claimed to have told that fact to the Investigating Officer but the Investigating Officer categorically denied that the witness had stated so. Thus according to this witness when Kunwar Sahab gave 4 annas to Nand Lal and 10 paise each to Pooran and Wazir, he was near the house of Indu while accused Summera and Bhuri Singh at that time were standing near the temple and the house of Summera was very close to the temple. It is significant to note that in the first information report, it was not stated by Yad Ram that the deceased was coming back from his school along with Pooran and Wazir and in the way, they met the accused persons. In any view of the matter from his statement only this much could be inferred that accused Summera and Bhuri Singh were not present along with accused Kunwar Sahab when the latter gave allurement to Nand Lal deceased and asked the two witnesses to bring cigarettes for him and accused Bhuri Singh and Summera were standing near their house by the side of the temple which was situated at a far distance from the place where accused Kunwar Sahab was present. This circumstance, therefore, is not at all incriminating at least against accused Summera and Bhuri Singh.

Now we come to the next circumstance which has been found established by the learned Sessions Judge. The circumstance is that Nand Lal deceased was last seen in the company of the present Appellants and Kunwar Sahab by P.W. 2 Bhagwant Singh when they were entering in the northern gate of the temple at about 4 p.m. P.W. 2 Bhagwant Singh stated that on the date of occurrence, he and Churamani had gone to Fatehpur Sikri to purchase domestic articles and when they were returning home and had reached near the temple, they saw Kunwar Sahab, Bhuri Singh and Summera with Nand Lal and all the three accused persons then proceeded towards hillock after entering through the gate of the temple. He further stated that when he met Yad Ram at about 6 p.m. on the same evening he told this fact to Yad Ram. Yad Ram, however, did not disclose in his F.I.R. that Nand Lal was so seen by this witness in the company of the three accused persons going towards hillock through the gate of the temple. In cross-examination, he admitted that when he saw these persons going towards hillock, their faces were towards the hillock and he could not say as to which of the accused was in the last. He further stated that he saw the accused persons entering into the temple along with Nand Lal and he could not say for how much time they stayed inside the temple as he had soon left that place for his house which was situated at a distance of about 20 paces. He further admitted that he had not told to the Investigating Officer that he had seen accused persons along with Nand Lal going towards hillock from the temple. It would thus appear that this witness in his examination-in-chief developed the case for the first time at the trial that he saw accused persons in the company of Nand Lal going towards hillock. Apart from the fact that this has been a development made at the trial, if we examine the statement of this witness closely, the possibility of his having seen the deceased going in the company of the accused persons towards the hillock is excluded as he very categorically admitted that when the accused persons entered into the temple, he left that place and did not know upto what time the accused persons remained inside the temple. He further admitted that he had only seen Kunwar Sahab and others entering into the temple and not before that. He further admitted that at about 5-6 p.m. Yad Ram, the father of the deceased child, met him and in cross-examination he in specific words admitted that he had not told Yad Ram about the above fact before F.I.R. was lodged. Had he seen Nand Lal in the company of the present accused persons, it looks most unnatural that he would not have told this fact to Yad Ram, the father of the child when he was running from pillar to post in search of his son and the witness himself had gone with him for making a search of the missing child. He thus appears to be a got up witness who for the first time at the trial stated of his having seen the deceased Nand Lal going in the company of three accused persons towards the hillock from the temple. This circumstance relied upon by the prosecution thus is also not established by cogent evidence. It may not be out of place to mention here that even the learned Sessions Judge himself has not believed Bhagwant Singh P.W. 2 on this part of his statement that the three accused along with Nand Lal were seen going towards hillock.

The prosecution has also relied upon the circumstance that Kunwar Sahab, Bhuri Singh and Summera were not found at their houses when Yad Ram, Bhagwant Singh and others went to search them. Only P.W. 2 Bhagwant Singh stated of this circumstance. He stated that when Yad Ram met him at about 5-6 p.m. on the same day, he along with Yad Ram went to the houses of Kunwar Sahab, Bhuri Singh and Summera but they were not found at their houses. Significantly no such fact was mentioned in the F.I.R. nor P.W. 1 Yad Ram in his statement before the Court stated that he and Bhagwant Singh and others had gone to the houses of all the three accused persons. He simply stated to have gone at the house of Summera along with Hori Lal and Lala Ram and he did not state of the presence of Bhagwant Singh. It is, therefore, not safe to place implicit reliance on the testimony of P.W. 2 which he developed at the trial for the first time. In any view of the matter the mere fact that the Appellants were not found at their residences in late hours of the evening by itself could not be taken as an incriminating circumstance of conclusive nature.

The next circumstance which has been relied upon by the learned Sessions Judge is about the location of temple, Ghora Mahal, pit and the rasta by which Nand Lal used to go back from his school. The location of these places is not disputed but from the mere topography of these places an inference of guilt against the Appellants cannot be drawn.

