Judgment KHEM CHAND SHARMA. J. ( 1 ) THIS appeal is directed against the judgment dated March 2, 1994 passed by the learned Additional Sessions Judge, Behror, district Alwar, thereby acquitting Sarjeet and Gopi Chand under Section 120-B, IPC and convicting and sentencing them in the following manner: Under Section 302, IPC: Life imprisonment with a fine of Rs. 1,000. 00 in default of payment of fine, each to undergo 4 months Rigorous Imprisonment. Under. Section 201, IPC: Three years imprisonment with a fine of Rs. 500/- in default of payment of fine each to further undergo 2 months Rigorous Imprisonment. ( 2 ) THE learned Addi, Sessions Judge has acquitted accused Smt. Ramgiri of the offences charged with. ( 3 ) AT the outset, it must be stated that counsel for the appellants has submitted an application to the effect that appellant Gopi Chand was on bail and he has been murdered. He has submitted a photocopy of FIR No. 83/2000 dated 21/5/2000 to show that he along with his five family members has been murdered. ( 4 ) IN view of above and since no near relative of appellant Gopi has moved any application within 30 days of his death for leave to continue the appeal, the appeal against Gopi Chand stands abated. ( 5 ) THE prosecution case is that one Sher Singh PW. 2 submitted a written report Ex. P. 16 at Police Station, Mandhan District, Alwar on 10-7-1991 to the effect that on 9-7-1991 Lachhi Ram S/o Shri Budh Ram informed Shri Subey Singh S/c Shri Chandra Singh and Chandra Bhan S/o Kurda Ram that dead body of Amar Singh Slot Pat Ram is lying in a well of Harmangla. Thereupon, two persons of the village were made to enter into the well and it was found that a dead body was lying there. At that time 20-25 persons of the village rushed to the Police Station and informed about the dead body. On being asked as to how he came to know about a dead body lying in the well. At that time 20-25 persons of the village rushed to the Police Station and informed about the dead body. On being asked as to how he came to know about a dead body lying in the well. Lachhi Ram stated that he had transferred the land of his share in the name of the son of Bakhtawar, on account of which Sarjeet and Gopi Ram became annoyed and threatened to transfer his land in their favour otherwise they will kill him also and throw him in the Harmangla well, where they have already thrown Amar Singh after killing him. He informed the villagers for his safety. Their family members were already apprehending that Sarjeet, Gopi Ram and Smt. Ramgiri W/o of Amar Singh have murdered Amar Singh and a report of which had already been lodged two years before at Police Station, Narnaul. ( 6 ) ON the basis of aforesaid report police registered a case vide FIR No. 74/9 1, Ex. Dl for offence under Sections 302 and 201, IPC and proceeded to investigate the case. During investigation, PW 23 Amar Singh, Investigating Officer arrested accused Sarjeet on 17-7-1991 vide Ex. P. 17, who furnished information vide Ex. P. 18 about the place where he murdered Amar Singh. He also furnished information Ex. P. 19 about the well where he threw the dead body of Amar Singh. Site plan of the place of incident was prepared in pursuance to the memo Ex. P. 18. The police recovered a human skeleton on 21-7-199 1 vide memo Ex. P. 5 and also recovered a key from the pocket of shirt on the skeleton vide recovery memo Ex. P. 8. Police also prepared the inquest report Ex. P. 2. the site plan Ex. P. 3 with its description ,at the instance of accused Sarjeet from where the human skeleton was recovered, and the site plan Ex. P. 4 of the place where, accused Sarjeet committed alleged murder of Amar Singh. The police also arrested accused Ramgiri and Gopi Chand vide Ex. P. 1 and Ex. P. 6. respectively. Police also got conducted the post-mortem of the skeleton, the report of which is Ex. P. 10. Dr. Shiv Narain Yadav. PW 19, who conducted postmortem opined that it is not possible to give expert opinion about the age, sex, time of death and the cause of death. P. 1 and Ex. P. 6. respectively. Police also got conducted the post-mortem of the skeleton, the report of which is Ex. P. 10. Dr. Shiv Narain Yadav. PW 19, who conducted postmortem opined that it is not possible to give expert opinion about the age, sex, time of death and the cause of death. Police also recorded the statements of witnesses under Section 161. Cr. P. C. ( 7 ) THE Investigating Officer recovered one pair of chappel vide Ex. P. 9 at the instance and information