JUDGMENT Hon’ble Om Prakash-VII, J.—This Criminal Appeal has been preferred by the appellant Chhotua against the judgment and order dated 16.1.1982 passed by the learned Sessions Judge, Banda in S.T. No. 291 of 1981 (State v. Chhotua and another) under Section 302 I.P.C., Police Station Pailani, district Banda whereby the appellant Chhotua and one Chhedua (since died) have been convicted and sentenced for an offence under Section 302 IPC to undergo imprisonment for life. Accused Chheduwa was further convicted for an offence under Section 404 IPC and was further sentenced for one years’ rigorous imprisonment. Further direction was that all the sentences shall run concurrently. 2. Criminal Appeal No. 212 of 1982 filed on behalf of the co-accused Chheduwa was abated by order of this Court dated 20.8.2004, therefore, appeal filed by the appellant Chhotua i.e. the present Criminal Appeal No. 1813 of 1982 is only before us. We proceed to deal with this appeal. 3. Prosecution story in nut shell is as follows : 4. Written report dated 24.5.1981 Ex. Ka-1 was submitted by informant Ram Swarup Singh at Police Station Pailani mentioning therein that on 23.5.1981 at about 8 p.m. he alongwith his younger brother Munni Singh alias Shyam Baran Singh (deceased) were going to “Khalihan” from their house. After covering some distance Munni Singh had gone to call Chhotua and Chhedua (since died). Munni Singh went to Mohalla Kevtara to call the aforesaid persons and informant proceeded towards “Khalihan”. Informant slept in the “Khalihan”. On the next morning the informant found Chhotuwa and Chhedua in his “Khalihan” but his younger brother Munni Singh was not there. When the informant enquired about his brother from Chhotuwa and Chhedua (since died) he was informed that on the way Munni Singh stopped at the house of Badluwa Kevat for having fish. After that Munni Singh covered some distance with them, he told them to go to “Khalihan” as he will go to his home to sleep there. They told the informant that Munni Singh must be at home. When he came to his house at about 6 a.m. he found that his brother Munni Singh was not there. On suspicion, he enquired the whereabouts of his brother then it was revealed that he did not return back home at night. They told the informant that Munni Singh must be at home. When he came to his house at about 6 a.m. he found that his brother Munni Singh was not there. On suspicion, he enquired the whereabouts of his brother then it was revealed that he did not return back home at night. At about 6.30 a.m. one Ram Bharosa Singh, who have become saint, informed that when he went to the river to have a dip he saw the dead body of Munni Singh at Mansuha Ghat. He also informed that lot of blood was also there. On receiving the information the informant alongwith his father, uncle Chandra Pal and other villagers reached at the Mansuha Ghat near (bank of river Cane) and found the body of his brother Munni Singh. There was injuries on his head, neck and testicles. Blood was also found there. Munni Singh also used to wear a wrist watch (time star) of black dial with black nylon strap, the cost of which was about Rs. 150/-. The wrist watch was also missing. Chhotuwa son of Jhukali Kevat and Chhedua son of Shiv Nath Kevat who were ploughmen of informant brother had taken loan of Rs. 2,800 and Rs. 800/- respectively from his brother (the deceased). Informant apprehended that his brother was killed by the accused persons so that they may not have to return the money which they had borrowed from the deceased. They must have taken his wrist watch. The informant and his father and younger brother Shyam Swaroop would identify the same. In the night of incident at about 10 p.m. Chotuwa and Chhedua (since died) alongwith the deceased were seen by Ram Khelawan son of Sidhwa and Ram Vishal son of Adhinva Yadav while they were going towards the river from the house. It was also informed by the informant that dead body of his brother was lying near the river. 5. On the basis of the written report (Ext. Ka-1) chik F.I.R. (Ext. Ka-6) was registered at police station concerned at crime No. 78 of 1981 under Section 302/404 IPC on 24.5.1981 at 8.50 a.m. The G.D. entry (Ext. Ka. 7) was also made. Investigation was entrusted to Harsh Nath Singh, S.H.O. concerned The investigating officer proceeded to the place of occurrence. Inquest report (Ext. Ka. 18) was prepared on 24.5.1981 at 13.30 hrs. Ka. 7) was also made. Investigation was entrusted to Harsh Nath Singh, S.H.O. concerned The investigating officer proceeded to the place of occurrence. Inquest report (Ext. Ka. 18) was prepared on 24.5.1981 at 13.30 hrs. He had also prepared sample seal (Ext. Ka-19); Photo nash (Ext. Ka-20); Form No. 13 (Ext. Ka-21); report to police station concerned (Ext. Ka-22) were also prepared by the Investigating Officer on the same day. G.D. Entries for proceeding towards the place of occurrence are Ext. Ka-8 and Ext. Ka-9. Investigating Officer also collected one pair of sleeper, one “gamcha” of red colour, one blood stained “Sadri” from the body of the deceased while preparing the inquest report. The memo prepared in this regard is Ext. Ka-23. Blood stained earth and plain earth was also taken from the place of occurrence and memo was prepared as Ext. Ka-24. Dead body was dispatched through Constables Gobardhan Das, P.W. 14 for post-mortem alongwith police papers. 