JUDGMENT 1. Both the aforesaid appeals are being disposed by a common order, as they arise out of the same occurrence. The appellants and co-accused Budh Singh and Padam Singh were put on trial before the Additional Sessions Judge, Bayana in Sessions Case No. 70/91 for the offences punishable under Section 302, 392 and 120-B, IPC. The learned Trial Judge vide impugned judgment and order dated October 21, 1992 acquitted co-accused Budh Singh and Padam Singh, but convicted the appellants Bhuri Singh and Kalyan Singh under Section 302, 392 and 120-B, IPC and awarded various sentences of imprisonment including life imprisonment under Section 302, IPC. 2. To bring home the guilt of the accused, the brief facts of the case are as under:The deceased Smt. Bhoti wife of Gopal had gone to collect the grass from her field in the after-noon of 28th September, 1991. When she did not return home by evening on the same day, a search of her was made by the villagers and Ramjilal, the elder brother of Gopal. On search, her dead body was found in the field. A report of the incident was made by Ramjilal at Police Station Halena, where Crime No. 92/91 was registered under Section 302 and 392, IPC. Post-mortem of the dead-body was conducted by PW 10 Dr. N.K. Jain at 9.30 a.m. on 29th September, 1991. The doctor opined that cause of death and manner of death of Smt. Bhoti was Asphyxia due to tying of Saree around her neck. The appellants Bhuri Singh and Kalyan Singh were arrested on 29th September, 1991 vide arrest memos Ex.R 4 and Ex.P 5. It is alleged that some ornaments were recovered from their possession at the time of the arrest, which belonged to Smt. Bhoti. Thereafter, one silver chain was also recovered from PW 1 Lakhan vide seizure memo Ex.R 6 on the information of the appellant-Bhuri Singh. After recording statements of prosecution witnesses under Section 181 Cr.PC and completing other formalities, a charge sheet was filed against the appellants and co-accused-Budh Singh and Padam Singh. After being committed, they were tried, in the Court of learned Additional Sessions Judge, Bayana and ultimately convicted and . sentenced as aforesaid.4. At the outset, it may be stated that there is no direct evidence to connect the accused with the crime and the prosecution has mainly relied on circumstantial evidence for seeking conviction. After being committed, they were tried, in the Court of learned Additional Sessions Judge, Bayana and ultimately convicted and . sentenced as aforesaid.4. At the outset, it may be stated that there is no direct evidence to connect the accused with the crime and the prosecution has mainly relied on circumstantial evidence for seeking conviction. The following circumstances were relied by the prosecution. (i) the appellants were seen near the place of occurrence at about 3.00 or 4.00 p.m. on 28.9.1991; (ii) appellant-Bhuri Singh was seen by PW 5 Kaluva while he was going from the field of Gopal, from where, dead body of Smt. Bhoti was recovered; (iii) Extra-judicial-confession made by the appellants before the villagers; (iv) Recovery of silver and gold ornaments from the possession of the accused or at their instance; 5. To prove circumstance No. (i), the prosecution has examined PW 5 Kaluva and PW 11 Smt. Ramdevi. After careful scrutiny of their statements, we are of the opinion that no reliance can be placed on the same. Smt. Ramdevi has stated that at 3.00 or 3.30 p.m. 9 months prior to her statement, the appellants came to her while she vyas up-routing grass in her field and she was asked by Bhuri Singh (for?) 'Khurpa' an instrument collecting grass, but she refused to oblige. Thereafter, both the appellants went towards `Bandh' and were not seen thereafter. On the same day when she came in village at 5.00 p.m. she heard that Smt. Bhoti has not returned home, she told the villagers about the fact of seeing the appellants and the fact of demanding 'Khurpa'. In cross examination, the witness has stated that informant-Ramjilal was present when the above facts were told to the villagers and Ratan Lal, Kaluva and Ram Prasad were also present at that time. She, then, admitted that appellant Kalyan and co-accused Budh Singh were having litigations with informant-Ramjilal and Gopal, the husband of Smt. Bhoti. Contrary to this, PW 5 Kaluva has stated that at 5.00 p.m. when he was going to village Halena, he was being followed by appellant Kalyan Singh from the village itself. On asking, he expressed to go with him. He, then, inquired whereabouts of Bhuri Singh. Co-accused Padam Singh was grazing his she-buffalo nearby at that time and Kalyan Singh asked him whether Bhuri Singh