`Honble K.C. SHARMA, J.–This criminal appeal under Section 374 Cr.P.C. arises out of the judgment and order dated 3.8.99 passed by the learned Additional Sessions Judge, Dausa, whereby he convicted the accused appellants under Sections 302/34 and 201 IPC and sentenced each of them to undergo imprisonment for life with a fine of Rs. 5000/- each, in default thereof, each to further undergo rigorous imprisonment for six months on the first count, and to undergo rigorous imprisonment for 3 years with a fine of Rs. 2000/-, in default thereof, each to further undergo six months rigorous imprisonment on the second count. (2). As per the prosecution case, PW5 complainant Munshi Singh, Sarpanch of Gram Panchayat, Bapi lodged a written report, Ex.P.6 on 21.5.97 at Police Station Shainthal to the effect that yesterday at about 11 AM, Mst. Rambeti W/O Patwari Banjara came to him and informed that her husband was missing since last saturday. She informed that appellant Harbansh Banjara had taken away her husband. On enquiry, having found seriousness of the matter, called Indraraj, younger brother of Patwari, who on enquiry admitted in the presence of villagers that he has murdered Patwari by striking stones. He further disclosed that he sacked the dead body in a bag and threw it into the well of Sangi Meena. The complainant has disclosed the names of some of the villagers in the report, before whom accused Indraraj confessed. (3). On the above report, police registered a case under Sections 302 and 201 IPC vide FIR, Ex.P.7 and proceeded with the investigation. In the course of investigation, the police party under the leadership of PW17 Narain Singh Ratnu, Station House Officer proceeded to the well of Sangi Meena and took out the dead body of deceased Patwari from the said well and prepared the site plan, Ex.P10 and Ex.P3 and the inquest report, Ex.P.1. The cloths of the deceased were seized vide memo Ex.P.3. The blood stained soil and controlled soil was seized vide memos Ex.P.8 and P9, respectively. The police then got conducted autopsy on the dead body and collected post mortem report, Ex.P.24. The police arrested accused Indraraj and Harbansh vide memos Ex.P.27 and 28, respectively. Accused Indraraj furnished information Ex.P.29 as regards the place where he committed murder and the information Ex.P.30 as regards recovery of knife (Chhuri). The police then got conducted autopsy on the dead body and collected post mortem report, Ex.P.24. The police arrested accused Indraraj and Harbansh vide memos Ex.P.27 and 28, respectively. Accused Indraraj furnished information Ex.P.29 as regards the place where he committed murder and the information Ex.P.30 as regards recovery of knife (Chhuri). Likewise, accused Harbansh furnished information Ex.P.31 as regards recovery of stone which he used in commission of offence. Pursuant to the information Ex.P.30 of accused Indraraj, police recovered a knife (Chhuri) wide memo Ex.P4 and prepared site plan, Ex.P.5 of the place of recovery. Pursuant to the information Ex.P.31, the police recovered pieces of stones vide memo Ex.P.23. (4). After completion of usual investigation, the police submitted a charge sheet against the accused appellants in the court of Judicial Magistrate, Dausa. The learned Magistrate having found the offence exclusively triable by the court of Sessions, committed the case to the court of Sessions Judge, Dausa. The case came to be tried by the learned Additional Sessions Judge, Dausa. (5). The learned trial court on the basis evidence and material collected during investigation and placed before it and after hearing counsel for the parties, framed charges against the accused appellants under Sections 302. 302/34 and 201 IPC. The accused denied the charges and claimed trial. (6). In the course of trial, the prosecution examined as many as 20 witnesses and got exhibited number of documents. Thereafter, the accused were examined under Section 313 Cr.P.C. The accused did not adduce any ocular evidence, but got exhibited statements of 3 witnesses recorded u/s 161 Cr.P.C. (7). At the conclusion of trial, the learned trial court found the charges duly established against the accused appellant and according convicted and sentenced them in the manner indicated hereinabove. Hence this appeal against the conviction and sentence. (8). We have heard learned counsel for the accused appellants and the learned Public Prosecutor and have gone through the impugned judgment and the evidence and material on record. (9). The prosecution case solely hinges on circumstantial evidence as there is no eye witness of the incident. The circumstances put forward by the prosecution and relied upon by the learned trial court so as to base connection of the accused appellants may be stated below: 1. Accused appellants having been last seen in the company of deceased, and 2. Extra judicial confession of the accused appellant. (10). The circumstances put forward by the prosecution and relied upon by the learned trial court so as to base connection of the accused appellants may be stated below: 1. Accused appellants having been last seen in the company of deceased, and 2. Extra judicial confession of the accused appellant. (10). Therefore, we have to examine the evidence adduced on behalf of the prosecution in order to prove the above two circumstances. (11). As regards the first circumstances viz., the accused were last seen in the company of deceased, the prosecution has examined PW6 Rambeti W/O deceased Patwari, PW16 Ramdayal and PW 20 Bachhu. The prosecution has not examined Om Prakash who, as per the prosecution case, was with Ramdayal, Bachhu, deceased Patwari and accused Harbansh at the relevant time. PW 16 Ram Dayal has not supported the prosecution