Research › Search › Judgment

Delhi High Court · body

2008 DIGILAW 601 (DEL)

MOHO. JAMIL v. STATE OF NCT OF DELHI

2008-05-30

H.R.MALHOTRA, SUNIL GAUR

body2008
JUDGMENT Sunil Gaur, J.-As the above titled four appeals arise out of common impugned judgment rendered by trial Court on 16th day of October 2004, therefore, they are being heard and disposed of together by this common judgment by us. 2. First, the factual backdrop. On the night intervening 12th and 13th September 2001, at about 4.45 a.m. (i.e. in the early hours of the morning) Isham Singh, a Sanitary Inspector of Municipal Corporation of Delhi was found lying dead on the roof of his house and this was discovered by his wife who had gone upstairs to wake up her husband. Smt. Indira, wife of the deceased, raised alarm and her minor children as well as her neighbours came there and the police was called and she had told in her statement to the local police that some unknown person had killed her husband by firing at him. The law was set into motion and during the course of the investigation, inquest was carried out, statement of witnesses were recorded, spot proceedings were completed. 3. As per prosecution story goes, there was lull in the investigation till 29th September, 2001 i.e. for about a fortnight. On 26th day of September, 2001, FIR No. 530101 under Sections 399 I 402 of IPC and under Section 25 of the Arms Act was registered in PS Maurice Nagar, after the arrest of the four appellants herein and from appellant Mohd. Jahangir, country made pistol and from appellant Mohd. Fazlu a knife and from appellant Mohd Jamil, a Churra and from appellant Mohd. Yunus, a knife was recovered. The four appellants herein had purportedly made a disclosure statement in the abovesaid FIR regarding their involvement in commission of this crime. However, on the day of the incident itself i.e. on 13.9.2001, Yuvraj (PW-8) and Mahesh (PW-14) had made statement to the police that they had seen the assailants I accused near the house of the deceased. Since adequate description of the assailants was not given by the aforesaid witnesses, therefore, no effective steps to trace out the assailants could perhaps be taken during the course of the investigation till 26th September, 2001, when appellants herein are said to have made disclosure statement in another FIR No. 530/01. On 28.9.2001 one Noar Islam (PW-12) is stated to have goneto PS Sultan Puri and had disclosed about appellant Mohd. On 28.9.2001 one Noar Islam (PW-12) is stated to have goneto PS Sultan Puri and had disclosed about appellant Mohd. Jahangir having confessed about the actual involvement of the appellants herein in commission of this crime. The four appellants herein were arrested in this case and their disclosure statements in this case were also recorded and after completion of investigation, charge-sheet under Sections 302/34 of IPC was filed against these four appellants and they pleaded not guilty and had claimed trial. 4. During the trial of this case, twenty five witnesses have deposed in support of the prosecution case and the main witnesses of the prosecution are Smt. Indira (PW-7), wife of the deceased and Yuvraj (PW-8) and Mahesh (PW-14) are the witnesses of the circumstance of the "last seen". Noor Islam (PW -12) is the star witness of the prosecution as he has claimed that appellant Mohd Jahangir had made extra-judicial confession to him regarding the commission of this crime by the four appellants herein. The medical evidence consists of the postmortem report Ex. PW10/ A which proves that the cause of death was hemorrhagic shock subsequent to massive laceration of the heart and lung, due to fire arm injury. Inspector Manohar Singh (PW-24) is the Investigating Officer (10) of this case. The aforesaid is the sum and substance of the prosecution case. 5. There is a bald denial to the prosecution case by all the four appellants in their statement recorded under Section 313, Cr.P.C. by the trial Court and they have not chosen to lead any evidence in their defence. 6. After the trial, all the four appellants have been convicted and sentenced vide impugned judgment dated 16th October, 2004 and order dated 27th October, 2004 to imprisonment for life and a fine of Rs. 2000/ - each and in default of payment of fine, they have to further undergo rigorous imprisonment for six months. Hence the present four appeals. 7. On behalf of the four appellants, submissions have been advanced by Ms. Anu Narula, Advocate representing for appellant Mohd Jahangir. Shri Bhupesh Narula, learned Counsel for appellants Yusuf and Fazlu and Shri D.M. Bhalla, Advocate on behalf of appellant Jamil have adopted the submissions already made. 8. Hence the present four appeals. 