Allahabad High CourtArun Chand vs State Of U.P. on 23 March, 2022Bench: Suneet Kumar, Vikram D. ChauhanHIGH COURT OF JUDICATURE AT ALLAHABAD\n \n \n\nAFR\n \nCourt No. - 49\n \n\n \nCase :- CRIMINAL APPEAL No. - 2846 of 2018\n \n\n \nAppellant :- Arun Chand\n \nRespondent :- State of U.P.\n \nCounsel for Appellant :- Yogesh Kumar,Dhirendra Kumar Srivastava,Ghan Shyam Das,Ranjit Saxena\n \nCounsel for Respondent :- G.A.\n \n\n \nHon'ble Suneet Kumar,J.Hon'ble Vikram D. Chauhan,J.1.	Heard Sri Kamal Krishna, learned Senior Counsel assisted by Sri Ghanshyam Das, learned counsel for the appellant and Sri Vikas Goswami, learned A.G.A. for the State.2.	This criminal appeal has been filed against the judgment and order dated 15.5.2018 passed by Additional Sessions Judge, Khurja, District Bulandshahr, in Sessions Trial No. 440 of 2016 (State of U.P. Vs. Arun Chand), arising out of Case Crime No. 124 of 2016 underSections 302,364A,379,411and201I.P.C., Police Station Chhattari, District Bulandshahr, whereby the appellant has been convicted and sentenced underSection 302I.P.C. with life imprisonment and fine of Rs. 10,000/- and in case of default in payment of fine, he has to undergo additional one year imprisonment; underSection 364AI.P.C. he has been convicted and sentenced with life imprisonment and fine of Rs. 10,000/- and in case of default in payment of fine, he has to undergo additional one year imprisonment; underSection 379I.P.C. he has been convicted and sentenced for three years imprisonment; underSection 411I.P.C. he has been convicted and sentenced for three years imprisonment and underSection 201I.P.C. he has been convicted and sentenced with seven years imprisonment and fine of Rs. 2,000/- and in case of default in payment of fine, he has to undergo additional six months imprisonment.3.	As per prosecution case, informant, father of the infant victim, aged about four months, alleged that on 16.6.2016, he and his wife had gone to their agricultural field; at about 9:30 a.m., he received an information that appellant-accused who had come to his house on 15.6.2016 had taken the infant and his mobile phone bearing number 976.....602 along with him. It was further alleged that his neighbours, Khempal Singh and Umesh Kumar had seen the appellant-accused taking the infant. It was further stated that at about 3:00 p.m., a resident of the village Girish Kumar received a call on his mobile number i.e. 976.....332 from the mobile number of the informant i.e. 976....602 demanding 5 lakhs towards ransom in lieu of the life and safety of the infant. The First Information Report (FIR) came to be lodged at 5:00 p.m. The scribe of the F.I.R. is Shiv Kumar. After investigation, the accused came to be charged under Sections 302, 364A, 379, 411 and 201 I.P.C.4.	The prosecution to prove the charge in all examined 12 witnesses, namely, (PW-1) Reshampal Singh/Informant; (PW-2) Khempal Singh and (PW-3) Umesh Kumar Verma, last seen witnesses (both the witnesses were declared hostile); (PW-4) Azeem, who has assigned the motive; (PW-5) Shivkumar, scribe of the F.I.R.; (PW-6) Satyadev, (PW-7) Murarilal, (PW-8) Jitendra Kumar, are witnesses to inquest; (PW-9) Dr. Dinesh Kumar, who conducted autopsy on the body of the infant deceased; (PW-10) Shyampratap Patel, Inspector, who proved recovery of the mobile; (PW-11) Gulab Singh Head Mohrir proved the F.I.R. and other entries in the G.D. and (PW-12) Brajmohan Singh, Sub Inspector who is witness of recovery of the dead body.5.	The following documents were exhibited i.e. Written Report (Exhibit Ka-1), Panchayatnama (Exhibit Ka-2), Postmortem Report (Exhibit Ka-3), Site Plan of incident (Exhibit Ka-4), Recovery Memo of Nokia Mobile (Exhibit Ka-5), Site Plan (Exhibit Ka-6), Charge sheet (Exhibit Ka-7), Chik FIR (Exhibit Ka-8), Photocopy of G.D. (Exhibit Ka-9), Letter of C.M.O. (Exhibit Ka-10), Photo Naash (Exhibit Ka-11), Challan Laash (Exhibit Ka-12) and Namuna Mohar (Exhibit Ka-13).6.	The accused on being confronted with the prosecution evidence, in statement underSection 313Cr.P.C. denied the allegations stating that he has been falsely implicated, accordingly, demanded trial. No defence witness was produced.7.	