Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 629 (RAJ)

Amar Singh S/o Pat Ram v. State of Rajasthan

2017-02-27

GOPAL KRISHAN VYAS, KAILASH CHANDRA SHARMA

body2017
JUDGMENT : Kailash Chandra Sharma, J. In both the these cr. appeals filed by the appellant Amar Singh and Mukesh Kumar under Section 374(2) Cr.P.C. the judgment dated 20.8.2009 passed by the learned Addl. Sessions Judge (FT) NO.1, Hanumangarh in Sessions Case No.30/2007 is under challenged. In the aforesaid judgment, both the accused appellants held guilty for offence under Section 365, 302/34 and 201 IPC and following sentence was passed against them, which reads as under:- Under Section 302/34 IPC Life imprisonment with fine of Rs.3,000/- and in default of payment of fine to further undergo four months RI. Under Section 365 IPC Seven years RI with fine of Rs.2,000/- and in default of payment of fine to further undergo three months RI Under Section 201 IPC Three years RI and to pay a fine of Rs.1,000/- and in default of payment of fine to further undergo two months RI. 2. In view of the fact that both the appeals are directed against the judgment dated 20.8.2009 passed by the learned Addl. Sessions Judge (FT) No.1, Hanumangarh in Sessions Case No.30/2007, therefore, both the appeals are decided by this common judgment. 3. As per facts, the complainant Rani Kanwar (PW-3) wife of late Jaikaran Singh submitted a typed report at Police Station, Tibbi on 19.3.2007 at 12.45 pm stating therein that on 16.3.2007 in the evening at about 5.30 pm when she was sitting alongwith her husband Jaskaran Singh in her house, two persons namely Amar Singh S/o Pat Ram and Mukesh Kumar S/op Sharwan Ram came there on motorcycle. Amar Singh called her husband to accompany him, but her husband denied to go with them, they said that we will come back soon and while saying so forcibly taken her husband on motor cycle from his house. According to the complainant, the aforesaid incident was seen by two persons namely, Gurdev Singh S/o Dayal Singh and Sadurl Singh S/o Jagraj who were loading tractor trolley near the house. In the late night when the husband of the complainant Jaskaran did not return at home, she called her uncle Amar Singh S/o Chatar Singh and Rajpal and informed whole story, thereafter, they commenced search of Jaskaran Singh. As per allegation of complainant on 19.3.2007 they went to the house of Amar Singh S/o Pat Ram to make an inquiry where both the accused appellants were sitting in the house. As per allegation of complainant on 19.3.2007 they went to the house of Amar Singh S/o Pat Ram to make an inquiry where both the accused appellants were sitting in the house. When they reached to the house of Amar Singh and made inquiry about her husband, then they made confession that we have killed your husband by strangulation by their turban and thrown his body in the Indira Gandhi canal and made a prayer that we have committed serious mistake of murder of your husband so kindly excuse us. The complainant came back and immediately went to the Police Station for registration of the FIR. 4. Upon aforesaid written complaint (Ex.P/1) lodged by the complainant Rani Kaur, FIR no.114/2007 for the offence under Section 364, 302/34 was registered against the accused appellants and investigation was commenced. 5. The body of the deceased was recovered from canal and handed over to the family members after post mortem. Both the accused appellants were arrested and produced before the concerned court and after investigation and recovery of articles as per their information, they were sent to the judicial custody. The police after completion of investigation filed charge-sheet against the accused appellants for the offence under Section 365, 302/34 and 201 IPC in the court of learned Judicial Magistrate, First Class, Tibbi from where case was committed to the Sessions Court, but later on transferred to the court of learned Addl. Sessions Judge (FT) No.1, Hanumangarh for trial. 6. On commencement of trial, after providing an opportunity of hearing to the accused appellants, the charges were framed against the accused appellants for alleged offence of murder under Section 302/34, 201 and 365 IPC. 7. The statements of 19 prosecution witnesses were recorded during trial and 49 documents were exhibited from prosecution side to prove the case. After recording evidence of prosecution, statement of the accused appellant under Section 313 Cr.P.C. were recorded by the learned trial court in which accused appellants denied all the allegations of prosecution witnesses. No witness was produced by them in defence, however, one document (Ex.D/1) was got exhibited in defence. 8. After recording evidence, the learned trial court heard final arguments of both the parties and held accused appellants guilty for commission of offence under Section 302/34, 365 and 201 IPC vide judgment dated 20.8.2009 and passed sentence aforesaid. 9. No witness was produced by them in defence, however, one document (Ex.D/1) was got exhibited in defence. 