JUDGMENT Hon’ble Subhash Chandra Agarwal, J.—This is a jail appeal filed on behalf of the appellant Siraj alias Salau, who has been convicted under Sections 302 and 376, IPC by Sessions Judge, Basti vide judgment and order dated 4.3.2004 in S.T. No. 136 of 2001. The appellant has been sentenced to imprisonment for life and to pay a fine of Rs. 5,000/- in default to undergo further imprisonment for one year under Section 302, IPC. He was further sentenced to R.I. for 10 years and to pay a fine of Rs. 5,000 and in default to further undergo R.I. for one year under Section 376, IPC. 2. The incident took place on 10.1.2001 sometime after 3.30 p.m. and the FIR was lodged on the same day on 21.35 hours at P.S. Cantt. District Basti against one Mahendra Kumar alias Vifai. 3. As per the FIR on 10.1.2001 at about 3.30 p.m. deceased Km. Shama aged about 16 years, who happens to be the sister of informant Raj Mohd. alias Raju P.W. 1, had gone towards south of the village to attend the call of nature. When Km. Shama did not return, a search was made and dead-body of Shama was found in the Sugarcane field of Kapil Dev Shukla situated in the south of village Sewara Lala. Apparently, Km. Shama have been strangulated, her Salwar and underwear were pulled below her legs. Mohd. Amin and Barhu, residents of same village, disclosed that they had seen Mahendra Kumar alias Vifai coming out of the Sugarcane field of Kapil Dev Shukla. First informant Raj Mohd. alias Raju lodged the FIR suspecting murder of his sister Shama by Mahendra Kumar alias Vifai after a failed attempt of rape. On the basis of written report Ext. Ka-1, case crime No. 9 of 2001 was registered at P.S. Cantt. District Basti by Head Constable Shiv Bachan Prasad (P.W. 6) and Check report Ext. Ka-4 was prepared and entry in the G.D. was made at serial No. 37 at 21.35 hours (copy Ext. Ka-5). Investigation was taken over by S.O. Sri Ram Saran Chaudhary, (P.W. 9). 4. The Investigating Officer went to the spot, and conducted the inquest proceedings and the dead-body was sent to the District Hospital, Basti for post-mortem examination through P.W. 4 Constable Peer Ali Khan and Constable Moti Lal Bhaskar. He also recorded the statement of witnesses. 5. Ka-5). Investigation was taken over by S.O. Sri Ram Saran Chaudhary, (P.W. 9). 4. The Investigating Officer went to the spot, and conducted the inquest proceedings and the dead-body was sent to the District Hospital, Basti for post-mortem examination through P.W. 4 Constable Peer Ali Khan and Constable Moti Lal Bhaskar. He also recorded the statement of witnesses. 5. Autopsy on the dead-body of Kum. Shama was performed by P.W. 5 Dr. Narendra Kumar Srivastava on 11.1.2001 at 2.15 p.m. The deceased was about 16 years of age. Eyes and mouth were closed. Blood mixed mucus was coming out from the mouth. Tongue was protruded. There was bleeding from vaginal opening. The following anti-mortem injuries were found on the dead-body. (1) Abraded contusion over right side of face at level of right angle of mouth just laterally. (2) Abraded contusion 2.2 c.m. over right side of neck, 5 c.m. Below the right ear and anteriorly to sternocledis mastoid muscle. (3) Contusion 7.2 c.m. over back right side, 2 c.m. Below the right angle of scapula and 2 c.m. lateral to mid line. (4) Abrasion 5.2 c.m. over right side over left iliac crest and 10 c.m. away from mid line. The death was caused about one day before post-mortem examination. Rape was done before her death, which was due to asphyxia caused by smoothering. 6. On 12.1.2001, the complainant Raj Mohd. alias Raju moved another application Ext. Ka-2 to the police stating therein that FIR against Mahendra Kumar was lodged at 10.1.2001 on the basis of suspicion but infact accused Siraj alias Salau had committed rape and murder of his sister and had also made a confessional statement before the complainant and the witnesses on 12.1.2001 by admitting his guilt. On the basis of so called second FIR, the Investigating Officer recorded the statement of witnesses. The appellant was arrested on 12.1.2001 itself and made a disclosure statement to the Investigating Officer on the basis of which the Nose-pin and Payal belonging to the deceased were recovered from the field of Lutavan Harijan at the instance of accused and the recovery memo Ext. Ka-8 was prepared. The Investigating Officer also recovered the pair of plastic chappals and a plastic Dibba and recovery memo Ext. Ka-9 was prepared. He also prepared site plans Ext. Ka-10 and Ka-11. After completion of investigation, the Investigating Officer submitted charge-sheet against the accused. 7. Ka-8 was prepared. The Investigating Officer also recovered the pair of plastic chappals and a plastic Dibba and recovery memo Ext. Ka-9 was prepared. He also prepared site plans Ext. Ka-10 and Ka-11. After completion of investigation, the Investigating Officer submitted charge-sheet against the accused. 