JUDGMENT : G.K. Vyas, J. The instant appeal has been filed by the appellant, Smt. Surya W/o late Sh. Lalu, under Section 374(2) Cr.P.C. assailing the impugned judgment dated 23rd of October, 2008 passed by learned Addl. Sessions Judge (FT), Banswara (for brevity, hereinafter referred to as ‘trial court’) in Session Case No.21/2008 whereby the learned trial court convicted the accused appellant, Smt. Surya, for the offences under Section 302 and 201 of IPC and sentence her as under:- 302 of IPC: Life Imprisonment with a fine of Rs.2000/-, in default of payment of fine, to further undergo six months R.I. 201 of IPC: Three Years rigorous imprisonment along with fine of Rs.1000/-, in default of payment of fine, to further undergo one months R.I. 2. As per facts of the case, complainant, Ramnarayan (PW.5) Sarpanch of Village Ghalkiya, District Banswara, filed a written report before the S.H.O., Police Station- Sadar, Banswara, and gave information that a dead body without its glans (ujeq.M) lying in the Banku distributory of canal, which reads as under:- lsok esa] Jheku Fkkuk vf/kdkjh] Lknj Fkkuk ckalokMk fo"k; %& dkuwuh dk;Zokgh ckcrA egksn;th] mijksDr fo"k;kuqlkj fuosnu gS fd xkao ?kydh;k esa izkFkfed fo|ky; Hkou ds ikl ckadk forjhdk esa vKkr yk'k iq:"k dh ftldk lj ugha vkSj vkxs ls cgdj ?kyfd;k vjfu;k lM+d ugj ds iqy esa Qalh gqbZ ikbZ xbZ ftldh lwpuk eq>S xzkeokfl;ksa }kjk nh xbZ vkSj eSus ekSds ij tkdj ns[kkA vKkr O;fDr us e`Ÿkd dh xnZu dkVdj lj vyx gR;k dj yk'k ugj esa Qsad nh gS] vkl ikl esa flj dh ryk'k dh exj ugh feyk fjiksVZ djrk gwa dk;Zokgh djsA fnuakd 19-02-08 lgh@& ljiap xzk- ia-?kyfd;k^^ 3. The aforesaid report was submitted before the S.H.O., Police Station Sadar, on that report, F.I.R. No.31/2008 on 19.02.2008 was registered at 11.45 AM and proceeded with investigation. The S.H.O., Police Station Sadar of Banswara, immediately went at the place where dead body was lying in the canal. The site was inspected at 12.05 PM in the presence of two witness, namely, Kamal Narayan and Bhanwar Singh. The dead body was taken out from the canal and after preparation of “Panchnama” in the presence of five witnesses on 19.02.2008 at about 12.45 PM, the dead body was sent to the hospital for postmortem. 4. The site was inspected at 12.05 PM in the presence of two witness, namely, Kamal Narayan and Bhanwar Singh. The dead body was taken out from the canal and after preparation of “Panchnama” in the presence of five witnesses on 19.02.2008 at about 12.45 PM, the dead body was sent to the hospital for postmortem. 4. For ascertaining the identity of the dead body, an information was published, upon which the father of deceased, Nanji went to hospital, and identified the dead body to be of his son, namely, Lalu. After identification of the dead body, postmortem was conducted in the hospital at 05.30 PM on 20.02.2008 and postmortem report (Ex.P/39) was obtained by the Investigating Officer from the Govt. Hospital, Banswara for further investigation. 5. During investigation, statement of Vagji, Sarpanch of village Garia and Ramji, Sukhram uncle of accused appellant, Surya were recorded under Section 161 Cr.P.C. to the Investigating Officer in which all the three witnesses said about extra judicial confession of accused appellant, Smt. Surya, in the night of 17.02.2008. On the basis of said evidence of extra judicial confession, the accused appellant was arrested by the S.H.O., Police Station Kotwali, vide arrest memo (Ex.P/29) on 29.02.2008 at 10.30 AM. 6. After arrest, an information (Ex.P/30) was given by the accused appellant under Section 27 of the Evidence Act at about 10.45 AM on 23.02.2008 with regard to recovery of male glans of deceased from canal. Another information was given on the same day by the accused appellant u/s 27 of the Evidence Act at 04.15 PM to identified and fortify the place whereby body of my husband was thrown by me in the canal. 7. In pursuance of the said information, the glans of the deceased was recovered on 23.02.2008 vide Ex.P/14 at 12.55 PM in the presence of two witnesses, namely, Gulabji and Kantilal from minor distributory of the canal at Village Ghalkiya Badgaon. The male glans was identified by the accused appellant so also by Valu brother of deceased Lalu. ‘Panchnama’ of the glans was prepared at 02.30 PM on 23.02.2008 vide Ex.P/16 in the presence of five persons and after conducting postmortem of male glans at 03.15 PM on 23.02.2008, the same was handed over to Valu (brother of deceased) for cremation. 8. ‘Panchnama’ of the glans was prepared at 02.30 PM on 23.02.2008 vide Ex.P/16 in the presence of five persons and after conducting postmortem of male glans at 03.15 PM on 23.02.2008, the same was handed over to Valu (brother of deceased) for cremation. 8. The third information was given by the accused appellant, Smt. Surya on 24.02.2008 at 04.45 AM with regard to recovery of cloths, ‘Ghaghra’, ‘Gudri’ upon which Lalu was sleeping, and his dead body was kept and thrown in the canal and one ‘Dantla’ (weapon of offence) used for committing murder of Lalu. In pursuance of aforesaid information, the above articles were recovered vide Ex.P/4 on 24.02.2008 at 12.05 PM. 9. During course of investigation, co-accused, namely, Manji (father of accused appellant) was also arrested for committing offence under Section 302 read with Section 201 vide Ex.P/33 on 26.02.2008 at 09.00 AM and upon his information one cycle and luggage was recovered vide Ex.P/9. 