8. After recording evidence, the learned trial court heard final arguments of both the parties and held accused appellants guilty for commission of offence under Section 302/34, 365 and 201 IPC vide judgment dated 20.8.2009 and passed sentence aforesaid. 9. In both the appeals, the judgment dated 20.8.2009 passed by the learned Addl. Sessions Judge (FT) No.1, Hanumangarh is under challenged. 10. Learned counsel for the appellants at the outset submits that the finding of guilt recorded by the learned trial court against the appellants is perverse and contrary to material evidence available on record, therefore, not sustainable in law. It is further argued that if we go through the contention of FIR, it is clear that complainant herself disclosed the fact that her husband was taken forcibly by the accused appellants and they made confession before her and said that they killed her husband Jaskaran by strangulation with his turban and thrown his dead body in the canal. If the fact of taking away her husband forcibly by the accused appellants was with the knowledge of the complainant Rani Kaur then why information was not given to the police when her husband did not return home in the night of 16.3.2007. It is also argued that as per assertion made in the complaint, the complainant Rani Kaur called her uncle Amar Singh S/o Chatar Singh and Rajpal, brother-in-law of Jaskaran but no missing report was given to the police and later on after three days typed FIR was submitted by the complainant Rani Kaur on 19.3.2007 at about 12.45 pm at the Police Station Tibbi, after framing concocted story and planting two witnesses Amar Singh and Rajpal in the FIR with the allegation that accused appellant Mukesh Kumar made confession and said that due to some hot conversation before 8 days, we have killed Jaskaran and thrown his body in the canal. The counsel for the appellants argued that such type of concocted story does not inspire confidence because there was no question for both accused to make confession before the complainant who is wife of deceased that they committed murder of her husband, therefore, the whole prosecution case travelled on concocted story framed by the prosecution without any evidence to corroborate the allegation. 11. 11. Learned counsel for the accused appellants invited our attention towards the statements of PW-1 Amar Singh and PW-2 Rajpal and submits that both the persons were not present during investigation, so also, they themselves admitted in their statements before the court that no signatures were made by them on any of the memo prepared by the investigating agency, so also, they did not participate in any proceedings during investigation. Therefore, the entire prosecution case which is said to be based upon evidence of last seen and extra judicial confession is far from the truth. With regard to evidence of last seen of accused appellants with Jaskaran by Gurdev Singh and Sardul Singh whose names planted and incorporated in the FIR. In their statements recorded during trial as PW-5 and PW-7 it is nowhere stated by them, efforts were made by them for rescue of Jaskaran when he was forcibly lifted and taken on motorcycle by the accused appellants Amar Singh and Mukesh. It is also accepted by witness PW-5 Gurdev Singh that deceased Jaskaran was my cousin brother. The father of Jaskarn is real brother of my father and accepted that he has no knowledge whether any quarrel took place before 6-7 days in between Jaskaran the accused appellants but said that on the date of incident, when they were loading tractor trolley in front of house, at that time, Mukesh was sitting on motor cycle outside the house of Jaskaran and Amar Singh went inside the house and Jaskaran left the place alongwith them on motorcycle. Meaning thereby, the witness PW-5 Gurdev Singh is close relative of the deceased but no efforts were made by him to rescue, therefore, his testimony cannot be accepted for the purpose of accepting the prosecution case to prove the fact of last seen. 12. Learned counsel for the appellants further argued that PW-7 Sardul Singh gave identical statements as given by the PW-5 Gurdev Singh and this witness accepted in cross-examination that deceased Jaskaran was his cousin brother because being son of his elder father. Meaning thereby, both witness of last seen are close relative of the deceased and complainant and there is no other evidence of independent witness on record to prove the case beyond reasonable doubt. Meaning thereby, both witness of last seen are close relative of the deceased and complainant and there is no other evidence of independent witness on record to prove the case beyond reasonable doubt. Admittedly, it is a case in which chargesheet was filed against the accused appellants on the basis of circumstantial evidence of last seen and extra judicial confession, but there is no independent evidence to prove the fact of last seen and confession because complainant Rani Kaur wife of the deceased failed to give any information to the police for good three days. The names of PW-5 Gurdev Singh and PW-7 Sardul Singh cousin brothers of the deceased were purposely incorporated in complaint (Ex.P/1) by the complainant so as to create evidence of last seen and extra judicial confession against accused appellants, therefore, the whole prosecution case is doubtful. 