M. C. JAIN, J. ( 1 ) THE two appellants Raja Ram and Ram Jas have preferred this appeal against the judgment and order dated 12-2-1982 passed by Sri D. S. Ram, the then jjjrd Additional Sessions Judge, Ghazipur in Sessions Trial No. 352 of 1980 whereby each of them has been convicted under Section 302, I. P. C. read with Section 34, I. P. C. and sentenced to life imprisonment. ( 2 ) ONE Parvez Khan son of Shahzada Khan, aged about 19 years was murdered in this incident which took place on 27th November, 1978 at about 6. 45 p. m. at the house of the complainant Abdul Hasan, P. S. Gahmar, District-Ghazipur. The deceased was the son of the elder brother of the complainant and had come to the village from Calcutta about 2 or 2-1/2 months before the incident, as he was to go to Aligarh for further education. Due to riots in Aligarh he was staying in the village. He was about to leave for Aligarh next day of the incident. The F. I. R. was lodged by Abdul Hasan, P. W. 1 at the concerned Police Station on 27-11-1978 at 8. 30 p. m. The complainant Abdul Hasan, P. W 1 had gone to ease himself in the jungle after leaving the victim Parvez in the Baithaka of his house. The victim was studying in the said Baithaka in the light of a lantern and was sitting on Gadda placed on the Pual (paddy straw ). The glowing lantern had been kept in the window of the Baithaka. The complainants servant Suraj Nath had also left the Baithaka to go to his house to take his food. After a while, the victims grandmother Asharfi Bibi called the victim to take food. Her call went unanswered. She came out of the main door of the residential house and saw a man wearing lungi coming out of the Baithaka. As her eyesight was weak, she could not recognise him. She enquired as to who he was but did not get any reply. Thereafter, she went inside the Baithaka and found the victim Parvez lying murdered. She wailed and wept. A number of villagers assembled. The complainant Abdul Hasan also returned after easing himself and went to lodge the F. I. R. The police investigated. She enquired as to who he was but did not get any reply. Thereafter, she went inside the Baithaka and found the victim Parvez lying murdered. She wailed and wept. A number of villagers assembled. The complainant Abdul Hasan also returned after easing himself and went to lodge the F. I. R. The police investigated. Inquest report and related papers were prepared and the dead body was sent for postmortem which was conducted on 29-11-1978 at 7 p. m. by Dr. S. C. Mishra, P. W. 8. The following ante-mortem injuries were found on his person: (1) Incised wound 20 cm x 9 cm on right side of neck 5 cm. below, the lower pole of right ear, start from back of neck 8 cm below the occipital tuberance passes in front of neck to left side of neck upto 10 cm below the lower pole of left ear. (i) Neck vessels of right side-cut. (ii) Thyroid cartilage - cut (iii) Pharynx-cut (iv) Larynx-cut (2) Incised wound 3 cm x 1 cm x cavity deep on right side of chest 8 cm below from the right nipple. (3) Incised wound 5 cm x 1 cm x skin deep on left side of neck. Just below the lower pale of left ear. (4) Incised wound 2 cm x 5 cm x skin deep on left side of neck 3 cm below injury No. 3 (5) Incised wound 1. 4 cm. x 5 cm x skin deep on left side of shoulder (Ant. aspect) (6) Incised wound 2 x 1 cm x skin deep on right arm (Ant. Aspect) 20 cm below the shoulder joint. (7) Incised wound 4 cm x 5 cm x skin deep on right forearm ant. Aspect 12 cm. below the injury No. 6. Pasteable food was found in the stomach. The death had occurred due to shock and haemorrhage due to ante-mortem injuries No. 1 and 2. ( 3 ) THE accused-appellants figured during the course of investigation on the basis of circumstantial evidence and they came to be booked by the police. They pleaded false implication. ( 4 ) AT the trial, the prosecution examined eleven witnesses out of whom Abul Hasan, P. W. 1 was the complainant. ( 3 ) THE accused-appellants figured during the course of investigation on the basis of circumstantial evidence and they came to be booked by the police. They pleaded false implication. ( 4 ) AT the trial, the prosecution examined eleven witnesses out of whom Abul Hasan, P. W. 1 was the complainant. Suraj Nath, P. W. 2 (servant of the complainant), Irshad, P. W. 3 and Sohrab Khan P. W. 6 were examined as the witnesses of the circumstances indicating the complixity of the present appellants Asharfi Bibi. P. W. 5 is the grandmother of the deceased who had first of all seen the dead body of the deceased in the Baithaka where she had gone to call him for food. Saghir Ahmad, P. W. 4 was examined as witness of extra judicial confession allegedly made by the accused appellants to him. S. I. Ram Janam Singh, P. W. 7 and S. I Jamuna Prasad Pandey P. W. 11 were the Investigating Officers of the case. Dr. S. C. Mishra, P. W. 8 had conducted the post-mortem over the dead body of the deceased. The rest were formal witnesses. The accused-appellants did not tender any evidence in defence. ( 5 ) WE have heard Mr. A. D. Gin, learned Counsel for the