10. As per prosecution case, father of accused appellant Manji, helped the accused appellant to lift the dead body of Lalu and to throw in the canal. After completion of investigation, the S.H.O., Police Station Sadar of Banswara, filed charge sheet against the appellant, Smt. Surya u/s 302 and 201 of IPC and co-accused, Manji for the offence u/s 201 of IPC in the court of learned A.C.J.M., Banswara. The learned Magistrate committed the case to the court of Sessions Judge for trial, but later on transferred to the court of Addl. Sessions Judge (FT) Banswara for trial. 11. The learned trial court after providing an opportunity of hearing to the accused appellant and co-accused framed charges against the appellant, Smt. Surya, for the offence u/s 302 and 201 of IPC and for the offence u/s 201 of IPC against co-accused Manji, but both the accused denied and prayed for trial. 12. During trial, statements of 22 prosecution witnesses were recorded and after recording the statements of prosecution witnesses, statements of accused appellant, Smt. Surya and co-accused, Manji were recorded under Section 313 Cr.P.C. 13. 12. During trial, statements of 22 prosecution witnesses were recorded and after recording the statements of prosecution witnesses, statements of accused appellant, Smt. Surya and co-accused, Manji were recorded under Section 313 Cr.P.C. 13. The accused, Manji denied all the allegations levelled against him by the prosecution witness, and gave following explanation:- eq>dks lkQ >wBk Qlka;k gSA eq>s dksbZ tkudkjh ugha gSA eS vius nkekn dks Hkyk D;ksa ek:axk oks dqN Hkh djs eq>s D;k ysuk nsuk eS ;ks gh csVh ds lkFk is'kh dj jgk gwaA esjh vkSj lw;kZ dh ckr rks yk'k feyus ds ckn gh dh FkhA^^ 14. Similarly, accused appellant, Smt. Surya, denied all the allegations levelled by the prosecution witnesses and gave following explanation in statements recorded under Section 313 Cr.P.C., which reads as under:- ^^tgka ukfn;ka fprkc esa jgrs FksA ukfn;k okyksa us ges Hkxk fn;k Fkk D;ksfd esjs ifr us fu.kkek dk ,d vkneh ekj fn;k FkkA fQj esjk ifr Ms< o"kZ tsy esa jgkA fQj firkth ls iSls ysdj NqM+ok;kA esjk ifr tsc dkVrk Fkk pksjh djrk FkkA pksjh djds iSls ykrk FkkA nk: ihdj gj feu[k ls >xM+k djrk FkkA chtk yksxks ds lkFk gh yM+kbZ djrk FkkA esjs rhu Nksjs gS tks ykyw ds gh gSA esjs vkneh dks eSus ugh ekjkA eq>s ekj ekj dj gka djok;h gSA eq>s rks esjk ifr ckjh flrk rkybZ tkus dk dgdj x;k FkkA nkarsMk esjk ughA diM+s esjs ugh gSA eq>s 5 fnu rd ekjk FkkA yxkrkj ekjihV dhA ekj ds vkxs rks dksbZ Hkh [kwu dk gksus dk D;k loky gSA tks Hkh dk;Zokgh Fkh mldh eq>s dksbZ tkudkjh ughA eq>s rks ekjk vkSj ekj ekj dj gk Hkjok;hA eSus vius ifr dks ugh ekjkA^^ 15. No evidence is produced in defence by the accused appellant, Smt. Surya and Manji. 16. The learned trial court after hearing final arguments acquitted the co-accused Manji from the charge levelled against him u/s 201 of IPC, however, convicted the accused appellant, Smt. Surya, for offence under Sections 302 and 201 of IPC and passed sentence vide judgment dated 23.10.2008 as mentioned above, which is under challenge in this appeal. 17. 16. The learned trial court after hearing final arguments acquitted the co-accused Manji from the charge levelled against him u/s 201 of IPC, however, convicted the accused appellant, Smt. Surya, for offence under Sections 302 and 201 of IPC and passed sentence vide judgment dated 23.10.2008 as mentioned above, which is under challenge in this appeal. 17. Learned counsel for the appellant submits that the trial court has committed an error to hold the accused appellant, Smt. Surya, guilty for the offence under Section 302 of IPC because the whole prosecution case is based upon false and fabricated circumstantial evidence of interested witnesses, no independent witness is produced before the court to support the prosecution case. Furthermore, there are material contradictions in the statements of prosecution witnesses, therefore, there is no evidence to complete the chain of circumstances so as to hold the accused appellant guilty. Thus, the finding of conviction recorded by the learned trial court is perverse and have no foundation to stand before the eye of law. 18. While inviting our attention towards the statement of PW.7 Ramji and PW.8 Sukhram, before whom alleged extra judicial confession was made by the accused appellant, it is submitted that as per statements of both these witnesses, on the date of incident at about 10 O’clock in the night, accused appellant came to their house and made confession that I have killed my husband, therefore, you accompany me to throw and disposal of the dead body but they refused to go with her. As per prosecution case, before registration of the FIR confession was already made by the appellants before these witnesses PW.7 Ramji and PW.8 Sukhram. But, both these witnesses did not disclose the said fact of extra judicial confession to any person, nor information was given by them to the police; and after two days, when Sarpanch of their village Vagji (PW.6) came then they gave information to Sapranch Vagji about extra judicial confession of the appellant. 