of Gopi Ex. P. 21 under Section 27 of the Indian Evidence Act. The Investigating Officer also got the recovered articles viz. , one pair of chappel, one key and kurta payjama identified by witness Sher Singh and Raj Singh. ( 8 ) AFTER completion of investigation the police submitted a chargesheet against the accused appellants in the court of learned Judicial Magistrate. Behror, who in turn, committed the case to the Court of Sessions. ( 9 ) LEARNED Additional Sessions Judge who tried the case, framed charges against the accused appellants for offence under Sections 302, 201 and 120-B, IPC. The charges were read over and explained to the accused to which they denied and claimed trial. ( 10 ) DURING trial, the prosecution in support of its case examined as many as 25 witnesses and exhibited some documents. Thereafter, the trial court examined the accused under Section 313. Cr. P. C. for the purposes of enabling them to explain personally the circumstances appearing against them. The accused did not examine any witness in their defence. ( 11 ) ON conclusion of trial, the learned Additional Sessions Judge after hearing counsel for the parties, considering the evidence and material on record, found the accused appellants guilty of the offences charged with and accordingly convicted and sentenced them as aforementioned. Hence the present appeal. ( 12 ) THE case rests entirely on circumstantial evidence and the circumstance relied upon by the prosecution are (i) the extra judicial confession of the accused. (ii) the recovery of skeleton and key from the pocket of shirt of the skeleton and recovery of chappel and. (iii) the deceased last seen in the company of accused. ( 12 ) THE case rests entirely on circumstantial evidence and the circumstance relied upon by the prosecution are (i) the extra judicial confession of the accused. (ii) the recovery of skeleton and key from the pocket of shirt of the skeleton and recovery of chappel and. (iii) the deceased last seen in the company of accused. ( 13 ) TO start with, it must be observed that it is well settled that in a case of circumstantial evidence all the circumstances from which the conclusion of guilt against an accused is to be drawn should be fully and cogently established and the entire facts so established should be consistent only with the hypothesis of the guilt of the accused. It is one of the stated principles of law that a witness may lie but not the circumstances. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. ( 14 ) THE question before, us is as to whether the prosecution has established the three circumstantial evidence heavily banked upon by the prosecution in proof of the guilt of the accused appellants. The first circumstance is that accused Sarjeet made confession before P. W. 3 Lachhi Ram, PW. 18 Raj Singh and PW. 13 Krishan Kumar: The relevant witnesses to the extra judicial confession are PW3 Lachhi Ram, PW 2 Sher Singh, PW 13 Krishan Kumar and PW 18 Raj Singh. PW 2 Sher Singh is the brother of deceased Amar Singh and is the author of the First Information Report, Ex. p. 16. He has stated in his statement that Lachhi Ram informed Subey Singh and Chandrabhan that Sarjeet went to him in the night and threatened him as to why he has transferred the and of their share in the name of Hira Lal and Khushi Ram sons of Bakhtawar. He should get the land transferred, else he will meet the same fate as that of Amar Singh, whom they have killed and thrown into a well of Harmangla. Chandrabhan and Subey Singh in turn, informed the villagers. In Ex. P. 16, the report lodged by Sher Singh, it has been alleged that Sarjeet and Gopi Ram both threatened Lachhi Ram. In his cross-examination. Chandrabhan and Subey Singh in turn, informed the villagers. In Ex. P. 16, the report lodged by Sher Singh, it has been alleged that Sarjeet and Gopi Ram both threatened Lachhi Ram. In his cross-examination. Sher Singh has admitted that Lachhi Ram did not inform about the threatening by Gopi Ram accused, but he named both Gopi Ram and Sarjeet because of his suspicion about their involvement in the commission of crime. He further stated that a criminal case regarding Tmarpeet dated 23-7-1989 with accused Sarjeet is also pending against his brothers Balveer Krishan, Hira Lal, Jagmal, Dharamveer, Anoop, Prakash and Munim Shyotaz in the Court of Additional - Chief Judicial Magistrate. In the later part of his cross-examination, Sher Singh has stated that he had lodged a report at Police Station. Namau I