6. Post-mortem on the dead body of the deceased was conducted on 25.5.1981 at 11.40 a.m. and post-mortem report Ext. Ka-16 was prepared. 7. Deceased was aged about 26 years. Probable time since death was about 1½ day. He was of average good built. Rigor mortis had passed off from both the upper and lower extremities. Decomposition sets in foul smell. 8. Following anti mortem injuries were found : (I) Lacerated wound 4 cm x 2 cm x scalp deep on the right side skull 9 cm above the right ear and 10 cm above the right eye brow. (ii) Contusion 12 cm x 3 cm on the left side skull, 10 cm above the left ear and 12 cm above the left eye brow. One section skull bone fractured. (iii) Four penetrating wound in an area of 6 cm x 4 cm on the right side face and forehead each measuring 1 cm x ½ cm x 2 cm. (iv) Penetrating wound 1 cm x ½ cm x cranial cavity deep on the right side face adjoining the medial end of right eye, margins clean cut, direction inward, backward, slightly upward and towards left side. (v) Penetrating wound 3 cm x 2 cm x 10 cm deep on the left anterio lateral aspect of neck 2-1/2 cm above the left clavicle. Margins clean cut, underneath the structures are lacerated and perforated e.g. carotid artery, muscle and facialata. (v) Penetrating wound 3 cm x 2 cm x 10 cm deep on the left anterio lateral aspect of neck 2-1/2 cm above the left clavicle. Margins clean cut, underneath the structures are lacerated and perforated e.g. carotid artery, muscle and facialata. (vi) Penetrating wound 5 cm x 2 cm x content deep on the left scrotum anterior lateral aspect through wound scrotum is coming out. 9. Cause of death was due to shock and hemorrhage and comma resulting from anti mortem injuries. 10. Investigating Officer also inspected the place of occurrence and prepared the site plan (Ext. Ka-25). Accused were arrested and on their pointing out wrist watch, lathi and karchul were recovered. Memos (Ext. Ka-3 and 4) were also prepared. The test identification of wrist watch was also conducted. The identification memo (Ext. Ka-5) was prepared by the S.D.M./Identification Magistrate. The articles and the soil recovered/taken by the police were also sent to the Forensic Science Laboratory for chemical examination. The analysis reports are Ext. Ka-29 and Ka-30. Investigating Officer also interrogated the witnesses and on the basis of evidence collected during investigation a charge-sheet Ext. Ka-28 was submitted against the accused. 11. Case being exclusively triable by the sessions Court was committed to the Court of sessions for trial. Charges were framed under Section 302 and 404 IPC against the present appellant and the co-accused Cheduwa. Accused persons denied from the charges and claimed their trial. 12. In order to prove its case the prosecution examined PW-1 Ram Swaroop who had proved the written report (Ext. Ka-1) and material Ext. 1 to 8 i.e. wrist watch, underwear, bandi, lungi etc. P.W.-2 Dharam Pal, father of the deceased, who is the witness of loan advanced to the accused persons and also the witness of identification proceeding of the wrist watch; P.W.-3 Sarju Prasad is the witness of extra judicial confession said to have been made by the co-accused Chheduwa (since died); P.W.-4 Badlu, in whose house deceased is said to have taken fish in the night; P.W.-5 Ram Vishal is last seen witness; P.W.-6 Mahadev Prasad is the witness of recoveries and had proved the papers (Ext. Ka 2 to 13). He had also proved material Ext. Ka 2 to 13). He had also proved material Ext. 9 to 11; P.W.-7 Bhura is the witness for making demand for repayment of loan amount from the accused persons by the deceased; P.W.-8 S.D.M., Banda Dilip Sahai had arranged the identification proceeding of the wrist watch and prepared the memo of identification Ext. Ka-5; P.W.-9 Head Constable Munni Singh, who had registered the chik F.I.R. and also prepared the other police papers. He had also sent the recovered wrist watch on 25.7.1981 for identification to the Court of S.D.M. On 14.10.1981 he had also sent the case property through rapat No. 10 for chemical examination to Agra, this witness had proved Ext. Ka 6 to 15; P.W.-10 Dr. G. K. Gupta had conducted the post-mortem on the body of the deceased and prepared Ext. Ka-10; P.W.-11 S.O. Harsh Nath Singh, had investigated the matter and prepared the Ext Ka 18 to 30; P.W.