JUDGMENT 1. - Rammi alias Ramaiya has filed this appeal challenging his convictions and sentences under sections 302 and 380 I.P.C., where under the learned Sessions Judge, Alwar, passed the sentences of imprisonment for life and a fine of Rs. 500/- in default whereof to suffer a sentence of six months' rigorous imprisonment, under section 302 I.P.C. and one year's rigorous imprisonment under section 380 I.P.C. 2. One Baba Shiv Giri used to reside in a temple of Hanumanji at place Garbaji. On the intervening night of 27th and 28th June, 1972. it is alleged that he was murdered. Next morning, a report was lodged vide Ex. P. 5A by Madan Lal P W. 6, in which a doubt was cast that the accused was staying pith the deceased at that temple a day prior to the date of murder, and therefore, he might have committed that crime. It was also reported that same articles belonging to Baba Shiv Giri, namely, one Chadar, one Arandi, one Ballam and one Kulhari were missing & his shoes were also misting. It was also reported that certain articles, namely, towel Art. 12. one Langot Art. 13 and a pair of shoes of some body Art. 11, were found at the place of murder. 3. The appellant could not be apprehended till September 13, 1972. After his arrest, the accused furnished information regarding the where about of the missing articles. It is alleged that the investigating agency, in pursuance of that information, recovered Chadar Art 6 and Arandi Art. 7. It is also stated that at the time of his arrest, the accused was putting on a pair of shoes Art. 1 and they were recovered from his person, from the Kothri of one Raghubir P.W. 9. 4. The investigating agency also recovered, in pursuance of the information furnished by the accused, one Ballam and one Kulhari from the Garba hills. After investigation, the appellant was challaned for offences under sections 302 and 380 I.P.C. 5. The prosecution examined as many as 19 witnesses and tried to prove the extra judicial confession of the accused and the various recoveries made at the instance of the accused person. The accused admitted to have gone to the temple of Hanumanji to hate "darshan" of the deceased Baba Shiv Giri, but he denies the charge that he committed the murder of said Babaji. 6. The accused admitted to have gone to the temple of Hanumanji to hate "darshan" of the deceased Baba Shiv Giri, but he denies the charge that he committed the murder of said Babaji. 6. The learned trial Judge, after closely examining the evidence produced by the prosecution, found the accused guilty of murder and passed the order of conviction, as referred to above. It is against this judgment that the appellant has preferred this appeal. 7. The prosecution placed reliance on the following types of evidence: (1) the accused was last seen with the deceased; (2) the articles belonging to the accused were found at the place of occurrence; (3 the articles of the deceased, which were found missing after his, death, were got recovered by the accused after furnishing information under section 27 of the Evidence Act; (4) the alleged weapons of offence were recovered at the instance of the accused; and (5) there was an extra-judicial confession made by the accused before P.W. 1 Deshraj and P.W. 2 Nanu Ram. 8. So for as the presence of accused at the temple of Hanumanji on the fateful night is concerned, the same has been admitted by him saying that he had gone to have a "darshan" of the deceased Baba Shiv Giri, but from the evidence of P.W.7 Bishnoi Nath, P.W.11 Kanu Ram, P.W 12 Ram Niwas and P. W.13 Bhagwana, it is established that the accused was seen at the temple only up to 5 p.m. It is in the post-mortem report of the doctor that the death must have been caused in the night. It is not known as to when the accused left the temple and who else visited the temple in the night and therefore the presence of the accused at 5 p.m. on a day prior to the date of death, cannot be taken to be an incriminating circumstance to connect the accused with the act of commission of murder. 9. According to the prosecution case, towel Art.12. Langot Art. 13 and shoes Art. 11, alleged to be belonging to the accused, were found at the temple. They were recovered by investigating officer when he went there for investigation. 10. 9. According to the prosecution case, towel Art.12. Langot Art. 13 and shoes Art. 11, alleged to be belonging to the accused, were found at the temple. They were recovered by investigating officer when he went there for investigation. 10. P.W.12 Ram Niwas and P.W.11 Kanu Ram have deposed before the Court that he had seen these articles, namely, shoes Art.11, Langot Art. 12 and towel Art 12 with the accused day before the murder, but these articles were never put for test identification by these witnesses before they were made to identify them in the Court. The accused has denied to have owned these articles. In the absence of prior identification, it is difficult to accept the testimony of these two witnesses to prove that shoes Art 11, Langot Art. 13 and towel Art.12 belonged to the accused. It is in the evidence and it is an admitted case of the accused also that he had visited the place of occurrence, i.e., the temple of Hanumanji, to have the "darshan" of the deceased Biba Shiv Giri. Even if these articles are accepted to be of the accused, then it does not go to prove anything else except that he had visited this place, which he himself admits. In these circumstances, the presence of Arts. 11, 12 and 13 on the spot of occurrence, cannot be considered to be a circumstance which connects the accused with the act of murder. 