about missing/murder of his brother against Chotu Ram S/o Matoo Ram. Mohar Singh S/o Meena Ram and Shedu Ram. Lodging of report at Namaul has been certified by PW. 12 Balveer. ( 15 ) THUS, from the discussion of his evidence, it is evident that a criminal case with regard to an incident dated 23-7-1989 instituted on the report of accused Sarjeet is pending in the Court of Additional Chief Judicial Magistrate and, therefore, the family of Sher Singh is enemical to accused Sarjeet and the possibility of false implication of accused Sarjeet cannot be ruled out. PW 2 Sher Singh himself has admitted that he included the name of accused Gopi in his report Ex. P. 16. although Lachhi Ram did not inform about the threatening by Gopi and thereby he tried to implicate Gopi in the crime. Prior to it, Sher Singh lodged a report against Chotu, Mohar Singh and Sedu Ram naming them as the alleged murderers of his brother Amar Singh. In these circumstances, it would not be safe to rely on the testimony of PW 2 Sher Singh. ( 16 ) P. W. 3 Lachhi Ram before whom accused Sarjeet alleged to have made confession is the brother of Sriram who is father of accused Sarjeet. Lachhi Ram is issueless. He has stated that he got transferred his agricultural land in the name of his brothers son Khushi Ram, to which accused Sarjeet objected and threatened him as stated in his confession. Lachhi Ram is issueless. He has stated that he got transferred his agricultural land in the name of his brothers son Khushi Ram, to which accused Sarjeet objected and threatened him as stated in his confession. The alleged confession is of 9-7- 1991, whereas, the alleged murder of Amar Singh, as per his statement, might have been committed in 1988. From a perusal of his statement, it appears to us that there was no occasion and meaningful purpose with accused Sarjeet to make confession before PW 3 Lachhi Ram, inasmuch as the interest of both Lachhi Ram and accused Sarjeet with respect to some agricultural land were clashing. ( 17 ) THE next witness in the sequence is PW. 13 Krishan Kumar, before whom accused Sarjeet is alleged to have made confession. P. W. 13 in his statement under Section 161. Cr. P. C. Ex. P. 7 at portion A to B has stated that about a year earlier, while he was passing through the house of Ramgiri, he found that Ramgiri and accused Sarjeet were at quarrel and when he asked about the cause. Ramgiri informed him that Sarjeet has told her that he has murdered her husband and would also kill her. This witness when examined during trial completely diverted from what he had stated in Ex. P. 7 and stated that he does- not know Ramgiri. In cross-examination he denied to have stated about portion A to Band C to D in Ex. P. 7. Thus, this witness also, in our view, appears to be not trustworthy. ( 18 ) THE, last witness to the extra judicial confession is PW. 18 Raj Singh, who happens to be the son of Amar Singh. This witness has stated that accused Sarjeet in a drunken state had told him in village Kanina that he has done away with Amar Singh. In his cross- examination, he has stated that accused Sarjeet had stated about the fact that he has done away with Amar Singh, before all the four brothers, sisters and his mother. This witness has stated that accused Sarjeet in a drunken state had told him in village Kanina that he has done away with Amar Singh. In his cross- examination, he has stated that accused Sarjeet had stated about the fact that he has done away with Amar Singh, before all the four brothers, sisters and his mother. ( 19 ) THE evidence as to the first circumstance i. e. extra judicial confession, as discussed above, makes it abundantly clear that it was for the first time after a period of about 3 years from the day of missing of Amar Singh that accused Sarjeet made confession before PW 3 Lachhi Ram that he has done away with Amar Singh and has thrown him in Harmangla well. Thus, in our view, there was no occasion with the accused to have made the alleged confession before PW 3 Lachhi Ram at such a belated stage and that the possibility of involving Sarjeet by this witness so as to connect him with the murder of Amar Singh cannot be ruled out, particularly in view of the fact that admittedly a dispute with respect to some agricultural land was going on in between Lachhi Ram and Sarjeet accused. PW 2 Sher Singh. author of the FIR had earlier lodged a report about his brotherts missing/murder at Police Station, Narnaul against some persons other than the present appellants. PW 