JUDGMENT 1. This is an appeal filed by Chand Singh against the judgment of the Sessions Judge, Shri Ganganagar dated 21-4-1972 by which the appellant was convicted under section 302 read with section 34 IPC and sentenced to undergo imprisonment for life. 2. The incident that led to the arrest and the prosecution of the appellant may be briefly stated as follows : Jaswant Rai deceased was a Patwari in 56 F circle while Nand Singh PW 1 was doing the work of Patwari in circle 58 and 61F. On 17-7-1971 Nandsingh P.W.1. came to Karanpur Tehsil and deposited the amount of land revenue which he collected from his circle 61F. After depositing the amount Nandsingh proceeded on bicycle from Karanpur to his circle 58F for collecting land revenue. In the way near Palusar-ki-kothi, he met Jaswant Rai deceased who was coming on bicycle from 54F after collecting land revenue and was going to his circle head quarters at 56F. Jaswant Rai deceased asked Nandsingh P. W. 1 to accompany him to 56F and to stay there in the night. Nand Singh P. W. 1 readily agreed and went along with the deceased. When both of them reached 57F near a school Chand Singh appellant met them and asked Jaswant Rai to stay at his house and dine with him in the night. At the instance of Chand Singh Jaswant Rai and Nand Singh went to his house and saw Raisingh accused (who has been acquitted by the trial court) sitting there drinking wine. Raisingh saluted Jaswant Rai deceased by uttering words "Sat Shri Akal." The deceased then asked Raisingh whether he would not go to 56F. Raisingh replied meat was going to be prepared and that he would go to 56F after eating cooked meat. Then at the instance of Rai Singh, Jaswantrai deceased, Chand Singh and Nand Singh stayed there and began to drink wine together with Raisingh. They consumed a large quantity of the liquor and ate cooked meat upto 10 or 10-15 P. M. While they were drinking and eating meat Raisingh all of a sudden abused Jaswant Rai deceased and told him that he had eaten the whole of the cooked meat. Raisingh then picked up one Glota (wooden pestle) which was lying nearby and began to beat Jaswant Rai deceased with it. Raisingh inflicted multiple injuries on the body of Jaswant Rai. Raisingh then picked up one Glota (wooden pestle) which was lying nearby and began to beat Jaswant Rai deceased with it. Raisingh inflicted multiple injuries on the body of Jaswant Rai. Then Chand Singh appellant snatched wooden pestle (Glota) from the hand of Raisingh and started beating Jaswant Rai. He also struck multiple blows on the body of Chand Singh. Nandsingh P. W. 1 tried to rescue the deceased but Raisingh threatened to beat him also. Out of fear Nandsingh picked up his cycle and ran away from there. He reached Karanpur at 6 or 6.15 A.M. after travelling a distance of 13 or 14 miles in the dark night, and immediately went to the house of the Tehsildar for giving him the information about the incident. The Tehsildar was not available at his house as he had gone for a walk. Nandsingh P. W. 1 then went to the house of Teksingh Patwari who used to live in Karanpur in those days and related to him the whole of the incident. Teksingh called for Pyarelal and Rishiraj to his house. Nandsingh P. W. 1 informed them also about the occurrence. Then all of them went to the house of Tehsildar and related to him the whole of the incident. The Tehsildar Shri Nandlal Dhawan went to the place of occurrence in a jeep car along with Nandsingh, Tejsingh, Pyarelal and Rishiraj and saw Jaswantrai lying dead on a cot in the house of Chand Singh appellant. The Tehsildar directed Nandsingh to go to the Police Station Gajsingh pura for making a written report of the incident. Nandsingh lodged a report in writing with Santram H. C. at Police Station Gajsinghpura. On the basis of the report a criminal case under section 302 read with section 34 IPC was registered and the usual investigation was taken up by Shambusingh P.W. 10 who after some time had returned to Police Station from Punjab. Shambusingh rushed to the spot and inspected the site and the dead body of Jaswantrai He prepared Panchnama on the body and took blood stained earth into his possession from three places. He prepared a site plan and seized blood stained 'kachha' of deceased which was lying near the cot. He found three pieces of wooden pestle (Glota) also having stains of blood on them. He took them also into his possession. He prepared a site plan and seized blood stained 'kachha' of deceased which was lying near the cot. He found three pieces of wooden pestle (Glota) also having stains of blood on them. He took them also into his possession. Then he seized one cycle, one pair of shoes and one Busta containing revenue papers belonging to the deceased, Shambusingh S. H. O. then called