7. On behalf of the four appellants, submissions have been advanced by Ms. Anu Narula, Advocate representing for appellant Mohd Jahangir. Shri Bhupesh Narula, learned Counsel for appellants Yusuf and Fazlu and Shri D.M. Bhalla, Advocate on behalf of appellant Jamil have adopted the submissions already made. 8. The common defence taken by the four appellants is that they were illegally arrested in a case under Sections 399/402, of IPC and by fabricating their disclosure statements, this false case has been foisted upon them. It has been urged on behalf of the appellants that in a circumstantial evidence case like the present one, motive plays an important role and is pivotal to the prosecution case. It is pointed out by the defence that no robbery has been committed at the house of the deceased nor any attempt to do so has been made and in fact the present case has no legs to stand on as the prosecution has failed to prove as to what was the motive for the appellants to commit the murder of Isham Singh. The probability of the prosecution case is sought to be demolished by the defence by contending that the way to go to the roof was through the stairs which was from inside the house and had there been any motive to commit robbery, then the assailants would not have gone to the roof of the house of the deceased and would have gone inside the house of the deceased. While referring to the medical evidence, it has been pointed out by the defence that there is no mark of any such injury which could indicate that there was any struggle or resistance from the side of the deceased. 9. While referring to the evidence on record, defence has pointed out that at about 5.00 a.m. on the unlucky day of this incident i.e. 13th day of September, 2001, Smt. Indira (PW-7), the wife of the deceased had gone to the roof of her house and had raised alarm on seeing her husband Isham Singh lying in a pool of blood. It is pointed out by the defence that it stands revealed from the evidence on record that the neighbours were also sleeping on the adjoining roofs of their houses and when alarm was raised by the wife of the deceased, some persons were peeping from their roofs. It is pointed out by the defence that it stands revealed from the evidence on record that the neighbours were also sleeping on the adjoining roofs of their houses and when alarm was raised by the wife of the deceased, some persons were peeping from their roofs. Thus, it is contended that it is highly unlikely that the neighbourers sleeping on the adjoining roofs would not hear the noise while he was being shot from a country made pistol. According to the defence, had it been an attempted case of robbery, then there would have been some kind of injury evidencing any struggle or resistance by the deceased. 10. Our attention has been invited by the defence to the cross-examination by the defence of Mahesh (PW-14) to show that the assailants were having their faces muffled i.e. there was a cloth on their mouth, up to the nose and he could not assess their approximate age. It is pointed out by the defence that this witness PW-14 claims to have seen the assailants inside and outside the Court after about one month of this incident and he had told the police that they were the assailants and he had identified them after about a fortnight in the Tihar Jail. It has been contended on behalf of the appellants that the refusal to participate in the Test Identification Parade (herein after referred to as TIP) by appellant Mohd Jahangir was well justified and identification of the remaining three appellants by this witness in the TIP and in the Court loses its significance as this witness had already seen them inside and outside the Court after about one month of this incident. Furthermore, it is urged on behalf of the appellants that the descriptive features of the assailants were not given in the First Information Report (FIR) and in absence thereof, identification of the three appellants in the TIP and in the Court becomes meaningless and ought not to be relied upon. 11. The evidence of Noor Islam (PW -12) is assailed by the defence on the ground that why would appellant Jahangir make the alleged extra- judicial confession to him, especially when the acquaintance of appellant Jahangir 1 with this witness PW-12 was quite recent one i.e. just a month old. 11. The evidence of Noor Islam (PW -12) is assailed by the defence on the ground that why would appellant Jahangir make the alleged extra- judicial confession to him, especially when the acquaintance of appellant Jahangir 1 with this witness PW-12 was quite recent one i.e. just a month old. According to the defence, this witness PW -12 is handicapped in the sense that he is blind and his identification of appellant Jahangir on the basis of voice is a weak piece of evidence and the reliability of this witness PW-12 stands greatly reduced as he does not report to the police promptly regarding the alleged extra-judicial confession made by appellant jahangir of having committed murder in the gali near PS Budh Vihar. Learned Counsel for the appellants have contended that extra-judicial confession is normally made to a person who is in authority and is able to help the persons who allegedly confide in him and it is not shown from the evidence of this witness if he was in any position to help appellant Jahangir in any way or was able to save him from punishment. It is also pointed out by the defence that as per the evidence of this witness PW-12, his signatures were obtained by the police and this is not possible because this witness is blind since his childhood. Thus, according to the defence, the circumstance of extra judicial confession does not stand proved. 