JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) This appeal arises out of judgment and order dated 0l.09.2003 passed by learned Additional Sessions Judge/F.T.C. VII, Dehradun in Session Trial No. 136 of 2000, State Vs Mohd. Yakoob whereby the said trial court has convicted the accused/appellant under Section 302 of I.P.C. and sentence for life imprisonment and a fine of Rs.5,000/- and in default of payment of the fine a further imprisonment for six months R.I. 2. Brief facts, according to the case of the prosecution, which springs from the First Information Report lodged on 24.04.2000 at 08:30 p.m. by the complainant - Alam Singh is that the complainant was uncle of Ajab Singh (deceased), who was a student of Class - IX in Government Intermediate College, “Dak-Pathar” (Dak-Pathar is a small town in District Dehradun, Uttarakhand). Ajab Singh had come to his village during a festival and on 20.04.2000 while he was returning to Dak- Pathar, he asked for some money, which he needed for his expenses at “Dak-Pathar”. At that time, the family was not having ready funds from where it could spare some money for Ajab Singh and therefore, they gave him only Rs. 100/-, but they further instructed him that there is a person called Mohd. Yakoob (present appellant) near ‘Dak-Pathar’, who has to return them Rs. 1500/- and Ajab Singh should collect this money from him. Mohd. Yakoob had purchased a mule from them and he had to repay the amount of Rs.1,500/-. On these instructions on 22.04.2000, Ajab Singh and his friend Davendra Chauhan (who was studying with him at Dak-Pathar) went in a cycle to Mohd. Yakoob’s residence. Mohd. Yakoob (appellant) informed them that his uncle will return in the evening who has the money and then he would return the money to them. These two persons then returned to Badwala. Ajab Singh, thereafter, told Davendra Singh that he should return to his house and he will collect th money from Mohd. Yakoob and return on my own. After this Davendra Singh returned from Badwala to Ambwari. According to Davendra Singh, Ajab Singh went to Mohd. Yakoob place in order to collect the money, but never returned. On the next day, his dead body was recovered by the police. Davendra Singh further states that a day before the incident i.e. 21.04.2000, both of them, namely, Davendra Singh and Ajab Singh had gone to Mohd. According to Davendra Singh, Ajab Singh went to Mohd. Yakoob place in order to collect the money, but never returned. On the next day, his dead body was recovered by the police. Davendra Singh further states that a day before the incident i.e. 21.04.2000, both of them, namely, Davendra Singh and Ajab Singh had gone to Mohd. Yakoob’s residence to collect the money, but Mohd. Yakoob had misbehaved with them. It was also stated in the First Information Report that apart from Mohd. Yakoob, the complainant has no enmity with any other person. He fully believed that his nephew had been murdered by Mohd. Yakoob. The complainant was informed about this tragedy on 23.04.2012 afternoon itself at about 03:00-4:00 p.m., as it has come in the evidence. However, the family resides in a village in the hills (Dak- Pathar being in the foothills) and they could reach Dak-Pathar only the next morning i.e. on 24.04.2000 when they were informed about the sequence of events by Devendra Chauhan; who was studying with their deceased son. Finally the-report was lodged at Police Station at 08:30p.m. on 24.04.iOOQ. 3. The inquest report, which is Ext. Ka-2, reveals that the inquest report was being prepared at 06.30 p.m. on 23.04.2000 and was completed about seven past five, in other words, it took about 35 minutes for preparation of the inquest. This report suggests that a body of a young man was found lying under a tree at the roadside, the body had no visible injury. Also at the time of preparation of the inquest report, it was not known as to who was the deceased. From the evidence on record it appears that the postmortem of the body of the deceased was conducted by Dr. A.K. Rastogi on 24.04.2000 at about 03:30 p.m. The postmortem report, which is Ext. Ka. 1, however, shows that there were three ante mortem injuries on the body of the deceased:- 1. Contused swelling on right side of head 5 cm x 4 cm inside 8 cm above right ear on desertion haemotoma present. 2. Contusion 10 cm x 6 cm on right side neck. 3. Contusion 4 cm x 2 cm on left side neck. 4. In the post mortem report the eyes of the deceased were closed and liquid blood discharge was coming from the nostrils. The larynx was also found to be congested. 