JUDGMENT 1. - The appellant Lichhman Ram, on commitment by the Judicial Magistrate, was tried by the Addl. Sessions Judge, Raisinghnagar for the offences under sections 301, 201 and 404 I.P.C. concerning the murder of Panna Ram son of Smt. Jamna (P.W.4) widow of Jawahara Ram of Chak 3 LPM, Tehsil Raisinghnagar, District Ganganagar and was, by his judgment dated September 11, 1981, convicted and sentenced to imprisonment for life under section 302 I.P.C. and acquitted for the offences under sections 201 and 404 I.P.C. 2. Jawahara Ram, husband of Smt. Jamna P.W. 4, died sometime in or about the year 1971 leaving behind him his widow Smt. Jamna, three daughters and a son deceased Panna Ram Jawahara Ram also left 24 bighas of agricultural land bearing Square No. 264/359 (Killa Nos. 1 to 25) in Chak 3 LPM in tehsil Raisinghnagar of District Ganganagar. The appellant is son of Manglaram who was younger brother of Jawahara Ram. The residential 'dhanies of jawahara Ram and his younger brother Mangla Ram stood on a portion of agricultural land of Jawahara Ram comprised in Square No 264/359, After the death of Jawahara Ram, his younger brother Mangla Ram and the appellant cultivated the aforesaid agricultural land left by Mangla Ram as share-cropper of Smt. Jamna was a widowed lady and her son Panna Ram was just a minor child unable to cultivate the land It appears that Mangla Ram and his son (appellant) stopped giving to Smt. Jamna the share of the crop and started creating trouble On August 2, 1979 Smt. Jamna filed a complaint under sections 107 and 116 (3) Cr. P. C. before the Sub-Divisional Magistrate, Raisinghnagar complaining against acts and gestures of breach of peace on the part of Mangla Ram and the appellant. As a result of mediation, however, of the Panchas of the village, a compromise Ex. P 13 was arrived at on August 10, 1979 between Smt. Jamna and Mangla Ram and the appellant and the criminal complaint was got consigned to the record in pursuance of the compromise. 3. On October 14, 1980 Mst. As a result of mediation, however, of the Panchas of the village, a compromise Ex. P 13 was arrived at on August 10, 1979 between Smt. Jamna and Mangla Ram and the appellant and the criminal complaint was got consigned to the record in pursuance of the compromise. 3. On October 14, 1980 Mst. Jamna had gone to the field of Dhanpat Ram Chaudhary to extract out cotton from cotton-ball leaving her two unmarried daughters and her son Panna Ram at her residential 'dhani', At about noon, her daughter Phooli came to the field of Dhanpat Ram Chaudhary where Smt. Jamna was working and told the latter that the child Panna Ram aged about 9 years was not at the dhani and was missing. Smt. Jamna came back from the field to her house along with Phooli. She could not find Panna Ram despite all possible search. She had also enquired from the appellant about the whereabouts of Panna Ram but the appellant expressed complete ignorance. Smt. Jamna also went to the field of her relation Sadula Ram P.W. 3 and both of them continued the search of Panna Ram till midnight but with no result. It is alleged that on the morning of next day i.e. October 1.5.1980, the appellant informed Smt. Jamni, Sadula Ram P.W.3 and Jetha Ram P.W. 7 that the dead body of Panna Ram was found floating in the canal near Sardaron Ki Dhani flowing on the east of mauza chak 2 LMP LMP. Sadula Ram P.W 3, Modu Ram P.W. 6, Jetha Ram P W. 7, Sadak Ali P W. 8. Ranejeet Singh P. W. 9 and Dhanpat Ram went together to the canal there was four or five inches deep water in the canal and dead body of Panna Ram was floating in the canal. These village people sent Sadula Ram P.W. 3 to the police station to make a report Sadula Ram P.W. 3 went to the police station, Raisinghnagar and lodged a report Ex.P 3. According to the prosecution, Sadula Ram P.W. 3, after lodging the report Ex. P 3. These village people sent Sadula Ram P.W. 3 to the police station to make a report Sadula Ram P.W. 3 went to the police station, Raisinghnagar and lodged a report Ex.P 3. According to the prosecution, Sadula Ram P.W. 3, after lodging the report Ex. P 3. came back to the canal and on his return, he was told by Dhanpat Ram that he himself and other village people i.e. Modu Ram, Jetha Ram Ranjeet Singh and Sadak Ali had taken the appellant aside and told to the appellant that Panna Ram had gone with him in the field in which bajra crop was growing and what was the real truth about the incident. The