RAJESHWAR SINGH, J. ( 1 ) THESE two appeals have been filed by Qayum alias Ramesh and Bachan appellants against the judgment and order dated 1-10-1986 passed by Sri. R. C. Shukla, Special judge, Dacoity Affected Area, Agra, in Sessions Trial No. 534 of 1982. Qayum has been convicted under Section 302 of the Indian Penal Code simplicitor and sentenced to death as also under Section 394 of the Indian Penal Code and sentenced to seven years R. I. Appellant Bachan has been convicted under Section 302/34 of the Indian Penal Code and sentenced to life imprisonment as also under Section 394 of the Indian Penal Code and sentenced to seven years R. I. The sentences of Bachan have been directed to run concurrently while the sentence of imprisonment of Qayum has been directed to be merged into the sentence of death, if executed There is also before us the reference made by the Special Judge for confirmation of the death sentence awarded to Qayum appellant. ( 2 ) THE prosecution case, in brief, is as follows: Mahendrapal Singh, P. W. I, was an employee of 509 Army Base Workshop, Agra, and resided in H. D. Colony, Eidgah, P. S. Rakabganj, Agral As usual on 2-2-1982 he left his house at 7. 45 a. m. for attending his duties. Smt. Moti Bai mother of Mahendrapal Singh also resided with Mahendrapal Singh, P. W. I, in the same house while the children of Mahendrapal Singh stayed at Delhi. On the same day (2-2-1982) Mahendrapal Singh returned to his house along with his friend S. C. Saxena at about 12. 30 p. m. in connection with some urgent work. Reaching there he found his mother Smt. Moti Bai lying dead Her hands and feet were tied with a Dhoti and a cloth was also tied around her neck. Some cloth was forcibly put in her mouth. The bolt of the other room was broken and the belongings of the house were lying scattered Much of the belongings had also been taken away. It was stated that some miscreants after killing Smt. Moti Bai had committed the theft in the house. ( 3 ) A written First Information Report of the incident was lodged by Mahendrapal Singh, P. W. 1, at 2. It was stated that some miscreants after killing Smt. Moti Bai had committed the theft in the house. ( 3 ) A written First Information Report of the incident was lodged by Mahendrapal Singh, P. W. 1, at 2. 00 p. m. on 2-2-82, at P. S. Rakabganj, Agra, the distance of the Police Station from the place of occurrence being 1 km. It was stated in the report that the crime might have been committed between the period 7. 45 a. m. and 12. 30 p. m. No person was named in the report. ( 4 ) THE police registered a case under Sections 302/394 of the Indian Penal Code and the usual investigation followed. ( 5 ) THE dead body of Moti Bai, deceased was sent for post-mortem examination which was conducted on 3-2-1982 at 1. 10 p. m. by Dr. S. S. Srivastava at District Hospital, Agra, The porobable age of the deceased was found to be 55 years and the following ante mortem injuries were found on her person: 1. Abrasion 3/4 x 4/1oti on middle part on the left side of neck. 2. Abrasion itt x 4/1ott on middle part on the right side of neck. 3. Contusion 3/10 x 1/2 on lobule of right ear. 4. Abrasion 3/4 x 1/1ott on right side of face below lower eye-lid. In the opinion of the doctor the death was caused due to Asphyxia as a result of throttling. ( 6 ) THE prosecution agency submitted separate charge-sheets against the two appellants as also one against Zahir. Bachan was arrested on 4-2-82; Zahir surrendered in court on 2-2-83 while Qayum appellant was anested on 14-1-1983 at New Delhi in a crime and was requisitioned from Delhi to Agra Jail. ( 7 ) CO-ACCUSED Zahir absconded during the trial on 1-8-1984 when he was released on bail. His case was, therefore, separated by the Trial Court on 10-5-1985. ( 8 ) THE two appellants were put up for trial as they denied the prosecution version, and, pleaded not guilty. No defence witness was produced. ( 9 ) IN support of its case the prosecution examined Mahendrapal Singh, P. W. 1, Prabhu, P. W. 2, Head Constable Badri Prasad, P. W. 3, Gopal, P. W. 4, Lachoo, P. W. 5, Kaiwal, P. W. 6 Anokhey Lat, P. W. 7, S. I. Rama Shanker Anand, P. W. 8. No defence witness was produced. ( 9 ) IN support of its case the prosecution examined Mahendrapal Singh, P. W. 1, Prabhu, P. W. 2, Head Constable Badri Prasad, P. W. 3, Gopal, P. W. 4, Lachoo, P. W. 5, Kaiwal, P. W. 6 Anokhey Lat, P. W. 7, S. I. Rama Shanker Anand, P. W. 8. The Trial Court examined Rajendra C. W. 1. There is no eye-witness in the case to support the prosecution version and the entire prosecution case mainly rested on the circumstantial evidence as also on an alleged extra judicial confession made by appellant Qayum. ( 10 ) THE Trial Court on the basis of the above material convicted and sentenced the appellant as already stated above. Hence this appeal. ( 11 ) WE have heard learned Counsel for the appellants and the State Counsel at some length. ( 12 ) BEFORE proceeding to scan the evidence it is necessary to examine the material which is on record to establish the guilt of the appellant. Leariled Counsel for the appellants have even vehemently submitted that in this case the evidence led by the prosecution is only circumstantial and is sought to be corroborated by the extra judicial confession which the appellant Qayum made to Mahendrapal Singh, P. W. 1 and Rajendra, C. W. 1 and also to Gopal P. W. 4. ( 13 ) IT is thus imperative to appreciate the above contentions which no doubt, have been repelled by the learned Counsel for the State and in that direction the evidence of the prosecution witnesses require a close scrutiny. However, before scrutinising the evidence it is expedient to extract the motive from the testimony of the witnesses. Another factor which also requires consideration is as to whether the appellants after committing the crime absconded. These two factors would Tbe discussed along with the statement of the prosecution witnesses but the edifice on which the prosecution has attempted to connect the appellants with the commission of the crime is the circumstantial evidence and the extra judicial confession as stated above. ( 14 ) IT may, however, be mentioned here that both the factors, that is the motive and the absconding of the appellants are without any credibility or worth as would be shown and later. ( 14 ) IT may, however, be mentioned here that both the factors, that is the motive and the absconding of the appellants are without any credibility or worth as would be shown and later. ( 15 ) IN support of the prosecution version Mahendrapal Singh, P. W. 1, has corroborated the allegations in the First Information Report. He has further stated that there were three marks of injuries on the face of his mother besides a bluish made on her feet and marks of blood on her finger. Her golden ring was also missing. He has also stated that he was much distressed and had sent the information to the police through his friend S. C. Saxena where after the police and