JUDGMENT 1. - The appellant herein Rasula who has been convicted under Sections 302 and 201, Indian Penal Code by the Addl. Sessions Judge No. 2, Alwar by judgment and order dated 1.11.95 has been sentenced to imprisonment for life alongwith a fine of Rs. 500/-under Section 302, Indian Penal Code and in default of payment of fine to further undergo three months' rigorous imprisonment. Under Section 201, Indian Penal Code he has been sentenced to three years rigorous imprisonment alongwith a fine of Rs. 500/- and in default of payment of fine to further undergo three months' rigorous imprisonment. The appellant has, therefore, preferred this appeal. 2. The case in which the appellant has been convicted and sentenced emerges out of a written report lodged by the Taiyab Hussain on 20.10.1994 at Police Station, Sadar District Alwar, in which it was stated that a dead-body of an unidentified man was floating near village Kankroli in a well. The information was registered under Section 174, Criminal Procedure Code and one ASI Dayaram reached to the place at the well wherein the dead body had been located. He then lodged a written report at Police Station, Sadar, after which he searched for the body in the well in which one right hand was found chopped-off and on its arm were marks of injurise and also cuts and injuries were found on the elbow of the left hand. Both the legs of the body were also found out and a light almond colour kurta which had patches of blood on it with two knots and marks of cuts on each side were found, which could be belonging to the deceased. On this report,a case under Sections 302 and 201, Indian Penal Code was registered and the investigation started after which charge-sheet was submitted under Section 302/201, Indian Penal Code against the accused-appellant herein. After completion of the required formalities, the case was committed for trial to the Court of Session, where the accused denied the charge and claimed to be tried. 3. The prosecution in all examined 28 witnesses. The statement of the accused under Section 313, Criminal Procedure Code was also recorded, in which he denied all the allegations levelled against him by the prosecution. The learned Addl. 3. The prosecution in all examined 28 witnesses. The statement of the accused under Section 313, Criminal Procedure Code was also recorded, in which he denied all the allegations levelled against him by the prosecution. The learned Addl. Sessions Judge after holding the trial, recorded a finding, on the basis of the circumstantial evidence and the exta-judicial confession given out by the accused-appellant before PW 14, Khushi Khan, PW 14 Juhru and PW 16 Jumma, whrein he is alleged to have confessed that he killed the deceased. This extra-judicial confession was relied upon by the learned Addl. Sessions Judge, who was pleased to record an order of conviction and sentenced the accused-appellant in the manner stated herein above. 4. Having gone though the prosecution case and the evidence in support of this case, we have noticed that PW 1 Chandra Shekhar is a witness who first of all. experienced foul smell from the well situated near his field due to which he peeped into the well and noticed the dead body of a man floating in the well after which the information was sent to the police through a telephonic message about the dead body. He has further accepted that in front of him, the dead body was recorded from the well and the police prepared the site-plan and the inquest report of the dead body, on which he had signed. In cross-examination, however, he has stated that in front of him only trunk of the body had been found in the well and nothing had been recovered. 5. PW 2 Gopal is another witness who stated that he noticed a bundle in the well about which he informed in his village to Taiyab Hussain. He further stated that on watching the bundle minutely, he could notice the hands and legs and when the police reached on the information and the bundle was taken out, he had claimed to have noticed the hands and legs of a human body. He has also acknowledged preparation of the inquest report, site- plan and seizure of hands and legs, which were cut, vide Ex.P 7, as he has accepted his thumb impression on these documents. 6. He has also acknowledged preparation of the inquest report, site- plan and seizure of hands and legs, which were cut, vide Ex.P 7, as he has accepted his thumb impression on these documents. 6. PW 3 Buxi is the witness who informed the police about the dead body and has accepted that the bundle was taken out from the well in front of him and has also accepted the recovery of hands and legs. He is also the witness of the inquest report and seizure list regarding recovery of kurta. 7. PW 4 Taiyab Hussain is a witness who also noticed the dead body which was shown to him by Gopal about which the police was informed and removed hands and two legs vide Ex.P 7. He is also a witness to the inquest report and the seizure list. 8. PW 5 Samarth and PW 6 are the witnesses who have deposed on similar lines. 9. PW 7 Ram Kumar is also another witness before whom the dead body was removed from the well which according to him included only thigh and trunk of the body. In his cross-examination, he had admitted that those organs of the body were found in a decomposed state. 10. PW 8 Sule Khanand PW 9 Mor Mai are also the witnesses who not deposed anything more than what is stated hereinabove. 