V.K. Bali, J.
1. Appellants Hari Kant and Kalia who have been held guilty of an offence under section 302 read with Section 34 of the Indian Panel Code as also under section 201 read with Section 34 of Indian Penal Code and sentenced to undergo imprisonment for life as also to pay a fine of Rs. 5,000/- each and R.I. for two years and a fine of Rs. 500/- or in default of payment of fine to further undergo R.I. for six months vide orders passed by the Additional Sessions Judge, Sirsa dated 6th and 7th of April, 1995 have filed this appeal with an obvious prayer to set aside the judgment and order of conviction and sentence recorded by the learned Additional Sessions Judge and acquit them of the charges framed against them.
2. Sham Bihari PW-1 father of Aspatali lodged F.I.R. with regard to missing of his son from 30-6-1994 at Police Post Khairpur on 4-7-1994. In his statement so made, he stated that he was residing at Village Khairpur and was employed in G.T.M. Sirsa. He was living along with his children in village Khairpur. He has two children, the eldest namely Aspatali was aged about 2 years and younger to him Lachhmi was aged 1 1/4 months. On 30-6-1994, he had gone on his duty and his wife was preparing meals at home. At about 7.45/8.00 P.M. his son Aspatali was playing near the road outside the house with other small children. After some time, his wife Savitri Devi went to take his son but he was not present there. His wife came to G.T.M. and told him about entire matter. Thereafter, they searched for their son Aspatali for a long time but no clue could be found. On 1-7-1994, he had lodged report regarding the missing of his son at police post, Khairpur. Till today they have been searching for their son every where in the city and in the nearby villages but no clue of his son was found. He had suspicion that some unknown persons had taken away his son Aspatali with intention to kill him.
3. From the statement made by Sham Bihari, it thus, transpires, that his son Aspatali had gone out of the house on roadside in 30-6-1994 and could not be traced till such time F.I.R. was lodged on 4-7-1994. The special report with regard to the incident was received by the concerned Magistrate on 4-7-1994 at 11.48 PM. The police after investigation arrested the appellants and charged them for an offence under Section 302 read with Section 34 as also under section 201 read with Section 34 IPC. They were, thus, sent for trial with the result as indicated above.
4. The prosecution in its endeavour to bring home the offence against the appellants examined Sham Behari first informant and the father of Aspatali as PW-1. He deposed in tune with the F.I.R. lodged by him. In his cross-examination he stated that the appellant Harikant used to live in his neighbourhood and used to ply rickshaw. No ransom for release of his son was ever demanded from him by the appellants or any other person. He admitted that news of disappearance of his son had spread in the locality on the night of 30-6-1994 itself. He had informed Jogi Ram and Kunj Bihari on 3-7-1994 about the disappearance of his son. The prosecution examined Jogi Ram as PW-2. He stated that he was the President of G.T.M. and Distt. INTUC, Sirsa. On 1-8-1994, he was in house. Kunj Bihari General Secretary of INTUC was with him. Appellants came to him and told him that they had committed to mistake and that on 30-6-1994 at about 8/8.30 PM they had kidnapped a male child of Sham Bihari aged two years and Hari Kant had taken him to village Bajekan to the appellant Kalia and both of them had kept the child there for two days and then they brought back the child. Fearing that if they returned the child in Khairpur, the police might apprehend them, they strangled the child and threw the dead body in the canal and ran away to U.P. They also told him that when they saw Haryana Police in U.P., they returned from there and narrated the aforesaid facts to them. The witness further stated that at about 5.00 PM, they took both the appellants to police post Khairpur and produced them before the Incharge. In his cross-examination he stated that the appellants had told that Harikant had taken the child to Kalia at the house of Bhagwan Das Kamboj where Kalia was employed as servant. The appellants never worked in GTM, Sirsa. Appellant Harikant used to live at the house of his sister in the neighbourhood of mill workers Sham Bihari etc. and for this reason appellant was known to them. Both the appellants had come to him and none else was with them. He further stated that he