2. Contusion 10 cm x 6 cm on right side neck. 3. Contusion 4 cm x 2 cm on left side neck. 4. In the post mortem report the eyes of the deceased were closed and liquid blood discharge was coming from the nostrils. The larynx was also found to be congested. In the opinion of the doctor, who conducted the autopsy on the body of the deceased, the cause of death was “asphyxia as a result of throttling”. 5. As per the prosecution, the accused/appellant was arrested at about 08:30 p.m. from his residence and at 09:30 p.m. on the pointing out of the accused, the weapon, used in the commission of alleged crime, was recovered, which was a thick “Danda”. 6. After completing the investigations chargesheet was submitted by the Investigating Officer before the learned Magistrate, who committed the case to the Court of Sessions for trial and the learned Sessions Judge, after hearing the parties, framed charge under Section 302 of I.P.C. against the accused/appellant. 7. The prosecution in support of its case produced as many as twelve witnesses. 8. We must at this juncture note down that there is no direct evidence against the appellant. It is a case of circumstantial evidence. All the same, the case of the prosecution rests on the evidence of Pratap Singh (P.W.4),before whom the accused and his father had made an extra judicial confession. They had confessed before him of having committed the murder of Ajab Singh, according to which, the appellant had first hit the deceased on his head with the “Danda” and thereafter, he had throttled him to death. In fact, this narration of this extra judicial confession before Pratap Singh (P.W.4), it will be examined in a short while. Other principle witnesses are Ranveer (P.W.5), Kalam Singh (P.W.7) and Hukum Singh (P.W.8) who had all last seen the appellant in the company of the deceased. They have seen the accused with the deceased between 08:00 to 10:00 p.m. on the fateful night of 22.04.2000. Hence, the evidence of these witnesses is also to be examined with some care. Another important witness is Davendra Chauhan (P.W.6). This witness is a fellow student of the deceased and had accompanied the deceased on the fateful day i.e. 22.04.2000 to the house of Mohd. Hence, the evidence of these witnesses is also to be examined with some care. Another important witness is Davendra Chauhan (P.W.6). This witness is a fellow student of the deceased and had accompanied the deceased on the fateful day i.e. 22.04.2000 to the house of Mohd. Yakoob and it is who had narrated the sequence of events to the father and the uncle of the deceased as to how they had gone to the house of Mohd. Yakoob (appellant) and how he had misbehaved with them, etc. This witness further states as to how they had gone the second time to the house of the appellant and ultimately the deceased never returned. 9. We must though first examined Dr. A.K. Rastogi (P.W.1), who conducted autopsy of the deceased on 24.04.2000 at 03:30 p.m. According to this witness he had conducted autopsy on the body of the deceased on 24.04.2000 at 03:30 p.m. According to him it was possible that about 1½ day prior to the postmortem, the deceased could have been killed. He further states that injuries, which have been sustained by the deceased, could have been caused between 10:00 -11:00 a.m., on 23.04.2000. 10. Chandu (P.W.2) is a village Chaukidar, who discovered the body in the morning on 23.04.2000 at the bank of the canal, but at that time he presumed that somebody was sleeping and he only informed the police later at about 06:00 p.m. when he came to know that it was actually a dead body. He is also the witness to the inquest report. 11. Aalam Singh (P.W.3), who is the complainant, who narrated the same events, as he has stated in the First Information Report. In his cross-examination he says that he knows Mohd. Yakoob for the last four years and he had purchased a mule from him, for which he had paid Rs. 100/- and he has still to return Rs. 1500/ -. He got the news that his nephew has died on 23.04.2000 from a person of his village, namely, Rajendra and on the next mormng reached Vikas Nagar (near “Dak-Pathar”). Immediately they went to meet Davendra Chauhan, who narrated the incident as to how they had gone to Mohd. Yakoob’s house, etc. which has already been narrated above. 1500/ -. He got the news that his nephew has died on 23.04.2000 from a person of his village, namely, Rajendra and on the next mormng reached Vikas Nagar (near “Dak-Pathar”). Immediately they went to meet Davendra Chauhan, who narrated the incident as to how they had gone to Mohd. Yakoob’s house, etc. which has already been narrated above. He confirms that he had met Devendra Chauhan at about 10:30 a.m. in the morning along with Surveer and Daulat Singh (Gram Pradhan of the village). He states that he also met Ranveer after 5-6 days of the incident, who had said that he had seen Mohd. Yakoob hear the Badwala Shiv Temple talking with the deceased. 