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2015 DIGILAW 934 (GUJ)

Ranjeetdas Munidas Tatwa v. State of Gujarat

2015-09-22

ANANT S.DAVE, Z.K.SAIYED

body2015
JUDGMENT : ANANT S. DAVE, J. These appeals are filed under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order dated 27.5.2011 passed by the learned Sessions Judge, Banaskantha at Palanpur in Sessions Case No.31/2010 arising out of FIR being C.R. No. I-80 of 2009 registered before Danta Police Station. In all, there are nine accused persons. Appellant Nos.1 and 2 of Criminal Appeal No.818 of 2011 are original accused Nos.5 and 8, Appellant Nos. 1 and 2 of Criminal Appeal No. 885 of 2011 are original accused Nos. 2 and 9, appellant Nos.1 and 2 of Criminal Appeal No.909 of 2011 are original accused Nos.6 and 7, appellants Nos. 1, 2 and 3 of Criminal Appeal No.941 of 2011 are original accused Nos.1, 3 and 4. All these accused were charged for the offences punishable under Sections 302, 365, 201 and 34 of Indian Penal Code and sentenced to undergo imprisonment for life with a fine of Rs.2,000/- each and in default simple imprisonment for 30 days; Rigorous Imprisonment for 3 years with a fine of Rs.500/- each and in default Simple Imprisonment for 7 days and Rigorous Imprisonment for 3 years and fine of Rs.500/- each and in default Simple Imprisonment for 7 days. All the sentences were ordered to run concurrently and all the accused were given benefit of set off. 2. The case of the prosecution in brief is as under: 2.1 That one Liyakatkhan Mahigarkhan Pathan lodged a complaint informing that he had received a call from his brother-in-law informing that some labourers want to take away dry fish. However, complainant had informed his brother-in-law to call one Sattarbhai. At that time, Sattarbhai informed the deceased not to give any dry fish to those labourers at any cost. 2.2 Thereafter, on 21.11.2009 at about 8 O’clock in the morning, the complainant had made a call on mobile phone of the deceased and one Lalubhai had picked up the call and informed that his brother-in-law is not present at that time and will inform him to call him back after half an hour. 2.2 Thereafter, on 21.11.2009 at about 8 O’clock in the morning, the complainant had made a call on mobile phone of the deceased and one Lalubhai had picked up the call and informed that his brother-in-law is not present at that time and will inform him to call him back after half an hour. It is further alleged that when complainant had made a call after half an hour, it is found that his mobile phone was switched off and thereafter when the complainant had reached the village from Kheralu at about 11 O’clock and at that time, the deceased and the appellants were not present at their camp. 2.3 It is further alleged that the complainant has called Ilyasbhai Faizmahamad Nagori residing at Palanpur, Sattarbhai as well as Vikramsinh on telephone and thereafter, inquiry was made by them. It is further alleged that Ilyasbhai called complainant and informed that labourers have reached the house of Vikramsinh and thereafter, complainant went to Vikramsinh and inquired about whereabouts of his brother-in-law. Thereafter, the complaint came to be lodged for the offence of kidnapping. 3. That pursuant to the said complaint, the investigation was conducted and after the investigation was over, the charge-sheet was submitted and the case was committed to the Court of Session. The trial was conducted by learned Sessions Judge, Banaskantha at Palanpur in Sessions Case No.31/2010 and the learned Sessions Judge, Banaskantha at Palanpur vide judgment and order dated 27.05.2011 convicted and sentenced the appellants, as stated herein above. 4. In order to prove its case against the accused persons, the prosecution had inter alia examined the following important prosecution witnesses: (Tabullar Matter Is omitted.....Ed) 4.1 In order to prove its case against the accused persons, the prosecution had inter alia examined, the following important documentary evidence: Column No.17 external injuries reads as under: 'Column 17: (1) Abrasion present over Rt. cheek (3 cm x 2 cm) over Lt. cheek (5 cm x 2 cm) over tip of nose (1 cm x 1 cm) over forehead above Rt.eye brow (4 cm x 2 cm) over Lt. side of forehead (5 cm x 5 cm) over Rt. wrist (1 cm x 1 cm) over Rt. forearm (1 cm x 1 cm). All abrasions are irregular & brownish in colour. [2] Bruise on tip of tongue margins are irregular. side of forehead (5 cm x 5 cm) over Rt. wrist (1 cm x 1 cm) over Rt. forearm (1 cm x 1 cm). All abrasions are irregular & brownish in colour. [2] Bruise on tip of tongue margins are irregular. [3] Abrasion on back of chest (inter scapular region) - 7 cm x 6 cm, brownish - irregular. [4] Two stab wound present on rt. side of back of abdomen. 