appellant, it was stated, confessed before these people that he had himself strangulated Panna Ram in bajra crop field and had thereafter thrown the dead body in the canal. The appellant is said to have pleaded before the village people to save him. Ummed Singh, 8. H. O., Police Station, Raisinghnagar went to the spot. He got the dead body of Panna Ram taken out from the canal and prepared the inquest report Ex. P 10. Dr. Om Prakash Somani was called for by the S. H. O., Police Station, Raisinghnagar and the doctor examined the dead body of Panna Ram and conducted its autopsy. Dr. Om Prakash Somani gave the postmortem report Ex. PI. According to the report of the doctor, the cause of death of Panna Ram was "as-phyxia due to throttling of the child Ummed Singh registered a case under sections 302 and 201 I.P.C. on October 16, 1980 at 1.00 A.M. The appellant had been arrested under the arrest memo Ex, P 9. while in custody of the Police, the appellant is stated to have given information to the Police about a flower-type silver piece with image of "Hanumanji" engraved on it which Panna Ram was wearing around his neck before being strangulated and the same was recovered on the basis of this information from the residential kotha of the appellant on the Square of agricultural land in 3 LPM and seized under the seizure memo Ex P7. After necessary investigation, the police filed a charge-sheet against the appellant in the court of Judl. After necessary investigation, the police filed a charge-sheet against the appellant in the court of Judl. Magistrate, Raisinghnagar for offences under sections 302, 201 and 404 I. P. C, The Judicial Magistrate by his order dated January 2, 1981 committed the appellant to the Court of Sessions and the Additional Sessions Judge, Raisinghnagar convicted and sentenced the appellant as aforesaid on September 11, 1981. The appellant has come up in appeal to this Court. 4. The Additional Sessions Judge came to the conclusion that Panna Ram had died as a result of strangulation and not by accidental drowning in the canal. The conviction of the appellant was mainly grounded by the learned Additional Sessions Judge on the basis of an extra-judicial confession alleged to have been made by him before the above-named village people at the canal site where the dead body of Panna Ram was floating that "he had throttled Panna Ram to death out of sheer lust to grab the agricultural land comprised in Square No. 264/359 and held by Smt Jamna". It may here be mentioned that the Additional Sessions Judge disbelieved any other extra-judicial confession of the guilt having been made by the appellant to or in the presence of Jamna. The Additional Sessions Judge believed the prosecution version that the police recovered the flower-type silver place with image of "Hanumanji" engraved on it in pursuance of information given by and at the instance of the appellant from an aperture in the kotha of his house on land bearing Square No. 264/359. Panna Ram deceased used to wear this silver piece around his neck and the silver piece recovered was identified by Smt. Jamna during the identification proceedings Ex. P 17 held by Shri Rajendra Singh, Judicial Magistrate, Anupgarh. The motive for murdering Panna Ram by the appellant was hold to be to finish the sole male heir of Smt. Jamna so that the appellant may easily grab perennially irrigated agricultural land held by this lady comprised in Square No. 264/359 in Chak 3 L.P.M. On these grounds, the Additional Sessions Judge held the appellant guilty for the offence under section 302 I.P.C. for committing murder of Panna Ram. It was, however, held by the Additional Sessions Judge that the prosecution has not produced any evidence to prove that the appellant attempted to destroy the evidence about murder of Panna Ram by throwing his dead body in the canal water and also about the appellant having misappropriated the flower-type silver piece and, therefore, he acquitted the appellant for the offences under sections 201 and 404 I.P.C. 5. At the very outset, it is pertinent to note that a report was made by Sadula Ram P. W. 3 at Police Station, Raisinghnagar, on October 15.1980 at 10 A.M. In this report, all that Sadula Ram mentioned was that on October 14, 1980, Smt. Jamna had gone to the field of Dhanpat Ram to extract out cotton from cotton ball leaving back her two daughters named Kamla and Phoolki and her son Panna Ram aged 9 years at her dhani. At about noon, Panna Ram had