12. Ranveer (P.W.5) is a witness of the last seen. According to him on 22.04.2000 at about 08:00-8:30 p.m. he had gone to Kalsi which is a place near Vikas Nagar and returned from Kalsi between 09:30 to 10:00 p.m. While he was returning, at about Badwala Shiv Temple, he saw below a tree Mohd. Yakoob and Ajab Singh talking to each other. He saw both of them in the headlight of his scooter. On the next day, he was told that a body has been recovered from the same place. He went there and saw that it was the body of Ajab Singh. 13. Another witness of last seen is Kalam Singh (P.W.7), who states that he lives in Chakrata, which is a small hill station. It has come in evidence that it takes about two to three hours to reach Vikas Nagar from Chakrata. According to this witness he was going to Kalsi at about 09:00 to 09:30 p.m. in a tempo along with one Virendra and when they reached near Badwala Shiv Temple, they saw Mohd. Yakoob and Ajab Singh on the bridge. He knew both Mohd. Yakoob and Ajab Singh. He further states that they stopped at Kalsi three quarter of an hour and on their return, they saw Mohd. Yakoob going towards Badwala, his house. He was all alone, this time. This witness further states that he recognized Mohd. Yakoob from the light thrown by the headlight of his tempo. He further states that he came to know about the body of the deceased recovered from the bank of canal. Yakoob going towards Badwala, his house. He was all alone, this time. This witness further states that he recognized Mohd. Yakoob from the light thrown by the headlight of his tempo. He further states that he came to know about the body of the deceased recovered from the bank of canal. When he reached the canal he found the dead body of Ajab Singh, which was lying on the bank of the canal. This witness (P.W.7) as well as Ranveer (P.W.5) are both known to Ajab Singh and his family and they are resident in the same village or neighbourhood village, of Ajab Singh. 14. The third witness of last seen is one Virendra Singh (P.W.9). According to this witness, he was returning along with Kalam Singh (P.W.7) from his village to Kalsi Haripur and about 10:30 p.m. they saw both Ajab Singh and Mohd. Yakoob together at Badawala Shiv Temple. In his cross-examination, this witness says that his village is about 4 km from the village of Ajab Singh and he knows Ajab Singh and his family. Although they are not related to each other. 15. Apart from this witness of last seen, another important witness, already referred above, is Pratap Singh (P.W.4). It is Pratap Singh (P.W.4), who calls himself a Social Worker and is 35 years of age and a resident of village Dumat. It is before him that on 25.04.2000, Yakub and his father had confessed their guilt by saying that they have committed the murder of Ajab Singh. This witness, Pratap Singh (P.W.4) told Mohd. Yakoob and his father that if he comes out honestly and tells him everything he shall be protected. Mohd. Yakoob, thereafter, told him that they had to give money to Ajab Singh, as he was repeatedly nagging them for this money. On 26.04.2000, Ajab Singh had come to his house asking for his money and stayed for sometime in his house. After that Ajab Singh and another person, who was accompanying him went away from Badwala. On 23.04.2000, Mohd. Yakoob took Ajab Singh to Badwada Shiv Temple where Ajab Singh started shouting and demanded his money, on that Mohd. Yakoob became angry and he hit Ajab Singh with the “Danda” and when he fell down Mohd. Yakoob finished the job by strangulating him to death. This witness further states that after making this confession Mohd. Yakoob returned to his house. Yakoob became angry and he hit Ajab Singh with the “Danda” and when he fell down Mohd. Yakoob finished the job by strangulating him to death. This witness further states that after making this confession Mohd. Yakoob returned to his house. He states that this fact was confessed by Mohd. Yakoob in the presence of his father. This witness assured them that he would help them and only then they had confessed their crime on 25.04.2000. The time of confession is very important. According to this witness Pratap Singh (P.W.4), the accused and his father had confessed the crime, on 25.04.2000 at about 10:30 p.m. This witness in his cross-examination