Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 1840 (ALL)

Mahendra v. State of U. P.

2018-08-23

IFAQAT ALI KHAN, OM PRAKASH VII

body2018
JUDGMENT : Om Prakash-VII, J. 1. This jail appeal has been preferred on behalf of the appellant Mahendra, who has been convicted and sentenced vide judgment and order dated 24.08.2010/25.08.2010 passed by Sessions Judge, Hathras in Sessions Trial No. 473 of 2008 (State v. Mahendra) under section 302, IPC to undergo imprisonment for life and a fine of Rs. 2000/-. In default of payment of fine, appellant was also directed to undergo six months additional simple imprisonment. 2. Prosecution story in brief is that a written report (Ex. Ka.-1) was moved by informant Radhacharan (P.W. 1) at police station concerned on 12.8.2008 mentioning therein that his elder brother Mahendra used to take intoxicants and always used to quarrel with his wife Rekha. In the intervening night of 11/12.08.2008, Mahendra again quarreled with his wife and when she fell asleep, in anger, Mahendra committed murder of his seven years old son Lekhraj by cutting the body with spade and thereafter buried the dead body in a pit. When mother of deceased woke up, she did not find Lekhraj, then she asked her husband that where is Lekhraj, on which Mahendra told that he has killed Lekhraj and buried him. He also warned that if she dares to tell, she will also be done to death. Dead body of deceased was recovered from a pit near the house of accused. 3. On the basis of written report (Ex. Ka. 1), first information report (Ex. Ka.8) was lodged at concerned police station on 12.08.2008 itself at 5:30 a.m., GD. Entry (Ex. Ka.9) was also made. Concerned police reached at the place of occurrence, took blood stained and simple soil keeping the same in different boxes in sealed condition and after preparing the sample seal, prepared fard (Ex. Ka.2). Police also prepared inquest report (Ex. Ka. 10) of the recovered dead body along with other police papers (Ex. Ka.11, 12, 13 & 14) keeping the dead body in a sealed cloth and preparing the sample seals. 4. Spade said to have been used in commission of crime was also recovered on the same day and it was kept in a sealed cloth and prepared fard (Ex. Ka.5). 5. Investigating Officer reached the spot and prepared site plan (Ex. Ka.6 and 4). 6. 4. Spade said to have been used in commission of crime was also recovered on the same day and it was kept in a sealed cloth and prepared fard (Ex. Ka.5). 5. Investigating Officer reached the spot and prepared site plan (Ex. Ka.6 and 4). 6. Dead body of deceased was carried by the constable to mortuary for post-mortem and autopsy on the body of deceased was done on 12.08.2008 itself at 5:25 p.m. 7. On general examination, deceased was found aged about seven years. Probable time of death of deceased was ¾ day. Rigor mortis was present on body. Following ante mortem injuries were found on the body of deceased: (i) Incised wound 15 cm. x 2 cm. x bone deep on inner side of back of scalp. (ii) Incised wound 17 cm. x 12 cm. x bone deep on left side of face and neck (head severed). (iii) Incised wound 10 cm. x 8 cm. x bone deep in front of upper part of chest. (iv) Incised wound 4 cm. x 4 cm. x bone deep on inner part of right forearm (hand severed). (v) Incised wound 3 cm. x 3 cm. x bone deep on inner part of left forearm (hand severed). (vi) Incised wound 5 cm. x 4 cm. x bone deep on inner part of left leg (foot severed). (vii) Incised wound 5 cm. x 4 cm. x bone deep on inner part of left leg (foot severed). Cause of death of deceased as shown by doctor was due to shock and haemorrhage as a result of ante-mortem injuries. Post-mortem report is Ex. Ka.3. 8. Police after interrogation of witnesses and completion of investigation submitted charge sheet (Ex. Ka.7). 9. Magistrate concerned took cognizance and case being exclusively triable by the Sessions Judge was committed for trial to Sessions Court. 10. Accused was brought from jail. Learned trial court framed charge against the accused-appellant for the offence under section 302 IPC, to which he denied and claimed his trial. 11. In order to prove its case, prosecution examined eight witness in total, out of them P.W. 1 Radha Charan is the informant, P.W. 2 Rekha is the wife of accused-appellant, P.W. 3 Mahavir, P.W. 4 Ashok, P.W. 5 Dr. 11. In order to prove its case, prosecution examined eight witness in total, out of them P.W. 1 Radha Charan is the informant, P.W. 2 Rekha is the wife of accused-appellant, P.W. 3 Mahavir, P.W. 4 Ashok, P.W. 5 Dr. A.K. Rajvanshi, who has conducted the postmortem on the body of deceased, P.W. 6 S.I. Sripal Singh, who is the Investigating Officer and also the witness of recovery of spade, P.W. 7 constable Jagvir Singh, chik writer and P.W. 8 S.I. Liladhar Singh, who has prepared the inquest report and other police papers. 