Dr. Prithviraj Bansal to perform post mortem examination over the dead body of Jaswantrai at the spot. Dr. Prithviraj Bansal conducted the autopsy on the dead body the very day on 18-7-71 and found as many as 16 injuries on it. The cause of death in tile opinion of the doctor was shock and haemorrhage due to the injuries on the vital organ i. e. left lung and multiple subcutaneous haemorrhage on account of multiple bruises all over the body. On dissection of the dead body the doctor found the following:- "Fracture of fourth, fifth and sixth ribs of left side of chest at the angle of costo-condral joints piercing left lung's tissues left plurae ruptured at multiple region. "Left lung shows multiple laceration wounds measuring from 3x2 cm. 2x2 cm.. 4x2 cm. and multiple punctured wounds over the anterior surface of the left lungs tissues. Fracture of the tibia and fibula at the upper ⅓". The doctor opined that the injuries found on the body of the deceased were collectively sufficient to cause death in the ordinary course of nature. The S. H. O nested the appellant and Raisingh co-accused and recovered one wooden pestle (Glota) from behind a Ker tree standing by the side of a water channel near Abadi area of village Molasar Khuni at the instance of Raisingh and in consequence of his information recorded under section 27 of the Evidence Act. On completion of investigation Shambusingh S H. O. filed a charge-sheet against the appellant and Raisingh co-accused under section 302 read with section 34 I. P. C. a the court of Munsif Magistrate Sriganganagar. The learned Magistrate held an inquiry preparatory to commitment and upon finding a prima facie case exclusively triable by the court of Session, committed the appellant and Raisingh co-accused for trial to the Court of Sessions Judge, Ganganagar. The appellant and Raisingh. The learned Magistrate held an inquiry preparatory to commitment and upon finding a prima facie case exclusively triable by the court of Session, committed the appellant and Raisingh co-accused for trial to the Court of Sessions Judge, Ganganagar. The appellant and Raisingh. concussed were tried by the Sessions Judge Sriganganagar who upon evidence found the appellant alone guilty of the charge under section 302 read with section 34 IPC. Raisingh co-accused was found not guilty and therefore was acquitted by the learned Sessions Judge. Aggrieved by his conviction and sentence, Chand Singh has come up in appeal to this Court. 3. We have carefully perused the record and heard Mr. Balwant Roy Arora, learned counsel for the appellant and Mr. N. S. Acharya Public Prosecutor for the State.Firstly it has been contended by Mr. Arora that the trial Judge committed a grave error in convicting Chand Singh appellant under section 302 read with section 34 IPC. specially when he had disbelieved the testimony of solitary eyewitness Shri Nandsingh P. W. 1 and observed while acquitting Raisingh-co-accused that the presnce of the said eyewitness at the time and place of occurrence was highly doubtful. It was further urged that if the evidence of the single eye witness Shri Nandsingh goes away and is held incredible the other evidence relating to the appellant's extra-judicial confession before Kartarsingh is per in sufficient to sustain a conviction for the offence of murder. Mr. N. S. Acharya, on the other hand, strenuously urged before us that the evidence of Nandsingh P. W. 1 though not believable by the trial Judge against Raisingh co-accused, is worthy of credence against the appellant and there is no reason to discard it so far as it proves the complicity of the appellant in the commission of the crime. Mr. N, S. Acharya put forward another contention that if the evidence of Nandsingh P.W. 1 is totally discarded, there is reliable evidence of Kartar Singh in proof of the extra-judicial confession which was made by the appellant before the witness soon after the murder of Jaswantrai deceased. According to the Public Prosecutor the dead body of Jaswantrai was found lying on a cot in the house of the appellant and the appellant could not afford reasonable explanation for the injuries which led to the death of the former at his house. 4. According to the Public Prosecutor the dead body of Jaswantrai was found lying on a cot in the house of the appellant and the appellant could not afford reasonable explanation for the injuries which led to the death of the former at his house. 