had learnt about the kidnapping of the child on 1-8-1994 from the appellants for the first time and before that Sham Bihari etc. had not given him any information about his missing son. He further stated that being Union President he had been meeting police authorities about this case after 1-8-1994. He admitted that ASI Krishna was suspended on the complaint of Union because he had released the wife of Bhagwan Dass. The prosecution also examined Kunj Bihari PW-3 who too stated that the appellants had come to him on 1-8-1994 and told him that they had committed a mistake and that on 30-6-1994 at about 8.00 PM appellant Harikant had kidnapped a male child aged 2 years of Sham Bihari and took the child to appellant Kalia in village Bajekan and both of them had kept the child in the house of Bhagwan Dass. On hearing Munadi on 1-7-1994, they got afraid and so on 2-7-1994, they took the child from the house of Bhagwan Dass and on the way thought that if they returned the child they would be caught and, therefore, they killed the child and threw the dead body in the canal near village Bajekan and had sought for their help. The witness along with Jogi Ram took the appellants to police post Khairpur and produced them before the police. In cross-examination he stated that both the appellants were known to him. Appellant Harikant and his brother whose name he did not know lived there. He correctly stated the name of father of Harikant as Joginder but he further stated that he did not know how many brothers Kalia had. He further stated that he did not know any brother, sister or parents of appellant Kalia. He stated that he had learnt about the disappearance of Aspatali on the next day of his disappearance and had also joined for his search. Jogi Ram had also joined the search on 1-7-1994. He denied if he ever suspected Bhagwan Dass and his wife in this case. The appellants had come to him at 5.00 PM and had stayed in the house of Jogi Ram for about half an hour and it was thereafter that they produced them before the police. Vidyarthi was examined as PW-4. He stated that he was returning from village Bajekan on 30-6-1994 at about 9.00 PM. Near railway crossing of village Bajekan he saw appellant Harikant taking a child who was weeping towards Bajekan. That child was aged about two years. He asked Harikant as to where he was taking the child and why the child was weeping. Harikant replied that the child was his own and he was taking him to appellant Kalia in village Bajekan. Next day he went to native village in district Balia (UP) and returned from there on 6-7-1994. He further stated that he was going to see his relations in village Bajekan where ASI Rajinder Sharma met him on the way. By then, he had already learnt that son of Sham Bihari was missing. He informed Rajinder Singh about the incident on the night of 30-6-1994. In cross-examination he stated that he had gone to 3/4 of his relations in village Bajekan, namely, Rajinder etc. He, however, did not remember the names of other relations. One of them was, however, sister's son of his co-villager Raj Kumar. Raj Kumar was working in GTM, Sirsa. On 30-6-1994, Raj Kumar had not gone with him to Bajekan as he had to go to his native village next day. He further stated that Rajinder is sister's son of Raj Kumar. Rajinder is resident of village Bansti. Other relations working at village Bajekan are also natives of village Bansti. His native village is Jamalpur. On 1-7-1994, he had gone to Jamalpur. Village Bansti is at a distance of 8 Kms. from Jamalpur. He had gone to village Bansti several times before 30-6-1994. He returned in Khairpur in his house at about 9.30/9.45 PM on 30-6-1994. He had not learnt about the disappearance of Sham Bihari's son before going to his village. He reached his house in Khairpur on 6-7-1994 at about 2.30/3.00 PM and learnt about the disappearance of Aspatali at about 5/6 PM on 6-7-1994. He did not inform Sham Bihari, Jogi Ram or anybody else that he had seen Hari Kant taking a child to Bajekan. On 7-7-1994 at about 11.00 AM he informed about this fact to the police at Bajekan. He denied the suggestion that he had not seen anything nor told anything to the police. Prosecution also examined Bhagwan Dass as PW-5. He stated that he knew the appellants. Hari Kant used to visit Kalia and also worked as his labour for 7/8 days. Otherwise, Hari Kant was a rickshaw puller in Khairpur. About 8 months back at about 8.00 PM appellant Kalia being his Seeri was sitting in the room of his house. Hari Kant came there with a child