JUDGMENT Hon’ble Amar Saran, J.—Criminal Appeal No. 7525 of 2007 preferred by the appellants was connected with Capital Jail Appeal No. 6362 of 2007, which the appellants have preferred from jail and with Reference No. 23 of 2007 sent by the Sessions Judge under Section 366 of the Code of Criminal Procedure (hereinafter referred to as the Code) for confirmation of the sentence of death awarded to the appellants under Section 302/34, IPC together with a fine of Rs. 10,000/- each. In default of payment of fine, the appellants were sentenced to two years additional imprisonment by the order of the Additional District Judge/Special Judge, S.C./S.T. Act, J.P. Nagar dated 31.8.2007. The appellants were also sentenced to two years’ R.I. and a fine of Rs. 1000/- each under Section 201, I PC and in default of payment of fine, the appellants were sentenced to three months additional sentence; three years’ R.I. under Section 377/511, I PC together with a fine of Rs. 1500/- each and in default of payment of fine, an additional sentence of 4 months; a sentence of one year’s R.I. under Section 379 I PC and to a sentence of one year’s R.I. also under Section 411, IPC. The appellant Balveer Singh was also convicted to imprisonment for life under Section 3(2) (v) S.C./S.T. Act and a fine of Rs. 10,000/- in default of payment of fine two years additional sentence. The appellant Mukesh was, however acquitted under the aforesaid charge as he himself was a member of the Scheduled Caste. 2. A report was lodged on 24.10.2001 at 8.45 p.m. by Hem Raj, PW 1, father of the deceased at P.S. Amroha Dehat at crime No. 490 of 2001 under Section 302, IPC against unknown persons. The allegations in the F.I.R. were that his son Vipin Kumar aged about 14 years had left his home with a darati on a bicycle at about 1.30 p.m. on the same day for cutting the maize crop. When the boy did not return till 7 p.m. then the informant became worried. He was then informed by his cousin brother Jaikar that the dead body of a boy is lying in the field of Shamsuddin, which was neighbouring his field. When the boy did not return till 7 p.m. then the informant became worried. He was then informed by his cousin brother Jaikar that the dead body of a boy is lying in the field of Shamsuddin, which was neighbouring his field. Then the informant accompanied by the Gram Pradhan and others went to the spot, where they found the dead body of his son lying in the field of Shamsuddin with a wire tied around his neck and an injury on his head. His stomach was also lacerated. Some unknown persons appeared to have committed the crime. 3. The Station Officer of P.S. Amroha Dehat registered the F.I.R. and got the inquest conducted, and thereafter sent the body for post-mortem after completing the necessary formalities. The post mortem which was conducted on 25.10.2001 at 1.50 p.m. at District Hospital, Moradabad by Dr. Sudhir Singh showed that the deceased Vipin Kumar was 14 years in age. One day had passed since his death and rigor mortis had passed off from the upper extremities, but was present in the lower extremities. The following ante mortem injuries were noted by the Doctor : (1) Ligature mark all around neck placed in middle of neck 29 cm x 0.4 cm. Margins are ecchymosed. (2) Multiple incised wound on left side scalp in an area of 15 cm x 10 cm. Minimum 2 cm x 0.3 cm scalp to 6 cm x 1 cm x scalp. (3) Incised wound on right side occipital region 4 cm x 1 cm x bone partial cut. (4) Stab wound on right limb region of front of abdomen 5 cm x 2 cm x abdominal cavity. Bowel loops are out of wound. (5) Abrasion on left arm lower end, 2 cm x 1 cm. 4. After completion of the investigation charges under Sections 302 read with 34, 201, 377, 379, 511, I PC and 3 (2)(v) of the S.C./S.T. Act were framed against the two appellants on 17.1.2002 by the Special Judge, to which the appellants pleaded not guilty and claimed trial. 5. This is a case of circumstantial evidence in which 11 witnesses were examined from the side of prosecution. Three witnesses A.P.W. 1 Smt. Phoolvati, A.P.W. 2 Data Ram Sharma, A.P.W.3 Inderwati and two Court witnesses C.W.1 Dr. Ashok Kumar and C.W. 2 Dr. 5. This is a case of circumstantial evidence in which 11 witnesses were examined from the side of prosecution. Three witnesses A.P.W. 1 Smt. Phoolvati, A.P.W. 2 Data Ram Sharma, A.P.W.3 Inderwati and two Court witnesses C.W.1 Dr. Ashok Kumar and C.W. 2 Dr. Ranjan Gautam were examined for proving the ages of the appellants Balveer and Mukesh in order to show that they were juveniles on the date of incident, so that they could get the benefit of the Juvenile Justice Act. The case of the appellants in their statements under Section 313, Cr.P.C. was of denial and they claimed to have been falsely implicated. 6. P.W. 1 Hem Raj, the father of the deceased Vipin Kumar aged 14 years was the informant of this case. He reiterated his version in the F.I.R. that his son had gone on his bicycle to his maize field for harvesting maize at about 1.30 p.m. on the date of incident. When the boy did not return till 7 p.m., they got worried. Thereafter his cousin brother Jaikar gave him an information that a dead body was lying in Shamsuddin’s field. When the informant reached that location alongwith the Pradhan and family members, he found that the dead body was of his son, who had injuries on his head and a wire was tied on his neck and his stomach was torn. It appeared that the body had been concealed in the field. After that he dictated the report to Jai Prakash (Ext. Ka-1), which he lodged at the police station at 8.45 p.m. After that the police reached the place of incident, and after completing the inquest, sealing the dead body and taking it into possession sent it for postmortem, which was conducted the next day. In his cross-examination he states that the earth near the corpse was blood stained and there were marks of brick injury.The body was lying naked. The field where the body was lying was about 500 metres from the village. He denied that the report was dictated by the Sub Inspector or that it was changed by Jai Prakash. 7. P.W. 2 Mujahid Hussain is a witness of the recoveries of this case. The field where the body was lying was about 500 metres from the village. He denied that the report was dictated by the Sub Inspector or that it was changed by Jai Prakash. 