Learned counsel for the appellant submits that the prosecution case is based on circumstantial evidence. The prosecution failed to prove the chain of events pointing to the guilt of the accused. He further submits that prosecution failed to prove that accused was last seen with the infant. The circumstance of recovery of the mobile and the dead body has not been proved; no recovery memo was drawn with regard to recovery of the dead body of the infant; the Panchayatnama was prepared at the Thana. As per the statement of the informant PW-1, accused came to be arrested on 16.6.2016 itself and not on the subsequent date i.e. 17.6.2016 as stated by the formal witnesses. In the circumstances, the case of prosecution stands demolished. It is further submitted that the alleged mobile recovered from the accused, no call detail record (CDR) was obtained so as to prove the demand of ransom. It is further submitted that as per the prosecution case, demand of ransom was made on the mobile number 976.....332 belonging to Girish Kumar, but Girish Kumar was not examined to prove the circumstance. It is submitted that the prosecution case is based on no evidence.8.	PW-1 in examination-in-chief stated that he works as a labour at Aligarh Company Bagh where the accused joined in the same capacity 2-3 days earlier and both were working together. On 15.6.2016, the appellant accompanied him to his village and on the subsequent day i.e. 16.6.2016, he and his wife went to the agricultural field for work. At about 9:30 a.m., appellant had taken along with him his infant child aged about four months and his Nokia phone bearing number 976.....602. He was seen carrying the infant by neighbours, Khempal (PW-2) and Umesh Kumar (PW-3). At about 3:00 p.m. Girish Kumar, resident of village, received a call on his mobile phone from the mobile phone of PW-1 conveying demand of ransom at Rs. 5 lakhs, failing which the child would be put to death. In cross-examination, PW-1 stated that he does not know the appellant, nor did he earlier dine with the accused; a day earlier, accused-appellant contacted the appellant, thereafter, he brought the appellant to the village. After dinner at 10:00 p.m. they went to sleep. PW-1 further stated that apart from his wife, he has three children aged about 8, 6 and 5 years, who were present in the house. He further stated that at 9:00 a.m. in the morning he left for his agricultural field and reached the field within fifteen minutes. At the field, he was until 10:15 a.m., he received an information that the appellant had escaped with his son. He further stated that the son (Prakash) of his uncle (Chacha) came on a cycle and informed that the accused on being contacted on the mobile of PW-1 demanded Rs. 5 lakhs towards ransom. The mobile number is 976.....332. He further stated that he informed the police officer at 2:00 p.m. He further admitted that he does not have his mobile; PW-2 (Khempal) and PW-3 (Umesh Kumar) and Arun Kumar were not known to the accused earlier and no other person in the village knows about the appellant, except PW-1. He further stated that on the date on which the FIR was lodged (16.6.2016) he was informed by the police official that the accused has been apprehended and his mobile recovered. The information was received at 10:30 p.m. He further stated that the mobile was recovered from Barauli crossing.9.	PW-2 (Kehmpal Singh) denied having knowledge of the incident and about the accused; he stated that he is the neighbour of the complainant and had gone to Thana along with complainant. He further stated that for the first time he has seen the accused who is present in the court. The witness was declared hostile.10.	Similarly, PW-3 (Umesh Kumar) denied knowing and recognising the accused; he had not seen the accused carrying the infant along with him. He further stated that he was not present in the village. The witness was declared hostile.11.	PW-4 (Azeem) stated that he is an employee at the ornament shop and was not aware as to whether the accused had sold ornaments; he was not aware of the incident as alleged by PW-1. The witness was declared hostile.12.	On close analysis of the testimony of PW-1 to PW-3, the following circumstance emerge:-(i) PW-1 informant was not present and had not seen the incident;(ii) PW-1 received information of the crime at his agricultural field;(iii) the demand of ransom was not made to him but to a third person Girish Kumar;(iv) the nephew of PW-1 informed him of the demand of ransom made on the mobile phone of Girish Kumar, but neither of them were examined by the prosecution;(v) PW-1 categorically deposed that the accused came to be arrested on the same day (16.05.2018) and the mobile phone (976...602) was also recovered;(vi) the last seen witnesses PW-2 and PW-3 were declared hostile on not having seen the accused.13.	