1st wound - size 3 cm x 1.5 cm x up to abdominal cavity - track passes through skin, muscle, rib peritoneum up to abdominal cavity. - Obliquely situated one rib cut present. - direction of track anteriorly, medially & downwards. 2nd wound obliquely situated size 7cm x 1.5cm x depth up to abdo. cavity - it lies 5 cm below 1st wound - it passes through skin, muscles, peritoneum up to cavity - direction of track anteriorly, medially 7 downwards. (5) Upper both incisor teeth are lost. Bruising of gums.' Cause of Death : Death due to asphyxiation. 5. Mr. Ashish Dagli, learned counsel for the appellants in Criminal Appeal No.941 of 2011, has taken us through the entire evidence on record and submitted that case of the prosecution is based on extra-judicial confession about the crime committed by the accused persons before Vikramsinh Ratansinh Chauhan PW10 Exh.39, but the place and the manner in which the above confession is made creates suspicion and even if corroboration is sought for in the form of testimonies of complainant PW8 Exh.34 and Ilyasbhai F. Nagori PW9 Exh.38 including that of investigating officers Keshabhai Punjabhai Rathod PW11 and Mahadevbhai Fuljibhai Chaudhari PW12 and their testimonies at Exhs.42 and 49 respectively, reveal that extra judicial confession is about accused labourers confessing the crime viz. committing murder of brother-in-law of the complainant in the backdrop of some scuffle. It is further submitted that the above confession, if seen in the context of institution of complaint on 23.11.2009, where initially offences were registered under Sections 365 and 34 of the Indian Penal Code, though homicidal death of brother-in-law of deceased was known to complainant as well as police. It is further submitted that the above confession, if seen in the context of institution of complaint on 23.11.2009, where initially offences were registered under Sections 365 and 34 of the Indian Penal Code, though homicidal death of brother-in-law of deceased was known to complainant as well as police. It is further submitted that even if case of the prosecution is taken as it is based on discovery panchnama under Section 11 of the Evidence Act, contents of panchnama reveal that panchas were informed about the police that accused was willing to show boat, fishing net and other items allegedly used for commission of crime and in fact at the first instance the accused were not successful in tracing out the articles and the discovery was made later on. The above fact reveal that even if evidence as above to be considered, again it is not convincing and can be said to be corroborating with extra-judicial confession. It is further submitted that in a case based on extra-judicial confession with substantial evidence, the prosecution has failed to establish chain of events much less any nexus or connectivity with such proved events. It is, therefore, submitted that the appeal deserves to be allowed. 5.1 In continuation of submissions made by Mr. Ashish Dagli, inter alia, it is further submitted that the defence was able to establish vital contradictions and omissions though accepted and recorded by learned Judge were found to be not of such significance, which would go to destroy core of the case of the prosecution and, therefore also, by not giving benefit of doubt to the accused, conviction and sentence ordered upon the appellants deserves to be interfered with. 5.2 It is further submitted that the line of investigation, no doubt in case of even faulty investigation, benefit as such may not accrue to the accused, but in the facts of this case and in the backdrop of judicial confession about quarrel which has taken place with villagers as stated by accused labourers ought to have been investigated with record and tracking of mobile phones and locations and even information disclosed to the police by the complainant or other witnesses viz. Ilyasbhai Nagori PW9 is also under the cloud of suspicion. Ilyasbhai Nagori PW9 is also under the cloud of suspicion. The opinion of Medical Officer being an expert, if conclusively lead to guilt of the accused can certainly be relied on by the trial court, however, the testimonies of Dr. Tarifkhan Yusufkhan Jamad PW1 Exh.16 did not rule out possibility of anti-mortem injuries which might have been caused much before the body of the deceased was thrown tying with heavy stones wrapped into fishing net in the dam. Even to that extent, in absence of any other evidence leading to the guilt of the accused need to be discarded. 