7. P.W. 2 Mujahid Hussain is a witness of the recoveries of this case. Six or seven days after the incident when he was working in his field the I.O. had asked him to accompany him as according to the I.O. as per information from an informer Balveer and Mukesh were standing nearby alongwith the cycle. At about 2 p.m. in the company of the police they apprehended the two accused persons when they were going from the crossing of Chak Dhanaura towards village Chupka. After their apprehension the accused confessed to the offence before this witness and the police. The police prepared a recovery memo of the cycle (Ext. Ka-2). The I.O. also took them to the field where the dead body was found. This was near Suresh’s field. The broken handle of a darati was found lying in Suresh’s field. Balveer picked up the handle and gave it to the police stating that he had committed an unnatural offence with the deceased Balveer and also stated that the blood which was lying nearby was that of the deceased. The I.O. collected the plain and blood stained earth from the spot. He also collected the piece of wire, which was present at the spot and which the accused claimed was the remaining piece of wire, after the other piece was tied round the neck of the deceased. The I.O. prepared the recovery memo of the handle of the darati and of the iron wire and plain and blood stained earth. The recovery memo was marked as (Ext. Ka-3). 8. P.W. 3 Amar Singh is another witness of recovery, who states that he had gone alongwith the I.O. to Chak Dhanaura crossing for apprehending Balveer and Mukesh, who were standing there with a cycle. The accused ran towards Chupka village seeing the police. On interrogation by the police after their arrest the appellants confessed having murdered Vipin and stated that the cycle belonged to Vipin. They also stated to have committed an unnatural act with Vipin. Police made the recovery of the cycle from the accused at the spot. The accused ran towards Chupka village seeing the police. On interrogation by the police after their arrest the appellants confessed having murdered Vipin and stated that the cycle belonged to Vipin. They also stated to have committed an unnatural act with Vipin. Police made the recovery of the cycle from the accused at the spot. After that the police took the accused to the place of murder from where they picked up a handle of a darati and a piece of wire. Some blood was also lying at the spot and the I.O. collected some plain and blood stained earth. He was also a witness of the recovery memo (Ext. Ka-3). He denied the suggestion that he was not a witness of the recovery from the appellants. 9. P.W. 4 Har Pal was examined for proving that the dead body of Vipin was found in the jungle of Salempur. There was a wire tied on the neck and a stone brick was lying nearby. There was blood on the head of the deceased and his stomach was lacerated. There was blood on the stone (Addha) and on the wire. The inquest was also prepared when S.I. B.L. Verma was present and he was made a witness of the inquest. The body was sealed and the half stone brick and wire etc., were taken into possession and the recovery memos prepared. Near the dead body the blood stained pant of the deceased was lying, which was also sealed and a recovery memo was prepared. Blood stained and plain earth was collected and their recovery memo was also prepared. After that the dead body was sent for post-mortem. In his cross examination at one point he states that the deceased was wearing full pant and shirt, thereafter he corrected himself that the pant was lying nearby. 10. P.W. 6 Dr. Sudhir Singh, who conducted post-mortem on Vipin Kumar on 25.10.2001 at 1.50 p.m. at District Hospital has described the ante-mortem injuries of the deceased which have been mentioned above. On internal examination he found the brain and membranes were congested, 6th to 9th ribs were fractured, the membranes of the left lung were congested, mucosa of the trachea was congested, both lungs were congested and on dissection dark blood came out. Vessels of the heart were congested. Pericardium was congested. On internal examination he found the brain and membranes were congested, 6th to 9th ribs were fractured, the membranes of the left lung were congested, mucosa of the trachea was congested, both lungs were congested and on dissection dark blood came out. Vessels of the heart were congested. Pericardium was congested. The right side was full of blood and the left side was empty. Peritoneum was perforated at various places and there was blood in the stomach cavity. One hundred and fifty grams of pasty meal was seen in the mucosa of the stomach. Large intestine and livers were congested. Spleen was lacerated and the right kidney was perforated on the front surface. The cause of death was strangulation. 11. The injury No. 1 could have been caused by strangulation with a wire. The other incised and penetrating wounds could have been caused by a darati. The deceased must have had meals six hours before the incident and there could be a margin of six hours on each side about the time of death of one day at the time of post-mortem, mentioned by the witness. 12. P.W. 7 Mushahid Hussain was the Pradhan of Village Kakar Sarai and a witness of the extra judicial confession. In the night of 8.11.2001 the appellants went to his place at about mid night and with folded hands asked for help after confessing to their guilt in committing the murder of Vipin. They confessed before him that Vipin was going to his maize field for cutting maize. They followed him and on the pretext of breaking guavas, they took him to Shamsuddin’s field. Then both of them asked him to take off his pant with the intention of committing sodomy with the deceased. When he resisted then, they throttled his neck with a wire. They tore his stomach with a darati, threw his corpse in the sugarcane field, and took away the cycle of the deceased. The said cycle was recovered from the accused later. He was also a witness of recovery of the cycle. On the pointing out of the accused, the handle of the darati, blood stained and plain earth were also taken into possession by the police from the spot. He was also a witness of the recovery memos of cycle (Ext. Ka-2) and the handle of darati and plain and blood stained earth (Ext. Ka-3). On the pointing out of the accused, the handle of the darati, blood stained and plain earth were also taken into possession by the police from the spot. He was also a witness of the recovery memos of cycle (Ext. Ka-2) and the handle of darati and plain and blood stained earth (Ext. Ka-3). He admits in his cross-examination to be closely associated with the police. He is also a witness of the site plan. He further stated that he was deposing for the first time in Court and did not depose earlier. He denied that he had falsely implicated the appellants on account of party bandi. 