JUDGMENT 1. The appellant Jhuntha Ram and one Smt. Shyalu @ Shyaldi were indicted in Sessions Case No. 132/98 before the learned Sessions Judge, Jhunjhunu for having committed murder of Smt. Santosh. Learned trial judge vide judgment dated August 24, 1999 convicted the appellant for offences under Sections 302 and 498-A IPC and sentenced as under:- U/s. 302 IPC to suffer imprisonment for life and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo simple imprisonment for three months. U/s. 498-A IPC to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500/-. In default of payment of fine to further undergo simple imprisonment for one month. The substantive sentences were ordered to run concurrently. Smt. Shalu Shyaldi was, however, acquitted. 2. Briefly stated the facts giving rise to the instant appeal are that Gopi Ram, elder brother of the appellant submitted a written report on June 28, 1998 at 1.15 F.M. with the Station House Officer, Police Station Maisisar, District Jhunjhunu stating therein that he and his brother Jhuntha Ram had gone to take part in a feast hosted in a village on the occasion of some marriage there he received the message that Smt. Santosh Devi wife of his brother Jhuntha Ram suddenly died. A prayer was made in the report to conduct the inquiry. The Station House Officer, Police Station Malsisar initiated proceedings under Section 174 Cr.PC. and forwarded the report to the Sub-Divisional Magistrate, Jhunjhunu. 3. On June 28, 1998 itself, Mohan Lal PW 1 also handed 0ye; a written report to the In-charge Police Station Maisisar at 9.30 PM. with the averments that his sister Santosh used to be harassed and humiliated by the appellant in connection with dowry. The appellant had also illicit relationship with his Bhabhi Snyaldi On June 28. 1998 Sarnosh was killed by the appellant, Shyaldi and Gopi. On the basis of the said report a case under Sections 304-B and 498-A IPC was registered and investigation commenced. On completion of the investigation. charge sheet was piled. in due course, the case came up before the learned Sessions Judge. Jhuejhunu for trial. Charges under Sections 120-B, 302 in the alternative 498-A, 306 in the to alternative 304-6 were framed. The appellant denied the charges and claimed trial. The prosecution in support of its case, examined' as many as 21 witnesses. charge sheet was piled. in due course, the case came up before the learned Sessions Judge. Jhuejhunu for trial. Charges under Sections 120-B, 302 in the alternative 498-A, 306 in the to alternative 304-6 were framed. The appellant denied the charges and claimed trial. The prosecution in support of its case, examined' as many as 21 witnesses. In his explanation under Section 313 Cr.PC. the appellant claimed innocence and steed that he was falsely implicated in the case. No defence witness was, however. examined. The learned trial court on hearing final submissions convicted and sentenced the appellant as indicated above. 4. We have heard the rival submissions and scanned the record. 5. Mrs. Madhuri Singh, learned Amicus Curiae pointed out the following infirmities of the prosecution case:- (i) Co-accused Shyalu @ Shyaldi in her explanation under Section 20, 313 Cr.PC. categorically denied to have any relationship with the appellant. She stated that she was mother of six children and her eldest daughter was of 15 years of age; (ii) As the appellant performed 'Nate marriage' with Santosh, question of dowry as per their custom did not arise at all; (iii) The prosecution case at the trial is mainly based on extra judicial confession allegedly made by appellant but in the FIR Mohan Lal did not state that extra judicial confession was ever made by the appellant; (iv) No witness from Itawa where the death of Santosh was occurred was examined by the prosecution; and (v) All the witnesses who had deposed against the appellant were related to Mohan Lal and there are material contradictions in their testimony 6. We shall now delve deep into the facts and circumstances of the case in order to adjudge the tenability of the submissions advanced before us. Undoubtedly, there is no eye-witness of the occurrence and the case of prosecution is mainly based on circumstantial evidence. Although the learned trial judge did not incorporate the circumstances independently but from scanning the judgment, we find the following circumstances appearing against the appellant:- (1) Allegation of illicit relationship of appellant with his elder brother's wife Shalu @ Shyaldi; (2) Demand of dowry and non fulfilment of the demand and allegation of harassment against the appellant, 45 (3) Extra judicial confession allegedly made by the appellant; (4) Homicidal death of Smt. Santosh. 7. 7. Coming to the first and second circumstances, we find that Mahaveer PW 4, Bhagawanaram PW 5. Prahlad PW 6, Manphool PW 7, Brijlal PW 9. Pramod PW 11 and Tejaram PW 12. Who resided in a so different village deposed against the appellant. Their testimony is based on heresay. Nobody from village Itawa where the appellant was residing with the deceased, was examined to establish the fact of Illicit relationship between the appellant and Shyaldi. In her explanation under Section 313 Shyaldi denied having any illicit relationship with the appellant. She stated that she was mother of six children and her eldest daughter was 5 years of age. We also find from record that deceased Santosh was earlier married at village Jaisinghsar and appellant took 'Nata' with her. in these circumstances it is difficult to believe the here say evidence of the relatives of the deceased. 