the other employees of his office and neighbour came after an hour. He had dictated the report of the incident to Dr. R. C. Verma as he was quite shocked After 3-4 days he had submitted a list of the missing articles to the Sub-Inspector of police at the Police Station. He has also stated that Qayum appellant and Zahir accused were known to him from before. They used to come to his house quite often. He used to give them his gas cylinder for refilling and also often got his household articles purchased through them. Qayum is also called Ramesh. These accused often stayed back at his house during the illness period of his mother. This witness has stated that his mother had told him that Qayum had brought two persons, namely Zahir and Bachan to her house. One of them was told to be his brother while the other was told to be his friend. They were entertained properly by his mother. However, Mahendrapal Singh, P. W. 1, had told Qayum appellant not to bring any person to his house. ( 16 ) INCIDENTALLY it may be found that the other facts stated by him found no place in the First Information Report. ( 17 ) IN his cross-examination Mahendrapal Singh, P. W. 1, has stated that in the year 1944 his father had married for the second time. ( 16 ) INCIDENTALLY it may be found that the other facts stated by him found no place in the First Information Report. ( 17 ) IN his cross-examination Mahendrapal Singh, P. W. 1, has stated that in the year 1944 his father had married for the second time. The wife and the children, of the witness were staying at Delhi with his lather where, the ornaments of his mother were also kept He has admitted that, the Investigating Officer interrogated him after 1 or 2 days of the incident was be bad told the Investigating Officer that his mother had informed him that Qayum had brought two persons to his house. He had also mentioned the names of these two persons to the Investigating Officer. He stated that he does not know why the Investigating Officer did not note down these facts in his statement. He further committed that he knew Zahir accused for the last 7-8 months prior to the incident as he was plying a rickshaw of a garage. ( 18 ) MAHENDRAPAL Singh, P. W. 1, in the First Information Report, in his statement under Section 161 of the Criminal Procedure Code and his statement concluded on 3-2-1984. He was, however, reexamined again on 11-6-1986. The credibility of this statement incriminating appellant Qayum would be discussed later as this statement has been recorded after the entire prosecution evidence had concluded as well as the statement of the accused persons. ( 19 ) PRABHU, P. W. 2 has stated that he knew Mahendrapal Singh, P. W. 1, as he is residing about two years back around 11. 30 p. m. he was going to the house of Mahavir Prasad Upadhaya for selling vegetables on his Theta. As he was passing through the house of Mahendrapal Singh, P. W. 1, he saw three boys coming out of the house of Mahendra Pal Singh. out of these three boys he has named Zahir and Ramesh (Qayum ). Ramesh was having a Jhola in his hand with a tape recorder while Zahir had some clothes and the third had a coat in his hand. After about one or half an hour he heard a noise and learnt that some persons had killed the mother of Mahendra. Ramesh was having a Jhola in his hand with a tape recorder while Zahir had some clothes and the third had a coat in his hand. After about one or half an hour he heard a noise and learnt that some persons had killed the mother of Mahendra. He has stated that he had told Mahendra and Lachchu as well as the Sub-Inspector that very day that he had seen these three accused around 11. 30 a. m. coming out of the house of Mahendra. Nowhere this witness stated that he saw the appellant Qayum. In his cross-examination he admitted that he was 3-4 hands ahead of the house of Mahendra. He was standing in a lane. He has admitted that the Investigating Officer had interrogated him when his statement under Section 161 of the Criminal Procedure Code was recorded. However, he feigns ignorance as to how the Investigating Officer had written in his statement that four persons were coming out of the house of Mahendrapal Singh. He has clearly admitted that he did not pay much attention to the persons who were coming ,out of the house and his concentration was more on his vegetables nor was he aware that any incident would take place where he would be required as a witness. He has however, admitted that he had told the Investigating Officer about the features of the 3rd persons. He, however, feigns ignorance as to why the Investigating Officer had not mentioned about the features of the third person. He admitted that he could not identify this 3rd person in the Jail. He has further stated that at the time of the incident he had seen Zahir accused carrying a Sweater and some clothes but he does not know about the other clothes. He also does not remember as to whether this fact was told by him to the Investigating Officer. He has denied to have stated that he had seen some clothes with some unknown persons. He feigns ignorance as to how the Investigating Officer had mentioned this fact in his statement that there were two persons who were not known to him but he can identify them if they come before him and that they were having some articles, one was having a coat while the other was carrying a tape recorder. He saw the accused bolting the gate. He saw the accused bolting the gate. He has denied that he had told the Sub-Inspector that he had seen unknown persons bolting the gate. He feign;; ignorance as to how this fact was written in his statement by the Investigating Officer. On hearing about the incident he had reached the place of occurrence around 12. 30 p. m. There was a big crowd He has admitted that he does not know as to whether Mahendrapal Singh, P. W. 1 was there or not. He stayed there for half an hour. The police had reached there in his presence. He has admitted that he did not mention the name of any accused persons to the police at the Spot but had told it at the Police Station where he had gone with Lachchu. He has stated that he had told Lachchu, P. W. 5, that he had seen the accused persons coming out of the house of Mahendra. On being further cross-examined he stated that he had reached the Police Station of his own around 10. 00 0 clock and told the Investigating Officer the he had told about the incident to Lachchu. It is very surprising as to why this witness did not ten Mahendrapal Singh, P. W. 1, till that time that he had seen three persons coming out of his house and remained silent upto 10. 