13. P.W. 8 Phool Kunwar has stated that on 24.10.2001 he was coming from the side of Pachaukara. When he reached near the well of Peeru in village Salimpur, then he saw Balveer and Mukesh, who belonged to his village, dragging a cycle from the field of Shamsuddin. Balveer had picked up the cycle from the back and Mukesh was holding the handle of the cycle. It was about 2.30 to 3 p.m. at that time. The same evening the dead body of Vipin, S/o Hem Raj Jatav was discovered in Shamsuddin’s field near the spot where Balveer and Mukesh were dragging that cycle. As he was afraid of the accused, he did not make a disclosure of the incident earlier to any one, but made the disclosure only when a panchayat was held in the village. He denies deposing in favour of Hem Raj because he belonged to his community and that he invented the story of the accused dragging the cycle of the deceased under the influence of Hem Raj. 14. P.W. 9 Nanhe Singh had deposed that on 24.10.2001 he was coming from his field towards his house in his village Kakar Sarai. Near the orchard of Haji Ansar at about 3.15 p.m. he met the appellants Balveer and Mukesh. They were both carrying a cycle and breaking its lock. When he asked them what they were doing, they asked him to remain quiet or they would kill him. Out of fear he went away. The cycle belonged to Hem Raj’s son Vipin Jatav. When the body of Vipin Jatav was found in the field in the evening, then he was convinced that these accused had killed him and hidden his body in Shamsuddin’s field. Out of fear he went away. The cycle belonged to Hem Raj’s son Vipin Jatav. When the body of Vipin Jatav was found in the field in the evening, then he was convinced that these accused had killed him and hidden his body in Shamsuddin’s field. The age of the appellants Mukesh and Balveer was about 17-18 years, the age of the deceased was 15 years at the time of incident. He denies the suggestion of not having met the accused on the date of incident. Police recorded his statement under Section 161, Cr.P.C. after 4 or 5 days. 15. P.W. 10 Fahimuddin alias Chamche had deposed that on the date of incident the paddy was being harvested in his field. He was sitting under a pilkhan tree near the Idgah. At about 1.15 to 1.30 p.m. Vipin was going on a cycle towards the jungle followed by the appellants, who belonged to his village. On the same evening he learnt that the corpse of Vipin was found lying in Shamsuddin alias Maluwa’s sugarcane field. As these two boys were vagabonds, he gave information of this fact to the villagers, on the same day and again after 7 or days to the I.O. In his cross-examination, he admits that the deceased had proceeded on that way about 1 or 1 1/2 hours prior to the time when he saw the appellants going in that direction and that he neither had any conversation with Vipin, nor with the appellants. He denies the suggestion of not having seen the appellants following Vipin. 16. P.W. 11 S.S.I. Harendra Singh, S.H.O. of P.S. Amroha Dehat deposed that on 24.10.2001 after the case was registered he commenced investigation into the same. Constable Clerk Ram Nath Singh prepared the chik F.I.R. (Ext. Ka-8) and made relevant entries in the G.D. (Ext. Ka-9) on the same day at 8.45 p.m. against unknown persons. He transcribed the chik F.I.R. and G.D. entry in his case diary and recorded the statements of Constable Clerks Ram Nath and Hem Raj and thereafter proceeded to the place of occurrence alongwith S.I., B. L. Verma and other police personnel. After arranging a petromax, the inquest was got prepared by S.I., B.L. Verma, who also prepared other police papers, like specimen seal, inquest report, photo lash, challan lash, report, to R.I. report for C.M.O. (vide Ext Ka-10 to Ka-15). After arranging a petromax, the inquest was got prepared by S.I., B.L. Verma, who also prepared other police papers, like specimen seal, inquest report, photo lash, challan lash, report, to R.I. report for C.M.O. (vide Ext Ka-10 to Ka-15). On the same day plain and blood stained earth were collected from the spot and the recovery memo (Ext. Ka-16) was prepared by S.I. B.L. Verma. A blood stained stone (Addha), a darati without handle and a piece of wire, which was tied around the neck of the deceased, were taken into custody by the police and recovery memo was prepared (Ext. Ka-17). Near the dead body, the pant of the deceased and blood stained T-shirt belonging to another person were taken into possession and the recovery memo was prepared (Ext. Ka-18). After that he continued the investigation throughout the night and reached village Kakar Sarai alongwith force and made enquiries and entered the recovery memo in the case diary. He also recorded the statement of Musahid Hussain and the statements of the inquest witnesses Har Pal, Rajvir Singh, Vikram, Harpal S/o Sahab Singh and Pritam Singh. He continued search of the accused throughout the night. In the morning of 25.10.2001 he recorded the statements of Jaikar and others. He inspected the spot and prepared the site plan (Ext. Ka-19). The Inspection note was entered in the case diary. He was shown the original receipt of the cycle, which had disappeared from the place of incident. On 27.10.2001 he recorded the statement of the scribe of the F.I.R. Jai Prakash. On 31.10.2001 on receiving the original copy of the inquest and post-mortem reports, he attached the copy of the original inquest and post mortem reports to the case diary. On 1.11.2001 he arrived in village Kakar Sarai, where he learnt that a village panchayat had been held in connection with the murder of the boy. He himself recorded the statements of Yadram, Fahimuddin alias Chamche, Phool Kunwar, Nanhe, Musahid Hussain and the names of the two appellants Balveer and Mukesh came to light. After searching for the accused he was present in the village Kakar Sarai where an informer told him that the accused Balveer and Mukesh have been seen at the crossing of the village Chak Ghanaura standing with a cycle. After searching for the accused he was present in the village Kakar Sarai where an informer told him that the accused Balveer and Mukesh have been seen at the crossing of the village Chak Ghanaura standing with a cycle. He thereafter proceeded to the spot taking Amar Singh and Mujahid alongwith him and arrested the accused persons, who had started running away towards village Chirka on the cycle on seeing the police jeep. Then the jeep followed and the police apprehended the accused persons (appellants) at a distance of about 150 paces from the spot. The