12. The circumstance of last seen is assailed by the defence by referring to the infirmity in the evidence of Yuvraj (PW-8) regarding his asking the assailants (who were stranger to him) as to from where they were coming and about assailants replying to this witness (PW-8) of they being employees of the tent house. Learned Counsel for the appellants point out that this witness PW-8 is a made up witness and is the nephew of the deceased and is a chance witness. 13. The contradiction pointed out by the defence in the evidence of Yuvraj (PW-8) is that he claims to have seen the assailants running at a distance of about 200 yards from the house of the deceased and at another place in his evidence, this witness (PW-8) has stated that the assailants were moving slowly and they had told him that they were working in a tent house. The presence of this witness PW-8 is sought to be demolished by the defence by pointing out that this witness PW-8 has stated in his police statement that the buffalo of his maternal uncle was sick and, therefore, while returning from the house of his maternal uncle to his own house on foot, he had seen the assailants who had disclosed to him that they were working in tent house. Whereas, as per the defence, this witness (PW-8) has stated before the Court that the buffalo of his maternal uncle was missing and so he had gone to his house and on the way back from the house of his maternal uncle, he had met the assailants who had told him that they were from tent house. 14. All the four appellants contend that the alleged recovery of the country made pistol said to have been made from appellant Mohd Jahangir has not been proved and, therefore, in the main case registered against the appellants under Sections 399/402 of IPC read with Section 25 of the Arms Act, all the four appellants have been acquitted. In the last, it is stated on behalf of all the four appellants that the chain of circumstantial evidence in the present case is not complete and the trial Court has illegally convicted and sentenced the appellants and so, the appeal of the four appellants deserves to be allowed and they be acquitted of the charge framed against them. 15. On behalf of the State, Mr. Manoj Ohri, learned Counsel for the Respondent state has not only supported the impugned judgment the sentence imposed upon the appellants but has also tried to justify by submitting that PW-12 Noor Islam before whom extra judicial confession was made by appellant Jahangir, is a uninterested and unconnected witness who is not inimical to the appellants and the extra-judicial confession made to him is voluntary, true and has been made in a fit state of mind and is without any coercion or inducement. It is pointed out that although this witness PW-12 is blind but he has identified appellant Jahangir by his voice and there is no suggestion to this witness PW -12 by the defence that the confession made was tainted or non-voluntary. It is pointed out that although this witness PW-12 is blind but he has identified appellant Jahangir by his voice and there is no suggestion to this witness PW -12 by the defence that the confession made was tainted or non-voluntary. Reliance has been placed upon judgments reported in 2001 (2) Supreme Court Cases 205; 2003 (12) Supreme Court Cases 188; 2003 (8) Supreme Court Cases 180 and 1999 (9) Supreme Court Cases 89 to contend that extra-judicial confession can form the sole basis of conviction and corroboration is required only by way of abundant caution. It is further submitted that the extra-judicial confession made by appellant Jahangir is admissible against his co-appellants under Section 30 of the Evidence Act and as per the aforesaid extra- judicial confession, theft was the motive for commission of this crime and as per the CFSL report, the country made pistol recovered from appellant Jahangir was in working condition. It has been urged that the above said extra- judicial confession stands corroborated from the medical evidence of Dr. Komal Singh (PW-I0) who had opined that the holes found on the clothes of the deceased had matched with the injuries sustained by him. Thus, it is submitted on behalf of the state that these four appeals lack merit and so they deserve to be dismissed. Nothing else has been contended on behalf of either side. 16. This case is purely based on circumstantial evidence. The consistent legal position regarding appreciation of evidence in circumstantial evidence case is that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In a circumstantial evidence case, to outline the parameters regarding appreciation of evidence, we are inclined to refer to the decision of the Apex Court in case of C. Chenga Reddy and Ors. v. State of Andhra Pradesh, (1996) 10 SCC 193 , wherein it has been held as under: "In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence." 17. The broad circumstances relied upon by the prosecution to prove its case is the circumstance of last seen and