13 Krishan Kumar has completely deviated from his statement under Section 161, Cr. P. C. and PW 18 Raj Singh even could not state the date and year of alleged confession. The extra judicial confession, in the circumstances aforesaid, suffers from serious infirmity and it is a very weak piece of evidence and it is hardly of any consequence. Therefore, it would be highly unsafe to rely upon this circumstance. The trial Court, in our view, has seriously erred in placing reliance on, the evidence of aforesaid witnesses as to this first circumstance of extra judicial confession. ( 20 ) IN Kishore Chand v. State of Himachal Pradesh, their Lordships of the Supreme Court while dealing with a case of circumstantial evidence have observed that even the extra judicial confession will also have to be proved like any other fact. ( 20 ) IN Kishore Chand v. State of Himachal Pradesh, their Lordships of the Supreme Court while dealing with a case of circumstantial evidence have observed that even the extra judicial confession will also have to be proved like any other fact. The relevant observations of the Apex Court are quoted below: For this purpose the Court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it the (sic) circumstances in which it was made and finally the actual words used by the accused. Extra judicial confession if found to be voluntarily, can be relied upon by the Court alongwith other evidence on record. Therefore, even the extra judicial confession depends upon the verocity of the witness to whom it is made and the circumstances in which it came to be made and the actual words used by the accused. ( 21 ) AGAIN in Union of India and others v. Girraj Sharma, their Lordships of the Supreme Court while dealing with the extra judicial confession has held as under: The extra judicial confession should be taken as a whole and should not suffer from any infirmity even if it is to be acted upon. But in this case we find that the belated confession itself becomes doubtful in the light of the medical evidence apart from being the same retracted. We think it is highly unsafe to sustain the convictiontt. ( 22 ) THE second circumstance relied upon by the prosecution is that the deceased was last seen in the company of accused. P. W. 2 Sher Singh in his statement dated 14-1-1994 has stated that he had seen his brother deceased Amar Singh about 33 and 1/2 years before the recovery of his dead body. PW 8 Han Singh has stated that Amar Singh had come in the marriage of daughter of Suraj Bhan for preparing sweets about 5-7 years earlier and the Baraat returned on 5-6-1988. He had last seen Sarjeet and Amar Singh going together in the evening. PW. 11 Shyoraj has stated that about 5 years earlier Sarjeet and Amar Singh had prepared sweets in the marriage of Surjas sister. He had also attended the said marriage. On asking by Sarjeet this witness, brought a bottle of wine and gave it to Sarjeet in his Nohra. PW. 11 Shyoraj has stated that about 5 years earlier Sarjeet and Amar Singh had prepared sweets in the marriage of Surjas sister. He had also attended the said marriage. On asking by Sarjeet this witness, brought a bottle of wine and gave it to Sarjeet in his Nohra. Gopi and Amar Singh were also there in his Nohra. Amar Singh is the uncle of this witness. PW. 18 Raj Singh is the son of Amar Singh. He has stated that his father and Sarjeet had come to cast their votes in the last panchayat elections and he had not seen his father for 5-7 days after he had cast his vote. In cross-examination, this witness has stated that his uncle had contested the election of Sarpanch. From the above evidence, it comes out that PW. 2 Sher Singh whose statement was recorded on 14-1-1994 has stated that he had last seen his brother Amar Singh about 3-3 and 1/2 years back. Whereas. PW. 8 Han Singh whose statement was recorded on 28-8-1993 had seen Amar Singh in the marriage of daughter of Suraj Bhan Ahir. He has specifically given the date of return of Baraat i. e. 5-6-1988. Thus, according to him he had last seen Amar Singh on 5-6-1988 in the company of accused Sarjeet. PW. 11 Shyoraj whose statement was recorded on 28-10-1993 had last seen Amar Singh with Sarjeet in the marriage of sister of Surja about 5 years earlier i. e. in 1988. It is not at all established as to in whose marriage Amar Singh was last seen in the company of accused. Secondly, when it was well known to PW. 2 Sher Singh brother of Amar Singh that his brother is missing, as to why he did not lodge