11. PW 10 Jakir is the brother of the deceased who stated that he had gone to the village Kakrali along with accused Rasula to deal in the business of garbage. He has deposed that he had seen the accused Rasul and the deceased Jana living together in the same house. When Rasula came to him, he enquired about his brother on which he replied that he was missing, Zakir then told him to tell him the fact, who did not stated clearly about his whereabouts due to which he started search for the deceased and reached village Kakrali, where he learnt that a dead body has been recovered from a well whose hands and legs were tied in a kurta. Thereafter he came to the Police Station and identified the kurta of his brother and also noticed upper part of the body and the same was tied in a `tahmad' (underwear) which belonged to this brother. Thereafter he came to the Police Station and identified the kurta of his brother and also noticed upper part of the body and the same was tied in a `tahmad' (underwear) which belonged to this brother. He further stated that from the shawl and other clothes, he identified the dead body of his brother. He still further deposed that the kurta of the deceased, which was shown to him, had been stitched by him due to which he could identify that it belonged to his brother. He was cross-examined on the point as to why he did not depose that he can identify the kurta because he had stitched it, in his police statement. He was also cross-examined on certain other aspects by the defence, for example, he claimed that he had identified the dead body of his brother vide Ex.D. 1. The police did not record it for which he cannot assign any reason. Similar is his version regarding identification of 'tahmad'. PW 10 Zakir is the cousin of the deceased but has not deposed anything more than he had come to the village to do business in garbage and that accused Rasula and the deceased had been living together. He, however, further deposed that when he heard about the death of the deceased, he enquired from Rasula where his cousin is and Rasula informed him that in villalge Kakrali, a dead body has been found, due to which he came to village Kakrali along with some other persons and enquired about the deceased. He has also claimed to have identified the `kurta'. 12. PW 12 Sube Khan is the Investigating Officer and PW 14 Khushi Khan is the witness who stated that when Rasula reached the village he had enquired as to where the deceased Jana had gone, on which the accused replied that he was missing. 13. PW 14 Khushi Khan is also the witness before whom Rasula is alleged to have made an extra-judicial confession that he had killed Jana in greed of money. He claims that at that point of time Jumma, Juhar Panch and Mauz Khan were present. He further claims that Rasula told him that he killed the deceased and threw his dead body into the well. He, however, has accepted that he did not inform the police even on receiving this confessional statement from the accused. He claims that at that point of time Jumma, Juhar Panch and Mauz Khan were present. He further claims that Rasula told him that he killed the deceased and threw his dead body into the well. He, however, has accepted that he did not inform the police even on receiving this confessional statement from the accused. He has explained his conduct by stating that it was the deceased's relative who should have taken steps in regard to this statement. In his cross-examination, he has stated that a Panchayat had also taken place in the village and he took a boy from Alwar and also took village Chaukidar Sarab Khan who called Rasula to participate in the Panchayat. 14. PW 15 Juhru is the witness who merely stated that he heard that Jana had been killed by Rasula. He also accepts that he had heard about the disappearance of Jana. He has also deposed that when Panchayat assembled then Rasula confessed that he had killed Jana and at that point of time, he along with Khushi khan and Mauz Khan were present in the Panchayat. In front of them, the accused has also confessed that he had out the body of the deceased into pieces and threw the same into the village. In his cross-examination, he has further stated that in the police statement, vide Ex.D. 4, the fact about the panchayat taking place has not been recorded. This witness further stated in his cross-examination that before the dead body was received in the village, Panchayat has taken place. Accused Rasula was summoned in it. The Panch who called Rasula was not known to him. He states that he was a Panch in the said Panchayat and Khushi Khan is the Sarpanch of the Panchayat. 15. PW 16 Jumma has stated that he had heard about the disappearance of deceased Jana due to which the village people assembled and Rasula was called. The village people enquired from Rasula as to where Jana has gone, to which he replied that he had killed him. When he was further questioned, then he replied that he killed him for money. He has further stated that his statement had been recorded at Khwajakala and he never came to Alwar to depose. It may, however, be stated that in Ex.D. 5, there is no mention of holding any Panchayat. 16. When he was further questioned, then he replied that he killed him for money. He has further stated that his statement had been recorded at Khwajakala and he never came to Alwar to depose. It may, however, be stated that in Ex.D. 5, there is no mention of holding any Panchayat. 16. PW 17 Ibrahim deposed that Rasula had come to the village handcuffed along with the police and a cycle was recovered from the house of Rasula on Rasula's information. 