appellants, who were apprehended together with the cycle, disclosed that on 24.10.2001 on the pretext of giving the deceased some guavas, took him into a turai field and attempted to commit unnatural offence with him. On his refusal and threats that he would disclose the matter in the village, the appellants got a wire from the turai field and tied the wire round the neck of the deceased for the purpose of strangulating him. As he did not die, they struck him with Vipin’s darati in the stomach. The handle of the darati was broken off and fell there. They dragged the dead body and kept it in the sugarcane field. They also stated that they had hit the deceased with a brick. They put the darati, brick stone, pant and shirt, which were lying near the dead body and they wiped the blood on their hands on the shirt of the deceased. The cycle of Vipin was standing near the maize field. They dragged it, and broke its lock subsequently. The nature of the offence was disclosed to the accused and they were taken into custody and the cycle was also taken into possession. The witness dictated the recovery memo of the cycle and appended his own and his witnesses signatures upon it (Ext. Ka-2). The thumb marks were also taken. The accused made a detailed confession to the police and agreed to show the place where the murder was committed and to get the darati recovered. Then the I.O. Harendra Singh took the jeep as directed by the accused on to the Ghanauri Salempur road. The jeep was made to stop near the mustard field of Vikram. The accused made a detailed confession to the police and agreed to show the place where the murder was committed and to get the darati recovered. Then the I.O. Harendra Singh took the jeep as directed by the accused on to the Ghanauri Salempur road. The jeep was made to stop near the mustard field of Vikram. The accused proceeded ahead and at the north western “medh” where there was a well, they proceeded in the eastern direction and from the field both the accused persons picked up the handle of the darati and confessed that the same had got broken at the time of the murder. They said that the blood lying at the spot was of the deceased. There, the hattha of the darati, the blood stained and plain earth and one foot piece of the wire were taken into possession. The handle of the darati and the piece of wire were wrapped in a cloth and sealed. Plain mud and blood stained mud were sealed in separate boxes. The recovery memo (Ext. Ka-3) was dictated to S.I., R.K. Singh. The S.C./S.T. Act was added on 1.11.2001, vide G.D. No. 35 at 19.30. After that the investigation was transferred to P.W. 5 C.O. Ajai Kumar Misra by whom after the investigation charge under Section 3 (2)(v) S.C. S.T. Act was added. He perused the earlier case diary. He also recorded the statements of recovery witnesses Mushahid Hussain and Amar Singh. He inspected the spot alongwith the S.O. on 29.11.2001 where on the confession of the accused, the materials were earlier collected. He submitted charge-sheet (Ext. Ka-4) No. 123/01. A second spot inspection and third site plan were prepared and signed by him (Ext. Ka-5 and Ka-6). 17. On the view that we are taking of this evidence, there will be no need to discuss the evidence of the witnesses, who have been produced to prove the age of the appellants or the medical or the Court witnesses on this point. The appellants in their statements under Section 313, Cr.P.C. claimed to be innocent and to have been falsely implicated. 18. We have heard Sri R.K. Vaish, learned Counsel for the appellants and Sri A.N. Mulla, learned A.G.A. for the State. 19. The appellants in their statements under Section 313, Cr.P.C. claimed to be innocent and to have been falsely implicated. 18. We have heard Sri R.K. Vaish, learned Counsel for the appellants and Sri A.N. Mulla, learned A.G.A. for the State. 19. It was submitted by the learned Counsel for the appellants that this is a case of circumstantial evidence and the links in the chain of circumstances are not so consistent and complete so as to justify an order of conviction in the case of circumstantial evidence. The F.I.R. was lodged against unknown persons. The dead body of the deceased was not recovered at the instance of the appellants. The link evidence for showing that the cycle belonged to the deceased, which was recovered from the accused when they were arrested on 1.11.2007 is not convincing. No reason existed for the accused for carrying the cycle with them so many days after the crime, as that could have resulted in connecting them with the offence and the same could have been planted on them, if it at all belonged to the deceased, for involving them in this crime. The alleged extra judicial confession to the police at the time of the apprehension is inadmissible and hit by Sections 25 and 26 of the Evidence Act. Likewise the alleged joint recovery of the handle of the darati from the accused when they were apprehended in the case of murder, appears to be cooked up and it appears that after it was picked up from the spot by the police when the dead body was recovered, it was planted on the appellants at the time of their arrest for involving them in the crime. Significantly no blood was found on the handle of the darati or wire which was claimed to have been recovered at the instance of the appellants. No reliance could be placed on the alleged extra judicial confession made to Mushahid Hussain, the village Pradhan, who was a pocket witness of the police, and was also witness of the recoveries. No good reason existed for the appellants to confess before him. 20. No reliance could be placed on the alleged extra judicial confession made to Mushahid Hussain, the village Pradhan, who was a pocket witness of the police, and was also witness of the recoveries. No good reason existed for the appellants to confess before him. 20. Sri A.N. Mulla, learned A.G.A. on the other hand contended that it appears from the evidence collected that there was no reason for false implication of the appellants and there were good reasons for recording the conviction of the appellants and there was no illegality in the order of the Sessions Judge recording the conviction of the appellants. 21. On an analysis of the evidence, we are of the opinion that the evidence is not of the sterling quality required for recording a conviction in a case of circumstantial evidence. 