00 p. m. when he went to the Police Station of his own. This is contrary to human nature that this witness would not reveal such an important fact to a known person like Mahendrapal Singh, P. W. 1, He stated that he does not know as to why the fact that he had told about the incident to Lachchu was not written in his statement. He returned from the Police Station at 12 Oclock in the night Mahendrapal Singh, P. W. 1 had also reached there but he does not know when he left the Police Station. He has further stated in his cross-examination that he brings vegetables from Chhipitola Mandi and returns from there around 6-7 a. m. and immediately puts them on his Thela for selling in that colony. He does not know as to how much vegetables he had sold when he saw the accused person. He has stated that the tape recorder and the shoes were in the bag though he had not open the bag. He does not know as to how much vegetables he had sold when he saw the accused person. He has stated that the tape recorder and the shoes were in the bag though he had not open the bag. It is very difficult for a witness to know as to what is treasured in a bag when he himself had not seen it. He has also not disclosed that the tape recorder was coming out of the bag. In any case what other articles were kept in the bag is also beyond the imagination of any person. This witness is trying to implicate the appellants but much reliance cannot be placed on his testimony. He is admittedly a vegetable seller and a chance witness. He is standing in a lane where he was going to sell the vegetables to the house of Mahabir Prasad Upadhaya. It is contrary to human belief that a person who is selling vegetable would not concentrate on his vegetables but would instead divert his attention to other houses and see the visitors coming or going in such houses. He has further stated that he had gone to the Police Station alone of his own accord at about 10. 00 p. m. If he had seen some persons coming out of the house of Mahendrapal Singh, P. W. 1, and if the police had already reached there it was natural for this witness to disclose these facts to the police but this was not done and no explanation is forthcoming. This witness is known to Mahendrapal Singh, P. W. 1. It appears very surprising that a person who is in distress could not be located by this witness and more so when such a persons was a known one and whose mother had been killed. Kinship on such occasions would require that a known person would render all necessary help to a bereaved person. The presence of this witness and the story as narrated by him is neither convincing nor does it inspire confidence. No reliance can be placed on his testimony and in any case it does not help the prosecution. ( 20 ) GOPAL, P. W. 4, is aged about 19 years and is involved in plying rickshaw of a Panditji who is in Collectorate. No reliance can be placed on his testimony and in any case it does not help the prosecution. ( 20 ) GOPAL, P. W. 4, is aged about 19 years and is involved in plying rickshaw of a Panditji who is in Collectorate. He has stated that Kalwa, Bachchan and Qayum also ply rickshaw about 2 years back he had gone to his home at Hathras where he saw the appellants and Zahir accused in the house of Bachchan. He has stated that Bachchan told him that he was going to Agra from Hathras. He also told this witness that he should not tell their whereabouts to the police. Bachchan also told this witness that the necessary fare for going to Agra would be paid to him. The appellants and Zahir accused had also told him that they had killed an old woman and they were in possession of valuable articles though he has stated that he did not enquire as to which old women had been killed. When he reached Agra there was a big crowd in the Collectorate. Panditji, rickshaw owner had informed him that Bhai Saheb who comes with tape recorder had lost his mother. He does not know where this Bhai Saheb lives. He identified Mahendrapal Singh, P. W. 1, in court. He has further stated that prior to panditjis telling him about this incident Qayum had told him that an old woman had much wealth and she has to be finished. Qayum had also asked him to give some medidne which may kill her. He had, however, told him not to do so. He had told panditji that three persons had met him at Hathras. Thereafter Panditji had reported this matter. He has stated that he does not know the names of the accused persons. He admits that he did not say anything further. In his cross-examination he has admitted that Qayum and others had met him at Agra four days prior to his meeting them at Hathras. After meeting Qayum he had left for Hathras the next day. After a day these three persons had met him at Hathras. He had not seen Qayum at Agra. He has admitted that he did not hear about the death of the mother of Bhai Saheb. The day he had left for Hathras he had returned to Agra the next day. After a day these three persons had met him at Hathras. He had not seen Qayum at Agra. He has admitted that he did not hear about the death of the mother of Bhai Saheb. The day he had left for Hathras he had returned to Agra the next day. He has stated that Panditji on his return had told him about the death of Bhai Sahebs mother. He, however, admits that he does not know how Mataji had died. He admits that he had never seen Mataji alive or dead He has stated that he knows Qayum for the last 8-9 months. During these 8-9 months Bhai Saheb Mahendrapal Singh used to come to Panditji and sit there. He often talked to him and very often he used to talk to Qayum. He has admitted that he was never interrogated by the police and whatever statement he has given in court he had never given to anyone else. The testimony of this witness is of no avail to the prosecution and no credibility can be attached to such a statement as it lacks in intrinsic worth. There was hardly any occasion for this witness to have been told about the killing of Mataji by appellants. Admittedly there was no such intimacy with this witness and the appellants. Any person who may have committed a ghastly crime would not reveal such commission even to his best friend what to say to safe to rickshaw puller. Moreover this witness could have been of no help to the appellants and as such the disclosure of the commission of the crime to this witness appears to be wholly unwarranted Learned Counsel for the State has submitted that the appellants and Zahir accused had made a joint extra Judicial confession which should believed upon. It is very difficult to agree to such a submission particularly in view of the circumstances of the case and facts discussed above. ( 21 ) LACHCHU, P. W. 5, aged about 22 years is having a hotel. He states that he knows the accused persons as they used to come to his hotel for taking their meal. Around 2 or 21/4 years back these the persons had come in a rickshaw being driven by a fourth person to his hotel for taking their meal. These persons were having a tape recorder and some clothes and a sweater. He states that he knows the accused persons as they used to come to his hotel for taking their meal. Around 2 or 21/4 years back these the persons had come in a rickshaw being driven by a fourth person to his hotel for taking their meal. These persons were having a tape recorder and some clothes and a sweater. His house is situate at a distance of 15 houses from that of Mahendrapal Singh. This tape recorder belonged to Mahendrapal Singh which was of Japanese make. He bas stated that these persons were known to him for 5-6 months while Mahendrapal Singh is know to him for 8-10. years. His mother was also known to him though he does not know as to who others were residing in the house. He bas admitted that be bad never seen any tape recorder in the house of Mahendrapal Singh. Around 9. 