admits that though he and Alam Singh (complainant) are not related, but they are from the same village and his house is at a distance of about 15 meters from the house of Alam Singh. Both were born at the same place and they live together since childhood. Although it has come in the evidence that he is a Social Worker, but nothing further has come in his examination-in-chief as to what kind of Social Work he does and as to why accused or a suspect would confess his crime before him! 16. Another important witness is Davendra Chauhan (P.W.6), who is a student in Class IX and who was studying with the deceased and both stayed in the same house of one Arjun Singh as tenants. He says that Ajab Singh had returned on 20.04.2000 and he had told him that he had to take money from Mohd. Yakoob and therefore both had gone to the house of Mohd. Yakoob. This witness asked Mohd. Yakoob to return the money of Ajab Singh, and was told to mind his business. Thereafter, they returned to their house and then went again in the afternoon. He did not accompany the deceased to the house of Mohd. Yakoob and remained at a short distance. After sometime Ajab Singh returned and said that he has been promised by Mohd. Yakoob that he will give his money, as his uncle who is coming in the evening will get the money for them. All the same Ajab Singh never returned and on the next day his dead body was recovered near the bank of the canal. He recognized the accused - Mohd Yakoob, who was present in the court. Yakoob that he will give his money, as his uncle who is coming in the evening will get the money for them. All the same Ajab Singh never returned and on the next day his dead body was recovered near the bank of the canal. He recognized the accused - Mohd Yakoob, who was present in the court. In his cross-examination he could not state the distance between Jeevan Garh and Badwala and he said that 15-20 minutes time will be taken from Badwala to Dumar and the distance from Badwala to Dumar is about 2V2 to 3 kms. 17. Rest are all formal witnesses such as the one who conducted investigation, one who had seen the dead body, etc., whose evidence is not very material. The accused though has been convicted primarily on the evidence of Pratap Singh (P.W.4) before whom the appellant had given an extra judicial confession and the three eyewitnesses, namely, Ranveer (P.W.5), Kalam Singh (P.W.7) and Hukam Singh (P.W.8), who are the last seen witnesses as well as Devendra Chauhan (P.W.6) who accompanied the deceased to the house of the appellant and who was a friend of the deceased. 18. Keeping III mind that this is a case of circumstantial evidence, we have to examine and weigh the evidence and see as to whether on the strength of this evidence a conviction of the accused is possible under Section 302 of I.P.C. Let us first examine the evidence ofthe last seen witnesses, namely, Ranveer (P.W.5), Kalam Singh (P.W.7) and Hukam Singh (P.W.8). All these three witnesses either belong to the village of the deceased and the complainant or belong to the neighbouring villages and are known to the deceased. They have seen the appellant and the deceased at Badwala Shiv Temple at about 09:00 to 10:00 p.m. The source of the light they say either the headlight of the scooter or the headlight of the tempo.Their appearance on the spot while Mohd. Yakoob and Ajab Singh were talking each other near Badwala Shiv Temple is highly doubtful and all these witnesses appear to us nothing, but chance witnesses.Hence the court below was totally wrong in placing reliance upon these witnesses. 19. The other witness is Pratap Singh (P.W.4) before whom extra judicial confession was made by the accused. Now, the law of extra judicial confession is absolutely clear. 19. The other witness is Pratap Singh (P.W.4) before whom extra judicial confession was made by the accused. Now, the law of extra judicial confession is absolutely clear. Extra judicial confession though may be sufficient for a conviction, but it all depends upon the credibility, trustworthiness and the overall circumstances under which the extra judicial confession is made, before whom such a confession has been made, and under what circumstances it has been made. We find thal elements such as are present in this case do not make the witness (Pratap Singh P.W.4) a trustworthy witness. By his own confession,Pratap Singh (P.W.4), before whom extra judicial confession and guilt was confessed by the accused and his father, resides at the same village as that of the complainant and the deceased. The distance of his house is about 15 meters from the