-12 Constable Ram Prasad, had taken the case property to the office of the Chief Medical Officer and also to the Forensic Science Laboratory, Agra; P.W.-13 Constable Phool Singh, had carried out the special report to the office of S.D.M., Banda; P.W-14 Constable Govardhan Das had carried the dead body of the deceased for post-mortem. 13. After closer of the prosecution evidence statement of the appellant and other co-accused Chhedua (since died) were recorded under Section 313 Cr. P.C. 14. Accused appellant Chhotua has admitted that he was ploughman of the deceased but has denied the rest prosecution story. He has also specifically denied of any recovery said to have been made on his behalf. Denial is also of the extra judicial confession said to have been made by the accused Chhedua (since died). He has specifically stated that Dharampal took them from the field near the dead body of the deceased and there they were beaten up. Police have falsely booked the accused persons in this case. Appellant has also stated that the prosecution witnesses have deposed falsely against the accused. 15. We have heard Sri C. P. Awasthi, learned counsel for the appellant and learned A.G.A. Sri Rajiv Sharma for the State and perused the entire record. 16. Sri Awasthi submitted that there is only circumstantial evidence against the accused appellant. Appellant has also stated that the prosecution witnesses have deposed falsely against the accused. 15. We have heard Sri C. P. Awasthi, learned counsel for the appellant and learned A.G.A. Sri Rajiv Sharma for the State and perused the entire record. 16. Sri Awasthi submitted that there is only circumstantial evidence against the accused appellant. Chain of the circumstantial evidence are also not linked with each other to form an irresistible presumption against the appellant to have committed the present offence, therefore, trial Court finding placing reliance on the circumstantial evidence is illegal. It was further stated that recovery shown against the appellant is false and planted. Forensic Science Laboratory report also does not support the prosecution case. Identification test of the wrist watch said to have been recovered on the pointing out of the accused appellant was not made in accordance with law. Precaution required to be taken have not been followed. All the wrist watches said to have been kept alongwith the disputed wrist watch were not of the same company and make. Therefore, the trial Court has illegally placed reliance on such recovery. Said recovery is also not free from suspicion. The place of recovery was accessible to the family members. “Lathi” said to have been used in commission of the crime was also recovered from the room in open place. Therefore, no reliance can be placed on such recovery. Extra judicial confession said to have been made by the accused Chhedua (since died) was not supported by any other evidence. Medical evidence also does not support the prosecution case. Fact and evidence of the matter clearly indicates that deceased was done to death by some other person on the ground suggested by the appellant as he was a man of bad character. 17. Learned counsel for the appellant has placed reliance on the law laid down by the Hon’ble the Apex Court in the case of Sahadevan and another v. State of Tamil Nadu, (2012) 6 SCC 403 . 18. Sri Rajeev Sharma, learned A.G.A. in rebuttal has argued that chain of circumstantial evidence are so connected and linked with each other that one and only one presumption against the accused appellant in the present case will be made that accused and accused only have committed the murder of the deceased. There is last seen evidence also. 18. Sri Rajeev Sharma, learned A.G.A. in rebuttal has argued that chain of circumstantial evidence are so connected and linked with each other that one and only one presumption against the accused appellant in the present case will be made that accused and accused only have committed the murder of the deceased. There is last seen evidence also. Deceased after eating the fish at the residence of P.W.-4 Badlu had gone to the residence of the accused appellant. He was also seen alongwith accused appellant and other co-accused Chhedua (since died) in the night at 10 p.m. going towards the river. Thereafter the dead body of the deceased was seen. There is no considerable time gap between the chain of circumstances/evidence. 19. Extra judicial confession made by the co-accused clearly support the circumstantial evidence, therefore, trial Court has rightly held the accused appellant guilty for committing the murder of the deceased. 20. In support of the arguments the learned A.G.A. placed reliance on the judgment in the case of Akhlaq v. State of U.P., 2006 (Suppl) ACC 862. 