30 p. m. , when he returned to his house be learnt that the mother of Mahendrapal Singh bad been killed and the articles had been taken. He went towards the crossing and found Prabhu besides others. At that time Prabbu told him that three boys used to come there. He was interrogated by the police on the next day i. e. 3-2-1982. He had told the Investigating Officer that the appellants bad taken their meal in his hotel hurriedly. He does not know as to bow such an important fact bas not been mentioned in his statement by the Investigating Officer. He has admitted that he did not tell the Investigating Officer that the persons who bad come to take their meal were scared He bas admitted that on 14-3-1983 he had gone to jail for identification where be could not identify any person. He has admitted that he had not seen the commission of the murder. Nothing incriminating bas been revealed int the statement of this witness. He has also not stated that he bad gone to the Police Station along with Prabbu, P. W. 2, though Prabbu, P. W. 2, has stated that he bad gone to the Police Station along with Lachchu, P. W. 5, to whom he bad revealed the entire story. Such a salient fact is not found in the statement of this witness. It thus clearly reveals that the testimony of this witness hardly inspires any confidence. Such a salient fact is not found in the statement of this witness. It thus clearly reveals that the testimony of this witness hardly inspires any confidence. The fact that this witness could not identify the accused persons in jail clearly indicates that he did not know them but was falsely implicating them. 21a. Kalwa, P. W. 6, aged about 19 years is also a rickshaw puller. He bas stated that the appellants besides Zahir are known to him. He bas stated that these accused bad told him that an old woman had to be killed which was told to him about 8-10 days back when they had met him at the shop of Har Prasad Panditji. However, nothing was told to him when be had met him. On the day when be met Qayum was bolding a tape recorder and a few clothes while Bachchan was having a coat. The tape recorder was played at the shop of Panditji. These persons bad asked wm to leave them at Anjana Talkies. In his cross-examination be stated that he met only three persons and they were on a rickshaw and had alighted near Collectorate where be was standing with his rickshaw. He bas admitted that he never told the Sub-Inspector that four persons had alighted from the rickshaw. He asserted that only three persons bad alighted He could not say as to bow the Investigating Officer had written about the alighting of four persons in his statement. There is also no material in the statement of. this witness which may rope in the appellants with the commission of the crime. The circumstance that prior to his meeting at the shop of Pandit Har Prasad about 8-10 days back these persons had told him about the killing of an old woman does not inspire confidence nor does it have some credible worth. The prosecution bas tried to, assert that this statement that an old woman is to be killed was a part of a conspiracy. This is bereft of any substance and on such imaginative plea by the prosecution it is difficult to uphold it. ( 22 ) ANOKHEY Lal, P. W. 7, is rickshaw owner. He has stated that Qayum alias Ramesh and Bachchan appellants used to take rickshaw, from him for plying. It is for the first time that Qayum is called alias Ramesh. ( 22 ) ANOKHEY Lal, P. W. 7, is rickshaw owner. He has stated that Qayum alias Ramesh and Bachchan appellants used to take rickshaw, from him for plying. It is for the first time that Qayum is called alias Ramesh. He has stated that these persons used to ply rickshaw for a fortnight. A day prior to the incident Qayum had asked for a rickshaw on hire on which he demanded the hire charges already accrued. Qayum told him that he would pay him tomorrow and in case he has no faith he may keep his tape recorder. This witness told him that this tape recorder belongs to Mahendrapal Singh and is not his to which he replied that the (P. W. 7) Anokhey Lal) has no concern with it. As and when he would pay the charges he would take the recorder. The next day Qayum did not come by 10. 00 a. m. and as such the rickshaw was given for plying to other person. He has stated that one Kalwa, P. W. 6 had met. Qayum and the other accused near Collectorate and Kalwa, P. W. 6, was told by them that they had a tape recorder and some currency notes with them. Later on Kalwa, P. W. 6, disclosed this witness that the mother of Mahendrapal Singh had been killed by Zahir, Qayum and Bachchao. On cross-examination this witness stated that he had told the Investigating Officer that a day prior to the incident Qayum had pawned the tape recorder. He has stated that he does not know as to how this fact was not written in his statement by the Investigating Officer. He does not know the make of the recorder nor does he know the number of bands. He had returned the tape recorder to Mahendrapal Singh after showing it to the Investigating Officer. Mahendrapal Singh had paid him Rs. 30/- for which it was pawned. That tape record was not of theft because Qayum used to be in the Company of Mahendrapal Singh. Mahendrapal Singh resides at a distance of 1 km. from his shop. He has stated that he had informed the police on 3rd February 1982 about this incident. He has admitted that he had told the Investigating Officer that the accused persons were have currency notes with them. Mahendrapal Singh resides at a distance of 1 km. from his shop. He has stated that he had informed the police on 3rd February 1982 about this incident. He has admitted that he had told the Investigating Officer that the accused persons were have currency notes with them. He does not know as to why such an important fact has not been written in his statement by the Investigating Officer. He admits that Goapl, P. W. 4 had returned from Hathras on 2nd February, 1982 and bad taken a rickshaw from him on 3rd and 4th February, 1982. He had talked to Gopal about the incident on 3rd or 4th February, 1982. There is no circumstance which may incriminate the appellants except the pawning of the tape recorder. This tape recorder admittedly was not taken after commission of the crime. Another circumstances Which is sought to be linked in the commission of the crime by the accused persons is the intimacy between Qayam and Mahendrapal Singh. This again is of no avail to the prosecution. He bas stated that Gopal bad returned from