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Jharkhand High Court · body

2002 DIGILAW 289 (JHR)

Md. Ekhlak v. State of Bihar (now Jharkhand)

2002-03-05

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2002
Judgment Lakshman Uraon, J.- The appellants in these two Criminal Appeals were sent up for trial before the learned 5th Additional Judicial Commissioner, Ranchi for an offence punishable under Section 302/34 of the Indian Penal Code for having committed murder of Nashim Akhtar @ Munna on 2.4.1993 near the lane leading from Mission Chowk to Karbala Chowk and in the gali of Advocate Sultan within Lower Bazar PS in the town of Ranchi. 2. It is a peculiar case in which fardbeyan of Md. Ekhlak (informant-appellant) was recorded by D. Singh, S.I. of Lower Bazar PS on 3.4.1993 at 1.30 hour at Mission Ground Road mentioning therein that on 2.4.1993 he along with his friend Nashim Akhtar (deceased) had gone to Sandhya Cinema hall at about 9.00 p.m. After interval, Nashim Akhtar felt uneasy, hence they came out from Sandhya Cinema Hall just after 20-25 minutes and proceeded towards their homes. They reached near Mission Hostel gate which runs from North to South i.e. from Mission Chowk to Karbala Chowk, they found three unknown person standing near the Bamboo shrubs of Mission Hostel Gate. One person, who had Chhura, ordered to assault. His other two associates, who were of short stature & black complexion, caught hold of the informant-appellant and his fried Nashim Akhtar (deceased). Both of them managed to escape and fled away towards Karbala Chowk. They were chased by the three miscreants. Nashim Akhtar @ Munna fell down. Then one miscreant caught hold of him. They tried to escape, but the criminals caught him and the another stabbed Nashim Akhtar @ Munna with knife. Informant-appellant anyhow managed to escape and fled away towards Karbala Chowk raising alarms to save Munna who was being assaulted. As it was night, hence no one came out to his rescue. He fled away and went to his home and informed his brothers-Ajij and Baddullah that Munna was being assaulted. Thereafter, he along with his brothers and neighbours went to the P/O and found Munna fallen down having pool of blood on his body. Munna was taken to Anjuman Hospital and R.M.C.H., where doctor declared him dead. The wrist-watch of Munna was also taken away by the assailants. He claimed to identify all the three assailants. On the basis of the fardbeyan (Ext.8), formal FIR (Ext.9) was drawn against unknown and investigation was taken up by PW. Munna was taken to Anjuman Hospital and R.M.C.H., where doctor declared him dead. The wrist-watch of Munna was also taken away by the assailants. He claimed to identify all the three assailants. On the basis of the fardbeyan (Ext.8), formal FIR (Ext.9) was drawn against unknown and investigation was taken up by PW. 11 Satyadeo Singh.He inspected the P/O which is the road leading from Mission Chowk to Karbala Chowk in the East. There is press and Saint Albert College. In the Southern corner there is garden. Thereafter, there is Church compound. At a distance of 15 yards South, there is a road leading towards West where assailants gave knife blows to Nashim Akhtar @ Munna. He found bloodstains there. He went to R.M.C.H. at 2.30 a.m. night where inquest report (Ext.6/1) was prepared in the pen & signature of C.D.Ram, A.S.I. The dead boy was sent for post mortem examination. He was transferred from Lower Bazar PS. Hence, he handed over charge of investigation on 18.4.1993 to the O/C, Lower Bazar PS. At the time of recording fardbeyan at the P/O, Md. Israil and Islam were also present who signed on the Fardbeyan as Exts. 8/1 and 8/2 respectively. However, he did not seize the bloodstained soil found at the P/O. In course of his investigation, no one had deposed against the informant-appellant Md. Ekhlak. PW. 12 Syed Md. Jahangir took the charge of investigation on 22.5.1993. He recorded the statement of Salauddin (Pw.6) Arshad, Md. Khalid and others and received post mortem report and arrested informant Ekhlak. Thereafter he handed over charge of investigation on 27.8.1993 to the O/C on the order of City S.P. Alok Raj. He investigated only in between 22.5.1993 to 27.8.1993. Appellant Md. Zahid @ Raju was produced before the Magistrate for recording his statement under Section 164 Cr. PC where he stated his ignorance about the alleged occurrence. Thus, after arrest of the informant Md. Ekhlak by PW.12 Syed Md. Jahangir, he was made accused and rest part of the case was investigated by PW.13 Suraj Bali Rai, who after completion of investigation, submitted charge sheet against informant-appellant Md. Ekhlak and Md. Zahid @ Raju under Section 302/394 IPC. The learned 5th Additional Judicial Commissioner, Ranchi framed charge under Section 302/34 IPC against both the appellants. 