gone in the field in which bajra crop was growing and did not return home. Smt. Jamna came back to her dhani at about 2.0 P.M. She searched for her son Panna Ram but he could not be found. Smt. Jamna contacted Sadula Ram P.W. 3 and both of them made efforts to search Panna Ram but the latter could not be found. It was reported that on the morning of October 15, 1980, the appellant & Mohan Ram informed him that the dead body of Panna Ram was floating in the Canal near Sardaron-Ki-Dhani in Chak 2 L.P. M He also mentioned in the report that on receiving information from the appellant and Mohan Ram, Sadak Ali, Sarpanch, Ranjeet Singh, Dhanpat and some other village people went on the spot and they had sent Sadula Ram to make the report to the Police Station, It was also mentioned by fadula Ram in report Ex. P 3 that the reason as to how Panna Ram died is not known. It is clear from this report that Sadula Ram upto 10 P. M of October 15, 1980 when he made the report Ex. P 3 to the Police, did not know the cause of death of Panna Ram. He did not mention in the report that it was the appellant who strangulated Panna Ram and threw the dead body in the canal. 1 Ex. P 3 to the Police, did not know the cause of death of Panna Ram. He did not mention in the report that it was the appellant who strangulated Panna Ram and threw the dead body in the canal. 1 Ex. P 3 did not reveal in itself any information about the commission of any cognisable offence. As a matter of fact, it was not a F.I.R. as contemplated in Section 154 of the Code of Criminal Procedure. What was, on then other hand, stated by Sadula Ram to the Police in Ex. P 3 was that the cause and manner of death of Panna Ram was not known. 6. There is material contradiction in this case between the testimony of Smt. Jamana P.W. 4, who was the mother of deceased Panna Ram, and that of Sadula Ram PW3. It may be noted that Sadula Ram PW 3 was as closely related to Smt. Jamana as the appellant. Sadula Ram has deposed that Smt. Jamana was her aunt. Similarly, Smt. Jamana was aunt of the appellant, Smt. Jamana PW 4 has testified that on the morning of October 15, 1980 the appellant met her at her at her residence and made an extra-judicial confession before her that he had murdered Panna Ram and that he will grab the agricultural land held by Smt. Jamna. Smt. Jamna further deposed that at the time the appellant made this extra-judicial confession to her, Sarpanch Ranjeet Singh PW9, Jatha Ram PW7, Modu Ram PW6, Sadula Ram PW3 and Leela Ram were present. Smt. Jamna had also stated that before Sadula Ram was sent to make the report to the police, she had made it known to Sadula Ram about the extra- judicial confession. Despite that this fact of making extra-judicial confession by the appellant in the presence of Smt. Jamna and other persons mentioned above, was in the knowledge of Sadula Ram, he did not mention it the report Ex. P3 and rather made a different statement in the report that the cause and manner of death of Panna Ram was not known. The question arises as to who should be believed whether Sadula Ram PW3 or Smt. Jamna PW4, who is the real mother of the deceased Panna Ram Sudala Ram PW3 tells a different story. P3 and rather made a different statement in the report that the cause and manner of death of Panna Ram was not known. The question arises as to who should be believed whether Sadula Ram PW3 or Smt. Jamna PW4, who is the real mother of the deceased Panna Ram Sudala Ram PW3 tells a different story. According to him, all that the appellant and Mohan Ram had informed in the morning of October 15, 1980 was that the dead body of Panna Ram was floating in the canal near 2 LPM and not that the appellant had himself strangulated Panna Ram with the intention to grab the agricultural land held by Smt. Jamna, Sadula Ram also states that he was not sent to the Police Station by Smt. Jamna. On the other hand, he along with Ganpat Ram, Ranjeet Singh, Sadak Ali, Jetharam and Modu Ram had gone to the canal at 2 PM and saw the dead body of Panna Ram floating in a canal. These village people then sent Sadula Ram to make report to the police, whereupon he made the report Ex. P. 3. 