7. The Sessions Judge, Basti framed charge under Sections 376, 302, 411, 379 and 404, IPC against the appellant, who denied the charge and claimed to be tried. The prosecution examined as many as nine witnesses in support of the charge P.W. 1 Raj Mohd. alias Raju is the complainant and brother of the deceased and P.W. 2 Rajai is the maternal uncle of the deceased. Both of these witnesses are witnesses of extra judicial confession. P.W. 3 Mansoor Alam is scribed by first FIR Ext. Ka-1 dated 10.1.2001 and also second FIR dated 12.1.2001. P.W. 4 Constable Peer Ali Khan had taken dead-body of the deceased for post-mortem. P.W. 5 Dr. N.K. Srivastava had conducted the post-mortem examination on the dead-body of deceased Km. Shama and prepared post-mortem Ext. Ka-3. P.W. 6 Head Constable Shiv Bachan Prasad is a formal witness, who has been examined to prove the check report Ext. Ka-5 and G.D. entries Ext. Ka-6 and Ka-7. P.W. 7 Ram Sagar Tiwari is a witness of alleged recovery of Nose-pin and Payal at the instance of the accused and P.W. 8 is the witness of recovery of chappals and plastic Dibba. P.W. 9 Ram Saran Chaudhary is the Investigating Officer. 8. The appellant was also examined by the Sessions Judge under Section 313, Cr.P.C. The appellant pleaded ignorance about the death of Km. Shama and denied the allegations of rape, murder and theft. He further stated that he has been falsely implicated by the witnesses on account of enmity but no defence was adduced on behalf of the appellant. 9. Learned Sessions Judge vide judgment and order dated 4.3.2004 found the prosecution case proved against the appellant and the appellant was convicted under Sections 302 and 376, IPC and sentenced as aforesaid. He was, however, further acquitted under Sections 379, 411 and 404, IPC. 10. We have heard Miss. Anita Srivastava, learned amicus curiae appearing on behalf of the appellant and Sri A.K. Shukla learned AGA appearing for the State and perused the record. 11. He was, however, further acquitted under Sections 379, 411 and 404, IPC. 10. We have heard Miss. Anita Srivastava, learned amicus curiae appearing on behalf of the appellant and Sri A.K. Shukla learned AGA appearing for the State and perused the record. 11. It is submitted by learned amicus curiae that the appellant was not named in the FIR and there is no direct or indirect evidence against him to connect him with the alleged rape and murder of deceased Km. Shama. It is further submitted that the prosecution case is based on circumstantial evidence and the chain of circumstances is not complete nor does it point towards the guilt of the accused. It is further submitted that the only circumstances relied upon by the prosecution against the appellant were extra judicial confession before the P.W. 1 and P.W. 2 and the recovery of Nose-pin and payal of the deceased at the instance of the accused. It is further stated that the recovery of Nose-pin and payal at the instance of the appellant was not proved by any credible evidence and the recovery was a planted one and should not have been relied upon by the trial Court. It is further submitted that the evidence of extra judicial confession is a very weak type of evidence, which cannot be acted upon without further corroboration. 12. Per contra learned A.G.A. appearing for the State submitted that extra judicial confession by the appellant before the witnesses and the recovery of Nose-pin and payal belonging to the deceased, at the instance of the appellant was fully established from the evidence on record and the learned Sessions Judge has rightly convicted the appellant under Sections 302 and 376, IPC. 13. Post-mortem report Ext. Ka-3 and the statement of P.W. 5 Dr. N.K. Srivastava conclusively proved that Km. Shama was murdered and before her death, she was subjected to rape. Now it is to be seen as to whether the rape and murder of Km. Shama was committed by the appellant. 14. The prosecution case is based on the following incriminating circumstances against the appellant : (1) On 11.1.2001 the appellant made extra judicial confession before the P.W. 1 Raj Mohd. alias Raju and P.W. 2 Rajai and others. Now it is to be seen as to whether the rape and murder of Km. Shama was committed by the appellant. 14. The prosecution case is based on the following incriminating circumstances against the appellant : (1) On 11.1.2001 the appellant made extra judicial confession before the P.W. 1 Raj Mohd. alias Raju and P.W. 2 Rajai and others. (2) The appellant made a disclosure statement before the police on the basis of which recovery of Nose-pin and payal belonging to the deceased was made by the police from Sugar-cane field of Lutavan Harijan. 