12. After completion of prosecution evidence, statement of accused-appellant was recorded under section 313. Cr.P.C. in which he has stated that entire prosecution case is false. Extrajudicial confession and recovery of spade both were said to be false. Recovery of dead body was also denied by him. No opinion was given by the accused-appellant about the preparation of F.I.R., G.D. Entry and preparation of site plan. Accused also shown ignorance regarding the preparation of inquest report, other police papers, post-mortem etc. and stated that charge sheet was submitted falsely. He also stated that witnesses were examined in the matter only on the basis of enmity. He has specifically stated that prosecution was launched due to family dispute and he has been falsely implicated in this case by the informant to grab the house. Accused further stated that he has not committed the present offence. No evidence was adduced by the accused-appellant in his defence. 13. Learned court below after hearing the parties vide impugned judgment and order convicted the accused-appellant for the offence under section 302, IPC as above. Hence, this Appeal. 14. Heard Ms. Saumya Chaturvedi, learned amicus curiae appearing for appellant and Sri. Om Prakash Mishra, learned A.G.A. for State. 15. It was submitted by learned amicus curiae that prosecution was not able to prove its case beyond reasonable doubt. In fact, none has seen the occurrence. P.W. 2, the mother of deceased, who was said to be sleeping in the same room, has also not supported the prosecution case. Statement of P.W. 1, P.W. 3 and P.W. 4 are based on hearsay. Recovery of spade is false. There are contradictory statement on point of place of arrest of the accused-appellant and recovery of spade. Dead body of deceased was not recovered on pointing out of the accused-appellant. Statement of P.W. 1, P.W. 3 and P.W. 4 are based on hearsay. Recovery of spade is false. There are contradictory statement on point of place of arrest of the accused-appellant and recovery of spade. Dead body of deceased was not recovered on pointing out of the accused-appellant. Prosecution did not adduce any F.S.L. report to connect the instrument (spade) said to have been recovered in the matter with this offence. Accused-appellant was very much present in the house, thus his conduct itself indicates that he has not committed the present offence. Extra-judicial confession said to have been made in the matter is also not believable, as prosecution witnesses themselves have denied in their cross-examination regarding extrajudicial confession. It was next contended that it is purely a case of circumstantial evidence. Chain of circumstantial evidence is not so linked with each other to presume that appellant and appellant only has committed the present offence. Referring to the time of registration of the F.I.R., it was further argued that P.W. 1 has made false statement. When he reached at the place of occurrence at 6:00 a.m., then how he lodged the F.I.R. in this matter at 5:30 a.m. itself. Referring to this fact, it was submitted that the F.I.R. on this score itself becomes a suspicious document and P.W. 1 has made false statement before the Court. It was next contended that there was entirely no motive with the appellant to commit such offence. If there was dispute between the husband and wife, then also there was no occasion to kill his son by the accused-appellant. Referring to the motive assigned in the matter, it was further submitted that fact of ignoring the accused-appellant by his wife mentioned in the F.I.R. is not believable. Deceased was done to death by some other person and a false story has been cooked up by P.W. 1. Referring to the statement of P.W. 2, it was further argued that due to this reason, P.W. 2 did not support the prosecution version. In support of her contention, reliance was placed by the learned amicus curiae on the following decisions: (i) Ganpat Singh v. The State of Madhya Pradesh, (2017) 16 SCC 353 : ( AIR 2017 SC 4839 ) (ii) Dr. (Smt.) Nupur Talwar v. State of U.P. and Anr., (2018) 102 ACC 524 (iii) Queen-Empress v. Hosh Nak, 1941 All LJ 416 16. (Smt.) Nupur Talwar v. State of U.P. and Anr., (2018) 102 ACC 524 (iii) Queen-Empress v. Hosh Nak, 1941 All LJ 416 16. Learned A.G.A. for the State argued that child of seven years of age was killed by his own father. It is an established fact that the child, accused-appellant and PW. 2, the mother of the child, were sleeping in the same room in the night. P.W. 2 when woke up, she did not find the deceased in the room. When she questioned accused-appellant, then he confessed his guilt and stated that he has killed and buried the deceased. It was further argued that instrument (spade) said to have been used in commission of crime has also been recovered on pointing out of the accused-appellant. Dead body of the deceased was also recovered on pointing out of accused-appellant. Thus, prosecution was able to prove its case beyond reasonable doubt. 17. We have considered the rival submissions advanced by learned counsel for the parties and have gone through the entire record carefully. 