5.3 Learned counsel for the appellants placing reliance on the decision in the cases of [i] Mulk Raj v. The State of U.P. [ AIR 1959 SC 902 ]; [ii] Narayan Singh & Ors. v. State of M.P. [ AIR 1985 SC 1678 ]; and [iii] Anter Singh v. State of Rajasthan [2004 AIR SC 2865] and submitted that considering the evidentiary value of the extra-judicial confession under Section 24 of the Evidence Act, law on discovery panchnama under section 27 of the Evidence Act and when prosecution failed to establish motive what course of action is to be taken by the learned Trial Court in absence of any cogent evidence corroborating in nature, etc., the appeal deserve to be allowed accordingly, by applying the above law laid down by the Apex Court. 6. Learned advocate appearing for the appellants in Criminal Appeal Nos.818, 885 and 941 of 2011 has adopted the submissions of Mr. Dagli, learned advocate appearing in Criminal Appeal No.941 of 2011 and submitted that conviction and sentence rendered by the learned Sessions Judge is required to be quashed and set aside by allowing the appeals filed by the accused. 7. Per contra, learned APP Ms. Jirga Jhaveri, heavily relied on testimonies of Liyakatkhan Pathan complainant PW8 duly supported by Ilyasbhai Nagori PW9 and Vikramsinh Ratansinh Chauhan PW10 before whom extra judicial confession was made and even in cross-examination the above PW10 asserted about making of such statement by labourers of killing brother-in- law of the complainant. 7. Per contra, learned APP Ms. Jirga Jhaveri, heavily relied on testimonies of Liyakatkhan Pathan complainant PW8 duly supported by Ilyasbhai Nagori PW9 and Vikramsinh Ratansinh Chauhan PW10 before whom extra judicial confession was made and even in cross-examination the above PW10 asserted about making of such statement by labourers of killing brother-in- law of the complainant. That exact name of a person, who made judicial confession is not that vital, which would erode substance of the charge and case of the prosecution against the accused, coupled with the above it is submitted that when the investigating officer was completely aware about the manner in which deceased was killed Section 302 of the Indian Penal Code was added on the same day and, therefore, it cannot be said that no disclosure about murder of brother-in-law was made. It is further submitted that the appellants were arrested immediately i.e. on 24.11.2009 and at their behest knife and other items including that of fishing net and boat were discovered and that part of discovery would be admissible as piece of evidence discarding other versions and even medical reports and testimonies of Dr. Tarifkhan Yusufkhan Jamad PW1 Exh.16 conform to the nature of injuries, including that of injury No.4, which could be caused by knife and that death was caused by pressing nose and mouth which resulted into suffocation. Even, deposition of Ilyasbhai Nagori supporting the case of prosecution including items of muddamal, discovered items, which were sent for FSL and report thereof including serological establish one more circumstance leading to the killing of accused which has nexus with other circumstances and initial information of the complainant about missing person viz. brother-in-law of the complainant and inquiry made to trace him out, which later on turned out to be murder of his brother-in-law upon proper investigation and arrest of accused, who was in custody of the police volunteered to disclose place of offence and article used in commission of crime for which proper panchnama was drawn and ultimately extra judicial confession of accused was deposed to by Vikramsinh PW10 found to be voluntary and trustworthy connecting with chain of events and circumstances as proved by the prosecution for which conviction and sentence ordered by the trial court of imposition of life imprisonment, etc. in absence of any lacuna in appreciating the evidence oral as well as documentary, which do not deserve any interference in appeal under Section 374 of the Code. Ms. Jhaveri, learned APP has further submitted that extra-judicial confession can be relied on if it is found voluntary and same is made in fit state of mind and value of evidence as to extra-judicial confession like any other evidence depends upon the veracity of the witnesses whom it has been made. It may be true according to her that it may not be open to any court to start with presumption that extra-judicial confession may be insufficient to convict accused even though it is supported by various other circumstantial evidence and corroborated by independent witness, but courts cannot be unmindful of legal position that if evidence relating to extra-judicial confession is found credible after being tested on touchstone of credibility and acceptability, it can only be relied on. 8. Heard learned counsels for the appellants and learned APP for the respondent ' “ State of Gujarat. Before we discuss testimonies of prosecution witnesses, it is profitable to refer to certain decisions of the Apex Court with regard to law laid down in the context of Sections 24 and 27 of the Evidence Act, 1873. 