Judgment ( 1. ) FEELING aggrieved by the judgment of conviction and order of sentence dated 6th May, 1999 passed by learned II Additional Sessions Judge, Betul, in sessions Trial No. 239/98, sentencing applicant to suffer imprisonment of life and to pay a fine of Rs. 5000/-, in default of fine, rigorous imprisonment of six months for the offence under Section 302 of IPC and further sentencing him to suffer rigorous imprisonment of two years and to pay a fine of Rs. 2000/-, in default of payment of fine, further rigorous imprisonment of four months for the offence under Section 201, IPC, the accused-appellant has preferred this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973. ( 2. ) IN brief the case of the prosecution is that on 19-7-1998 Kishore, who is the Kotwar of Village Kabra, lodged a merg intimation report in Police station, Mohda that one Bhagchand of the village informed that Chetram (hereinafter referred to as the deceased) is not in the village for last 8-10 days. Shantibai, who is the wife of the deceased, informed Bhagchand that Jugnibai, who is the wife of the acquitted co-accused Shyamlal, informed Shantibai that appellant has killed his brother Chetram (deceased ). Thereafter Shantibai narrated this fact to other inhabitants of the village viz. , Bhagchand, Hannu and some other persons. On being enquired by village people from appellant Imrat in regard to whereabouts of the deceased, he (appellant) informed that the deceased had gone to Rahatgaon. Thereafter a meeting was made in the village on Friday and a Panchayat was called, which assembled in the morning. The appellant was summoned by the Panchayat persons and before them he made extra judicial confession that because deceased was hurling abuses to him as a result of which he (appellant) got annoyed and when his brother went to sleep, at 2. 00 in the night, he woke up and brought a basula (an instrument which is used by Carpenter to cut the wood) and from the blunt side of the said instrument caused injuries to the deceased. Thereafter with the help of acquitted co-accused Shyamlal dead body was tied by a nylon rope alongwith a wooden plank and was thrown in Ghoghra Nala, covering the dead body by stone boulders. ( 3. Thereafter with the help of acquitted co-accused Shyamlal dead body was tied by a nylon rope alongwith a wooden plank and was thrown in Ghoghra Nala, covering the dead body by stone boulders. ( 3. ) ON the next day, i. e. , Saturday several village persons went to ghoghra Nala and found that several stone boulders were lying there and filthy smell was coming out. Village persons found there dead body of the deceased J and thereafter the Village Kotwar came to Police Station alongwith Hannu and gulab. ( 4. ) ON the basis of the said merg intimation report, the investigating agency came into action, FIR was registered on the basis of said merg intimation report, police party arrived at the place of occurrence and seized the dead body of the deceased; prepared the panchnama of the dead body; sent the dead body for post-mortem; seized the blood stained clothes of the deceased; seized a nylon rope from the spot where dead body was lying; other articles were also seized from the spot and panchnama was prepared; ordinary and blood stained earth was also seized; spot map was prepared; memorandum statement of appellant Imrat was taken and on the basis of said memorandum the basula which was alleged to have been used as a weapon in the commission of the offence was seized; sent the Basula to the autopsy surgeon and received the query report in which it was opined by the doctor that from the blunt side of the said weapon, injuries sustained by the deceased could be caused and after completing the investigation a charge-sheet was submitted in the Competent court, which on its turn committed the case to the Court of Session from where it was received by the Trial Court for its trial. . ( 5. ) LEARNED Trial Judge on the basis of the averments made in the charge-sheet against the accused persons framed charges punishable under sections 302, 302/34 and 201 of IPC. Needless to emphasise, accused persons abjured their guilt and pleaded complete innocence. Their defence is of maladroit implication. ( 6. ) IN order to prove the charges, the prosecution examined as many as 15 witnesses and placed Exhs. P-2 to P-19 the documents on record. Needless to emphasise, accused persons abjured their guilt and pleaded complete innocence. Their defence is of maladroit implication. ( 6. ) IN order to prove the charges, the prosecution examined as many as 15 witnesses and placed Exhs. P-2 to P-19 the documents on record. The defence of the accused persons is of maladroit implication and the same defence they set forth in their statement recorded under Section 313 of Cr. PC. However, they did not choose to examine any witness in their defence. ( 7. ) THE learned Trial Judge on close scrutiny of the evidence came to hold that co-accused did not commit the offence framed against him and eventually acquitted him by the impugned judgment. However, according to learned Trial Judge since there is evidence available on record against the present appellant committing offence under Sections 302 and 201 of IPC, he has been convicted under these sections and passed the sentence which we have mentioned hereinabove. ( 8. ) IN this manner the present appeal has been filed assailing the impugned judgment of conviction and order of sentence. ( 9. ) IN this appeal it has been submitted by Smt. Durgesh Gupta, learned Counsel appearing for the appellant, that the sole basis of conviction is the so called