JUDGMENT : Kanwaljit Singh Ahluwalia, J. The dead-body of Mst. Sajni wife of Shambhu (PW-13) was found in the pasture land (charagah) near the medhbandi of Village Kania, Panchayat Samiti Masuda, Ajmer, along with her child. 2. The case of the prosecution, in nut-shell, is that two accused, namely Shyonath son of Kalu Gurjar and Kana son of Roopa Jat, residents of Rudrapura, committed rape upon Mst. Sajni on 08.05.1986 at 07:30 A.M. and thereafter caused her death by throttling. 3. Both the accused, namely Shyonath son of Kalu Gurjar and Kana son of Roopa Jat were charged for offences punishable under Sections 376 and 302/34 of the Indian Penal Code. 4. The Court of Additional Sessions Judge, Beawar, vide its impugned judgment dated 12.12.1986, acquitted both the accused Shyonath son of Kalu Gurjar and Kana son of Roopa Jat of offence punishable under Section 376 of Indian Penal Code, but convicted them of offence punishable under Section 302/34 of Indian Penal Code. 5. Having convicted both the accused-appellants for the offence punishable under Section 302/34 I.P.C., the trial Judge, vide a separate order of even date, sentenced the appellants as under :- "For offence under section 302/34 I.P.C. The appellants were sentenced to undergo life imprisonment and to pay a fine of Rs. 200/- each and in default of payment of fine to further undergo six months rigorous imprisonment." 6. Aggrieved against their conviction and sentence, Shyonath son of Kalu Gurjar and Kana son of Roopa Jat, preferred present appeal i.e. D.B. Criminal Appeal No. 5/1987. 7. During pendency of the present appeal, Shyonath died and a Division Bench of this Court on 16.03.2010 dismissed the appeal preferred by the appellant No. 1-Shyonath son of Kalu Gurjar as having abated. 8. In the present case, the prosecution, in order to secure the conviction of the appellants, examined as many as eighteen-witnesses, namely Nisar Mohammad (PW-1), Heera (PW-2), Narain Singh (PW-3), Gordhan (PW-4), Heera (PW-5), Ramchandra (PW-6), Laduram (PW-7), Jaggu (PW-8), Devi Singh (PW-9), Nainu (PW-10), Dr. S.K. Kulshresth (PW-11), Dr. Harish Chand Sharma (PW-12), Shambhu (PW-13), Laduram Sharma (PW-14), Ramswaroop (PW-15), Jagdish Prasad (PW- 16), Jahagir (PW-17) and Kishan Singh (PW-18) respectively. 9. Thereafter, the statement of the accused were recorded under Section 313 Cr.P.C., 1973 They denied all the incriminating circumstances and pleaded false implication. 10. No witness was examined in defence. 11. S.K. Kulshresth (PW-11), Dr. Harish Chand Sharma (PW-12), Shambhu (PW-13), Laduram Sharma (PW-14), Ramswaroop (PW-15), Jagdish Prasad (PW- 16), Jahagir (PW-17) and Kishan Singh (PW-18) respectively. 9. Thereafter, the statement of the accused were recorded under Section 313 Cr.P.C., 1973 They denied all the incriminating circumstances and pleaded false implication. 10. No witness was examined in defence. 11. In the present appeal, which is listed before us only on behalf of Kana son of Roopa Jat, who has survived, during pendency of the appeal, Mr. Mohit Balwada and Mr. Deepak Soni, learned advocates appearing for the accused-appellant Kana son of Roopa Jat, have prayed that there is no admissible evidence with the prosecution to sustain the conviction of the appellant. 12. We have heard Mr. Mohit Balwada & Mr. Deepak Soni, learned advocates appearing for the accused-appellants, as well as Mr. B.N. Sandu, ld. A.A.G. cum P.P. and Mr. Pankaj Sisodiya, ld. Public Prosecutor appearing for the State of Rajasthan, and perused the impugned judgment, as well as the entire record of the case. 13. It is a case of circumstantial evidence. 14. The prosecution has relied upon following two circumstances, to secure the conviction of the accused-appellants :- "A. Evidence of extra-judicial confession. B. Recovery of bangle, plastic bangle and rope from two accused used to strangulate deceased-Mst. Sajni at the behest of the accused upon their disclosure to connect the appellants with the alleged offence along with recovery of blood stained clothes of accused." 