JUDGMENT : Kailash Prasad Deo, J. Heard learned Amicus Curiae, Mr. Ajit Kumar and learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor. 2. The instant criminal appeal has been preferred against the judgment of conviction and order of sentence both dated 23.05.2014 passed by learned District and Additional Sessions Judge-I, Ghatsila in Sessions Trial No. 111 of 2012, whereby both the accused persons/appellants, Thongo Kudada and Kanda Ram Purti @ Master Purti have been held guilty and convicted for the offence committed and punishable under Section 302/34 of the Indian Penal Code and awarded sentence of rigorous imprisonment for life with a fine of Rs. 2,000/- each and in case in default in payment of fine simple imprisonment for six months. 3. Prosecution case is based upon Fardbeyan of informant, Sagu Sabar (P.W.8) recorded by S.I, Bhola Prasad Yadav (P.W.5) on 10.10.2011 at 12.15 Hrs. at Kashigora. The informant has alleged that yesterday on 9.10.2011 (Sunday), he went to Dhegam Haat. While returning from the Haat, he saw at village- Susnigariha near the house of Dugur Singh at 4 P.M. that his uncle Ruiba Sabar and Runja Sabar of village Kalyankocha and Dhori Sabar of village Ketcha Badal, Tola-Cycle Dungri, both under Dumariya police station, were taking country made liquor. The informant has further stated that his uncle, Ruiba Sabar asked him to take 20 Kg. of rice to give it at his house and all three were taking country made liquor there. The informant came from Susnigariha towards his house and saw Dhunda Sabar at village- Kashigora near Dungri in an open place lying in intoxicated condition. The informant came along with daughter of Dhunda Sabar, namely, Tulsi Sabar from village-Susnigariha. Though, they tried to lift Dhunda Sabar but could not succeed and as such both informant and Tulsi Sabar came to their house at 6 P.M. In the night Ruiba Sabar and Dhunda Sabar did not return to their respective houses. Thus, in the morning the informant and others went in search of them. Though, they tried to lift Dhunda Sabar but could not succeed and as such both informant and Tulsi Sabar came to their house at 6 P.M. In the night Ruiba Sabar and Dhunda Sabar did not return to their respective houses. Thus, in the morning the informant and others went in search of them. Informant has stated that in search they found the dead body of Dhunda Sabar at Kashigora Dungri having injury on the head caused by boulder and at a distance of 200 meters in the south eastern direction under the Itchakuti Bridge, dead body of Ruiba Sabar was found on a stone, whose front portion of the face was having injury and the blood was oozing from the mouth and nose. Informant has suspicion that Runja Sabar and Dhodhi Sabar both have killed, as both were taking country made liquor at village-Susnigariha with deceased and in course of the same some altercation might have taken place and as such both have killed Ruiba Sabar at Kashigora and while returning they have also killed the cousin of Ruiba Sabar, namely, Dhunda Sabar near Itchakuti Bridge by crushing the head by means of boulder. Fardbeyan was recorded in presence of Surba Sabar, who has not been examined in this case. Fardbeyan has been recorded by Sub-Inspector, Bhola Prasad Yadav, who has been examined in this case as P.W. 5. 4. On the basis of Fardbeyan of the informant, police has registered Dumaria P. S. Case No. 12/2011 dated 10.10.2011 under Section 302/34 I.P.C against the Runja Sabar resident of Kalyankocha and Dhodi Sabar, resident of Kechabadal Tola both under Dumaria police station in the district of East Singhbhum, Jamshedpur. 5. After completion of the investigation, the police has submitted charge-sheet vide no. 34/2011 dated 31.12.2011 under Section 302/34 I.P.C against Thongo Kudada and Konda Ram Purti @ Master Purti, but police has not found that Runja Sabar and Dhodi Sabar @ Sonia Sabar as persons involved in the crime as such police has not sent up the F.I.R named accused rather police has submitted charge-sheet senting up these two accused persons, namely, Thongo Kudada and Kanda Ram Purti @ Master Purti for trial. The cognizance of the offence has been taken vide order dated 14.02.2012 and the case has been committed to the court of sessions vide order dated 24.03.2012. 