21. Before proceeding to deal with the submissions raised by learned counsel for the parties, this Court must take into consideration the finding of the trial Court : 22. The trial Court on the basis of the last seen evidence, recovery of the wrist watch and on the basis of extra judicial confession has held that prosecution was able to prove its case beyond reasonable doubt against the appellant. 23. At the very outset it is pertinent to mention here that in the present matter there is no direct evidence. Prosecution fully relied on the circumstantial evidence, recoveries of wrist watch, lathi, karchul and also on the extra judicial confession. It is the admitted case of the prosecution that in the night of 23.5.1981 at about 8 p.m. deceased and the informant P.W.-1 Ram Swaroop both proceeded from their house to the “Khalihan”. Deceased after covering some distance had gone to take the accused persons for doing agricultural work in the night itself for “Osai” (separating the grain from the straw). It is also an admitted fact that deceased had not gone to the house of accused persons directly but in between had visited Badlu Kevat to eat fish at his place. 24. Prosecution witnesses have also admitted that after taking fish deceased proceeded towards the house of the accused persons. It is also an admitted fact that deceased had not gone to the house of accused persons directly but in between had visited Badlu Kevat to eat fish at his place. 24. Prosecution witnesses have also admitted that after taking fish deceased proceeded towards the house of the accused persons. P.W.-5 Ram Vilas had seen the deceased alongwith accused persons on the same night at about 10 p.m. going towards the river. It is also admitted case of the prosecution that the money/loan was given to the accused by the deceased on behalf of his grand father, however, there is no documentary evidence to establish this fact. 25. Prosecution has also rest its case on the extra judicial confession said to have been made by the co-accused Chhedua (since died) to P.W.-3 Sarju Prasad on the same day. Accused appellant has made discloser statement. It is also established from the prosecution evidence that all the wrist watches said to have been mixed during identification were not belonging to the same company and make. The recovered articles were kept at the police station concerned itself for a long period till submission to the Forensic Science Laboratory. Medical evidence also indicates that besides other injury, injury No. 6 is a penetrating wound on the left scrotum. Now the question is whether the prosecution was able to establish the guilt of the accused appellant and the recoveries said to have been made on pointing out of the accused appellant are believable. Whether the extra judicial confession made by the co-accused Chhedua (since died) can be taken into consideration against the appellant also or not. 26. Before entering into the factual aspect of the case, we would like to refer to the settled legal position regarding acceptance of the extra judicial confession and the circumstantial evidence. 27. Hon’ble Apex Court in the case of Sahadevan and another v. State of Tamil Nadu, (2012) 6 SCC 403 , has laid down the following principle in para No. 16 of the judgment to make extra judicial confession an admissible piece of evidence. Para 16 of the judgment is quoted below : “16. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. Para 16 of the judgment is quoted below : “16. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused : (i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the Court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” 28. Hon’ble the Apex Court in the matter of Akhlaq (Supra) in para No. 13 has held as under : “13. In the case of Haroon Haji Abdulla v. State of Maharashtra, AIR 1968 SC 832 , this Court held that a confession intended to be used against a co-accused stands on a lower level than the evidence of accomplice because the latter is tested by cross-examination whilst the former is not. The confession of a co-accused is not an evidence but if there is other evidence on which a conviction can be based, they can be referred to as lending assurance to the verdict. It was further held that although the confession may be taken into consideration against a co-accused by virtue of Section 30 of the Evidence Act its value is extremely weak and there could be no conviction without corroboration on material particulars. In the present case, the extra judicial confession was made in the presence of Akhlaq (appellant). The conduct of Akhlaq (appellant) comes within Explanation 2 to Section 8 of the Evidence Act. Under that Explanation, statements made in the presence of Akhlaq (appellant) are admissible as the ground work of his conduct. In the present case, the extra judicial confession was made in the presence of Akhlaq (appellant). The conduct of Akhlaq (appellant) comes within Explanation 2 to Section 8 of the