the extra-judicial confession made by appellant Jahangir. First of all, we will deal with the circumstance of last seen. Prosecution relies upon the evidence of Yuvraj (PW -8) and of Mahesh (PW-14) to prove this circumstance. What emerges from the evidence of Mahesh (PW -14) is that al though he has not been able to give the date, month or the year of this incident but he has stated that about nine months ago i.e. from 10th September, 2002 at about 1.00 a.m. at night, he was sleeping on his Rehri in front of his house and he was awakened at that time due to loud barking of a dog. About nine months from the date when the evidence of this case is recorded, would be in November or December, 2001 and actually this incident took place on 13th September, 2001. In any case, not much depends upon it. What is important to note is as to why this witness (PW-14) would sleep outside his house on a Rehri and why he would not sleep inside his house in the month of September when the weather at night is fairly good. Not much importance can be attached to this aspect, since there is no cross-examination of this witness (PW-14) in this regard. What is surprising is that this witness (PW-14) wants Court to believe that without knowing the accused, he would make inquiry from any of the accused / appellant even if, they have passed by his Rehri at dead of the night. It is also not clear from the evidence of this witness (PW -14) as to what inquiries had been made from the accused/ appellant. 18. Whatever this witness (PW -14) states cannot be taken as gospel truth regarding his identification of appellants Mohd Yunus and Fazlu in the Test Identification Parade (in short TIP) because in cross-examination, he dilutes his evidence on this crucial aspect. 18. Whatever this witness (PW -14) states cannot be taken as gospel truth regarding his identification of appellants Mohd Yunus and Fazlu in the Test Identification Parade (in short TIP) because in cross-examination, he dilutes his evidence on this crucial aspect. In such a situation, what is the yardstick left with the Court to judge as to whether the identification of the accused is correct one or not? We are inclined to take such a view because we find that no implicit reliance can be placed on the evidence of this witness (PW-14) because his evidence fails on the probability factor regarding his inquiring from accused, who are strangers to him and because nothing is known about the nature of the inquiries made by this witness from the accused. Furthermore, what is the evidentiary value of this witness identifying appellant Mohd Yunus and Fazluin the TIP, when he admits in his evidence that he had identified the accused in the Police Station which was of course prior to the TIP. The reason for not giving the description of the assailants by this witness (PW-14) is that faces of the assailants were muffled up to the nose. This witness (PW-14) is not even able to give the approximate age of the assailants nor the colour of their skin. What is more worse for the prosecution is that this witness (PW-14) has admitted in his evidence that he had identified the accused in the Tis Hazari Courts about a fortnight prior to identifying them in TIP at Tihar Jail. This witness (PW-14) has not been re-examined by prosecution the above referred aspects. In the face of such evidence, how it can be said that the circumstance of last seen stands proved from the evidence of this witness (PW-14). The infirmities pointed out above, have not been pointed out to the trial Court and perhaps, that is why trial Court has not dealt with them. Be that as it may. One cannot ignore the aforesaid infirmities in the testimony of PW-14 which demolishes the prosecution case. 19. We are now left with the solitary evidence of Yuvraj (PW -8) to prove the circumstance of last seen. Be that as it may. One cannot ignore the aforesaid infirmities in the testimony of PW-14 which demolishes the prosecution case. 19. We are now left with the solitary evidence of Yuvraj (PW -8) to prove the circumstance of last seen. After having scrutinized the evidence of this witness (PW-8), we find that he happens to return back from the house of his maternal uncle past mid-night i.e. at about 1.00 a.m. and he happens to see five or seven persons running through the street of Budh Vihar and he claims to have asked them as to from where they were coming and the accused purportedly told him that they are the employees of Tent House and went away. First of all, this witness (PW-8) fails to explain as to why he had asked from those strangers as to from where they were coming and secondly why would they reply. All this seems to behighly improbable. Rest of the evidence of this witness (PW-8) pertain to one neighbour Mahesh (PW-14), who had told him about his having seen the accused and of identifying two of them in TIP. To say the least, this is hearsay evidence which cannot be accepted on the face of it because Mahesh (PW-14) is silent in his evidence about his having told this witness (PW-8) regarding the version given by him in his evidence. 