3. Prosecution examined altogether 13 witnesses in order to substantiate the charge against both the appellants. PW. Ekhlak and Md. Zahid @ Raju under Section 302/394 IPC. The learned 5th Additional Judicial Commissioner, Ranchi framed charge under Section 302/34 IPC against both the appellants. 3. Prosecution examined altogether 13 witnesses in order to substantiate the charge against both the appellants. PW. 1 Md. Sajid Hussain is the nephew of the deceased Nashim Akhtar @ Munna. PW. 2 Nikhat Sahib is the niece of the deceased and sister of PW. 1. PW. 3 Md. Nayeem claims that he had been to Kunjara Mohalla where three miscreants were caught. One of them was Md. Zahid of his mohalla Konka Road. Md. Zahid confessed before him that he also caused murder of Munna along with Ekhlak. PW. 4 Md. Neyaz is also a witness before whom Md. Zahid @ Raju confessed his guilt causing murder of Nashim Akhtar @ Munna. Similar is the evidence of PW.5 Matiur Rehman. PW.6. Salauddin Ahmed is the brother of the deceased who was informed on 2.4.93 at 11.00 P.M. by Sajid Hussain that Munna was surrounded by Gundas. When he came out of his home, he found Ajij standing who informed Obaidullah also that Munna was surrounded by Gundas near Mission Chowk. When he went there, he found the dead body of Munna. The body was cold having sustained bleeding injuries on his chest and abdomen. He did not find bloodstains at the P.O. PW.7 Dr. Niranjan Minz on 3.4.1993 conducted the post mortem examination of the dead body of Nashim Akhtar @ Munna at 11.30 A.M. found injuries and submitted post mortem report (Ext.4). PW. 8 Hasina Khatoon, attendant of Anjuman Hospital, Ranchi, was taking her meal at night, then some one knocked the door and called Bahadur, Gate-keeper. When Bahadur opened the gate, he found Md. Ekhlak who inquired as to whether compounder is available or not. Bahadur flashed torch and in that light, she saw bloodstains on the hands and clothes of Md. Ekhalk. Md. Ekhlak went scaling the back gate. PW.9 Parvez Akhtar is a witness on the inquest report on which he signed (Ext.6). At R.M.C.H., PW.10 Md. Iqbal is also a witness before whom Zahid @ Raju confessed his guilt that he also stabbed deceased Nashim Akhtar @ Munna along with Md. Ekhlak. PW.11, PW. 12 & PW. 13 are the 1.Os. who investigated the case. 4. PW.9 Parvez Akhtar is a witness on the inquest report on which he signed (Ext.6). At R.M.C.H., PW.10 Md. Iqbal is also a witness before whom Zahid @ Raju confessed his guilt that he also stabbed deceased Nashim Akhtar @ Munna along with Md. Ekhlak. PW.11, PW. 12 & PW. 13 are the 1.Os. who investigated the case. 4. The learned 5th Additional Judicial Commissioner, Ranchi relied upon the extra judicial confession of appellant Md. Zahid @ Raju who had confessed his guilt that he along with Md. Ekhlak stabbed Nashim Akhtar @ Munna causing his death. He had made extra judicial confession before PW. 3 Md. Nayeem, PW. 4 Md. Neyaz, PW. 5 Matiur Rehman and PW.10 Md. Iqbal and also relied upon the evidence of PW.1 Md. Sajid Hussain and PW. 2 Nihat Sahib that Md. Ekhlak took Nashim Akhtar @ Munna from their house at about 7.30 P.M. and since thereafter, Nashim Akhtar @ Munna was found murdered. Appellant Md. Ekhlak was along with Nashim Akhtar @ Munna, but after the alleged occurrence, he did not inform PW.6 Salauddin Ahmed, brother of the deceased, or anyone else. Even he did not inform the mohall a people close to the P/O, nor he informed Lower Bazar police station. Considering these eivdences, he found both the appellants guilty and convicted them under Sections 302/34 IPC and sentenced to undergo R.I. for life. 5. Assailing the order of conviction & sentence passed against the appellant Md. Zahid @ Raju (appellant in Cr. Appeal No. 207 of 1996 R), the learned •counsel for this appellant has submitted that the conviction is based only on the extra judicial confession made by this appellant before the witnesses. The extra judicial confession alleged to have been made by this appellant is after thought and fabricated one which could not be proved in accordance with law in absence of any corroborative evidence or cogent evidence to convict under Section 302/34 IPC. It was also submitted that PW. 3 Md. Nayeem, PW. 4 Md. Neyaz, PW. 5 Matiur Rehman and PW.10 Md. Iqbal whose statements were recorded under Section 164 Cr. P.C. are not the well wishers and closely related with appellant Md. Zahid @ Raju. It is highly improbable that these witnesses would have gone to this appellant who confessed his guilt which they did not disclose immediately to the mohalla people or the police. 