PW-5 the scribe of the F.I.R. stated that on 17.6.2016, the body of the infant was found from the jungle; in his presence, Panchayatnama was prepared by the police officer and the body was sealed and sent for postmortem. He signed the Panchayatnama. In cross-examination, he admitted that he had written the report (Tahrir) as was told and dictated to him by the police officer (Daroga Ji). After writing the complaint, he handed it to the police official. He further stated that when he was writing the complaint Reshampal (PW-1) was not present. He further stated in cross-examination that he had not seen the accused earlier; the body of the infant was not recovered on the pointing out of the accused. He further stated that he did not accompany the police, nor, the accused was present on the spot; the body of the infant was sealed and brought to the Thana and at Thana, the formalities of the Panchayatnama were undertaken and completed. He further stated that at the Thana, he had signed the Panchayatnama. The witness was not declared hostile by the prosecution.14.	PW-6 (Satyadev) is a witness to the Panchayatnama. He stated that on 17.6.2016 in his presence between 8:30 - 9, Panchayatnama was prepared at Jawa Range jungle; he thereafter signed the Panchayatnama; he further stated that on the spot, he reached on a vehicle other than that of the police vehicle. In cross-examination, he admitted that the body of the infant was brought to the Thana and he had signed the Panchayatnama at the Thana; he further admitted that the body of the deceased was not recovered on the pointing out of accused; he further stated that the accused had not accompanied, either, him or the police officials to the spot. The witness was declared hostile.15.	Murari Lal (PW-7) is a witness to the Panchayatnama. He reiterated that the Panchayatnama was prepared at Jawa Range jungle; the body was found in the Jawar field in the Jawa Range jungle. He declined giving any statement to the police that the offence was committed by the accused and the body was disposed off in the jungle. The witness was declared hostile. On being cross-examined the witness admitted that he had not earlier seen the accused; the accused had not accompanied, nor was the accused brought on the spot of recovery by the police officials. He admitted his thumb impression on the Panchayatnama. The witness was declared hostile.16.	Jitendra Kumar (PW-8) is a witness of the Panchayatnama. He reiterated that the Panchayatnama was prepared at Jawa Range jungle. The witness was declared hostile. He denied recognising the accused.17.	PW-5, PW-6, PW-7 and PW-8 are witnesses to the Panchayatnama and PW-5 is the scribe of the report given at the Thana. PW-6, PW-7 and PW-8 were declared hostile. From their testimony, the following circumstance stands established:-(i) all the witnesses are unanimous that the body of the infant was sealed on the spot of recovery i.e. Jawar field;(ii) all of them stated that the appellant accused was not present on the spot of recovery;(iii) Panchayatnama was filled and prepared at the Thana, in contradiction to the testimony of PW-12;(iv) PW-5 was not declared hostile and the other witnesses (PW-6, PW-7, PW-8) though declared hostile corroborate the version of PW-5 that accused was not present and the formalities of Panchayatnama was done at the Thana.18.	Dr. Dinesh Kumar (PW-9) conducted the postmortem on the body of the infant on 17.6.2016 at 4:05 p.m. and the following ante mortem injuries were noted:1.	Abraded contusion 1 ½ cm. x 1 ½ cm. on right side neck 5 cm. below from right ear.2.	Abraded contusion two in number a front of neck at the middle part. On opening the wound congested blood found underneath the injuries. Trachea congested; hyoid bone fractured.3. 	Abrasion multiple injuries 4 in number 10 cm. x 10 cm. area at right side abdomen 1 cm. x 1 cm. in size.19.	In the opinion of PW-9, asphyxia due to pressing of the neck was the cause of death; the approximate time is one day earlier; he further stated that injury no.1 and injury no.2 were caused due to strangulation; the time of death probably would be after 3:00 p.m. on 16.6.2016. In cross-examination, he further stated that death could have been caused between 12 noon to 2:00 p.m.20.	