Evidence Act. Under that Explanation, statements made in the presence of Akhlaq (appellant) are admissible as the ground work of his conduct. It is a general rule that statements made in the presence of the accused, which he might have contracted, if untrue, are evidence against him. This is illustrated by Illustration (f) and (g) to Section 8 of the Evidence Act. In the present case, the extra judicial confession made by the co-accused Babu clearly indicates that Asha was followed by Akhlaq (appellant) who in turn was followed by the other co- accused. The said extra judicial confession indicates the entry of all accused including Akhlaq (appellant) into the field of Kanchi. They were seen by Jairam Singh (PW.11). The evidence of PW.11 stood corroborated by the evidence of PW.4 to that extent. The extra judicial confession shows that Asha was raped forcibly and then strangulated. The injuries on the different parts of her body indicates that she was raped forcibly. This is clear from the testimony of Dr. Surendra Pal Singh (PW.14). The location of the body in the scattered field also shows that she was forcibly raped. The strangulation by Dhoti is also one more circumstance showing how she was murdered. Therefore, each and every statement made in the extra judicial confession corroborates the evidence of PW.1, PW.11, PW.4 and PW.14. Moreover, Akhlaq (appellant) remained silent when confession was made by co-accused Babu to Mahesh Chandra (PW.6). In the said confession, Babu implicated himself. This conduct of Akhlaq (appellant) has been noticed by the trial Court. The trial Court has correctly invoked Section 8 of the Evidence Act while evaluating the extra judicial confession.” 29. In a latest pronouncement Hon’ble the Apex Court in the case of Dhan Raj alias Dhand v. State of Haryana, (2014) 6 SCC 745 , in para Nos. This conduct of Akhlaq (appellant) has been noticed by the trial Court. The trial Court has correctly invoked Section 8 of the Evidence Act while evaluating the extra judicial confession.” 29. In a latest pronouncement Hon’ble the Apex Court in the case of Dhan Raj alias Dhand v. State of Haryana, (2014) 6 SCC 745 , in para Nos. 9, 13, 14 and 19 of the judgment has held as under : “9.It is well established that extra-judicial confession has been treated by this Court as weak evidence in the absence of a chain of cogent circumstances, for recording a conviction (See: Gopal Sah v. State of Bihar, (2008) 17 SCC 128 , and Pancho v. State of Haryana, (2011) 10 SCC 165 . It was held in Sahadevan and another v. State of Tamil Nadu, (2012) 6 SCC 403 , that if an extra judicial confession suffers from material discrepancies or inherent improbabilities then this Court cannot base a conviction on the same. In the present case, there is an apparent discrepancy in the confession statement of Sanjay and the same is a glaring one as he has named different accomplices in the same crime in his two confessional statements. Furthermore, Sanjay’s confessional statements only connect him to the car and the Kirpan, his statement that the accused appellants took the wrist watch and the briefcase in the absence of other evidence except the recovery of the same does not establish that anything beyond the fact that they may possess stolen goods. In no manner does the later statement of the co-accused supports that the accused appellants were involved in the commission of murder. In the case of Pancho v. State of Haryana (supra) this Court did not convict the accused Pancho on the basis of the confession statement of the co-accused in the absence of other cogent evidence, inspite of the belated recovery of the alleged weapon of murder. 13. Moreover, recovery of an object is not a discovery of fact, as per the decision of this Court in Mano v. State of T.N., (2007) 13 SCC 795 . Recovery must be of a fact which was relevant to connect it with the commission of crime. 13. Moreover, recovery of an object is not a discovery of fact, as per the decision of this Court in Mano v. State of T.N., (2007) 13 SCC 795 . Recovery must be of a fact which was relevant to connect it with the commission of crime. Therefore, even if the recovery of goods is reliable then it does not indicate that the accused appellants committed the murder and the only admissible fact which can be inferred is that they are in possession of stolen goods. 