case. Therefore, we are left to reappreciate the evidence of two witnesses of last seen, namely PW6 Rambeti and PW20 Bachhu. (12). PW6 Mst. Rambeti has deposed that about a year earlier, accused Harbansh came to her house and asked her husband to accompany him to village Chordi for purchase of a goat. Her husband declined to accompany Harbansh. Ultimately, her husband accompanied Harbansh to village Chordi. According to this witness, 5-6 persons were also there alongwith Harbansh. On the next day when she went to the house of Harbansh and enquired about her husband, Harbansh replied that Patwari had stayed in village Chordi. On being enquired again, the accused showed his unawareness and while abusing her, made her to run away. Thereafter she visited the house of Sarpanch and made him aware of the situation. Munshi Singh, Sarpanch then collected the villagers. In the meantime, accused Indraj came there. She further stated that she was present at her house at the time when Indraj came. Indraj disclosed that he striked the head of Patwari with stones and cut the neck by knife. Thereafter he put the body in a bag and also filled stones and then threw it in the well of Sangi Meena. In cross examination, the witness has stated that she got a report written by the Sarpanch and had submitted the same at Police Station Sainthal on the next day when her husband did not turn up. She had also visited village Chordi and had enquired from Hari Narain and Kishore. In cross examination, the witness has stated that she got a report written by the Sarpanch and had submitted the same at Police Station Sainthal on the next day when her husband did not turn up. She had also visited village Chordi and had enquired from Hari Narain and Kishore. According to this witness, accused Harbansh was also present at the time when accused Indraj made confession in the presence of villagers. She stated that a case concerning some land was pending in the court between her husband and accused Indraj. (13). PW20 Bachhu Singh cousin of PW6 Mst. Rambeti has deposed that he, deceased Patwari, accused Harbansh, brother in law of accused Harbansh and Om Prakash consumed liquor. Accused Harbansh asked him and deceased Patwari to get purchased a goat. The witness stated that Patwari started abusing Meena and Koli. Thereupon he requested Patwari not to abuse them as they were relatives, otherwise it would be insulting. The witness then asked Patwari to go home as they were heavily drunken. Thereafter they proceeded to their house. On way, Patwari asked for wine, but the witness replied that he had no money. Then accused Harbansh took out a bottle and gave it to Patwari and Patwari consumed the same. All of them reached near Nallah. The brother- in-law of Harbansh and Om Prakash left the place and he alongwith accused Harbansh and Patwari stayed there. Deceased Patwari vomitted there and became unconscious. According to this witness, accused Harbansh asked him to stay with Patwari and left the place to bring some persons. Harbansh returned after about an hour and asked the witness whether some body came or not. On being replied by the witness that none came there, accused Harbansh again left the place. In the mean time accused Indraj came there from the side of village Chordi and on being asked as to why Saligram was staying there, the witness replied that he and his brother-in-law have consumed the liquor and will left the place after the effect of intoxication is over. Thereupon, Indraj asked the witness to accompany him by saying that he will come back with his sister and will take away Patwari. The witness then left Patwari and accompanied Indraj. According to this witness, he does not know as to what happened thereafter and after five days he heard about the murder of Patwari. (14). Thereupon, Indraj asked the witness to accompany him by saying that he will come back with his sister and will take away Patwari. The witness then left Patwari and accompanied Indraj. According to this witness, he does not know as to what happened thereafter and after five days he heard about the murder of Patwari. (14). From the evidence discussed above, it appears that when accused Harbansh and Bachhu, Om Prakash and Ram Dayal were on way, Harbansh called Patwari from his house and Patwari accompanied them. Thereafter all of them consumed liquor at liquor shop. From there, all these persons reached near revine (Nallah). Ram Dayal and Om Prakash left the place. It appears that due to intoxication deceased Patwari became unconscious after vomiting. Accused Harbansh leaving behind Bachhu and Patwari went to the village to call some persons from the village. Thereafter, Indraj came and asked Bachhu as to why he stayed there. On being assured by accused Indraj that he would carry Patwari afterwards, he left the place with him leaving behind Patwari alone. We do not find any evidence to the effect that accused Harbansh or Indraj again came at that place. Therefore, it cannot be concluded that accused appellants were last seen in the company of deceased Patwari. (15). Now we come to the second circumstance of extra judicial confession. In the case at hand, admittedly there is no direct evidence available on record to connect the accused appellants with the commission of crime. The learned trial court arrived at a conclusion of guilt only on the basis two circumstances i.e. the accused last seen in the company of deceased and secondly the extra judicial confession before the Panchayat. While dealing with the evidentiary value of extra judicial confession, the Honble Supreme Court in State of Punjab vs. Gurdeep Singh (1), observed as hereunder: ``Confession in common acceptation means and implies acknowledgment of guilt - its evidentiary value