Judgment : Dr. Maithli Sharan, J. 1. THIS judgment will dispose of two Criminal appeals, namely Crl. Appeal Nos. 231 of 1992 and 230 of 1992 preferred respectively by accused persons Maheshwar and Smt. Shanti Singh who were convicted in Sessions Trial No. 194 of 1991 by Ilnd Addl. District and Sessions Judge, Sitapur for the offences under Sections 302 and 201 of the Indian Penal Code and sentenced respectively to undergo rigorous imprisonment for life and rigorous imprisonment for three years each. 2. THE prosecution case, in brief, runs thus : THE informant, Taluqdar Singh (P.W. 2) and the deceased Havaldar Singh were real brothers but they were living separately in different villages after the division of their agricultural land sometime back. Accused Smt. Shanti Singh is the wife of the deceased Havaldar Singh and this couple had one son Urmil (P.W. 1) and one daughter. According to the prosecution, accused Smt. Shanti Singh and illicit relations with the other accused Maheshwar and their affair had been going on for quite sometime. THE prosecution case is that when the informant Taluqdar Singh (P.W. 2) did not meet his brother deceased Havaldar Singh for about three-four months, then he went to the latter's wife accused Smt. Shanti Singh and enquired regarding whereabouts of his brother, deceased Havaldar Singh ; she told him, that there had occurred some quarrel between her and her husband and then the latter had gone out of the house saying that he would never see her face again. THEn on 14.1.91 in the noon time Urmil (P.W. 1) s/o accused Smt. Shanti Singh and deceased Havaldar Singh went to his uncle. Taluqdar Singh (P.W. 2) and informed him of the incident in question, that his mother, Smt. Shanti Singh and accused Maheshwar had killed his father, Havaldar Singh and he had seen the occurrence. He (P.W. 1) further told him (P.W. 2) that accused Maheshwar had threatened him that if he told of the incident to any body, he would kill him as well, and accused Maheshwar kept him (P.W. 1) with him and they used to go on some brick-kiln (Bhatta) for work. Taluqdar Singh (P.W. 2) thereafter reached his brother's (deceased, Havaldar Singh) house along with some persons and threatened accused persons Smt. Shanti Singh and Maheshwar, then they disclosed that they had committed the murder of Havaldar Singh. Taluqdar Singh (P.W. 2) thereafter reached his brother's (deceased, Havaldar Singh) house along with some persons and threatened accused persons Smt. Shanti Singh and Maheshwar, then they disclosed that they had committed the murder of Havaldar Singh. Meanwhile, Taluqdar Singh (P.W. 2) went to the Police Station Reusa and lodged the first information report Ext. Ka. 1 ; the police reached the spot and recorded the statements of the witnesses. Accused persons Maheshwar and Smt. Shanti Singh met on the spot and in the presence of the witnesses, they showed to the police the place where they had hidden the dead-body of the deceased. Havaldar Singh. Accused Smt. Shanti Singh also gave the 'gandasa' to the police and told that she had killed Havaldar Singh by that 'gandasa' and the blood stuck on it had been washed off. She also gave the shoes of the deceased Havaldar Singh to the Police. THE place shown by the accused person was dug and then a skeleton was found over which clothes, namely, Kurta, Dhoti, Angouchha etc. were there. THE Police also prepared the site-plan and conducted other necessary investigations in the case. THE dead body was sent for post-mortem examination which was done by Dr. S. K. Sinha (P.W 6). After complete investigation having been done the charge-sheet was filed in the Court of the Magistrate concerned wherefrom the case was committed to the Court of Session. The charges for the offences under Sections 302/34 and 201 of the Indian Penal Code were framed against both the accused persons. They denied having committed the offences, and they were tried for these offences. 3. THE prosecution examined seven witnesses out of whom P.W. 1 is Urmil, who is the son of the deceased Havaldar Singh and accused Smt. Shanti Singh (P.W. 2) Taluqdar Singh is the brother of the deceased Havaldar Singh, Mule Singh (P.W. 3) is the person in whose presence the skeleton of the deceased was removed from the hidden place under the earth, Raj Kumar (P.W. 4) is also a witness of this fact. Ram Naresh Yadav (P.W. 5) is the police witness who recorded first information report, lodged by Taluqdar (P.W. 2) while Dr. S. K. Sinha (P.W. 6) conducted the autopsy on the dead-body of Havaldar Singh. Sub- Inspector Police, Natvar Yadav (P.W. 7) conducted the investigation in this case and filed the charge-sheet in the Court. 4. Ram Naresh Yadav (P.W. 5) is the police witness who recorded first information report, lodged by Taluqdar (P.W. 2) while Dr. S. K. Sinha (P.W. 6) conducted the autopsy on the dead-body of Havaldar Singh. Sub- Inspector Police, Natvar Yadav (P.W. 7) conducted the investigation in this case and filed the charge-sheet in the Court. 