appellants and learned A. G. A assisted by Mr. Apul Mishra learned counsel for the complainant. ( 6 ) LEARNED Counsel for the appellants has argued that the case is of circumstantial nature. The accused appellants are neither named in the F. I. R. nor is there any eye-witness account about the commission of the murder, by them. It has been urged that it is an established legal position that in a case of circumstantial nature, the circumstances should be of conclusive nature and tendency so as to exclude every hypothesis excepting the guilt of the accused. It has been submitted in the first instance; that the motive assigned by the prosecution against the appellants for the commission of this crime is wholly infirm. The other argument from the side of the appellants is that the incident took place sometime late in the night and the F. I. R. was ante-timed. This submission is sought to be supported by the post-mortem report also. The other argument from the side of the appellants is that the incident took place sometime late in the night and the F. I. R. was ante-timed. This submission is sought to be supported by the post-mortem report also. Another argument of learned Counsel for the appellants is that the circumstances relied upon by the prosecution in support of its case do not form a continuous chain to exclude every possibility excepting that of the guilt of the accused-appellants. ( 7 ) WE propose to examine the worth of the arguments advanced by the learned Counsel for the appellants having regard to the evidence on record and the counter contention of the learned A. G. A that the guilt of the appellants stood fully proved. ( 8 ) TRUE it is that no reason or motive has been mentioned in the F. I. R. for the murder of the victim. There is not even a whisper of suspicion against the accused appellants. The motive has come to be indicated, against the appellants in the evidence that the deceased had friendship with the accused Raja Ram who had a young wife and had not given birth to any child after several years of marriage. The victim had covetous eye on her and was attempting libidinous advances towards her which had come to the notice of the accused Raja Ram. He and the other accused Ram Jas were also friends and they joined hands and murdered the victim. ( 9 ) THE testimony of Suraj Nath, P. W. 2 (servant of the informant Abul) Hasan, P. W. I) and Sohrab Khan, P. W. 6 is that earlier to the present incident, there had been a quarrel between the deceased on the one hand and Raja Ram and Ram Jas on the other as the cycle of the former had collided with that of the latter. In this connection the deceased and these two witnesses had gone to complain to Bhimal-father of Raja Ram. The collision had not taken place in the presence of these two witnesses but the deceased had informed them. There evidence is to this effect that at that time when Raja Rams father had rebuked him (Raja Ram), Raja Ram had held out that there was a mystery which he and the deceased Parvez knew and that he would settle the scores with him. There evidence is to this effect that at that time when Raja Rams father had rebuked him (Raja Ram), Raja Ram had held out that there was a mystery which he and the deceased Parvez knew and that he would settle the scores with him. However, it is significant to note that Sohrab Khan, P. W. 6 had accompanied Abul Hasan, P. W. 1 to the Police Station at the time of the lodging of the F. I. R. but it goes unexplained as to why there was no mention of any such threat in the F. I. R. Nor did Sohrab Khan, P. W. 6 say anything in this regard in his statement under Section 161, Cr. P. C. to the Investigating Officer. ( 10 ) SO far as the alleged attempt of the deceased Parvez to develop nearness or illicit relations with Raja Rams wife is concerned, it also does not stand to logic. Parvez was not to stay in the village. Rather he was to go to Aligarh for further studies the very next day. Moreover, the version of Suraj Nath, P. W. 2 is that the deceased used to visit the Baithaka of Raja Ram and this witness also used to be occasionally present there. In the presence of Raja Ram also Parvez used to cut some jokes with his wife by asking Raja Ram to call his wife as he wanted to see his sister-in-law (Bhabhi-Raja Rams wife ). If such was the standard of relations between Raja Ram and Parvez deceased, it is not believable that Raja Ram would have thought of murdering Parvez. It has also come in the testimony of Suraj Nath. P. W. 2 that Nuruls house was under construction In front of the house of Raja Ram and Parvez used to visit that spot as well as the Baithaka of Raja Ram whenever he was free. 14-15 days back, Parvez was in the Baithaka of Raja Ram when Raja Rams wife threw a clod of earth from the window over Parvez. Parvez stood up and started looking up towards the window on the side of the courtyard wherefrom the clod of earth had been thrown. Raja Ram appeared there and asked Parvez as to what was he seeing. Parvez stood up and started looking up towards the window on the side of the courtyard wherefrom