JUDGMENT 1. - The appellant was working as a labourer in a poultry farm managed and owned by father of P.W.3 Dr. Pramod Mathur. Deceased Prabhati Lal was also employed as a Watchman (choukidar) at the poultry farm. On 2.9.2003 at about 6:00 PM Prabhati Lal, son of the complainant Prahlad Sain (P.W.1), had gone to the poultry farm to perform his duties. In the night, somebody killed Prabhati Lal. An information to this effect was relayed to the complainant Prahlad Sain (P.W.1) on 3.9.2003 at 10:00 AM. Complainant reached the poultry farm and found on the back of the farm dead body of his son Prabhati Lal. Face of the deceased and the place around, was soaked with blood. There were injuries on the head, and a stone weighing about 10 kg, was also lying near the dead body. Complainant submitted a written complaint Exhibit-P.1, on the basis of which FIR was registered. Complainant alleged in the complaint that some unknown person had killed his son with an incised weapon or by causing injury with a heavy weapon. 2. It was a case of blind murder. The Investigating Agency gathered circumstantial evidence against the appellant and he was sent for the trial. 3. Appellant was charged for offence under Section 302 IPC. He pleaded not guilty and claimed trial. 4. The court of Addl. District & Sessions Judge (Fast Track) Ajmer, after conclusion of trial vide impugned judgment dated 17.7.2004 held appellant to be guilty of offence under Section 302 IPC, and having convicted the appellant for the said offence, vide a separate order of even date sentenced him to undergo life imprisonment and pay a fine of Rs. two hundred, in default whereof to undergo ten days' simple imprisonment. 5. Hence, present appeal has been filed to assail judgment of conviction and order of sentence. 6. To decide the appeal, we shall briefly take note of prosecution evidence. 7. Prahlad Sain, complainant and father of the deceased appeared as P.W.1. He stated that on 2.9.2003 at about 6:00 PM his son Prabhati Lal had gone to the poultry farm of Dr. Chandra Narayan. On 3.9.2003 in the morning at 10:00 AM two persons, which included Salim came and informed that your son has received injury on the foot. 7. Prahlad Sain, complainant and father of the deceased appeared as P.W.1. He stated that on 2.9.2003 at about 6:00 PM his son Prabhati Lal had gone to the poultry farm of Dr. Chandra Narayan. On 3.9.2003 in the morning at 10:00 AM two persons, which included Salim came and informed that your son has received injury on the foot. When he reached there, he found police was standing there and on the back of the poultry farm dead body of his son was lying. He stated that some unknown person had caused murder of his son. 8. Mohd. Sharif (P.W.2) stated that he was employed as a Supervisor in the poultry farm, and deposed regarding arrest of the accused, and recovery of clothes from the accused which were stained with blood. This witness on 3.9.2003 at 12:40 PM had attested panchnama Exhibit-P.3 prepared by the Investigating Officer. This witness further stated that the accused got recovered one pant and shirt from his house which were having stains of blood. The clothes of the accused were taken in possession by the police on 13.9.2003 vide Exhibit-P.4. This witness further stated that on the date of occurrence i.e. 3.9.2003, in his presence at 4:40 PM, police had also taken into possession clothes worn by the deceased. However, in cross-examination this witness admitted that on 2.3.2003 at about 5:00 PM, police had taken away Ayub, accused, and Mahaveer, another witness, in jeep to the police station. 9. P.W.3 Dr. Pramod Mathur stated that they are having eleven sheds in the poultry farm. For management of each shed five or six persons are employed. Besides them, three persons were working as Supervisors. Abdul, Mahaveer, Kadar, Sharif and Mohan were engaged as Labourer, whereas deceased Prabhati Lal was working as a Watchman (chaukidar) and also used to perform small errands at the farm. On 2.9.2003 at 7:30 PM wife of the witness informed that the light of the poultry farm were not switched on. Saddam son of present accused Abdul alias Ayub, came and informed that Prabhati Lal had not switched on the lights though his cycle was standing. He further stated that he handed over the keys of the poultry farm to the present accused, who assured him that in the morning he will prepare feed for the flock. 10. Saddam son of present accused Abdul alias Ayub, came and informed that Prabhati Lal had not switched on the lights though his cycle was standing. He further stated that he handed over the keys of the poultry farm to the present accused, who assured him that in the morning he will prepare feed for the flock. 10. In cross-examination this witness stated that he had seen Prabhati Lal at the poultry farm on 2.9.2003 at 6 - 6:30 PM. He further stated that he had not seen the accused present in court on 2.9.2003 between 6 to 9:00 PM, and police had arrested present appellant on 3.9.2003. He further intimated that police had also arrested another worker in the farm, named Mahaveer. In cross-examination this witness further admitted that anybody after scaling the boundary-wall can enter the poultry farm. 11. Mohd. Sharif son of Allabux, appearing as P.W.4, stated that Mahaveer, accused Abdul and deceased chaukidar used to stay at the poultry farm in the night. This witness had attested memo Exhibit-P.4 regarding recovery of pant and shirt handed over by the accused which were stained with blood. In cross-examination this witness stated that on 3.9.2003 police had arrested the present appellant. Police after three/four days of arrest of Abdul, had recovered the clothes. 