13. As per argument of learned counsel for the appellants the medical evidence is also not supporting prosecution case with regard to extra judicial confession because PW-16 Dr. Madan Singh who conducted post mortem of the deceased although said that cause of death was asphyxia due to strangulation, but said that sign of drowning were present over the body. Therefore, it cannot be presumed that death was caused by the accused appellant, as per principle laid down by the Hon'ble Supreme Court the prosecution is required to lead trustworthy evidence to complete the chain of circumstances to reach upon conclusion that accused is guilty for committing offence of murder. The witness PW-9 Mandar Singh has categorically stated in his statement that wife of the deceased Jaskaran is my niece and in the cross-examination, admits that in the police statement it is nowhere said by him that upon bricks lying upon the place of occurrence there was any sign so also accepted that the way going towards canal is used by the villagers, therefore, his testimony cannot be accepted for the purpose of verification of place of occurrence. The witness PW-10 Jagsir Singh stated before the court that deceased Jaskaran was my close relative and said that before 25.3.2007 I do not went at the place of occurrence and searching the dead body. 12. The witness PW-10 Jagsir Singh stated before the court that deceased Jaskaran was my close relative and said that before 25.3.2007 I do not went at the place of occurrence and searching the dead body. 12. The crux of argument of learned counsel for the appellants is that all the witnesses are close relative of the deceased and complainant and there is no independent witness to prove the fact of last seen, so also, there is no witness except complainant and her close relative to support the fact of extra judicial confession. The witness PW-1 Amar Singh uncle of he complainant Rani Kaur categorically stated in his statement before the court that Rani Kaur informed us that Amar Singh and Mukesh forcibly took Jaskaran with them and for 2-3 days all efforts were made to search Jaskaran and at last went to the house of Amar Singh and Mukesh in the morning on 19.3.2007 where both the accused appellants made confession that they have killed Jaskaran by strangulation and his body has been thrown in the canal. It is also stated that one Parmendra Singh, Teacher wrote the complaint as per instruction of Rani Kaur. Further in the cross-examination it is stated that on 16.3.2007 daughter of Jaskaran came to my house and called me but none of the witness except Rani Kaur is produced before the court. 13. It is submitted that witness PW-2 Rajpal accepted before the court that Jaskaran was my brother-in-law and on 16.3.2007 Rani Kaur informed that my husband Jaskaran has been forcibly taken away by accused appellants Amar Singh and Mukesh. If this fact was well within the knowledge of all the three witnesses PW-1 Amar Singh and PW-2 Rajpal and PW-3 Rani Kaur then why missing report was not submitted by them to the police. According to the learned counsel for the appellants whole prosecution story is doubtful. It is argued that in view of the judgment of Hon'ble Supreme Court in the case of Kala @ Chandrakala Vs. State & Ors reported in 2016 AIR (SC) 3912 the circumstantial evidence of extra judicial confession cannot be accepted because body of the deceased was recovered at the instance of the accused appellant, so also, as per the judgments of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State & Ors reported in 2016 AIR (SC) 3912 the circumstantial evidence of extra judicial confession cannot be accepted because body of the deceased was recovered at the instance of the accused appellant, so also, as per the judgments of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 (SC) 1622 and Ram Lal @ Ramu Vs. State of Rajasthan reported in 2014 Law Suit (Raj.) 1398. All the circumstances are required to be proved by the prosecution to prove the case based upon circumstantial evidence. 14. While inviting attention towards the aforesaid judgments, it is submitted that in this case the complete chain of circumstances is missing, therefore, accused appellants are entitled for benefit of doubt because there is no direct evidence to connect them with the crime and prosecution has failed to prove the fact of last seen and extra judicial confession. Therefore, both the appeals may kindly be allowed and the judgment impugned may kindly be set aside. 