the clod of earth had been thrown. Raja Ram appeared there and asked Parvez as to what was he seeing. Parvez replied that he was seeing his sister-in-law (Bhabhi) and Raja Ram then put his hand on the neck of Parvez and pushed him aside. This incident is also indicative of the fact that Parvez was on terms of cutting jokes with the wife of Raja Ram and still they were on visiting terms. Nothing had happened to render their relations strained to the extent that Raja Ram with the help of another friend Ram Jas could think of cutting short the life of Parvez. So, we are of the considered opinion that the motive developed by the prosecution against the appellants at the stage of evidence is tenuous very weak and wholly insufficient. ( 11 ) ON scrutiny of the evidence on record we also find substantial force in this contention of learned Counsel for the appellants that greater possibility is that the incident took place late in the night and that the F. I. R. was antetimed. The case of the prosecution is that Asharfi Bibi. P. W. 5 (grandmother of the deceased Parvez) had called him to take his dinner but her call had not been responded to by him. That means to say the deceased had not taken his dinner by the time the incident occurred. However, as per the postmortem report pasteable food was found present in the stomach of the deceased. Such could be the position of the stomach after about two hours of taking food by the deceased. It can justifiably be inferred from the stomach contents of the deceased that the incident did not take place at about 6. 45 p. m. Rather it took place late in the night after the deceased had taken his meals. There is another important reason which deserves notice. The house of the informant is just adjacent to the Baithaka in which the incident is said to have taken place. The victim was allegedly studying in the light of a lantern at the time the incident took place. The postmortem report shows that as many as seven incised wounds had been inflicted on him. The house of the informant is just adjacent to the Baithaka in which the incident is said to have taken place. The victim was allegedly studying in the light of a lantern at the time the incident took place. The postmortem report shows that as many as seven incised wounds had been inflicted on him. Having regard to the nearness of the house of the informant to that of the Baithaka of the Darkhol in which the incident took place shrieks or cries of the victim must have necessarily been heard by his grandmother or other inmates inside the house. But nothing of the kind happened. We also note that the deceased did not receive any injury on her palms. Had he been attacked at the time when he was reading in the light of the lantern as a natural instinct the would have raised his hands to save himself and would have received some injuries there. It appears as if there was no resistance. It leads to the justifiable inference that actually he had been assaulted and killed late in night when he was asleep. ( 12 ) THERE is yet another ground which is suggestive of the incident having taken place late in night, Suraj Nath. P. W. 2 stated that on the day of the incident Abul Hasan, P. W. 1 informant had gone to village Udia and had returned in the night at 10 p. m. If it were so, it spills beyond comprehension as to how could the incident take place at about 6. 45 p. m. and as to how could the report be lodged at 8. 30 p. m. in the night. It appears that the incident took place late in night and the F. I. R. could not be lodged at 8. 30 p. m. when Abul Hasan, P. W. 1 was not even available for lodging the same after going to the Police Station. We are, therefore, inclined to hold that prosecution case receives a serious setback when the medical and ocular evidence is judged in the right perspective in the light of above speaking circumstances. ( 13 ) ANOTHER circumstance relied upon by the prosecution is that Suraj Nath. We are, therefore, inclined to hold that prosecution case receives a serious setback when the medical and ocular evidence is judged in the right perspective in the light of above speaking circumstances. ( 13 ) ANOTHER circumstance relied upon by the prosecution is that Suraj Nath. P. W. 2 had seen the appellants Raja Ram and Ram Jas going towards the western side when he himself was going to the eastern side to his house to take food. He allegedly met them in the northern side of the house of Ram Janam. It cannot be a circumstance indicating of the guilt of the accused for two reasons: First, he does not say that both or any of them had any arm. Second, both of them were the residents of the same village with their houses nearby and there could be nothing unusual if they were so spotted by Suraj Nath, P. W. 2. The alleged circumstance does not advance the prosecution case any further. ( 14 ) YET another circumstance relied upon by the prosecution is that the same night Irshad, P. W. 3 was going to Bara Kalan Halt Station to board Buxar Shuttle Train to reach Buxar for ultimately going to Assam. When he was passing by the pond known as Jagdewa Talab at about 7. 