8.1 Section 24 of the Evidence Act, 1873 reads as under: ' 24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceedings — A confession made by an accused person is irrelevant in a criminal proceedings, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him' . Section 27 of the Evidence Act, 1872 reads as under: ' 27. Section 27 of the Evidence Act, 1872 reads as under: ' 27. How much of information received from accused may be proved — Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.' 8.2 In the case of Anter Singh ( AIR 2004 SC 2865 ) [supra], the Apex Court relying on the decision in the case of Pulukuri Kotayya v. Emperor, reported in AIR 1947 PC 67 , held in para 16, as under: 'The various requirements of the Section can be summed up as follows: [1] The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. [2] The fact must have been discovered. [3] The discovery must have been in consequence of some information received from the accused and not by accused’s own act. [4] The persons giving the information must be accused of any offence. [5] He must be in the custody of a police officer. [6] The discovery of a fact in consequence of information received from an accused in custody must be deposed to. [7] Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible'. 8.3 In the case of Narayan Singh ( AIR 1985 SC 1678 ) [supra], the Apex Court in para 7 held as under: '7. Apart from this there is the evidence of PWs 5 and 9 who state on oath that one of the accused admitted before them that he had murdered the deceased. The learned Sessions Judge has brushed aside their evidence by presuming that their statements consisting an extra-judicial confession is a very weak type of evidence. This is a wrong view of the law. It is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence. The learned Sessions Judge has brushed aside their evidence by presuming that their statements consisting an extra-judicial confession is a very weak type of evidence. This is a wrong view of the law. It is not open to any Court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession in the instant case, after perusing the evidence of PWs 5 and 9 we are unable to find anything which could lead to the conclusion that these independent witnesses were not telling the truth. The evidence of these two witnesses [PWs 5 and 9] which lends support to the evidence of PW 11 was sufficient to warrant the conviction of the accused. The Sessions Judge has committed a grave error of law in analysing and appreciating the evidence of PWs. 5 and 9 and brushing aside on untenable grounds'. 8.4 In the case of Mulk Raj ( AIR 1959 SC 902 ) [supra], the Apex Court, in para 11 held as under: ' 11. We must notice another argument of the learned Advocate at this stage. It is said that the exact words used by the appellant when he made the extra-judicial confession were not given and that therefore the confession should be excluded. P. Ws. 1, 5, 6 and 7 repeated before the learned Additional Sessions Judge what the appellant stated before them and there is no appreciable difference in the gist of the confession made by the accused. Every one of them stated that the accused had stated that he stabbed the deceased because Amarnath and Milkiraj brought him there to do so. An extra-judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. The confession will have to be proved just like any other fact. The value of the evidence as to the confession just like any other evidence, depends upon the veracity of the witnesses to whom it is made. An extra-judicial confession, if voluntary, can be relied upon by the Court along with other evidence in convicting the accused. The confession will have to be proved just like any other fact. The value of the evidence as to the confession just like any other evidence, depends upon the veracity of the witnesses to whom it is made. It is true that the Court requires the witness to give