7. According to Sadula Ram, when he returned to the canal after making the report Ex. P.3 at the Police Station, Raisinghnagar and not the village people. Dhanpat Ram told him that he and other village people had enquired from the appellant in confidence about the truth of the incident and it was to that the appellant made the extra-judicial confession that he had strangulated Panna Ram. Smt. Jamna was not at the canal. Thus, on the one hand, Sadula Ram states that the extra judicial confession was made by the appellant in his absence to Dhanpat Ram and Sadak Ali, Modu Ram, Ranjeet Singh and Jetha Ram and thus he did not know of it when he went to the Police Station to make the report and that he learnt of it only from these village people when he returned to the canal after making the report Ex. P 3. On the other hand, Smt. Jamna states that the extra-judicial confession was made by after appellant at her own residence in Chak 3 LMP and at that time, Sadula Ram was himself present apart from other village people. P 3. On the other hand, Smt. Jamna states that the extra-judicial confession was made by after appellant at her own residence in Chak 3 LMP and at that time, Sadula Ram was himself present apart from other village people. It was only that the cause of death of Panna Ram was known that Smt. Jamna had sent Sadula Ram to make the report to the police station It is a serious contradiction about the extra-judicial confession said to have been made by the appellant and is an. infirmity in the prosecution case. It is true that extra-judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused but the Court should be satisfied that confessional statement was made by the accused. In the case of the above glaring contradiction in the testimony of Sadula Ram P.W. 3 and Smt. Jamna P.W. 4 with regard to the extra-judicial confession, it is difficult to hold that any confessional statement was made by the appellant. Had it been made as deposed by Smt Jamna, it would have found mention in the report Ex. P3. It may also be mentioned that Dhanpat Ram, who is stated to have told Sadula Ram about the extra-judicial confession on the return of the latter from the Police Station to the canal, has not been examined by the prosecution. Sadula Ram and Sadak Ali were also witnesses to the inquest report prepared by Ummed Singh, S H.O., Police Station, Raisinghnagar (P.W. 12). Had there been any extra-judicial confession made by the appellant in the presence of Sadak Ali and in the absence of Sadula Ram at the canal Sadak Ali was definitely expected to have told Ummed Singh, S.H.O, about such extra-judicial confession and it would have found place in the inquest report but there is no mention of such extra-judicial confession even in the inquest report Ex P10, Ali that is mentioned in the inquest report is that Panchas Sadula Ram, Leeladhar, Sadak Ali, Mehanga Ram and Kheta Ram were asked about the cause of death of Panna Ram after seeing the dead body, they had expressed the opinion that Panna Ram strangulated. This is not a mention about any extra judicial confession alleged to have been made by the appellant. This is not a mention about any extra judicial confession alleged to have been made by the appellant. Ummed Singh P.W. 12 has also not stated in his evidence that either Smt. Jamna or any other person who were present at the cannal, told him of the extra-judicial confession when he went to the alleged place of incident and at the cannal. Ranjeet Singh P.W. 9 has stated that before starting for the canal, they had assembled at the residential house of Smt. Jamna but he does not state that at that place, the appellant had made any extra-judicial confession in the presence of Smt. Jamna. Smt. Jamna was admittedly not present at the canal when the village people had gone thereto find the dead body of Panna Ram. Thus, the prosecution has not been able to prove beyond reasonable doubt that the appellant made any extra-judicial confession either to Smt. Jamna or to other village people, namely. Sadak Ali, Ranjeet Singh, Jetha Ram, Modu Ram and Sadula Ram. Conviction of the appellant for the murder of Panna Ram could not, therefore, be safely based on the alleged extra-judicial confession. 