JUDGMENT 1. - The instant criminal appeal has been filed by the accused appellant Manak Singh S/o Pokar Singh under Section 374(2) of the Cr.RC. against the judgment dated 24.3.2011 passed by the Sessions Judge, Churu in Sessions Case No. 26/2006 whereby the learned trial court convicted the accused appellant and passed the following sentence for the offences under Section 302 IPC : Under Section 302 : Life Imprisonment with fine of Rs. 5,000/- and in default of payment of fine to further underto six months SI. 2. The accused appellant faced the trial in Sessions Case No. 26/2006 along with two other accused Sri Krishan @ Babloo and Raj Kumar @ Raju and participated in whole of therein but on 22.8.2010 when case was listed for final arguments his bail bond were forfeited due to his non appearance and arrest warrant was issued. The Session Judge, Churu heard the final arguments of the case of accused Sri Kishan @ Babaloo and Raj Kumar @ Raju and passed an order for deciding the case of present accused appellant separately. 3. The accused appellant Sri Kishan @ Babaloo and Raju Kumar @ Raju were convicted vide judgment dated 11.11.2010 for offence under Section 302, 302-120B and 460 IPC and passed punishment for life imprisonment against them. Thereafter, on 27.11.2010 the present appellant Manak Singh surrendered before the Trial Court and the learned Trial Court fixed the date for final hearing of the accused appellant also and after hearing arguments finally convicted the accused appellant also for offence under Section 302 IPC and passed the sentence for life imprisonment with fine of Rs. 5,000/- and in default of payment of fine to further undergo six months SI. 4. In this appeal, the appellant is challenging the validity of the judgment dated 24.3.2011 passed against him by the Sessions Judge, Churu in Sessions Case No. 26/2006. 5. Brief facts of the case are that on 6.6.2006 one Jabbar Singh PW-1 submitted a written complaint to the SHO, Police Station, Sardarshahar District Churu alleging therein that his father Panchu Ram used to go for grazing goats in the forest area and in the night he was committed for the trial to the Sessions Judge, Churu where trial took place. 6. 6. In the trial, to prove the prosecution case, 16 prosecution witnesses including author of FIR PW-1 Jabbar Singh and PW-7 Irfan before whom confession was made by the accused appellants were produced. The witnesses PW-9 Dr. K.K. Mishra and PW-10 Dr. Rahul Jain who performed the post mortem of the bodies, so also, statement of other witnesses were recorded in the trial and 58 documents were exhibited. After recording statements of prosecution witnesses, the statement of the accused appellants were recorded under Section 313 Cr.P.C. in which accused appellants denied the allegation levelled against him and said that due to influence and under suspicion, the prosecution has implicated him in this false case. In spite of granting an opportunity to lead evidence in defence, no oral evidence was produced by the accused appellant and only 5 documents were exhibited from defence side. 7. The learned trial court after hearing both the parties finally convicted the accused appellants Sri Kishan @ Babaloo and Raj Kumar @ Raju vide judgment dated 11.11.2010 but case of appellant Manak Singh was kept pending because was absconding, therefore, an order was passed to separate the case of accused appellant by the trial court. The accused appellant Manak Singh surrendered after the judgment dated 11.11.2010, in case of co-accused, therefore, the trial court heard the case of appellant Manak Singh separately and finally convicted the accused appellant Manak Singh vide judgment dated 24.03.2011 which is under challenge. 8. The accused appellant Manak Singh surrendered after the judgment dated 11.11.2010, in case of co-accused, therefore, the trial court heard the case of appellant Manak Singh separately and finally convicted the accused appellant Manak Singh vide judgment dated 24.03.2011 which is under challenge. 