FIR. On the contrary, he lodged a report against some persons, admittedly not against the present accused, at Police Station, Narnaul, particularly when Amar Singh was last seen with accused Sarjeet. There are two sets of evidence of last seen, firstly. Amar Singh was last seen with accused Sarjeet in the marriage and have deposed that one human skeleton was found in a well of Harmangla. Secondly, he was last seen with his wife after the panchayat election. Thus, it is not possible to accept the testimony of P. W. 2 Sher Singh, PW. 8 Han Singh, P. W. 11 Shyoraj and PW. Secondly, he was last seen with his wife after the panchayat election. Thus, it is not possible to accept the testimony of P. W. 2 Sher Singh, PW. 8 Han Singh, P. W. 11 Shyoraj and PW. 18 Raj Singh when they professed that they have seen appellant Sarjeet and deceased together either preparing sweets in the marriage or while consuming liquor. It is highly artificial and appears on its face a make believe story. We are of the firm opinion that evidence of last seen cannot be said to be a strong piece of evidence and this valuable link is completely missing in the chain of circumstantial evidence. It has not been affirmatively proved that the accused Sarjeet and deceased Amar Singh were last seen together. The prosecution, in our view has miserably failed to establish that the deceased was last seen in the company of accused, particularly when PW 18 Raj Singh son of the deceased himself has stated that his father and mother had cast their vote in Panchayat Elections. ( 23 ) THE third circumstance is the recovery. The corpse was recovered consequent to the information Ex. P. 19 furnished by accused Sarjeet. PW 4 Abhay Singh and PW 5 Kalu were made to enter into the well, where they found the body without head and they took out the skeleton from the well. PW 6 is also a witness to the recovery of skeleton without head. PW 8 Han Singh is a witness to the recovery memo of skeleton. PW-9 Lila Ram, PW-14 Sultan and PW-16 Madhu Ram had also entered into the well. They have deposed that one human skeleton was recovered from the well at the instance of accused Sarjeet. PW 20 Subey Singh has deposed that he alongwith Madhu Ram, Sultan Singh and Lila Ram entered into the well and on digging they found a skeleton. A perusal of the above evidence shows that when the aforesaid witnesses who entered into the well did not find the dead body, they started digging with the help of Phawda and after digging the surface about a feet, they found skeleton. ( 24 ) ON a careful scrutiny of the above evidence it is crystal clear that the recovery of corpse is not at all in consonance with the information furnished by accused Sarjeet. ( 24 ) ON a careful scrutiny of the above evidence it is crystal clear that the recovery of corpse is not at all in consonance with the information furnished by accused Sarjeet. The accused has only stated about the dead body having thrown by him into the well. He never stated that he buried the dead body. Thus, important is to note that when it was well within the knowledge of the police even much prior to the information Ex. P. 19 furnished by accused Sarjeet on 21-7-1991, that the dead body of deceased is in the well as is evident from the report, Ex. P. 16 lodged by PW 2 Sher Singh, brother of Amar Singh deceased on 10-7-1991, can it be said to be the recovery pursuant to the information under Section 27 of the Evidence Act. Our answer is in negative. Therefore, the information Ex. P. 19 and the recovery of skeleton consequent thereto are of no importance. It would also be relevant to refer to the statement of PW 23 Amar Singh. Investigating Officer of the case, who has deposed in his cross examination that one cannot be made to step down in the well without the help of 5-4 persons. This deposition of the Investigating Officer also makes the recovery doubtful in as much as it is not the prosecution case that accused Sarjeet entered into the well with the help of 5-4 persons and buried the dead body. Thus, in the light of these circumstances, we have no hesitation in holding that the recovery of skeleton was not in consonance with the information furnished by accused Sarjeet. ( 25 ) FROM the aforesaid discussion about the information having been furnished by the accused and the discovery and seizure consequent thereto we are of the view that the information and the discovery of subsequent fact, in the facts and circumstances of the case is inadmissible under Section 27 