Inspector Shyampratap Patel (PW-10) proved the entries of Chik F.I.R., G.D. entries made on 16.6.2016; the statement of Head Muharir Gulab Singh, who has written the FIR; he further stated that PW-1 informant was present at Thana; on the pointing out of the informant, the spot was inspected and site plan was prepared on 17.6.2016. PW-10 along with Sub Inspector and other police officials left the Thana in search of accused at 5:00 a.m.; on the pointing out of the informer, accused was apprehended at 6:30 a.m. while holding a mobile phone of Nokia company in his right hand; the SIM bearing no. 976....602 was recovered. At that moment, informant PW-1 reached the spot and identified the mobile phone and the accused and further stated that it is through this mobile, ransom was demanded; the mobile and the SIM card as sealed on the spot. Thereafter, accused was brought to Thana and his statement was recorded; accused confessed of committing the crime, thereafter, PW-10, S.O. and police force along with the accused went to the spot in the jungle of Village Kallupura; accused went towards the agricultural field of Roshanlal and on his pointing out, the body of the deceased infant was recovered. The site plan of recovery was prepared on the spot after inspection; after the recovery of the bodySection 302I.P.C. was added on 21.7.2016 and charge sheet was filed underSections 379/411/364A/302and201IPC;21.	PW-1 informant identified the mobile on opening of the seal. In cross-examination, PW-10 stated that the signature of the accused is not to be seen on the seal, but his signature is present; he further stated that he is not aware as to whether the signature was taken in his presence; he admitted that the IMEI number of the recovered mobile was not noted; he further stated that the complainant had reached the spot while preparing the recovery memo; the complainant signature is not present on the recovered mobile; he further stated that he had not prepared the site plan of the spot of arrest or recovery of the mobile; he further stated that no enquiry with regard to mobile, SIM card and IMEI number and in whose name SIM card was issued in respect of mobile number 976..602 was enquired; the witness, however, admitted that he also had made no enquiry with regard to mobile number 976....332 and in whose name SIM card was issued, nor, the witness was aware as to whether PW-1 had sold any land; he further admitted that he had not taken the statement of minor daughter (8 years) of the informant; he further admitted that he had not taken the statement of Girish Kumar, the owner of mobile number 976....332, on whose mobile it is alleged that ransom was demanded; he further admitted that CDR of either of the mobile was not obtained; he further admitted that there is no independent witness to the recovery memo of the mobile phone; he further stated that the spot from where the body of the infant was recovered is 10 to 15 kms from the house of informant.22.	Brajmohan Singh, Sub Inspector (PW-12) stated that he was posted at Thana Chatari on 17.6.2016; the accused upon arrest was taken to the spot where the family members of the deceased were present; in the presence of the family members on the pointing out of accused, the body of the deceased was recovered from the Jawar field of Roshanlal; Panchayatnama was prepared on the spot and signature and thumb impression of the panch witnesses were taken; all formalities for postmortem were completed. In cross-examination, he admitted that on the Panchayatnama, date was initially recorded 16.6.2016, thereafter it was scored out and 17.6.2016 was recorded. Similarly, he admitted that the time was recorded 7:30 a.m. which was subsequently struck off and 8:20 a.m. was recorded; he admitted that a.m./p.m. was not noted; the witness further admitted that the distance initially recorded was 20 km. which was thereafter struck off and 16 km. was recorded; in the last paragraph, the time 8:30 was struck off and 8:20 was recorded; a.m./p.m. was not recorded and similarly in the same paragraph, time 9:00 was struck off and 9:50 was recorded; a.m/p.m. was not recorded. Further, he admitted that in the first para, the expression house "makaan" was struck off and "jungle" was written; he admitted that there is cutting in "jungle" and "Kallupura" Village. The witness further admitted that the recovery memo of the dead body was not prepared.23.	