22. The principles for appreciation in a case of circumstantial evidence have been aptly enunciated in Padala Verabira Reddy v. State of A.P., 1989 Supp (2) SCC 706, in paragraph 10, on pages 710-711, which we respectfully adopt. The principles laid down are as follows : “10. (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 guilt of the accused; (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; and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” 23. In this case, the F.I.R. had been got registered by Hem Raj father of the deceased against unknown persons on 24.10.2001 for having committed murder of his child Vipin aged 14 years, whose corpse had been found lying in the sugarcane field of Shamsuddin, which information was conveyed to Hem Raj by his cousin brother Jaikar. We think that the manner in which the names and complicity of the appellants had been disclosed is too dramatic to be believed. 24. We think that the manner in which the names and complicity of the appellants had been disclosed is too dramatic to be believed. 24. Investigating Officer P.W. 11 S.S.I. Harendra Singh deposes that 7 days after the incident, i.e. on 1.11.2001 he arrived in village Kakar Sarai where he learnt that a village Panchayat had been held in connection with the murder of the boy. In this Panchayat, it seems that the witnesses had blurted out the names of the appellants. The I.O. then proceeded to record statements of the witnesses, who have been examined in this case, viz. Mushahid Hussain, P.W. 7, Gram Pradhan of the village Kakar Sarai, who claims that the appellants made an extra judicial confession to him in the night of 8.11.2001. Obviously this date is wrong because the Investigating Officer had examined this witness on 1.11.2001, but this mention of a wrong date appears more the result of confusion and does not constitute a ground for disbelieving the extra judicial confession to this witness. There are other reasons however for doubting the credibility of this witness. The appellants are said to have gone to this witness at about mid night and to have confessed their guilt in committing the murder of Vipin after describing how they had followed Vipin when they saw him going into the maize field for cutting maize and how they enticed him into the field of Shamsuddin for breaking guavas, where both of them tried to commit sodomy with the deceased. When he resisted, they throttled his neck with a wire and then tore his stomach with a darati and threw his corpse into the sugar cane field and then concealed the cycle of the deceased. For one thing this witness admits to being closely associated with the police. Moreover he seems more than willing to be an omnipresent witness for the police for every purpose. Thus, he is not only the witness of the extra judicial confession, but also of the recovery of the cycle from the accused later and the recovery of the handle of the darati, blood stained and plain earth at the instance of the accused. This over-enthusiasm to help out the police to work out this case casts great suspicion on the integrity and veracity of this witness. This over-enthusiasm to help out the police to work out this case casts great suspicion on the integrity and veracity of this witness. There is also little reason for the accused appellants to have gone for making an extra judicial confession to this witness and it appears that the witness has deposed about the extra judicial confession to oblige the police because of his closeness to it. His disclosure to the police was also not immediate, but after the panchayat that was held in the village after a few days. There was also no effort by the police to get the confessional statement of the accused recorded by a Magistrate under Section 164 of the Code after issuing the necessary warnings, which would have gone a long way for supporting the case of the prosecution. 25. It is true that if the evidence of the person, to whom the extra-judicial confession has been made is of irreproachable character when tested on the touchstone of reliability and credibility, and where there is no reason to entertain a doubt about the veracity of the confession, there is no requirement in each case to treat the evidence of extra-judicial confession as invariably of weak or of tainted character or one on which no reliance can be placed unless it is corroborated by independent evidence. But the Courts have also emphasized that the words used by each accused have to be precisely reproduced, and there must be closeness or good reason for the accused to repose confidence in the witness for making the extra judicial confession to him, and it has to be seen whether the witness passes the test of reliability and credibility for the extra-judicial confession made to him to be found to be acceptable for the purpose of recording the conviction of the accused. In this connection it would be useful to cite paragraphs 17 and 18 from the decision of the apex Court in AIR 1982 SC 1595 , Heramba Brahma v. State of Assam, which has enunciated these principles and also alluded to another decision of the apex Court in Rahim Beg v. State of U. P., (1972) 3 SCC 759 : ( AIR 1973 SC 343 ). “17. This is all his evidence in examination-in-chief. Now, who is this witness? “17. This is all his evidence in examination-in-chief. Now, who is this witness? This witness Bistiram was arrested for having committed an offence of dacoity and while he was in jail, according to him, the aforementioned three accused including the present appellants were, possibly with him in jail, when this dubious extra-judicial confession is alleged to have been made to him. This extra judicial confession is vague and ambiguous because it is not clear whether each one spoke separately and what were the words used by each of the accused. Witness speaks of an extra-judicial confession by three accused persons having simultaneously made and when reproduced in his language, it makes no sense. It is dangerous to rely upon such extra-judicial confession even if the witness’s credentials are not in question. The question that agitates our mind is what language was used by each accused, in what words confession was made and whether each used the same language? Evidence of the witness does not reproduce the words used by each accused. It is the witness’s ipse dixit that is being deposed to. And examine the credibility of the witness. And who is that witness ? Here is an undertrial prisoner awaiting trial for dacoity. We fail to see how these young boys should confide in this person suspected of dacoity. But, the most objectionable part of this concocted evidence is as to how the Investigating Officer came to know that the three accused persons made an extra-judicial confession to another undertrial in jail. What led the investigating