and its acceptability however shall have to be assessed by the court having due regard to the credibility of the witnesses. While dealing with the evidentiary value of extra judicial confession, the Honble Supreme Court in State of Punjab vs. Gurdeep Singh (1), observed as hereunder: ``Confession in common acceptation means and implies acknowledgment of guilt - its evidentiary value and its acceptability however shall have to be assessed by the court having due regard to the credibility of the witnesses. In the event however, the court is otherwise in a position having due regard to the attending circumstances to believe the witness before whom the confession is made and is otherwise satisfied that the confession is in fact voluntary and without there being any doubt in regard thereto, an order of conviction can be founded on such evidence. (16). There cannot be any doubt that conviction can be based on extra judicial confession, but it is well settled that in the very nature of things the extra judicial confession is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. Before a confession is relied on it must be clear and unequivocal, whether it is in a judicial or in an extra judicial confession. Reference may be made to a decision of the Apex Court Kishan Lal vs. State of Rajasthan (2). (17). To prove the extra judicial confession, the prosecution has examined PW5 Munshi Singh, PW6 Rambeti, PW7 Ram Chandra, PW9 Jairam Singh, PW18 Girbar Singh and PW19 Malkhan. PW9 Jai Ram Singh and PW19 Malkhan have not supported the prosecution case. It may be noted that prosecution has not examined Gopi who happened to be present at the time of alleged confession. PW5 Munshi Singh, Sarpanch of village Bapi has stated in his examination in chief that PW6 Rambeti wife of deceased informed him that her husband was missing for last 3 days. According to this witness, when he asked Indraj (younger brother of deceased) as to what happened, he disclosed that he has murdered Patwari. He made this statement in the presence of Jai Ram, Gopi, Ramchandra, Girwar and one-two more persons. The persons present there did not ask any thing beyond. Accused Indraj at his own disclosed the fact that he committed murder of Patwari. He made this statement in the presence of Jai Ram, Gopi, Ramchandra, Girwar and one-two more persons. The persons present there did not ask any thing beyond. Accused Indraj at his own disclosed the fact that he committed murder of Patwari. The witness stated that he was informed by Rambeti W/O deceased Patwari that Patwari had gone with Harbansh to village Chordi. He admitted to have lodged the report, Ex.P.6. On further enquiry as to how he committed murder of Patwari, accused Indraj explained that murdered Patwari by hitting stones and by inflicting knife injury on his neck. The witness further stated in his cross examination that at that time Harbansh was also present there, who, after lodging the report by him confessed his complicity in the commission of crime. The witness has admitted that he did not state in his report, Ex.P.6 regarding confession as to infliction of injury by knife on the neck of Patwari. The witness has deposed that accused Indraj also disclosed to them the reason as to why he inflicted injury on the neck of deceased. Accused Indraj explained that with a view to accommodate the dead body in a gunny bag, he beheaded it with knife. But the doctor who conducted autopsy has specified the neck injury to be ante- mortem. Further there was simply incised wound on the neck and the neck was not separated from body. Similarly the witness has admitted that in his police statement there is no mention of confession having been made by accused Harbansh. (18). We have already discussed the evidence of PW6 Rambeti W/O deceased. As regards confession, the witness has deposed that in his presence accused Indraj confessed that he inflicted injuries by stones on the head of Patwari and also by knife on his neck. In our view, this witness, no doubt, has shown the presence of accused Harbansh, but has not stated that Harbansh also confessed his guilt of murdering Patwari. (19). PW7 Ram Chandra has deposed in his examination in chief that accused Indraj confessed that he along with Harbansh murdered Patwari by hitting his head by stones. In cross examination, the witness has clarified that Indraj did not disclose that he inflicted injury by knife on the neck of deceased. (19). PW7 Ram Chandra has deposed in his examination in chief that accused Indraj confessed that he along with Harbansh murdered Patwari by hitting his head by stones. In cross examination, the witness has clarified that Indraj did not disclose that he inflicted injury by knife on the neck of deceased. This witness has no where shown the presence of Harbansh at the meeting and his alleged confession in the meeting as narrated by PW5 Munshi Singh. (20). PW18 Girbar Singh has deposed that in Panchayat both the accused appellants confessed their guilt of committing murder of Patwari. In cross examination, this witness has admitted that in police statement there is no mention of confession made by accused Harbansh. The witness has admitted that he did not state before the police that Indraj confessed that he hit the deceased with stones and murdered him. (21). On scanning the evidence of above witnesses as regards extra judicial confession, it becomes crystal clear that their statements are of full of contradictions on the material aspects viz., what the accused appellants confessed and whether both the accused confessed or only accused Indraj confessed. Therefore the testimony of the witnesses whose evidence has been discussed above does not inspire confidence and hence in such state of affairs we find it much