15. Nisar Mohammad (PW-1), Upsarpanch of Village Kania through Heera (PW-2), resident of Village Kania, had sent a written report (Exhibit-P/1) through Heera (PW-2) to the Station House Officer, Police Station Vijay Nagar, Ajmer. 16. In the said written-report (Exhibit-P/1), it was stated that Narain Singh (PW-3) on 08.05.1986 at about 07:30 A.M. while going from Dageda, via Shyonagar to Kania, near medhbandi of a pasture land of Village Kania, heard sobs of a child. He went there and saw that one lady was lying dead and a child was sitting along with her and was weeping. On inquiry, Narain Singh (PW-3) learnt that the deceased was wife of Shambhu (PW-13), resident of Kania. Upon which, Police reached at the spot and carried Inquest proceedings under Section 174 Cr.P.C., 1973. 17. He went there and saw that one lady was lying dead and a child was sitting along with her and was weeping. On inquiry, Narain Singh (PW-3) learnt that the deceased was wife of Shambhu (PW-13), resident of Kania. Upon which, Police reached at the spot and carried Inquest proceedings under Section 174 Cr.P.C., 1973. 17. Thus, out of eighteen-witnesses examined by prosecution, Nisar Mohammad (PW-1), Upsarpanch has only deposed that having learnt that a lady is lying dead along with a weeping child, he had sent an information to the Police Station through Heera (PW-2). Heera (PW- 2) also stated in the Court that he was sent by Nisar Mohammad (PW-1) and he had carried written-report (Exhibit-P/1) to the Police Station, Vijay Nagar, Ajmer. 18. Narain Singh (PW-3) in the Court deposed that while he was passing through the passage for going to Dageda, he saw a lady lying dead along with a weeping child. After said information received by Nisar Mohammad (PW-1), he had sent written-report (Exhibit-P/1) to the Police. 19. Jahagir (PW-17) on that day being posted as Station House Officer, Vijay Nagar, Ajmer arrived at the spot. He carried Inquest proceedings (Exhibit-P/2) in the presence of Nisar Mohammad (PW-1), Laduram (PW-7), Bhanwar Lal, not examined, Ratan Singh, not examined, Roopa, not examined and Shambhu (PW-13) respectively. 20. Inquest proceedings/ Panchayat nama (Exhibit-P/2) was prepared. The site-plan of the spot (Exhibit-P/3), along with the rough site-plan (Exhibit-P/4) was also prepared. Vide memo Exhibit-P/5 blood stained soil, controlled soil, shoe, wood, can and chadar were taken into possession. The dead-body was sent for the post mortem and was handed over to Shambhu (PW-13), husband of the deceased for cremation vide Exhibit-P/7. 21. Investigating Officer, at the spot had drawn statement (Exhibit-P/28) on the basis of which a formal First Information Report (Exhibit-P/29) bearing No. 29/1986 was registered at Police Station, Vijay Nagar, District Ajmer for the offence punishable under Section 302 I.P.C. 22. Shyonath son of Kalu Gurjar and Kana son of Roopa Jat, both accused-appellants were arrested on 21.05.1986 vide arrest memos Exhibit-P/13 and Exhibit-P/14 respectively. 23. It has been deposed by the Investigating Officer that on 21.05.1986 accused-Shyonath suffered a disclosure statement (Exhibit-P/20) and disclosed that he can get recovered one broken black bangle which he had concealed beneath the sand and rope from his house. 24. 23. It has been deposed by the Investigating Officer that on 21.05.1986 accused-Shyonath suffered a disclosure statement (Exhibit-P/20) and disclosed that he can get recovered one broken black bangle which he had concealed beneath the sand and rope from his house. 