extra-judicial confession made by the appellant to the Panch persons and if that would be the position, since it cannot be said to be voluntary confession and it will not come under the ambit of Section 24 of Evidence Act, therefore appellant is entitled for the acquittal. The contention of the learned counsel is that the Trial Court erred in law in placing reliance on the said extrajudicial confession and convicting the appellant. It has been further contended by her that though the memorandum statement of appellant Exh. P-11 was obtained in order to recover the dead body, but the dead body was not recovered on the basis of discovery of the fact made in the said memorandum and it is borne out from the evidence of the witnesses that several village persons on coming to know that the dead body is lying nearby Nala, on the information supplied by the appellant as well as acquitted co-accused person, they found the dead body and thereafter the investigating agency was informed in that regard. Thus, according to learned Counsel, it cannot be said that on the basis of the discovery of the fact, the dead body of the deceased was recovered at the instance of appellant as envisaged under Section 27 of the Evidence Act. On these premised submissions, the learned Counsel for appellant submits that this appeal be allowed by setting aside the impugned judgment of conviction and order of sentence passed against the appellant. ( 10. ) ON the other hand, Shri T. K. Modh, learned Dy. Advocate General appearing for the respondent/state argued in support of the impugned judgment and by placing reliance on the decision of Supreme Court Mulk Raj Vs. State of U. P. ( AIR 1959 SC 902 ) has submitted that there is clear, cogent trustworthy extra-judicial confession made by the appellant confessing his guilt to kill the deceased before the Panchayat and, therefore, the Trial Court did not err in placing reliance on material piece of evidence and convicting the appellant. Thus, according to the learned Counsel for the State, this appeal sans substance and should be dismissed. ( 11. ) HAVING heard the learned Counsel for the parties, we are of the considered view that this appeal deserves to be allowed. ( 12. ) MUCH emphasis has been put by the Trial Court as well as by learned counsel for the State on extra judicial confession of appellant. It is well settled in law that extra judicial confession should be voluntary and should not be the outcome of any inducement. The decision of Mulk Raj (supra), also reiterates the same principle of law in Para 11. According to this decision, an extra judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. The confession will have to be proved just like any other fact. The value of the evidence as to the confession just like any other evidence, depends upon the veracity of the witness to whom it is made. It is for the Court having regard to the credibility of the witness, his capacity to understand the language in which the accused made the confession to accept the evidence or not. The value of the evidence as to the confession just like any other evidence, depends upon the veracity of the witness to whom it is made. It is for the Court having regard to the credibility of the witness, his capacity to understand the language in which the accused made the confession to accept the evidence or not. Thus, according to this decision Mulk Raj (supra), also extra judicial confession is a corroborative piece of evidence and it is for the Court to place reliance or not on the basis of the evidence of the witnesses to whom it was made. ( 13. ) ON the basis of above said well settled principle of law, we shall now examine the evidence of the prosecution witnesses. It is borne out from the evidence of the prosecution witnesses that from 12. 00 noon till the evening the panchayat proceedings were going on and the appellant was summoned by the panch persons. Repeatedly he was being asked by several persons in regard to the whereabouts of the deceased and every time he was saying that he had gone to Rahatgaon. It is also borne out from the evidence of P. W. 10, Gannu, who was one of the Panchas that again and again appellant was saying that deceased had gone to Rahatgaon and ultimately when a threat was given to him that he will be given in the custody of police at that juncture, appellant confessed that he has killed the deceased. The same type of statement has also been given by P. W. 6, kaliram. On close scrutiny of the evidence of these two witnesses, it will be very difficult to hold that appellant has given extra judicial confession voluntarily to the Panch persons. On the other hand, it is revealed that for hours together he was being interrogated by the Panch persons again and again to disclose whereabouts of the deceased and the appellant was repeatedly saying that deceased had gone to Rahatgaon and ultimately on being threatened that he will be given in the custody of police, at that juncture, he made said so called extra judicial confession. In our considered view, this type of extra judicial confession has no bearing and cannot be placed reliance. At this juncture, it would be proper to rely on the decision of Supreme Court in Balbir Singh Vs. In our considered view, this type of extra judicial confession has no bearing and cannot be placed reliance. At this juncture, it would be proper to rely on the decision of Supreme Court in Balbir Singh Vs. State of punjab, (1999) 9 SCC 30 , wherein in same facts and circumstances the Supreme court held that extra judicial confession made to Sarpanch is not admissible in evidence and cannot