4. We have given our best consideration to the rival contentions raised before us. At the outset we may observe that the trial Judge after weighing the evidence of Nandsingh eyewitness, came to the conclusion that the claim of Nandsingh eyewitness that he was present at the spot and had seen the occurrence is doubtful. The relevant observations which the Sessions Judge has made in his judgment about the credibility of this eyewitness are quoted below in extenso:- "Looking to the cross-examination of Nandsingh, his presence at the spot is doubtful. Had he been present, he would have in all probability taken some steps to save the deceased by attracting the villagers. If villagers were noncooperative, he could have easily brought someone from Pabusar Canal Rest House. In the absence of such a conduct and the fact that he has been made to lodge report at 2 P. M. about the incident on 18.7.71. throws a doubt on his presence at the spot and seeing the incident by himself. On the other hand, the information given by him at the Police Station appears to have been gathered from other source." We have been taken through the statement of Nandsingh eyewitness in the course of arguments. Upon careful review of his evidence we also are of the view that his presence at the time and place of the occurrence was highly doubtful and the Sessions Judge committed no error in discarding his evidence. The reasons for the view we have held above are that if Nandsingh had been an eyewitness to the actual occurrence, he would have raised a hue and cry on seeing his companion Jaswantrai being severely beaten by the appellant and Raisingh co-accused. Nand Singh admittedly passed through the village 57F after running from the house of the appellant. He could easily raise an outcry in the village to attract the villagers. Apart from this, he did not make the first information report of the incident to the Dy. Nand Singh admittedly passed through the village 57F after running from the house of the appellant. He could easily raise an outcry in the village to attract the villagers. Apart from this, he did not make the first information report of the incident to the Dy. S. P. or any other person at Police Station Karanpur although he admitted that he had reached there at 6 or 6.15 A.M. On reaching Karanpur he claimed to have gone to the house of Tehsildar but when the Tehsildar was not available at his house he should have either waited for his arrival or have gone to the house of the Dy. S. P. or to the Police Station for making a report of all that he had seen at the house of the appellant. Curiously enough what this witness did was to go to the house of Teksingh Patwari and to stay there for about 4 hours and having talks with Teksingh, Pyarelal and Rishiraj. It was only at about 2 P.M. that Nandsingh thought of making the first information report about the incident to the Police at Police Station Gajsinghpura. The delay on the part of Nandsingh (in lodging the FIR. with the Police has not been satisfactorily explained by the prosecution and it casts a serious doubt on the presence of Nandsingh at the time and place of occurrence and on the story narrated by him. There is another circumstance which throws considerable doubt on the evidence of Nandsingh eyewitness. The circumstance is that Pyarelal P. W. 9 admitted in his cross-examination that at about 11 A.M. one Constable and one Head Constable had reached the spot when he along with the Tehsildar, Nandsingh P. W.1 and Teksingh Patwari were sitting on a cot under a Keekar tree. The circumstance is that Pyarelal P. W. 9 admitted in his cross-examination that at about 11 A.M. one Constable and one Head Constable had reached the spot when he along with the Tehsildar, Nandsingh P. W.1 and Teksingh Patwari were sitting on a cot under a Keekar tree. If a Head Constable accompanied by a Constable had visited the spot at about 11 A. M. on 18-7-71 and if Nandsingh P. W. 1 along with Tehsildar, Teksingh and Pyarelal Patwaris were sitting on a cot beneath a Keekar tree, he could disclose to the Police Officers there and then that he had seen the occurrence and could accompany them to the Police Station for lodging the F. I R. There is no explanation from the side of the prosecution how the appellant had reached the place of the occurrence at 11 or 11.15 A. M. on 18.7.71 when the first information report was made by Nandsingh the same day at 2 P.M. In the absence of any explanation it may be inferred that the police had come to know about the occurrence much before the Police that he was an eyewitness to the occurrence. Hence we agree with the Session Judge that the presence of Nand Singh at the time and place of occurrence was doubtful and that the evidence given by him in the trial court was unworthy of credence. 