18. In this matter, as is evident from record, incident is said to have taken place in the intervening night of 11/12.08.2008. First information report was lodged on 12.08.2008 at 5:30 a.m. Distance between the place of occurrence and police station is 5 Kms. 19. P.W. 1 Radha Charan is the informant. If the statement of P.W. 1 is taken into consideration on point of lodging of the first information report, it is evident that P.W. 1 in the examination-in-chief has stated that on the day of incident, he had gone to the house of his uncle Sukkha in the night. When he heard the hue and cry at about 6:00 a.m., he reached at the house of accused-appellant. Many people were gathered there and P.W. 2 - wife of the accused-appellant was asking from the accused-appellant where is Lekhraj, then accused-appellant told her that he has killed the deceased with spade and buried the dead body. If the time of lodging of the F.I.R. is compared with the statement of this witness, then either P.W. 1 is making false statement about his presence at the place of occurrence or the time of F.I.R. is false. If the time of lodging of the F.I.R. is compared with the statement of this witness, then either P.W. 1 is making false statement about his presence at the place of occurrence or the time of F.I.R. is false. Since it is a case of murder of seven years old child, who was sleeping in the room along with accused-appellant and her mother in the night, therefore, only on the basis of discrepancy in the time of lodging the F.I.R., prosecution case cannot be disowned. Other evidence has to be scrutinized very carefully and cautiously. 20. In fact, in this matter, none has seen the occurrence, even P.W. 2 Smt. Rekha, the wife of accused-appellant, who was also sleeping in the same room in the night. If she would have seen the incident, then there was no occasion for her to inquire the matter in the morning. It is also pertinent to mention here that this witness has not supported the prosecution case while examined before the court. P.W. 1 has lodged the first information report. If extrajudicial confession had been made before this witness also, then this fact must have come in the first information report itself. Since nothing has been mentioned in the first information report about the extra-judicial confession said to have been made before this witness, therefore, statement of P.W. 1 in this regard is not safe to rely upon. From the statement of P.W. 2, only this fact finds support that dead body of the deceased was found in the morning. On other facts mentioned in the first information report, no support is made to the prosecution case from the statement of this witness. 21. As far as statement of P.W. 3 is concerned, he is also not an eye-witness. Only this fact has been mentioned in his examination-in-chief that when he reached at the place of occurrence, he saw the dead body and accused-appellant on inquiry has stated that he has killed the deceased. When he was cross-examined, he clearly admitted that no confession was made before him, but he has stated entire facts on the basis of hearsay statement. Thus, statement of this witness on point of extra-judicial confession made before this witness is also not clear, cogent and consistent. 22. As far as P.W. 4 Ashok, who was scribe of the written report, (Ex. Thus, statement of this witness on point of extra-judicial confession made before this witness is also not clear, cogent and consistent. 22. As far as P.W. 4 Ashok, who was scribe of the written report, (Ex. Ka.1) is concerned, in the examination-in-chief, he has also stated that when he reached at the place of occurrence, P.W. 2, wife of the accused-appellant was asking to accused-appellant that where is Lekhraj, then accused-appellant told her that he has buried him after killing. Accused-appellant also showed the pit where the dead body was buried. However, in cross-examination, this witness also clearly admitted that the fact mentioned in the examination-in-chief was stated by him on the basis of hearsay statement meaning thereby statement of this witness on point of extrajudicial confession is also not based on confession made before this witness. 23. As far as recovery of dead body is concerned, prosecution case is not clear and consistent that on whose pointing out the dead body was recovered. As far as recovery of spade is concerned, prosecution did not adduce any evidence to connect the recovered pharsa with the present matter. In the recovery memo (Ex. Ka.5) it has been clearly mentioned that blood was present on the spade said to have been recovered in the matter. When P.W. 6 S.I. Sripal Singh was examined before the court, he identified the spade before the court, but in cross-examination he has clearly admitted that blood was not present on the spade, rather it was clean and this fact has been mentioned by him in the recovery memo. He has also stated that he has not sent the recovered spade for chemical examination because blood was not present on it. If the statement made by this witness on this point is compared with the fact of recovery, the recovery of spade itself becomes doubtful. Apart to this, nothing is on record except the oral submission to connect the recovered spade with the present matter. 24. If the medical evidence is taken into consideration, it is not disputed that deceased was done to death by cutting his body in several pieces by sharp edged weapon, but since none has seen the occurrence and it is purely a case of circumstantial evidence, the circumstances established by the prosecution have to be analyzed. 25. 24. If the medical evidence is taken into consideration, it is not disputed that deceased was done to death by cutting his body in several pieces by sharp edged weapon, but since none has seen the occurrence and it is purely a case of circumstantial evidence, the circumstances established by the prosecution have to be analyzed. 