15. Per contra, learned Public Prosecutor vehemently argued that prosecution case is based upon circumstantial evidence but it has been proved by the prosecution by leading trustworthy evidence for last seen and extra judicial confession, therefore, it cannot be said that any error is committed by the learned trial court so as to hold accused appellants guilty for alleged offence of murder. It is also submitted that the three witness PW-1 Amar Singh, PW-2 Rajpal and PW-3 Rani Kaur categorically stated before the court that before all the three persons extra judicial confession was made by the accused appellants. Further, there is evidence on record to prove the fact that accused appellants forcibly took deceased Jaskaran from his house in the presence of PW-3 Rani Kuar in the evening of 16.3.2007 and deceased did not come back till evening, later on, FIR was filed by PW-3 Rani Kaur against the accused appellants and subsequently, the dead body of Jaskaran was recovered from canal on 22.3.2007. Therefore, after proper assessment of evidence, the learned trial court gave finding that accused appellants are guilty for committing offence of murder. In support of his arguments, learned Public Prosecutor invited our attention towards the judgment in the case of Baskaran & Anr. Vs. State of Tamil Nadu reported in 2014 Crl.L.J. 2705 and submits that both the appeals may kindly be dismissed. 16. In support of his arguments, learned Public Prosecutor invited our attention towards the judgment in the case of Baskaran & Anr. Vs. State of Tamil Nadu reported in 2014 Crl.L.J. 2705 and submits that both the appeals may kindly be dismissed. 16. After hearing learned counsel for the parties, it emerges from the facts and evidence on record that entire prosecution case is based upon circumstantial evidence of last seen and extra judicial confession. We have examined the finding of the learned trial court in the light of the evidence on record. First of all, we are examining the finding of the learned trial court, upon the evidence of last seen. To prove the fact of last seen, there is only one witness i.e., PW-3 Rani Kuar, wife of deceased Jaskaran who has categorically deposed in her statement that before 5 months and six days my husband came back from the party from the house of Modan Lal. He came back at 12 O’clock and in the evening at 5 O’clock Mukesh and Amar Singh present in the court came on motor cycle at her residence and called Jaskaran to accompany them but Jaskaran refused to go with them but Amar Singh and Mukesh forcibly took Jaskaran, at that time, Gurdev Singh and Sardul Singh were doing some work in front of her house but they were not called by the complainant nor any efforts were made by them for rescue. In the evening at 8.30 pm Amar Singh and Rajpal uncle of complainant and brother-in-law of deceased were called by her to search Jaskaran but no information was given to the police. The other two witnesses of last seen are PW-5 Gurdev Singh and PW-7 Sardul Singh are cousin brothers of the deceased Jaskaran and were present near the house, but they were not called. According to the prosecution case Jaskaran was forcibly taken away by accused appellants Amar Singh and Mukesh but these witnesses never informed the police or other resident of village. It is also stated by them that no objection was made by wife of Jaskaran nor she cried or came for rescue of Jaskaran nor any request was made by her to the accused appellants Amar Singh and Mukesh not to take Jaskaran forcibly. 17. It is also stated by them that no objection was made by wife of Jaskaran nor she cried or came for rescue of Jaskaran nor any request was made by her to the accused appellants Amar Singh and Mukesh not to take Jaskaran forcibly. 17. In our opinion, the testimony for the purpose of last seen of PW-3 Rani Kaur, PW-5 Gurdev Singh and PW-7 Sardul Singh is not trustworthy because if the husband of PW-3 Rani Kaur was forcibly taken away by the accused appellants on motor cycle then obviously it was her duty to inform the police to take action against the accused appellants or to cry, but as per statement of PW-3 Rani Kaur, her uncle Amar Singh and brother-in-law Rajpal made search of Jaskaran for three days but it is nowhere said by PW-3 Rani Kaur that two cousin brothers who were standing at the time of taking away Jaskaran forcibly by the accused appellants made any search or they were called to search the deceased Jaskaran. It is beyond imagination that wife and cousin brothers kept mum for three days and not made any report to the police if husband of the PW-3 Rani Kuar and brother of two cousin brothers were forcibly taken away by the accused appellants. It is true that on oath they made statements before the court to prove the fact of last seen but said statement cannot be relied upon so as to accept the prosecution case that on the basis of statement of these three witnesses, the fact of last seen has been proved. 18. It is also very strange that after three days in the morning of 19.3.2007 when extra judicial confession was made by the accused appellants, the FIR was filed at Police Station. Meaning thereby, it is a case in which complainant in spite of knowing that accused appellant Amar Singh and Mukesh forcibly taken her husband, but has waited for extra judicial confession of accused appellants after three days and after so called extra judicial confession made by the accused appellant, FIR was filed by her. 19. Meaning thereby, it is a case in which complainant in spite of knowing that accused appellant Amar Singh and Mukesh forcibly taken her husband, but has waited for extra judicial confession of accused appellants after three days and after so called extra judicial confession made by the accused appellant, FIR was filed by her. 19. Upon assessment of entire evidence and upon the fact that PW-3 Rani Kaur wife of the deceased and two cousin brothers before whom deceased was taken away forcibly by the appellants kept mum for three days and after three days filed FIR without any acceptable ground, the conviction based upon circumstantial evidence of last seen is not sustainable in law because prosecution evidence is seriously. 