JUDGMENT By the Court.—This is an appeal against the judgment and order dated 29.10.1983 passed by IVth Addl. Sessions Judge, Mirzapur in ST. No. 347 of 1982 whereby the trial Court has convicted the appellants under Section 302 and 201, IPC and sentenced each of them to life imprisonment and to five years rigorous imprisonment for the above offences respectively. 2. During the pendency of appeal, appellant No. 1 Tafazzul Husain expired and his appeal abated vide order dated 15.11.2007. 3. The trial relates to alleged murder of Atahar son of appellant No. 1 Tafazzul Husain and brother of appellant No. 2 Sabir Husain. The prosecution case was that on account of some differences and dispute between the appellants and the deceased, the appellants with the assistance of Alauddin (their relation) murdered Atahar at their house. His dead body was cut into pieces and a part of dead body including leg was put in a gunny bag with some stones and was dropped in river Panda. Some clothes of the deceased were burnt inside the house itself and the head of the deceased was concealed near the house of the appellants. The case relates to police station Kon of district Mirzapur. The incident came to light when. Bhullan, chaukidar P.W.1 of village Kon and some other persons noticed the gunny bag with part of body of a human in the river. Bhullan, Chaukidar reported at police station Kon on 21.1.1981 that a gunny bag with parts of human body was found floating in the river. The information given by the chaukidar was registered as case crime No. 1 of 1981 under Section 302/201, IPC against unknown persons. When the FIR was registered it was not known as to who was the person who had been killed. 4. The prosecution claims that complicity of the appellants and of their companion Alauddin came to light through circumstantial evidence and extra judicial confession. It is alleged that deceased appellant Tafazzul Husain had made extra judicial confession before Munnawar Ali P.W. 4 of village Rang Rang and the sole surviving appellant Sabir Husain made extra judicial confession before Islamuddin P.W. 5 son of son of Munnawar Ali P.W.4. It is alleged that deceased appellant Tafazzul Husain had made extra judicial confession before Munnawar Ali P.W. 4 of village Rang Rang and the sole surviving appellant Sabir Husain made extra judicial confession before Islamuddin P.W. 5 son of son of Munnawar Ali P.W.4. It is also claimed by the prosecution that some time around the date of commission of crime, Khadim Rasool P.W. 3 had seen Tafazzul Husain, Sabir Husain and Alauddin coming from the side of river in the mid night and on being asked by the witness, they told him that they had gone to river to catch fish and were returning from there. 5. On the basis of information received through the statements of Munnawar Ali and Islamuddin, the police arrested Tafazzul Husain and on his pointing on 29.1.1981, the Investigating Officer collected ash of clothes of the deceased alleged to have been burnt in the housetof the appellants alongwith weapons of as assanlt i.e. Ramba, sword and Tassi from his house. It is claimed that Tafazzul Husain also produced before the police a piece of jaw of the deceased which he had concealed near his house. No recovery has been made out from or on the pointing of the appellant Sabir Husain. 6. The police after investigation found that extra judicial confessions made by the appellants and recovery alleged to have been made under Section 27 of Evidence Act were sufficient to establish the complicity of Tafazzul Husain, his son Sabir Husain and their relation Alauddin in this crime. A charge sheet was accordingly submitted. 7. All the three persons Tafazzual, Sabir Husain and Alauddin were put to trial. The trial Court found that the evidence against Alauddin was not sufficient and so giving him benefit of doubt, he was acquitted. With regard to remaining accused i.e. deceased appellant Tafazzul Husain and Sabir Husain, the trial Court was of the view that the prosecution evidence was sufficient and reliable against them and accordingly they were convicted under Section 302 and 201, IPC. 8. The evidence which was led by the prosecution before the trial Court was the deposition of Bhullan, Chaukidar P.W.1 and Vindra Narain P.W. 2. They are witnesses of recovery of part of the human body from river Panda and have not stated any thing connecting the appellants with the crime. 8. The evidence which was led by the prosecution before the trial Court was the deposition of Bhullan, Chaukidar P.W.1 and Vindra Narain P.W. 2. They are witnesses of recovery of part of the human body from river Panda and have not stated any thing connecting the appellants with the crime. The remaining witnesses include Khadim Rasool P.W. 3 who had claimed to have seen the accused coming from the side of river in the mid night and the remaining two witnesses are Munnawar Ali P.W. 4 and Islamuddin P.W. 5 before whom extra judicial confessions are said to have been made. Dr. S.K. Gupta P.W. 6 conducted the autopsy on the pieces of dead body. Ram Chandra Saroj, constable P.W. 7 is a formal witness who had sent the dead body to doctor for autopsy and Deep Chandra Tiwari P.W. 8 was the Investigating Officer. No evidence was adduced by the appellants in their defence. 