Judgment ( 1. ) THIS appeal is filed by the appellant against the judgment dated 29. 1. 1998 passed by the First Addl. Sessions Judge, Shivpuri in Sessions Trial no. 26/96 whereby he has been convicted for the offence under Section 302 of I. P. C. and sentenced to suffer imprisonment for life with fine of Rs. 10,000/-and on failure to pay fine amount, to suffer further one year R. I. ( 2. ) AS per prosecution, on 19. 5. 1995 at around 1. 40, in the noon, one Bhagwat singh informed the police station Kolaras that the dead-body of Sewak Singh raghuvanshi S/o Bholaram Raghuvanshi, aged 28 years, is lying in the well of bholaram. On the basis of this information, merg No. 14/95 was registered by P. S. Kolaras and the matter was investigated. The statement of Bhagwat Singh was recorded. Bhagwat Singh informed that he is cousin brother of Sewak Ram. He stated that on 18. 5. 1995 in the morning, Sewak told him that he will go to take feast in some party and when he will come back he will bring labour for cleaning his well which became dirty due to falling of waste materials and leaves in it. On 18. 5. 1995, when Sewak was not available in the village, his family members tried to search him in the village as well as in the adjoining places. On 19. 5. 1995 when Bholaram went to his well to search Sewak then he found that the body of Sewak was lying in the well. Thereafter, the dead-body was recovered from the well and Panchnama Lash and spot-map were prepared. The dead-body was sent for postmortem examination. Crime No. 103/95 was registered and the matter was investigated and after investigation, challan was filed. ( 3. ) THE case of the prosecution is that one amol Singh (PW10), who is father-in-law of the deceased Sewak, on 18. 5. 1995 when he was passing through the well of Bholram, he noticed that appellant Chhinga was throwing stones in the well and one Bhallu who has been acquitted by the trial court, was making exhortation that he be killed. Thereafter, Amol Singh came back to the village and stayed in the house of Sardar singh and has not narrated the story to anyone else. Thereafter, Amol Singh came back to the village and stayed in the house of Sardar singh and has not narrated the story to anyone else. It was also the case of the prosecution that appellant Chhingaram made an extra-judicial confession to Pappu (PW3)and Mansingh (PW6) regarding commission of murder of the deceased by him. The trial court after considering the evidence of amolsingh (PW10), Pappu (PW3) and mansingh (PW6) found that even if it is considered that Amol Singh was not the eyewitness, but he is witness of the incident that on 18. 5. 1995 the appellant Chhingaram was throwing stones in the well and another accused Bhallu was making exhortation to kill the deceased and also considered the evidence of extra-judicial confession made to both the witnesses Pappu (PW3) and mansingh (PW6) and found that the appellant is guilty for committing murder of the deceased and therefore convicted and sentenced him as stated above. However, the trial court acquitted co-accused Ballu as the allegation regarding exhortation was not found proved against him and further held that there is no evidence of extra-judicial confession against him. Being aggrieved by the aforesaid conviction and sentence, the appellant has preferred this appeal. ( 4. ) WE have heard Shri Sunil Soni, learned counsel appearing for the appellant, who has been appointed by the Legal Aid office and Shri V. S. Chaturvedi, learned public Prosecutor for the respondent/state. ( 5. ) LEARNED counsel for the appellant submitted that the evidence of Amol Singh (PW10) is not at all reliable as he was present in the village on next day but he has not narrated the story for 6-7 days to anyone though he is father-in-law of the deceased. His case-diary statement under section 161 of Cr. P. C. was recorded after 6 days on 25. 5. 1995. It is further submitted that the evidence of Pappu (PW3) and mansingh (PW6) so far as extra-judicial confession is concerned, is also not at all reliable and the evidence of bothe witnesses is contradictory to each other. It was submitted that Pappu (PW3) has admitted in his cross-examination that the relations between the appellant and him are not cordial and they were not talking to each other. Therefore, it was not possible to such a person that he will make confessional statement. The statement of Mansingh (PW6)was, also recorded after 7 days on 25. 5. It was submitted that Pappu (PW3) has admitted in his cross-examination that the relations between the appellant and him are not cordial and they were not talking to each other. Therefore, it was not possible to such a person that he will make confessional statement. The statement of Mansingh (PW6)was, also recorded after 7 days on 25. 5. 