be placed reliance and it was further held by the Supreme court that the Court below has committed error in law in placing reliance on such extrajudicial confession made before the Sarpanch. The Division Bench of this Court in Jugla @ Ramdas Vs. State of M. P. , 2000 (2) MPLJ 414, has also reiterated the same law and it has been held that in case accused was given inducement and threat particularly to make such confession, would not come under the ambit of extra judicial confession and the same is inadmissible. ( 14. ) IN the present case, learned Trial Judge has placed reliance on the decision of Supreme Court in the case of Mulk Raj (supra), but in the said decision also it has been so held that extra judicial confession should be made voluntarily and it should be proved like any other fact. ( 15. ) LOOKING to the facts and circumstances, we are of the view that extra judicial confession, which has been made by the appellant before the panchas, cannot be said to be voluntary as envisaged under Section 24 of the evidence Act. ( 16. ) EXCEPT extra judicial confession, there is no evidence and material on record in order to point out the guilt towards the accused and reliable piece of circumstances in order to connect the appellant in the crime. According to the case of the prosecution as it is borne out from the evidence placed on record, it is gathered that on account of so-called extra judicial confession made by appellant, several village persons went to the place of occurrence and found that the dead body was lying in the Ghoghra Nala and thereafter the Police was informed in this regard and ultimately the dead body was recovered. Thus, this type of recovery of the dead body at the instance of the appellant would not be included under the ambit of Section 27 of Evidence Act. ( 17. Thus, this type of recovery of the dead body at the instance of the appellant would not be included under the ambit of Section 27 of Evidence Act. ( 17. ) APART from what we have held hereinabove on a bare perusal of memorandum under Section 27 of the Evidence, Exh. P-11, of the appellant, no where it is gathered that there was any discovery of fact in regard to the dead body of the deceased. The only fact which is disclosed is that he has killed the deceased by Basula from its blunt side and the same is hidden in the room of his house. ( 18. ) IN the case of Ashish Batham Vs. State of Madhya Pradesh ( AIR 2002 SC 3206 ), the Supreme Court in Para 6 has laid down the law as under:-"the principles, which should guide and weigh with the Courts administering criminal justice in dealing with a case based on circumstantial evidence, have been succinctly laid down as early as in 1952 and candidly reiterated time and again, but yet it has become necessary to advert to the same, once again in this case having regard to the turn of events and the manner consideration undertaken, in this case by the Courts below. In Hanumant Govind nargundkar and another Vs. State of Madhya Pradesh, AIR 1952 sc 343 , it has been held as follows :- "in dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the Warning addressed by Baron Alderson to the jury in Reg. Vs. Hodge, (1838) 2 lewin 227, where he said :"the mind was apt to take a pleasure in adapting circumstance to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete. "it is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. " these principles were needed to be restated even as late as in the decisions reported in Sudama Pandey Vs. State of Bihar, (2002) 1 scc 679 and Subhash Chandra Vs. State of Rajasthan, (2002) 1 scc 702 . " The Supreme Court in the said decision placed reliance on its earlier decision in Hanumant Govind Nargundkar and another Vs. State of Madhya pradesh ( AIR 1952 SC 343 ), wherein warning of Baron Alderson to the jury in reg. Vs. Hodge, (1838) 2 Lewin 227, has been given, wherein it has been categorically warned that in dealing with the circumstantial evidence it should be borne in mind that in such cases there is always the danger that conjecture or suspicion may take the place of legal proof. ( 19. ) IN the case of K. V. Chacko Vs. State of Kerala, (2001) 9 SCC 277 , the supreme Court in Para 5 has held that when the case rests upon circumstantial evidence, such evidence must satisfy three 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 the guilt of the accused; and (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. all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must also be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. " thus, in a case of circumstantial evidence, the prosecution is obliged to connect each and every link of circumstantial evidence in order to form a complete the chain unerringly pointing out the guilt towards the accused. In the present case, the only circumstance which has been shown is the above said extra judicial confession of the appellant which we have already held that the same cannot be said to be in extra judicial confession and is inadmissible. Except the evidence of so called extra judicial confession, there is nothing on record in order to hold the appellant to be guilty of the said offence. ( 20. ) FOR the reasons stated hereinabove, we are unable to uphold the impugned judgment of conviction and order of sentence and we have no option except to allow this appeal by setting aside the impugned judgment of conviction and order of sentence. ( 21. ) RESULTANTLY, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence is set aside. The appellant is in jail, he be set at liberty forthwith, if not required in any other case. Criminal Appeal allowed.