Hathras on 2nd February, 1982 and he had talked to him either on 3rd or 4th February 1982. This discredits the entire version of Gopal, P. W. 4, when he deposes that after the commission of the crime the appellants and Zabir has told him about having committed the murder. The murder admittedly took place on 2-2-82 and Gopal, P. W. 4, had talked to this witness on 3rd or 4th February 1982. It is thus clear that there could not have been any conversation between the accused persons and Gopal, P. W. 4. There is no credibility in the statement of this witness nor his statement helps the prosecution. No reliance can be placed on his evidence. ( 23 ) S. I. Rama Shankar Anand, P. W. 8, investigated the case. He had recorded the statements of Mahendrapal Singh, Prabhu and Kalwa on 2-2-1982 while the statements of Anokhey Lal, Lachchu and Gopal had been recorded by him on 3-2-1982. He admits that he came to know about the whereabouts of Bachchan on 3-2-82. However, he had moved for the identification after a month on 4-3-1982. It may be stated here that Bachchao appellant was arrested on 4-2-82. He admits that he came to know about the whereabouts of Bachchan on 3-2-82. However, he had moved for the identification after a month on 4-3-1982. It may be stated here that Bachchao appellant was arrested on 4-2-82. He had admitted that Prabhu, P. W. 2, had disclosed the ages of the miscreants but had not told him about their features. He has further admitted that Prabhu, P. W. 2, had told him that there were two other persons also whom he does not know but they could be identified by him. This bas been denied by Prabhu, P. W. 2, himself. ( 24 ) AFTER the entire evidence was concluded the statement of the accused were recorded on 20-9- 1985. It was thereafter that an application was filed on behalf of the prosecution for bringing certain facts on record particularly the confession of the crime by Qayum which was tape recorded by Mahendrapal Singh, P. W. 1. He was permitted to be re-examined and his statement was recorded on 11-6-1986. In this statement was recorded on Mahendrapal Singh, P. W. 1, bas stated that after 10 months of the incident on 25th or 26th December 1982 he had gone to meet his father at Delhi. On 27-12-1982 he met Qayum appellant plying a rickshaw near Jama Masjid, Delhi. He talked to him. Qayum went with him to his fathers, house at Shadra. He had one there of his own accord He confessed his guilt of murder and had given a statement which was taped by this witness. At the time of taping of such statement his father Kishan Singh and his brother Pramod Kumar were present. His father and his brother also put certain questions which were taped In this tape the voice of this witness be sided that of his father and brother and accused Qayum is present. He has produced the cassette in Court. This witness also stated that Qayum had admitted his guilt before one Rajendra, C. W. 1. he admits that Rajendra had told him about the confession of the guilty by- Qayum after the recording of the tape. Rajendra used to say that Qayum is his friend He has specifically stated that he did not mention when his statement was recorded earlier in the court about the recording of statement of Qayum appellant on tape. he admits that Rajendra had told him about the confession of the guilty by- Qayum after the recording of the tape. Rajendra used to say that Qayum is his friend He has specifically stated that he did not mention when his statement was recorded earlier in the court about the recording of statement of Qayum appellant on tape. He has also admitted that he had told about the recording of the statement of Qayum appellant on tape to the Investigating Officer who had told this witness that this is not of any importance. This witness has stated that the accused voluntarily confessed his guilt without any coercion, greed or inducement. He has in his cross-examination admitted that he did not disclose to anyone about the confession of the guilt by Qayum as he did not consider it important. But by that time the confession of the accused had already been taped He has admitted that the confession was recorded around 5-6 p. m. While the accused had met him around 3. 30 p. m. This witness has further admitted that he had told Qayum to accompany him and disclose the facts about the murder of his mother where upon the accompanied to his fathers house. At that time when he had met him he was having a rickshaw on hire which was left there. Both travelled to Shadra on a three wheeler. This witness admitted that when Qayum statement was being taped he was not aware about the taping of such statement: This witness has further admitted that the confession is in the form of conversation. The accused was put questions by this witness as well as by his father and brother. This witness has also admitted that after the recording of the tape Qayum appellant had of his own travelled with this witness to Agra though he ran away at Rajamandi station. He has admitted that it had stroke him to inform the police but he thought it proper to take him to Agra for handing him over to the police and this was the reason for taking him to Agra by Qutub Express. Qayum had come of his own to Agra but he disappeared between Rajamandi Station and Han Parvat Police Station as it was evening and there was much of fog. Qayum had come of his own to Agra but he disappeared between Rajamandi Station and Han Parvat Police Station as it was evening and there was much of fog. This witness also stated that he had also recorded the statement of Rajendra, C. W. 1, at the end of the cassette. ( 25 ) RAJENDRA, C. W. 1, is aged about 22 years. He has stated that he had met Qayum four years back. He was plying a rickshaw. This witiless has stated that on his enquiry as to why he had left Agra he had disclosed that he had lost a big amount in gambling. He went to take some money from Mataji deceased. He went there along with his 3-4 friends. He demanded the keys of the box but they were not given by Mataji where after force was used Mataji raised an alarm. Apprehending that they may be arrested they throttled the neck and took away the tape recorder, clothes etc. After taking such articles they left the place Qayum had told him that he had sold the tape recorder. He had stated that he had come from Delhi in search of his friend Ranjit and he was sitting on the garage of panditji. There Mahendrapal Singh enquired from him as to wherefrom the had come. He informed him that he was coming from Delhi. Mahendrapal Singh then enquired as to whether Qayum was there or not. A photo was shown by Mahendrapal Singh P. W. 1. He has admitted that prior to this he was not known to Mahendrapal Singh. He has admitted that Mahendrapal Singh had recorded his statement on tape. There is nothing incriminating in the statement of this witness which is worthy of reliance. Moreover, this witness discredited the prosecution version when he deposed that Qayum needed some money which