12. Mahaveer (P.W.5) is the star witness of the prosecution. He is witness to the extra judicial confession made by the accused. This witness stated that along with his uncle Ram Singh, aunt Manju and their daughter Neetu, he used to prepare feed for the birds. This witness stated that on 2.9.2003 at about 6:30 PM he had seen the deceased at the poultry farm, thereafter he had gone to bazaar to purchase ration for his aunt. When he returned, the accused told him that lights of the poultry farm are yet to be switched on. The accused was accompanied by his son Saddam. The accused was wearing green shirt and a khaki pant. He further stated that the accused had switched on the lights and in the morning at 6 - 6:30 AM the present appellant woke him up. The accused started operating tractor. When they had gone to the back of farm No.19 (shed), a dead body was found. The witness told Abdul, accused, to inform the owner, but the accused had not accompanied him. The accused started operating tractor. When they had gone to the back of farm No.19 (shed), a dead body was found. The witness told Abdul, accused, to inform the owner, but the accused had not accompanied him. It is further stated that on 11.9.2003 at about 1 - 1:25 PM, the accused along with his son came to the house of the witness. At that time aunt of the witness and the children were present. The accused came and started weeping, and informed that he had killed Prabhati Lal. The witness further stated that the accused disclosed that he suspected that his wife was having illicit relations with deceased Prabhati Lal. Therefore, on 2.9.2003 on the back of farm No.19, the accused has killed Prabhati Lal with a stone. 13. In cross-examination this witness admitted that on 3.9.2003 police had taken the accused Abdul along with him to the police station. He further admitted that police had given beating to him and for about 10 - 12 days he was detained at the police station. 14. Liyakat (P.W.6), Jitendra (P.W.7) and Mohan (P.W.8), in no way have advanced the case of the prosecution and they are not material witnesses of the case, as nothing hinges on their testimony. 15. Mst. Sharifan (P.W.9) stated that she knew Prabhati. Prabhati was murdered. This witness further stated that she was working as a maid in the house of Dr. Chandra Narayan, owner of the poultry farm. On the day of occurrence after she had prepared the dinner, accused had accompanied her to drop her at her house, and at that time there no stains of blood were present on the clothes of the accused, and on the same day she learnt that the present accused was taken away by the police. 16. Kadar (P.W.10) has stated nothing worthwhile in the court and, therefore, no cross-examination was extended. 17. Dr. R.K. Mathur (P.W.11) on 3.9.2003, had conducted autopsy on the dead body of the deceased Prabhati. He had found three injuries on the person of the deceased. Injury Nos.1 and 2 were on the head. Injury No.3 was on the arm. Since it is not in dispute that the accused died as a result of the injuries, which were anti-mortem in nature, we need not notice the evidence of Medical Jurist in detail. 18. He had found three injuries on the person of the deceased. Injury Nos.1 and 2 were on the head. Injury No.3 was on the arm. Since it is not in dispute that the accused died as a result of the injuries, which were anti-mortem in nature, we need not notice the evidence of Medical Jurist in detail. 18. P.W.12, Constable Ram Singh had taken five sealed packets from the Malkhana and deposited the same in the Forensic Science Laboratory. PW.13, Hira Lal was posted as a Constable in Kristianganj Police Station, and has stated that on 11.9.2003 at 9:15 PM vide arrest memo Exhibit-P.9, present appellant was arrested. 19. Inder Singh (P.W.14) was In-charge of the Malkhana. He has deposed regarding the handing over of the sealed packets to Constable Ram Singh (P.W.12), and the receipt brought by him from the FSL. 20. Dilip (P.W.15) has deposed regarding attestation of the panchnama, Exhibit-P.3, site-plan of the spot, Exhibit-P.2, and recovery memos of blood stained earth, simple earth and stones from the spot. This witness in cross-examination had admitted that on the day of occurrence, the police had apprehended Mahaveer, and had taken him to police station. 21. Satish Khurana (P.W.16) on the asking of police, had taken photographs of the spot. 22. Manju (P.W.17) stated that she learnt about the death of Prabhati, and the fact that Mahaveer and Abdul were taken by the police. This witness stated that except this, nothing else was known to her. She was declared hostile, and confronted by the learned Public Prosecutor with her previous statement recorded by police under Section 161 CrPC, Exhibit-P.16. 23. Suresh Kumar Mahrania (P.W.18) being Investigating Officer, had conducted investigation, and has deposed regarding various facets of the investigation. This witness stated that accused made disclosure statement Exhibit-P.39, and got recovered pant and a vest from his house. The said clothes were stained with blood. This witness further proved Exhibit-P.43, report received from the FSL. 24. As per the report Exhibit-P.43 of the FSL, stone recovered from the spot, shirt worn by the deceased and the pant of the accused were having same blood, group 'A'. 25. The said clothes were stained with blood. This witness further proved Exhibit-P.43, report received from the FSL. 24. As per the report Exhibit-P.43 of the FSL, stone recovered from the spot, shirt worn by the deceased and the pant of the accused were having same blood, group 'A'. 