6. The cognizance of the offence has been taken vide order dated 14.02.2012 and the case has been committed to the court of sessions vide order dated 24.03.2012. 6. The charge has been framed against both the accused charge-sheeted by the police namely Thongo Kudada and Kanda Ram Purti @ Master Purti under Section 302/34 I.P.C vide order dated 6.2.2013. The charge has been read over and explained to the accused persons in Hindi, to which they have denied the charge and claimed to be tried. 7. In order to prove the case, the prosecution has examined altogether 12 prosecution witnesses and also exhibited a number of documents up to Ext.-10. Krishna Chandra Murmu has been examined as P.W.1, Mangal Kudada has been examined as P.W.2, Losro Sardar has been examined as P.W.3, Mohan Soren has been examined as P.W.4, Bhola Prasad Yadav, Investigating Officer has been examined as P.W.5, Vikash Nayak has been examined as P.W.6, Budhram Murmu has been examined as P.W.7, Sagu Sabar, informant of the case has been examined as P.W.8, Tulsi Sabar daughter of the deceased has been examined as P.W.9, Sumitra Sabar has been examined as P.W.10, Runja Sabar has been examined as P.W.11 and Dr. Mohan Singh has been examined as P.W.12. The signature of P.W.1, Krishna Chandra Murmu on the carbon copy of the inquest report of Ruiba Sabar has been proved by P.W.-1 and marked Ext.1. Signature of P.W.4 Mohan Soren on the carbon copy of the inquest report of Ruiba Sabar has been proved and marked as Ext. 1/(i). Inquest report of Ruiba Sabar has been proved and marked as Ext.-1/(ii). Signature of P.W.1 Krishna Chandra Murmu on the carbon copy of the inquest report of Dhunda Sabar has been proved by P.W. 4, Mohan Soren and marked as Ext.2. Signature of P.W.4 Mohan Soren on the carbon copy of the inquest report of Dhunda Sabar has been proved and marked as Ext.2/(i). The inquest report of Dhunda Sabar has been proved and marked as Ext.2/(ii). Fardbeyan of the informant has been proved and marked as Ext.3. Formal F.I.R. has been proved and marked as Ext.4. Confessional statement of Thongo Kudada has been proved and marked as Ext.-5 Signature of Budhram Murmu on confessional statement of accused Thongo Kudada has been proved and marked as Ext.5(i). Fardbeyan of the informant has been proved and marked as Ext.3. Formal F.I.R. has been proved and marked as Ext.4. Confessional statement of Thongo Kudada has been proved and marked as Ext.-5 Signature of Budhram Murmu on confessional statement of accused Thongo Kudada has been proved and marked as Ext.5(i). Confessional statement of Kanda Ram Purti @ Master Purti has been proved and marked as Ext.6. Signature of Vikash Nayak (P.W.6) on the confessional statement of Kanda Ram Purti @ Master Purti has been proved and marked as Ext.6/(i). Signature of Vikash Nayak on his statement recorded under Section 164 Cr.P.C. has been proved and marked as Ext.7. The statement of Vikash Nayak P.W.6 recorded under Section 164 Cr.P.C. has been proved and marked as Ext.7/(i). Signature of Budhram Murmu on the statement recorded under Section 164 Cr.P.C. has been proved and marked as Ext.8. The statement of Budhram Murmu (P.W.7) recorded under Section 164 Cr.P.C. has been proved and marked as Ext.8/(i). Post-mortem report of Ruiba Sabar has been proved and marked Ext.9. Post-mortem report of Dhunda Sabar has been proved and marked Ext.10. All these exhibits have been proved, marked and brought on record by the prosecution without any objection from the defence. 8. After closure of the prosecution evidence, the accused persons have been examined under Section 313 Cr.P.C. on 15.5.2014. They have categorically denied about their involvement in the occurrence and have also stated that they have not confessed their guilt in presence of the Police nor they have signed the same, but no defence witness or exhibit has been brought on record on behalf of the defence. 9. After hearing learned counsel for the parties and on the basis of materials available on record, learned Trial Court has held these two appellants guilty on the basis of the evidence brought on record considering that prosecution has proved the motive, there are circumstantial evidence and deceased were last seen with the deceased and the extra judicial confession of the accused. 10. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appeal has been preferred on behalf of the appellants. 11. Heard learned Amicus Curiae Mr. Ajit Kumar and learned counsel for for the State Mrs. Laxmi Murmu, Additional Public Prosecutor. Learned Amicus Curiae Mr. 10. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appeal has been preferred on behalf of the appellants. 11. Heard learned Amicus Curiae Mr. Ajit Kumar and learned counsel for for the State Mrs. Laxmi Murmu, Additional Public Prosecutor. Learned Amicus Curiae Mr. Ajit Kumar has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned Amicus Curiae has submitted that there is no legal material against these two appellants so as to warrant conviction under Section 302/34 I.P.C. Learned Amicus Curiae has submitted that from perusal of the material brought on record, it appears that the F.I.R. has been lodged by the informant (P.W.8) Sagu Sabar against two other named accused persons on the basis of suspicion. Those accused persons have not been sent up by the Police for trial and the charge-sheet has been submitted against these two accused persons, on the basis of their extra-judicial confession made before the witnesses, whose statements have been recorded under Section 164 Cr.P.C. Learned Amicus Curiae has submitted that names of these appellants have figured in the case, as Thongo Kudada and Kanda Ram Purti @ Master Purti have confessed their guilt before P.W.2 Mangal Kudada, disclosing that they have killed Ruiba Sabar and Dhunda Sabar. On the basis of evidence, statement of the witnesses namely Vikash Nayak and Budhram Murmu was recorded under Section 164 Cr.P.C. Learned Amicus Curiae has submitted that on the basis of these evidences, these two appellants have been sent up for trial. Learned Amicus Curiae has submitted that from perusal of the F.I.R., these two accused/appellants have not been last seen with the deceased rather as per the evidence brought on record, the F.I.R., discloses that Ruiba Sabar was uncle of the informant, who was taking country made liquor with Runja Sabar and Dhori Sabar. Dead body of Dhunda Sabar was found alone at a distance of 200 meters south east near Inchakuti Bridge. Learned Amicus Curiae has submitted that on the basis of such material the accused persons have been convicted by the learned trial court. Learned Amicus Curiae submitted that there is no eye-witness to the occurrence and on the basis of these evidences, considering to be a circumstantial evidence against accused/appellants they have been convicted by the learned trial court. Learned Amicus Curiae has submitted that on the basis of such material the accused persons have been convicted by the learned trial court. Learned Amicus Curiae submitted that there is no eye-witness to the occurrence and on the basis of these evidences, considering to be a circumstantial evidence against accused/appellants they have been convicted by the learned trial court. Learned Amicus Curiae has submitted that Krishna Chandra Murmu has been examined as P.W.1, he has proved his signature on inquest report of Ruiba Sabar and Dhunda Sabar which has been proved and marked Ext.1 & 1/(i) respectively. This witness has categorically stated during cross-examination that he has not seen the occurrence. Mangal Kudada has been examined as P.W.2. It has been stated that both the accused have confessed their guilt before him though this witness(P.W.2) has not been examined under Section 164 Cr.P.C. Learned Amicus Curiae has submitted that Losro Sardar has been examined as P.W.3 and has been declared hostile by the prosecution. Mohan Soren has been examined as P.W.4 and has proved his signature on both the inquest reports, which have been marked as Ext. 2 on the inquest report of Ruiba Sabar and Ext.2/(i) on the inquest report of Dhunda Sabar. This witness has categorically stated that Officer-in-charge, has disclosed before him that occurrence took place as the price of she goat has not been returned as such these persons have been killed. Bhola Prasad Yadav is the Sub-Inspector of Police, who has recorded the Fardbeyan of Sagu Sabar and proved the same as Ext.3. The formal F.I.R. in the handwriting of Constable Birendra Kumar has been proved and marked Ext.4. The inquest reports of Dhunda Sabar and Ruiba Sabar, prepared in the presence of two witnesses have been proved and marked Ext. 1(ii) and 2/(ii). The confessional statement of Thongo Kudada bearing thumb impression of Thongo Kudada and signature of Budhram Murmu has been proved and marked Ext.5. The confessional statement of Kanda Ram Purti @ Master Purti written by Bhola Prasad Yadav in his handwriting and signature has been proved and marked Ext.6. 