aged about two years. The child was weeping. He enquired from Hari Kant as to whose child that was and why he was weeping. Hari Kant told him that he was his own son and that he had come to leave the child with Kalia as his (Hari Kant's wife) had a quarrel with him. Hari Kant left the child with Kalia and left saying that he would take back the child next day around 11.00 AM. However, Hari Kant did not come next day to take the child. He then sent Kalia appellant to call Hari Kant to take him back, as the child was weeping. Kalia returned in the evening on 1-7-1994 and told that Hari Kant did not meet him. Then again on 2-7-1994 he sent Kalia to call Hari Kant. On that day at about 7 PM the appellants came to his house. Then he sent the child with Hari Kant at about 8.00 PM. In his cross-examination he stated that Kalia was his Seeri at Rs. 850/- per month and he used to take this amount in cash every month. His wife and children did not live there. Kalia used to work in his fields. On 1st and 2nd July, 1994 when Kalia went to call Hari Kant, the child was left behind in the room itself. In the absence of Kalia, the child was looked after by his children and his sister's children. He further stated that he had two issues and both were daughters. He denied the suggestion that some Tantrik had told him to give sacrifice of some male child to have a son and consequently he kidnapped and murdered the child and in collusion with the police got the appellants falsely implicated. Police had taken the witness as also his wife in custody in this case for interrogation. He was kept by the police for 17/18 days. However, his wife was released on the same day. He did not know if his wife was released by Krishna ASI and for that reason she was suspended on charge of taking bribe. He denied the suggestion that he had the red cloth stitched for the child and the police had seized those clothes and had returned the same later on. He did not know if this matter was also widely reported in the newspapers. He also did not know if GTM workers had taken out processions and rally demanding his and his wife's arrest as real culprits. Rajinder Singh ASI was examined as PW-6 and he detailed the steps that he had taken while investigating the case. In cross-examination he stated that Jogi Ram and Kunj Bihari are union leaders. He joined them in investigation for the first time on 1-8-1994. He did not know Vidyarthi PW earlier. He had recorded his statement near railway crossing of Bajekan. He had made his statement on the inquiries, when he met him there. He had not detained Bhagwan Dass for any span of time nor his wife was ever detained. Krishna ASI had been suspended but he did not know if she was suspended in connection with this case or on the ground that she released wife of Bhagwan Dass by taking the bribe. He denied the suggestion that Bhagwan Dass was real culprit and he in collusion with him absolved him and falsely implicated the appellants.
5. When examined under section 313 of the Code of Criminal Procedure, appellant Hari Kant besides denying the incriminating material put to him further stated that it was a false case as the witnesses were falsely deposing against him and that he was innocent. The appellants, however, did not lead any evidence in their defence.
6. We have heard Mr. G. D. Hans, learned Counsel representing the appellants and Mr. N. K. Sanghi, DAG, Haryana and with their assistance we have carefully gone through the records of the case. The prosecution in its endeavour to secure conviction against the appellants relies on the joint confession made by the appellants before Jogi Ram PW-2 and Kunj Bihari PW-3 as also or the statement of Vidyarthi PW-4 who is stated to have last seen the child of Sham Bihari. No motive has been alleged or proved against the appellants. It may also be mentioned that the police could not trace the dead body of Aspatali son of Sham Behari. The question that arises in the present case is as to whether the prosecution can secure conviction on the basis of joint extra judicial confession made by the appellants and the evidence of child having been last seen by PW Vidyarthi with the appellants. After giving our anxious thoughts to the statements made by Jogi Ram PW-2, Kunj Bihari PW-3 and Vidyarthi PW-4 and after hearing the learned Counsel representing the parties, we are of the view that chain of circumstances in this case is not complete so as to return a finding that the appellants alone were responsible for causing the death of Aspatali son of Sham Bihari.
