JUDGMENT

S.P. Kurdukar, J.-This Criminal Appeal is directed against the judgment and order dated June 24, 1985 passed by the Sessions Judge, Special Court, Ferozepore, convicting both the appellants - accused for an offence punishable under Section 302/34 IPC.

2. The appellants - accused were put up for trial before the Special Court for committing the murder of Harjit Singh alias Raju aged about five years. He was the son of Mohinder Singh, the brother of Inder Singh (P.W.6). It is the case of the prosecution that on December 14, 1984, Raju while playing along with his friends in front of their house, was found missing in the evening. A missing information was lodged with the police. Inder Singh (P.W.6), Mohinder Singh and other relatives of Raju searched him throughout the night but could not trace him. However, on 15th December, 1984 at about 7 p.m. these witnesses noticed a crowd near the DAV College and after going there they found the dead body of Raju lying near the school compound. They also noticed that the amulet and rod which were worn by the deceased Raju were missing. An FIR was then lodged with the police station, city Fazilka and thereafter investigation commenced. During the course of investigation on 31.1.1985, the accused came to be arrested. The accused being interrogated made a statement under Section 27 of the Indian Evidence Act which led to the recovery of amulet. It also transpired during the investigation that the accused made an extra- judicial confession before one Pala Singh (P.W.7), a Municipal Commissioner at Fazilka. As regards motive, the prosecution case was that in the year 1971 Inder Singh (PW 6) who was then unmarried, had a love affair with Dialo, a sister of Balbir Singh (A-1) and once they were caught in a compromising position. On seeing this Balbir Singh (A-1) was terribly upset and on two occasions he had challenged Inder Singh and told him that he will take a revenge at the appropriate time. This love affair, according to Inder Singh ended after he got married. Dialo was also married very soon after the said incident. After completing the investigation the accused were tried for the aforesaid offences.

3. Both the accused pleaded not guilty to the charge and claimed to be tried. According to them they are innocent and they have been falsely implicated in the present crime.

4. The prosecution in support of its case relied upon the evidence of as many as nine witnesses which included Mohinder Singh (P.W.5), the father of the deceased Raju, Inder Singh (P.W.6), the brother of Mohinder Singh and other formal witnesses.

5. It is not and cannot be disputed that Raju met with a homicidal death. It is needless to set out the various injuries that were found on the dead body of Raju. Dr. Inder Mohan Challana (P.W.1), who performed the autopsy stated that Raju died due to several ante mortem injuries. It can, therefore, be safely concluded that Raju met with a homicidal death.

6. At the outset it may be stated that the prosecution case rests upon circumstantial evidence. The learned trial judge in paragraph 19 in his Judgment pointed out five circumstances (A to E) and according to him each one of them has been conclusively proved by the prosecution and these circumstances if put together complete the chain of circumstances to prove the guilt of the accused.

We may also state that the learned counsel appearing for the parties did not dispute that these are the only five circumstances on which the entire prosecution case rests :

(1) Motive;

(2) Medical evidence;

(3) Foot prints at the spot;

(4) Recovery of amulet and thread;

(see sic rod) and

(5) Extra Judicial confession by the accused.

7. Coming to the first circumstance, namely, the motive, it is stated by Inder Singh (P.W.6) that he had developed illicit relations in the year 1971 with Dialo, the sister of accused No. 1 and because of this,