19. Admittedly, PW.7- Ramji and PW.8- Sukhram (cousin brother of appellant) are not the person before whom she was required to make extra judicial confession and to ask for help to dispose of the dead body of her husband. 19. Admittedly, PW.7- Ramji and PW.8- Sukhram (cousin brother of appellant) are not the person before whom she was required to make extra judicial confession and to ask for help to dispose of the dead body of her husband. Both these witnesses are planted witnesses because as per prosecution case inspite of having knowledge of the fact on the basis of extra judicial confession that accused appellant, Surya committed murder of her husband by causing injury by the weapon, ‘Dantla’, no information was given by them to the relatives or villagers, so also, they keep mum even after registration of the FIR against unknown person, and gave information to the Sarpanch Vagji (PW.6) after two days. In the statements of PW.6 Vagji, it is nowhere stated by him that fact of extra judicial confession was disclosed by him to the police but said that information about extra judicial confession was given to him by the witnesses PW.7, Ramji, and PW.8, Sukhram, before me but there is no whisper of the said fact was immediately informed by the Sarpanch to the police. Therefore, it is submitted that story of extra judicial confession is totally false because it is based upon planted witnesses PW.7, Ramji and PW.8, Sukhram, only to implicate the accused appellant in fake criminal case. 20. With regard to motive, it is submitted that there is no cogent or reliable evidence on record to prove the ‘motive’. More so, as per statement of appellant, Smt. Surya, recorded u/s 313 Cr.P.C., she was beaten by police so as to make confession. No recovery of cloths were made upon her information, therefore, finding of guilt recorded by the trial court against the accused appellant, may kindly be set aside. 21. Learned counsel for the appellant further argued that as per prosecution case, upon information given under Section 27 of the Evidence Act vide Ex.P/4, blood stained ‘Dantla’ (weapon of offence), Gurdri, Petticoat and Lungri (Saree) of the appellant, were recovered. The said recovery was made in front of two witnesses, namely, Vagji and Narendra Singh, however, out of these witnesses, Vagji (PW.6) Sarpanch of the village, turned hostile and said in the cross examination that deceased Lalu, resident of village Nandiya, committed murder in the village Nandiya, and remained in jail for 2-3 years. After release, the villagers sent him out from the village because he committed murder of one Chamna. After release, the villagers sent him out from the village because he committed murder of one Chamna. It is also stated by him that deceased, Lalu, used to commit offence of theft, therefore, there was quarrel in between husband and wife. It is accepted by the witness, Vagji (PW.6) that number of persons were having enmity with him due to his character. It is also accepted that he put his signature upon Ex.P/3 to Ex.P/6 in the hospital and before that upon some document, put his signatures in the police station. According to said witness, nothing was said by Smt. Surya to him. Meaning thereby, the prosecution has failed to prove recovery of weapon and extra judicial confession, therefore, the finding of conviction for the offence u/s 302 of IPC recorded by the trial court is perverse, therefore, is not sustainable in law. 22. The other witness of recovery PW.14 Narendra Singh is police official. He was working as ASI at Police Station Kotwali. Admittedly, the said witness was subordinate of the Investigating Officer, Devaram Choudhary (PW.21) and if any recovery is made in front of him, is not admissible in evidence because he is not an independent witness. 23. As per arguments of learned counsel for the appellant, the entire prosecution case based upon circumstantial evidence and extra judicial confession has not been proved, more so, upon assessment of entire evidence, it will reveal that the prosecution has failed to establish any of the circumstance so as to connect the appellant with the crime on the basis of circumstantial evidence. It is settled principle of law that suspicion however strong cannot take the character of proof in prosecution based on circumstantial evidence. The prosecution is required to produce trustworthy evidence and chain of circumstances has to be spelt out by the prosecution if even one link in the chain is broken, accused must get the benefit thereof. Therefore, it is prayed that the trial court has committed a grave error in convicting the accused appellant, Smt. Surya, on the basis of circumstantial evidence, recovery of cloths weapon and extra judicial confession. Therefore, the judgment impugned may kindly be quashed. 