5 Matiur Rehman and PW.10 Md. Iqbal whose statements were recorded under Section 164 Cr. P.C. are not the well wishers and closely related with appellant Md. Zahid @ Raju. It is highly improbable that these witnesses would have gone to this appellant who confessed his guilt which they did not disclose immediately to the mohalla people or the police. There is no any cogent reason as to why appellant Zahid @ Raju reposed such a confidence on them and confessed his guilt and has relied upon a case reported in (1997)1, S.C. Cases, 510. 6. The learned counsel for appellant Md. Ekhlak in Appeal No. 139 of 1996(R) has assailed the order of conviction and sentence that in course of investigation made by PW.11 and PW.12, none of the witnesses has alleged any complicity of his appellant. The prosecution has not examined Bahadur, Gate-keeper of Anjuman Hospital. The investigation was lastly handed over to PW.13 by order of City S.P. Alok Raj. The City S.P. has also not been examined by the prosecution. Extra judicial confession of appellant Zahid @ Raju made before PW.3 Md. Nayeem and PW.4 Md. Neyaz that they had been to jail to meet him before whom he made extra judicial confession and also the evidence of PW.10 Md. Iqbal who was himself a criminal and was in jail as a convict and is closely related with the deceased, and their statements regarding extra judicial confession made before appellant Md. Ekhlak. PW. 1 Md. Sajid Hussain and PW.2 Nikhat Sahib have supported the case of informant-appellant Md. Ekhlak that Nashim Akhtar @ Munna was killed by Gundas. There is delay in examination of the witnesses by the I.Os. who have constructed a new story only to implicate this appellant by PW.13 when PW.11 and PW.12 had no information implicating this appellant in this case. On these grounds, the learned counsel for the appellant has submitted that the order of conviction & sentence passed by learned 5th Additional Judicial Commissioner, Ranchi suffers from legal infirmities which cannot be sustained. 7. Learned A.P.P. while arguing the case, has submitted that there is no eyewitness of the alleged murder of Nashim Akhtar @ Munna. The alleged occurrence took place in between 9.00 to 9.30 P.M. on 2.4.1993. Appellant Md. Ekhlak took Nashim Akhtar @ Munna to Sandhya Talkies to show night cinema. 7. Learned A.P.P. while arguing the case, has submitted that there is no eyewitness of the alleged murder of Nashim Akhtar @ Munna. The alleged occurrence took place in between 9.00 to 9.30 P.M. on 2.4.1993. Appellant Md. Ekhlak took Nashim Akhtar @ Munna to Sandhya Talkies to show night cinema. He had been to his house at about 7.30 P.M. which was witnessed by PW.1 Md. Sajid Hussain and PW.2 Nikhat Sahib. After the alleged occurrence, Md. Ekhlak fled away and went to his home. He did not inform any family member of Nashim Akhtar @ Munna including PW.6 Salauddin Ahmed, brother of the deceased and brother of Ajaj. On the other hand, Md. Ekhlak informed his brother Ajij. Md. Ajij informed PW.6 Salauddin Ahmed that at about 10.30 P.M. criminals surrounded them. Ekhlak managed to escape and Munna was caught. The conduct of Md. Ekhlak is quite unnatural. He did not raise hue & cry at the P/O where there is thickly populated area at a distance of 200 yards, which is Gudari chowk. Even he did not inform the Lower Bazar PS. He went to Anjuman Hospital. When Bahadur opened the gate and flashed torch, his hands and clothes had blood stains. When Hasina Khatoon (PW. 8) inquired, then Bahadur informed her that this appellant Md. Ekhlak managed to flee away scaling back wall of Anjuman hospital. On this ground, it was submitted that it was appellant Md. Ekhlak who was last seen along with Nashim Akhtar @ Munna in going to Cinema at about 7.30 P.M. and at the place where the alleged occurrence took place at about 10.30 P.M. Thereafter appellant Md. Ekhlak fled away and went to his home without informing anybody including the members of the family of the deceased. 8. Thus, the evidence of last seen and last company of this appellant with the deceased and the circumstantial evidence and extra judicial confession are to be considered as to whether they are so connected that the chain leads towards the only conclusion that these appellants are responsible for causing murder of Nashim Akhtar @ Munna. 9. In this case, there are three I.Os. PW. 11 Satyadeo Singh recorded the fardbeyan of appellant Ekhlak at the P/O at 1.30 A.M. on 3.4.1993. He found bloodstained soil at the P/O. The inquest report was prepared at 2.30 P.M. at Rajendra Medical College, Ranchi. 