U. S. TRIPATHI, J. This appeal has been directed against the judgment and order dated 14-5-1981, passed by V Addl. Sessions Judge, Bareilly in Sessions Trial No. 447 of 1980, convicting the appellant Mindhai Lal, Nand Ram and Chokhey Lal under Section 302 read with Section 34 IPC and sentencing each of them to imprisonment for life. 2. The prosecution story, briefly stated, was that Bhawani Prasad father of Mool Chand deceased, had three brothers, himself, Hori Lal and Narain Lal, Lala Ram (P. W. 1), Khayali (P. W. 3) and Sewa Ram (P. W. 2) are grand-sons of Hori Lal. Mindhai Lal appellant is grand-son of Narain Lal. Chokhe Lal appellant is uncle of Mindhai Lal, while Nand Ram appellant is cousin brother of Mindhai Lal. Mool Chand deceased aged about 50 years was unmarried and issueless. He owned about 60-70 bighas of agricultural land. He was living with Lala Ram (P. W. 1 ). 3. On the night of 19/20-1-1980, Mool Chand, deceased was sleeping in verandah of Lala Ram (P. W. 1), which was open. Lala Ram (PW 1) had gone to his relation at village Pachpeda. In the night up to 3 a. m. Sewa Ram (P. W. 2) provided Chilam to the deceased and thereafter went to sleep. In the morning when Sewa Ram (P. W. 2) went to the deceased he was dead. Sewa Ram (P. W. 2) went to call Lala Ram (P. W. 1 ). He returned to his house at about 12. 00 noon and saw Mool Chand deceased lying dead in the Varandah of his Chaupal. There were injury marks on his neck. He came to police station Hafiz Ganj and informed the police about the death of the deceased. The information given by Lala Ram (P. W. 1) was endorsed at GD report Ext. Ka-1 at 5. 30 p. m. by Head Constable Mahesh Chandra Sharma. On getting the above information Shri Bishram Singh Katheria Sub-Inspector (P. W. 6) came to the spot in the night. Due to paucity of light no action was taken in the night and on the morning of 21-1-1980 Sri Bishram Singh Katheria (P. W. 6) conducted inquest of the dead body of Mool Chand deceased and prepared inquest report and other relevant papers. He sealed the dead body and sent it for post-mortem. 4. Due to paucity of light no action was taken in the night and on the morning of 21-1-1980 Sri Bishram Singh Katheria (P. W. 6) conducted inquest of the dead body of Mool Chand deceased and prepared inquest report and other relevant papers. He sealed the dead body and sent it for post-mortem. 4. The autopsy on the dead body of Mool Chand deceased was conducted on 22-1-80 by Dr. P. K. Boss (P. W. 7), who found a contused abrasion all around neck more in front and back 31 cm x 4 cm. Blood under sub cutaneous tissues of the abrasion as ante- mortem injury and cause of death as asphyxia due to strangulation. He prepared post-mortem report Ext. Ka-8. 5. On getting post-mortem report the case was altered under Section 302 IPC, vide GD report Ext. Ka-2, dated 23-1-1980. 6. The investigation of the case was taken up by Sri Veer Pal Singh (P. W. 5), who interrogated Lala Ram (P. W. 1), Sewa Ram (P. W. 2) and Khayali Ram (P. W. 3) and others. During investigation the name of the appellants came into light. The appellants were absconding. Process under Section 82/83 Cr. P. C. were executed against them and on completion of investigation a charge-sheet was submitted against them. 7. Cognizance of the case was taken by the Magistrate who committed the case to the Court of Sessions. 8. All the appellants were charged with the offence punishable under Section 302 read with Section 34 IPC. They pleaded not guilty and contended that they were falsely implicated on account of enmity. 9. The prosecution in support of its case examined Lala Ram (P. W. 1), Sewa Ram (P. W. 2), Khayali (P. W. 3), M. C. Sharma (P. W. 4), B. P. Singh (P. W. 5), Bishram Katheria (P. W. 6) and Dr. P. K. Boss (P. W. 7 ). 10. Learned Sessions Judge on considering evidence of the prosecution held that the circumstantial evidence adduced by the prosecution clearly linked the accused with the commission of crime. With these findings he convicted the appellants under Section 302 read with Section 34 IPC and sentenced each of them to undergo imprisonment for life. 11. Aggrieved with their above conviction and sentence the appellants have come up in this appeal. 12. With these findings he convicted the appellants under Section 302 read with Section 34 IPC and sentenced each of them to undergo imprisonment for life. 11. Aggrieved with their above conviction and sentence the appellants have come up in this appeal. 12. We have heard Shri P. N. Misra, learned Senior Advocate on behalf of the appellants, learned AGA for the respondent and have perused the evidence on record. 