8. The learned counsel appearing for the appellant Manak Singh vehemently submitted that prosecution has failed to prove its case against the appellant beyond reasonable doubt because prosecution is relying upon the statement of PW-7 Irfan but the said witness did not identify the accused appellant in the Court but the learned trial court while relying upon the recovery of coins (Rejgari) in the presence of PW-5 Parmeshwar and PW-13 Bhawani Singh held appellant guilty for offence but the finding of guilt is contrary to law because even if the prosecution story is accepted that coins (Rejgari) was recovered from the appellant then also it cannot be said that the prosecution has proved its case beyond doubt as nobody has identity the coins which are said to be stolen from the shop of the deceased Inderchand, therefore, in absence of any proper identification, the appellant cannot be convicted solely on the basis of recovery of coins, in view of above it is submitted that the judgment deserves to be quashed. 9. While inviting attention towards the statement of PW-5 Parmeshwar son of deceased Inderchand and PW-7 Irfan submitted that PW-7 Irfan did not identify the appellant in the court, so also, no weapon or clothes were recovered from the accused appellant having blood upon them, therefore, on this count also, the appellant Manak Singh is entitled for acquittal. 10. The learned counsel for the appellant argued that the learned trial court has relied upon the testimony of PW-5 Parmeshwar son of the deceased Inderchand in which in allegation was made by him that accused appellant Manak Singh, Raj Kumar @ Raju and Sri Kishan @ Babaloo made extra judicial confession before him but in fact the said confession cannot be treated as a confession because as per the statement of PW-5 Parmeshwar the said confession was made when they were taken into custody by the police. 11. 11. The learned counsel for the appellant submits that conviction of appellant is based upon the recovery of coins and statement of PW-7 Irfan and PW-5 Parmeshwar son of deceased Inderchand but upon perusal of above evidence it will reveal that prosecution has failed to prove its case beyond reasonable doubt because the complete chain of facts and circumstances is absent, therefore, the appellant is entitled for benefit of doubt. 12. Per contra, the learned Public Prosecutor appearing on behalf of the State submits that the learned trial court has rightly relied upon the testimony of PW-5 Parmeshwar and PW-7 Irfan so as to convict the accused appellant for the alleged offence because the coins were recovered as per the information given by the appellant in the presence of PW-16 Randheer Singh, Investigating Officer and PW-13 Bhawani Singh, therefore, when recovery of coins taken from the shop of deceased Inderchand is made as per the information given by the appellant vide Ex. P/33 in the presence of independent witness, then there is no question to day that accused appellant has been convicted erroneously by the learned trial court. Therefore, it is a case in which the prosecution has proved its case beyond reasonable doubt so as to convict the accused appellant with the alleged crime. The finding given by the learned trial court to convict the appellant does not suffer from any illegality. 13. After hearing the learned counsel for the parties we have perused the entire evidence and finding given by the learned trial court in the judgment so as to convict the accused appellant for offence of murder. 14. Admittedly, the prosecution is relying upon the grounds of extra judicial confession and the recovery of coins as per the information given by the accused appellant Manak Singh. To prove the fact of extra judicial confession the Trial Court relied upon the statement of PW-5 Parmeshwar son of deceased. The said witness PW-5 Parmeshwar stated in his statement that:- " esjs firk iSlksa dk ysu&nsu djrs Fks vkSj iSls jgrs FksA ek.kdflag jktiwr ;gka vkrk&tkrk jgrk Fkk eqyfte ek.kdflag] jktdqekj o Jhd`".k dks idM+k rks idM+us ij bUgksaus esjs dks dgk fd gekjh xyrh gks xbZ gS] gesa cpkvksa tks rhuksa vkt gkftj vnkyr gSa rc eSaus dgk fd esjs firk dks rqeus ekjk gS] eSa rks ugha cpkmaxkA " 15. Upon perusal of above statement made in examination-in-chief we are of the opinion that the said statement has wrongly been taken into consideration so as to convict the accused appellant for offence under Section 302 IPC because as per above statement of the witness himself after arrest the appellant Manak Singh, Raj Kumar @ Raju and Sri Kishan @ Babaloo confessed and said that "kindly rescue us". Meaning thereby statement was given by the accused in custody, therefore, not admissible in evidence so as to punish the appellant, therefore, for the purpose of conviction of accused appellant, we are not satisfied that the learned