9. In this case, there are three I.Os. PW. 11 Satyadeo Singh recorded the fardbeyan of appellant Ekhlak at the P/O at 1.30 A.M. on 3.4.1993. He found bloodstained soil at the P/O. The inquest report was prepared at 2.30 P.M. at Rajendra Medical College, Ranchi. This witness investigated the case till 17.4.1993 and on 18.4.1993, he handed over charge to P.W. 12 Syed Md. Jahangir who investigated from 22.5.1993 to 27.8.1993.Thus, there is no investigation in between 19.4.1993 to 21.5.1993. Again PW.12 handed over charge on 27.8.1993 to the O/C. Thereafter, PW.13 started investigation from 23.10.1993. There was again no progress of investigation for two months. The statement of the witnesses were recorded after much delay by the I.O. The learned counsel for the appellants has submitted that there was development and concoction in the evidence of the interested witnesses. There was no evidence against the appellant in the statements of the witnesses recorded by PW.11 and PW.12. It was only PW.12 who arrested the informant Md. Ekhlak and made him accused on the basis of extra judicial confession made by co-accused Md. Zahid @ Raju. In view of this fact, I have to consider as to whether the extra judicial confession made by co-accused Zahid @ Raju is admissible in the eye of law. 10. In this case, the genesis of the alleged occurrence has not been mentioned by the prosecution. Informant Md. Ekhlak of this case is the accused. He had given information in his fardbeyan regarding causing murder of Nashim Akhtar @ Munna by three unknown criminals. Subsequently PW.6 Salauddin Ahmed, brother of the deceased, suspected the hands of this informant-appellant in causing murder of his brother Nashim Akhtar @ Munna. PW.1 Md. Sajid Hussaun and PW.2 Nikhat Sahib were in their home on the roof playing with their uncle Nashim Akhtar @. Munna (deceased) on 2.4.1993. At about 7.30 P.M. appellant Md. Ekhlak called Munna. When PW.1 Md. Sajid Hussain asked as to who he was, then appellant Ekhlak retreated 2-3 steps. PW.2 Nikhat Sahib has deposed that her uncle Munna was not willing to go along with Ekhlak on the ground that he was waiting for Kaisar, but Md. Ekhlak took him outside the home. Both these witnesses heard the voice of Ajij, elder brother of Md. Ekhlak at about 11.00 P.M. on that night calling Obaidullah, another uncle of these witnesses. Ekhlak took him outside the home. Both these witnesses heard the voice of Ajij, elder brother of Md. Ekhlak at about 11.00 P.M. on that night calling Obaidullah, another uncle of these witnesses. When Obaidullah came out, then Ajij informed him that Munna was surrounded by Gundas on the Mission ground. Thereafter, the mohalla people including Obaidullah, Salauddin (PW. 6) Ejaj went to the P/O. Then they found Munna murdered. Munna was taken to Alam Nursing Home by Sajid and Ejaj where doctor declared him dead. PW.1 Md. Sajid Hussain has not seen appellant Md. Ekhlak at the P/O, nor at the R.M.C.H. When he went to the P/O, he did not find blood oozing out from the injuries of Md. Nashim Akhtar @ Munna. PW. 3 Md. Nayeem went to Kunjara mohalla after seven or ten days of this occurrence where he heard that some theieves were apprehended. He saw three persons; one of them was Md. Zahid @ Raju (appellant in Cr. Appeal No. 207 of 1996 R) of his mohalla. The mohalla people informed that Md. Zahid was also one of the associates in causing murder of Munna. When this witness asked Zahid, then he confessed that he murdered Munna, but appellant Ekhlak assaulted him first. This witness has stated before the Magistrate under Section 164 Cr. P.C. on which he signed (Ext. 1). PW. 4 Md. Neyaz is resident of Hind Pidi, whereas appellant Md. Zahid @ Raju is resident of Bullu Kalal Toli, Lower Bazar. He has deposed that Zahid @ Raju confessed before him that by mistake Munna was murdered. Md. Ekhlak had informed him that he would take one boy who is possessed Rs.15000/- and one golden chain. He would be taken to Cinema hall and directed Md. Zahid to follow them. Zahid followed them. At 9.00 P.M. Ekhlak came out of Sandhya Cinema hall along with Munna. When they reached in the lane of Sultan Vakil, then Zahid pointed knife on Munna and searched his person. In the meantime, Md. Ekhlak brought out a round shaped material from his pocket and started assaulting on the head of Munna. When Zahid objected on the ground that they were only to loot and not to cause murder, but Md. Ekhlak told that he (deceased) identified them, hence it will be dangerous to them, so he should be murdered. Md. Ekhlak brought out a round shaped material from his pocket and started assaulting on the head of Munna. When Zahid objected on the ground that they were only to loot and not to cause murder, but Md. Ekhlak told that he (deceased) identified them, hence it will be dangerous to them, so he should be murdered. Md. Ekhlak gave 2-3 knife-blows and Zahid @ Raju gave one knife-blow. Thereafter, they fled away. Statement of this witness (PW.4) was also recorded under Section 164 Cr. PC by a Magistrate on which he signed (Ext. 2). This witness had not named Md. Zahid prior to making extra judicial confession before him. When he came to know that Zahid was in jail, then he went to jail on the day of Bak-ri-Id to see Zahid @ Raju. He was not knowing Zahid, but the Jail