9. We have heard Sri Kamal Krishna, learned Counsel for the appellant Sabir Husain, Sri Ram Awadh Mishra, learned AGA appearing for the State and have gone through the entire evidence on record. 10. The argument of Sri Kamal Krishna is that the prosecution evidence in this case was wholly insufficient to connect the appellants with the crime and was not reliable at all. His further argument is that the evidence fails to establish that Atahar had died and a part of the human body recovered by the investigating agency was part of the body of Atahar. He further argued that Atahar (deceased) is son of first appellant Tafazzul Husain and brother of second appellant Sabir Husain and there was no motive for them to commit his murder. Sri Kamal Krishna further argued that the evidence of Khadim Rasool (P.W. 3) is uncorroborated and is very unnatural and there was no occasion for him to have seen the appellants and Alauddin near the river in the mid of night. It is further argued that the alleged extra judicial confessions made before Munnawar Ali P.W. 4 and Islamuddin P.W. 5 are also unreliable as they lack full particulars of date and time when the confession was made. It is further argued that the alleged extra judicial confessions made before Munnawar Ali P.W. 4 and Islamuddin P.W. 5 are also unreliable as they lack full particulars of date and time when the confession was made. There was no occasion for Tafazzul Husain and Sabir Husain to make any confession before these witnesses who were also father and son and the prosecution evidence does not disclose how did the Investigating Officer come to know that extra judicial confession was made by the accused persons before these witnesses. 11. Learned AGA, on the other hand, argued that the motive for the commission of crime is indicated in the extra judicial confession made by Taffazzul Husain and that the deceased used to misconduct with the ladies of the house and he also used to give shelter to criminals, against the wishes and advice of the appellants. Further it has been argued on behalf of the State that the extra judicial confession made by Tafazzul Husain before Munnawar Ali and by Sabir Ali before Islamuddin was rightly believed by the trial Court. 12. We have examined the entire evidence in the light of the arguments raised by learned Counsel for the parties. 13. The case rests on the circumstantial evidence; and, as held by the Apex Court in the case of Sardar Khan v. State of Karnataka, (2004)2 SCC 442 and also in the case of Ramreddy Rajeshkhanna Reddy and another v. State of Andhra Pradesh, AIR 2006 SC 1656 , in case of circumstantial evidence, conviction can be recorded only if— (1) Relevant circumstances are firmly established (2) They unerringly show guilt of the accused (3) Cumulatively they form complete chain to leave no escape from conclusion that within all human probability the crime is committed by the accused and none else. 14. Further it was held by Apex Court in the case of Balwinder Singh v. State of Punjab, 1996 SCC (Crl) 59 that extra judicial confession is by its nature a very weak type of evidence and a duty is cast on the Court to look for corroboration from other reliable evidence on record. 15. Examining the prosecution evidence in this case in the light of above we find that the chain of circumstance in this case was not complete in order to base a conviction thereon. 15. Examining the prosecution evidence in this case in the light of above we find that the chain of circumstance in this case was not complete in order to base a conviction thereon. It is significant to note that the alleged victim of crime i.e. Atahar was son of appellant No. 1 Tafazzul Husain and brother of appellant No. 2 Sabir Husain. There is no independent witness examined by the prosecution to show that between them there was any such difference or dispute as to provoke the appellants to have done to death their own son/ brother, and that too in such a brutal manner so as to cut his body into pieces and to make an attempt to destroy the body in the manner alleged by the prosecution. No one had seen the occurrence. The medical evidence coming through the deposition of Dr. S.K. Gupta P.W. 6 would show that the probable time of death was one or one and half month ago and cause of death could not be determined. It could not be ascertained if the leg and jaw under examination was of the same person. The police allegedly found some bloodstains on certain articles found in the house of the two appellants but they were not sent for chemical examination. The weapons of assault and jaw said to have been recovered on the pointing or instance of the deceased appellant were allegedly followed by preparation of recovery memos but the recovery memos are not on record and no explanation has been given by the prosecution for not placing the same on record. There is no reliable evidence to establish that part of the body recovered was that of Atahar. 