the actual words used by the accused as nearly as possible, but it is not an invariable rule that the Court should not accept the evidence, if not the actual words used by the accused as nearly as possible, but it is not an invariable rule that the Court should not accept the evidence, if not the actual words but the substance were given. If the rule is inflexible that the Courts should insist only on the exact words, more often as not, this kind of evidence, sometimes most reliable and, useful, will have to be excluded; for, except perhaps in the case of a person of good memory, many witnesses cannot repeat the exact words of the accused. It is for the Court having regard to the credibility of the witnesses, his capacity to understand the language in which the accused made the confession, to accept the evidence or not, in this case, the confession made by the appellant was not a complicated one and the witnesses at page SC 906 stated without any conflict particularly the exact words used by the appellant and also how they understood the words. In the circumstances, if the evidence of the witnesses is acceptable, there is no reason why the extra-judicial confession made by the accused could not be acted upon'. 8.5 In the case of Sahadevan v. State of T.N. ( AIR 2012 SC 2435 ), the Apex Court considered Sections 6 and 24, Evidence Act, 1872 and principles with regard to extra-judicial confession, its admissibility and evidentiary value, were reiterated by prefacing the law laid down by the Apex Court referred to in paras 14 to 16 as under: '14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration. 15. Now, we may examine some judgments of this Court dealing with this aspect. 15.1 In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259] : ( AIR 1996 SC 607 ) this Court stated the principle that [SCC p.265, para 10] : ' 10. An extra-judicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance' . 15.2 In Pakkirisamy v. State of T.N. [ (1997) 8 SCC 158 ] : ( AIR 1998 SC 107 ), the Court held that (SCC p.162, para 8) : ' 8. ...it is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extrajudicial confession' . 15.3 Again in Kavita v. State of T.N. [ (1998) 6 SCC 108 ] : ( AIR 1998 SC 2473 ), the Court stated the dictum that (SCC p.109, para 4) : '4. There is no doubt that conviction can be based on extra-judicial confession, but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon veracity of the witnesses to whom it is made'. There is no doubt that conviction can be based on extra-judicial confession, but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon veracity of the witnesses to whom it is made'. 15.4 While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in the case of State of Rajasthan v. Raja Ram [ (2003) 8 SCC 180 ] : ( AIR 2003 SC 3601 ) stated the principle that (SCC p.192, para 19) : ' 19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made' . The Court, further expressed the view that (SCC p.192, para19) : ' 19. ... Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused....'. 15.5 In Aloke Nath Dutta v. State of W.B. [ (2007) 12 SCC 230 ], the Court, while holding the placing of reliance on extra-judicial confession by the lower courts in absence of other corroborating material, as unjustified, observed (SCC pp.265-66, paras 87 & 89) : ' 87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration' . xxx xxx xxx 89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. xxx xxx xxx 89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof.' 15.6 Accepting the admissibility of the extra-judicial confession, the Court in the case of Sansar Chand v. State of Rajasthan [ (2010) 10 SCC 604 ] : (AIR 2011 SC (Cri) 99) held that (SCC p.611, paras 2930) : ' 29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore [ (1970)2 SCC 105 ] : ( AIR 1971 SC 1871 ); Mulk Raj v. State of U.P. [ AIR 1959 SC 902 ]; Sivakumar v. State [ (2006)1 SCC 714 ] (SCC paras 40 and 41 : AIR paras 41 & 42) : ( AIR 2006 SC 653 ); Shiva Karam Payaswami Tewari v. State of Maharashtra [ (2009)11 SCC 262 ] : ( AIR 2009 SC 1692 ) and Mohd. Azad v. State of W.B. [ (2008)15 SCC 449 ] : ( AIR 2009 SC 1307 ) 30. In the present case, the extra-judicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872.' 