14. We would refer to the decision of this Court in Madhu v. State of Kerala, (2012) 2 SCC 399 , the facts of which are relevant in the present case. In the said case, the body of the deceased was found near her home with her ornaments on her person missing. On the basis of the information furnished by the accused recovery of the said ornaments was made. This fact coupled with the sighting of the accused near the place of crime was the basis for conviction. However, this Court reversed the conviction on the ground that said recovery and sighting of the accused near the deceased do not lead to the sole conclusion that murder was committed by the accused only. In State of Rajasthan v. Talevar and another, (2011) 11 SCC 666 , also it was held that where the only evidence against the accused is recovery of stolen property, then although circumstances may indicate that theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of stolen property had committed murder. Also the recovery of looted articles at the instance of the accused could not be relied upon in absence of any details as to when and where such recovery was made and in absence of any confession of commission of offence by the accused. Besides, the seizure of the goods was not corroborated by any independent witness in the present case. 19. We would refer to the decision of this Court in Munish Mubar v. State of Haryana, (2012) 10 SCC 464 , wherein Dr. Besides, the seizure of the goods was not corroborated by any independent witness in the present case. 19. We would refer to the decision of this Court in Munish Mubar v. State of Haryana, (2012) 10 SCC 464 , wherein Dr. Justice Chauhan has very aptly and succinctly stated the following: “ 28........The circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused, primarily because the said facts, when taken as a whole, do not permit us to arrive at any other inference but one indicating the guilt of the accused.” A Court has to examine the entire evidence in its entirety especially in case of circumstantial evidence and ensure that the only inference drawn from the evidence is the guilt of the accused. If more than one inference can be drawn then the accused must have the benefit of doubt as it is not the Court’s job to assume and only when guilt beyond reasonable doubt is proved then it is fair to record conviction. In case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence, and the circumstances so proved must form a complete chain without giving any chance of surmise or conjecture and must also be consistent with the guilt of the accused.” (Emphasis supplied) 30. First of all, we proceed to take up the recovery and identification of the wrist watch and lathis. 31. Admittedly the accused appellant was caught by the men of the informant and was produced before the police personnel who were present in the concerned village itself on 24.5.1981. Accused appellant is said to have been made discloser statement containing inculpatory facts. As per the prosecution witness accused appellant had also made statement before the police and the witnesses for recovery of the lathi said to be used in commission of the crime and the wrist watch said to have been removed from the body of the deceased. Ext. Ka-4 clearly indicates that recovery of the lathi was made from the room of the house of the accused appellant. He had also given the wrist watch said to have been kept in the same room after digging the “Kaccha” floor. The fact of disclosure statement leading to recovery was challenged by the accused appellant claiming that no such recovery was made by them. He had also given the wrist watch said to have been kept in the same room after digging the “Kaccha” floor. The fact of disclosure statement leading to recovery was challenged by the accused appellant claiming that no such recovery was made by them. Now the question is whether recovery of lathi and wrist watch inspire confidence and can be relied upon. It is settled legal position that recovery made from the place which is accessible to any person/general public is not safe to rely. In the present matter lathi said to have been recovered on behalf of the accused appellant was kept in the room without hiding it. It is highly improbable that the accused appellant would keep the “lathi” allegedly used in the commission of offence inside his room openly making no attempt to hide it. Recovery of lathi also becomes doubtful because human blood was not found on it by Forensic Science Laboratory. 32. As far as the recovery of wrist watch is concerned, burden to connect the wrist watch with the deceased was of the prosecution. Prosecution has tried to connect the said wrist watch on the basis of the identification proceedings. P.W.-8, the concerned S.D.M. who was the identification magistrate and had arranged the identification proceeding has admitted in the cross-examination that all the wrist watches kept alongwith the disputed wrist watch were not of the same company and make. All precautions, as required, under the law for identification of recovered goods was not adhered to by the P.W.