JUDGMENT 1. This appeal is directed against the judgment of the learned Sessions Judge, Udaipur dated 15-4-1994, whereby the learned Sessions Judge has held the accused-appellant Bherunath guilty of the offence under Section 302 IPC and has sentenced him to imprisonment for life. 2. The facts necessary to be noticed for the disposal of this appeal briefly stated are : that deceased Chunnilal is alleged to be the brother-in-law of accused Bherunath. It is alleged that a dead body was found floating in the well of accused Bherunath, which was giving foul smell and, therefore, accused Bherunath informed the villagers about this. On this, certain, villagers assembled at his well and sent an information about it to the Police and thereafter, took out the dead body from the well. Certain photographs of the dead body were taken. It is further alleged that the villagers who were assembled there identified the dead body to be that of deceased Chunnilal, brother-in-law (looser) of accused Bherunath. It is alleged that deceased Chunnilal was born out of a wed-lock between the father-in-law of accused Bherunath and a Gameti lady and accused Chunnilal also contacted marriage with a Kalbeliya lady and, therefore, accused Bherunath felt insulted on account of the parentage and relations between deceased Chunnilal and Kalbeliya lady and so, after killing Chunnilal, accused Bherunath threw him in his well after tying two stones weighing about 20 kgs. in his Dhoti. It is further alleged that the towel of PW 5 Bheema which was in possession of accused Chunnilal was recovered from the possession of accused Bherunath. PW 5 Bheema has also identified the dead body of Chunnilal from the photographs. Later on, it is alleged that accused Bherunath confessed his guilt that he has killed Chunnilal because he was born out of the wedlock of his father-in-law and a Gameti lady and further he married with a Kalbeliya lady. Hence, after usual investigation, accused Bherunath was sent for trial. After recording the evidence, the learned Sessions Judge has held the accused-appellant Bherunath guilty of the offence under Section 302 IPC and has sentenced him to imprisonment for life. 3. Aggrieved against this judgment of the learned Sessions Judge dated 15-4-1994, the accused-appellant has preferred this appeal. 4. We have heard M/s Pradeep Shah and DS. Udawat, the learned counsel appearing for the appellant and Mr. 3. Aggrieved against this judgment of the learned Sessions Judge dated 15-4-1994, the accused-appellant has preferred this appeal. 4. We have heard M/s Pradeep Shah and DS. Udawat, the learned counsel appearing for the appellant and Mr. V.R. Mehta, the Public Prosecutor for the State and have carefully gone through the record of the case. 5. So far as the identification of the dead body is concerned, the prosecution has examined two witnesses and they are : PW 5 Bheema and PW 14 Ramlal. PW 14 Ramlal has no personal knowledge about the dead body. He did not know Chunnilal but he says that when the photographs Ex.P. 7 to Ex.P. 12 were shown to the people present there, the dead body was identified to be that of Chunnilal. Thus, his evidence is hear-say testimony with no personal knowledge. 6. So far as PW 5 Bheema is concerned, he happens to be the brother-in-law (gainer) of deceased Chunnilal and he has stated in his examination-in-thief that the towel which was recovered from the possession of accused Bherunath was given by him to Chunnilal and he identified it before the Magistrate in Gogunda Court. He has further stated that he was shown the photographs of the dead body Ex.P. 7 to 12 and thereafter, he identified the dead body to be that of Chunnilal. When he was cross-examined, he has stated that after recovery of the towel by the Police, the Police came and showed that towel to him and, therefore, the identification of the towel before a Magistrate thereafter looses all importance. Its recovery cannot connect the accused Bherunath with the guilt. So far as the photographs are concerned, PW 5 Bheema has further stated in his cross-examination that the dead body was not identifiable from the photographs but he has identified the dead body to be that of Chunnilal because the Police people told him that this dead body is of Chunnilal. Thus, his identification has no personal overtones. He has only identified the dead body to be that of Chunnilal because the Police people told him that this dead body is of alumna'. Thus, so far as the identification of dead body by PW 5 Bheema is concerned, the evidence of the prosecution is totally worthless and no reliance can be placed on it. 7. He has only identified the dead body to be that of Chunnilal because the Police people told him that this dead body is of alumna'. Thus, so far as the identification of dead body by PW 5 Bheema is concerned, the evidence of the prosecution is totally worthless and no reliance can be placed on it. 7. PW 1 Bhanwarsingh, ASI who was sent on the spot after receiving the information, has categorically stated that the dead body that was found in the well was of an unidentified male. Thus, it is clear that in the presence of PW 1 Bhanwarsingh, nobody identified the dead body. He has categorically stated in his cross-examination that when the dead body was taken out of the well, nobody