The learned Sessions Judge has considered the circumstance of recovery of dead body with the school bag of Nand Lal on the pointing out of accused Bhuri Singh as the most crucial incriminating circumstance. While recording this finding, the learned Sessions Judge has referred to the statement of P.W. 3 Ram Singh, P.W. 8 Jorawar Singh, the Investigating Officer and P.W. 11 Hori Lal, P.W. 3 Ram Singh stated before the Court that on the date when Appellant Bhuri Singh was arrested he was present at the by-pass road near his village. According to him, accused Bhuri Singh was already in police custody and one sub-inspector, some police personnels and Hori Lal and others were with him. Seeing this, he also reached there. Bhuri Singh said that he would get the dead body of Nand Lal recovered and thereafter he took them to hillock and took out the dead body of Nand Lal from a pit. In cross-examination he stated that Churamani, Bhagwant Singh and Hori Lal and others were also present when accused made the above disclosure. However, Bhagwant Singh P.W. 2 in his statement before the Court did not state even a word about the recovery of the dead body at the instance of accused Bhuri Singh, P.W. 3 Ram Singh further stated in cross-examination that the pit was about 10 feet deep and 20 feet wide. It was a man made pit as it was created due to excavation of stones, etc. From his statement, it is, therefore, clear that the dead body of Nand Lal was thrown in the pit and thereafter some stone pieces were also thrown in the pit which is also corroborated by the post-mortem injuries. P.W. 8 S.I. Jorawar Singh also stated that when accused Bhuri Singh was arrested at about 2 p.m. on 6.3.79, he stated that he could take them to the place where the dead body of Nand Lal had been lying and thereafter he took the police party to the pit on the hill top and took out the dead body from the pit. The Investigating Officer in his cross-examination admitted that when he arrested accused Bhuri Singh, no public witness was present. The fact of recovery of dead body of Nand Lal was mentioned by the Investigating Officer in the inquest report but no separate recovery memo was prepared. P.W. 11 Hori Lal has also testified that after accused Bhuri Singh was arrested by the Investigating Officer, he had also reached there and in his presence accused stated that he would get the dead body of Nand Lal recovered and thereafter he got the dead body recovered from a pit. It was argued by the learned Counsel for the Appellants that Hori Lal P.W. 11 is the brother of first informant Yad Ram and Ram Singh P.W. 3 is also related to Yad Ram, as such they are highly interested witnesses and there is old enmity of the accused with them as such non-production of independent witnesses who were admittedly present at the time of arrest of the accused is fatal to this part of the prosecution story. It has come in evidence that a petrol pump and a number of shops were situated at a little distance from the place of arrest of Bhuri Singh, therefore, any one of them could have been called to be a witness of the accused and of the recovery of the dead body. In any view of the matter, assuming for the sake of argument that the dead body of Nand Lal was got recovered by accused Bhuri Singh, it does not conclusively connect the Appellant with the murder of Nand Lal. It is well settled that if the authorship of concealment is not clearly borne out by cogent and incontrovertible evidence but is left to be inferred by implication, it is not safe to rely upon the same. The recovery of dead body becomes incriminating not because of its recovery at the instance of the accused but the element of criminality tending to connect the accused with the crime lies in the authorship of concealment, namely, that the accused who gave information leading to its discovery was the person who concealed it. To make such circumstance incriminating, it must be shown that the accused himself concealed the dead body and on this point, the evidence led by the prosecution should be free from doubt. For this proposition, we may refer to the decision of Apex Court in the case of Pohalya Motya Valvi Vs. State of Maharashtra,

In the present case, it is admitted to the witnesses that the pit from where the dead body was got recovered by the accused was a man made one having a depth of 10'' and width of 20 feet ? 20 feet. The pit was, therefore, a big one and anything lying in that pit could easily be seen by passersby. It is nowhere stated by any of the three witnesses examined by the prosecution while deposing the fact of recovery of the dead body that at any point of time, accused admitted to have himself concealed or thrown the dead body of Nand Lal in the pit in question. As already pointed out above, the deceased was seen only in the company of accused Kunwar Sahab when two other children, namely, Pooran P.W. 5 and Wazir had gone to bring cigarettes as other persons were at that time standing near their house far removed from the place where accused Kunwar Sahab was talking to the deceased, therefore, the possibility of the murder having been committed by Kunwar Sahab alone and of the accused Bhuri Singh having the knowledge of the dead body being thrown by Kunwar Sahab in the pit cannot be ruled out. From the mere fact that dead body was recovered at the instance of accused from the pit at the hillock which was an open place and accessible to all, inference of guilt cannot be drawn against accused Bhuri Singh or at any rate against accused Summera. In the absence of evidence of authorship of concealment, the fact of recovery of dead body at the instance of accused Bhuri Singh could at best lead to an inference that the accused had knowledge of the place where the dead body of Nand Lal was lying and not that he himself had concealed the dead body. That circumstance, being consistent with many hypothesis, therefore, would not lead to the conclusion that the murder of Nand Lal was committed by accused Bhuri Singh.

For the reasons stated above, we, therefore, find that it will be highly unreasonable to rely on these distorted and scanty pieces of circumstantial evidence that too brought on record in a most unsatisfactory and loathsome manner. In any view of the matter even if some of the circumstances are taken as proved, they do not complete the chain so as to lead to a reasonable conclusion wholly inconsistent with the innocence of the accused. Though an innocent child aged about 8 years was undoubtedly slaughtered and sacrificed at the alter of lust but the prosecution agency itself is to be blamed for not securing conviction as vital pieces of evidence and circumstances to complete the chain were not collected and brought on record. Material witnesses with regard to the motive were not examined and the investigation was conducted in a most perfunctory manner. The resultant effect of what we have said above is that the evidence and material brought on record do not have a cutting edge as to penetrate the fortess of innocence built around the Appellants and the needle of suspicion vacillates towards the Appellants and nothing more. Suspicion, howsoever strong it may be, is no substitute for the proof and in criminal law an accused can only be convicted if his guilt is proved beyond reasonable doubt and not otherwise, certainly not on mere suspicion.

For the reasons stated above, this appeal is allowed. The order of the learned Sessions Judge convicting and sentencing the Appellants is set aside and Appellants are acquitted of the offences charged for. The Appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.