house of Alam Singh - complainant and they were born in the same village. Pratap Singh (P.W.4) is neither a relative nor a friend of the appellant.On the other hand, he is a neighbour of the cornplainant. Generally an extra judicial confession should come from a unbiased witness.For the reason referred above Pratap Singh (P.W.4) is not an unbiased witness.” Moreover, in any case, no previous relationship between the accused or his father with Pratap Singh (P.W.4) has been established by the prosecution. Itis, therefore, highly unlikely, in fact, improbable that such a confession would have been made by the accused before Pratap Singh (P.W.4). It is for this reason that Hon’ble Apex Court in Sunny Kapoor vs. State (Union Territory of Chandigarh) reported in (2006) 10 SCC 182 and Jaspal Singh @ Pali vs. State of Punjab reported in (1997) 1 SCC 510 has refused to rely upon an extra judicial confession being made to a relatively unknown person. 20. There is another aspect though why a serious doubt is created on this extra judicial confession made by the accused before Pratap Singh (P.W.4). As per the prosecution, the First Information Report was lodged at 08:30 p.m. on 24.04.2000. 20. There is another aspect though why a serious doubt is created on this extra judicial confession made by the accused before Pratap Singh (P.W.4). As per the prosecution, the First Information Report was lodged at 08:30 p.m. on 24.04.2000. Now, in defence of his case, the present appellant had placed before the trial court a valuable piece of evidence in his support, which is a telegram given by the mother of the accused to Superintendent of Police, Dehradun stating therein that her son has been under custody of police since 24.04.2000 and she apprehends that he may be falsely implicated in a case. There was a certified copy of the telegram produced before the trial court. The telegram was made on 25.04.2000 from Vikas Nagar. Certified copy of this telegram produced before the court below shows that this kind of extra judicial confession could not have been made before Pratap Singh (P.W.4) on 25.04.2000 at 10:00 p.m. Had this important piece of evidence been believed, then the entire statement of Pratap Singh (P.W.4) and the case of the prosecution that an extra judicial confession of guilt was made by the accused before Pratap Singh (P.W.4) on 25.04.2000 would have been found to be false. According to the defence, the accused was in jail since 24.04.2000, the trial court has refused to believe this important piece of evidence without assigning any reason. All this cr ates a serious doubt on the claim of Pratap Singh (P. .4) that an extra judicial confession was made before m on 24.04.2000 at 10:00 p.m. Pratap Singh (P.W.4) is a self-proclaimed “social worker” who does not even elaborate as to what social work he does. In all we fail to give any credit to this witness as well. 21. The other statement of Devendra Chauhan (P.W.6) has to be examined. The statement of this witness also creates doubt in the prosecution story. This witness could have been the best witness in the present case, as he had accompanied the deceased twice to the house of Mohd. Yakoob. He is a friend of the deceased but he never bothered when the deceased did not return on that fateful night of the incident. He alsonever bothers to report to anyone. Further though he is closest to the deceased he is the last person to know about the death of his friend. Yakoob. He is a friend of the deceased but he never bothered when the deceased did not return on that fateful night of the incident. He alsonever bothers to report to anyone. Further though he is closest to the deceased he is the last person to know about the death of his friend. His evidence is therefore highly doubtful. Therefore, this being a case of circumstantial evidence, we find that the evidence produced by the prosecution was not of such value or where the chain of evidence is complete where there was only one view possible i.e. the guilt of the accused. Therefore, considering the value of the evidence presented by the prosecution as discussed above, we deem it fit and proper that the impugned judgment and order should be set aside. 22. Hence, the appeal is allowed. The impugned judgment and order dated 01.09.2003 thereby convicting the accused/appellant under Sections 302 of I.P.C. and sentencing him for life imprisonment is hereby set aside. Accordingly, the accused/appellant is acquitted of the offence under Section 302 I.P.C. levelled against him. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. Lower court records be sent back.