13. In this case there is no direct evidence. The prosecution had relied on circumstantial evidence. It is settled law that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person (see Hukum Singh v. State of Rajasthan, AIR 1977 SC 1063 ; Eradu v. State of Hyderabad, AIR 1956 SC 316 ; Earabhadrappa v. State of Karnataka, AIR 1963 SC 446; State of U. P. v. Sukhbasi, AIR 1985 SC 1224 ; Balwinder Singh v. State of Punjab, AIR 1987 SC 350 ; Ashok Kumar Chatterjee v. State of M. P. , AIR 1989 SC 1890 ). In Bhagat Ram v. State of Punjab, AIR 1954 SC 621 , it was laid down that where the case depends on the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. 14. Further the Apex Court in the case of C. Chenga Reddy v. State of A. P. , 1997 JIC 158 (SC) : (1996) 10 SCC 193 , observed as below: "in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. " 15. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. " 15. In Padala Veera Reddy v. State of A. P. , AIR 1990 SC 79 , it was laid down that when case rests upon circumstantial evidence, such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. " 16. In State of U. P. v. Ashok Kumar Srivastava, 1992 JIC 287 (SC) : (1992) 2 SCC 86 , the Apex Court pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 17. In this case the prosecution has relied on the following circumstances : (i) On the night of occurrence the deceased was sleeping in the varandah of Lala Ram P. W. 1. Sewa Ram P. W. 2 had provided Chilam to him at 3. 00 a. m. in the night and the appellants were seen going towards Gonda of Lala Ram in the night of occurrence at about 4. 00 a. m. by Khayali Ram (P. W. 3 ). (ii) The appellants made extra judicial confession before Sewa Ram (P. W. 2 ). 18. 00 a. m. in the night and the appellants were seen going towards Gonda of Lala Ram in the night of occurrence at about 4. 00 a. m. by Khayali Ram (P. W. 3 ). (ii) The appellants made extra judicial confession before Sewa Ram (P. W. 2 ). 18. It is, therefore, to be considered whether the above circumstances are sufficient to lead the only inference to the hypothesis of the guilt of the appellants. 19. The motive is a material circumstances in the case based on circumstantial evidence. In this case the prosecution has not alleged any motive. Contrary to it the circumstances of the case reveal that Mool Chand, deceased was issueless and was having no wife. He was living with Lala Ram (P. W. 1 ). Sewa Ram (P. W. 2) and Khayali Ram (P. W. 3) are cousin brothers of Lala Ram (P. W. 1), who was nephew of Mool Chand deceased. It is also clear from the evidence of Lala Ram (P. W. 1) that the deceased had allegedly executed a will deed in his favour prior to 10-12 days of his death. Appellant Mindhai Lal and Nand Ram are another nephews of Mool Chand deceased. The appellants could only get the properties of Mool Chand deceased in case he would have died intestate. In case Mool Chand deceased had executed any will, the death of Mool Chand would have been beneficial to Lala Ram (P. W. 1) and not to Mindhai Lal and other appellants. Thus there is absence of motive and it was Lala Ram (P. W. 1) who was beneficiary of the death of Mool Chand. 20. On the first circumstance there is sole evidence of Khayali Ram (P. W. 3 ). He stated that in the intervening night of Saturday and Sunday he was sleeping at his Kolhoo (cane crushing machine ). At about 4. 00 a. m. he awoke to urinate and saw the appellants going towards "gonda" of Lala Ram. He asked them as to where they were going. The appellants told that they had some work and went in the Gonda of Lala Ram, where Mool Chand deceased was sleeping. After urinating he went to his house. Lala Ram did not meet him at his house. On the morning of Sunday he saw that several persons of the village had assembled and Mool Chand was lying dead. The appellants told that they had some work and went in the Gonda of Lala Ram, where Mool Chand deceased was sleeping. After urinating he went to his house. Lala Ram did not meet him at his house. On the morning of Sunday he saw that several persons of the village had assembled and Mool Chand was lying dead. On the evening of said day he went to his relative at village Nakata. In his cross-examination he stated that on the morning of occurrence he had seen Chokhey Lal Chaukidar, but he did not tell him what he had seen in the night. Lala Ram did not meet him on the said day. He further stated that Lala Ram met him after sun rise, but he did not tell him what he had seen in the night. 