'Nata' is a customary marriage where the second husband is required to pay 'money' to the first husband in consideration of 10 marriage with his wife. Thus question of demand of dowry by the appellant does not arise at ail. Even learned trial judge acquitted the appellant of the charge under Section 304-B IPC. It can therefore, safely be held that harassment of the deceased by the appellant is not established beyond reasonable doubt. 8. In sofar as the circumstance of extra judicial confession is concerned, we find material contradictions in the statements of prosecution witnesses. Mohan L31 PW 1 deposed at the trial as under:- " geus dgk fd lgh ckr crkvks ojuk ge fjiksZV djsaxs rks >wWaFkk jke us dgk fd xyrh gks xbZ fQj Hkh geus Fkkus esa tkdj fjiksZV dj nhA " But the fact regarding confession of the appellant is missing from the written report Ex .P. 1. Mohan L31 PW 1 deposed at the trial as under:- " geus dgk fd lgh ckr crkvks ojuk ge fjiksZV djsaxs rks >wWaFkk jke us dgk fd xyrh gks xbZ fQj Hkh geus Fkkus esa tkdj fjiksZV dj nhA " But the fact regarding confession of the appellant is missing from the written report Ex .P. 1. PW 2 Chuna Ram deposed as under:- " xkao ds vkneh bdVBs fd;s rks >wWaFkk jke us dgk fd eSaus ekjk gSA " PW 3 Jagmal stated thus:- " ogkWa ij >wWaFkkjke us dgk fd esus gkFk ls ;g dke gks x;kA " PW 4 Mahaveer deposed that " " >wWaFkk jke us dgk fd esjss gkFk ls dke gks x;k] dqN Hkh dgks vkSj eq>s ekQh nksA " PW 5 Bhagwana Ram stated as under:- " >wWaFkkjke us iwNk rks mlus dgk fd ;s vius vki ej xbZ fQj dgk fd ;s dke eSus fd;k gS] ekQ djksA " PW 6 Prahlad stated thus:- " >wWaFkkjke ls iwNrkN dh Fkh tks mlus dgk fd eq>s irk ugha dSls ejhA larks"k ds ekrk firk us dgk fd ge iqfyl yk;saxsA fQj >wWaFkk jke us gkWa Hkj yh Fkh fd esjs ls xyrh gks xbZA " PW 7 Manphool stated as under:- " >wWaFkkjke ls iwNrkN dh rks mlus gkWa Hkj yh Fkh ml le; bVkok xkWao iwjk [kM+k FkkA larks"k dks >wWaFkkjke] lkyMh o xksih rhuksa us feydj jkr dks ekjk gS ;g ckr gedks >wWaFkkjke ds dkdk dslw us crk;kA " PW 9 Brij Lal stated that " " fQj xkao ds yksxksa us e`rd larks"k ds ifr >wWaFkkjke dks cwyk;k vkSj iwNk rks mlus dgk fd larks"k dh gR;k eSaus dj nhA " In the cross examination, this witness has stated:- " e`rdk larks"k ds ifr us bVkok xkao ds yksxksa ds lkeus larks"k dh gR;k djus dh ckr dgha Fkh vkSj mUgksaus vkdj gedks crk;k FkkA eSaus >wWaFkk jke }kjk gka djrs ugha lquk " PW 10 Bahadurma stated that " " larks"k ds ifr ls iwNk fd larks"k ejh ugha gS bls ekjk x;k gS rks ,d ckj rks mlus badkj fd;k fQj xkao ds vkneh Hkh vk x;s rks gekjs lkeus o xkao okyksa ds lkeus dgk fd esus ls xyrh gks xbZA >wWaFkkjke us dgk fd esjs ls xyrh gks xbZ] eSaus larks"k dks ekj fn;kA " PW 11 Pramod stated that " " xkao okyksa ds iwNus ij >wWaFkkjke us dgk fd larks"k esjs gkFk ls ej xbZ ;s ckr gekjs lSdM+ksa yksxksa ds chp esa dgh FkhA " PW 12 Tejaram stated that " " >wWaFkk jke ls iwNk fd larks"k dSls ejh rks mlus dgk fd viuh ekSr ejh rks geus dgk lPph crkvks ojuk ge fjiksVZ djsaxs rc >wWaFkk jke us dgk fd eSaus o esjh HkkHkh lkyMh us ;s dke dj fn;kA " 9. It has been a settled principle of law that an order of conviction can to be based on an extra judicial confession if the evidence of the witnesses in this regard is found to be true, trustworthy and above reproach. In the case on hand the alleged extra judicial confession is not free from infirmity. No one from village Itawa was examined to establish that the appellant had made confession of the guilt. The prosecution is also not able to explain as to why the informant Mohan Lal (PW 1) did not incorporate this fact in the written report. The witnesses who deposed against the appellant were related to the deceased and resided in a different village. Looking to the material inconsistencies in their statements we find them unreliable. 10. From the statement of Dr. Jitendra Singh (PW 18) the death of Santosh was although homicidal but the appellant can not be held guilty of the charge under Sections 302 and 498-A IPC. The evidence collected by the prosecution is not qualitatively such that on every reasonable hypothesis the conclusion can be drawn that the appellant is guilty. Chain of circumstances in the instant case is not complete. There are missing links in the circumstantial evidence. The prosecution has not been able to establish the circumstances justifying conclusion that the offence was committed by the appellant. 11. In view what we have discussed hereinabove, we allow the appeal. Set aside the impugned lodgment of the learned trial judge and acquit the appellant of the charges under Sections 302 and 498-A of the Indian Penal Code. The appellant is in jail, he shall be set at liberty forthwith if not required in any other case.Jail Appeal Allowed - Conviction Set Aside. *******