From the statement of the Inspector PW-10 and Sub Inspector PW-12, the following circumstances emerge:-(i) the accused came to be arrested on 17.05.2018 at 6:30 a.m. as against the testimony of PW-1 who stated that accused was arrested on 16.05.2018 and the mobile was recovered on the same day, he was informed by the Thana at 10:30 p.m.;(ii) the accused was brought to the Thana, he confessed commission of the crime;(iii) on the information of the accused, on his pointing out the body of the infant was recovered as against the statement of witness of the Panchayatnama PW-5, PW-6, PW-7 and PW-8;(iv) the family members were already present on the spot of recovery;(v) Panchayatnama was prepared on the spot and the signatures of the panchayat witnesses were taken, as against the testimony of PW-5 to PW-8 that formalities were completed at the Thana;(vi) PW-12 admitted the cuttings/interpolation in the Panchayatnama with regard to time, date, am/pm, place of recovery;(vii) the recovery memo of the body of the informant at the pointing out of the accused was not prepared;(viii) the call details (CDR) of both the mobile numbers were not taken;24.	In the statement underSection 313Cr.P.C., the incriminating circumstance that the body was recovered on the pointing out of accused, in absence of recovery memo, was not put to the accused i.e. no explanation was sought from the accused with regard to the recovery of the body of the infant at his pointing out.25.	The prosecution case rests on circumstantial evidence; there is no last seen evidence that the accused had taken the infant and the mobile phone along with him; the demand of ransom was received on the phone number 976...332 belonging to Girish Kumar, resident of the village, who was not examined. Nephew (Prakash) to whom the information with regard to demand of ransom was conveyed by Girish Kumar was not examined; the demand of ransom and threat/hurt to be caused to the infant in the event ransom is not paid, has not been proved; it is not the case of the prosecution that the demand of ransom was made from PW-1.26.	The position of law is well settled that the links in the chain of circumstances is necessary to be established for conviction resting upon circumstantial evidence. This has been articulated in one of the early decisions of the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra1. The relevant paragraphs reads thus:"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobadev. State of Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]\n \n	Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ''may be' and ''must be' is long and divides vague conjectures from sure conclusions."(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,\n \n(3) the circumstances should be of a conclusive nature and tendency,\n \n(4) they should exclude every possible hypothesis except the one to be proved, and\n \n(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.154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."27.	Further, the prosecution case that the accused came to be arrested on 17.6.2016 at about 6:30 a.m., is not substantiated by the statement of informant (PW-1). In cross-examination, PW-1 categorically admitted that the accused came to be arrested on the date on which the FIR was lodged (16.6.2016). He was informed about the recovery of the mobile duly conveyed by the police officials to PW-1 at 10:30 p.m. In these circumstances, the arrest of accused on 17.6.2016 at about 6:30-7:00 a.m. on the pointing out of informer becomes doubtful; as per the statement of police officials, including PW-10, after arrest complainant reached the spot, thereafter, the accused was taken to Thana; from Thana, the accused was taken to the spot as per his information to recover the body of the infant. As per the statement of PW-12, the family members were already present on the spot and in  presence of the family members, the body of the deceased was recovered from a Jawar field in the jungle on the pointing out of accused. In the circumstances, it becomes doubtful that the body was recovered on the information which was in the exclusive knowledge of the accused, admittedly, the family members were already present at the spot of recovery. Meaning thereby, the body was already discovered and not recovered at the behest of the accused, which is also established from the statement of PW-5 to PW-8 that appellant accused was not present on the spot at the time of recovery..28.	The various requirements ofSection 27of Evidence Act, can be summed up as follows:"(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.(2) The fact must have been discovered.(3) The discovery must have been in consequence of some information received from the accused and not by accused's own act.(4) The persons giving the information must be accused of any offence.(5) He must be in the custody of a police officer.(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."29.	