15. We proposed to consider the second circumstance first it was stated by P.W. 1 Raj Mohd. alias Raju that at the time of incident Km. Shama was wearing Nose-pin and payal. The accused was apprehended by the police and the police got him to confess his guilt and Nose-pin and payal was recovered from the field of Ram Lutavan. In cross-examination P.W. 1 Raju had admitted that when the dead-body of Km. Shama was found, she had bangles in the hands and Hawai chappals on the feet and Necklace on the neck. She was not wearing anything in the ears but there was Nathuni (Nose-ring) on the nose and payal on the legs. One dibba was also found alongwith the dead-body. It is apparent from the statement of first informant given in the cross-examination that when the dead body of Km. Shama was found she had Nathuni on the nose and payal on the legs. In these circumstances it cannot be said that the appellant took away Nose-pin and payal of the deceased and later got it recovered by the police. When Nathuni was found on the nose of the deceased, there is no question of her wearing Nose-pin. Similarly payal was found on the dead-body but it was not shown by the police in the inquest report and it was later used by the police to show false recovery at the instance of the appellant. This entirely falsifies the story of recovery of Nose-pin and payal belonging to the deceased at the instance of the accused. 16. P.W. 7 Ram Sagar Tiwari is said to be the witness of alleged recovery at the instance of the accused. This entirely falsifies the story of recovery of Nose-pin and payal belonging to the deceased at the instance of the accused. 16. P.W. 7 Ram Sagar Tiwari is said to be the witness of alleged recovery at the instance of the accused. He deposed that in his presence the appellant took the police to the field of Ram Lutavan and took out polythene packet in which payal and gold Nose-ring were kept concealed. In cross-examination P.W. 7 has admitted that Daroga has called him to the place where people had assembled. The appellant was holding a pair of payal and a Nose-pin in his hand. He never saw these ornaments on the person of deceased ever. Only on the saying of accused Siraj, he came to know that these ornaments belong to the deceased. The statement of P.W. 7 is also of no help to the prosecution. It is apparent from his statement that he reached the spot when the alleged recovery had already taken place and the recovery of Nose-ring and payal at the instance of appellant was not made by the police in his presence. 17. P.W. 9 Ram Saran Chaudhary, Investigating Officer is the main witness of recovery. He has stated that he interrogated the accused and as per his statement, he went to the field of Lutavan Harijan and dug a polythene kept under a Dhela in which one pair of silver payal and gold Nose-pin were kept and he prepared recovery memo Ext. Ka-8. This witness has nowhere stated as to what was disclosed by the appellant which led to the recovery of payal and Nose-ring. It has not been stated by him that appellant made any confessional statement and promised to get recovered the Nose-pin and payal belonging to the deceased. Thus the alleged recovery cannot be said to be admissible under Section 27 of the Evidence Act. 18. From the statement of P.W. 1 Raj Mohd. alias Raju given in cross-examination, it is amply proved that when the dead-body of Km. Shama was found, she had Nathuni on her nose and payal on her legs but these articles were concealed at the time of Inquest report and were later used by the police to plant a false recovery at the instance of the appellant. Thus the alleged recovery is wholly unbelievable and is a fabricated peace of evidence. Shama was found, she had Nathuni on her nose and payal on her legs but these articles were concealed at the time of Inquest report and were later used by the police to plant a false recovery at the instance of the appellant. Thus the alleged recovery is wholly unbelievable and is a fabricated peace of evidence. We regret to say that this aspect of the case has been totally ignored by the learned Sessions Judge. 19. Now we come to the only remaining incriminating circumstance i.e. extra judicial confession of the appellant before P.W. 1 and P.W. 2. In this respect P.W. 1 Raj Mohd. alias Raju has stated that on the next day of the incident, Siraj came to his house where 10 to 15 people had assembled. The accused disclosed that he had committed mistake and asked for forgiveness. Appellant admitted that he committed rape and murder, then he (first informant) gave another report to the police. This witness has not uttered the exact words stated by the appellant. He admitted in his cross-examination dated 10.7.2002 that he had given both the reports to the police on the persuasion of others and did not give these reports voluntarily. The accused Siraj is his pattidar and a cousin. He did not mention in both the FIRs that payal and nose-pin were missing. 20. P.W. 2 Rajai is another witness of extra judicial confession by the accused. Rajai is the maternal uncle of the deceased. He has stated that he came to know about the death of Km. Shama on 11.1.2001 and he met Siraj on 12.1.2001. Siraj admitted before him that he committed murder and asked for forgiveness. 