24. Per contra, learned Public Prosecutor submitted that the entire evidence of prosecution is transparent. Therefore, it is prayed that the trial court has committed a grave error in convicting the accused appellant, Smt. Surya, on the basis of circumstantial evidence, recovery of cloths weapon and extra judicial confession. Therefore, the judgment impugned may kindly be quashed. 24. Per contra, learned Public Prosecutor submitted that the entire evidence of prosecution is transparent. It is true that initially FIR was registered on the basis of information furnished by Sarpanch-Ramnarayan (PW.5) (Ex.P/27), wherein the only information was given that a dead body without its glans is lying in the canal near the Govt. Primary School, Ghalkiya, but later on during investigation statements of Vagji, Sarpanch of Village Ghariya, and statement of PW.7 Ramji and PW.8 Sukhram were recorded under Section 161 Cr.P.C., in which all these witnesses proved the fact of extra judicial confession made by accused appellant, Smt. Surya for causing death of her husband, Lalu. 25. The recovered articles and weapon were sent to the FSL for chemical analysis, in which it is reported that human blood was found upon all the articles except control soil and no blood was determined from the blood smeared soil taken from the place of occurrence. Meaning thereby except upon control soil, and blood smeared soil taken from the place of occurrence and other articles human blood of ‘AB’ group was found. Therefore, it is argued that the prosecution has proved its case beyond reasonable doubt and produced complete chain of circumstances, which connect the accused appellant with the crime. The learned trial court has assessed entire evidence so as to arrived at a finding of guilt, therefore, the present appeal may kindly be dismissed. 26. After hearing the learned counsel for the parties, we have perused the finding and the statement of all the prosecution witnesses, so also, the document exhibited during the trial. Indisputably, the FIR was registered on the basis of information given by PW.5- Ramnarayan Sarpanch of Gram Panchayat- Ghalkiya to the S.H.O., Police Station Sadar on 19.02.2008. In the said information (Ex.P/27), it is reported that a dead body without glans is lying in the canal near building of Govt. Primary School of the village. Upon receiving the said information, the police went on the spot and recovered a dead body lying in the canal at 12.45 PM on 19.02.2008 in the presence of five witnesses. In the said information (Ex.P/27), it is reported that a dead body without glans is lying in the canal near building of Govt. Primary School of the village. Upon receiving the said information, the police went on the spot and recovered a dead body lying in the canal at 12.45 PM on 19.02.2008 in the presence of five witnesses. The dead body was not identified at the place of occurrence, but taken to the hospital and kept in the mortuary. For the identification information and photo of the body was published in the newspaper and Nanji, father of deceased, Lalu, identified the dead body which was recovered from the canal to be of his son. Thereafter the postmortem of the dead body was conducted in the hospital on 20.02.2008 at about 05.30 PM in the Govt. Hospital, Banswara. After postmortem, the dead body was handed over to the father of the deceased at 08.00 PM in the presence of two witnesses, namely, Kalu and Valu for cremation. 27. As per statement of the Investigating Officer (PW.21) Devaram Choudhary, appellant, Smt. Surya came to the Police Station Sadar and said that I have received information from newspaper with regard to recovery of dead body and as per appearance of the dead body, it seems to be of her husband. 28. The S.H.O., Police Station- Kotwali, called her in the hospital, where she and her brother-in-law (Valu) identified the dead body of her husband, Lalu. 28. The S.H.O., Police Station- Kotwali, called her in the hospital, where she and her brother-in-law (Valu) identified the dead body of her husband, Lalu. The relevant and extract of the statement of PW.21 disclosing the above said fact reads as infra:- ^^---------blds izkFkhZ jkeukjk;.k ds c;ku ys[kc) fd;s x;s rFkk yk'k dks iksLVekVZe ds fy;s jktdh; vLirky ys tk;k x;kA ,oa pwafd yk'k vKkr Fkh blfy, f'kuk[rxh gsrq fcuk iksLVekVZe fd;s yk'k dks eqnkZ ?kj esa lqjf{kr j[kok;k x;kA eS ekSds ij ,oa vkl&ikl ds xkoksa esa vKkr e`Ÿkd dh f'kuk[rxh gsrq yksxks ls lEidZ djus esa O;Lr gqvk ysfdu ml fnu dksbZ irk ugha pykA nwljs fnu vKkr e`Ÿkd dh ryk'k ,oa bl yk'k dk fljtos ekSds ij ugha feyk Fkk mldh ryk'k esa O;Lr Fkk blh nkSjku eq>s tfj;s eksckbZy Qksu Fkkuk ls voxr djk;k fd ,d lw;kZ uke efgyk Fkkus ij vkbZ gS vkSj og crk jgh gS fd v[kckj esa of.kZr gqfy;s dh yk'k ds ckjs esa tkudkjh feyh gS gqfy;k esjs ifr tSlk gSA bl lwpuk ij eSa vLirky igqapk vkSj Fkkus ls efgyk dks Hkh vLirky cqyok;k rFkk mlds ifjokj ds lnL;ksa dks Hkh cqyk;k x;kA vKkr e`Ÿkd dh yk'k dks Jhefr lw;kZ ,oa mlds tsB okyw dks fn[kkbZ xbZ rks nksuks us yk'k dh f'kuk[r Jh ykyw iq= ukjth pjiksVk fuoklh ukfn;k ds :i esa dhA ftldh QnZ f'kuk[rxh rS;kj dh tks