24. Similarly, accused Kana suffered a disclosure statement (Exhibit-P/21) and stated that he can get a plastic bangle buried by him below the sand along with the clothes worn by him, which included a shirt, dhoti and vest (baniyan). It has been stated that in pursuance of the above disclosure, accused got recovered black broken bangle, plastic bangle, rope, dhoti and vest vide recovery memos, Exhibit-P/15, Exhibit-P/16 and Exhibit-P/17 respectively. The accused - Kana also got recovered dhoti, vest (baniyan) and shirt vide memo Exhibit-P/18. Evidence of extra-judicial confession : 25. The occurrence, in the present case, has taken place on 08.05.1986, and as per Investigating Officer and the record of the Police, the arrest of the accused was affected on 21.05.1986 vide arrest memos Exhibit-P/13 and Exhibit-P/14 respectively. The prosecution examined Laduram (PW-7), Jaggu (PW-8), Nainu (PW-10), Laduram Sharma (PW-14) and Jagdish Prasad (PW-16) respectively to prove extra-judicial confession made by the accused. 26. Laduram (PW-7) in the Court stated that he was called by the Police at the time of Inquest, and the Police at that time made Shyonath and Kana to say that they have committed murder. 27. We reproduce here exact words from the testimony of Laduram (PW-7) as under :- ^^c;ku fd;k fd djhcu 2&21@2 eghus dh ckr gSA eSa esjs ?kj ij FkkA yk'k dh tkap dh rc eq>s cqykdj ys x;s FksA ';ksukFk o dkuk dks iqfyl okys iapk;r Hkou ij ysdj vk;sA ml oDr eSa] yknwjke] Hkkjr] tEew] ukuq xwtj] nsohflag FksA iqfylokyksa us ';ksukFk o dkuk ls dgyok;k rc mUgksaus dgk fd geus ekjk gSA** 28. Because of above statement made this witness Laduram (PW-7) was declared hostile to the prosecution. 29. Jaggu (PW-8) in the Court also stated that Shyonath and Kana were brought by the Police and in presence of the Police, they stated that they have killed Mst. Sajni. Because of above statement made this witness Laduram (PW-7) was declared hostile to the prosecution. 29. Jaggu (PW-8) in the Court also stated that Shyonath and Kana were brought by the Police and in presence of the Police, they stated that they have killed Mst. Sajni. We reproduce here following portion from the testimony of Jaggu (PW-8) :- ^^c;ku fd;k fd 2&3 eghus gks x;sA iapk;r Hkou ij ';ksukFk o dkuk dks iqfyl ykbZA dkuk o ';ksukFk dg jgs Fks fd ltuh dks geus ekjhA mlds igys mlds lkFk djus ds ckjs esa dqN ugha crk;kA eqyfteku dks ysdj ekSds ij x;sA** 30. Devi Singh (PW-9) has turned hostile to the prosecution. 31. Nainu (PW-10) also deposed that the Police brought accused in the Panchayat-Bhawan and on asking of the Police, they admitted that they have committed murder. The exact words stated by this witness Nainu (PW-10) are as under :- ^^c;ku fd;k fd nks rhu efgus dh ckr gS eSa xkao esa FkkA iqfyl vkbZ iapk;r Hkou esa lkSukFk o dkuk dks ysdj vkbZA budks iqfyl okyksa us iwNk fd eMZj rqeus fd;k gS rks bUgksaus dgk fd gka fd;k gSA cl esjs lkeus ;gha ckr gqbZA iqfyl us eqyfteku dks fxjQrkj fd;kA** 32. Laduram Sharma (PW-14) also stated that on 07.05.1986 Panchayat had gathered. He also went there and in presence of Panchayat, accused-Shyonath and Kana were saying that the wife of Shambhu (PW-13) was grazing sheep in the jungle, they committed rape upon her and thereafter, committed murder. Laduram Sharma (PW-14) has not uttered a word that the confession was made in presence of the Police, but we cannot ignore the testimony of other witnesses. 33. Laduram (PW-7), Jaggu (PW-8) and Nainu (PW-10) have stated in a categoric terms that the Police brought both the accused before the Panchayat, and in presence of the Police and on asking of the Police, they said that they had committed the alleged offence. 34. To us, extra-judicial confession relied by the prosecution is hit by section 25 of the Indian Evidence Act. 35. It is a well settled legal position that anything said in the presence of the Police Officer or in the custody is not admissible in evidence. Furthermore, Jagdish Prasad (PW-16) has also stated in the Court that the talks took place in front of the Panchayat. 