17. PW 18 Dalpat also deposed that Rasula had come along with the police and had recovered one knife which had blood marks from a ditch. 18. PW 19 Bhula has merely deposed that Rasula and deceased Jana were living together and further that Jana's wife had come to him to enquire about her husband and also informed that the house was locked. He has further deposed that the wife of Jana stayed at his place in the night because Jana did not return even till evening. 19. PW 20 Sher Singh is the witness before whom blood-stained earth was recovered. 20. PW 21 is Doctor Ram Kumar Misra who conducted the post-mortem on the dead body and found 16 injuries on the dead body. 21. PW 22 Prem Chand Sharma had sent the seized articles to the Forensic Science Laboratory. PW 23 Sardar states tat he had worked with Rasula. However, he has been declared hostile as he refused to certify that Ex.P 16 was prepared in front of him. 22. PW 24 Naga is the witness who has deposed that a knife and two iron weights were recovered in front of him. The knife was red coloured. PW 25 Bhagwan Das and PW 28 Dayaram are the police officers who are associated with recording of the written report. PW 28 is the investigating officer who claims that the two hands and two legs were recovered from the village Kakrali from a well. 23. One defence witness Mouz Khan has been examined who deposed that he knew Kalu and Zakir who are the residents of Khawaja Kala and he has stated that no Panchayat had taken place because he is invitee and is associated in all Panchayat which take place. He has stated that he knew the deceased Jana and also his wife. 23. One defence witness Mouz Khan has been examined who deposed that he knew Kalu and Zakir who are the residents of Khawaja Kala and he has stated that no Panchayat had taken place because he is invitee and is associated in all Panchayat which take place. He has stated that he knew the deceased Jana and also his wife. He stated that there was enmity between Kalu, Zakir and Jana and the wives of Kalu and Jana had also been missing. He further deposed that Kalu and Zakir had forcibly acquired Jana's land and Kalu and Zakir further captured about 40 to 50 thousand rupees from Jana. He also stated in his cross-examination that Jana never disappeared and no one from the village had assembled. Jana's wife was also not present in the village. He still further stated that Kalu and Zakir did not allow Jana's wife to enter in his house and Jana deceased most of the time worked outside. 24. On examination of the evidence of the prosecution witnesses, it is quite obvious that the witnesses have merely deposed on the point of recovery of the body and its condition, but have not deposed anything that it was recovered at the instance of the accused. The other circumstances -on which the witnesses have deposed are only to the extent that the deceased and the accused Rasula were living together in the same house. Besides this, the extra-judicial confession has been alleged to have been made to PW 14 Khushi Khan, the Sarpanch of the village before whom the accused is alleged to have stated that he had killed the deceased out of greed for money, after which this witness did not take any step to inform any one else or the police about the confession of the accused. He has, however deposed that thereafter the Panchayat took place in which PW 15 Juhru also participated in the village Panchayat. The accused alleged to have confessed his guilt. The evidence of the Sarpanch, however, has been contradicted by DW 1 Mauz Khan who also can be said to be an independent witness as he was 'lumberdar' of Khawajakala and claimed that he was a member of the Panchayat whenever it was called and Khushi Khan PW 14 never called any Panchayat and never made any confession of the nature alleged. 25. 25. It is under the aforesaid circumstances that the learned counsel for the accused-appellant has, first of all, contended that the prosecution has miserably failed to prove its case against the accused and the circumstances are absolutely missing which can be said to be proving the guilt of the accused. In support of this submission, he has relied upon a well-known case of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , wherein the principle for holding a person guilty on the basis of circumstantial evidence has been dealt with at length. He has then contended that the conviction of the appellant should not be cased on extra-judicial confession alleged to have been made by the accused if it is tainted and not free from doubt especially in a circumstance when the accused has resiled from the confession. He has also relied upon several decisions of this High Court which have been delivered relying on the decisions of the Supreme Court on the question of extra- judicial confession. One of such decision is reported in 1993(1) WLC 383 , Kalyan Chamar v. State of Rajasthan . The other two cases are Ram Kumar v. State of Rajasthan, 1988 RCC 65 and Darab Singh v. State of Rajasthan, 1988 RCC 289 . 26. Learned Public Prosecutor, however, has supported the judgment of the trial Court and has submitted that the conviction of the accused-appellant is well founded which is based on extra-judicial confession of the appellant. He has further submitted that there is no error in recording the order of conviction based exclusively on extra-judicial confession, if it is corroborated. In support of his submission, he has relied on AIR 1967 SC 152 , Ram Singh v. State of Uttar Pradesh . 