izn'kZ ih&11 gS ftl ij lh ls Mh esjs gLrk{kj gS ,Dl LFkku ij fu'kkuh vxq"B lw;kZ gS bZ ls ,Q e`Ÿkd ds HkkbZ okyw ds gLrk{kj ,oa th ls ,p gS bZ ls ,Q e`Ÿkd ds HkkbZ okyw ds gLrk{kj ,oa th ls ,p e`Ÿkd ds firk ukjth ds gLrk{kj gSA blds i'pkr yk'k dk iksLVekVZe djok;k x;kA ,oa okn iksLVekVZe yk'k dks e`Ÿkd ds firk ukjth dks tfj;s QnZ izn'kZ ih&12 dq lqiqnZ dh xbZ ftl ij lh ls Mh esjs gLrk{kj gSA^^ 29. Meaning thereby, till cremation of the body her husband, the appellant, Smt. Surya, remained present in the house. Later on she was arrested by the police on the basis of evidence of extra judicial confession, which is alleged to be made before PW.7- Ramji and PW.8 Sukhram. Meaning thereby, till cremation of the body her husband, the appellant, Smt. Surya, remained present in the house. Later on she was arrested by the police on the basis of evidence of extra judicial confession, which is alleged to be made before PW.7- Ramji and PW.8 Sukhram. As per facts of the case, after recording the statements of PW.7 and PW.8 (Ramji and Sukhram), appellant was arrested vide arrest memo (Ex.P.33) on 23.02.2008 in the presence of Vagji and Chhatar Singh, ASI of police station. The only evidence to connect the accused appellant with the crime is evidence of extra judicial confession made by the appellant before witnesses PW.7 Ramji and PW.8 Sukhram and recovery of cloths and weapon. 30. As per prosecution case, after arrest information was given by the accused appellant u/s 27 of the Evidence Act with regard to place where the male glans was thrown by her in the canal. Upon the said information, the police went to the spot at 12.55 PM on 23.02.2008 and prepared site plan (Ex.P/4) in the presence of Gulabji and Kantilal. As per Investigation Officer vide Ex.P/15, the male glans was found in the minor canal and the same was shown to Smt. Surya, and Valu for identification, and the appellant identified the same and said that the male glans recovered is of her husband Lalu. 31. As per arrest memo (Ex.P/13), Smt. Surya was arrested on 23.02.2008 at 12.35 PM. Thereafter, on the information given by appellant, Smt. Surya, male glans was recovered at 12.45 at minor distributor of canal vide Ex.P/15 on 23.02.2008 itself and after preparation of ‘Panchnama’ of male glans vide Ex.P/16, and after postmortem, the said glans was handed over to Valu, brother of deceased for cremation at 09.45 PM on 23.02.2008. 32. As per prosecution case, the male glans was recovered in the presence of Gulabji and Kantilal. During trial, statements of Gulabji (PW.11) were recorded but the said witness categorically stated in the cross-examination that I do not know about identification of male glans which is said to be recovered, my signatures were obtained upon Ex.P/13. The site plan of recovery of male glans (Ex.P/14 and Ex.P/15) was prepared at police station and I had never gone at the placeof recovery, which is canal. The site plan of recovery of male glans (Ex.P/14 and Ex.P/15) was prepared at police station and I had never gone at the placeof recovery, which is canal. In the statements other witness, Kantilal (PW.12) stated before the court that at the time of recovery of male glans, accused appellant, Smt. Surya was present. Though it is accepted that glans was taken out from the canal by the police and identified by Narji, but Narji was not present at the time of recovery according to Ex.P/13, P/14 and P/15 and the male glans was identified by Valu. Meaning thereby the presence of both these witness at the time of recovery of male glans is highly doubtful. 33. We have perused the recovery memo of weapon and cloths of accused appellant, upon which blood was found. The said recovery was made in front of two persons, Vagji and Narendra Singh. Witness PW.6 Vagji, appeared before the court and specifically stated in the cross-examination that his signatures were obtained upon Ex.P/3 to Ex.P/6 in the hospital and upon 4-5 documents signatures were also obtained at police station. It is nowhere said by the said witness that he went on the spot at the time of recovery along with police personnel. In the examination-in-chief, said witness PW.6 Vagji stated that, ^^------lw;kZ ls mldh lkM+h] ?kk?kjk [kwu okys iqfyl okys ys x;Sa Meaning thereby, it cannot be said that any recovery was made in front of Vagji because as per statement, his signatures were obtained at hospital upon recovery memos. PW.14- Narendra Singh, in the cross-examination stated that,- ^^--------;g lgh gS fd ml le; ugj esa ikuh ugha FkkA ugj lq[kh FkhA eS ekSds ij x;k ml le; yk'k ugj ij ugh FkhA^^ 34. Upon assessment of entire evidence of prosecution for recovery of dead body in two parts as well as cloths and other articles, we are of the view that there is serious doubt upon the investigation conducted by the investigating officer as the recoveries has not been proved by any independent witnesses. 