Appellant Hazarat Ali Mandal appeals against the judgment dated 20.6.1986. passed by the learned Sessions Judge, Goalpara in Sessions Case No.44(3-G)of 1985. He was convicted under section 302 of the Indian Penal Code and sentenced to R. I. for life and fine of Rs. l,000/-in default imprisonment for another 6 months. 2. Mustt. Belsa-nessa, wife of accused Hazrat Aii died in the evening of 6.7,1983 at about 7-00 P. M. in the house of Hazarat AIL Shri Gafur All (P. W. 2), brother of deceased lodged the First Informa­tion Report (Ext. 1) in the morning of 7.7. 1983 at Bohati Police Out Post to the effect that the accused Hazarat AH caused death of his wife Belsanessa with bamboo stick and that his 2 (two) brothers Sikandar Ali and Ufar Ali, sister Gedi-nessa and mother Amiran-nessa had actively conspired in the crime. The case was registered at the Goalpara Police Station and investigated into. The charge-sheet being submitted against all the 5 accused for commission of offence under section 302/34 of the I. P. C., and all the 5(five) accused faced the trial for the charge under section 302 of the I. P. C. in the Court of Sessions, Goalpara. Four (4) accused persons had been acquitted, but accused Hazarat Ali was convicted under section 302 of the I. P. C. Hence, this appeal by Hazarat Ali Mandal. 3. The prosecution examined 7 (seven) witnesses in the trial. The defence of all the 5 accused was total denial of the charge. Further defence case was that Musstt. Belsa-nessa committed suicide by hanging. During the trial, the prosecution case was that all the 5 accused took active part in the assault with common intention to cause death of Belsa-nessa. The prosecution adduced direct evidence of P. W. 3 Jalil and P. W. 4 Rasid to establish the charge. According to infor­mant Gafur Ali (P. W. 2), accused Hazarat Ali, Sikandar Ali and Ufar Ali came to his house at about 4-00 A. M. and made extra-judicial confession by stating that they killed Musstt. Belsa-nessa and that again after 5 days of the occurrence the witnesses Jalil and Rasid (P. W. 3 and P. W. 4 ) reported him that they saw all the 5 (five) accused assaulting Musstt. Belsa-nessa at the time of occurrence. Thus, the prosecution case was mainly based on direct evidence couple with extra-judicial confession. 4. Belsa-nessa and that again after 5 days of the occurrence the witnesses Jalil and Rasid (P. W. 3 and P. W. 4 ) reported him that they saw all the 5 (five) accused assaulting Musstt. Belsa-nessa at the time of occurrence. Thus, the prosecution case was mainly based on direct evidence couple with extra-judicial confession. 4. There was no dispute on the fact of death of Musstt. Belsa-nessa in the evening at about 7-00 P. M. on 6.7.1983 in the house of accused Hazarat Ali as a result of injury on the neck. The inquest over the dead body was made in the forenoon of 7.7.1983. Exhibit-2 was the inquest report wherein the external visible injury marks had been noted. Injury marks on the neck, chest, back and on other parts of the body were seen. The neck was found broken. It was suspected to be a case of homicide by assault on the basis of visible injuries. Doctor (P. W. 1) holding post mortem examination opined that the death was due to exphyxia as a result of strangulation and the injuries were anti mortem. Haemorragic marks noticed at the level of thyroid cartilage with rapture of trachea and fracture of hyoid bone; marks of acchymosis abrasions were present over the neck and chest. The nature of injuries found had proved the fact of using external violence excessively over the neck causing fracture of thyroid cartilage and hyoid bone and also suffocation (exphyxia) resulting death by strangulation. The opinion of the Doctor (P. W. 1) is acceptable. The nature of the injuries over the neck, external appearance of the deceased as described in the post mortem report, and injury marks on different parts of the body had negated the defence case of suicide by hanging. 5. P. W. 2 Gafur Ali deposed that Jalil and Rashid (P. W. 3 and P. W. 4) disclosed to him, after 5 days of the occurrence, that they saw all the 5 accused assaulting Musstt. Belsa-nessa at the time of occurrence in the compound of accused Hazarat Ali. Both the witnesses Jalil and Rashid are related to Gafur Ali and the deceased. 