30 p. m. He saw the present appellants washing blood from their hands and clothes. Admittedly, it was dark at that time but he claims that he had flashed his torch. He had even asked them as to what they were doing and they had replied that they were washing the dirt. It is somewhat improbable that after committing the crime, the appellants would go to wash blood stains from their hands and clothes at a pond on a public way. It is also not acceptable that while passing by that way this witness could ascertain from some distance that what the appellants were washing was blood. The statement of this witness was also recorded by the Investigating Officer after the lapse of about two months. His statement is that he returned to his village on 23-1-1979 and then learnt about the murder of Parvez. He then recollected the above incident of the alleged washing of blood by the appellants and went to the Daroga to make statement. All it appears to be a cock and bull story not worthy of belie. His statement is that he returned to his village on 23-1-1979 and then learnt about the murder of Parvez. He then recollected the above incident of the alleged washing of blood by the appellants and went to the Daroga to make statement. All it appears to be a cock and bull story not worthy of belie. ( 15 ) LASTLY, comes the alleged extra judicial confession of the appellants to Saghir Ahmad. P. W. 4. What he says is that after about 16-17 days of this murder at about 9. 30 p. m. he has watching the paddy crop of his field when the two appellants came from the side of the station and stopped under a Mahua tree. According to him, they were saying that the police might have come to the village and it would be better for them to go to the village after the villagers fell asleep. He also allegedly heard them saying that they had committed a blunder. According to him, he had flashed his torch and had asked them as to what blunder they had committed, but they had not replied and had proceeded towards the village hurriedly. Even on accepting it as such, it cannot amount to an extra judicial confession. The witness has further stated that after about two months when the appellants were bailed out, they came to his pumping set and then he inquired from them as to what blunder they were talking about that night. Raja Ram and Ram Jas then allegedly made confession to him. The relevant portion of the statement of the witness is extracted below: Tab Raja Ram Ne Kaha Ki Kisi Ke Izzat Par Koi Haath Dale to Iske Alawa Aur Kya Ho Sakata Hai Hamne Bar-Bar Parvez Se Kaha Ki Hamari Aurat Se Talluk Tor De Lekin Wah Nahin Mana. Is Par Mazboor Hokar Ham Logon No Uska Katal Kar Diya. Ram Jas Ne Kaha Ki Uska Katal Na Karte To Aur Kya Karte. Apni Bahan Betiyon Ko Randi Ka Pesha Karne Ko Kya Chhor Dete. The witness insists that thereafter he informed of this confession to the villagers. ( 16 ) IT is not possible to accept the statement of this witness that any such extra judicial confession was made to him by the appellants. Apni Bahan Betiyon Ko Randi Ka Pesha Karne Ko Kya Chhor Dete. The witness insists that thereafter he informed of this confession to the villagers. ( 16 ) IT is not possible to accept the statement of this witness that any such extra judicial confession was made to him by the appellants. It is pertinent to observe in this behalf that he did not make disclosure about the alleged extra judicial confession even to the Investigating Officer as admitted by him in his cross-examination. Moreover, natural human conduct is that one tries to conceal his guilt. It does not stand to reason that the appellants would go to this witness and would make a clean confession of their guilt to him. particularly when there was no such compulsion for them. This witness was neither any authority nor could exert any moral pressure on the appellants and it is wholly illogical that the appellants at their own accord would have made any such extra judicial confession to this witness. ( 17 ) ON testing the circumstantial evidence of the prosecution on the anvil of reliability, our conclusion is that the circumstances do not form a continuous chain excluding every possibility excepting the hypothesis that it were the appellants or any of them who committed the murder of Parvez. Only an attempt has been made by the prosecution to do the patchwork. There are several dark spots which shake the prosecution story. It is really unfortunate that the victim who was a young boy aged about 19 years met a tragic death with the application of violence to him, but it is not at all established that assailants were the accused-appellants or any of them. For the discussion made hereinabove, the conviction and sentence passed against the accused-appellants by the Court below cannot be sustained. We accordingly allow the appeal. The judgment and order dated 12-2-1982 passed in S. T. No 352 of 1980 are hereby set aside. The appellants are on bail. They need not surrender. Their personal bonds and bail bonds are cancelled and sureties discharged. Appeal allowed. .