15.7 Dealing with the situation of retraction from the extra-judicial confession made by an accused, the Court in the case of Rameshbhai Chandubhai Rathod v. State of Gujarat [ (2009) 5 SCC 740 ] : (2009 AIR SCW 3391), held as under (SCC pp.772-73, para 53]: '53. It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless, the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true.' 15.8 Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. [Ref. Sk. Yusuf v. State of W.B. [ (2011) 11 SCC 754 ] : ( AIR 2011 SC 2283 ) and Pancho v. State of Haryana [ (2011) 10 SCC 165 ] : ( AIR 2012 SC 523 ). The principles 16. Upon a proper analysis of the abovereferred 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.' 9. 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.' 9. In the backdrop of the law declared as above by the Apex Court and considering the facts of these appeals and testimonies of PWs, the following evidence emerges: 9.1 That a careful perusal of cross-examination of PW1, Dr. Tarifkhan Yusufkhan Jamad, who conducted the post-mortem, in his cross-examination opines that as such there was no mention in the post-mortem report about any vital injury to the deceased and cause of death appears to be suffocation and, therefore, none of the above PWs, throw any light on the guilt of the accused even if it is appreciated with testimonies of other witnesses. 9.2 PW8 Liyakathkhan Pathan — complainant in his chief-examination comes out with an improvement and rather a new story that Ilyasbhai Nagori PW9 informed him about labourers/appellants herein had killed his brother-in-law and all the appellants were present at the farm of PW10 Vikramsinh Chauhan and complainant was asked to inform and bring police at Khara village. That another improvement in his chief-examination is about his reaching to Khara village with police officials from Danta Police Station and thereafter police officials had taken accused to dam and all of them sat in the boat and proceeded to the place where the deceased was killed was shown and dead body was brought out of the water and FIR came to be lodged. As against this, in the cross-examination a vital aspect is revealed that complainant was aware on 21.09.2009 about the missing of the deceased and further admitted that he met Ilyasbhai on 23.09.2009, after the dead body was found and therefore, though he came to know the alleged incident of 20.09.2009, FIR was lodged only on 23.09.2009, after a delay of 3 days. 9.3 Likewise, PW9 Ilyasbhai Nagori makes improvement and in cross-examination he admitted that he has stated many things first time in the court which were not stated before the police officials. 9.4 One of the most important witness PW10 Vikramsinh Chauhan in his examination-in-chief stated that appellants came to his farm and informed him that they had some dispute with villagers and, therefore, they had come there. 9.4 One of the most important witness PW10 Vikramsinh Chauhan in his examination-in-chief stated that appellants came to his farm and informed him that they had some dispute with villagers and, therefore, they had come there. After a discussion amongst themselves, a joint confession was made by all accused that deceased was killed by them and his body was thrown in the dam after tying his body with stones. This fact was informed to Ilyasbhai PW9, who in turn informed to Liyakatkhan Pathan PW8 and complainant about the said confession. The complainant thereafter informed that appellants may not be allowed to go out of the farm of Vikramsinh. According to this witness, Ilyasbhai PW9 came there and informed Iqbalgadh Police Station about the incident, but for which no record is available. Later on, the complainant, Liyakatkhan Pathan reached at the farm of Vikramsinh Chauhan PW10 with police personnel of Danta Police and appellants were taken away by police. However, the most important aspect of the above witness surfaced on record in his cross-examination where he admitted that he was not aware as to who confessed about the killing of the deceased out of the 9 appellants and further admits about improvement made in the cross-examination with the incident for which information was given by Ilyasbhai PW9 to Iqbalgadh Police Station. 