6. P.W. 3 Jalil deposed that on hearing 'hallah' in the house of ^accused_person,Jie reached there and saw accused Gedi and Amirun-nessa dragging Musstt. Belsa-nessa by her hair and at the same time Hazarat, Sikandar and Uffar were assaulting Musstt. Both the witnesses Jalil and Rashid are related to Gafur Ali and the deceased. 6. P.W. 3 Jalil deposed that on hearing 'hallah' in the house of ^accused_person,Jie reached there and saw accused Gedi and Amirun-nessa dragging Musstt. Belsa-nessa by her hair and at the same time Hazarat, Sikandar and Uffar were assaulting Musstt. Belsa-nessa with lathis and laid her down in the court-yard. P. W. 4 Rashid deposed that he saw accused Amiran and Gedi dragging Musstt. Belsa-nessa towards their house, assaulting by hands, and accused Hazarat, Sikandar and Uffar beating her with lathis and taking her home. Both Jalil and Rashid deposed that they left the place being threatened by the accused persons, and after about an hour they learnt that Belsa-nessa died. 7. The learned Sessions Judge disbelieved the evidence of Jalil and Rashid on the ground of being related to the informant and the deceased, and for disclosing the occurrence to Gaffur by delay of 5 days. On scrutiny of the evidence on record, we further find that both of them posed as chance witnesses and were examined by the Investigating Officer after one month of the occurrence. They were present when the Investigating Officer visited the place of occurrence on the next day and examined witnesses; but at that time they did not offer themselves as witnesses of the occurrence. There was no explanation as to such long delay for recording their statements by Police. If they would have really seen the occurrence, being related to deceased and Gafur, their conduct in disclosing the occurrence would have been different. They would not have delayed to report Gafur and Police if they had actually witnessed the occurrence vt in the manner narrated before the Court. 8. The learned Session Judge acquitted 4 accused persons disbelieving the evidence of the 2 eye-witnesses. No appeal had been preferred against their acquittal. Learned Public Prosecutor Mr. J. Singh submits that the evidence of Jalil and Rashid can be re-scrutinised for application, if found acceptable, against accused Hazarat Ali. We find no force in the submission of learned Prosecutor Mr. J. Singh. When the case against 4 co-accused failed by disbelieving the direct evidence then same set of evidence cannot be made applicable against accused Hazarat Ali to hold him guilty. We find no force in the submission of learned Prosecutor Mr. J. Singh. When the case against 4 co-accused failed by disbelieving the direct evidence then same set of evidence cannot be made applicable against accused Hazarat Ali to hold him guilty. He stood the trial on the same footing with the other co-accused with the charge of commission of the offence in furtherance of common intention. There was no specific evidence that during the course of transaction in the occurrence, accused Hazarat Ali caused the fatal injury over the neck of Musstt. Belsa-nessa. The trial Court also did not use the direct evidence applicable against accused Hazarat Ali, but failed to acquit- him with the other co-accused. 9. The trial Court picked up some facts from the evidence on record and formulated some circumstances for scrutiny if accused Hazarat Ali was solely responsible for the death of his wife Belsa-nessa. It was never a case for prosecution, at any stage of the trial, that Hazarat Ali was solely responsible for the crime and that circumstantial evidence would establish to prove his guilt. Can a trial Court make out a new case against one accused when the prosecution fails to prove the charge against all the accused, on the basis of direct evidence for commission of murder in furtherance of their common intention? It cannot. The benefit of rejecting direct evidence given to the co-accused should have also been extended equally to Hazarat Ali instead of making out a new case against him by the trial Court itself. It will highly prejudice an accused if the trial Court makes out a new case by picking up some of the facts from the evidence after the prosecution fails to prove its case which is unfolded in trial (relied on A. I. R. 1975. S.C 1962). The Court can convict one of the accused out of many facing charge of murder with common intention, when there is clear and specific evidence of causing the fatal injury by that accused couple with that the evidence on record do not make out a case of common intention of the other. 