-8 before identification then in our view trial Court finding placing reliance on such recovery and identification is illegal. The wrist watch said to be belonging to the deceased, was of a particular company, as mentioned in the F.I.R. itself. Prosecution did not make it clear that all the wrist watches kept for identification were belonging and relating to the same company and make then in our view before conducting/organising the identification test the concerned Magistrate had not adopted due precaution. Thus no reliance on such evidence can be placed. Trial Court finding on this count is also perverse and illegal. 33. Now remains the extra judicial confession, said to have been made by the accused Chhedua (since died). Thus no reliance on such evidence can be placed. Trial Court finding on this count is also perverse and illegal. 33. Now remains the extra judicial confession, said to have been made by the accused Chhedua (since died). The Hon’ble Supreme Court in the case of Sahadevan (Supra) has held that extra-judicial confession is a weak evidence by itself and it has to be examined by the Court with great care and caution. 34. In the present matter, extra judicial confession is said to have been made on 24.5.1981 from P.W.-3 Sarju Prasad by accused Chheduwa (since died). There is no corroboration of this fact from any other independent witness. Therefore, Court has to seek corroboration of this fact from the other evidence particularly when the accused has denied this fact. As prosecution witnesses have stated that accused persons had made confessional statement before the police of hiding the weapons said to have been used for committing the murder of the deceased. It is pertinent to mention here that confession made before the police is not an admissible piece of evidence. Only such part of the statement through which any recovery has been made is relevant. In the present matter recovery of the wrist watch and the lathi was highly suspicious and the recovery made on the pointing out of co-accused Chhedua (since died) cannot be taken into consideration against the accused appellant, therefore, in our view from the recovery allegedly made in the present matter lend no corroboration to the extra judicial confession made by the accused Chhedua (since died) before P.W.-3 Sarju Prasad. 35. Now we proceed to take up the last seen evidence. Before dealing with this fact, we would like to refer at this stage that nothing was mentioned about the presence of witnesses Sarju Prasad and Mahadev Prasad Gupta in the “Khalihan” in the night of 23.5.1981 itself. Witnesses have stated this fact for the first time before the Court that these witnesses were present in the “Khalihan”in the night itself. No any fact regarding “Osai” (separating the grain from the straw) was mentioned in the written report. This fact has also been stated by the witnesses for the first time before the Court. Witnesses have stated this fact for the first time before the Court that these witnesses were present in the “Khalihan”in the night itself. No any fact regarding “Osai” (separating the grain from the straw) was mentioned in the written report. This fact has also been stated by the witnesses for the first time before the Court. It is the prosecution case that in the night of 23.5.1981 deceased Munni Singh and the informant Ram Swaroop both proceeded towards “Khalihan” but the deceased left the informant in the way to bring the accused persons for the purpose of agricultural work in the night itself. It is an established fact that the deceased did not reach to the house of the accused persons directly but in between had gone to the house of P.W.-4 Badlu to eat fish. Learned counsel for the appellant has argued that this fact creates suspicion about the prosecution story on the ground that the deceased had left his brother to bring the accused persons but instead he reached the house of P.W.-4 Badlu. P.W.-4 Badlu has stated that after taking the fish deceased stated that he would take the accused appellant alongwith him to his agriculture field. On close reading of the statement of the P.W.-4 Badlu it is evident that no specific time has been given as to when the deceased had reached his house and thereafter left it. Since the present case is purely based on circumstantial evidence, therefore, prosecution has to establish chain of the circumstantial evidence by cogent evidence beyond reasonable doubt. 36. This witness has only heard noise of the deceased and the accused appellant but at what time he heard the noise of the deceased and the accused appellant is not clear from the statement of this witness. In our considered view, the testimony of this witness is not free from suspicion. This finding also finds support from the fact that the deceased had to go to the house of accused appellant. 37. P.W.-5 Ram Vilas had seen the accused persons and the deceased at 10 p.m. in the night going towards the river. 38. It is an admitted case of the prosecution that accused appellant and co-accused Chheduwa (since died) were present in the “Khalihan” in the morning. 37. P.W.