9.5 That Keshabhai Punjabai Rathod PW11, a police witness admitted in his cross-examination that statement of jeep driver Mahendra Mulabhai was recorded, who informed that there were in all 13 fishermen, but remaining 4 fishermen were not traced out and the said jeep driver was not cited as witness. Even the geneses of dispute viz. of taking away dry fish by the labourers is also creating doubt in view of the fact that substantial quantity of dry fish was found at the place and further statement of this witness which was recorded on 29.11.2009 admitted in cross-examination that there was no station diary entry in relation to police official reaching to Khara village on 12.11.2009. of taking away dry fish by the labourers is also creating doubt in view of the fact that substantial quantity of dry fish was found at the place and further statement of this witness which was recorded on 29.11.2009 admitted in cross-examination that there was no station diary entry in relation to police official reaching to Khara village on 12.11.2009. Even about the discovery about panchnama, it is revealed that panchas were made aware of panchnama and place where the muddamal like boat [navdu], knife and fishing net allegedly used in commission of crime was disclosed by the police officials themselves to panchas and, therefore, keeping in mind Section 27 of Evidence Act only such information received from accused in police custody as relates distinctly to the fact discovered may be proved, but not the information received from the police officials. Even panchas of the above panchnama have turned hostile. 10. The above testimonies reveal the nature of extra-judicial confession and discoveries of articles used for commission of alleged crime. In addition to above, learned Trial Judge has accepted certain inherent contradictions for which no benefit of doubt was given to accused. The fact about Ilyasbhai Nagori PW9 informing the complainant on telephone about labourers killing his brother-in-law and to come with police and labourers were brought from village Khara by police to dam and thereafter labourers were taken in a boat at Vijlasan and there brother-in-law of the complainant was killed, both the above aspects were not forming part of complaint and omissions reflected on the record. Likewise, Ilyasbhai PW9 accepted in his cross-examination that he had not stated before the police that he contacted Liyakatkhan-complainant by telephone and at that point of time Liyakathkhan told him that labourers were working with him and how they reached at Khara village. Even, the above witness further confirms about not stating before the police that Liyakatkhan had told him that he was go to Dharoi dam where his brother-in-law was working with labourers and was not able to contact him and other such similar contradictions. 11. Therefore, vital omissions and major contradictions of such nature coupled with unrecorded judicial confession and in cross-examination Vikramsinh PW10 was not able to depose that who confessed before him about the crime leading to inescapable conclusion that prosecution has failed to prove circumstances beyond reasonable doubt. 11. Therefore, vital omissions and major contradictions of such nature coupled with unrecorded judicial confession and in cross-examination Vikramsinh PW10 was not able to depose that who confessed before him about the crime leading to inescapable conclusion that prosecution has failed to prove circumstances beyond reasonable doubt. Therefore, extra-judicial confession jointly made by all 9 appellants before PW10 suffers from material discrepancies and inherent improbabilities in view of incident reported by PW10 to PW9 and in turn to complainant that accused apprehend threat to their lives by villagers and reached to farm at Khara village of PW10 and thus such statements do not inspire any confidence and, therefore, it is not voluntary and trustworthy on which reliance can be placed. Along with the above, in absence of any investigation on the above line and to track details of mobile phone, a doubt is created about genuineness of the case of the prosecution and circumstances are not proved beyond reasonable doubt and though motive is attributed, but circumstances reveal that inasmuch as 17 bags of dry fish were found intact at the place of incident and discovery panchnama in the present case disclosed that panchas were told by the police about the place of offence and nature of articles used in the commission of the alleged crime and finally panchas have turned hostile. 12. Collectively, a case is made out to allow all these appeals filed under Section 374(2) of the Criminal Procedure Code. 13. In the result, all these appeals succeed and the judgment and order of conviction and sentence dated 27.5.2011 passed by the Sessions Judge, Banaskantha at Palanpur in Sessions Case No.31/2010 is hereby quashed and set aside and consequently, all the 9 [nine] appellants are set at liberty forthwith, if they are not required in any other case/s. Fine paid, if any, by the accused is ordered to be refunded to them. In view of the above, no order on Criminal Misc. Application No. 4482 of 2014 and accordingly it stands disposed of. R & P be sent back to the trial court forthwith. Order accordingly.