1(ii) and 2/(ii). The confessional statement of Thongo Kudada bearing thumb impression of Thongo Kudada and signature of Budhram Murmu has been proved and marked Ext.5. The confessional statement of Kanda Ram Purti @ Master Purti written by Bhola Prasad Yadav in his handwriting and signature has been proved and marked Ext.6. This witness has categorically stated that he has submitted charge-sheet against the accused persons under Section 302/34 IPC on the direction of superior officer but none of the witnesses examined by him have claimed to be an eye-witness to the occurrence, though the accused persons have confessed their guilt and their confessional statement has been recorded but nothing has been seized from the place of occurrence. Vikash Nayak has been examined as P.W.6. This witness has stated that he has been brought by the Police. Ram Purti was caught by the Police and has confessed his guilt before him which was written by the Police and he has put his signature on the same which has been marked Ext.6/(i). Statement of this witness was also recorded by the learned Magistrate on which he has put his signature which was read over to him and he has proved his signature on the same which has been marked Ext.7. This witness has further stated that he never went to the place of occurrence. He was alone with the Police officer. He has not seen the dead body. Learned Amicus Curiae has further submitted that Budhram Murmu who has been examined P.W.7 has proved his signature on the confessional statement of Thonga which has been marked Ext.5/(i). The statement of this witness recorded by the Magistrate has been proved and marked Ext. 8/(i). This witness has also stated that as per the direction of the Police he has put his signature. The content has never been read over by the Police to him. He has no knowledge about the accused persons, rather at that time only police officers were present. Sagu Sabar, informant of the case has been examined as P.W.8. He has reiterated his statement made in the Fardbeyan showing that while he was returning from the Haat Tagar Bazar at 4 P.M. in the way he saw his uncle Ruiba Sabar who gave rice to him to take it at his home and subsequently in the way he found Dhunda Sabar, where his daughter Tulsi was also there. He has reiterated his statement made in the Fardbeyan showing that while he was returning from the Haat Tagar Bazar at 4 P.M. in the way he saw his uncle Ruiba Sabar who gave rice to him to take it at his home and subsequently in the way he found Dhunda Sabar, where his daughter Tulsi was also there. All these persons have taken country made liquor. Dhunda Sabar was in intoxicated condition and as such they could not lift him and after leaving him, the witness along with Tulsi Sabar, (daughter of Dhunda Sabar) came to the house. In the morning when search was made, at Kashigoda Dumri they have found the dead body of Dhunda having injury on the head. At some distance the dead body of Ruiba Sabar was also found having injury and blood was oozing from the nose. This witness has further stated that Chaukidar Sudam has disclosed to them that these two accused persons have killed Thonga Kudada. This witness has categorically stated that he has not seen the occurrence through his own eyes. Learned Amicus Curiae has further submitted that Tulsi Sabar, daughter of Dhunda Sabar has been examined as P.W.9. She has also claimed that she has not seen the occurrence. Sumitra Sabar has been examined as P.W.10. She has also stated that she saw two dead bodies lying at the bank of river, adjacent to each other having injury on waist, back and head. Dhunda Sabar's dead body was found at a