11. We next come to the recovery of one pair of shoes Art. 1, which was recovered by Shri Mahendra Singh P.W 4, who was the Assistant Sub. Inspector of Police Station, Gurgaon, and who arrested the accused at Gurgaon. Mahendra Singh states that the accused was wearing these shoes at the time of his arrest but this statement of Mahendra Singh does not find corroboration from the statement of jai Narain P.W.5, who was a witness of these shoes. P.W. 5 Jai Narain says that when the recovery memo was prepared, the accused was behind the bars, whereas the shoes were lying outside the lock-up. Apart from this infirmity in the recovery of these shoes, there is another weakness in the prosecution case that these shoes were never identified to be belonging to the deceased. P.W. 5 Jai Narain says that when the recovery memo was prepared, the accused was behind the bars, whereas the shoes were lying outside the lock-up. Apart from this infirmity in the recovery of these shoes, there is another weakness in the prosecution case that these shoes were never identified to be belonging to the deceased. P.W.8 Chiranji is a prosecution witness who has been produced to prove that he had prepared the shoes for the deceased, but in his cross-examination, he admits that he has been preparing such shoes for the last 30 years and that the deceased never asked him to prepare any shoes. He also states that the shoes Art 1 were given by him to one Ram Niwas, who might have given to Baba Shiv Giri. No doubt, Ram Niwas says that he had taken the shoes from the Chamar and passed it on to Babaji, but these shoes were never put up for identification. He further says that shoes Art.1 were not manufactured by Chiranji, Chamar. However, this evidence of the shoes further suffers from the infirmity that the investigating agency did not take care to get the shoes identified prior to its identification in the Court. This identification by the witness in the Court, therefore, does not get any support from prior identification. The recovery of the shoes, in suspicious circumstances, cannot connect the accused with the crime in question. 12. Now remains the recovery of the Articles, namely, Chadar Art. 6 and Arandi -Art. 7. These two articles were recovered from the Kothri of Reghubir Singh P.W. at Makrela, district Ghaziabad. This place, from where these two articles were recovered, is an open place, frequented by the servants and the members of the family of Raghubir. It is true that in the first information report Ex. P. 5A, these two articles were mentioned as missing, but no specific identification of marks were shown which could fix the ownership of these two articles to the deceased, specially when the accused claims them to be his own. 13. We cannot believe that the motive of murder could be to steal these two articles only specially when the articles were stolen, articles worth Rs. 300/- lying in the temple of Hanumanji. In such circumstances, the recover of these two articles does not establish, beyond all reasonable doubt, the act of theft committed by the accused. 14. 13. We cannot believe that the motive of murder could be to steal these two articles only specially when the articles were stolen, articles worth Rs. 300/- lying in the temple of Hanumanji. In such circumstances, the recover of these two articles does not establish, beyond all reasonable doubt, the act of theft committed by the accused. 14. Kulhari and Billam, which were missing from the place of occurrence, were recovered from a place from Garba hills, which was an open place and therefore this recovery can hardly help the prosecution to connect the accused with the crime. Moreover, these two articles do not bear any blood marks or them, and therefore, it is difficult to say that they were used in the commission of the crime. 15. Now remains the extra-judicial confession alleged to have been made by the accused to one Deshraj P.W. 1, who was an employer of the accused about 4 or 5 years back. According to this witness Deshraj, the accused came to his village after a very long time and when he enquired about this long gap of time, it was informed by the accused that he had committed murder of one Baba in the hills near Alwar and had committed theft of shoes, Chadar and some other articles. This testimony of P.W. 1 Deshraj no doubt finds corroboration from the statement of P.W. 2 Nanu Ram. According to this witness, this confession was made by the accused before many persons in the village, only a day before the date of his arrest. It does not appeal to reason that a person who was once got arrested in a criminal case by P.W. 1 Deshraj, would go to the extent of making such admission specially when there was no doubt cast or the accused by these two witnesses about the involvement in any serious crime. The evidence of extrajudicial confession is a very weak type of evidence and it is difficult for us to place reliance on this type of statements as were deposed by P.W. 1 Deshraj and P.W.2 Nanu Ram. 16. The evidence of extrajudicial confession is a very weak type of evidence and it is difficult for us to place reliance on this type of statements as were deposed by P.W. 1 Deshraj and P.W.2 Nanu Ram. 16. The visit of the accused to the temple of Hanumanji day before the murder of Baba Shiv Giri may create same doubt about the involvement of the accused but the way in which the evidence has been, brought on the record leaves a room for doubt and it is not sufficient to fasten the guilt on the accused. 17. For the reasons mentioned above, we extend the benefit of doubt to the accused, his convictions under sections 302 & 380 IPC are set aside and the sentences passed against him for the said offences are also set aside, 18. The appeal is, therefore, allowed, the accused is acquitted of both the charges. He is in Jail. He shall be released forthwith if he is not required in any other case.Appeal allowed. *******