5. Another piece of evidence relied upon by the prosecution to connect the appellant the murder is his extra judicial confession which he is said to have made before Kartar Singh P.W. 2. It has been held by the Supreme Court in a case Mulkrai v. State of U. P. reported in A. I. R. 1959 R. C. at page 902 that reliance can be placed upon an extra judicial confession along with other evidence in convicting the accused if there is no doubt about the voluntariness and truth of such confession and if it is made in a fit state of mind and is proved like and other fact. As for the value that may be attached to the evidence as to the extra judicial confession, it may be observed that it depends upon the truthfulness of the witness to whom it has been made by the accused. As for the value that may be attached to the evidence as to the extra judicial confession, it may be observed that it depends upon the truthfulness of the witness to whom it has been made by the accused. If the witness who gives evidence about the extra judicial confession is a reliable witness the Court while accepting to act upon the confession provided it appears to be voluntary and true. But if the veracity of the witness to whom it is made is nil or doubtful the Court will not use it against the maker thereof. Keeping in view the above principles we proceed to examine the evidence led by the prosecution to prove the extra judicial confession of the appellant in the instant case. The prosecution has examined Kartarsingh P. W. 2 only to prove the confession. His evidence is that about 4 months prior to the date on which he appeared in the witness-box Chandsingh appellant met him in the morning while he was going to pass stools and confessed before him that he and Raisingh co-accused has murdered the Patwari in the night. Kartar Singh, however, admitted that the appellant did not disclose to him as to where the dead body of the deceased was lying and which weapon or for what reason he and Raisingh had killed the deceased. Kartarsingh was declared hostile by the Public Prosecutor as he had refiled from his previous statements which he gave before the Police during the course of investigation and before the Tehsildar and Magistrate Second Class Padampur under section 164 Cr. P. C. He was confronted with portions A to B and C to D of his statement Ex. P. 15 which was recorded under section 164 Cr. P.C. and wherein he stated that Chandsingh had disclosed to him that he and Raisingh had killed Jaswantrai Patwari after beating him with a pestle i. e. Glota and that first of all Raisingh began to beat the deceased with the Glota and then he also gave him a good beating, When confronted with these portions Kartarsingh denied to have given out such a statement. He further denied to have stated before the Magistrate Second Class that Chand Singh had disclosed to him that the dead body of the Patwari was lyag on a cot at his house. He further denied to have stated before the Magistrate Second Class that Chand Singh had disclosed to him that the dead body of the Patwari was lyag on a cot at his house. Likewise he further denied to have stated before the Magistrate Second Class that after the appellant had confessed his crime before him he along with same other persons went to the house of the appellant and saw' the dead body lying thereon a cot. 6. Kartar Singh was again confronted with and contradicted by his Police statement Ex. P. 16 wherein also he stated that the appellant had confessed before him that he and Raisingh had killed the Patwari with a pestle i. e. Glota and that the dead body was lying in his house on a cot. When confronted with his previous statement before the Police this witness denied to have stated the aforesaid facts before the police. Apart from this Kartarsingh admitted in his cross-examination that the facts narrated by him in his statement Ex. P. 15 were given out at the instance of the Police. In the next breath the witness did not stick to his above statement and professed to have narrate the true facts in his statement, Ex. P. 15. Then his attention was drawn to portions A to B and C to D of his statement Ex. P. 15, which he denied to have stated before the Magistrate Second Class. He was specifically questioned whether his statement that he did not stated the acts mentioned in portions A to B and C to D of Ex. P. 15 before the Magistrate Second Class, is true or false, the witness kept quiet and did not give any answer. Kartarsingh further admitted in his cross examination that he was beaten by the Police because he refused to give evidence that he had seen Raisingh and the appellant committing the murder of the Patwari There is his clear admission that before he was examined by the Tehsildar and Magistrate Second Class Padampur under section 164 Cr. P. C. he was badly beaten by the Police and as a result of the beating he could not move from the bed for 5 days. No reliance can be placed on the evidence of such a witness as Kartarsingh, who has no respect for truth and Who could change his version whenever it suited him. P. C. he was badly beaten by the Police and as a result