16. Coming to the testimony of Khadim Rasool P.W. 3 who claimed to have seen the three accused persons coming from the side of river in the mid night, we find his testimony doubtful and there is no corroboration of the fact which he has deposed before the Court. He has stated that his daughter was sick and he had gone to a nearby village to get medicine. The ailment which he has disclosed was that she was suffering from malaria. It does not inspire confidence that in the mid night he would have gone for medicine of malaria. He has stated that his daughter was sick and he had gone to a nearby village to get medicine. The ailment which he has disclosed was that she was suffering from malaria. It does not inspire confidence that in the mid night he would have gone for medicine of malaria. If it is believed that his daughter was sick he could have gone in day time but going in the mid night or at about 11 p.m. for medicine of malaria is very improbable. The FIR was registered in the month of January 1981. The testimony of this witness is not specific about the month in which he had seen the accused persons coming from the side of river. We are of the view that in case his daughter was actually sick, she in all probabilities, would have been taken by the witness to the doctor, but he was alone when he had allegedly seen the three accused. For want of corroboration, we are of the view that it is not safe to place reliance on his testimony. Further it is significant to note that his statement under Section 161, Cr.P.C. was recorded by the investigating officer as late as on 7.4.1981. 17. With regard to extra judicial confession we are of the opinion that the testimony of Munnawar Ali P.W. 4 and his son Islamuddin P.W. 5 are also not reliable for want of Particulars of month date and time of the alleged confession and for want of corroboration as well as considering the circumstance in which the extra judicial confession was said to have been made. Both these witnesses have stated that by chance on one date Tafazzul Husain happened to meet Munnawar Ali P.W. 4 and on some other date Sabir Husain happened to meet Islamuddin P.W.5. They appeared to be nervous and on being asked they disclosed that they with the help of Alauddin had killed Atahar. Islamuddin states that Sabir Husain while making extra judicial confession requested that his father (Munnawar Ali) should intervene to save him. Munnawar Ali P.W. 4 says that he had no friendship in the police circle. In these circumstances the allegation that these two accused Tafazzul Husain and Sabir Husain made separate extra judicial confessions before these witnesses, who were not in position to help them is wholly unreliable. Munnawar Ali P.W. 4 says that he had no friendship in the police circle. In these circumstances the allegation that these two accused Tafazzul Husain and Sabir Husain made separate extra judicial confessions before these witnesses, who were not in position to help them is wholly unreliable. It is further not believable that accused persons would make extra judicial confession before any such person as instead of extending any help to them would walk straight to the police station on the same day and mention it to the police. There is nothing on record to show that there was already any report with the police or otherwise there was any news circulating in the village that Atahar had been killed. The police was not after the appellants. Thus there was no occasion to confess. The alleged recovery on the pointing of Tafazzul Husain is also not reliable. The recovery memo is also not available on record. 18. Keeping in view the entire facts and circumstances as disclosed by the prosecution, we are of the considered opinion that the evidence adduced by the prosecution in this case was not sufficient and was rather insufficient for convicting the appellants in the manner they have been convicted by the trial Court. The charges against them, in our opinion, had not been proved and they are entitled to be acquitted. Tafazzul Husain has died. His appeal has abated. 19. The appeal of Sabir Husain is allowed. His conviction under Section 302 and 201, IPC and sentences passed thereunder are set aside. He is on bail. His personal and surety bonds are discharged. He need not surrender. Let a copy of this judgment be certified to the trial Court for necessary action. ————