There can be no shadow of doubt that the confession part is inadmissible in evidence. It is also not in dispute that the Panch witnesses had categorically deposed that the appellant-accused was not present at the time of recovery and the Panchayatnama was done at the Thana. In the circumstances special knowledge of the spot of the dead body cannot be made attributable to the appellant-accused. The recovery of the dead body on the pointing of the accused is highly doubtful.Section 8of Evidence Act would also not be attracted.30.	The Supreme Court in Harivadan Babubhai Patel Vs. State of Gujarat2 referred to A.N. Venkatesh Vs. State of Karnataka3, wherein, it has been ruled that:"9. By virtue ofSection 8of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer,  the  place  where the dead body of the kidnapped\n \nboy was found... would be admissible as conduct underSection  8irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview ofSection 27of the Evidence Act or not..."31.	In the said decision, reliance was placed on the principle laid down in Prakash Chand Vs. State (Delhi Admin.)4. It is worth noting that in the said case, there was material on record that the accused had taken the investigating officer to the spot and pointed out the place where the dead body was buried and the Court treated the same as admissible piece of evidence underSection 8as the conduct of the accused.32.	If the recovery memos were prepared at the Police Station itself then the same would lose its sanctity as held by Supreme Court in Varun Chaudhary Vs. State of Rajasthan5.33.	Further, the recovery memo was not prepared of the body. The Panchayatnama witnesses were unanimous and categorically stated that the accused was not present on the spot and in cross-examination, they admitted that the Panchyatanama was prepared and signed at the Thana. The Panchyatnama witnesses, except PW-5, were declared hostile, but having regard to the statement of PW-1, that accused came to be arrested on the day of lodging of the FIR on 16.6.2016, the statements of Panchayatnama witnesses becomes relevant that the Panchayatnama was not prepared on the spot but at the Thana.34.	In the circumstances, the arrest of the accused and the consequent recovery of mobile phone from accused and the subsequent recovery of the body of the infant at his pointing out is not proved beyond reasonable doubt. Further, as per the statement of the scribe (PW-5), he stated that complainant was not present at the Thana; the complaint was written on the direction and dictation of the police official, thereafter, the informant put his signature. In cross-examination, PW-5 admitted that the body of the deceased infant was not recovered on the pointing out of the accused; he further stated that the accused was not present with the police officials at the spot of recovery; the body was sealed but the recovery memo was prepared at the Thana.35.	Further, the ingredients of the offence underSection 364AIPC is not made out from the prosecution evidence taken on face value. The demand of ransom and upon failure to satisfy the demand, the infant would be hurt or there would be threat to his life has not been proved. Admittedly, PW-1 (informant) did not receive the call for ransom; as per informant and his nephew (Prakash), Girish Kumar is said to have received the call on his mobile phone 976...332; neither of them were examined. The CDR of both the mobile phones were not obtained or enquired by the Investigating Officer to prove the demand of ransom.36.	In Shaik Ahmed Vs. State of Telangana6 after noticing the statutory provision ofSection 364-Aof the Indian Penal Code, 1860, and the law laid down by the Court in the cases noted therein, concluded that the essential ingredients to convict an accused underSection 364-Awhich are required to be proved by the prosecution are as follows:"(i) Kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction; and(ii) threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or;(iii) causes hurt or death to such person in order to compel the Government or any foreign State or any Governmental organization or any other person to do or abstain from doing any act or to pay a ransom."37.	Thus, after establishing first condition, one more condition has to be fulfilled since after first condition, word used is "and". Thus, in addition to first condition either Condition (ii) or (iii) has to be proved, failing which conviction underSection 364-Acannot be sustained. The prosecution in the case at hand failed to prove condition (i) and (ii) to constitute offence underSection 364AIPC.38.	