25. Now, we have to consider whether the judgment of conviction passed by the trial court can be sustained in law. As noticed above, the conviction is based on circumstantial evidence as no one has seen the accused committing murder of the deceased. While dealing with the said conviction based on circumstantial evidence, the circumstances from which the conclusion of the guilt is to be drawn should in the first instance be fully established, and all the facts so established should also be consistent with only one hypothesis i.e., the guilt of the accused, which would mean that the onus lies on the prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of the Court. 26. For ready reference, paragraph Nos. 17 to 23 of Majenderan Langeswaran v. State (NCT of Delhi) and another, (2013) 7 Supreme Court Cases 192 : ( AIR 2013 SC 2790 ), paras 12 to 18) are quoted below. "17. In Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 , this Court observed as under: "10. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 18. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." 18. In Padala Veera Reddy v. State of A.P., 1989 Supp (2) SCC 706 : ( AIR 1990 SC 79 ), this Court opined as under: "10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, (1982) 2 SCC 351 ): ( AIR 1982 SC 1157 ) 19. In C. Chenga Reddy & Ors. v. State of A.P., (1996) 10 SCC 193 : ( AIR 1996 SC 3390 Para 20-A), this Court while considering a case of conviction based on the circumstantial evidence, held as under: 21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In the present case the courts below have overlooked these settled principles and allowed suspicion to take the place of proof besides relying upon some inadmissible evidence." 20. In Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172 : ( AIR 2006 SC 1656 ), this Court again considered the case of conviction based on circumstantial evidence and held as under: "26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P., (2005) 7 SCC 603 ) : ( AIR 2005 SC 3478 )." 21. In the case of Sattatiya v. State of Maharashtra, (2008) 3 SCC 210 : ( AIR 2008 SC 1184 , para 8), this Court held as under: 10. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. We have thoughtfully considered the entire matter. It is settled law that an offence can be proved not only by direct evidence but also by circumstantial evidence where there is no direct evidence. The court can draw an inference of guilt when all the incriminating facts and circumstances are found to be totally incompatible with the innocence of the accused. Of course, the circumstances from which an inference as to the guilt is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. This Court further observed in the aforesaid decision that: 17. At this stage, we also deem it proper to observe that in exercise of power under Article 136 of the Constitution, this Court will be extremely loath to upset the judgment of conviction which is confirmed in appeal. However, if it is found that the appreciation of evidence in a case, which is entirely based on circumstantial evidence, is vitiated by serious errors and on that account miscarriage of justice has been occasioned, then the Court will certainly interfere even with the concurrent findings recorded by the trial court and the High Court Bharat v. State of M.P., (2003) 3 SCC 106 : ( AIR 2003 SC 1433 ). In the light of the above, we shall now consider whether in the present case the prosecution succeeded in establishing the chain of circumstances leading to an inescapable conclusion that the appellant had committed the crime. 22. In the case of State of Goa v. Pandurang Mohite (2008) 16 SCC 714 : ( AIR 2009 SC 1066 ), this Court reiterated the settled law that where a conviction rests squarely on circumstantial evidence, the 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 or the guilt of any person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 23. It would be appropriate to consider some of the recent decisions of this Court in cases where conviction was based on the circumstantial evidence. 23. It would be appropriate to consider some of the recent decisions of this Court in cases where conviction was based on the circumstantial evidence. In the case of G. Parshwanath v. State of Karnataka, (2010) 8 SCC 593 : ( AIR 2010 SC 2914 ), this Court elaborately dealt with the subject and held as under: 23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that fact leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts. 24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court." 27. Similar view has also been reiterated by the Hon'ble Supreme Court in Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37 : ( AIR 2012 SC 1377 ) as well as in Brajendrasingh v. State of M.P., (2012) 4 SCC 289 : ( AIR 2012 SC 1552 ). 28. Thus, on the basis of law laid down in aforementioned cases it may be mentioned that the rule which needs to be observed by the court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. 