35. First of all evidence of extra judicial confession was recorded by the investigating officer after registration of FIR but ignored the fact that as per statement of PW.7, Ramji and PW.8 Sukhram, the said confession was already made but not disclosed by them. 35. First of all evidence of extra judicial confession was recorded by the investigating officer after registration of FIR but ignored the fact that as per statement of PW.7, Ramji and PW.8 Sukhram, the said confession was already made but not disclosed by them. It is settled principle of law that evidence of extra judicial confession cannot be relied upon in routine, it has to be assessed cautiously so as to connect the accused with the crime. In this case, as per prosecution story, two witnesses, namely, PW.7- Ramji and PW.8- Sukhram, categorically stated in the court that before four months of recording their statements, Smt. Surya appellant came at about 10 O’clock in the night and made confession that she has killed her husband by causing injury upon his neck, and asked for help for throwing the dead body but in the cross-examination, it is stated by the witness PW.7- Ramji that, ^^ckr irk pyus ij eSusa ljiap ds vykok fdlh dks ckr ugh crk;h FkhA ;g xyr gS fd eSusa ljiap lkgc dks 5 fnu ckn ckr crk;h gksA cfYd nks fnu ckn gh crk;h FkhA esjk vnkyr esa ,d ckj c;ku gqvk FkkA ;gh lgh gS fd eSuS ljiap lkgc dks 3 fnu ckn crkuk vnkyr esa c;ku esa fy[kk;k gSA ;g lgh gS fd ykyw [kks x;k vkSj nks rhu fnu rd ugha feykA ;g xyr gS fd eSa lw;kZ ykyw dks <q<+us x;s FksA ;g xyr gS fd ykyw ?kj tekbZ gksA cfYd ykyw ukfn;k xkao dk fuoklh Fkk vkSj mls ukafn;k okyks us Hkxk fn;k Fkk blfy;s vius llqjky ds ikl xkao xkfj;k esa jgrk FkkA ykyw eMZj dsl esa tsy esa jgk FkkA ihfM+r i{kdkj us ykyw dks ukfn;k xkao ls fudky fn;k Fkk blfy;s xkfj;k vkdj jgrk FkkA ;g lgh gS fd ykyw 'kjkc ihdj tsc dkVrk FkkA vkSj yksxks ls Hkh >xM+k djrk FkkA iqfyl esa esjs dksbZ c;ku ugha gq, FksA^^ 36. The witness PW.8- Sukhram, gave following statement in his cross-examination:- ljiap lkgc ;k=k djus x;s Fks blfy;s muds vkus ij ckr crk;hA iqfyl okyks dks blfy;s ckr ugh crk;h fd ljiap dks ge crkrs o ljiap lkgc iqfyl dks crkrsA lajiap ds vykok geus fdlh dks ckr ugha crk;hA ljiap lkgc dks nks fnu ckn ckr crk;h FkhA yk'k feyh mlh fnu eSusa ljiap lkgc dks ckr crk;hA ;g xyr gS fd eSus ljiap lkgc dks f=iqjk lqanjh es ckr crk;h gksA vt[kqn dgk fd muds ?kj tkdj ckr crk;h FkhA yk'k feyh rc iqfyl gekjs ;gka vk;h FkhA ysfdu iqfyl dks geus dksbZ ckr ugha crk;hA iqfyl us gels dksbZ iwNrkN ugha dhA lw;kZ esjs cM+s firk dh yM+dh gSA ;g xyr gS fd esjh lw;kZ ls esjh cksypky ugh gksA e`Ÿkd ykyw ekuth dk ?kj tekbZ ugha gSA e`Ÿkd ykyw ukfn;k xkao ls eMZj djds gekjs ;gka vk;k FkkA ;g lgh gS fd ftudk eMZj fd;k mu yksxks ls ykyw dh jaft'k pyh vk jgh FkhA ;g lgh gS fd iqjkuh jaft'k dh otg ls ykyw dh gR;k gks x;h gks rks eSa ugh dg ldrkA ykyw pksfj;ka djrk FkkA 'kjkc ihRkk FkkA ;g lgh gS fd eSus igys tks c;ku fn;s Fks og iqfyl ds dgus ls fn;s FksA eSa vaxqBk Nki gwa i<+k fy[kk ugha gwaA fgUnh ugh vkrh gSA fgUnh cksyuk ugh tkurk gwaA fgUnh i<+Ukh Hkh ugh vkrh gSA^^ 37. Upon perusal of statements of these two witnesses of extra judicial confession, we are of the opinion that such type of statements cannot be relied upon to accept the fact of extra judicial confession because even after receiving information, both these witnesses did not disclose the said fact nor gave any information to the police or any other person and waited for Sarpanch (PW.6 Vagji), because he was out of station. It is also worthwhile to observe that upon perusal of aforesaid statements given on oath, it cannot be said that fact of extra judicial confession has been proved by the prosecution on the basis of statements of PW.7 Ramji and PW.8 Sukhram, who kept mum for 2-3 days and did not disclose this fact to the police even after registration of the FIR and recovery of dead body. 38. We have also perused the statements of PW.6- Vagji, Sarpanch who turned hostile and did not support the prosecution case. 38. We have also perused the statements of PW.6- Vagji, Sarpanch who turned hostile and did not support the prosecution case. The witness PW.6- Vagji nowhere stated when the fact of extra judicial confession was informed to him by PW.7, Ramji and PW.8, Sukhram. 39. In view of above, the evidence of extra judicial confession cannot be relied upon so as to hold accused appellant guilty for commission of alleged offence of murder. We have no hesitation to hold that in case evidence of extra judicial confession lacks merit and such doubtful evidence cannot be taken into consideration so as to hold accused appellant guilty for commission of offence because the prosecution has failed to prove its case beyond reasonable doubt. 40. In most celebrated case of Hon’ble Supreme Court in the case of Sharad Birdhichand Sharda Vs. State of Maharasthra reported in AIR 1984 SC 1622 , some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. It has been held that whenever the case is based on circumstantial evidence, the following features are required to be complied with. It would be beneficial to reproduce the silent features herein below:- “(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (ii) 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, (iii) The circumstances should be of a conclusive nature and tendency. (iv) They should exclude every possible hypothesis except the one to be proved, and (v) 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.” 