D.L. Mehta, J.
1. Deceased Virendra Singh was managing the affairs of truck No. RRQ 44, which was used for transporting the goods from jodhpur to Bombay. Mukansingh was the owner of the truck. He was the cousin of deceased Virendra Singh. Accused Hardaram was the driver of the truck and on February 4, 1978, he left for Bombay with a loaded truck. Deceased Virendrasingh was accompanying him. On 7th February, 1978, Virendra Singh and accused Shankeriya, Anandram reached Bombay and after unloading the goods, they left for Kankroli. On 9th February, 1978, they unloaded the goods at Kankioli J.K. Tyres Factory and, thereafter, reached the Nathdwara and loaded the truck and left for Bombay. It is further stated that the truck passed on 1th February, 1978 from Bornbay-Ahmedabad High-way.
2. It is alleged that accused Anandaram was the cleaner of the truck & he was accompanying deceased Virendra and the accused Shankeriya, through-out. On 11th Feb., 1978, Shankeriya unloaded the goods and informed about their arrival at Bombay Branch Golden Transport Company. It is further stated that accused Snankeriya informed the Manager that Virendra Singh has dropped at Gorbandar and has directed him that after unloading the goods, he should report at the Branch Office. Shankeriya also informed the manager of the Tiansoort Company that Virendra Singh deceased has dropped at Gorbandar for the purpose of realisation of the dues, which was outstanding as inst the persons who were using the truck for the purpose of loading and unloading the truck Accused Shankeriya further requested on the new day that the information should be given to the Head Office that Virendra Singh has not reached so far. Padam Singh, who is the first informant in the case and who has been examined as a prosecution witness, was informed that Virendra Singh has not reached so far at Bombay. On the next day, Padam Singh contacted.the Transport Company Bombay Branch and enquired about Virendra Singh, Bombay Brach informed Padam Singh that Virendra Singh has left for Gorbandar and has not reached so far Padam Singh was also informed that the driver and the cleaner have unloaded the goods. Padam Singh waited for three days and, thereafter, he left for Bombay. On 16th Feb., 1978, Padam Singh lodged the information at police station, Jodhpur. He also requested the Superintendent of Police, Jodhpur to send a radio-gram to Police Commissioner, Bombay to trace out Virendra Singh. On 16th February, 1978, a radio-gram was sent by S.P., Jodhpur to the Commissioner of Police, Bombay Padam Singh directed Shivnardyan, who is his brother-in-law, to proceed for Bombay in search of Virendra Singh. Shivnarayan returned on 26th February, 1978, and he could not succeed in tracing out the deceased. Thereafter, Padam Singh and Shivnarayan both left for Bombay along with the accused persons to trace out Virendrasingh. In a daily news-paper 'New BharatTimes' photo of Virendra Singh was published and general public was requested to inform about his where abouts. On July 3, 1978. Padam Singbjlodged the first information report at police station, Sardarpura, Jodhpur under Sections, 364 & 120B, IPC. Ex P/44 is the FIR and the details of the occurrence have been given in it. He has stated therein that be has made enquiries and now be is satisfied that both the accused are history-sheeters of Maharashtra and have committed the murder of his son Virendra singh. Motive for the commission of the crime has been shown in the first information report is that Virendre Singh has 2.5000 to 3,000 Rupees with him at the relevant time.
