Judgment Ram Naresh Thakur, J. 1. Both these appeals arise out of the same judgment. Therefore, with the consent of the parties and for their convenience they have been heard together and are being disposed of this common judgment. 2. Both these appellants have been convicted under sec. 302/34 of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for life. They have further been convicted under sec. 201 of the Indian Penal Code, but no separate sentence has been awarded under this count. 3. The prosecution case as told by the Informant (P.W. 1) is that about 13 days before the 19th of May 1982, this appellant, Salim and one Nebu Lal came to her house, in the evening at about 8 p.m. and called out her son, namely, Ratan Rewani. She said that Ratan Rewani was not in the house. Salim then said that he had given Rs. 10 to Ratan and one water pot to bring today and thereafter both of them went away. Ratan did not return to his house. Next morning she enquired from Salim about her son on which Salim said that her son had gone to his father-in-laws house. Hearing this she kept mum. Some days after the wife of Ratan came from her fathers house and then she learnt from her that Ratan had not gone to his Sasural. Thereafter, she (Informant) started searching her son. 13 days after she went to the police station and lodged a case. After four days of lodging the case she came to learn that the dead body of Ratan was recovered. Thereafter she went to the bank of the river and found the dead body of her son, Ratan. There she identified the dead body to be of. Ratan because there was one chain of steel in his neck, which he was wearing in his neck when he had left his house. P.W. 8 was attached to Jogata Police Station on 19-5-1982 and he recorded the statement of P.W. 1 on the direction of the officer-in charge, which is Ext. 3, on the basis of which a regular case was instituted and on being directed by the officer-in-charge, he took up investigation of the case. In course of investigation, appellant Yogendra Rajbhar was arrested and on query appellant. 3, on the basis of which a regular case was instituted and on being directed by the officer-in-charge, he took up investigation of the case. In course of investigation, appellant Yogendra Rajbhar was arrested and on query appellant. Yogendra Rajbhar is alleged to have confessed his guilt and further said that he had concealed the dead body by covering with stones in Bhela Tarh Jangal. Appellant Yogendra Rajbhar took him to that place and on removal of stone pieces by him the dead body was recovered. P.W. 9 Photographed the dead body. The dead body was of a male. This Bhela Tarh is by the side of Katari river. One blue shirt and a pant of nila colour were in the dead body and there was chain of steel in the neck. Appellant Yogendra Rajbhar also made statement before P.W. 10 which is Ext. 7. 4. After completion of investigation, charge-sheet was submitted against these appellants and others. 5. In course of trial, 11 witnesses were examined on behalf of the prosecution. The appellants denied the allegations and pleaded their innocence. Appellant Yogendra Rajbhar denied that the dead body was recovered at his instance. 6. At the outset it must be stated that the entire case rests on circumstantial evidence. Besides the circumstantial evidence the learned trying court has also relied upon the confession of appellant Yogendra Rajbhar and on the discovery of dead body at the instance of the appellant Yogender. 7. Learned counsel appearing for the appellants has strenuously argued that no circumstance has been proved beyond all doubts to lead to the only one conclusion that it was these appellants who were responsible for the death of the deceased. It has also been disputed that the recovered dead body was of Ratan. Learned counsel appearing for the appellants has also tried to show that the dead body was never recovered at the instance of appellant Yogendra Rajbhar. Lastly, it has been argued that the statement contained in Ext. 7, is not the voluntary statement of the appellant and it is not confession in the true legal sense. 8. I take up first Ext. 7 to see whether it is a confession in the legal sense. If Ext. 7 is read carefully the statement is found exculpatory. He has stated in Ext. 7 that "Salim Puran and Babulal Ratan Ko Marpit Kiya. Mian Ratan. 