10. Solitary statement of PW 2 Gaffur AH at the trial with regard to the extra-judicial 'confession of Hazarat AH cannot be believed. 10. Solitary statement of PW 2 Gaffur AH at the trial with regard to the extra-judicial 'confession of Hazarat AH cannot be believed. There was no corroborative evidence to show that Hazarat AH alongwith 2 other accused Sikandar and Ufar AH visited the house of Gaffur at about 4'00 A. M. The First Information Report was lodged by Gaffur AH at about 7-30 A. M. The fact of extra-judicial confession was not disclosed in the First Information Report. No such statement was ever made at any time by Gaffur AH before the Investigating Officer. The fact of extra-judicial confession had been disclosed for the first time in the trial. It cannot be believe that Hazarat All along with his 2 brothers, out of their own accord, would visit the house of Gaffur Ali at about 4 A. M. to make an extra-judicial confession. The fact of making extra-judicial confession is not believable. Learned trial Court committed error in accepting this fact as a circumstance against accused Hazarat Ali. Non-discloser of the fact of an extra-judicial confession, in the First Information Report, is a serious infirmity to a prosecution case, with regard to such portion of the prosecution story, when the informant had knowledge of the same and want to impress the Court that deceased directly made it to him prior to his lodging the First Information Report. This occurred in the instant case. 11. Solitary statement of Gaffur Ali was not sufficient to hold that there was strained relationship in between Hazarat Ali and his wife Belsa-nessa. Not a single independent witness had been examined to corroborate Gaffur Ali on this fact. Mother of the deceased would have been the best witness to say if actually on the previous day of occurrence accused Hazarat AH refused his mother-in-law to take Belsa-nessa with her for Idd-festival as alleged by Gaffur Ali. Therefore, existence of strained relationship was not established. 12. The prosecution ease v/as that 3 accused including Hazarat Ali used lathis and the other 2 accused (ladies) used hands in assaulting Belsa-nessa. There was no specific evidence or any circumstance to hold that accused Hazarat Ali was responsible to cause the fatal injury over the neck namely strangulation. Therefore, existence of strained relationship was not established. 12. The prosecution ease v/as that 3 accused including Hazarat Ali used lathis and the other 2 accused (ladies) used hands in assaulting Belsa-nessa. There was no specific evidence or any circumstance to hold that accused Hazarat Ali was responsible to cause the fatal injury over the neck namely strangulation. When all the 5 accused were charged for the crime with the help of Section 34 of-the I. P.C., it was not proper without any specific evidence to make Hazarat Ali responsible for committing murder. 13. Learned Public Prosecutor further submits that some more circumstances namely, the conducts of the accused for non-lodging information with police, non-calling a Doctor, non-informing brother-in-law Gaffur and couple with his false defence plea lend support to the evidence of circumstances considered by the learned Sessions Judge. These would have been points for our consideration only when the prosecution case would have based initially on circumstantial evidence and then on proof of each of the circumstances beyond doubts. But the instant case was not of such nature. So, we find no force in the submission of Mr. Singh. 14. We are of the view that the learned Sessions Judge was not justified to convict accused Hazarat Ali under section 302 of the I. P. C. while acquitting the- other co-accused from the charge under section 302/34 of the 1. P. C. which was common to Hazarat Ali. Accused Hazarat Ali was entitled to acquittal and we order accordingly. 15. This appeal is allowed The impugned judgment, order of conviction and sentences are set aside. Accused Hazarat Ali is also acquitted of the charge under section 302/. 4 of the I. P. C.