3. Accused Andaram was arrested on 11th July, 1978. Tie investigating agency was of the view that Virendra Singn has been murdered nearby Chin choti Ki Ghati, Maharashra. The investigating agecy, at the instance of the accused persons, recovered some bones from nearby the place, which is shown as Chin-choti Ki Gbati However, during the trial it was found that the bones recovered by the police are not of the bones of human being, but the bones are of the animal. Some articles were also recovered from the possession of the accused, after their arrest. Accused Kisohriya was arrested on August 21, 1978 and some articles of the deceased; were recovered from him after, investigation, the prosecution submitted off charge-sheet under Sees. 302/24, 20B and 201, IPC. Accused person in their statements have stated that they have not committed the murder art they have stated the same version, which was given by them to the Bombay Branch Office. There is no direct evidence to connect the accused with 4th commission of the crime 1 he whole case hinges on the circumstantial evidence. The first question which arises for the consideration of the Court is whether Virendra Singh is dead or not? On behalf of the accused, it was stated that the prosecution has miserably failed to estiblish that Virendra Singh is dead. Recovery of the dead body may be a linking evidence, but in the absence of the recovery of corpse, the court cannot come to the conclusion that Virendra Singh is dead.
4. In the instance case, the prosecution has recovered the bones at the instance of the accused-persons. However, during the investigation it was found that the bones recovered are not the bones of the human being, but are the bones of the animal. Learned Sessions Judge has considered the point and found that Virendra Singh is dead. PW 3 Harnarayan, Manager of the Jodhpur Golden Transport Company, has stated that on February 4, 1978, Virendra Singh left Jodhpur and has not returned so far. Budhlal (PW 27) has also stated that Virendra Singh left Jodhpur on 4th February 1978, and, thereafter, he has not relumed. PW 14 Mukan Singh, who is the owner of the truck, has also stated that Andaram was the driver of the truck since 1977 and Shankeriya was the cleaner of the truck since then. He has further stated that he made a search and he has come to the conclusion that he has been murdered. PW. 30 Parmanand has states that in the month of February, 1978, he was the Assistant Manager Jodhpur Jodhpur Golden Transport Company, Bombay Branch. He has futher stated that Virendra Singh used to accompany them and both the accuse-persons were driver and cleaner. He has further stated that on 12th February, 1978, he went to Gorbandar, but he could not find out about the deceased. PW. 28 Chimnaram, who is the driver of the other truck, has stated that he could not find out Virendra Singh and so he suspects that he might have bjen done to death. PW 26 Padatnsingh the father of the deceased, bas stated that his son left Jodhpur on 4th February, 1978, and, thereafter, he lodged the missing report Ex. P/48 on 15th February, 1978. He has further stated that he lodged the information about the missing of Virendra Singh at police station, Udaipur and, thereafter, when he was satisfied that his son is not alive, he lodged the first information report Ex. P/3 ' on 3rd July, 1978. Thus, he wants to say that for, a period of about 5 to 6 months, he tried to search out Virendra Singh and when he failed to find out where abouts of Virendra Singh, he lodged the FIR. PW 21 Mohandas has also stated that he tried to find out Virendra Singh but he could not traca him out. PW. 5 Shivnarayan, who is the maternal uncle and who has raken a lot of trouble to search out Virendra Singh, has stated that he could not trace oat Virendra Singh. PW. 4 Ganesha Sitaram Taterkar, Head wonstable has come in the witness box and has stated that Kishoriya accused lodged the information about the missing of Virendra Singh, which has been recorded at police station, Mahinder and has been marked as Ex. P/36. He has also proved the diary Ex. P/18, in which missing report has been mentioned. He has also proved Ex. P/59, the register in which the factum of missing of Virendra Singh has been mentioned, thus, PW 41 Ganesha Sitaram Taterkar, is the witness to show that the missing report was lodged at police station, Mahinder. Virendra Singh had a Saving Bank Account at Vijaya Bank Ltd. Jodhpur. PW. 18, K Shanker Sethi, the Manager of the Bank, has stated that account was opened on 18th January. 1978 and has not been operated since then. Missing report and the photo of the Virendra Singh have also been published in 'Navbharat Times'. Learned Sessions Judge has considered this evidence as sufficient to establish the fact that Virendra Singh is dead.
