Judgment Mehtab S.Gill, J. 1. This is an appeal against the judgment/order dated 8.11.2004/10.11.2004 of the Additional Sessions Judge, Sonepat, whereby he convicted appellant Sandeep @ Kartoon under Sections 302 and 377 read with Section 511 of the Indian Penal Code. Appellant Sandeep @ Kartoon was sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and to pay a fine of Rs. 5,000/-. In default thereof, he was directed to undergo imprisonment for a period of one year. Appellant was further sentenced to undergo rigorous imprisonment for a period of five years under Section 377 read with Section 511 of the Indian Penal Code and to pay a fine of Rs. 1,000/-. In default thereof, he was directed to undergo rigorous imprisonment for a period of three months. Both the sentences awarded by the trial Court to appellant Sandeep @ Kartoon were ordered to run concurrently. 2. The case of the prosecution is unfolded by the statement of complainant Hari Parshad given on 23.12.1999 at 9.15 P.M. to Assistant Sub Inspector Mool Chand, wherein he stated that he is working as a Welder in the electric shop of Atlas factory, Sonepat. Deceased Rakesh was the son of his brother-in-law (wifes brothers son). Rakesh was aged 7 years. He had been living with the complainant since 1999. Rakesh was studying in 1st Standard in the Government High School, Khanda. On 21.12.1999 Rakesh went to his school, but did not return home after school hours. Complainant Hari Parshad searched for Rakesh. He went to the school and enquired about him and found out that Rakesh had not gone to attend the school on 21.12.1999. Complainant Hari Parshad lodged a missing report in Police Station Kharkhoda, on the basis of which D.D.R. No. 14 dated 22.12.1994, Ex. PH, was recorded. On 23.12.1999 at 5.00 P.M. Complainant Hari Parshad came to know from Vinay son of Randhir, resident of village Khanda that a dead body of a child was lying in the forest area near the old drain. Complainant, on reaching the spot, found the dead body to be that of Rakesh. Blood had oozed out from his nose. His tongue was in between his teeth. There were legature marks on his neck. Vinay also informed Police Station Kharkhoda by using the telephone of Sarpanch Jai Dei. Police reached the spot, after some time. Complainant, on reaching the spot, found the dead body to be that of Rakesh. Blood had oozed out from his nose. His tongue was in between his teeth. There were legature marks on his neck. Vinay also informed Police Station Kharkhoda by using the telephone of Sarpanch Jai Dei. Police reached the spot, after some time. Statement of complainant Hari Parshad, Ex. PJ, was receded by Mool Chand, Assistant Sub Inspector (PW-13) at the spot. Formal FIR, Ex. PJ/1 was recorded on 21.12.199 at 10.10 P.M. Special report reached the Additional Chief Judicial Magistrate on 24.12.1999 at 1.30 A.M. 3. Prosecution, to prove its case, brought into the witness box Head Constable Raj Pal (PW-1), Ram Parkash, Head Constable (PW-2), Shiv Narain, Head Constable (PW-3), Mahender Singh, Patwari (PW-4), Dr. Adarsh Sharma (PW- 5), Ram Tirath, Assistant Sub Inspector (PW-6), Surender (PW-7), Om Kanwar (PW-8), Yaad Ram, Sub Inspector (PW-9), Hari Parkash (PW-10), Ram Kishan, Sub Inspector (PW-11), Naresh (PW-12), Mool Chand Assistant Sub Inspector (PW-13), and Ram Phal, Head Constable (PW-14). 4. Learned counsel for the appellant has stated that the case of the prosecution rests on firstly, the extra judicial confession made by appellant to Om Kanwar (PW-B) and secondly, the disclosure statement, Ex. PF, made by appellant to Naresh (PW-12), vide which memo, Ex. PF/1 was prepared, pointing out the place, where he had, allegedly, murdered Rakesh, after he tried to commit sodomy on him. The other two witnesses to the disclosure statements are Ram Tirath, Assistant Sub Inspector (PW-6) and Ram Kishan, Sub Inspector (PW- 11). 5. Learned counsel has argued that the extra judicial confession made by the appellant to Om Kanwar (PW-8), has been made after three years of the occurrence. In his statement before the Court, this witness has stated that he is close to the police. No reason has been given, as to why the appellant went to Om Kanwar (PW-8) to confess his guilt. Om Kanwar (PW-8) is the Lambardar of village Nasirpur Cholka, while deceased Rakesh and appellant Sandeep @ Kartoon belong to village Khanda. It has been stated by Om Kanwar (PW-8) that there are 3-4 lambardars in village Khanda also. The extra-judicial confession made is not truthful and does not inspire confidence. Om Kanwar (PW-8) is the Lambardar of village Nasirpur Cholka, while deceased Rakesh and appellant Sandeep @ Kartoon belong to village Khanda. It has been stated by Om Kanwar (PW-8) that there are 3-4 lambardars in village Khanda also. The extra-judicial confession made is not truthful and does not inspire confidence. Appellant, in natural course of events, would have gone to the respectable of his own village, i.e., village Khanda, if he did want to make confession and not to a respectable of another village. This piece of evidence cannot be relied upon. 6. Learned counsel has further