20. This witness (PW-8) also claims to have identified Mohd Yunus, Mohd Fazlu and Mohd Jahangir in the TIP as the persons who were seen by him running on the day of incident. When cross-examined, this witness (PW8) is not able to give the height of those persons to whom he had seen running on the day of incident and he even does not remember as to what clothes they were wearing. This witness (PW -8) has vaguely stated in his evidence that those persons were of his height and one of them was taller than him. This is quite vague because this witness (PW-8) does not give his height. This witness (PW -8) has vaguely stated in his evidence that those persons were of his height and one of them was taller than him. This is quite vague because this witness (PW-8) does not give his height. Had the evidence of this witness (PW-8) been probable, then perhaps it could have been ignored that in his police statement, he has stated that he had gone to the house of his maternal uncle as the buffalo of his maternal uncle was sick whereas before the Court, he has stated that he had gone to the house of his maternal uncle because buffalo of his maternal uncle was missing. All this creates a reasonable doubt about occasion of this witness (PW -8) going to the house of his maternal uncle and the evidence of this witness (PW -8) becomes suspect and makes this Court to believe that he is a chance witness and the possibility of his returning from the house of his maternal uncle at 1.00 a.m. (past mid-night) becomes quite remote. 21. To complete the chain of circumstantial evidence, it would have been appropriate for the prosecution to have got examined the maternal uncle of this witness (PW-8), who happens to be the real nephew of the deceased, therefore, the chance of this witness being made up witness are quite bright. We have opined so, as we find that the evidence of this witness (PW-8) is quite vague and it does not effectively connected the appellants with the crime in question as it remains unexplained as to how the accused being employees of a Tent House would in any way connected with the offence in question. 22. Test Identification Parade is not a substantive evidence and the identification of the appellants by these two witnesses for the first time in Court loses its probative value on account of lack of trustworthiness of these two witnesses i.e. PW -8 and PW -14. Above all, identification of the appellants in the Court or in the TIP is rendered sterile as the prime witness Mahesh (PW-14) candidly admits that he has seen the accused/appellants in the Tis Hazari Courts about a fortnight prior to identifying them in the Tihar Jail in the TIP. Above all, identification of the appellants in the Court or in the TIP is rendered sterile as the prime witness Mahesh (PW-14) candidly admits that he has seen the accused/appellants in the Tis Hazari Courts about a fortnight prior to identifying them in the Tihar Jail in the TIP. After having considered the evidence of the two witnesses i.e. PW8 and PW-14, in its totality, we find that they have miserably failed to prove the circumstance of last seen. There is no other evidence to prove this circumstance. 23. The law on the subject of extra-judicial confession which needs to be noticed is as under: (i) In case of Jaspal Singh @ Pali v. State of Punjab, AIR 1997SC 332, it was found that it is highly improbable that the accused would have gone to the witness to confess his guilt and the witness has not given any reason as to why and how the accused reposed such confidence in him and confessed his guilt. (ii) In case of Kavita v. State of Tamilnadu, AIR 1998 Supreme Court 2473, it has been held as under- "There is no doubt that conviction 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. 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 witness." (iii) In the case of Lakhan Pal v. State of Madhya Pradesh, AIR 1979 Supreme Court 1620, it has been observed as under: "Where a prosecution witness stated that he had seen the accused, not known to the witness, running away and on being questioned, the accused stated that he had committed a mistake and killed his brother due to quarrel, on cross-examination, the witness admitted not having narrated the story to h anyone though he had met numerous persons before he was called to the Police Station, held, it was difficult to believe that the accused would make a confession to a person not known to him at all, it would be wholly unsafe to. accept such an extrajudicial confession." (iv) In the case reported as AIR 1991 Supreme Court 1468, Ballavaram Pedda Narsi Reddy v. State of Andhra Pradesh, it has been held as under: "In a case where the witness is a stranger to the accused and he identifies the accused person before the Court far the first time, the Court will not ordinarily accept that identification as conclusive." (v) In case (1972) 4 Supreme Court Cases 773, Sheikh Hasib v. State of Bihar, it has been observed as under: "Value of identification depends on the precautions taken by the Police, while holding the parade against identifying witness having opportunity to see the accused." 