was demanded from Mataji and on her refusal to give the keys she was throttled to death. It is completely at variance with the version of the prosecution which reveals of a motive to loot the entire household effect of Mahendrapal Singh, P. W. 1. The motive as is being assigned to the appellants and accused Zahir does not bear any credibility inasmuch as no other household effects were taken except a tape recorder and a few clothes as alleged by the prosecution. The motive as is being assigned to the appellants and accused Zahir does not bear any credibility inasmuch as no other household effects were taken except a tape recorder and a few clothes as alleged by the prosecution. There was ample opportunity to Qayum to have taken away the tape recorder and other clothes as he used to visit the house of Mahendrapal Singh as he was friendly to him. The appellants has already earned the confidence of Mahendrapal Singh, P. W. 1, and his mother. Merely to take a tape recorder and a few clothes cannot by itself be such a motive as to put an end to the life of the old woman. The motive as is being alleged by the prosecution is so weak in intent and spirit that no reliance on the prosecution version as regards the motive can be placed. ( 26 ) IT may also be mentioned here that the plea of absconding has not been satisfactorily established by the prosecution. It is a common practice with rickshaw pliers to ply rickshaw in one town for some time and then to shift to another town. It is thus amply clear that neither the motive nor the plea of absconding has been established by the prosecution. ( 27 ) IT now remains to be seen as to whether any circumstances are there which may implicate the appellants. The first circumstance that has been stated by the prosecution is that Prabhu, P. W. 2, saw the accused persons coming out of the house of Mahendrapal Singh, P. W. 1 but this by itself is not a good circumstance to rope in the appellants with the commission of the crime. The other circumstances to implicate the appellant is about their possessing the tape recorder and of few clothes. The statement of Prabhu, P. W. 2, his already been discredited as no person would take the tape recorder which may be seen and all precaution would be exercised The other circumstances as are being attributed to implicate the appellants have already been dealt with above and the testimony of such witnesses has been discredited. ( 28 ) TO appreciate the testimony of the witnesses it is necessary to find as to whether the cardinal principles as settled by the Supreme Court in regard to the circumstantial evidence has been established or not. ( 28 ) TO appreciate the testimony of the witnesses it is necessary to find as to whether the cardinal principles as settled by the Supreme Court in regard to the circumstantial evidence has been established or not. ( 29 ) IN the case of Gambhir v. State of Maharashtra it has been held as under: The law regarding circumstantial evidence is well settled When a case rests upon the circumstantial evidence such evidence must satisfy three tests : (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and in capable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. ( 30 ) THE above principle was followed by the Supreme Court in the case of Earabhadrappa v. State of Karnataka2 where it was again held as under: In cases in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and the facts and circumstances should not only be consistent with the guilt of the accused but they must be in their effect as to be entirely incompatible with the innocence of the accused and must be exclude every reasonable hypothesis consistent with his innocence. ( 31 ) FURTHER in the case of Sharad Birdhichand Sarda v. State of Maharashtra3 five principles were set out with celebrity: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Case law discussed The Supreme Court further found that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by the Supreme Court in Shivaji Sahebrao Bobade v. State of Maharashtra4 where the following observations were made Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between may be and must be is long and divides vague conjectures from sure conclusions. Keeping in mind the above shining guidelines of the Supreme Court when we examine the evidence of the prosecution witnesses we find that their evidence is not credible and does not inhere intrinsic worth. The circumstantial evidence which is ought to be produced to connect the appellants with the crime is thus completely of no avail to the prosecution. ( 32 ) NOW we are left with the alleged extra judicial confession recorded on tape by Mahendrapal Singh, P. W. 1. As regards the evidentiary value of the confession recorded on tape it is absolutely necessary that in order to accept a confession two tests are to be satisfied i. e. it is voluntary and secondly it is truthful. A voluntary and truthful confession carries in it the spirit of remorse fullness. As regards the evidentiary value of the confession recorded on tape it is absolutely necessary that in order to accept a confession two tests are to be satisfied i. e. it is voluntary and secondly it is truthful. A voluntary and truthful confession carries in it the spirit of remorse fullness. Admittedly the confession of Qayum was recorded after 10-12 months of the commission of the offence. It is difficult that a person would carry this load of remorse fullness for 10-12 months. With the passage of the time the remorse fullness would vanish and normalcy would creep into the mind. The conscience may be shaken immediately after the commission of a crime and the person who has committed the crime would try to reveal the fact immediately but after such a longtime he would he come normal and would be able to conceal the truth. Wills on circumstantial Evidence, 7th Edition, at pages. It and 121 bas detailed the danger of placing implicit dependence upon confession as follows: Judicial history presents abundant warning of the danger of placing implicit dependence upon confession even where exempt from all suspicion of coercion, physical or moral, or other sinister influence. How greatly then must such danger be aggravated where confession constitutes the only evidence of the fact that a crime has been committed; and how incalculably greater in such cases is the necessity for the most rigorous scrutiny of all collateral circumstances, which may induce a false confession. The agonies of torture, the dread if their infliction, the hope of escaping the rigour of slavery or the hardships of military service, a wariness of existence, self-delusion, the desire to shield a guilty relative or friend from the penalties of justice (Chittys Criminal Law, Vol. I, p. 85), the impulses of despair from the pressure of strong and apparently incontrovertible presumptions of guilt, the chance of escaping unmerited punishment and disgrace, the hope of pardon, even the love notoriety, these and numerious other