identified that dead body but when the photographs and towel were shown to the legal representatives of deceased Chunnilal and his relations, the dead body and towels were identified to be that of Chunnilal. Thus, his evidence only says that on the basis of certain circumstantial evidence, he came to the conclusion that the dead body must be of Chunnilal. He had no personal knowledge about it. 8. PW 3 Gopilal, on whose testimony, implicit reliance has been placed by the learned Sessions Judge, has categorically stated that no body identified the dead body at the spot. The dead body was of an unidentified male. The persons who were present at the spot have been examined as PW 7, PW 8 , PW 9 and PW 10. PW 7 Chaturbhuj has not identified the dead body. PW 8 Kesa has also not identified the dead body. PW 3 Gopilal has stated that because of foul smell, he did not go near the dead body. PW 9 Bherulal has also not stated that he has identified the dead body. PW 10 Veniram was also present there and he too has not identified the dead body. He has stated that when the dead body taken out of the well, he went away. 9. Thus, from this prosecution evidence, it is clear that the prosecution has failed to establish that the dead body which was recovered from the well of accused Bherunath was that of Chunnilal. The basic link which may establish the case of the prosecution against the accused-appellant Bherunath that he killed Chunnilal is totally missing. 9. Thus, from this prosecution evidence, it is clear that the prosecution has failed to establish that the dead body which was recovered from the well of accused Bherunath was that of Chunnilal. The basic link which may establish the case of the prosecution against the accused-appellant Bherunath that he killed Chunnilal is totally missing. The dead body that has been recovered has not been identified by the prosecution witnesses. 10. The learned Sessions Judge has placed implicit reliance on the extra judicial confession made by accused Bherunath before the villagers. In this respect, implicit reliance has been placed on the testimony of PW 3 Gopilal, who has stated that the Police recorded his statements 3-4 times. The police was coming to their village off and on and harassing them and, therefore, he collected the villagers inclusive of PW 7 Cliaturbhuj, PW 8 Kesa PW 9 Bherulal and PW 10 Veniram and one Rumania, who has not been examined by the prosecution as a witness in this case. PW 3 Gopilal has further stated that the villagers told accused Bherunath that a dead body had been found floating in his well and if he has committed any mistake, he should disclose it to them, whereupon, after bowing his head, accused Bherunath told that 'MERE ANDER Ram Nikal Gaya Tha, Isliye Galti Ho Ga1 Hai'. According to PW 3 Gopilal, this was told by accused Bherunath in connection with the dead body of Chunnilal. He has further stated that when this confession was made, police people were also present there. At this stage, this witness (PW 3 Gopilal) was declared hostile and permission was granted to the learned Public Prosecutor to cross-examine this witness and in his cross- examination, this witness has stated that accused Bherunath told him that Chunnilal has gone to Gametis and has developed relations with a Kalbeliya lady and this brings bad name to him but he did not admit before them that because of this, he has killed Chunnilal. Later on, he was confronted with his statement marked portions A to B and C to D, which was given before the Police, which read as under : " ,& lksrs gq, ds f'kus ij iRFkj iVj ekj fn;k vkSj yk'k dks Nqikus ds fy, mlh dh /kksrh ls cka/k dj mlh iRFkj ds lkFk rFkk ,d vU; iRFkj vkSj cka/k dj dq,Wa esa Mky fn;k& ch0lh0 & eSaus brus fnu Mj ds ekjs ;g ckr ugha crkbZ esjs ls tks xyrh gks xbZ gSA vki xkao okys gh eq>s cpkvksA & MhA " He has admitted that this statement was given by him. It may be stated here that the statement given by a witness before the Police can only be used for contradiction and not for corroboration of the evidence given at the trial. 11. When PW 3 Gopilal was cross-examined by the learned counsel appearing for the accused, he has stated that the police examined him twice or thrice and in his police statement, he has stated that accused Bherunath told them that 'MERE MEIN RAM NIKAL GAYA HE1 AUR MERE SE GALTI HO GA1 HAI' but he did not tell them about tying stones and throwing his body in the well. This witness did not know Chunnilal and he did not meet him throughout his life. In his cross-examination by the learned counsel for the defence, PW 3 Gopilal has stated that in addition to PW 7 Chaturbhuj, PW 8 Kesa, PW 9 Bherulal and PW 10 Veniram, one Khumania was also there but the police people were not there. This is in contradiction to what he has stated in his examination-in-chief. This confession was made by accused Bherunath after one month of the lodging of the FIR. He has further stated that accused Bherunath did not tell him separately that he is annoyed with Chunnilal on account of his relations with a Kalbeliya lady. According to this witness, the villagers assembled in the village Chowk before the house of one Shariker and this fact about the confession made by accused Bherunath was told to him by other persons who were present there and he did not