24. Conviction can be based upon extra-judicial confession provided it is found to be genuine and true. However, as a matter of caution, the Courts do seek corroboration to an extra-judicial confession. It goes without saying that if the extra-judicial confession is voluntary and true and is made in a fit state of mind, can be relied up an by the Court. It has to be kept in mind that the value of the evidence of extra-judicial confession depends upon the reliability of the witness who gives the evidence Noor Islam (PW-12) was a dealer of plastic waste (Kabadi) and he claims to be totally blind since his childhood. As per the evidence of this witness (PW-12), about on year ago. i.e. on the date of this incident at abaut4.30 a.m., five-six persons had came to. his gad awn of plastic waste and he had identified them to be one Jahangir, Babul and Firoz and he asked them as to why they had came so early an that day and as per his version, one Babul and Jahangir told him that they had committed murder in the gali near Police Post Budh Vihar. It is pertinent to note that the above named Babul is not an accused in this case. 25. It is pertinent to note that the above named Babul is not an accused in this case. 25. As per this witness (PW-12), Babul and Jahangir had confided with him that they had gone to the house of a person with intention to commit theft and they went upstairs where one person was sleeping and he got up and Yunus Sheikh and Fazlu caught hold of him and Babul gave knife blows to him and thereafter Jahangir fired at him with a country made pistol and while they were running away, one old man sleeping an a Rehri enquired from them and they told him that they were employees of Tent House. This witness (PN-12) has further stated in his evidence that Jahangir had also told to wife of one Afzal regarding murder having been committed by them. This witness has been crass-examined on behalf of the State and he has denied that on 2nd January, 2002 he had identified the accused in Tis Hazari Courts as the four persons who had came to his gad awn and had told him about murder committed by them. It is not only to be seen as to whether the extra-judicial confession is true and voluntary but it has also to be seen as to why any accused would make an extra-judicial confession to a mere acquaintance when the said person is not in authority to help the accused in any manner whatsoever. In case of State of Rajasthan v. Raja Ram, V (2003) SLT 45= AIR 2003 SC 3601 , the concept of extra-judicial confession has been dealt in great detail and it has been noted therein that the extra-judicial confession has not only to be true and voluntarily and free from any inducement but has also to be made to a person who has an authority i.e. in a position to help the accused. For instance, in the villages, extra-judicial confession are generally made to a Panch or Sarpanch and logic behind it that the person to whom extrajudicial confession is made, is in a position to help the accused in surrendering before the police. Apart from this, cases are not unknown where extrajudicial confessions are made to the near and dear ones of the accused. Present case does not fall in either of the categories. 26. Apart from this, cases are not unknown where extrajudicial confessions are made to the near and dear ones of the accused. Present case does not fall in either of the categories. 26. There is nothing on record to show that appellant Jahangir had any reason to take Noor Islam (PW -12) into confidence and believe that he could save him and his co-appellants from the trouble after getting them arrested, if they confessed their guilt to him. It is not at all understandable as to why appellant Jahangir would make his extra-judicial confession on his behalf and on behalf of his co-appellants to virtual stranger PW-12. 27. First of all, it is a joint extra-judicial confession and it deserves to be viewed with suspicion because no reason is forth coming as to why non-accused i.e. Babul would be party in making such a confession. Secondly Noor Islam (PW-12) to whom extra-judicial confession is purportedly made by appellant Jahangir is not in a position to help the accused Jahangir. Moreover, Noor Islam (PW-12) is neither related to appellant Jahangirnor he claims to be very friendly with him. Rather it has come in the evidence of Noor Islam (PW-12) that he had known appellant Jahangirsince last one month. Although this witness (PW-12) claims to know the other accused but it is really strange as to why the other accused did not come forward to make any such confession. The truthfulness of this so-called extra-judicial confession stands shaken as according to Noor Islam (PW-12), accused had gone upstairs through the staircase and had found one person sleeping on the roof who had woken up. 28. To test the veracity of the version of Noor Islam (PW-12), even if it is taken that the accused had gone upstairs to the roof of the deceased where the deceased had woken up, still it is nobodys case that the deceased had offered any resistance on his being caught hold by the two appellants and so where was the need of third appellant giving knife blows to him and of fourth