5. Learned Counsel for the appellants has vehemently submitted that all the witnesses referred to above have stated that Virendra Singh is missing. None of them is having any direct knowledge about the death of Virendra Singh. Section 107 of the Evidence Act provides that when the question is whether a man is alive or deal, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. Thus, the burden lies out the prosecution to prove the death of Virendra Singh. Only on the basis of surmises and conjectures, a presumption cannot be drawn that Virendra Singh is dead. All the witnesses, referred to above, have stated that since February, 1978, Virendra Singh is missing Statements of these witnesses were recorded by the trial Court and the judgtnent: was pronounced on 2nd July, 1979. Thus, at the time of pronouncing the judgment, a period of about one year and five-and-half months passed away and it is an admitted position that nothing has been heard about Virendra Singh thereafter. The question arises for consideration is whether a presumption can be drawn about the death of Virendra Singh on the basis of nothing has been beard about Virendrasingh after February, 1978. Section 108 of the Evidence Act provides that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by these who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. Thus, according to Section 108, a presumption can be drawn about the death after seven years, if nothing has been heard of the person for seven years by those who would naturally have heard of it if he had been alive. Thus, the law requires that the presumption about the death can be drawn after seven years, if nothing has been heard about the missing person by the persons who are naturally expected to hear about it. Thus, on the basis of the evidence produced by the prosecution, it is very difficult to draw the presumption that Virendrasingh is dead. Virendrasingh may not be alive, but there is nothing on record to show that he is dead. No cogent evidence is available and only the evidence available is that nothing has been heard about Virendrasing for a long period of six months to oneand-half year. We think that the learned Sessions Judge was not justified in d awing the presumption about the death of Virendrasingh. Learned Sessions Judge has held that Virendrasingh was in the company of the present two appellants. This fact is not in dispute and it has not been disputed by the accused also. They say that Virendra Singh was managing the affairs of the truck. It is also an admitted position that both the accused-persons were the employees and were travelling regularly with Virendrasingh in the truck. It is also an admitted position that Virendra Singh was with them since 4th February, 1978. Both the accused have stated in their statements that Virendra Singh dropped at Gorbandar and directed them to report at Branch Office, Bombay. They have specifically stated that after unloading the goods, they reached the Branch Office, Bombay and stated that Virendra Singh has dropped at Gorbandar and has directed them that they should report at Branch Office. It is an admitted position that the accused persons lodged the missing report also. Thus, as far as the present case is concerned, the important fact is whether the explanation given by the accused-persons during investigation and trial and also at the earliest opportunity, is trust-worthy or not. PW 30 Parmanand has specifically stated that both the accused came on 11th February, 1978, and informed him that deceased has dropped at Gorbandar. Hi has further stated that subsequently, he went to find out about the deceased at Gorbandar, but he failed in his mission. Thus, at the earliest opportunity, accused persons have given the information that the deceased has dropped at Gorbandar, is sufficient to create the suspicion in the mind of the court about the truthful version of the prosecution case. If there would have been otherwise, then the accused might have not informed the Manager of the Branch Office, Bombay about the fact that Virendra Singh has dropped at Gorbandar. Even otherwise, the fact that accused unloaded the truck, informed the manager and, thereafter, participated throughout in the search of Virendrasingh goes to show that the accused were not aware about the death of Virendra Singh.