Officer of the present case to question an undertrial? Or did the witness of his own accord approach the investigating officer? Was this witness trying to please the Investigating Officer by approaching him that he would speak about the confession? Was there any quid pro quo ? We put searching questions and waited for the answer in vain. 18. We are at a loss to understand how the High Court accepted the evidence on this extra-judicial confession without examining the credentials of PW 2 Bistiram; without ascertaining the words used; without referring to the decision of this Court to be presently mentioned wherein it is succinctly stated that extra-judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed. In Rahim Beg v. State of U.P., (1972) 3 SCC 759 : ( AIR 1973 SC 343 ). this Court while examining the evidence as to extra-judicial confession made by two accused to Mohmed Nasim Khan (P.W. 4) observed that : “There was no history of previous association between the witness and the two accused as may justify the inference that the accused could repose confidence in him. In the circumstances, it seems highly improbable that the two accused would go to Mohmed Nasim Khan and blurt out a confession.” (Emphasis added) 26. Another witness examined by the Investigating Officer on 1.11.2001 was P.W. 10 Fahimuddin alias Chamche. The story narrated by this witness 7 days after the incident to the police was that on the date of incident at about 1.15 to 1.30 p.m. he was sitting on the road by the side of the mosque under a pilkhan tree because his paddy was being harvested when he saw Vipin going towards the field on a cycle and that the appellants were following him. In his cross-examination, he states that it was after 1 or 1-1/2 hours after Vipin had passed that way, that he saw the two appellants going in that direction. Therefore, he could not be described as a witness, who last saw the appellants together with the deceased. He admits that by the road on which the appellants were going leads towards Dhanaura as well as towards Amroha. As held in the recent decision in AIR 2007 SC 2957 , Harishchandra Ladaku Thange v. State of Maharashtra when the accused and the deceased were not even last seen together, but at some distance apart, then the incriminating circumstance of the accused and the deceased having last been seen together would not even apply to such a case : “16. So far as the last seen plea of the prosecution is concerned, it is to be noted that PW-4 had not actually seen the accused and the deceased together. What he had said was that the accused was present at some distance nearby the field. That actually does not bring in the concept of accused and the deceased being seen together last. If that was so, the logic equally applies to PW-4 also.” 27. One other witness, who was examined by the Investigating Officer was P.W. 8 Phool Kunwar. What he had said was that the accused was present at some distance nearby the field. That actually does not bring in the concept of accused and the deceased being seen together last. If that was so, the logic equally applies to PW-4 also.” 27. One other witness, who was examined by the Investigating Officer was P.W. 8 Phool Kunwar. This witness has deposed that he was proceeding from the side of Pachkaura to his village Salimpur then he saw the appellants dragging a cycle from the side of Shamsuddin’s field. Balveer had picked up cycle from its rear side and Mukesh was holding the handle of the cycle. It was about 2.30-3.00 p.m. at that time and that on the same evening, dead body of Hem Raj Jatav’s son Vipin was found in Shamsuddin’s field. Even though he had seen the appellants dragging the cycle, because they were dangerous persons, he did not disclose this matter to any body until the panchayat was held, when he made the disclosure to the Panchayat member and thereafter to the Investigating Officer. It is not probable that the appellants, who were young persons and who admittedly were not more than 17 or 18 years in age and who have not been reported to have any criminal history, would after committing the crime be dragging the cycle near the field. A dare devil felon might adopt such an attitude, but under normal circumstances if a person has been murdered at the hands of the accused, he would like to get away from the scene of crime as soon as possible and not remain there tussling with the cycle of the deceased so that he could be connected with the crime. Moreover, if this witness had indeed seen the appellants dragging the cycle near Shamsuddin’s field and the body of the deceased was found in the field on the very same evening then this witness would have immediately made this disclosure to his fellow villagers or the police and thus his belated disclosure is another reason why little value can be attached to the testimony of such a witness. He had even gone near the dead body of the deceased immediately after it was found. The Pradhan and other witnesses were present, yet he had not then made any disclosure about seeing the appellants carrying the cycle. 28. He had even gone near the dead body of the deceased immediately after it was found. The Pradhan and other witnesses were present, yet he had not then made any disclosure about seeing the appellants carrying the cycle. 28. Another witness P.W. 9 Nanhe Singh has also disclosed only after the panchayat to the police (which would be after 7 days) that on the date of incident he was returning from his field to his village Kakar Sarai. Near the orchard of Haji Ansar at about 3.15 p.m. he saw the appellants, who had a cycle with them trying to break its lock. When he questioned them as to what they were doing, they asked him to go away or that they would kill him. This cycle belonged to Vipin Jatav. When his dead body was found in the night, then he became convinced that it were the appellants, who had committed the murder. The cycle, whose lock the appellants were breaking, was a new Hero cycle. The appellants were only 17 or 18 years in age at the time of incident. Again if this witness had seen the appellants breaking the lock of the cycle near the place where the dead body was discovered on the same day, it is not believable that he would not have disclosed about this fact on the same day to the other witnesses or the police and to have come out with the story only about 7 days after the incident when the panchayat was held in the village. Furthermore, it is hard to conceive that after committing such a crime, the appellants would have remained near the scene of the crime after the incident, and attempted