stated that the disclosure statement, Ex. PF, has no value in the eye of law. It does not fall within the parameters, as defined under Section 27 of the Indian Evidence Act, 1872 . Appellant, when the made the disclosure statement, Ex. PF, was already in the custody of the police. Demarcation of the site, where the dead body of Rakesh was lying and the Memo prepared, Ex. PF/1, was already in the custody of the police. Naresh (PW-12), before who the disclosure statement was made, admits that he is running a tea shop in front of Police Station Kharkhoda and has good relations with the police. He has further admitted that he had been called in a number of cases by the police. This witness was at the beck and call of the police officials. The disclosure statement shows that nothing was recovered from the place of occurrence, but the only thing the appellant has alleged to have done, as per the statement, was to point out the spot, where the body of Rakesh was lying. This piece of evidence of the body lying at a particular place in the forest was already in the knowledge of the police. The identity of the place of the occurrence had already been fixed for the first time by Mool Chand, Assistant Sub Inspector (PW-13) and for the second time by Ram Kishan, Sub Inspector (PW-11). In the inquest report, Ex. PL and site plan, Ex. PM, the body of deceased Rakesh has been shown as to where it was found and the place of occurrence has also been marked. 7. Learned counsel for the appellant has stated that the medical evidence does not corroborate the ocular account. Dr. In the inquest report, Ex. PL and site plan, Ex. PM, the body of deceased Rakesh has been shown as to where it was found and the place of occurrence has also been marked. 7. Learned counsel for the appellant has stated that the medical evidence does not corroborate the ocular account. Dr. Adarsh Sharma (PW-5) has opined that there were no injuries on the lower part of deceased Rakesh. Meaning thereby that no attempt was made to commit sodomy on the person of the deceased. 8. Learned counsel for the State has stated, that the disclosure statement, Ex. PP. was only to verify from the appellant as to where the occurrence had taken place, so that the Investigating Officer would be sure, that the appellant is the one, who committed the offence, as he would know where the occurrence had taken place. The extra judicial confession made by the appellant before Om Kanwar (PW-8) is a piece of evidence, which can be relied upon. The evidence given before the Court by Om Kanwar (PW-8) is truthful, credible and not a tutored version. It was only after three years of the occurrence, appellant was arrested, but before his arrest, as his conscience was pricking him, that he made the extra judicial confession before Om Kanwar (PW-8). Though Om Kanwar (PW-8) is the Lambardar of village Nasirpur Cholka, but it has come in evidence that he used to go to village Khanda to collect revenue, from some of the villagers, as their fields fell within the revenue estate of village Nasirpur Cholka. 9. We have heard the learned counsel for the parties and perused the record with their assistance. 10. The extra judicial confession made before Om Kanwar (PW-8) does not inspire confidence. If the conscience of the appellant was being pricked, as argued by the State counsel, then he would not have waited for three years to unload the burden of he having committed the murder of Rakesh. We cannot overlook this fact that Om Kanwar (PW-8) belongs to village Nasirpur Cholka, whereas deceased Rakesh and the appellant belong to village Khanda. It has come in evidence that village Khanda has 3-4 Lambardars. Appellant, if he did want to unburden himself, would have, in natural circumstances, gone to a respectable of his own village. We cannot overlook this fact that Om Kanwar (PW-8) belongs to village Nasirpur Cholka, whereas deceased Rakesh and the appellant belong to village Khanda. It has come in evidence that village Khanda has 3-4 Lambardars. Appellant, if he did want to unburden himself, would have, in natural circumstances, gone to a respectable of his own village. Om Kanwar (PW-8) has stated in his testimony before the Court that appellant had told him that he took Rakesh near the old drain of the village where he tried to commit sodomy, but when Rakesh cried, he took out the string of the trouser of the deceased and strangulated him and committed his murder. Om Kanwar has stated that he knew the complainant since his birth. He had cordial relations with the complainant party. This witness has further stated the he neither knew the Superintendent of Police nor the Deputy Superintendent of Police and nor did he have any influence to prevail upon the police. It is clear from the testimony of Om Kanwar (PW-8) that he has been planted by the police, with whom he had good relations. His evidence is not credible or trustworthy, he cannot be relied upon. 11. The disclosure statement, Ex. PF, made by the appellant to Naresh (PW-12), is a statement, which does not fall within the parameters of Section 27 of the Indian Evidence Act, 1872 . Nothing was