6. Learned Sessions Judge, after considering the report of the Chemical Examinar, has come to the conclusion that the bones which were recovered at the instance of the accused were not the bones of the deceased.... They have murdered Virendra Singh and have thrown the dead body at a distance of about 20 kms. away from Dai Jar Noka. The place which is said to have been shown is the place from where the animal bones were recovered by the police. He has further stated that he enquired from Kishoriya whether the version given by Andaram is correct or not. He also stated that Kishoriya deposed that Andaram is giving the correct version, He has further deposed that when he asked the accused to accompany him so that they may go to the father of Virendra Singh, then the accused declined and stated that you go, we will come later on. On cross examination, he has stated that thereafter he went at the residence of Padam Singh, but he could not find Padam Singh. He has further stated that the police recorded his statement under Section 161, Cr. PC, i.e, aftfr 9 or 10 days. He has Umber stated that during the period of 9 or 10 days, he has not disclosed this fact to anyone This statement has been confronted to the police statement Ex. D/3 to contradict him on the point of going at the residence of fadam Singh, father of Virendra Singh. The motive for the commission of the crime, which is alleged to have been shown is the dispute about transaction. This witness has further stated that accused as not come to him, but they met him in the way and they confessed before him on the road. He has deposed that alter live months Prabhuram came He further deposed that he is having no relasions with Padam Singh, as both are dealing with the trucks. He has further stated that after five months, the accused left and be has not enquired where they are going. PW. 10 Prabhuram has also stated that when he was going, he asked Karnaram (PW. 9) that whereabouts of Virendra Singh are known or not. Thereupon, Karnaram told him that he is talking with Andaram and Kishonya for the same matter. PW 10 Prabhuram has further stated that Andaram deposed that Kishoriya caught hold on Virendra Singh and he stabbed him He has further stated that the place of incident was shown, but he is not in a position to state. This witness has further stated that Padam Singh met him on 20th July and the police recorded his statement after about 10 days. This witness has been confronted with his police statement Ex. D/4. This witness has further stated that when his statement was recorded by the police under Section 16, Cr. PC. Karnaram was present there. He has further deposed that he has neither intimated to the father of Virendra Singh nor to anyone else. He hrs stated that he is having a telephone, but he did not inform anyone even on phone. He has stated that he was going on foot and they had talked en the main toad of Jalori gate, which is a distance of about half kilometre from the Shaneshcharji Ka Than.
7. We have given a thoughful consideration on the point of extrajudicial confession, which is alleged to have been made by the accused. The occurrence is alleged to have taken place in the month of February on or about 10th or 11th of February. Both the accused have throughout given a different version to all the persons and have stated that Virendra Singh talked in the way to collect the money from the customers and they were directed to reach the Bombay Office, after unloading the goods. It is an admitted position that both the accused unloaded the goods in the way, reached the Bombay Office and informed the Bombay Office on 11th that Virendra Sirgh had talked in the way to collect the money and directed them that they should stay at Bombay and he will come back On the missing report, which was lodged at Bombay and other places, the same fact has been mentioned. It is not understandable that after a period of about five month's, these witnesses will depose in a way different version which they have given consistently for a period of about five months. Apart from that, it is an admitted petition that both the witnesses deposed that they were going in different directions and met in the way near Jalorigate on the main road. It is alleged that these witnesses enquired about Virendra Singh and thereupon there witnesses confessed before them. No sane man will confess on the main road. A confession can be made in a natural way before the persons in whom the accused are capable of reposing the confidence. (sic) the witnesses are dealing in the trucks and they were interested in Virendra Singh and they were trying to find out about the whereabouts of Virendra Singh. Father of Virendra Singh was police officer at Jodhpur and they were in direct touch wish the father of Virendra Singh. The statements of these witnesses have been recorded after 8 or 10 days after the alleged extrajudicial confession. It is not understandable that these witnesses will not disclose this fact of extra-judicial confession to any of the persons. They were in Jodhpur and it was expected from them that they will inform the persons who are really interested in Virendra Singh or in any way they will inform the police about the commission of the offence. There are