25. From the entire prosecution evidence following three circumstances emerge against the accused : (a) that accused was last seen with the deceased, (b) that blood found on the pant of the accused, and shirt of the deceased, and the weapon of offence stone contained blood of same group 'A', and (c) that present accused had made a confession before Mahaveer (P.W.5). 26. Having given our due consideration to the circumstances which have emerged in the prosecution case, we are firmly of the view that no circumstance has been proved beyond the shadow of doubt, and is not sufficient to uphold the conviction of the appellant. For discarding above said three incriminating circumstance, we shall divulge our reasons. 27. It has come in the evidence of P.W.3 Dr. Pramod Mathur, son of the owner of the poultry farm, that the present appellant was apprehended by the police on the day of occurrence i.e. 3.9.2003. This witness further stated that on 2.9.2003 from 6:00 PM to 9:00 PM he had not seen the accused at the farm. Mohd. Sharif (P.W.4) stated that when the dead body was found, accused was taking tea at his house. P.W.5 Mahaveer stated that on 3.9.2003 he was taken along with the accused Abdul to the police station. Mahaveer (P.W.5) was also given beating by the police, and was released after 10 - 12 days. Sharifan (P.W.9) has also stated that on the day of occurrence police had taken present appellant to the police station. 28. It has been admitted by number of witnesses that appellant was taken to police station on 3.9.2003, and thereafter they had never seen him, meaning thereby that he was never released by the police. Therefore, arrest memo Exhibit-P.9, to us, is a fabricated document. This document Exhibit-P.9, i.e. arrest memo, depict arrest of the appellant on 11.9.2003. Recovery of clothes at the instance of the accused had been shown on 13.9.2003. Mahaveer (P.W.5) had stated that on 11.9.2003 at about 1 and 1:25 PM, accused before his arrest, had made an extra judicial confession. 29. This document Exhibit-P.9, i.e. arrest memo, depict arrest of the appellant on 11.9.2003. Recovery of clothes at the instance of the accused had been shown on 13.9.2003. Mahaveer (P.W.5) had stated that on 11.9.2003 at about 1 and 1:25 PM, accused before his arrest, had made an extra judicial confession. 29. In view of the consistent evidence of the prosecution that the accused was arrested on 3.9.2003, we shall ignore evidence of extra judicial confession as any confession made in presence of the police or in police custody is inadmissible in evidence in view of Section 25 of the Indian Evidence Act. Since the accused was already with the police from 3.9.2003 onwards, any confession made on 11.9.2003 cannot be made admissible, and used against the accused. Furthermore, it has been admitted by Mahaveer (P.W.5) that he was also apprehended along with the accused, and was detained at the police station for 10 - 12 days, and was also given beating. Therefore, Mahaveer was also released from the police station after 11.9.2003, the alleged date when arrest of the accused has been shown in the record of the police. Thus, it is apparent that till that day, Mahaveer was also suspected to be an accused and, therefore, we cannot rule out that Mahaveer in order to screen himself of the offence, has deposed against the appellant by becoming convenient witness. On 3.9.2003 clothes of the deceased were taken in possession by the police. The accused was also with the police. It cannot be ruled out that accused was made to remove the clothes and the recovery of clothes is a padding by the police. If the accused was with police on 3.9.2003, as to why the clothes were not recovered till 13.9.2003, and arrest was shown on 11.9.2003, no justifiable explanation has been furnished by the learned Public Prosecutor. Accused, along with many other labourers and the deceased, was working in the poultry farm. They were expected to be seen at their work place. Therefore, it is not a case where the accused had taken the deceased away from his house or to an isolated place, or they were seen together at a distance from the work place. Last seen at the place of work cannot be construed as an incriminating circumstance, especially when deceased was also seen along with other co-workers. 30. Therefore, it is not a case where the accused had taken the deceased away from his house or to an isolated place, or they were seen together at a distance from the work place. Last seen at the place of work cannot be construed as an incriminating circumstance, especially when deceased was also seen along with other co-workers. 30. Taking totality of the circumstances, we are of the view that evidence brought by the prosecution is not such that we should sustain conviction of the appellant. Hence, as a matter of abundant caution, we shall extend benefit of doubt to the appellant. As a result thereof, we accept the present appeal, set aside the conviction and the sentence awarded upon the appellant and acquit him of the charges. 31. Appellant if not required in any other case, be forthwith released from jail. 32. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellant Abdul alias Ayub son of Mohammad Yasin is directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- [Rupees Twenty Thousand Only] and a surety bond in the like amount, before the trial Court. The bonds, so furnished shall be effective for a period of six-months. The bonds shall contain an undertaking that in the event of filing of Special Leave Petition against the judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Hon'ble Apex Court.Appeal Allowed. *******