1995 though he remained in the village. Therefore, his version is after thought. In his cross-examination, various infirmities were also pointed during argument. Therefore, it is submitted that the conviction of the appellant is bad in law. In reply, Shri V. S. Chaturvedi, learned P. P. has supported the judgment of the trial court and submitted that there is no scope for any interferenceand the appeal be dismissed. ( 6. ) AFTER hearing, we have also scrutinized the evidence of the witnesses. It is clear that in this case there is no eye witness account and the case rests upon circumstantial evidence and evidence of extra-judicial confession. First of all, we examine the evidence of Amol Singh (PW10) who is father-in-law of the deceased and witness of last seen. In cross-examination, this witness has admitted that he has not inquired either from the appellant or from Bhallu as to why they were throwing stones in the well and who was in the well. Secondly, though this witness is fatherinlaw of the deceased but instead of staying in the house of his soninlaw in the night, he stayed in the house of Sultansingh and next day, when the deadbody was taken out from the well he was present in the village but he has not narrated the incident of previous evening to anyone, which raises serious doubt about truthfulness of his statement. Thereafter, he went back to his own village and his police casediary statement was recorded after 8-10 days. We have perused the Naksha panchayatnama (Ex. P/4) and we find that his son Aman Singh is the witness of this document, who was also present in the village when the deadbody was taken out from the well and he has not narrated the story to his son as well. This indicates that the evidence of the Amol Singh is either concocted or after thought and the same is not trustworthy. The trial court has not considered the aforesaid factors while placing reliance on the testimony of this witness. This indicates that the evidence of the Amol Singh is either concocted or after thought and the same is not trustworthy. The trial court has not considered the aforesaid factors while placing reliance on the testimony of this witness. Therefore, we are of the view that the evidence of Amol Singh (PW10) so far as the question of last seen is concerned, is neither reliable nor trustworthy and no conviction can be based on it. ( 7. ) THE second set of evidence is of Pappu (PW3) and Mansingh (PW6) to whom extrajudicial confession was made by the appellant. The statements of these two witnesses were recorded on 25. 5. 1995 though they were very well present in the village on the date of incident. Pappu (PW3) has admitted in the crossexamination that he was not in talking terms with the appellant. This admission in the crossexamination in para 3 clearly shows that when he was not in talking terms with the appellant then how the appellant will make confession to him. Therefore, in such circumstances it cannot be held that the evidence of Pappu (PW3)so far as extrajudicial confession is concerned, is reliable. The evidence of mansingh (PW6) is also not reliable as he has not given any cogent reply that why he has not disclosed about the confession by appellant to anybody else in the village when he has admitted in the crossexamination, that when the deadbody of the deceased was taken out from the well he was present there and he was knowing that the police is preparing Panchnama lash and before that appellant Chhingaram had already told him about confession. He has stated that thereafter he went out to attend some marriage and later on, police had called him in the house of Patel and his statement was recorded. Looking to this conduct, the evidence of Mansingh does not appear to be reliable, as he remained silent at the time of investigation and has not disclosed about the confession made by appellant to anyone. He admits that his statement was recorded in the house of Kishan singh Patel. Thus, the possibility of falsely implicating and bringing this kind of evidence against the appellant cannot be ruled out. ( 8. He admits that his statement was recorded in the house of Kishan singh Patel. Thus, the possibility of falsely implicating and bringing this kind of evidence against the appellant cannot be ruled out. ( 8. ) SHIBULAL (PW7) who is father of Pappu has deposed in his evidence that his son pappu has told him that he was informed by the appellant that he has killed Sewak and therefore the evidence of Shibulal is of hearsay in nature. As discussed above, we are of the view that the evidence of Pappu (PW3) and Mansingh (PW6) so far as extrajudicial confession is concerned is not reliable. Bhagwat Singh (PW1) is also cousin brother of the deceased and on the basis of his information, the Merg was registered, but he has not supported the prosecution evidence and was declared hostile. Then, Tufan Singh (PW2) who is also witness of seizurememo (Ex. P/5) but he has not supported the prosecution story, chandraprakash (PW4) has admitted that after getting merg information on 24. 5. 1995 the report was forwarded to SDM, Kolaras. Therefore, from the aforesaid evidence, it is clear that the evidence of Pappu (PW3)and Mansingh (PW6) is not trustworthy in nature and is not reliable and it would not be proper to base conviction on their evidence. No doubt on the evidence of extrajudicial Confession conviction can be based but that evidence requires corroboration and unless it is corroborated by some other cogent evidence, the conviction cannot be based simply thereon. ( 9. ) WHAT is the nature of evidence of extrajudicial confession and whether conviction can be based thereon, in the case of State of U. P. v. M. K. Anthony,1 the Supreme court has summarized the law relating to extrajudicial confession and in para 15 of the said judgment has observed as under: "there is neither any rule of law nor of prudence that evidence furnished by extrajudicial confession cannot be relied upon unless corroborated by some other credible evidence. The courts have considered the evidence of extrajudicial confession a weak piece of evidence. The courts have considered the evidence of extrajudicial confession a weak piece of evidence. If the evidence about extrajudicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility if it passes the lest, the extrajudicial confession can be accepted and can be the basis