trial court has rightly relied upon the testimony of PW-5 Parmeshwar. We have perused the statement of PW-7 Irfan also. The said witness although identify 1 (tie accused Sri Kishan @ Babaloo and Raj Kumar @ Raju but specifically aid before the court that accused Manak Singh present in the court is not lie person who was present at the time of occurrence took place. Therefore, tie learned trial court declared PW-7 Irfan hostile to the extent of Manak a Singh - present appellant. In view of the above statement of the witness PW-7 Irfan, it cannot be said that prosecution has proved its case against the present appellant Manak Singh, therefore, the conviction of accused appellant Manak Singh on the basis of extra judicial confession is not sustainable in the eye of law. 16. We have also examined the ground of coins from the appellant to convict him. It is true that PW-16 Randheer Singh, SHO stated in his statement that recovery of coins was made as per the information given by the accused appellant Manak Singh vide Ex.P/33 whereby 2600 coins of 50 paisa and coins of 1, 2, 5, 10 and 25 were recovered in the presence of independent witnesses, but in our opinion, the recovery of coins is not relevant for the purpose of conviction of accused appellant nobody can say that coins recovered are the same coins which were taken away from the shop of the deceased Inderchand. Therefore, even if it is proved that coins of Rs. Therefore, even if it is proved that coins of Rs. 1421/- was recovered as per information given by the appellant vide 2 Ex.P/33 the accused appellant can be convicted on the basis of such evidence because the weapons, axels, cloths and axe were recovered from accused Sri Kishan @ Babaloo and Raj Kumar @ Raju not from the accused appellant Manak Singh, therefore, obviously it can be said that the prosecution has failed to prove its case beyond reasonable doubt against the 2 accused appellant Manak Singh. 17. In case of Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 the Hon'ble Supreme Court laid down certain principles to convict any on the basis of circumstantial evidence. According to the said adjudication the prosecution is required to prove beyond : reasonable doubt and it is mandatory for the prosecution to produce evidence to complete the chain of facts and circumstances so as to connect the accused with the crime but here in this case, the grounds of extra judicial confession has not been proved against the appellant because PW-7 Irfan did not identify the appellant in the court and turned hostile. Likewise as per the statement of PW-5 Parmeshwar the so called extra judicial confession was made when accuse appellant was arrested, therefore, we are of the opinion that prosecution has failed to prove the ground of extra judicial confession against accused appellant to convict him for the offence of murder. Therefore, the judgment under challenge dated 24.03.2011 is not sustainable in law on this count. 18. With regard to question of recovery of coins from the appellant, we are of the opinion that even if it is presumed that coin of Rs. 1421/- were recovered at the instance of the accused appellant but it cannot be said that on the basis of so called recovery of coin vide Ex.P/33 accused appellant can be connected with the crime because there is no separate identification of coins which has been disclosed by the prosecution and upon which it can be said that coins recovered from the appellant were belonging to the deceased. 19. 19. In view of above discussions, it is held that the prosecution has failed to prove its case beyond reasonable doubt for the purpose of extra judicial confessions so also the relevancy of recovery of coins from the accused appellant so as to convict him for offence under Section 302 IPC. Therefore, the case of the appellant Manak Singh is distinguishable from the case of Sri Kishan @ Babaloo and Raj Kumar @ Raju. Hence, the appeal filed by the accused appellant Manak Singh deserve acceptance. 20. In view of the above discussion, the appeal filed by the appellant Manak Singh is hereby allowed. The judgment dated 24.3.2011 passed by the learned Sessions Judge, Churu in Sessions Case No. 26/2006 against the accused appellant Manak Singh is hereby quashed and set aside. The accused appellant Manak Singh shall be released forthwith if not required in any other case and his bail bonds are hereby discharged.Appeal allowed. *******