20. In Sharad Birdhichand’s case (supra), the Hon'ble Supreme Court laid down following principles to assess the circumstantial evidence, which reads as under:- “A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra ('') where the following observations were made : "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused..” 21. In case of Ram Lal @ Ramu Vs. State of Rajasthan reported in 2014 Law Suit (Raj.) 1398 in identical case based upon circumstantial evidence, following adjudication was made by this Court, which reads as under:- “18. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events for which the only irresistible conclusion that can be drawn is the guilt of the accused and that no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take legal proof. This court will have to satisfy itself that various circumstances in the chain of events have been established clearly and such complete chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. This court has to be watchful and avoid allowing the suspicion to take place of the legal proof. There is a long distance between “may be true” and “must be true”. When a case rests squarely on circumstantial evidence, an inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. Cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offence beyond any reasonable doubt. The circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved. In other words there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and it must show that in all human probabilities the act must have been done by the accused.” 22. In other words there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and it must show that in all human probabilities the act must have been done by the accused.” 22. With regard to extra judicial confession it is required to be observed that entire prosecution case is based upon testimony of three interested witnesses PW-1 Amar Singh, PW-2 Rajpal and PW-3 Rani Kaur before whom the accused appellants made extra judicial confession. All these three witnesses stated on oath before the court that confession was made by the accused appellants when they reached to the house of accused appellants in the morning at 9 O’clock on 19.3.2007. After perusing the statements of PW-1 Amar Singh, PW-2 Rajpal and PW-3 Rani Kuar it is obvious that evidence of extra judicial confession is not trustworthy because dead body was not recovered upon information given by the accused appellants, though dead body was recovered on 22.3.2009. In view of the fact that PW-3 Rani Kaur wife of the deceased Jaskaran and author of the FIR was knowing that accused appellants forcibly taken away her husband from the house, but keep mum for three days and after three days at 12.45 am on 19.3.2007 filed FIR on the basis of extra judicial confession of the accused appellants. 23. In our opinion, how it can be presumed that wife will wait for extra judicial confession for three days so as to file FIR against those persons who took her husband forcibly on motorcycle in the presence of two other cousin brothers. If the story of prosecution is accepted for the purpose of incident of taking away the deceased forcibly by the accused appellants then obviously this court cannot lost sight of the fact that wife was to cry and cousin brothers were required to go for rescue of their brother but it is nowhere stated by all the three witnesses that any efforts were made for rescue when Jaskaran was forcibly taken by the accused appellants from his house. It is true that long statements are given by these witnesses, but all these witnesses are close relatives of the deceased and they waited for three days after missing Jaskaran and later on filed FIR on the basis of extra judicial confession only. 24. It is true that long statements are given by these witnesses, but all these witnesses are close relatives of the deceased and they waited for three days after missing Jaskaran and later on filed FIR on the basis of extra judicial confession only. 24. In view of the fact that the extra judicial confession is week type of evidence and in this case there was no reason to make any confessional statement by the accused appellants before the complainant wife because she was the victim of missing of her husband, therefore, allegation of extra judicial confession made by the witnesses is far from the truth. 