Warden brought Zahid before him. He had a talk through the window of the visitors' room. After meeting Zahid in jail, this witness did not inform anyone of the locality including the relatives and members of the family of the deceased Nashim Akhtar @ Munna, rather he went to Patna taking plea that his father-in-Iaw was ailing. Before leaving for Patna, he had gone to Rigo Watch Shop of Sajid (PW.1). He did not inform Sajid about the extra judicial confession made before him by Zahid in the jail. Similar is the evidence of PW. 5 Matiur Rehman who had gone to Ranchi Central Jail to meet appellant Zahid. Zahid confessed before him also that he murdered Munna by mistake. He committed murder on the direction of Md. Ekhlak (appellant) who had taken the deceased to Sandhya Cinema. He had informed him that deceased was possessed of Rs.15000/- and one gold chain which had to be looted. At about 9.00 P.M. in a planned way near turning of Sultan Vakil lane, Ekhlak pointed a knife and searched the pocket of Nashim Akhtar @ Munna. Appellant Ekhlak brought out round shaped material from his pocket and assaulted on the head of Munna. Thereafter Ekhlak stabbed Munna with knife. Ekhlak also ordered appellant Zahid to assault. Then Zahid also gave one knife-blow on the chest of Munna. PW.5 Matiur Rehman was at his home at the night of the alleged occurrence. At about 9.45 P.M. he heard the sound of knocking the gate. Thereafter Ekhlak stabbed Munna with knife. Ekhlak also ordered appellant Zahid to assault. Then Zahid also gave one knife-blow on the chest of Munna. PW.5 Matiur Rehman was at his home at the night of the alleged occurrence. At about 9.45 P.M. he heard the sound of knocking the gate. Bahadur, Gatekeeper of Anjuman hospital flashed torch, then found blood on the hands and shirt of Md. Ekhlak. Ekhlak went through the back gate of Anjuman Hospital to his home. This witness has not informed anyone else that he had seen blood On the shirt and hands of Md. Ekhlak who went to his home by scaling the back gate of the hospital. Although police was in search of the assailant, but this witness did not inform the police at that night. On the other hand, only on 28.7.1993 he informed the police that he had seen blood on the shirt and hands of appellant Md. Ekhlak. The statement of this witness was also recorded under Section 164 Cr. P.C. by the Magistrate. 11. Appellant Md. Ekhlak informed his brother Ajij about the alleged occurrence. Ajij went to the house of PW.6 Salauddin Ahmed on 2.4.1993 at about 11.00 P.M. and informed about the alleged occurrence to Md. Sajid Hussain who informed this witness Salauddin that Munna was surrounded by some miscreants. When PW.6 Salauddin Ahmed came out of his house then he found Ajij standing. Ajij informed Obaidullah who rushed to the P/O near Mission Chowk where Munna was surrounded by miscreants. When they went there, they found Munna dead ahead of Sultan Vakil lane. He found the dead body of Munna completely cold. He did not find any blood at the P/O, rather there was huge blood on his chest and abdomen. He Was informed at 11.00 a.m. and at that time, the dead body was found completely cold. PW.5 Matiur Rehman had seen Md. Ekhlak at about 9.45 P.M. when Bahadur opened the door and flashed torch, who had bloodstains on his hand and shirt, which shows that the alleged occurrence took place in between 9.00 P.M. to 9.30 P.M. that is why at about 11.00 P.M. the dead body of Munna was completely cold. PW.8 Hasina Khatoon, attendant at Anjuman Hospital, Ranchi deposed that when Bahadur opened the gate, then Ekhlak was standing. There was blood on his hand and clothes. PW.8 Hasina Khatoon, attendant at Anjuman Hospital, Ranchi deposed that when Bahadur opened the gate, then Ekhlak was standing. There was blood on his hand and clothes. Ekhlak inquired about presence of compounder in the hospital. Thereafter he went to his home by scaling the back gate of the hospital. But this witness PW.8 had never informed anybody else. Again at about 11.00 A.M. someone called as to whether there was any doctor present in the hospital at night. Her statement was also recorded under Section 164 Cr. PC on which she signed (Ext.5). She has not stated before the I.O that she came to know the name of the appellant Md. Ekhlak after 10-15 days of the alleged occurrence. PW. 10 Md. Iqbal was lodged in Ranchi Jail in connection with a criminal case where he met appellant Md. Zahid. Zahid who when asked, informed that he had no intention to cause murder of Munna, but appellant Ekhlak had informed that Munna had Rs.15000/- who would be taken to Sandhya Cinema and as per programme, at 9.00 p.m. when Ekhlak and Munna were returning, they were followed by Md. Zahid. Near the Sultan Vakil lane, Ekhlak pointed knife and searched the person of Munna. Thereafter, Ekhlak brought out