Further, recovery of the body on the pointing out of the accused has not been proved. Admittedly, the recovery memo was not drawn as mandated underSection 27of the Evidence Act, neither the incriminating circumstance that the body was recovered on the pointing of the accused was put to him underSection 313Cr.P.C. The prosecution evidence (per PW-12) the family members were already present on the spot of recovery. The body was discovered and not recovered on the pointing out of the deceased. The Panchayatnama was drawn at the Thana, the Panchayatnama witnesses signed the document at the Thana. The accused was not present at the spot as per Panch witnesses. The prosecution evidence and conduct of the accused would not fall within the ambit ofSection 8of the Evidence Act.39.	The Supreme Court in Sujit Biswas Vs. State of Assam7 held that in criminal trial, the purpose of examining the accused underSection 313Cr.P.C., is to meet the requirement of the principles of natural justice. The circumstances which are not put to the accused in his examination underSection 313Cr.P.C., cannot be used against him and must be excluded from consideration."20. It is a settled legal proposition that in a criminal trial, the purpose of examining the accused person underSection 313Cr.P.C., is to meet the requirement of the principles of natural justice, i.e. audi alterum partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination underSection 313Cr.P.C., cannot be used against him and must be excluded from consideration. The said statement cannot be treated as evidence within the meaning ofSection 3of the Evidence Act, as the accused cannot be cross-examined with reference to such statement."40.	In Hate Singh Bhagat Singh Vs. State of Madhya Bharat8 Supreme Court held, that any circumstance in respect of which an accused has not been examined underSection 342of the Code of Criminal Procedure, 1898 (corresponding toSection 313Cr.P.C.), cannot be used against him. The said judgment has subsequently been followed in a catena of judgments uniformly, taking the view that unless a circumstance against an accused is put to him in his examination, the same cannot be used against him. (See also: Shamu Balu Chaugule Vs. State of Maharashtra9; Harijan Magha Jesha Vs. State of Gujarat10; and Sharad Birdhichand Sarda Vs. State of Maharashtra11.41.	Having regard to the cumulative prosecution evidence, the chain of events do not connect the accused-appellant with commission of the offence. It appears that the body was discovered by the family members, thereafter, the formalities were completed at the Thana. The accused never accompanied the police officials to the spot to get the body recovered; the report was also lodged on the dictation of the police official. The finding reached by the trial court is per se perverse, conviction is based on the statement of PW-1 and the alleged recovery of the mobile and the body. In the backdrop of statements of witnesses, reasonable doubt has been created by learned counsel for the appellant contending that the Panchayatnama was drawn earlier, interpolations and corrections were made with regard to the spot and the recovery of the body. Earlier it was recorded that the recovery was made from the house (makaan) but was subsequently scored out and recorded ''jungle'; similarly, cuttings with regard to timing, which according to learned counsel for the appellant, was done so as to match the timing of arrest. Further, on close scrutiny of the document (Panchayatnama), there is no countersign of the police official on the cuttings, except at one or two places. The document casts serious doubt with regard to the arrest and recovery of the mobile phone and the body at the pointing out of the accused. The date and time of arrest of the accused is seriously doubtful. The demand of ransom or of causing harm to the infant has not been proved.42.	The appeal is, accordingly, allowed. The impugned judgment and order of conviction and sentence is set aside. The appellant- Arun Chand is directed to be released forthwith, if not required in any other offence.43.	The appellant on being released the mandate ofSection 437-ACr.P.C. to be complied.44.	Let the lower court record be sent back to the court below forthwith, along with a copy of this judgment, for ascertaining necessary compliance.Order Date :- 23.3.2022\n \nVMA\n \n\n \n(Vikram D. Chauhan, J.)         (Suneet Kumar, J.)