25. In the case of Kala @ Chandrakala (supra), the Hon'ble Supreme Court gave the following verdict, which reads as under:- “13. In the instant case, which is based on the circumstantial evidence, particularly when the body has not been recovered at the instance of the accused, the recoveries of moped and piece of nylon saree which were made are not proved to be related to commission of offence, they are not proved to be incriminating materials. The extra-judicial confession made by the appellant to Susheela, P.W.4 is prima facie unusual and doubtful and is not corroborated by other evidence on record. Merely, the fact that the deceased had left the house on 16.5.2005, as per version of appellant, cannot be used as a circumstance against her so as to fasten guilt. The deceased used to drink alcohol and used to spend money recklessly. Due to his bad habits, there may be so many enemies of him. How the deceased spent the amount of Rs.1,30,000/- which he received on execution of agreement is not on record. The prosecution has not been able to complete the chain of circumstances so as to fasten the guilt and to prove the commission of offence by the appellant beyond periphery of doubt. The father of appellant has also been extended benefit of doubt. As such, the appellant is entitled for benefit of doubt in view of the evidence which has been adduced by the prosecution.” 26. We have perused the aforesaid judgment cited by the learned Public Prosecutor in the case of Baskaran & Anr. (supra) in which the Hon'ble Supreme Court held that extra judicial confession can be relied upon, if the same is voluntary and true and made in a fit state of mind. We have perused the aforesaid judgment cited by the learned Public Prosecutor in the case of Baskaran & Anr. (supra) in which the Hon'ble Supreme Court held that extra judicial confession can be relied upon, if the same is voluntary and true and made in a fit state of mind. The value of evidence as to the confession like any other evidence depends upon the veracity of the witness to whom it has been made. In this case, there was no question for the accused appellants to make extra judicial confession to the wife of the deceased or the close relative of the deceased. Further, if the testimony of these three witnesses is accepted that extra judicial confession was made by the accused appellants then why complainant and two other witnesses Amar Singh and Rajpal did not call the police immediately and hand over the accused appellants then when they made confession. As per statement of PW-1 Amar Singh, PW-2 Rajpal and PW-3 Rani Kaur, extra judicial confession was made by the accused appellant Mukesh and Amar Singh and after extra judicial confession they went to one teacher Parmendra Singh for drafting complaint and, thereafter, they went to the police for registration of FIR. It is beyond imagination that if extra judicial confession is made in front of three close relative then accused were to be detained immediately to hand over the police, but here in this case, FIR was registered after three days on 19.3.2007 in which there is complete narration of extra judicial confession, but accused appellants were arrested after three days on 22.3.2007 vide Ex.P/27 and P/28 in front of two police officials Raghurveer Singh, FC No.1143 and Iqbal, FC No.313. Both these witnesses were not examined before the court to prove the arrest of accused appellants. It is also very important aspect of the matter that entire prosecution case is based upon testimony of close relative, no independent witness were produced before the court to prove the fact of last seen or extra judicial confession, so also, there is no evidence on record to prove the fact that there was any reason for the accused appellants to make extra judicial confession before the author of FIR PW-3 Rani Kaur, wife of the deceased. It is also very important fact that no other witness has corroborated the fact of extra judicial confession. It is also very important fact that no other witness has corroborated the fact of extra judicial confession. The judgment cited by the learned Public Prosecutor does not help the prosecution so as to accept the extra judicial confession because it is a case in which learned trial court has relied upon evidence of extra judicial confession made before three close relative of the deceased and those witnesses admittedly did not make any efforts to detain the accused appellants at the time of making extra judicial confession or take efforts to hand over them to the police then and there. 27. In para no.14 of the judgment citied by the learned Public Prosecutor in the case of Baskaran (supra), the following adjudication is made by the Hon'ble Supreme Court, which reads as under:- “14. It is no doubt true that this Court time and again has held that an extra-judicial confession can be relied upon only if the same is voluntary and true and made in a fit state of mind. The value of the evidence as to the confession like any other evidence depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. But it is not open to any court to start with the presumption that extra-judicial confession is insufficient to convict the accused even though it is supported by the other circumstantial evidence and corroborated by independent witness which is the position in the instant case. The Courts cannot be unmindful of the legal position that even if the evidence relating to extra-judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction.” 