to break the lock of the cycle and to take away the cycle with them, as they are not shown to be dare devil criminals with a criminal history, but only youths who were hardly 17 or 18 years old. 29. What is even more unbelievable and dramatic is the evidence of P.W.2 Mujahid Hussain and P.W. 3 Amar Singh, who are the witnesses of the recovery of the cycle. P.Ws. 2 and 3 state that 6 or 7 days after the incident, the Investigating Officer met them and informed them that an informer had disclosed that the appellants Balveer and Mukesh were standing near the Chak Dhanaura with a cycle. P.Ws. 2 and 3 state that 6 or 7 days after the incident, the Investigating Officer met them and informed them that an informer had disclosed that the appellants Balveer and Mukesh were standing near the Chak Dhanaura with a cycle. After that they went with the police towards village Chupaka. At about 2 p.m. the police apprehended the accused, who confessed before the police that they had murdered Vipin because they were trying to sodomise him and that they were carrying Vipin’s cycle. Apart from the confession before the police being inadmissible in view of Sections 25 and 26 of the Evidence Act, it is wholly unbelievable that the accused would be carrying the cycle of the deceased with them seven days after the incident to be meekly arrested by the police with that cycle in order to create evidence to link the appellants with the crime. 30. It is also noteworthy that according to this witness, PW 2, the cycle was black and slightly old, whereas according to P.W. 9 it was a new Hero cycle whose locks the appellants were breaking on the date of incident. As per the recovery memo of the cycle (Ext. Ka-2) the cycle, which was taken in possession from the appellants, was an Atlas Gold Line Super cycle, when they were arrested. Significantly, the informant Hem Raj P.W. 1, father of the deceased has not even asserted that the said cycle, which was recovered from the appellants, belonged to the deceased. Therefore, apart from the inadmissible extra judicial confession before the police and other witnesses, there is no material for establishing that the cycle, which was allegedly recovered from the appellants belonged to the deceased as Hem Raj, the informant and father of the deceased alone would have been the best person, who could have deposed to this fact. 31. All these circumstances go to show that the police has made a desperate attempt to foist a cycle claiming it to be of the deceased on the appellants in order to somehow create some kind of evidence to connect the appellants with the crime, in a case in which essentially the evidence is not of such a nature for reaching a conclusive finding of the complicity of the accused. 32. 32. It has further been deposed by Mujahid Hussain P.W. 2 and Amar Singh P.W. 3 that after the above recoveries the appellants took the Investigating Officer to the place where the dead body was found and from the nearby field of Suresh they picked up the broken handle of the darati and handed it over it to the police and also pointed out the blood of the deceased lying on the ground. They also produced a piece of wire, which was lying there, which they claimed was the remaining piece of wire, after breaking off the part with which they had strangled the deceased. Significantly, neither the handle of the darati, nor the wire was blood stained and in these circumstances it appears more probable that the Investigating Officer had found these visible items at the spot and had decided to foist these items on the appellants so as to show a discovery of the said items at their instances for implicating them in the offence. Also the recoveries are of little value as they are joint recoveries and the precise statements made by the two appellants at the time of getting the alleged items discovered has not been mentioned in the evidence. [Vide Ramkishan v. Bombay State, AIR 1955 SC 104 , Babu v. State, 1972 Cri.LJ. 815 (All), and Oudh Ram v. State, 1982 Cri.LJ. 1656 (Del)]. 33. For the following reasons we are of the opinion that in this case of circumstantial evidence the circumstances collected in this case and the links in the chain are not of such a cogent and clinching nature as to lead to the only inference of the guilt of the accused and to be incompatible with their innocence : (1) The doubtful nature of the recovery of the cycle of the deceased and the improbability of the accused being arrested with the cycle of the deceased seven days after the incident so as to create incriminating material against themselves and the absence of link evidence (including that of the informant) for establishing that the cycle allegedly recovered from the appellants belonged to the deceased. (2) The unreliability of the alleged extra judicial confession of the appellants before PW 7 Mushahid Hussain, Gram Pradhan who was a pocket witness of the police, and who was an omnipresent and all purpose witness for the police in this case and the absence of any good reasons for the appellants to have gone to him for making the extra-judicial confession. (3) The absence of any effort by the police to get the alleged confessional statement of the appellants recorded by a Magistrate under Section 164, Cr.P.C. (4) The improbability of the accused dragging the cycle as witnessed by PW 8 Phool Kunwar, or breaking its lock to carry it away with them immediately after committing murder of the deceased after a foil attempt to sodomize him as they were not known felons and of being seen doing these acts by the witnesses. (5) The absence of any value of the evidence of Fahimuddin alias Chamche P.W. 10 who had allegedly seen the appellants passing by that way 1-1/2 hours after the deceased had gone that way for linking the appellants with the offence as the same did not constitute evidence of last seeing the appellants and the deceased together. (6) The non-utility of the confession of the accused before the police and the witnesses P.Ws. 2 and 3 and the absence of value of the alleged joint recoveries of the cycle, broken handle of the darati (which was not blood stained) and the piece of wire from the place where the dead body was discovered at the instance of the appellants when they were arrested on 1.11.2001 and which appeared to have been foisted by the police in a desperate attempt to create some evidence against the appellants. (7) The highly belated disclosures of the witnesses of various circumstances before the police for which there is no reasonable explanation, which also impair the value of the evidence of these witnesses. 