also other inconsistencies in the statements of the witnesses and their conduct is unnatural. These witnesses cannot be relied up an and the extra-judicial confession, which is alleged to have been made by the witnesses cannot be accepted and the conviction cannot be based on this wrak type of evidence, which has been produced by the prosecution. Apart from that, the prosecution has come with a theory that the accused were misleding the family members for pretty long four or five months. It is alleged that the accused informed the Branch Manager, Bombay that Virendra Singh has dropped in the way and for this reason, the search was made continuously for a period of four or five months If this theory is accepted, then it goes to show that the accused were clever enough to mislead the prosecution agency. The investigation was taken in hand as well as in the month of February, 1977 and the accused party moved with the relatives of the complainant throughout for a period of four months in search of Virendra Singh. In such circumstances, the probablity is that such accused persons will not make the extra-judicial confession after a period of four or five months before the strangers who were interested in finding out where abouts of Virendra Singh. The extra-judicial confession, which is said to have been made on the main road, also throws doubt about the correctness of the extra judicial confession so made For this reason also, we are not inclined to accept the theory of extra-judicial confession. The learned Sessions Judge has considered the submission of PW 24 Pannalal for the purpose of coming to the conclusion that there was a conspiracy PW 24 Pannalal is a Mistry in the Garrage of one Pokarji. He has seated that Andaram, driver and Shanker, Khalasi and Virendra Singh came in his workshop with truck No. RJQ 834 for the purpose of spray painting. He states that he declined and stated that in their workshop, they will not be able to have a spray painting for five to six days. Thereupon, the accused told get it done at other place. He has further stated the present accused and Virendra Singh had an altercations and Virendra Singh went to the hotel and said to me that please give the estimate. He has further stated that the accused remained standing behind the truck and then talking that Virendra Singh is harassing us and so we will harm him later on. He has further stated that he told the accused that such remarks should not be passed against the owner of the truck. In cross-examination, he has stated that this talk took place in the first week of February, 1977 at about 10 or 11 AM. He has further stated that the spray painting was not done by them. He has further stated that the owner of the Garrage was not on the spot. He has further stated that the police came to Pokar 'mistry'. The witness has been examined in the month of July, 1979 and he was not in the know of the fact that it was his duty to report to the police or to police station. Even non-reporting of this fact to Virendra Singh is a serious infirmity in the case and the evidence of this witness cannot be relied upon.
8. Learned Counsel for the parties have also invited our attention to the statement of PW 30 Parmanand to show that the conduct of the accused was up-natural. PW. 30 Parmanand has stated in his statement that on 11th February, both the accused came with the vehicle and Virendrasingh was not present. We has further stated that at about 4 PM the driver Andaram asked whether any information has been received about Virendrasingh. He has further stated that he has not received any information about Virendra Singh and thertupon the accused told him that Virendra Singh dropped at Gorbandar and he asked us to unload the weh cle at Kalyan and, thereafter, to report you He has further stated that Kishoriya accused told that Virendiasirgh had about Rs. 2,000/-. He has further stated that on the next day, we informed Jodhpur office that Virendrasingh had not reached so far. Padamsingh, who is the police officer and the father of Virendra Singh rang to him. The matter was reported to the police on 12th that Virendra Singh is missing. He has further stated that on 13th, they got the truck loaded and asked the driver to leave for Kankroli. He has further stated that he left on 17th for Jodhpur. This witness has stated that the statement was recorded by the police in the month of August, 1979, i.e, after six months of the incident. He has stated that he cannot say about the arrivals and departures of the vehicle. This witness does not support in any way the case of prosecution. There is an allegation that the deceased was alive up to 9th and on the intervening night of to h and 11th, he has been done to death. If this would have been the case, then in the normal course, the accused will not unload the truck at Kalyan and will report for duty at the Bombay Office. The prosecution has tried to show that the motive for the commission of the crime was that Virendrasingh had about Rs. 2,000 and the accused wanted to take away the benefit If it is so, after the commission of the offence naturally, the accused will run away with the goods and will not report to the Branch Office at Bombay. Thus, the conduct of the accused is natural