Gupti from his pocket and assaulted on the head of Munna. Munna fell down and became unconscious. Thereafter, Ekhlak stabbed twice with knife on the chest & abdomen and appellant Zahid stabbed once. Again Ekhlak gave another knife-blow on the abdomen of Munna. All these statements were stated by appellant Zahid in the jail to this witness who was also a prisoner in the jail. His statement was also recorded under Section 164 Cr. PC on which he signed (Ext.7). PW.7 Dr. Niranjan Minz conducted post mortem examination on the dead body of Md. Nashim Akhtar @ Munna on 3.4.1993 at about 11.30 A.M. and found :- Stab Wounds:- (i) 1 x 1/2 c.m. x cavity deep on left chest front situated 1 c.m. left to mid line. The weapon penetrated into chest cavity through the sternum at the level of 3rd ribs, and cut into the right atrium of the heart. (ii) 1 x 1/2 c.m. x cavity deep on the left chest front 4 c.m. left to mid line situated transversely. The weapon penetrated into chest cavity through the sternum at the level of 3rd ribs, and cut into the right atrium of the heart. (ii) 1 x 1/2 c.m. x cavity deep on the left chest front 4 c.m. left to mid line situated transversely. The weapon penetrated into the chest cavity through the left 5th intercostals space and penetrated into the left lung. (iii) 1 x 1/2 x cavity deep on the front of abdomen lower part 1 c.m. right to mid fine through which a coil of intestine was protruding out. The weapon penetrated into the abdominal cavity and penetrated into the small intestines. (iv) 1 x 1 c.m. x soft tissues on left medial side. (v) 1/2 x 1/2 c.m. x soft tissues on the right side of the buttock 4 c.m. below the iliac crest. There was presence of blood and blood clots in the thorasic abdominal cavity. There was contusion on the right occipital region of head measuring 3 1/2 x 3 c.m. area underneath. There was contusion of the occipital scalp measuring 4 x 3 1/2 c.m. area. There was presence of blood and blood clots in the occipital region of the head with contusion of the occipital lobs of the brain. This witness opined that all the injuries were ante mortem in nature. The contusion was caused by hard & blunt substance and the stab wounds were caused by sharp cutting and penetrating weapon. The death was due to shock and haemorrhage associated with head injuries, within 6 to 24 hours from the time of post mortem examination. He prepared post-mortem report in his pen & signature (Ext. 4). 12. PW 10 is the resident of the mohalla of the appellant Zahid @ Raju. Soon after PW.10 Md. Iqbal was released from custody, his statement was recorded under Section 164 Cr. P. C. by the Magistrate. This witness has also informed O/C, Lower Bazar PS soon after he came out of the jail. Thereafter, he also informed Sajid (PW. 1) and others. It is not clear as to why Md. Zahid @ Raju reposed such a confidence in PW.3, PW.4, PW.5 and PW.10 before whom he made his extra judicial confession. P. C. by the Magistrate. This witness has also informed O/C, Lower Bazar PS soon after he came out of the jail. Thereafter, he also informed Sajid (PW. 1) and others. It is not clear as to why Md. Zahid @ Raju reposed such a confidence in PW.3, PW.4, PW.5 and PW.10 before whom he made his extra judicial confession. There is no cogent material on the record to show that appellant Zahid @ Raju had any acquaintance with them prior to the occurrence or he had any special relationship with them so as to repose confidence in them. Therefore, the extra judicial confession made by appellant Zahid as deposed by PWs.3, 4 5 and 10 appear to be highly improbable in the facts & circumstances of this case and is fit to be brushed aside. Extra judicial confession made before any person is a weak type of evidence which is not lightly to be relied upon and taken into consideration without any other corroborative evidence in support of the extra judicial confession. In this present case, I find that appellant Md. Ekhlak was friend of deceased Nashim Akhtar @ Munna. During the day time at Rigo Watch Shop also, he had talked to Nashim Akhtar @ Munna and took him to see night show at Sandhya Cinema. At 7.30 p.m. night, he had been to the house of Nashim Akhtar @ Munna. It was witnessed by PW.1 Md. Sajid Hussain and his sister Nikhat Sahib (PW.2). As per statement of Nikhat Sahib PW.2, her uncle Nashim Akhtar @ Munna was not willing to go to see Cinema as he was waiting for one Kaishar. But Md. Ekhlak took him. Md. Ekhlak had some money dues to be returned to Nashim Akhtar @ Munna which was evident from the evidence of PW.6 Salauddin Ahmed. He had promised to return the money to Nashim Akhtar @ Munna. In the meantime, he was done to death. After the alleged occurrence, Md. Ekhlak at about 9.45 P.M. had knocked the gate of Anjuman hospital calling to open the gate. PW.8 Hasina Khatoon, attendant of Anjuman