34. One contention raised by Sri A.N. Mulla, learned A.G.A. was that there was little reason for the appellants to have been falsely implicated in this crime, if they were not connected with it. Here we can do no better than to quote the following words from Y.V. Chandrachud C.J.I. speaking for the bench in two decisions of the Apex Court, viz. Here we can do no better than to quote the following words from Y.V. Chandrachud C.J.I. speaking for the bench in two decisions of the Apex Court, viz. Prem Thakur v. State of Punjab, AIR 1983 SC 61 (at para 11) and Shankarlal Gyarasilal Dixit v. State of Maharashtra, AIR 1981 SC 765 : (1981 Cri LJ 325) (paragraphs 33 and 34) which are to the effect that the human mind resists the tendency to admit that a crime is unsolvable and seeks to invent material to solve a crime, and to involve some persons as responsible for it, even if there may not be adequate evidence to connect those persons with the crime. 35. In this connection the relevant para quoted from Prem Thakur’s case reads as follows : "11. The High Court could not but be aware of the principle that in a case which depends wholly upon circumstantial evidence, the circumstances must be of such a nature as to be capable of supporting the exclusive hypothesis that the accused is guilty of the crime of which he is charged. That is to say, the circumstances relied upon as establishing the involvement of the accused in the crime must clinch the issue of guilt. Very often, circumstances which establish the commission of an offence in the abstract are identified as circumstances which prove that the prisoner before the Court is guilty of the crime imputed to him. An a priori suspicion that the accused has committed the crime transforms itself into a facile belief that it is he who has committed the crime. Human mind plays that trick on proof of the commission of a crime by resisting the frustrating feeling that no one can be identified as the author of that crime. In the case before us, there is no doubt that five persons were murdered. Unquestionably, every effort had to be made to find out who committed those murders. But the duty is not done by holding someone or the other guilty somehow or other. In the instant case, the circumstances attendant upon the incident militate entirely against the conclusion that the five murders were committed by the appellant. The very pattern of the crime belies that conclusion." (Emphasis added) 36. Paragraphs 33 and 34 of Shankarlal Gyarasilal Dixit may also be usefully extracted : "33. In the instant case, the circumstances attendant upon the incident militate entirely against the conclusion that the five murders were committed by the appellant. The very pattern of the crime belies that conclusion." (Emphasis added) 36. Paragraphs 33 and 34 of Shankarlal Gyarasilal Dixit may also be usefully extracted : "33. Our judgment will raise a legitimate query : If the appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely? The answer to such questions is not always easy to give in criminal cases. Different motives operate on the minds of different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions. In the instant case, the dead body of a tender girl, raped and throttled, was found in the appellant’s house and, instinctively, everyone drew the inference that the appellant must have committed the crime. No one would pause to consider why the appellant would throw the dead body in his own house, why would he continue to sleep a few feet away from it and whether his house was not easily accessible to all and sundry, as shown by the resourceful Shrinarayan Sharma. No one would even care to consider why the appellants name was not mentioned to the police until quite late. These are questions for the Court to consider. 34. The folks of Karanja had a grouse against the appellant. He had made a nuisance of himself to his family and friends, neighbours and tenants. The small world of Karanja was up in arms against him. He had assaulted his mother and brother a few days before the incident. He had a quarrel with Shilabai, his tenant, on the very day of the incident. He was an idler and had no means of livelihood. The description of his clothes at the time of his arrest is an eloquent commentary on the way of his life. He was wearing two full pants, one on top of another, not because he had one too many to wear but because, one of the two pants was torn at awkward places and he had to hide his shame. It was torn on both the hips as well as the centre. He was wearing two full pants, one on top of another, not because he had one too many to wear but because, one of the two pants was torn at awkward places and he had to hide his shame. It was torn on both the hips as well as the centre. The left leg of the pant was torn over two feet and the right leg over half a foot. The shirt on his person was torn all over. The right arm of the shirt was hanging precariously by the rest of the torn portion of his shirt. The Karanja community must have heaved a sigh of relief that a person who was so good-for-nothing was ultimately in the hands of law. Such people have no partisans. But that does not mean that justice can be denied to them.” (Emphasis added) 37. From the view that we have taken of the evidence there will be no need to go to the other argument raised by the learned Counsel for the appellants that the accused, are juveniles and should have been given the benefit of the Juvenile Justice Act or to discuss the evidence of A.P.W. 1, 2, 3 and C.W. 1 to C.W. 4 which have been taken to estimate the ages of the appellants. 38. For the aforesaid reasons, we think that the prosecution has not succeeded in establishing the guilt of the appellants beyond reasonable doubt. 39. The appeal succeeds and is allowed. The reference is rejected. The judgment and order of the learned Additional District and Sessions Judge/Special Judge (S.C. ST.) Act, J.P. Nagar in Special Trial No. 3/2002, State v. Balveer and another (case crime No. 490/2001 of P.S. Amroha Dehat) convicting the accused appellants under Sections 302/34, 201, 377/511, 379, 411, I.P.C. and further convicting the accused appellant Balveer Singh under Section 3 (2)(v) of the S.C./S.T. (Prevention of Atrocities) Act are set aside and both the accused appellants are acquitted of all these charges. 40. The appellants, who are in custody, are directed to be released forthwith if not wanted in any other case. 41. Office is directed to send a copies of this order to the Special Judge S.C.ST. Act and to the Chief Judicial Magistrate concerned for necessary compliance. ————