8. Jetha Ram PW7 has disposed in his statement that on October 14 1980 at about 11 A.M. daughters of Smt. Jamna. named, Kamli and Phoolki had come to him to enquire about Panna Ram. He also states that Kamli and Phoolki told him that the appellant had taken Panna Ram in the field where bajra crop was growing. Firstly, Smt. Jamna does not state that these daughters told her such a thing that the appellant had taken Panna Ram with him towards the field of which bajra crop was growing. Had it been true, daughters of Smt. Jamna would have definitely told this fact to their mother. Secondly, this is also improbable that had Kamli and Phoolki knew that it was appellant, who had taken Panna Ram with him to the bajra crop field, there could remain any necessity for these two girls going to Jetha Ram PW7 to enquire about the where abouts of Panna Ram. The only person then for enquiry and suspicion could be the appellant. But Smt. Jamna did not tell a single word to the appellant that according to her daughters, the appellant had taken Panna Ram towards the bajra crop field. The only person then for enquiry and suspicion could be the appellant. But Smt. Jamna did not tell a single word to the appellant that according to her daughters, the appellant had taken Panna Ram towards the bajra crop field. Although Phoolki was aged about 12 or 13 years and she was produced by the prosecution before the Addl. Sessions Judge as PW5 but when she was questioned about her name and age etc. she completely remained silent and did not speak a word. Looking to the age of Phoolki she appears to be capable to give the statement. Kamli was not examined and thus these two daughters of Smt. Jamna have not testified that deceased Panna Ram was last seen with the appellant. Thus, the evidence of the deceased being last seen with the appellant is also untrustworthy in the case. It may be mentioned that the case rests upon circumstantial evidence as there is no eye witness of the crime, Before conviction can be based upon circumstantial evidence the evidence should not only be consistent with the guilt of the appellant but should be in-consistent with his innocence. That consistency of circumstantial evidence is not present in the instant case. 9. The mere recovery of a small flower-typed silver place with the image of "Hanumanji" engraved on it, which the deceased Panna Ram used to wear around his neck, from the possession of the accused in pursuance of the information given by him to the Police, does not connect the appellant with the offence of murder of deceased Panna Ram by him. From this recovery, at best, the presumption of theft could be drawn and nothing more than that. 10. No doubt as deposed by Dr. Om Prakash Somani and the postmortem report Ex. P 1, Panna Ram died as a result of asphyxia due to throttling of child. There were also marks of finger tips on both the sides of sternumas-told muscle and also fracturs of cornia. of thyroid cartilage both sides an 1 consequently, the death of Parma Ram was not on account of accidental drowning in the canal but was due to an act of culpable homicide, but it is not established that the appellant was the author of the crime. 11. of thyroid cartilage both sides an 1 consequently, the death of Parma Ram was not on account of accidental drowning in the canal but was due to an act of culpable homicide, but it is not established that the appellant was the author of the crime. 11. In the site inspection note Ex P 11 prepared by Ummed Singh, S.H.O., there is mention that in the bajra crop field, there were signs of chappal prints and signs of a child feet prints. This fact also does not connect the appellant with the crime for the simple reason that Smt Jamna has stated that she had gone to the bajra crop along with the appellant to search missing Panna Ram and at that time, the appellant was wearing chappal. The signs can exist due to this fact also. 12. On a careful consideration of the entire prosecution evidence, it is quite clear that the prosecution has failed to prove the offence of murder by the appellant beyond reasonable doubt. The Addl. Sessions Judge, Raisinghnagar, was wrong in convicting the appellant for the offence u/s 302 I.P.C. on the basis of such a contradictory and unreliable evidence about the alleged extrajudicial confession and the other circumstances in the case were not circumstances consistent only with the guilt of the appellant for the offence of murder and no conviction u/s 302 I.P.C. could be grounded on their basis. 13. We, therefore, allow this appeal, set aside the conviction and sentence awarded by the Addl. Sessions Judge, Raisinghnagar, to the appellant by his judgment dated November 9, 1981 u/s. 302 I.P. C. for the murder of Panna Ram and we acquit the appellant for the said offence. The appellant shall be released at once from fail. The flower shaped silver place seized in the case by the police under the seizure memo Ex. P 7 will be returned to Smt. Jamna P. 4.Appeal allowed/Appellant acquitted. *******