21. As per the statement of P.W. 1 Raj Mohd. alias Raju, extra judicial confession was made by the appellant on the next date of the incident i.e. on 11.1.2001 while as per the statement of P.W. 2 Rajai, extra judicial confession was made by the appellant on 12.1.2001. Thus the statement of both the witnesses regarding date of confession are contradictory. 22. It is also noteworthy that the FIR was lodged on 10.1.2001 against Mahendra Kumar on the basis of statement of two witnesses Amin and Baru, who had seen Mahendra Kumar coming out from the sugarcane field of Kapil Devi Shukla. Nobody suspected Siraj alias Salau. Thus the statement of both the witnesses regarding date of confession are contradictory. 22. It is also noteworthy that the FIR was lodged on 10.1.2001 against Mahendra Kumar on the basis of statement of two witnesses Amin and Baru, who had seen Mahendra Kumar coming out from the sugarcane field of Kapil Devi Shukla. Nobody suspected Siraj alias Salau. There was no occasion for the appellant to make any extra judicial confession before P.W. 1 and P.W. 2 and co-villagers especially when he was never suspected by anybody to have committed rape and murder of Km. Shama. In these circumstances it is highly improbable that the appellant would have gone to the first informant to make a confession. Moreover we have already found that the recovery of Nose-pin and payal belonging to the deceased is not proved but was rather fabricated. In these circumstances we do not propose to place any reliance on the alleged extra judicial confession made by the appellant and the evidence in this regard is contradictory and unreliable. 23. In our considered view, it is not safe to accept the evidence regarding extra judicial confession in the absence of any further corroboration. 24. It is settled law that the circumstances from which the conclusion of guilt is adduced, 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 circumstances and further, the proved circumstance must be consistent only with the hypothesis of guilt of the accused and totally inconsistent with his innocence. In the instant case, the evidence regarding extra judicial confession made by the accused is contradictory and is very weak type of evidence and it is not safe to rely upon the same without any further corroboration from any circumstance. The alleged recovery of payal and Nose-pin belonging to the deceased at the instance of accused on the basis of disclosure statement is not proved at all and it is rather apparent that this recovery is fabricated one. Thus the chain of circumstances is not complete and no circumstance indicating involvement of appellant in the rape and murder of Km. Shama is proved. 25. We cannot lose sight of the fact that the appellant is a very poor man. Thus the chain of circumstances is not complete and no circumstance indicating involvement of appellant in the rape and murder of Km. Shama is proved. 25. We cannot lose sight of the fact that the appellant is a very poor man. He could not engage any counsel before the trial Court and the services of amicus curiae was provided to him by learned Sessions Judge. Even in this appeal he could not engage any counsel and the appeal was preferred through Jail Superintendent and we appointed Miss Anita Srivastava as amicus curiae to represent the appellant in this appeal. 26. The twin circumstances regarding extra judicial confession and recovery of Nose-pin and payal belonging to the deceased at the instance of the appellant are not proved by cogent and reliable evidence. The chain of circumstances is totally broken. In these circumstances it is not possible to convict the appellant and there remains nothing on record to connect the appellant with the crime. Learned Sessions Judge erred by holding that the charge under Sections 302 and 376, IPC was sufficiently proved against the appellant and his above finding is perverse and is liable to be set aside. 27. The appeal deserves to be allowed and the judgment and order passed by the learned Sessions Judge convicting the appellant under Sections 302 and 376, IPC is liable to be set aside and the appellant deserves to be acquitted. 28. The appeal is allowed. The conviction and sentence recorded by the trial Court against the appellant is hereby set aside and the accused appellant Siraj alias Salau is acquitted of the charge under Sections 302 and 376, IPC. The appellant is in jail since 12.1.2001, he shall be released forthwith if not wanted in any other case. Miss Anita Srivastava, learned amicus curiae assisted us well in deciding this appeal. She shall be paid Rs. 10,000/- as her fees by the State Ex-chequer. Let the copy of this judgment be certified to the Sessions Judge, Basti within a week for compliance. The compliance report be submitted to this Court within three weeks. ————