7. Aspatali son of Sham Bihari could not be traced after 30-6-1994 after he had gone to play out of his house. As mentioned above, F.I.R. with regard to his unknown whereabouts and suspicion of Sham Bihari that he might have been killed by some unknown persons came to be lodged on 4-7-1994. Sham Bihari stated that no ransom for release of his son was ever demanded from him by the appellants or any other persons. He also admitted that news of disappearance of his son had spread in the locality on the night of 30-6-1994 itself. He also stated that he had informed Jogi Ram PW-2 and Kunj Bihari PW-3 on 3-7-1994 about the disappearance of his son. Jogi Ram PW-2 is President of G.T.M. where Sham Bihari was also working. The appellants are stated to have come to him in his house where incidentally Kunj Bihari, General Secretary of INTUC was also with him. The appellants are said to have stated before them that they had committed a mistake and that on 30-6-1994 they had kidnapped the male child of Sham Bihari. The child was taken to village Bajekan where appellant Kalia was residing. The child was kept there for two days and then they brought back the child. Fearing that if they returned the child at Khairpur, the police might apprehend them, they strangulated the child, threw the dead body in the canal and ran away to U.P. They also told him that when they saw Haryana Police in U.P., they returned from there and narrated the aforesaid facts to them. In his cross-examination he further stated that he had learnt about the kidnaping of child on 3-7-1994 for the first time and before that Sham Bihari had not given him any information about his missing son. Kunj Bihari has also deposed in tune with the statement made by Jogi Ram PW-2. He, however, stated that the appellants told them that on hearing Munadi on 1-7-1994, they got afraid and so on 2-7-1994, they took the child from the house of Bhagwan Dass and on the way thought that if they returned the child they would be caught and therefore, killed the child and threw the dead body in the canal near village Bajekan. He also stated that he learnt about the disappearance of Aspatali on the next day of his disappearance and had also joined for his search. Jogi Ram had also joined the search on 1-7-1994. These two witnesses differ on material particulars. Whereas PW-2 states that he had learnt about the kidnapping of the child on 1-8-1994 from the accused for the first time and before that Sham Bihari had not given any information about his missing son, PW-3 stated that not only he had learnt about the disappearance of Aspatali on the next day of disappearance but had also joined for his search on 1-7-1994. Whereas PW-2 stated that the appellants told him after throwing the dead body of the child in the canal they had run to U.P. and when they saw Haryana Police in U.P. they returned from there and narrated the facts to them, PW-3 stated that the appellants had told him that on hearing Munadi on 1-7-1994 they got afraid and so on 2-7-1994 they took the child from the house of Bhagwan Dass and in the way thought that if they returned the child they would be caught and therefore, they killed the child and threw the dead body in the canal near village Bajekan and had sought for their help. This witness did not state that the appellants had told him that after killing the child they had gone to U.P. and when they had noticed the presence of Haryana Police in U.P. they returned from there and then came to seek for his help. Not only the statement of these two witnesses with regard to the statements made by them before the police while confessing their guilt differs in material particulars, the Court is also unable to fathom as to why the appellants had chosen PW-2 and PW-3 to confess their guilt before them. These two witnesses are President and Secretary of INTUC respectively. Whereas Sham Bihari unfortunate father was also working in GTM, the appellants had no connection with these two witnesses. How can it be even remotely said that the appellants could repose faith in these two witnesses that they would help them. In the facts and circumstances, we are not inclined to believe that the appellants would have gone to PW-2 and PW-3 to confess their guilt. The case of the prosecution is based on extra-judicial confession said to have been made jointly before a person with whom they had no intimacy. Confession to such a person is devoid of credibility. A Division Bench of this Court in Ajit Masih v. State of Punjab (1998) 1 Rec Cri R 256 held that 'an extra-judicial confession which is said to have been made by the appellants before Kashmir Singh cannot be accepted in evidence for the simple reason that it was a joint one'. A Division Bench of this Court in Niranjan Lal v. State of Haryana, (1994) 2 Rec Cri R 620 : (1995 Cri LJ 248) where it was a case of three persons making a joint confession before a person with whom they had no intimacy, held that it was not disclosed as to who out of three accused persons disclosed the facts, all the accused could not state the same words and that no reliance could be placed on this type of confession. Delhi High Court in Oudh Ram v. State, 1982 Cri LJ 1656 held that a joint statement of number of persons cannot be said to be an information received from any particular of them. As a necessary corollary facts discovered in consequence of a joint information cannot be used as against any one of them.