21. Khayali (P. W. 3) is none else but cousin brother of Lala Ram (P. W. 1 ). If the witness had seen the appellants going towards Gonda of Lala Ram, where the deceased was sleeping in the night of occurrence, he must have told this act to the persons of his family and Lala Ram who was his cousin brother and the deceased was residing with him. But the witness kept silence. This conduct of the witness was highly improbable. Lala Ram had also not told this fact to police when he gave information regarding death of deceased. The absence of this fact in the first information given by Lala Ram leads to inference that the theory of alleged last seen was developed subsequently and Khayali Ram (P. W. 3), the cousin brother of Lala Ram was prepared to become witness of this fact. Therefore, the above evidence of Khayali Ram is not worthy of credence. 22. On the next circumstance i. e. the extra judicial confession by the appellants there is evidence of Sewa Ram (P. W. 2 ). He stated that on Wednesday all the three appellants came to him and confessed that they had killed Mool Chand. That he had influence on the police and therefore, he might save them. In his cross-examination he stated that the above take with appellants took place while he was going to village Nakari Narain Puri. That the appellants asked him as to where he was going. That he had influence on the police and therefore, he might save them. In his cross-examination he stated that the above take with appellants took place while he was going to village Nakari Narain Puri. That the appellants asked him as to where he was going. He told that he was going to Nakari Narain Puri and then they started saying about the occurrence. He was not remembering the actual words used by the appellants. He did not say any thing to appellants and went to village Nakari Narain Puri. He told the talk between him and the appellants to Lala Ram and to none else. 23. This witness is none else but another cousin brother of Lala Ram (P. W. 1) and is also interested witness. The appellants were aware of his relationship with Lala Ram and the deceased. The witness was not any influential person who could help them in saving them. Thus there was no occasion for the appellants to make extra judicial confession before Sewa Ram (P. W. 2) as held by Apex Court in the case of Surendra Kumar v. State of Punjab, 1999 (1) JIC 86 (SC) : 1999 SCC (Cri) 33, that it is significant to note that the appellant had no particular relationship or connection with the person to whom they made extra judicial confession so as to confide in him and take assistance for surrendering before the police. It appears that this witness was also subsequently prepared by Lala Ram (P. W. 1) to give evidence against the appellants. 24. It is also clear from the evidence of Sewa Ram that he did not remember the actual words used by the appellants. He admitted that he was not remembering the actual words used by the appellants. It is also clear from his evidence that all the three appellants made extra judicial confession jointly. As held by Apex Court in the case of Heramba Brahma and another v. State of Assam, AIR 1982 SC 1595 , this extra judicial confession is vague and ambiguous because it is not clear whether each one spoke separately and what were the words used by each of the accused. Witness speaks of an extra judicial confession by three accused persons having simultaneously made. It is dangerous to rely upon such extra judicial confession even if the witnesss credentials are not in question. Witness speaks of an extra judicial confession by three accused persons having simultaneously made. It is dangerous to rely upon such extra judicial confession even if the witnesss credentials are not in question. The question that agitates our mind is what language was used by each accused, in what words confession was made and whether each used the same language? Evidence of the witness does not reproduce the words used by each accused. It is the witnesss ipse dixit that is being deposed to. 25. In this way the extra judicial confession is liable to be rejected. 26. Thus the above circumstantial evidence relied on by the prosecution is not reliable. Moreover, the above two circumstantial evidence do not complete the chain so complete that within all human probabilities the crime was committed by the appellants and none else and the facts and circumstances of the case further leads to infer that it was Lala Ram (P. W. 1) who was to be benefited by the death of Mool Chand deceased as he had obtained will deed from him and appellants Mindhai Lal and others and wer losers as they could not get their share in the properties of Mool Chand only by inheritance. 27. In view of our above discussions and observations, we find that the prosecution has utterly failed to establish guilt of the appellants and they were wrongly convicted and sentenced. 28. The appeal is accordingly allowed. Conviction and sentence of appellants recorded by the trial Court are set aside. The appellants are acquitted of the offence to which they were charged and tried. They are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender. Appeal allowed. .