inducements have not infrequently operated to produce unfounded confessions of guilt. ( 33 ) THE main factor is whether the confession recorded by Mahendrapal Singh, P. W. 1, was voluntary or not The above passage of wills on circumstantial Evidence would clearly show that there is danger of placing reliance on such a confession. ( 33 ) THE main factor is whether the confession recorded by Mahendrapal Singh, P. W. 1, was voluntary or not The above passage of wills on circumstantial Evidence would clearly show that there is danger of placing reliance on such a confession. It is well settled that it is for the prosecution to establish that the statement is voluntary. It is not for the accused to negative it. The prosecution has to establish its duty to satisfy that the confession is voluntary. However, when any challenge is made as to the admissibility of such evidence of confession it is to be found out from the circumstances as to whether such a confession was voluntary or not. Appellant Qayum meets Mahendrapal Singh, P. W. 1, by chance. After the passage of time of 10th months a culprit would try to run away and in any case it is against human conduct and is highly improbable that on being enquired about the cause of the death of his mother he would voluntarily accompany him to confess his guilt. Qayums tamely accompanying Mahendrapal Singh, P. W. 1, to his residence is highly doubtful and that too after a lapse of 10 months. ( 34 ) ANOTHER aspect of the case which also requires significant appraisal is that if the accused had confessed his guilt and had voluntarily accompanied Mahendrapal Singh, P. W. 1, to Agra there was hardly any occasion for him to disappear. Mahendrapal Singh, P. W. 1, has stated that he ran from Rajamandi station though later on he says that the accused accompanied him but disappeared between Rajamandi station and Han Parvat Police Station in view of the fog. This circumstance is at variance with the change of the conscience or with the spirit of remorse fullness. Had a person confessed his guilt then he knew it well as to what is in store for him. ( 35 ) ANOTHER salient feature which has to be considered is as to whether any inducement, coercion or threat was prevailing when such a confession was recorded. No doubt Mahendrapal Singh, P. W. 1, stated that the confession made by appellant Qayum was voluntary but his hardly inspires any confidence. We have heard on more than one occasion the cassette in which the confession was recorded. After hearing we find that there is no coherence in the voice of Qayum. No doubt Mahendrapal Singh, P. W. 1, stated that the confession made by appellant Qayum was voluntary but his hardly inspires any confidence. We have heard on more than one occasion the cassette in which the confession was recorded. After hearing we find that there is no coherence in the voice of Qayum. It shivers no more than one occasion. At several occasions it is found to be trembling as if the voice is that of a person who has consumed some drug or liquor or is under some threat. Even while recording confession in court caution is administered but on hearing the tape we find in abundance the threatening voices with which he is being questioned. It reveals of a duress being exercised No doubt endeavour was made to discover the author of the crime but the chance meeting and later on accompanying to the house of Mahendrapal Singh, P. W. 1, by Qayum appellant would only reveal unnatural instance. This confession was recorded as stated above after a lapse of 10 months. It appears that an effect was being made to extort the confession. To believe on such an extracted confession would be perilous. ( 36 ) IN the case of Kanse Behera v. State of Orissa5 the Supreme Court observed: It is significant that the wife of the deceased who has been examined has a witness deposed that next morning the appellant went to her and told her that her husband was lying dead, but she did not believe him and later Phuden Majhi came and told her that her husband was ill and wanted her to accompany him without taking food and she stated that she went along with him and found her husband lying dead with his threat out. It is interesting that this Phudan Majhi who came and told her a false story has not been examined. The three circumstances on the basis of which the appellant has been convicted have to be considered. The last one, i. e. the extra judicial confession is proved by P. Ws. 7 and 8. A perusal of the evidence of P. W. 8 discloses that this witness in cross-examination went back and denied any confession having been made by the appellant. The other witness is P. W. 7 who no doubt has spoken about on extra judicial confession made by the appellant. 7 and 8. A perusal of the evidence of P. W. 8 discloses that this witness in cross-examination went back and denied any confession having been made by the appellant. The other witness is P. W. 7 who no doubt has spoken about on extra judicial confession made by the appellant. This is after a long lapse of time as admittedly this appellant absconded after his arrest on 15-12-1968 and was later arrested on 22-8-1972 and this extra judicial confession therefore appears to have been made after a long lapse of time. The circumstances in which this apellant was apprehended and this statement is alleged to have been made also is rather interesting. In Bihar this appellant was apprehended for having committed theft and that he was produced before the Mukhiya of the village P. W. 7 and the Mukhiya wanted him to be handed over the police. That it is alleged that the appellant said that I wanted in connection with a murder case and I am hiding from the police and therefore requested not to be handed over to the police and in this background it is alleged that he made a statement that he has killed one Bhatal Majhi. Such an extra judicial confession for proving which two witnesses were produced. One of these witnesses has gone back on that statement and this statement is alleged to have been made after a long lapse of time. In our opinion it is a piece of evidence on which no reliance could be placed and under these circumstances, in our opinion, this piece of evidence has to be left out of consideration. ( 37 ) IN the case of Ratan Gond v. The State of Bihar6 it was held: That it is enough to state that usually and as a matter of caution courts require some material corroboration to such a confessional statement, corroboration which connects the accused person with the crime in question, and the real question which falls for decision in the present case if the circumstances proved against the appellant afford sufficient corroboration to the confessional statement of the appellant, in case we hold that the confessional statement is voluntary and true. In this case except for the statement recorded on tape there is no circumstance to connect the appellants with the crime. In this case except for the statement recorded on tape there is no circumstance