-5 Ram Vilas had seen the accused persons and the deceased at 10 p.m. in the night going towards the river. 38. It is an admitted case of the prosecution that accused appellant and co-accused Chheduwa (since died) were present in the “Khalihan” in the morning. P.W.-1 Ram Swaroop had also gone to the “Khalihan” for “Osai” but he did not care to check in the night whether the deceased and the accused appellant had come to the “Khalihan” or not. As per this witness due to the fact that there was no wind in the night, therefore, the work of “Osai” could not be done and they slept whole night. Although P.W.-5 Ram Vilas is an independent witness and has no relation with the deceased or the informant but only on the strength of the testimony of this witness when the last seen evidence is not supported by any other evidence, we are of the view that trial Court finding regarding the guilt of the accused and the completion of chain of the circumstantial evidence and also the recovery of the articles are illegal and perverse. On the strength of the evidence adduced by the prosecution an irresistible conclusion against the accused for committing the present offence cannot be formed. Trial Court finding in this regard is not sustainable. 39. One suspicious circumstance in the matter was also elicited by the learned counsel for the appellant that article/material recovered on the pointing out of the accused appellant and co-accused Chheduwa (since died), as well seized from the place of occurrence and from the body of the deceased were kept in the police station concerned itself till the last week of July, 1981. Recoveries have been made on 24.5.1981. There is no plausible explanation offered by the Investigating Officer on this point that why the articles were not deposited in the Sadar Malkhana immediately. 40. One of the accused was found wearing blood stained “bandi” when he was caught. It is improbable that he would keep wearing it throughout the night after committing the alleged offence. After committing the murder they will not go to the agricultural field of the deceased. Motive is very weak. It is also improbable that just for some rupees they will commit such brutal murder and cause injuries to his testicles. 41. It is improbable that he would keep wearing it throughout the night after committing the alleged offence. After committing the murder they will not go to the agricultural field of the deceased. Motive is very weak. It is also improbable that just for some rupees they will commit such brutal murder and cause injuries to his testicles. 41. On the basis of foregoing discussions, it is established that prosecution has not been able to establish the chain of the circumstantial evidence by the cogent evidence. Recoveries said to have been made on behalf of the accused appellant are also not free from suspicion. Due precaution was not adhered to by the identification Magistrate. Therefore, evidence in this regard can also not be taken into consideration. 42. Use of “lathi” in commission of the crime was also not established as no human blood was found on it, last seen evidence and extra judicial confession is also not supported from any other cogent evidence, therefore, in our considered view the inference drawn by the learned Court below is not based on settled legal proposition of the law. Prosecution has not been able to establish the chain of circumstances by the cogent evidence. There is no direct evidence to connect the accused appellant with the murder of the deceased, motive attributed against the accused appellant is also not proved beyond reasonable doubt. Therefore, we are also of the view that trial Court finding regarding guilt of the accused is not sustainable. Suggestion made by the accused appellant appears probable. Appeal having merit is liable to be allowed. Impugned judgment and order dated 16.1.1982 passed by the learned Sessions Judge, Banda in S.T. No. 291 of 1981 (State v. Chhotua and another) under Section 302 I.P.C., Police Station Pailani, district Banda is liable to be set aside. 43. For the reasons given above, the appeal is allowed. Impugned judgment and order dated 16.1.1982 passed by the learned Sessions Judge, Banda in S.T. No. 291 of 1981 (State v. Chhotua and another) under Section 302 I.P.C., Police Station Pailani, district Banda is hereby set aside. 44. Appellant Chhotua is acquitted from the charge under Section 302 IPC. He is on bail. He need not to surrender. His personal and surety bonds are hereby cancelled and sureties are discharged from their liability. 45. 44. Appellant Chhotua is acquitted from the charge under Section 302 IPC. He is on bail. He need not to surrender. His personal and surety bonds are hereby cancelled and sureties are discharged from their liability. 45. Let a copy of this judgment alongwith trial Court record be sent immediately to the Court concerned for compliance. ———————