4. LEARNED Addl. Sessions Judge, on complete appraisal of the prosecution evidence available on record, came to the conclusion that the prosecution had proved the offences levelled against both the accused persons and, thus, he convicted and sentenced them as aforesaid. Being aggrieved by the judgment of conviction and sentence passed by the Addl. Sessions Judge, both the accused persons have preferred these two jail appeals. We heard the vehement arguments of the learned counsel of both the accused persons and learned Government Advocate. The main-thrust of the counsel for the accused is that Urmil (P.W. 1), the son of the deceased Havaldar Singh and accused Shanti Singh is the sole alleged eye-witness of the incident in question and, thus, he is the star witness of this case, but his evidence is so shaky and improbable that it cannot be relied upon and hence the prosecution case gets shattered. Thus, it is proper, at the outset to analyse and scrutinise the evidence of this star witness Urmil (P.W. 1). According to him, it was night when incident occurred and he, his sister and his mother, namely, accused Shanti Singh were lying on one and the same cot while his father (deceased Havaldar Singh) was sleeping on a cot outside the house ; at about midnight his mother, Smt. Shanti Singh got up, went to ease herself and after sometime came back along with other, accused Maheshwar near the cot of his father (deceased Havaldar Singh), accused Maheshwar pressed his father and his mother accused Smt. Shanti Singh attacked his father (deceased Havaldar Singh) by the gandasa, and when the deceased shouted, then he (P.W. 1) got up. He further told that accused Maheshwar took gandasa from his mother, Smt. Shanti Singh, threatened him to sit down else he would kill him as well. After a while, both these accused persons giving him (P.W. 1) cowdung and straw (Bhoosa) asked him to go near the cow and and burn them there to make smoke. He further told that accused Maheshwar took gandasa from his mother, Smt. Shanti Singh, threatened him to sit down else he would kill him as well. After a while, both these accused persons giving him (P.W. 1) cowdung and straw (Bhoosa) asked him to go near the cow and and burn them there to make smoke. According to him (P.W. 1), in the morning accused Maheshwar told his mother, accused Smt. Shanti Singh, that he would be taking him (P.W. 1) along with him. The other accused Maheshwar also told accused Smt. Shanti Singh to burn clothes, namely, Angauchha and kurta of the deceased and wash off gandasa by which they had killed the deceased, Havaldar Singh. According to him (P.W. 1) after the incident he used to go on work at some brick-kiln where other persons were also working ; the accused Maheshwar had threatened him and asked him not to tell about this incident in question to anybody, else he would kill him ; after the work he used to come back along with accused Maheshwar. He has further deposed that after some days on getting opportunity, he went to his uncle Taluqdar Singh (P.W. 2) and told him all about the incident in question, and then Taluqdar Singh (P.W. 2) went to accused Shanti Singh along with some persons and then the first information report Ext. Ka. 1 was lodged at the police station. 5. AS already observed above, Urmil (P.W. 1) is the star witness of this case. Looking to his evidence, it really appears improbable that he (P.W. 1) did not care to make hue and cry even he was sent to the cow to make smoke there with the help of cowdung and straw ; positively the place where he was sent was not exactly near to the place of incident in question. It is also strange that he did not care to see as to where the deadbody of his father, Havaldar Singh had been hidden by both the accused persons, while according to him, the prosecution it was hidden near the vicinity of the house of accused Smt. Shanti Singh itself. He (P.W. 1) showed his ignorance as to for how much time he made smoke near the cow. He (P.W. 1) showed his ignorance as to for how much time he made smoke near the cow. He has specifically deposed in his cross-examination that when after sometime his mother accused Shanti Singh called him back, he did not find his deceased father on the cot on which he was lying, but still he did not ask his mother the whereabouts of his father. It is really strange and appears most unnatural. He has further specifically deposed that he did not actually see his mother accused Shanti Singh and accused Maheshwar hiding the deadbody of his deceased father under the earth. He also did not show any curiosity to find out the true position in this regard. This is also his Improbable and unnatural conduct. Besides, according to this witness. Urmil (P.W. 1), for about four months he worked at the brick-kiln along with accused Maheshwar and used to go there and come back with him ; he used to go in the morning and come back by evening. He has admitted that at the brick-kiln, some 20-25 persons were working, but it is again strange that for such a long time of four-five months, he could not get an opportunity to tell about this henious incident in question in which his father was killed, to any of the co-employees and could not find time to run away from that place to the place of his uncle Taluqdar Singh (P.W. 2). Positively, it could not be expected of a normal person. Thus, this conduct on the part of Urmil smells of something wrong somewhere and his version cannot be accepted in the way in which it has been narrated. Even assuming that he was terrorised by accused Maheshwar, still it does not sound to reason that he would have kept quite for a long period of four-five months. Thus, naturally on his (P.W. 1) narrating the incident in question to his uncle Taluqdar Singh, the latter lodged the first information report Ext. Ka. 1 at the police station which was delayed by four-five months, so this delayed first information report gets suspicious. 6. Thus, naturally on his (P.W. 1) narrating the incident in question to his uncle Taluqdar Singh, the latter lodged the first information report Ext. Ka. 1 at the police station which was delayed by four-five months, so this delayed first information report gets suspicious. 