29. As regards extrajudicial confession said to have been made by the accused-appellant is concerned, for ready reference paragraph Nos. 24, 25 and 26 of Tejinder Singh alias Kaka v. State of Punjab, (2013) 12 Supreme Court Cases 503 : (2013 AIR SCW 3289) are quoted below. "24. The extrajudicial confession is a weak form of evidence and based on such evidence no conviction and sentence can be imposed upon the appellants and other accused. 24, 25 and 26 of Tejinder Singh alias Kaka v. State of Punjab, (2013) 12 Supreme Court Cases 503 : (2013 AIR SCW 3289) are quoted below. "24. The extrajudicial confession is a weak form of evidence and based on such evidence no conviction and sentence can be imposed upon the appellants and other accused. In support of this proposition, the relevant paragraphs of Pancho case ( AIR 2012 SC 523 ) are extracted hereunder: (SCC pp. 169 & 171-72, paras 16, 25 & 27) (at pp. 525-526 & 527-528, paras 10 & 15, 16 of AIR) "16. The extrajudicial confession made by A-1, Pratham is the main plank of the prosecution case. It is true that an extrajudicial confession can be used against its maker, but as a matter of caution, courts look for corroboration to the same from other evidence on record. In Gopal Sah v. State of Bihar (2008) 17 SCC 128 ) this Court while dealing with an extrajudicial confession held that an extrajudicial confession is on the face of it, a weak evidence and the courts are reluctant, in the absence of a chain of cogent circumstances, to rely on it for the purpose of recording a conviction. We must, therefore, first ascertain whether the extrajudicial confession of A-1, Pratham inspires confidence and then find out whether there are other cogent circumstances on record to support it." 25. This Court further noted that: (Kashmira Singh case : ( AIR 1952 SC 159 ), AIR p. 160, para 10) "10. ... cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event, the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession, he would not be prepared to accept." 27. This Court in Haricharan case ( AIR 1964 SC 1184 ) further observed that Section 30 merely enables the court to take the confession into account. It is not obligatory on the court to take the confession into account. This Court reiterated that a confession cannot be treated as substantive evidence against a co-accused. This Court in Haricharan case ( AIR 1964 SC 1184 ) further observed that Section 30 merely enables the court to take the confession into account. It is not obligatory on the court to take the confession into account. This Court reiterated that a confession cannot be treated as substantive evidence against a co-accused. Where the prosecution relies upon the confession of one accused against another, the proper approach is to consider the other evidence against such an accused and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused, the court turns to the confession with a view to assuring itself that the conclusion which it is inclined to draw from the other evidence is right." 25. Further, relevant paragraphs from Sahadevan's case : ( AIR 2012 SC 2435 ) are extracted hereunder: (SCC pp. 410 & 412-413, paras 14 & 16) (at pp. 2439 & 2441, Paras 12 & 22 of AIR) "14. It is a settled principle of criminal jurisprudence that extrajudicial confession is a weak piece of evidence. Wherever the court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extrajudicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extrajudicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration. 16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extrajudicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extrajudicial confession alleged to have been made by the accused: (i) The extrajudicial confession is weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extrajudicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extrajudicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law." 26. Reliance placed upon the decisions of this Court in the case of Sahadevan's case (supra) supports the case of the appellant herein. Hence, the reliance placed upon the evidence of PW-7 by both the Additional Sessions Judge and the High Court to convict the appellant and sentencing him for the offence under Section 201, IPC is erroneous in law for the reason that they have not appreciated the testimony of PW-7 in the backdrop of the legal principles laid down by this Court in the above referred cases on the question of extrajudicial confession said to have been made by some of the accused to him. Non disclosure of the same either on the same day or within reasonable time either to the police or to the family members of the deceased does not inspire confidence to be accepted as testimony to sustain the conviction and sentence. After 16 days he had disclosed it to the jurisdictional police which would clearly go to show that the conduct of the said witness is unnatural and improbable to believe and his conduct is not that of an ordinary human being." 