happened to pass towards his side. On asking, he expressed to go with him. He, then, inquired whereabouts of Bhuri Singh. Co-accused Padam Singh was grazing his she-buffalo nearby at that time and Kalyan Singh asked him whether Bhuri Singh happened to pass towards his side. Padam Singh, replied at that time that Bhuri Singh had gone towards 'Bandh to ease-himself, as he was suffering from loose-motions. Then, Kalyan Singh called Bhuri Singh while standing on the road and Bhuri Singh came out of the field of Gopal. According to the witness, when Bhuri Singh was asked as to where he would go, he replied that he would go to village Dhyanpura. In the meantime a vehicle Matador came in which both Kalyan Singh and Bhuri Singh went. The witness also stated that he went to village Halena and came back to his village at 6.00 p.m.6. The statement of this witness cannot be reconciled with the statement of Smt. Ramdevi. Looking to the apparent infirmities and vagueness in their statements, we find it difficult to place reliance on the same. In our view, circumstance No. 1 is not proved from the evidence of the aforesaid two witnesses.7. Similarly, we are unable to rely on second circumstance also As per the medical evidence, Smt. Bhoti was murdered between 9.30 a.m. to 3.30 p.m. on 28.9.91. In case the appellant Bhuri Singh had killed her, it was not expected of him to have stayed in the field for such a long time. For arguments sake, if we accept the statement of Kaluva that at 5.00 o 5.30 p.m. the appellant Bhuri Singh came out of the field of Gopal, it can hardly be an incriminating circumstance as Kaluva himself has stated that Padam Singh had informed that Bhuri Singh was suffering from loose-motions and he had gone towards the field to ease himself. The third circumstance of extra judicial confession is also not proved by any cogent an reliable evidence. The learned Public Prosecutor tried to convince us to place reliance on the testimony of PW 5 Kaluva, PW 6 Ratan Singh and PW 8 Ram Charan, to believe this circumstance. We have minutely examined the statements of these witnesses and we are unable to place any reliance on their evidence. The learned Public Prosecutor tried to convince us to place reliance on the testimony of PW 5 Kaluva, PW 6 Ratan Singh and PW 8 Ram Charan, to believe this circumstance. We have minutely examined the statements of these witnesses and we are unable to place any reliance on their evidence. PW 8 Ram Charan has stated that when they found the appellants Bhuri Singh and Kalyan Singh while they were sleeping in a `Patol' at 4.00 a.m. on 29.9.91, Bhuri Singh told that Kalyan Singh committed the murder of Smt. Bhoti while Kalyan Singh named Bhuri Singh to have committed murder. Contrary to this, PW 7 Ratan Singh has stated that the appellant Bhuri Singh and Kalyan Singh were found sleeping in the `pator of one Munshi Gujar and they were caught and tied by the villagers and then they were brought to Police Station Halena. The witness, then, stated that in the way they enquired from Bhuri Singh about Smt. Bhoti and he replied that he and Kalyan Singh committed her murder for the sake of ornaments. PW 5 Kaluva has stated that Bhuri Singh confessed before them to have committed murder of Smt. Bhoti for the sake of ornaments when he was brought to Police Station after being caught and tied by the villagers and the appellant Kalyan Singh denied to have committed her murder. Thus, we found material contradictions in the statements of the above three witnesses on the factum of extra judicial confession. Otherwise also, the evidence of oral extra-judicial confession is of a weak type. It also appears that the witnesses were having enmity with the accused-persons. Further, PW 8 Ram Charan had admitted in cross examination that extra judicial confession were made by the accused-persons while they were given slaps and kicks by the villagers. The witnesses have denied material part of their statements recorded by the police under Section 161 Cr.PC. Taking into consideration the totality of all the facts and various infirmities and in-consistencies pointed out by the learned counsel for the appellants, we agree with their submissions that prosecution evidence to prove extra judicial confession of the accused is not reliable. Hence, we ignore this circumstance also.8. The last and the most important circumstance relied by the prosecution for conviction of the appellant is of recovery of ornaments from the possession or at the instance of the appellants. Hence, we ignore this circumstance also.8. The last and the most important circumstance relied by the prosecution for conviction