of the beating he could not move from the bed for 5 days. No reliance can be placed on the evidence of such a witness as Kartarsingh, who has no respect for truth and Who could change his version whenever it suited him. In his cross examination by the learned counsel for Raisingh co-accused, he admitted that he had made a report of this incident to the Head Constable at Police Station Gajsinghpura at about 2 or 2-30 P. M, but no such report has been produced by the prosecution. It appears from the evidence of Kartarsingh that he is not a truthful and reliable witness and so his evidence as to the extra judicial confession is of no value. Apart from this, it has not been brought on the record that the appellant had thick relations or close acquaintance with this witness Kartarsingh. It does not stand to reason that the appellant readily confessed his guilt before Kartarsingh on a casual meeting in the way with the latter with whom he had no relations or close acquaintance. On the other hand, it is admitted by Kartarsingh himself in his cross-examination that in the election of Milkiyatsingh Sarpanch. Chandsingh opposed Milkiyatsingh while he and Pathanasingh helped and supported him. Kartarsingh further admitted that there used to be quarrel between him and the appellant over turn of canal water prior to the incident. If the relation between appellant and Kartarsingh were strained, it is all the more difficult to believe that the appellant at the first sight of Kartarsingh would stop him and make the extra judicial confession of his guilt before him. Hence for the reasons stated above we are definitely of the view that the evidence led by the prosecution to prove the extra judicial confession is highly unsatisfactory and unworthy of belief. 7. Another piece of evidence on which reliance has been placed upon the prosecution is that the dead body of Jaswantrai Patwari was found lying on a cot at the house of the appellant. In our opinion this fact is not sufficient to sustain the conviction of the appellant for the offence of murder. 7. Another piece of evidence on which reliance has been placed upon the prosecution is that the dead body of Jaswantrai Patwari was found lying on a cot at the house of the appellant. In our opinion this fact is not sufficient to sustain the conviction of the appellant for the offence of murder. The reason is that the dead body was not recovered from the house of the appellant at his instance or in consequence of any information recorded under section 27 of the Evidence Act. Apart from this, the evidence of the appellant's daughter Sentobai P.W. 3 is that Jaswantrai Patwari was done to death by Raisingh co-accused who has already been acquitted by the Sessions Judge and against whose acquittal the state has nor filed an appeal. The dead body of Jaswant Rai was not lying hidden in the house of the appellant. Mere recovery of the dead body of the decased from the appellant's house in the absence of any other evidence connecting him with the murder is not enough to fasten guilt upon the appellant although it may raise some suspicion against him. But suspicion howsoever strong it may be, cannot be a valid substitute for proof. 8. It will not be out of place to mention that the learned Sessions Judge committed an error in convicting the appellant under section 302 read with section 341. P.C. after recording a finding of acquittal in favour of Raisingh co-accused, The prosecution case was that only two persons, namely, Raisingh and the appellant were the perpetrators of the crime of murder. If Raisingh was held not guilty of the offence of murder, the charge of common intention against the appellant goes away and section 34 does not come into play. Of course the appellant could be convicted for the offence of murder simplicities provided there was reliable evidence against him to prove his guilt beyond reasonable doubt. But as we have held above that the prosecution could not adduce satisfactory evidence to prove the guilt of the appellant beyond reasonable shadow of doubt, the conviction of the appellant for the offence of murder under section 302 I. P. C. also is clearly unsustainable. 9. But as we have held above that the prosecution could not adduce satisfactory evidence to prove the guilt of the appellant beyond reasonable shadow of doubt, the conviction of the appellant for the offence of murder under section 302 I. P. C. also is clearly unsustainable. 9. For the foregoing reasons, the appeal filed by Chand Singh is accepted, his conviction and sentence under section 342 read with section 34 I. P C. are set aside and he is acquitted of the said charge. The appellant is on bail. He need not surrender to his bail bonds which are hereby cancelled.Appeal allowed - appellant acquitted. *******