appellant firing at him with country made pistol. The veracity of the aforesaid extra-judicial confession stands greatly reduced by the fact that if the motive was to commit theft, then what was the occasion for the accused to have gone upstairs upto the roof. The veracity of the aforesaid extra-judicial confession stands greatly reduced by the fact that if the motive was to commit theft, then what was the occasion for the accused to have gone upstairs upto the roof. In normal course, accused should have gone to the house of the deceased and not on the roof-top of the house of the deceased. It is so said because it is not anybodys case that the house of the deceased was locked from outside. Since the circumstance of extra-judicial confession is against appellant Jahangir and it stands proved from the evidence of this witness (PW-12) that he had known Jahangir hardly for a month, therefore, the likelihood of this witness (PW-12) identifying appellant Jahangir by his voice is quite difficult to digest. We feel quite safe to say so as we find that this witness (PW -12) has categorically stated in his evidence that he did not know accused Jahangir but he knew his brother. In view of the aforesaid infirmities found in the evidence of this material witness PW -12, we are not inclined to accept it on the face of it that he can identify if anyone mimics the voice of any of the accused. This is too far-fetched. Although, this witness (PW-12) does claim that he was not pressurized to state before the police that appellant Jahangir had made extra-judicial confession to him but he gives no reason for not promptly informing the police about aforesaid extra-judicial confession made by appellant Jahangir. It is after a fortnight or so when the police came to him, then only he had purportedly told the police about the so-called extra-judicial confession and during the intervening period, he did not tell about the alleged extra-judicial confession to anyone. What is the evidentiary value of such a belated extra-judicial confession? The case law relied upon by the state on the aspect of extra-judicial confession is distinguishable as in the above cited cases, extra-judicial confession had been made by the accused to person well known to the accused. It is so in the instant case. We are of the considered view that the above referred extrajudicial confession lacks trustworthiness. 29. The case law relied upon by the state on the aspect of extra-judicial confession is distinguishable as in the above cited cases, extra-judicial confession had been made by the accused to person well known to the accused. It is so in the instant case. We are of the considered view that the above referred extrajudicial confession lacks trustworthiness. 29. Another circumstance which goes against the prosecution is that evidence of arrest of appellants and recovery of weapons from them stands already demolished as admittedly, appellants stand acquitted in the case under Sections 399/402 of IPC read with Section 25 of the Arms Act in which they were arrested. The cumulative reading of the entire evidence on record, leads us to the irresistible conclusion that the chain of circumstantial evidence in this case has snapped badly and on the basis of the evidence on record, it cannot be said that it is the appellants alone who have committed the offence in question and none other than the appellants. When two views are possible, then the view in favour of the accused has to be preferred. For stating so, we place reliance upon the case of State of U.P. v. Ashok Kumar Srivastava, (1982) Crl.L.J. 1104, wherein it has been held that great care must be taken in evaluating the circumstantial evidence and if the evidence relied on, is reasonably capable of two inferences, the one in favour of the accused must be accepted and the circumstance relied upon must be found to have been fully established and they must be consistent only with the hypothesis of the guilt of the accused. Even the evidence of Smt. Indira (PW-7), wife of the deceased does not advance the prosecution case any further as the crux of her evidence is that some unknown person had killed her husband by firing at him. No other circumstance has been put forth to connect the appellants with the offence in question. 30. In the light of the above narration, impugned judgment cannot be sustained and is set aside. The four appellants herein are given benefit of doubt and are acquitted of the charges framed against them. Appellants Mohd. Fazlu S/o Mohd. Shohar and Mohd. Yunus Shaikh S/o Rahim are in custody and they be set at liberty if not wanted in any other case. Appellants Mohd. Jamil S/o Mohd. Rasheed and Mohd. The four appellants herein are given benefit of doubt and are acquitted of the charges framed against them. Appellants Mohd. Fazlu S/o Mohd. Shohar and Mohd. Yunus Shaikh S/o Rahim are in custody and they be set at liberty if not wanted in any other case. Appellants Mohd. Jamil S/o Mohd. Rasheed and Mohd. Jahangir S/o Noor Islam are on bail. Their bail bond and surety bond are discharged. All these three appeals are decided accordingly. Ordered accordingly.