30. On analysis of the evidence made hereinabove, if the circumstances said to have been established by the prosecution in the present matter are summarized, then it emerges that (i) Deceased, appellant and mother of deceased were sleeping in a room in the night. (ii) Deceased was not found in the room next morning, therefore, P.W. 2 Rekha, who is the mother of deceased and wife of appellant, inquired whereabouts of deceased from appellant. (iii) Although prosecution case was that accused-appellant made extrajudicial confession stating that he has killed the deceased and buried him, but the extrajudicial confession said to have been proved by the prosecution is not free from suspicion, as has been discussed hereinabove. (iii) Although prosecution case was that accused-appellant made extrajudicial confession stating that he has killed the deceased and buried him, but the extrajudicial confession said to have been proved by the prosecution is not free from suspicion, as has been discussed hereinabove. (iv) Recovery of spade is also not free from suspicion, as there is contradictory statement on point of presence of blood on the spade. (v) Spade said to have been recovered in the matter on pointing out of accused-appellant was not sent to Forensic Science Laboratory and there is no report to show that human blood was present on the said spade. (vi) Prosecution was not able to connect the said spade with the present matter. (vii) Extrajudicial confession is said to have been made on inquiry of P.W. 2 Rekha, but this witness did not support the prosecution case. (viii) Statement of P.W. 1, P.W. 3 and P.W. 4 on point of extrajudicial confession are also not consistent and clear, but they have made contradictory statement on this issue. (ix) Dead body of the deceased was recovered in the matter, but on whose pointing out it was recovered is also not established clearly and cogently from the prosecution evidence. (x) Statement of P.W. 1, the informant is not believable, as first information report was lodged at 5:30 a.m., but this witness in his deposition made before the Court has stated that he reached on the spot at 6:00 a.m. If such was the position, then the statement made by this witness becomes doubtful. (xi) Nothing has been mentioned in the first information report regarding extrajudicial confession said to have been made before P.W. 1, P.W. 3 and P.W. 4. (xii) As regards the conduct of the accused-appellant is concerned, he was present in the house next morning. 31. If circumstances emerged and narrated hereinabove are taken in consonance with the settled legal position, as has been cited above, true import of facts and evidence is that extrajudicial confession said to have been made in the matter is a very weak piece of evidence. Prosecution was not able to prove that accused-appellant has made extrajudicial confession before P.W. 1, P.W. 3 and P.W. 4. Statement of these witnesses are not reliable on this issue. Spade said to have been recovered in the matter is also not connected with the present crime. Prosecution was not able to prove that accused-appellant has made extrajudicial confession before P.W. 1, P.W. 3 and P.W. 4. Statement of these witnesses are not reliable on this issue. Spade said to have been recovered in the matter is also not connected with the present crime. On whose pointing out dead body was recovered was also not proved clearly and cogently. P.W. 2 Rekha was sleeping in the same room in the night, but she did not respond/react in the night. None has seen the accused-appellant committing the present offence. 32. Thus, applying the rule of caution and on the basis of settled legal position, as enumerated hereinabove, we are of the view that prosecution has not been able to prove the charge levelled against the appellant beyond reasonable doubt. Findings recorded by the trial court in the impugned judgment and order regarding guilt of appellant for the offence under section 302, IPC are perverse and need interference by this Court. Conviction and sentence imposed vide impugned judgment and order is not sustainable. Jail appeal, therefore, deserves to be allowed and appellant is liable to be acquitted extending the benefit of doubt. 33. Accordingly, Jail Appeal is allowed. Conviction and sentence imposed upon the appellant through judgment and order dated 24.08.2010/25.08.2010 passed by Sessions Judge, Hathras in Sessions Trial No. 473 of 2008 (State v. Mahendra) under section 302, IPC are hereby set aside. Appellant Mahendra is acquitted of the charge under section 302 IPC. Appellant is in jail. He shall be released forthwith, if not wanted in any other case. 34. Keeping in view provisions of Section 437-A, Cr.P.C., appellant Mahendra is directed to forthwith furnish a personal bond of the sum of rupees fifty thousand and two reliable Sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court. 35. Let a copy of this judgment along with lower court record be sent forthwith to the court concerned for compliance. 36. Copy of the judgment be also sent to the appellant through concerned jail Superintendent. 37. Compliance report be sent to this Court positively. 38. Ms. 35. Let a copy of this judgment along with lower court record be sent forthwith to the court concerned for compliance. 36. Copy of the judgment be also sent to the appellant through concerned jail Superintendent. 37. Compliance report be sent to this Court positively. 38. Ms. Saumya Chaturvedi, learned Amicus Curiae has assisted the Court very diligently. We provide that she shall be paid counsel's fee as Rs. 10,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Ms. Saumya Chaturvedi, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.