hear it from the mouth of accused Bherunath. According to this witness, the villagers assembled in the village Chowk before the house of one Shariker and this fact about the confession made by accused Bherunath was told to him by other persons who were present there and he did not hear it from the mouth of accused Bherunath. When this witness was cross -examined by the learned counsel for the accused, he has stated that this confession was made in his presence and it was disclosed to him by other three witnesses, i.e. PW 8 Kesa, PW 9 Bherulal and PW 10 Veniram. Thus, this witness is shifting his stand every time. Firstly, he has stated that this confession was made in the presence of the police and later, he retracted from that statement. Likewise, initially he has stated that this confession was made in his presence but later on, he has retracted from that statement and has stated that this confession was made before others and he has been told about it by other witnesses and when he was cross-examined by the learned counsel for the accused, he has stated that this confession was made in his presence. Testimony of such a witness cannot be placed relied implicitly and evidence of such a person who is shifting his stand every time cannot be used without proper corroboration for connecting the accused with such a serious offence of murder. 12. Now, this will be worthwhile to scrutinise the evidence of these four witnesses, about whom it is alleged that they were present at the time when this confession was made by accused Bherunath. PW 7 Chaturbhuj has nothing to say about the confession. PW 8 Kesa has stated that after one or two days of Diwali, the villagers were collected and accused Bherunath told them 'Mere Me Se Ram Nikal Gaya Hei' but he says that he does not remember in what context this confessional statement was made by accused Bherunath. Thus, he does not support the evidence of PW 3 Gopilal. 13. PW 9 Bherulal has stated that after 2-4 days of Diwali, the villagers were collected and on enquiry, accused Bherunath told 'MERE SE RAM NIKAL GAYA HEI'. According to him, this confessional statement was made by him in the presence of the police. Thus, he does not support the evidence of PW 3 Gopilal. 13. PW 9 Bherulal has stated that after 2-4 days of Diwali, the villagers were collected and on enquiry, accused Bherunath told 'MERE SE RAM NIKAL GAYA HEI'. According to him, this confessional statement was made by him in the presence of the police. This witness has categorically stated that accused Bherunath did not tell them that Chunnilal stayed for two nights at his place and he has killed Chunnilal and has thrown his dead body in the well. He admits that Bherunath told them 'Jo Kiya Vo Mene Kiya Hei Aur Mera Ram Nikal Gaya Hei. Thus, this witness also does not support this version that accused Bherunath admitted his guilt about killing Chunnilal and this witness has admitted that this confessional statement was made by him in the presence of the police. Any confessional statement made in the presence of the police cannot be acted upon. This witness too has stated that the police people were harassing them and, therefore, they called Bherunath and inquired from him in the presence of the police. 14. PW 10 Veniram does not say anything about the extra judicial confession made by accused Bherunath in his examination-in-chief. However, he has been declared hostile and has been cross-examined by the prosecution and in his cross-examination, he has stated that no such confession has been made by accused Bherunath in his presence. Thus, this witness does not support the theory of extra-judicial confession made by accused Bherunath. 15. Taking an over all view of the entire evidence that has been recorded in the case about the theory of extra judicial confession having been made by accused Bherunath, we are firmly of the view that this evidence is not at all reliable and the learned Sessions Judge has erred in placing implicit reliance on the testimony of PW .3 Gopilal, who is shifting his stand every time. 16. In Hanumant v. State of M.P., AIR 1952 SC 343 , their lordships of the Supreme Court have laid down the following principles for dealing with a case based on circumstantial evidence : "In dealing with circumstantial evidence, the rules specially applicable to such evidence must be borne in mind. In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof. In such cases, there is always the danger that conjecture or suspicion may take the place of legal proof. In cases, where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." If we examine this case on the touch-stone of these principles, the evidence that has been recorded in the case does not inspire confidence for sustaining a conviction against the accused-appellant Bherunath under Section 302 IPC. Under these circumstances, this appeal deserves to be accepted and the conviction and sentence recorded against the accused-appellant for the offence under Section 302 IPC also deserves to be set aside. 17. Accordingly, this appeal is allowed. The conviction and sentence of the accused-appellant Bherunath recorded under Section 302 IPC is set aside and he is acquitted of the above said offence. He be set at liberty, if he is not required in any other case.Appeal allowed. *******