41. While considering the question of extra judicial confession before relatives, in the case of Balwinder Singh Vs. State of Punjab reported in 1996 Crl.L.J. 883, the Hon’ble Supreme Court held as under:- “Again, according to PW-3, when she met PW-2 and her mother-in-law on coming out of the house of the appellant after he had made an extra-judicial confession to her, Tejinder Kaur PW-2 started crying on seeing her while her mother-in-law Ajmer Kaur kept silent. State of Punjab reported in 1996 Crl.L.J. 883, the Hon’ble Supreme Court held as under:- “Again, according to PW-3, when she met PW-2 and her mother-in-law on coming out of the house of the appellant after he had made an extra-judicial confession to her, Tejinder Kaur PW-2 started crying on seeing her while her mother-in-law Ajmer Kaur kept silent. This is an apparent improvement made by her at the trial since in her statement in the FIR Ex. PB, with which she was duly confronted, she had stated that both Tejinder Kaur and Ajmer Kaur were weeping and crying. When asked to explain this improvement at the trial, PW-3 stated that she had "nothing to say". In view of the hostility which the appellant had with PW3, for leading his wife estray, we find it rather difficult to accept that the appellant could have made any extra-judicial confession to her. The manner in which the extra-judicial confession is alleged to have been made and the silence of PW-3 for three days in disclosing the same to the police, even though she had admittedly been with the police between 21st and 23rd March, 1984 renders it unsafe to rely upon her statement. This un-explained long delay in lodging the first information report Ex. PB detracts materially from the reliability of the prosecution case in general and the testimony of PW3 in particular. We find that the alleged extra-judicial confession is surrounded by suspicious circumstance and the prosecution has not been able to establish that the appellant had made any extra-judicial confession to PW-3 Satya Walia and therefore this circumstance remains unestablished.” 42. The Hon’ble Supreme Court in a recent judgment rendered in the case of Vijay Thakur Vs. State of Himachal Pradesh reported in 2016 (1) R.Cr.D. 249 (SC) while considering various judgments, held that in a case relating to circumstantial evidence, chain of circumstances has to be spelt out by the prosecution and if anyone link in the chain is broken, the accused appellant must get benefit thereof. The relevant paragraph 13 of the said judgment reads as under:- “13. It is to be emphasized at this stage that except the so-called recoveries, there is no other circumstances worth the name which has been proved against these two appellants. It is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial evidence. The relevant paragraph 13 of the said judgment reads as under:- “13. It is to be emphasized at this stage that except the so-called recoveries, there is no other circumstances worth the name which has been proved against these two appellants. It is a case of blind murder. There are no eyewitnesses. Conviction is based on the circumstantial evidence. In such a case, complete chain of events has to be established pointing out the culpability of the accused person. The chain should be such that no other conclusion, except the guilt of the accused person, is discernible without any doubt. Insofar as these two appellants are concerned, there is no circumstance attributed except that they were with Rajinder Thakur till Sainj and the alleged disclosure leading to recoveries, which appears to be doubtful. When we look into all these facts in entirety in the aforesaid context, we find that not only the chain of events is incomplete, it becomes somewhat difficult to convict the appellant only on the basis of the aforesaid recoveries. 14. In Mani v. State of Tamil Nadu, (2008) 1 SCR 228 , this Court made following pertinent observation on this very aspect:- “21. The discovery is a weak kind of evidence and cannot be wholly relied upon on and conviction in such a serious matter cannot be based upon the discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case....” 15. There is a reiteration of the same sentiment in Manthuri Laxmi Narsaiah v. State of Andhra Pradesh, (2011) 14 SCC 117 in the following manner:- “6. It is by now well settled that in a case relating to circumstantial evidence the chain of circumstances has to be spelt out by the prosecution and if even one link in the chain is broken the accused must get the benefit thereof. We are of the opinion that the present is in fact a case of no evidence.” 16. Likewise, in Mustkeem alias Sirajudeen v. State of Rajasthan, (2011) 11 SCC 724 , this Court observed as under:- “24. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. In a most celebrated case of this Court, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 , in para 153, some cardinal principles regarding the appreciation of circumstantial evidence have been postulated. Whenever the case is based on circumstantial evidence the following features are required to be complied with. It would be beneficial to repeat the same salient features once again which are as under: (SCC p.185) “(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established; (ii) 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; (iii) The circumstances should be of a conclusive nature and tendency; (iv) They should exclude every possible hypothesis except the one to be proved; and (v) 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.” 25. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution.” It is settled position of law that suspicion, however strong, cannot take the character of proof.” 43. We have considered the judgment cited by the learned Public Prosecutor in the case of Baskaran & Anr. Vs. State of Tamil Nadu reported in 2014 Cri.L.J. 2705, in which the Hon’ble Supreme Court held that conviction can be based upon extra judicial confession. In paragraph 14 of the said judgment the Hon’ble Apex Court held that extra judicial confession made by the accused can be relied upon only if the same is voluntary and true and made in fit state of mind. In paragraph 14 of the said judgment the Hon’ble Apex Court held that extra judicial confession made by the accused can be relied upon only if the same is voluntary and true and made in 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. It is also observed that confession depends upon reliability of the witness who gives evidence for extra judicial confession of the accused. But 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 corroboration by independent witness. Paragraph 14 of aforesaid judgment reads as infra:- “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.” 44. In the present case, admittedly PW.7 Ramji and PW.8 Sukhram, uncle of accused appellant, Smt. Surya stated on oath that on the date of incident i.e. on 17.02.2008, Smt. Surya made extra judicial confession before them. But both these witnesses even after registration of the FIR against unknown person and recovery of body of the deceased, did not disclose the fact of extra judicial confession by the accused appellant to the police or to any relatives and waited for Sapranch, PW.6 Vagji, of village Ghariya, who came after two days. 45. But both these witnesses even after registration of the FIR against unknown person and recovery of body of the deceased, did not disclose the fact of extra judicial confession by the accused appellant to the police or to any relatives and waited for Sapranch, PW.6 Vagji, of village Ghariya, who came after two days. 45. The reliability of the statements of such witness to accept factum of the extra judicial confession is seriously doubtful because PW.6 Vagji, Sarpanch of village Ghariya, nowhere stated in his statements that when fact of extra judicial confession was disclosed by these witnesses to him. So also, in the statements of these two witnesses, they accepted that no such information about extra judicial confession was given by them to the police. In view of above judgment cited by the learned Public Prosecutor in the case of Baskaran & Anr. (supra), the ground of extra judicial confession of the prosecution cannot be relied upon to commit the accused appellant for the alleged charge of murder or to accept the finding of learned trial court based upon alleged extra judicial confession for the purpose of conviction. 46. Upon assessment of entire evidence, we are of the firm opinion that neither recovery of cloths and weapon (Dantla) is proved by the prosecution witnesses beyond doubt, nor the fact of extra judicial confession by the accused appellant before PW.7 Ramji and PW.8 Sukhram, has been proved by the prosecution, the whole prosecution case is based upon testimony of PW.6 Vagji, who turned hostile and unbelievable statement of PW.7 Ramji and PW.8 Sukhram. The entire prosecution case based upon circumstantial evidence is seriously doubtful, therefore, while following the law laid down by the Hon’ble Supreme Court in the case of Sharad Birdhichand Sharda (supra), which holds the field till today, we are of the opinion that judgment impugned in this appeal is not sustainable in law. 47. Consequently, this appeal is hereby allowed. The judgment impugned dated 23rd of October, 2008 passed by learned Addl. Sessions Judge (FT), Banswara, in Session Case No.21/2008 recording conviction against the accused appellant, Smt. Surya, under Sections 302 and 201 of IPC is hereby quashed and set aside. The accused appellant be released forthwith if not required in any other case. 48. The judgment impugned dated 23rd of October, 2008 passed by learned Addl. Sessions Judge (FT), Banswara, in Session Case No.21/2008 recording conviction against the accused appellant, Smt. Surya, under Sections 302 and 201 of IPC is hereby quashed and set aside. The accused appellant be released forthwith if not required in any other case. 48. Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bonds in the sum of Rs.20,000/- and a surety bond in the like amount each, 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.