of the appellant is of recovery of ornaments from the possession or at the instance of the appellants. As per prosecution case, one silver `Kondini' weighing 222 grams was recovered from Kalyan Singh- accused, when he was arrested vide arrest memo Ex.P.4. Similarly, two ear `Topas' of gold (out of which one was half) and one `kanta' used for wearing in nose, were recovered from appellant-Bhuri Singh at the time of his arrest vide memo Ex.R 5. These ornaments were stated to belong to Smt. Bhoti and it is said that she was wearing the same while she was alive. No doubt the recovery of gold and silver ornaments from possession of the accused after murder of Smt. Bhoti, can be a strong circumstance against the appellants, provided it is proved by cogent and reliable evidence. It would not be out of place to mention here that the trial Court has dis-believed the evidence of prior identification of these ornaments in parade by the witnesses Jora PW 15 and Gopal PW 16. It is also important to mention here that no injury was found either on the ear or nose of the deceased Smt. Bhoti when post-mortem of her dead body was conducted. To prove recovery of the aforesaid ornaments from the possession of the accused-appellants at the time of their arrest, the prosecution has examined PW 4 Ram Dayal and PW 12 Daya Ram, the motbir witnesses of the recovery memos. PW 4 Ram Dayal has stated in his examination-in-chief that no recovery of any ornament was made from the possession of Kalyan Singh. He, then, stated that silver 'Kondini' and one chain and one `seenk' and one more thing were with the appellant Bhuri Singh. It is note-worthy that none of the ornaments recovered during investigation was got identified from this witness either in the Court or in prior identification parade. Further, it was not the case of the prosecution that silver Kondini was recovered from the appellant Bhuri Singh or that silver chain was recovered from his possession at the time of arrest. This witness also has stated in cross examination that no injury on ears of nose of the deceased Was found when her dead body was seen by him. This witness also has stated in cross examination that no injury on ears of nose of the deceased Was found when her dead body was seen by him. PW 12 Daya Ram has no doubt supported the prosecution case in examination in chief, though, the articles were not got identified from this witness also either in the Court and in prior identification parade. In cross examination this witness has further stated that other villagers were present when the articles were seized by the police and Ramjilal, Ram Prasad and Kaluva were in the room with the S.H.O. at that time. The witness then stated that he cannot tell the description of `Kondini, Contrary to this, PW 6 Ratan Singh has stated that when the recovery and seizure memos of ornaments were made, they were Outside and he did not see ornaments at that time. Similarly, the statement of PW 13 Ram Prasad has stated that when recovery and seizure of ornaments was being made, they were outside, but he added that they could see from outside. The S.H.O. PW 18 Murarilal has no doubt proved Ex.R 4 and Ex.R 5, but he also did not identify the articles in Court.9. Similarly, the silver chain alleged to have been recovered from PW 1 Lakhan at the instance of appellant Bhuri Singh has not been identified by any of the witnesses in Court. It appears that neither the prosecuting agency nor the concerned Court was vigilant during trial that the articles (ornaments) are identified by the witness in Court, so as to connect them with the crime. This is a serious lacuna having strong bearing on the merit of the case. Hence, we are unable to believe this circumstance also.10. In view of the above discussions, we are unable to maintain the conviction of the appellants.11. In the result, both the appeals are allowed. The appellants Bhuri Singh and Kalyan Singh are acquitted of all the charges levelled against them and their conviction and sentence passed by the trial Court are set aside. Appellant Bhuri Singh is in jail. He shall be released forthwith, it not required in any other case. Kalyan Singh is on bail and he need not surrender to his bail bonds. His bail bonds are cancelled. Appellant Bhuri Singh is in jail. He shall be released forthwith, it not required in any other case. Kalyan Singh is on bail and he need not surrender to his bail bonds. His bail bonds are cancelled. The gold and silver ornaments recovered during investigation shall be returned to Gopal, the husband of the deceased, as they have not been claimed by any of the appellants.Appeal allowed. *******