8. In so far as evidence of last seen is concerned, we are of the view that no conviction on the said solitary piece of circumstantial evidence can be based. That apart, the statement made by Vidyarthi PW-4 does not inspire confidence. As per deposition made by him, he had seen appellant Hari Kant in the company of child on 30-6-1994 at about 9.00 PM when he was returning from village Bajekan. This witness did not know the identity of the child and therefore, asked Hari Kant as to where he was taking the child and as to why he was weeping. If the witness had no idea about the child, there was perhaps no occasion for him to have asked the appellant Hari Kant as to where the child was being taken and why he was weeping. Be that as it may, he returned from village Bajekan on 6-7-1994 and as per his statement when he learnt that son of Sham Bihari was missing, he informed Rajinder Sharma about the incident of the night of 30-6-1994. It may be recalled that far before he gave information, the appellants are said to have already confessed their guilt before PW-2 and PW-3. This witness when cross-examined did not remember the names of his relatives to whom he had gone to meet in village Bajekan. One of them, he stated was sister's son of his co-villager Raj Kumar. On 30-6-1994 Raj Kumar had not gone with him to Bajekan as he had to rush to his native village next day. On 1-7-1994 he had gone to village Jamalpur. Village Bansti is at a distance of 8 Kms. from Jamalpur. He had also gone to village Bansti during the aforesaid visit. The purpose of visit to village Bajekan and return on 7-7-1994 and other connected matters are absolutely not clear. In these circumstances no implicit faith can be placed upon the statement made by this witness. The only other evidence led by the prosecution is the statement of Bhagwan Dass PW-5 in whose house the child is said to have been taken by appellant Hari Kant. As per statement made by him when the child was weeping, he enquired from appellant Hari Kant as to whose child he had brought and why he was weeping. Appellant Hari Kant told him that it was his own child and had come to leave him with Kalia as his (Hari Kant's) wife had quarrelled with him. It is rather strange to note that how could Bhagwan Dass believe such an explanation. Even if the appellant Hari Kant had quarrelled with his wife, there was no question of leaving the child to somebody else particularly when the child was to be taken back the very next day. Further if Bhagwan Dass did not know the identity of the child, it cannot be said with precision that it was Aspatali son of Sham Bihari who might have been brought by the appellant and kept with Kalia at village Bajekan for two days. It may be recalled that this witness was also detained by the police in connection with the very offence for which the appellant have been charged. He admitted that the police had kept him for 17/18 days even though his wife was released on the same day on which she was detained. He denied the knowledge whether his wife was released by Krishna ASI for which she was suspended for taking bribe. It may be recalled that the appellants have suggested to this witness that he had no male child and was advised by a Tantrik that he should give sacrifice of some male child to be blessed by a male child in his family. So, much reliance cannot be placed on the statement made by this witness.
9. In view of what has been said above, we are of the view that circumstantial evidence led by the prosecution is not enough to hold the appellants guilty of the charge framed against them. There are many chinks in the link of circumstantial evidence led by the prosecution and therefore, it is not safe to convict the appellants of a murder charge for which they faced trial.
10. This appeal is consequently allowed and the order of conviction and sentence recorded by the Additional Sessions Judge against the appellants is set aside. The appellants are ordered to be set at liberty forthwith, if not required in any other case.
11. Appeal allowed.