of the Indian Evidence Act because apparently fault is found with regard to the discovery and seizure of the incriminating articles. ( 26 ) HAVING considered the aforesaid circumstances, it is now to be seen whether the prosecution has been able to prove that the, recovered skeleton was that of deceased Amar Singh? In this regard, the prosecution has relied upon the recovery of clothes, key and chappel. ( 26 ) HAVING considered the aforesaid circumstances, it is now to be seen whether the prosecution has been able to prove that the, recovered skeleton was that of deceased Amar Singh? In this regard, the prosecution has relied upon the recovery of clothes, key and chappel. The recovered skelton has been identified to be that of deceased Amar Singh on the basis of recovery of key from the pocket of shirt on the skeleton and the clothes found on the skeleton. On the basis of the pieces of Kurta and Payajama on the skeleton, Sher Singh (PW. 2) has identified the recovered skeleton to be of his brother Amar Singh. Therefore, it would be proper to deal with the recovery of the aforesaid articles. ( 27 ) IN para 7 of the Inquest Report, Ex. p. 2 it has clearly been mentioned that all bones of the corpse have been separated from joints and there are pieces of kurta and payjama of light blue colour on the corpse. The exact words used are: NAR KANKAL KE SHAREER KI SABHI HADDIYAN JODO SE ALAG-ALAG HO GAIN HEIN JINME HALKE AASMANI RANG KE TARICOT KE KURTA PAYJAMA KE TUKDE PHANE HUYE HEIN. English Translation: All the bones of skeleton have been separated from the joints, on which pieces of, terecot kurta payjama of light sky colour are attached. Ex. p. 5 is the memo of recovery of skeleton, which shows that all bones of the corpse were separate from joints and there were light blue coloured pieces of kurta and payjama attached to the skeleton. To be more specific, we deem it appropriate to quote the exact lines about the recovery in Ex. P. , which run like: SHARIR KI SABHI HADDIYAN JODO SE ALAG HO GAIN HAIN JINME HALKE NEELE AASMANI RANG KE TERICOT KE KURTA PAYAJAMA KE TUKDE ATKE HUYE HAIN. English translation: All the bones of the body have been separated from the joints, on which pieces of terecot kurta payjama of light sky colour are attached. . Having seen the aforesaid articles viz. , blue coloured pieces of kurta and payjama. PW. 2 Sher Singh, brother of deceased has identified that this skeleton was of his brother Amar Singh. Sher Singh in his statement has stated that his brother Amar Singh used to wear kurta and payjama. . Having seen the aforesaid articles viz. , blue coloured pieces of kurta and payjama. PW. 2 Sher Singh, brother of deceased has identified that this skeleton was of his brother Amar Singh. Sher Singh in his statement has stated that his brother Amar Singh used to wear kurta and payjama. Whether the recovered articles have been correctly identified or not, it would be proper to examine the identification. ( 28 ) EX. p. 22 is the memo in respect of identification of the articles recovered. A look at Ex. p. 22 shows that the Investigating Agency has placed a pair of kurta and payjama of white colour (dust colour) for the purposes of identification. PW-2 Shri N. P. Bhandari, Munsiff and Judicial Magistrate, who got the identification done of the articles including a pair of chappel and a key, has stated in his statement that he got done the identification of a pair of chappel, one key and a pair of kurta payjama of white colour (dust colour) from witnesses Sher Singh and Raj Singh and both of them have correctly identified the aforesaid articles. ( 29 ) THUS, it is absolutely clear that what have been got identified were not at all recovered by the Investigating Agency. It appears that nothing was recovered with the skeleton, but for the purposes of identification, the Police collected a kurta and payjama and produced the same for identification purposes solely with a view to establish that skeleton was that, of deceased Amar Singh. Hence the recovery of kurta and payjama and the identification thereof are of no consequence. ( 30 ) NOW we, take up recovery of key and chappel. So far as recovery of key is concerned, according to the statement of PW-2 Sher Singh the said key was of Chobara attached to the room of the share of Amar Singh, where deceased Amar Singh was not at all residing. It is evident, from a perusal of the statement of PW. 18 Raj Singh according to which, they started living in village, Neerpur and thereafter, they shifted to village, Atali and Kanina. Admittedly, deceased Amar Singh and his brother Sher Singh were residing separately. It is clear even from the statement of PW. 2 Sher Singh himself that his brother Amar Singh was residing separately in village, Nirpur. 