8. I take up first Ext. 7 to see whether it is a confession in the legal sense. If Ext. 7 is read carefully the statement is found exculpatory. He has stated in Ext. 7 that "Salim Puran and Babulal Ratan Ko Marpit Kiya. Mian Ratan. Ko nahim mara." In earlier part of his statement he has said that other appellants committed sodomy on the deceased, but he himself did not no. He has simply stated that" Hum log bole ki Ratan se hi larki ka kam liya jai". Therefore, I find that it has rightly been argued by the learned counsel for the appellants that Ext. 7 is exculpatory and not inculpatory. 9. Learned counsel has also drawn our attention to the statement of P.W. 10, who recorded Ext. 7 that he did not thought it proper to tell appellant Yogendra Rajbhar that after his confession was recorded, he would not be handed over to the police. Apart from this, as stated above, when Ext. 7 is exculpatory, it cannot be used as confession in legal sense and therefore, it cannot be used against the appellant Yogendra Rajbhar as his confession. 10. So far as recovery of the dead body at the instance of appellant Yogendra Rajbhar is concerned, there is the evidence of P.WS. 1, 3, 4, 5, 6, 8 and 9, P.W. 1 is Informant and mother of the deceased. She in para 4 of her evidence says that after four days of lodging the case she learnt that the dead body of her son was recovered and then she went to the river and found the dead body of her son lying there. Therefore, she does not say that the dead body was recovered at the instance of appellant Yogendra Rajbhar rather from her evidence, it is clear that the dead body had already been recovered before her arrival. Of course in para 21 in cross-examination she has said that when the dead body was recovered Daroga jee was there, but still she did not say that it was recovered at the instance of appellant Yogendra Rajbhar. P.W. 1 is another son of the Informant and one of the brothers of the deceased. In para 3, he has said that after 5 days of lodging the case he saw the dead body of his brother under stones on the bank of the river. P.W. 1 is another son of the Informant and one of the brothers of the deceased. In para 3, he has said that after 5 days of lodging the case he saw the dead body of his brother under stones on the bank of the river. In para 8 he says that he alongwith his mother (P. W. 1) and his elder brother had gone to see the dead body of the deceased. In the last he says that his brother and 4 other persons removed the stones pieces and then the dead body was recovered. P.W.4 is an inquest witness. He saw the police getting the dead body searched by appellant Yogendra Rajbhar. There was large number of persons there. In his presence, the dead body was recovered. In para 7 he says that he came to the bank of Katari river after arrival of the Police. Then he further says that jab hum log pahunche to lash ka nikalna shuru huva". He also does not say that the dead body was recovered at the instance of this appellant Yogender Rajbhar. P.W. 5 is another son of the Informant and brother of the deceased. That when he heard that the dead body of Ratan had been recovered, he alongwith his mother, his brother and others sent to the bank of Katari river and there he found that this appellant Yogendra Rajbhar was removing stones, but his mother and brother no not support him of this point. Then in further cross examination in para 10 he says that Lash nikalne kekarib adha ghanta ke bad ham wahan per pahunche" P.W. 6 in another inquest witness. He says in para 2 that" iske no tin din ke bad halla huva ki ek lash milihai. Halla sunkar ham bhi katari nadi ke par gaye wahan hamne e1 lash dekha aur us lash ke samne Yogender baitha huva tha". P. W. 8 has said in para 3 that "Abhiyukt Yogender Rajbhar ko puchh tachh kerne ke liye hamne thana per laya". At initial stage he does not say that Yogendra Rajbhar had already been arrested and he was in his custody. Of course in cross examination he says that he had arrested Yogendra Rajbhar on 23-5-82 before the dead body was recovered. At initial stage he does not say that Yogendra Rajbhar had already been arrested and he was in his custody. Of course in cross examination he says that he had arrested Yogendra Rajbhar on 23-5-82 before the dead body was recovered. He further says in para 15 that when he came with Appel1ant Yogendra Rajbhar at the place where the dead body was buried, he called the Photographer (P.W. 9) and on his arrival the dead body was recovered. P.W.9, who is the Photographer does not support P.W. 8 on this point. P.W. 9 has said that the Daroga of Jogata Police Station had taken him to Bhela tarth tarh and there he took the Photograph of the dead body. The Photograph is material Exts. 1, 1/1 and 1/2. In no cross-examination he says that when he came to the bank of the river he saw the recovered dead body and he took the Photograph of the said recovered dead body, which had already been recovered. 