of a conviction, in such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extrajudicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon. " ( 10. ) IN the case of Narayan Singh v. State of M. P. ,2 the Supreme Court has held that it is not open to any court to start with a presumption that an extrajudicial confession is a weak type of evidence and it depends upon the veracity of the witnesses to whom it is made and it is for the court to decide on the acceptability the evidence having regard to the credibility of the witnesses. Again, in the case of Baldev Raj v. State of Haryana,3 the Supreme Court has laid down the law in para 9 as under: "an extrajudicial confession, if voluntary, can be relied upon by the court along with other evidence in convicting the accused. The value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made. It is true that the court requires the witness to give the actual words used by the accused as nearly as possible but it is not an invariable rule that the court should not accept the evidence, if not the actual words but the substance were given. It is for the court having regard to the credibility of the witness to accept the evidence or not. It is for the court having regard to the credibility of the witness to accept the evidence or not. When the court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, conviction can be founded on such evidence. Keeping these principles in mind, we find that the confession has been properly accepted and acted upon by the courts below and there is no scope for any doubt regarding the complicity of the appellant in the crime. The confession of the appellant was voluntary. The testimony of PW4 and PW5 being responsible persons could not be doubted in the absence of any material to show that they had been motivated to falsely implicate the appellant. The very presence of the appellant and his father with the party of Ishar Dass throughout the operation up to lodging of complaint at the police station dispel any suspicion against the prosecution case and clearly point to the truthfulness of the same. We are, therefore, unable to find any infirmity in the confession which has been accepted and relied upon by the courts below. " ( 11. ) AGAIN, in the case of Kavita v. State of t. N. , the Supreme Court has again reiterated the same principles that there is no doubt that convictions can be based on extrajudicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence and therefore, 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. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the court to decide on the acceptability of the evidence having regard to the credibility of the witnesses. ( 12. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the court to decide on the acceptability of the evidence having regard to the credibility of the witnesses. ( 12. ) IN the case of State of Punjab v. Gurdeep Singh, after considering the cases referred to above, again the Supreme Court has reiterated the same principles that in the matter of evidence of extrajudicial confession, the evidentiary value of the evidence depends upon the veracity of the witnesses to whom it is made and it can be treated as substantive evidence if there is found some assuring material or circumstance and the delay in recording extraju dicial confession before a person wholly unconnected with the police is always a matter of great suspect. ( 13. ) LEARNED counsel for the parties have also cited the judgment in the case of sharad Birdhichand Sarda v. State of Maharashtra on the point of conviction based on circumstantial evidence. ( 14. ) THUS, considering the aforesaid case laws, it is amply clear that the conviction can also be recorded on the basis of extrajudicial confession but that evidence must be reliable, trustworthy, beyond reproach and clinching in nature. In this case, as we discussed above, there is delay in recording the statements of Amolsingh (PW10), Pappu (PW3) and Mansingh (PW6) on whose statements the trial court has placed reliance. Evidence of Amol Singh (PW10) for last seen is not reliable at all. The prosecution case stands demolished when Pappu (PW3) deposed in his evidence that he was not in talking terms with the appellant and when both the witnesses Mansingh and Pappu being present on the spot, failed to inform to anyone about the incident whereas in their presence the deadbody of the deceased was taken out from the well and the Panchnama Lash was prepared. Their statements were recorded on 25. 5. 1995 for which there is no sufficient explanation and evidence of shibulal (PW7) is of hearsay nature. Thus, the conduct of the witnesses shows that their evidence is doubtful and is not worthy of credence. ( 15. ) FOR the reasons given above, we find that the findings recorded by the trial court suffer from infirmities and the prosecution has utterly failed to prove the case against the appellant beyond reasonable doubt. Thus, the conduct of the witnesses shows that their evidence is doubtful and is not worthy of credence. ( 15. ) FOR the reasons given above, we find that the findings recorded by the trial court suffer from infirmities and the prosecution has utterly failed to prove the case against the appellant beyond reasonable doubt. The conviction of the appellant under Section 302 of I. P. C. and sentence being not sustainable in law, is hereby set aside. Consequently, the appeal is allowed. The appellant is acquitted of the offence under section 302 of I. P. C. He shall be set at liberty if not warranted in any other criminal case. Appeal allowed.