18 Raj Singh according to which, they started living in village, Neerpur and thereafter, they shifted to village, Atali and Kanina. Admittedly, deceased Amar Singh and his brother Sher Singh were residing separately. It is clear even from the statement of PW. 2 Sher Singh himself that his brother Amar Singh was residing separately in village, Nirpur. As such it cannot at all be, believed that Amar Singh all the time used to keep with him the key of a place where he never resided. It is also strange as to why the investigating agency chose to get the key identified by Sher Singh instead the wife and daughters of Amar Singh, nor it chose to get the key identified by other witnesses. There are further circumstances to make the recovery of key doubtful. Firstly, the police has recorded the statement of Sher Singh after the recovery of skeleton, secondly, it has not been mentioned in the statement Ex. D. 2 of Sher Singh that the key and chappel belong to his brother. The recovery of key, thus affords no incriminating evidence nor any link in the chain of circumstantial evidence. ( 31 ) NOW remains the recovery of chappel, which has been made on 30-7-1991 vide Ex. p. 9 from open place accessible to all and sundry. A perusal of recovery memo Ex. p. 9 dated 30-7-1991 shows that recovery has been made from a heap of stones, whereas, there is no mention of there being any heap of stones in the site plan. Thus, in these circumstances and in view of the fact that the recovery of chappel has been made after a long lapse of about 3 years from the period of disappearance of Amar Singh, the recovery of chappel and its identification by PW. 2 Sher Singh and Raj Singh is hardly of any importance. ( 32 ) HAVING held the recovery being of no consequence so as to hold the appellants guilty for the charge of murder it is necessary to refer to the medical evidence. PW 19 Dr. Shiv Narayan Yadav who conducted the post-mortem, has opined that it is not possible to give expert opinion about the age, sex, time of death and the cause of death. PW 19 Dr. Shiv Narayan Yadav who conducted the post-mortem, has opined that it is not possible to give expert opinion about the age, sex, time of death and the cause of death. ( 33 ) IT is well settled that in a charge of murder, the corpus delicti is the factum of the death of deceased and in order to establish the charge of murder, the corpus delicti must be proved beyond reasonable doubt. Admittedly, the bones of the corpus separated from points were recovered from a well. Since the prosecution has utterly failed to prove either recovery of chappel or key or the clothes, which was the sole basis to identify the skeleton, it cannot be said that it was the corpse of Amar Singh who has been done to death and. for whose murder the accused appellants are charged. ( 34 ) THE scattered circumstances attempted to brought on record by the prosecution, are not sufficient to hold the accused appellants guilty of the charge of murder. In the case in hand, the various sets of circumstantial evidence read and assimilated together do not disclose any incriminating evidence against the accused appellant Sarjeet. In the instant case, the error committed by the trial Court is that an artificial and unwarranted inferences have been drawn from the testimony of PW-2 Sher Singh, PW-13 Lachhi Ram, and PW-18 Raj Singh and other witnesses. ( 35 ) BEFORE parting with the case, we must observe that the investigation, in the manner it has been done, recovery made and the evidence collected, is completely tainted one and the investigating agency, at their level best has tried to prove that the skeleton recovered was that of Amar Singh and the present appellant Sarjeet must be held responsible for the murder of Amar Singh. ( 36 ) FOR the reasons stated above, we are unable to maintain the conviction of accused Sarjeet. ( 37 ) CONSEQUENTLY, the appeal of accused Sarjeet is allowed. The conviction and sentence under Sections 302, and 201, IPC are set-aside and he is acquitted of the charges. He is in jail and shall be forthwith set at liberty, if not wanted in any other case. ( 38 ) THE appeal as against Gopi Chand stands abated since he has passed away during the pendency of this appeal. Appeal allowed.