11. Thus considering the entire aforesaid evidence on the point of recovery I do not find that the prosecution evidence is consistent. Even the Informant does not say that it was this appellant Yogendra Rajbhar, who took out the dead body and it was recovered at his instance. From Ext. 3, it will appear that the place of occurrence is at a distance of about 3 K.M. from the police station Jogata. P.W. 8, has said that he had arrested Yogendra Rajbhar on 23-5-82. In chief at para 3 the says that he brought Yogendra Rajbhar at the police station for interrogation and on interrogation at the police station he confessed his guilt and thereafter this appellant Yogendra Rajbhar took him to the place where the dead body was found. The inquest report was prepared on 23-5-82 at 7.30 A. M. and Ext. 6, the seizure list, was also written at 7.30 A. M. on 23-5-82. Though it has not come in evidence the exact time as to when P.W. 8 arrested Yogendra Rajbhar on 23-5-82, but the fart remains that according to Ext. 4, the inquest report and Ext. The inquest report was prepared on 23-5-82 at 7.30 A. M. and Ext. 6, the seizure list, was also written at 7.30 A. M. on 23-5-82. Though it has not come in evidence the exact time as to when P.W. 8 arrested Yogendra Rajbhar on 23-5-82, but the fart remains that according to Ext. 4, the inquest report and Ext. 6, the seizure list, the appellant Yogendra Rajbhar must have been arrested much earlier because from the evidence of P. W. 8 itses it appears that after arrest he was taken to the Police Station and then again he was brought to the place of occurrence and thereafter recovery was made. All these things happened before 7.30 a.m. on 23-5-82. 12. Taking into consideration all these facts, a suspicion arises against the evidence of P. W. 8 that it was this appellant who led to the recovery of the dead body. 13. Another evidence against this appellant Yogendra Rajbhar is of P.W. 2. He is a shop-keeper. He says that one night at 7-8 p. m. Ratan came to his shop and was taking tea, at that very time Yogendra Rajbhar came to his hotel and demanded two plates of meat. He (P.W.2) demanded the price thereon which he (Yogendra Rajbhar) paid a note of Rs. 20. Yogendra Rajbhar had brought a katora in which he took the meat. Yogendra Rajbhar, thereafter handed over that katora of meat to Ratan and thereafter Yogendra Rajbhar and Ratan left his hotel. But this fact is not mentioned in the first Information Report, though it was lodged after 13 days of the occurrence. 14. As regards appellant Salim Mian is concerned, there is the evidence of P.W. 1 against him. Besides the evidence of P. W. 1, his name is mentioned in the confession (Ext. 7). As regards Ext. 7 it has already been found that it is exculpatory. That being so, it cannot be used against this appellant Salim Mian. The evidence of P.W. 1 is consistent on the point that this appellant along with Nebulal came to her house in search of the deceased. Ratram, Ratan bad gone to the market at that time. Salim Mian said that" Ratan ko das rupya aur lota daru lane ke liye diya tha". Saying this Salim Mian went to his house. The evidence of P.W. 1 is consistent on the point that this appellant along with Nebulal came to her house in search of the deceased. Ratram, Ratan bad gone to the market at that time. Salim Mian said that" Ratan ko das rupya aur lota daru lane ke liye diya tha". Saying this Salim Mian went to his house. This witness has further said that when Ratan did not return, on her query, this appellant Salim Mian bad stated to her that Ratan had gone to his Sasural but this fact that Salim Mian told her that Ratan had gone to his Sasural is not mentioned in the Fardbeyan. Except the aforesaid statement, there is no other statement against this appellant Salim Mian. In my opinion, this statement left to itself, does not exclusively prove the guilt of the appellants. 15. For the reasons stated above, I find the circumstances and the evidence no not lead to only one conclusion that it were these appellants, who committed murder of the deceased. A suspicion arises, but suspicion, however, strong cannot take the place of proof. One has to travel up to the point of proof for conclusion in a criminal trial. Until and unless, the guilt is proved beyond all doubts, conviction cannot be maintained. 16. Accordingly, both these appeals are all owed and the order of conviction and sentence passed against these appellants is set aside, and they are discharged from their bail bonds.