6. ACCORDING to the prosecution, as observed above in the presence of the prosecution witnesses Mule Singh (P.W. 3) and others, the accused persons dug the earth and removed the deadbody of the deceased, Havaldar Singh who was later identified on the basis of the clothes over his body. Admittedly there was no flesh on that skeleton. At the outset, it is strange, that there were clothes on that body because as appears in the statement of Urmil (P.W. 1) accused Maheshwar had told accused Shanti Singh to burn clothes which Havaldar Singh was wearing. Though there is nothing on record to indicate that the clothes had been burnt, yet it appears that they might have been burnt ; then certainly the question remains as to wherefrom these clothes had come. Strangely, besides Dhoti and Angauchha, kurta and Bushirt were also found with the dead-body, i.e., the skeleton. Apparently, Kurta and Bushirt both are worn on the upper part of the body. Thus, either Kurta or Bushirt could have been there, and both could not be found there. So the presence of both Kurta and Bushirt with the dead-body also indicates that these were kept there afterwards. Regarding the dead-body, i.e., skeleton found and removed from beneath the earth, it is also strange that for four-five months there was foul smell coming out of that place. There is nothing on record in this regard. This aspect also indicates some foul play. 7. DR. S. K. Sinha (P.W. 6) conducted the autopsy on the dead-body i.e., skeleton of alleged deceased. Havaldar Singh. He has deposed that the body of the deceased had completely decomposed and only bones were there which had also disjointed. According to him, the skeleton was of some adult male human being. He has specifically deposed that the cause of the death and the time of death could not be ascertained. In this cross-examination, he has deposed that the said skeleton could have been of 2 to 5 months old or it could have been of further more time. According to him, the skeleton was of some adult male human being. He has specifically deposed that the cause of the death and the time of death could not be ascertained. In this cross-examination, he has deposed that the said skeleton could have been of 2 to 5 months old or it could have been of further more time. This aspect also goes to shake the prosecution story regarding the time of the incident in question. Surprisingly no ossification test of that skeleton was got done to ascertain its age so as to arrive at some point regarding the age of the deceased person whose skeleton it was. If by the ossification test, the age of this skeleton had resembled with the age of Havaldar Singh deceased, then certainly it could have helped in arriving at some approximate conclusion that this skeleton was that of the deceased Havaldar Singh. Since it was not got done, it could not be pinpointedly said that the said skeleton was that of deceased Havaldar Singh only. The circumstances brought about by the prosecution in this regard are weak enough to reach to any conclusion in this regard. 8. ONE motive for committing murder of Havaldar Singh by his wife Smt. Shanti Singh and accused Maheshwar has been brought on record by the prosecution, i.e., that these two accused had been having illicit relation with each other and naturally they wanted to get rid of Havaldar Singh, and hence they had committed his murder. In this regard. Urmil (P.W. 1) has simply deposed that accused Maheshwar used to visit his house. There is nothing more than this. Taluqdar (P.W. 2), the brother of deceased Havaldar Singh has deposed that the villagers used to tell that accused Maheshwar used to visit Havaldar Singh's house often and on and that he was having illicit relations with accused Smt. Shanti Singh. This witness Taluqdar Singh (P.W. 2) has specifically deposed that actually he did not know the reality in this regard. None of the villagers who had allegedly told him in this regard has been examined by the prosecution. Thus, his (P.W. 2) hearsay version cannot be accepted. This witness Taluqdar Singh (P.W. 2) has specifically deposed that actually he did not know the reality in this regard. None of the villagers who had allegedly told him in this regard has been examined by the prosecution. Thus, his (P.W. 2) hearsay version cannot be accepted. One more aspect has come on record, and it is regarding the extrajudicial confession of both the accused persons, namely, Smt. Shanti Singh and Maheshwar made before Raj Kumar Singh (P.W. 4) and other witnesses, i.e., Taluqdar Singh (P.W. 2) and Mule Singh (P.W. 3). They have deposed that when they threatened them, then the accused persons had told that they had committed murder of Havaldar Singh and had buried his dead-body under the earth in the house itself, and then after being further terrorised they had got the dead-body removed from beneath the earth. Even assuming that the accused persons had made this extra-judicial confession, much reliance could not be placed on it obviously because, firstly, it is a weak type of evidence and secondly, it becomes further weakened after being retracted. Thus, since the accused persons had denied having committed any offence, this confessional statement on their part cannot hold any ground. 9. ON the basis of the evidence available on record, as discussed above, it could not be said that the prosecution had been successful in proving beyond doubt the charges levelled against both the accused-appellants under Sections 302/34, I.P.C. and 201, I.P.C. In the result, therefore, both these jail appeals are allowed and the conviction and sentence passed against the accused persons Maheshwar and Smt. Shanti Singh by the trial court are set aside. They be released forthwith, if not wanted in any other case.