27. It is, no doubt, an acknowledged legal position that conviction should be based on extra-judicial confession with utmost care and caution and, in order to use the confession against the accused, the Court must be satisfied that it was voluntary and was a true account of the statement given by the accused. But, it cannot be disputed that it is the right of the accused to have the confession excluded even suo moto if the circumstances indicate towards such confession as doubtful. But, it cannot be disputed that it is the right of the accused to have the confession excluded even suo moto if the circumstances indicate towards such confession as doubtful. Moreover, it is for the prosecution to show the circumstance that the confession made by the accused was voluntary and in case of slightest doubt or suspicion of its voluntary nature, the scale ought to tilt in favour of the accused and the burden therefore is on the prosecution and there is no onus on the accused to prove it. Such a view was also expressed in the matter of Ram Ram v. State of Ajmer, AIR 1954 SC 462 , Balvinder Kaur v. State of Punjab, AIR 1952 SC 354 and State of Punjab v. Bachan Singh, AIR 1975 SC 258 . 28. It is, however, equally true that if the extra-judicial confession is corroborated by other independent evidence, such confession has been relied upon by the Courts as was the case in Ram Singh v. State of Uttar Pradesh (supra), where the accused after committing the murder had gone to the police station with the blood stained knife and also bathed in an unusual hour of the night to clean the blood-stainse. The Court, however, was cautious enough before attaching weight to the judicial confession even in this case, and relied upon the confession only when it found corroboration by circumstances which was proved by independent evidence and only in that event the accused was held guilty of the charge under Section 302 Indian Penal Code. 29. When the evidence of this case is scrutinised in the light of the principle laid down in the judicial pronouncements on the law of extra-judicial confession, we are unable to sustain the conviction and sentence of the accused-appellant because his extra-judicial confession, on the one hand, is not free from doubt nor it finds corroboration from the other circumstantial evidence. In this context, it may be recalled that PW 14 Khusi Khan claims that the accused had confessed the guilt before him after which a Panchayat had taken place. But his version is clearly contradicted from the police diary as he had failed to mention about the Panchayat having taken place after the accused confessed his guilt. In this context, it may be recalled that PW 14 Khusi Khan claims that the accused had confessed the guilt before him after which a Panchayat had taken place. But his version is clearly contradicted from the police diary as he had failed to mention about the Panchayat having taken place after the accused confessed his guilt. The evidence of PW 14 Khusi Khan is also contradicted by DW 1 and, we see no reason as to why the quality of evidence of PW 14 should be treated superior and preferred to DW 2 as both claim to be independent witnesses. On the contrary, the evidence of PW. 14 does not inspire confidence, for he being a village headman he ought to have informed the police, had the accused made any extra-judicial confession before him. It is highly improbable that Kalu Khan could go to the extent of calling Panchayat for holding a trial of the accused Rasula but did not care to inform the police about the confessional statement. The extra-judicial confession, therefore, cannot be said to be free from blemish so as to uphold the conviction merely on the extra-judicial confession when it failed to get any corroboration from the attending circumstances. It is, therefore, not enough, in our opinion, to base conviction on such tainted extra-judicial confession merely placing reliance on a single piece of circumstantial evidence, that the accused was seen living along with the deceased in one house, as this circumstance solely cannot be said to be weighty enough to hold that it corroborates the extra-judicial confession. The fact that the dead body of deceased in pieces may have been found in the well leaves the prosecution story neither here nor there. 30. We have further noticed that the wife of the deceased has not been examined and this, in our opinion, is extremely strange, for, had she been examined, it could have at least highlighted whether any Panchayat took place or not, where the accused confessed his guilt. Since taking place of Panchayat itself is doubtful, the whole theory that the accused confessed his guilt before the Sarpanch, Kalu Khan, PW 14 and also before the Panchayat falls to the ground. 31. Since taking place of Panchayat itself is doubtful, the whole theory that the accused confessed his guilt before the Sarpanch, Kalu Khan, PW 14 and also before the Panchayat falls to the ground. 31. Under all the facts and circumstances of the case, we are driven to the conclusion that it is a case of no evidence at all and, therefore, it would be highly unsafe to uphold the conviction and sentence merely on the basis of extra-judicial confession, which is full of doubt and is also uncorroborated by any circumstantial evidence; much less chain of evidence.In the result the appeal is allowed and the judgment and order of the learned Additional Sessions Judge No. 2, Alwar is set aside. Consequently, the appellant is acquitted of the charges under Sections 302 and 201 Indian Penal Code, as a result of which, he shall be set at liberty forthwith, if not required in any other case.Appeal Allowed. *******