28. In our opinion, upon aforesaid principle it cannot be said that in this case the prosecution evidence for extra judicial confession can be accepted because there is no corroboration of the fact by the independent witnesses to prove the extra judicial confession, which is alleged to be made by the accused appellants before the close relatives of the deceased. In our opinion, upon aforesaid principle it cannot be said that in this case the prosecution evidence for extra judicial confession can be accepted because there is no corroboration of the fact by the independent witnesses to prove the extra judicial confession, which is alleged to be made by the accused appellants before the close relatives of the deceased. It is also one of the important fact that body of the deceased was not recovered upon information given by the accused appellants, so also, two police officers before whom the accused appellants were arrested on 22.3.2007 have not been examined during trial. 29. To consider the arguments of learned counsel for the appellants that there is no evidence of motive on record, we have perused the entire evidence of prosecution. None of the witnesses stated before the court that the was any enmity in between the deceased and accused appellants. For motive, only evidence came on record is incorporated in para no.4 of the complaint (Ex.P/1) that before 8 days some hot discussions took place in between the deceased and the accused appellants, therefore, they caused death of her husband but to prove the said fact there is no other evidence to prove the said fact. There is no doubt that dead body of the deceased was recovered from canal vide Ex.P/8 in presence of two witnesses Sewa Singh and Kewal Singh on 22.3.2007 but admittedly, it was not recovered upon information of the accused appellants nor in their presence. With regard to information given by the accused appellant Mukesh Kumar to identify the place of occurrence vide Ex.P/16, we are of the opinion that the said verification of place of occurrence is meaningless because the place of occurrence was already in the knowledge of investigating officer. In view of the fact that prosecution has failed to prove the fact of extra judicial confession by leading trustworthy evidence, the statement of other witnesses for verification of place by the accused appellants, became meaningless. In view of the fact that prosecution has failed to prove the fact of extra judicial confession by leading trustworthy evidence, the statement of other witnesses for verification of place by the accused appellants, became meaningless. With regard to recovery of watch at the instance of the accused appellant Mukesh vide Ex.P/22 and recovery of purse of deceased Jaskaran, we have perused the typed FIR submitted by the complainant in which it is nowhere said by the complainant that when accused appellants forcibly taken away the deceased Jaskaran from his residence, he was wearing any watch or he was having any purse with him. Therefore, obviously on the basis of recovery of purse vide Ex.P/32 of deceased at the instance of the accused appellants became doubtful. 30. In our opinion, there is no direct evidence in this case and entire prosecution case is based upon circumstantial evidence of last seen and extra judicial confession only, but we cannot lose sight of the fact that FIR was filed after three days on 19.3.2007 and the dead body of the deceased was not recovered upon information given by the accused appellants after their arrest. The fact of recovery of purse and watch of the deceased cannot be treated to be an evidence to connect the accused appellants with the crime because there was no disclosure by the complainant Rani Kaur (PW-3) in her typed complaint that deceased was wearing watch and having purse. In view of the above, the entire prosecution case became doubtful. 31. In view of the above discussion, we are of the opinion that accused appellants are entitled for benefit of doubt because prosecution has failed to prove the case beyond reasonable doubt on the basis of evidence of last seen and extra judicial confession. 32. Consequently, both these cr. appeals are hereby allowed. The judgment dated 20.8.2009 passed by the learned Addl. District & Sessions Judge (FT) No.1, Hanumangarh in Sessions case No.30/2007 convicting and sentencing the accused appellants Amar Singh and Mukesh Kumar for the offences under Sections 302/34, 365 and 201 IPC is hereby quashed. The accused appellants be set at liberty unless required in any other case. 33. The judgment dated 20.8.2009 passed by the learned Addl. District & Sessions Judge (FT) No.1, Hanumangarh in Sessions case No.30/2007 convicting and sentencing the accused appellants Amar Singh and Mukesh Kumar for the offences under Sections 302/34, 365 and 201 IPC is hereby quashed. The accused appellants be set at liberty unless required in any other case. 33. Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellants are directed to forthwith furnish personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.