Hospital. Ranchi, deposed that when someone knocked the gate calling Bahadur to open it, then the gate was opened. Appellant Ekhlak was outside the gate and inquired as to whether there is any compounder. Bahadur, Gate-keeper when flashed torch light. PW.8 Hasina Khatoon, attendant of Anjuman Hospital. Ranchi, deposed that when someone knocked the gate calling Bahadur to open it, then the gate was opened. Appellant Ekhlak was outside the gate and inquired as to whether there is any compounder. Bahadur, Gate-keeper when flashed torch light. PW.8 Hasina Khatoon saw blood on his hand and clothes. Thereafter, Ekhlak went out of the Anjuman Hospital through scaling its back gate and went to his home. He informed his brother Ajij and Badrullah, Ajij went to the house of Salauddin Ahmed. brother of the deceased, on the same night at about 11.00 p.m. He met PW.1 Sajid Hussain who called PW.6 Salauddin Ahmed that Munna was surrounded by Gundas. When PW.6 Salauddin Ahmed came down, then he saw Ajij standing. He asked Obaidullah also. All of them along with Aslam went to the Mission ground where near the lane of Sultan Vakil, found Munna fallen down and dead whose body was cold having injuries on his chest and abdomen. There was pool of blood on his person but as it was night, this witness did not see any bloodstains at the P.O. I.O. PW 11 found bloodstains at the P/O, where the dead body of Nashim Akhtar was seen by the witnesses. He did not seize bloodstained soil. 13. In this present case, there is no eyewitness to bring home the charges levelled against both these appellants under Section 302134 IPC for causing murder of Nashim Akhtar @ Munna. The learned Court below has based the conviction only on the theory of last seen of appellant Md. Ekhlak (appellant in Cr. Appeal No. 139 of 1996) and the extra judicial confession made by appellant Md. Zahid @ Raju (appellant in Cr. Appeal No. 207 of 1996). As the last seen theory is a very weak type of evidence without any corroborative evidence of rellable independent and trustworthy witnesses, it should not be taken into consideration lightly. Similar is the statement of extra judicial confession made before the witnesses by appellant Md. Zahid @ Raju. Appellant Md. Ekhlak was a friend of deceased Nashim Akhtar @ Munna. There may be friendly transaction in course of business which was not assigned as the cause of murder of Nashim Akhtar @ Munna. In this present case, as per evidence of PW 10 Md. Zahid @ Raju. Appellant Md. Ekhlak was a friend of deceased Nashim Akhtar @ Munna. There may be friendly transaction in course of business which was not assigned as the cause of murder of Nashim Akhtar @ Munna. In this present case, as per evidence of PW 10 Md. Eqbal was also a criminal and was lodged in jail before whom extra judicial confession was made by Zahid @ Raju (appellant in Cr. Appeal No. 207 of 1996). The extra judicial confession made by him before PW.3 Md. Nayeem was made when three thieves were caught in the mohalla. One of them was Md. Zahid @ Md. Raju, who was assaulted by the mohalla people. Then he confessed his guilt. The mohalla people also informed that he was one of the assailants of deceased Nashim Akhtar @ Munna. The mohalla people who stated before PW.3 that he was also assailant of Md. Nashim Akhtar @ Munna, have not been examined by the prosecution. PW.4 Md. Neyaz, P.W.5 Matiur Rehman did not disclose immediately the extra judicial confession made before them to the police or to the family members of the deceased. Thus, the extra judicial confession made was too late and also the information given regarding extra judicial confession made by appellant Zahid @ Raju before this witness was also disclosed after a long delay which also creates doubt regarding the genuineness of their statement that appellant Md. Zahid @ Raju made extra judicial confession before them. They were not so closely related to appellant Md. Zahid @ Raju who could have confessed his guilt reposing confidence in them. The theory of last seen of appellant Md. Ekhlak along with deceased Nashim Akhtar @ Munna does not lead to the conclusion that he had assaulted resulting death of Nashim Akhtar @ Munna. No doubt he went to see night show along with Nashim Akhtar @ Munna, but thereafter, there is no evidence as to whether this appellant assaulted his friend Nashim Akhtar @ Munna resulting his death. The only circumstance against him is that after the alleged occurrence, he went his home without informing the mohall a people or family members of the deceased or the police. This is quite possible that it was night time and he was also very much scared of the alleged occurrence which he saw and fled away. The only circumstance against him is that after the alleged occurrence, he went his home without informing the mohall a people or family members