recovered from the spot, after the statement was made. The place of occurrence was already in the knowledge of the police officials. Memo, Ex. PF/1 was prepared after the alleged disclosure statement was made the area demarcated, where the deceased had been murdered. There was no need for preparing Memo, Ex. PF/l. It has come in evidence that Mool Chand, Assistant Sub Inspector (PW-13) had first visited the spot on 23.12.1999 when the statement of Hari Parshad Complainant was receded at the place of occurrence. Second time Ram Kishan, Sub Inspector (PW-11) visited the spot and stated in his testimony before the Court that when he visited the spot, he got it identified by the appellant. Ram Kishan stated that the case file was with him and the rough site plan was also there in the file. Further in the inquest report, Ex. PL, sketch has been made by Mool Chand, Assistant Sub Inspector, where the dead body of deceased Rakesh is also shown. Ram Kishan stated that the case file was with him and the rough site plan was also there in the file. Further in the inquest report, Ex. PL, sketch has been made by Mool Chand, Assistant Sub Inspector, where the dead body of deceased Rakesh is also shown. When the appellant was taken to the spot, the file contained the inquest report, Ex. PL, and the statement of complainant Hari Parshad, Ex. PJ, on the basis of which, FIR, Ex. PJ/1, was recorded. The place from where the dead body of Rakesh was found had already been identified previously. This disclosure statement does not have any value in the eyes of law. 12. Learned counsel for the appellant has relied upon a judgment of this Court rendered in the case of Mehal Singh v. State of Punjab, 1995(2) RCR 218, wherein it has been held that as the dead body was recovered at the instance of the accused, but the Investigating Officer was aware of the fact that the dead body was buried in the room at the time of registration of the case, the disclosure statement made by the accused was not admissible in evidence under Section 27 of the Indian Evidence Act, 1872 . 13. Learned counsel for the State has vehemently argued that the disclosure statement was only to verify this fact as to whether the appellant had the knowledge as to where the occurrence had taken place. In fact, the Investigating Officer was investigating the case in an honest and fair manner. This argument does not cut much ice. If the Investigating Officer was not sure, as to whether the appellant had committed the crime or not, then at the first instance, he should not have arrested him. He should have arrested him only after he had ample evidence against the appellant. 14. Learned counsel for the State has relied upon a judgment of the Honble Supreme Court rendered in the case of State of Rajasthan v. Rajaram, 2003(4) All India Criminal LR (S.C.) 160, wherein it has been held that the Court should not presume that the extra judicial confession is a weak type of evidence. This evidence can be accepted and can be the basis of a conviction if it passes the test of credibility. This evidence can be accepted and can be the basis of a conviction if it passes the test of credibility. If extra judicial confession is voluntary and true and made in a fit state of mind, it can be relied upon. We are of the considered view that in the case in hand, the extra judicial confession, as discussed above, is neither truthful nor credible. Om Kanwar (PW-8) is a planted witness, who is a friend of the complainant party and has stated in Court, whatever was asked to be stated by the complainant and the police. 15. Medical evidence does not corroborate the ocular account. Om Kanwar (PW-8) in his testimony before the Court has stated that the appellant confessed before him that he allured Rakesh and took him near the old drain of the village, where he tried to commit sodomy. Rakesh started crying. Thereafter, he took out the string of the trouser of the deceased and strangulated him. Ram Kishan, Sub Inspector (PW-11) in his testimony before the Court, has stated that the appellant suffered a disclosure statement before him that he allured Rakesh and took him behind the bushes situated near old drain (Badro) and when he tried to commit an unnatural act, Rakesh raised an alarm and thereafter he committed his murder. Dr. Adarsh Sharma (PW-5), who prepared the post mortem report, in his testimony before the Court, has stated that it is correct that there was no injury mark present on the lower limb of the body of the deceased. It is further correct that Pajama, Ex. P4, was intact. It has also come out from the testimony of Dr. Adarsh Sharma that there was no injury mark below the neck and especially on the lower part of the body of the deceased. If sodomy had been attempted on the deceased, some injury marks would have been discovered on the body of the deceased. 16. With the above observations and discussions, we are of the view that charges framed against the appellant are not substantiated. 17. Judgment of the trial Court is set aside. 18. Appellant is given benefit of doubt. He is acquitted of the charges. Appeal is, accordingly, allowed.