35. It is a well settled legal position that anything said in the presence of the Police Officer or in the custody is not admissible in evidence. Furthermore, Jagdish Prasad (PW-16) has also stated in the Court that the talks took place in front of the Panchayat. The Thanedar asked the accused, present in the Court and they admitted that they have killed the wife of Shambhu (PW-13). The evidence of Jagdish Prasad (PW-16) demolished the entire case of prosecution so far extrajudicial confession is concerned and, therefore, the extra-judicial confession, being inadmissible in evidence, is to be ruled out from our consideration. Now we come to the recovery of bangles of the deceased and the clothes of the accused, which were allegedly stained with the blood and semen. 36. Investigating Agency had in the record shown the arrest of the accused on 21.05.1986. The Panchayat had gathered where Panchayatnama (Exhibit-P/2) was prepared on 08.05.1986. Laduram Sharma (PW-14) has stated that on 07.05.1986 in front of the Panchayat, accused admitted their guilt. Dead-body was recovered on 08.05.1986, therefore, extra-judicial confession on 07.05.1986 become meaningless. We have to accept that confession was made on 08.05.1986 as all witnesses have deposed to this effect. Jagdish Prasad (PW-16), Nainu (PW-10), Laduram (PW-7) and Jaggu (PW-8) have deposed in the Court that in the presence of the Police, accused admitted their guilt. 37. Thus, the accused were in custody of the Police on 08.05.1986. If that being so, as to why their arrest was shown in the record on 21.05.1986, no explanation is being furnished by the Investigating Agency. Furthermore, from 08.05.1986 till 21.05.1986 accused were kept in illegal detention. 38. In these circumstances, we cannot rely upon the alleged recovery affected from the accused as it cannot be ruled out that these articles were padding. 39. We have seen the record. Exhibit-P/24 is letter addressed by Investigating Officer to the effect whether child can remain alive without, milk of mother or not. Exhibit-P/25 is letter addressed by the Police to the Pathologist for drawing blood sample of accused for onward transmission to chemical examiner for comparison of blood on clothes of deceased and accused. Application Exhibit-P/25 bear endorsement of Investigating Officer that two samples of blood of Kana and Shyonath have been drawn and sealed. Vide Exhibit-P/26 Medical Officer had retained sample seal of blood samples. Application Exhibit-P/25 bear endorsement of Investigating Officer that two samples of blood of Kana and Shyonath have been drawn and sealed. Vide Exhibit-P/26 Medical Officer had retained sample seal of blood samples. Another Exhibit-P/26 is receipt of Forensic Science Laboratory (F.S.L.) having received the samples. Curiously enough in the entire record, which we have searched, there is no report of F.S.L. available even trial Judge in the impugned judgment has not referred to the opinion of F.S.L., therefore, without there being any opinion of Forensic Science Laboratory on record, no adverse inference can be drawn against the accused on the basis of the recoveries effected. Even otherwise, recovery alone is not sufficient to complete the chain of circumstances to arrive at a conclusion that the offence, if any, has been committed by the appellant alone and none else. 40. Consequently, we extend the benefit of doubt to the accused-appellant Kana son of Roopa Jat. 41. As a result thereof, the present appeal is, hereby, accepted. The conviction pronounced and the sentence awarded by the trial Court upon the accused-appellant-Kana son of Roopa Jat is set aside. He is acquitted of the charge. 42. We find that at the time of admission of the appeal, the sentence awarded upon the accused was suspended and he was ordered to be released on bail by a Division Bench of this Court vide order dated 10.02.1987. Therefore, the bail bonds and the surety bonds furnished by the accused stand discharged. 43. The ld. trial Judge shall call the accused-appellant to comply with the provisions of Section 437-A of the Code of Criminal Procedure, 1973. 44. Appeal filed by Shyonath, because of earlier order passed by a Division Bench of this Court already stands dismissed having abated, because of his death.