of the deceased or the police. This is quite possible that it was night time and he was also very much scared of the alleged occurrence which he saw and fled away. However, he informed his brothers Ajij and Obaidullah (not examined), who went to the house of the deceased and informed PW.6 Salauddin Ahmed. Thereafter, Ejaj (not examined), PW.6 Salauddin and other witnesses went to the P/O and saw the dead body of Nashim Akhtar @ Munna. At that very place, appellant-informant Md. Ekhlak was also present whose fardbeyan was recorded by S.1. Satyadeo Singh (PW.11). This shows that appellant Md. Ekhlak had not concealed himself after the alleged occurrence when the mohalla people and the police had been at the P.O. 14. In this present case, gate-keeper Bahadur of Anjuman Hospital has not been examined who is alleged to have opened the gate, flashed torchlight and in that light, PW.8 Hasina Khatoon, attendant of the hospital, PW.5 Matiur Rehman claimed to have seen bloodstains on the shirt & hands of appellant Md. Ekhlak. It was night at about 11.00 p.m. PW. 8 Hasina Khatoon was not knowing and identifying Md. Ekhlak from before. It is not possible that at night from a far distance, both these witnesses PW.5 Matiur and PW.8 Hasina Khatoon could have seen bloodstains on the shirt & hands of Md. Ekhlak in the flash light of torch. Even if it is assumed that they saw bloodstains on the shirt and hands of Md. Ekhlak, then what prevented them to inform the I.O. (PW.11) or another second I.O. (PW.12) Syed Md. Jahangir to disclose these facts to them as they were in search of accused who were not known to them by that time. This also creates suspicion in their evidence which seems to be a development as a result of after thought & concoction. Hence their evidence is not reliable. PW.11 and PW.12 i.e. both the I.Os. have deposed that in course of investigation none of the witnesses has deposed anything against appellant Ekhlak to implicate him in causing murder of Nashim Akhtar @ Munna. Thus, I find that both these appellants cannot be held responsible for the murder of Nashim Akhtar @ Munna. Hence their evidence is not reliable. PW.11 and PW.12 i.e. both the I.Os. have deposed that in course of investigation none of the witnesses has deposed anything against appellant Ekhlak to implicate him in causing murder of Nashim Akhtar @ Munna. Thus, I find that both these appellants cannot be held responsible for the murder of Nashim Akhtar @ Munna. The extra judicial confession made by appellant Zahid @ Munna (in Cr. Appeal No. 207 of 1996) would have been admissible only against him, had it been corroborated by independent reliable and trustworthy witnesses soon thereafter when he made extra judicial confession before the witnesses. In that case also, the extra judicial confession made by appellant Md. Zahid @ Raju would not have been admissible against appellant Md. Ekhlak (in Cr. Appeal No. 139 of 1996). As I have considered that extra judicial confession is not reliable which is very weak type of evidence and remained uncorroborated. Besides that evidence, there is nothing against appellant Md. Zahid @ Raju to rope him for the alleged murder of Nashim Akhtar @ Munna. Similarly, the circumstantial evidence against Md. Ekhlak in Cr. Appeal No. 139 of 1996 could not be corroborated by connecting the chain leading towards the only conclusion that he was the person who was last seen and committed the murder of Nashim Akhtar @ Munna. 15. In the result, I find that the prosecution case suffers from infirmity. The statements of the witnesses were also recorded under section 161 Cr. PC in course of investigation after much delay by three I.Os. PW.6 Salauddin Ahmed, who is brother of the deceased, did not see any blood at the spot where the dead body of Nashim Akhtar @ Munna was found. On the other hand, I.O. PW.11 Satyadeo Singh found bloodstained soil, but he did not seize. It also creates doubt in the manner of the investigation done by this PW. 11. Thus, the benefit of doubt must go to the appellants. 16. In the result, I find merit in these appeals and accordingly, both the Criminal Appeals are allowed. Both the appellants-accused are acquitted and the order of conviction & sentence passed by the learned Court below in Sessions Trial No. 582 of 1994 (G.R.No.1075 of 1993) is set aside. 11. Thus, the benefit of doubt must go to the appellants. 16. In the result, I find merit in these appeals and accordingly, both the Criminal Appeals are allowed. Both the appellants-accused are acquitted and the order of conviction & sentence passed by the learned Court below in Sessions Trial No. 582 of 1994 (G.R.No.1075 of 1993) is set aside. As both the appellants are in custody, hence it is ordered to release them forthwith from the custody if not wanted in any other case. Vishundeo Narayan, J.-I agree.