and it cannot be said that the accused has fabricated a false theory. The theory which the accused has put to the witnesses is a natural theory and has been part at the earliest opportunity. This witness does not in any way support the prosecution, as far as the commission of the offence is concenmed. Ex. P.38A is the entry of the police diary at station Mohinder district Thana Maharashtra. The version, which has been given by the accused to PW 30 Parmanand, has been repeated in the police diary on 14th February, 1978 and the same story has been given by the accused We do not find any infirmity in the defence theory and there is a probability, may be that Virebdra Singh might have dropped at Gorbandar, cannot be ruled out. On the contrary, the version given from time to time by the accused from 11th February, always goes to show that there is a every likelihood that Virendrasingh might have dropped at Gorbandar for business purposes. The theory that the accused was not seen for the last four five months in the company of the deceased Virendra Singh is not relevant as far as this case is concerned. It is an admitted position that the accused were driver and cleaner and Virendra Singh is managing the affairs of the truck. They were travelling jointly regularly in the truck for business purposes and the theory given by the accused party that Virendra Singh dropped at Gorbandar and instructed them to go to Kalyan and unload the goods and, thereafter, report at the Branch Office, Bon bay, cannot be said to be false. The next set of evidence against the accused Anandaram is the discovery and recovery of some of the articles PW 38 Aidanram. who the investigating officer in this case, has stated' that accused Anagram informed him that he has kept the wath of Virendrasingh in the truck. The information report under action 27 was recorded and has been marked by the investigating officer as Ex. P 46 He further stated that he deputed Bhimsingh, ASI, for the purpose of recovery of (he watch Ex. P.46 the information memo s dated 18th July, 1978 and the recovery has been affected on 19th Jul,. 1978. Recovery memo is Ex P/1, PW.34 Bhimsingh has stated that on Hth July, 1978, he arreted the accused Anandaram. He is the same person who has recovered the bones at the instance of the accused and which later on found to be bones of the animal PW. 6 Mohanlal is the witness of the recovery of the watch. He has stated that he was taken in the jeep by the police officer to the Dhani of Anandaram and the watch was recovered there. PW 6 Mohanlal is the other witness of the recovery of the watch. This watch has been identified before PW 25 Padamsingh before he learned Magistrate. The prosecution has succeeded in proving the recover of the watch of Virendra Singh It is further alleged that the accused Ananda Ram was putting on the 'bushirt' and 'pant' at the time of his arrest (sic) Singh PW 26 as stated that the clothes were of the deceased Thus the very of the clothes bushirt' and pant' and the wath has been produced by the prosecution against Andaram accused. Similarly, as far as the accused Shankenya Kishonya is concerned, pass-book Article 15 of Vijay Rank shoes of the deceased, attach Article 7 'bushirt' and 'pent' Articles 18 and 9 have been recovered It is alleged that these articles belong to the deceased. All these recoveries have been effected in the month of July 19/8 i.e., after a period of more than five months' from the date of the alleged offence. These recoveries are not sufficient to connect the accused with the commission of the crime of murder. Learned counsel for the annelid if submitted that Virendra Singh might have dropped and articles might of in the truck and might be m the possession of the articles because they the possession of the truck when Virendra Singh dropped. Learned Counsel for the appellant has also submitted that the recoveries are false one and cannot be relied upon. He has further pointed out that even if it is assumed for the sake of argument that these recoveries were affected by the accused persons but these recoveries are not sufficient to connect the accused with the commission of the crime, specially when the offence has taken place on or a about 12th of February, 1978 and the recoveries have been affected on or 19th of July, 1978 if we assume that the articles were in the truck even to it was a original breach of trust and the accused were bound to report it the legal representative of the deceased Virendra Singh, but it was me no It may be a case of theft also. However, this recovery in not sufficient to connect the accused with the commission of the crime. No other ground has.
9. In the result we accept the appeal of the accused-appellants in prat, set aside the conviction under Section 302, IPC The accuse-appellants are behind the bars for a period of more than six years'. We convict both the accused-appellants are behind the bars for a period of more than six years'. We convict both the accused-appellants under Sec 411 and sentence them to undergo three years rigorous imprisonment. Both the accused-appellants have already undergone the sentence awarded to them and as such, it is directed they should be set at liberty immediately, if not required in any case.