difficult to base conviction on such inconsistent statements. Inconsistent testimony of the witnesses as to the substance of confessional statement made by the accused renders the extra judicial confession unreliable. (22). In the light of what has been observed above, the question which now emerges is as to for what good reasons accused Indraj or Harbansh confessed before the Panchayat? From the evidence on record, it is evident that Panchayat was simply enquiring the where-abouts of missing Patwari. As such there was no reason for the accused to have made confession before the Panchayat nor there seems to be any occasion for such confession. Generally, an accused would prefer to make confession before a person whom he reposes confidence, believing that the person before whom he is confessing would certainly save him or protect him. (23). The prosecution case seems to be that accused Harbansh hit stones on the head of deceased and Indraj inflicted knife injury on the neck of Patwari. The Investigating Officer, on their information also recovered stones and knife respectively. But the confession is just contrary. (23). The prosecution case seems to be that accused Harbansh hit stones on the head of deceased and Indraj inflicted knife injury on the neck of Patwari. The Investigating Officer, on their information also recovered stones and knife respectively. But the confession is just contrary. It is to the effect that accused Indraj hit stones and inflicted knife injury on the neck of deceased, which is against the basic structure of the prosecution case. That apart, the witnesses before whom the extra judicial confession was alleged to be made were neither relatives of the accused appellants nor they had any intimacy with the appellants and therefore, there was no question of making a clean breast of the guilt by the accused before them. Thus the evidence of confession, in our considered view, does not inspire confidence. (24). On analysis of the evidence in its entirety, it must be held that the prosecution has utterly failed to prove both the circumstances as against the accused appellants that they caused the death of the deceased. Therefore their conviction under Section 302/34 IPC cannot be sustained. (25). While convicting the appellants under Section 201 IPC for causing the evidence of murder to disappear, the trial court has relied upon the some facts, viz., (i) confession of the appellants that after committing murder of Patwari they threw the dead body in a well (ii) recovery of dead body in the light of allegation in the FIR (iii) recovery of knife and pieces of stones used in commission of offence and (iv) no blood stains were found on the place from where the accused dragged the dead body as they put soil over it. (26). Section 201 IPC provides that accused must have knowledge or reason to believe about commission of the offence. From the language used in Section 201 IPC, the following ingredients emerge: (i) Commital of an offence (ii) the person charged with the offence under Sec. 201 IPC must have the knowledge or reason to believe that the main offence has been committed; (iii) person charged with the offence under Sec. 201 IPC should have caused disappearance of evidence or should have given false information regarding the main offence, and (iv) the act should have been done with the intention of screening the offender from legal punishment. (27). (27). Undisputedly, as already stated above, there is no direct evidence and the case solely rests on circumstantial evidence. The accused appellants were involved only on the basis of alleged extra judicial confession. There were two circumstances, firstly that the accused were last seen in the company of deceased and secondly the extra judicial confession alleged to have been made before the Panchayat and we have already disbelieved the prosecution evidence in respect of both the circumstances and have held that prosecution has not been able to prove beyond doubt the main offence i.e. causing of death by the accused appellants. The dead body of the deceased was not recovered at the instance of appellant, but it was recovered consequent upon the alleged confession and the contents of the FIR. Therefore, also the accused appellants cannot be said to have any knowledge or reason to believe that any offence has been committed. (28). It may also be noted that the recovery of weapons of offence i.e. knife and stones alleged to be taken use of in commission of offence cannot be held to be recovered at the instance and consequent to the information of the accused u/s 27 of the Evidence Act, as recoveries were made from open place accessable to all and sundry. Further the recoveries have not been proved by the prosecution witnesses Rohitashwa and Malkhan. (29). It may also be reiterated that as per the confession of the accused, it was accused Indraj who hit stones on the person of deceased. Whereas, the recovery of stones have been made in pursuance of an consequent upon the information of appellant Harbansh and the recovery of knife has been effected at the instance and in pursuance of the information of accused Indraj. (30). Thus, there is no evidence to prove that the accused appellants caused the evidence to disappear with an intention to save themselves. For the reasons therefore, the conviction of the appellants under Sec. 201 IPC also cannot be sustained. (31). In the result, the appeal succeeds and is hereby allowed. The impugned judgment of the learned Additional Sessions Judge, Dausa dated 3.8.99 is set aside. Appellants Harbansh and Indraj are acquitted of the charges under Sections 302/34 and 201 IPC. The appellants are in jail. They shall be set at liberty forthwith, if not required in any other case. __