to connect the appellants with the crime. ( 38 ) AS regards the confession having been recorded on tape, in RM. Malkhani v. State of Maharashtra7 following Esmail Nogri v. State of Maharashtra8 it was observed that the tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue, secondly there is identification of the voice, and thirdly, the accuracy of the tape recorded conversation, is proved by eliminating the possibility of erasing the tape record. While admitting such evidence Courts should also keep in mind that the tape recorded conversation can be altered and very many passages deleted In the instant case it was after lapse of 10 months that such a confession was recorded on tape. The actual words as we have heard on the tape are at places not easily discernible. The chances of deleting the relevant passage in the tape are also not absolutely wanting. In such circumstances it is difficult to rely on the confession recorded on tape where Qayum is alleged to have confessed. ( 39 ) ANOTHER aspect which is very suspicious and highly doubtful is that though Mahendrapal Singh, P. W. 1, had recorded the alleged confession on tape after 10 months but this fact was not disclosed to anyone. It is highly improbable that when such a fact is being disclosed to the Investigating Officer he would not attach any importance to it. It only mitigates the truthfulness of the testimony of Mahendrapal Singh, P. W. 1, that he had ever intimated this fact to the Investigating Officer as the Investigating Officer has himself not admitted it. However indifferent the Investigating Officer might be it was incumbent on Mahendrapal Singh, P. W. 1, to have told the court when his Statement was recorded that after 10 months of the incident he had recorded the confession of guilt by Qayum appellant. This too was not done. All these circumstances go to discredit the prosecution version about confession of guilt by Qayum appellant. This too was not done. All these circumstances go to discredit the prosecution version about confession of guilt by Qayum appellant. ( 40 ) IN the case of Nathu v. State of U. P. 9 it was held that confessions of co-accused are not evidence as defined in section 3 and no conviction can be founded thereon but if there was other evidence on which a conviction can be based they can be referred to as leading assurance to that conclusion and for fortifying it. Instantly there is no other evidence which may have intrinsic worth to implicate the appellants with the crime. ( 41 ) IN the case of Aher Raja Khima v. State of Saurashtra1 it was held as under: Now the law is clear that confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. It is abhorrent to our notions of justice and fair play, and is also dangerous, to allow a man to be convicted on the strength of a confession unless it is made voluntarily and unless he realise that anything he says may be used against him; and any attempt by a person in authority to bully a person into making a confession or any threat or coercion would at once invalidate it if the fear as still operating on his mind at the time he makes the confession if it would appear to him reasonable for suposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him; Section 24 of the Indian Evidence Act. That is why the recording of a confession is hedged around with so many safe guards and is the reason why magistrates ordinarily allow a period for reflection and why an accused person is remanded to jail custody and is put out of the reach of the investigating police before he is asked to make his confession. But the force of these precautions is destroyed when, instead of isolating the accused from the investigating police, he is for all practical purposes sent back to them for a period of ten days. But the force of these precautions is destroyed when, instead of isolating the accused from the investigating police, he is for all practical purposes sent back to them for a period of ten days. It can be accepted that this was done in good faith and we also think that the police acted properly in sending the appellant up for the recording of the confession on the 2lst; they could not have anticipated this long remand to so called jail custody. But that is hardly the point. The fact remains that the remand was made and that opened up the very made and that opened up the very kind of opportunities which the rules and prudence say should be guarded against; and, as the police are as human as others, a reasonable apprehension can be entertained that they would be lass then human if they did not avail themselves of such a change. ( 42 ) IN the case of Sarwan Singh Rattan Singh v. State of Punjab11 it was held that the act of recording confessions under Section 164 of the Criminal Procedure Code is a very solemn act and in discharging his duties under the said section the Magistrate must take care to see that the requirements of the above section are satisfied. The whole object of recording confession is to obtain assurance of the fact that the confession is not caused by any inducement, threat or promise. ( 43 ) IN the case of Thimma v. The State of Mysore12 it was held as under: An unambiguous confession, if admissible in evidence, and free from suspicion suggesting its falsity, is a valuable piece of evidence which possesses a high Probative force because it emanates directly from the person committing the offence. But in the process of proof of an alleged confession the court has to be satisfied that, it is voluntary, it does not appear to be the result of inducement, threat or promise as contemplated by Section 24 of the. Indian Evidence Act and the surrounding circumstances do not indicate that it is inspired by some improper or collateral consideration suggesting that it may not be true. Indian Evidence Act and the surrounding circumstances do not indicate that it is inspired by some improper or collateral consideration suggesting that it may not be true. For this purpose, the court must scrutinise all the relevant factors, such as, the person to whom the confession is made, the time and place of making it, the circumstances in which it is made and finally the actual words usedt ( 44 ) IN view of the above discussion, if the alleged confession is excluded then there is not, in our opinion, sufficient evidence against the appellants on which conviction can be based It is, therefore, manifest that the prosecution has miserably failed to bring home the guilt to the appellants and their appeals deserve to be allowed. ( 45 ) IN the result both the appeals are allowed and the conviction and sentences of the appellants recorded by the special Judge (Dacoity Affected Area), Agra, are set aside and they are acquitted. The reference made by the Judge for confirmation of death sentence passed against appellant Qayum is rejected. The appellant Qayum shall be set at liberty forthwith unless wanted in some other case. Bachan being on bail his bail bonds are discharge. Appeals allowed. .