distance, who is brother-in-law of this witness. This witness has further stated that Chaukidar 4/4 Sudam has disclosed to them that these two accused persons have killed them. Runja Sabar has been examined as P.W.11. He is maternal nephew of the deceased and has categorically stated that he has no knowledge that who has killed them. Dr. Mohan Singh, Medical Officer has been examined as P.W.12. He has conducted the autopsy on the body dead body of Ruiba Sabar and found the following injuries: Rigor mortis present. Head injury-Bleeding from ear(Rt.) and forehead. Cut injury 4” x 3” x 1½”. Tongue protruded outside mouth. Left arm cut injury 2” x ½” x 1/2” abrasion on right forehead. Death was due to head injury with cartdio-resp. Failure. The post-mortem report bearing signature of Dr. Mohan Singh has been proved and marked Ext.9. Head injury-Bleeding from ear(Rt.) and forehead. Cut injury 4” x 3” x 1½”. Tongue protruded outside mouth. Left arm cut injury 2” x ½” x 1/2” abrasion on right forehead. Death was due to head injury with cartdio-resp. Failure. The post-mortem report bearing signature of Dr. Mohan Singh has been proved and marked Ext.9. On the same day Medical Officer has also conducted autopsy on the dead body of Dhunda Sabar on 11.10.2011 itself and found following injuries on the dead body : Back of the occipital region of the head 5” x 3 1/2” x 2 1/2” Forehead pressed with bleeding deep wound. Right ear-cut injury 3” x 2” x 2”. Bleeding clot was present. Abrasion on the right leg. Death was due to the head injury cardio resp. failure. Rigor mortis was present. The postmortem report in his handwriting and signature has been proved and marked as Ext.-10. During cross-examination, he has stated that the stomach was empty or had alcoholic material. Medical Officer has not mentioned in the report, rather he has mentioned that undigested food and material was present. Both the injuries are not possible by fall on stone. 12. Learned Amicus Curiae has submitted that from perusal of the evidence brought on record, it is apparent that nobody has seen the occurrence nor the informant or Tulsi Sabar, who has been examined as P.W.8 and P.W. 9, have seen these two appellants as last seen with the deceased, rather as per the prosecution case the entire thing has been disclosed by the Chaukidar Sudam, who has not been examined in this case. Learned Amicus Curiae has submitted that another material which has been brought on record against these appellants are the extra judicial confession before P.W.2, Mangal Kudada, though the extra judicial confession is a weak piece of evidence. Learned Amicus Curiae has relied upon the judgment in the case of Munna Kumar Upadhyay alias Munna Upadhyaya Vs. State of Andhra Pradesh through Public Prosecutor, Hyderabad, Andhra Pradesh as reported in (2012) 6 SCC 174 , paragraphs 56 to 63 and has submitted that on the basis of extra judicial confession of the accused without having any corroborative material, conviction ought not to have been recorded. State of Andhra Pradesh through Public Prosecutor, Hyderabad, Andhra Pradesh as reported in (2012) 6 SCC 174 , paragraphs 56 to 63 and has submitted that on the basis of extra judicial confession of the accused without having any corroborative material, conviction ought not to have been recorded. Learned Amicus Curiae has thus submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law, as such both the accused persons may be acquitted from the charge and conviction under Section 302/34 I.P.C by extending benefit of doubt. 13. Learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor has vehemently argued the case and has submitted that the impugned judgment of conviction and order of sentence has been passed by learned Trial Court on the basis of the materials available on record. Learned State counsel has submitted that in such type of cases, it is very difficult to have positive evidence against the accused persons, as there is no eye witness in the case, and as such on the basis of extra judicial confession of the accused before P.W.2, Mangal Kudada, learned Trial Court has rightly convicted the appellants. Learned counsel for the State, has further submitted that defence has cross-examined all the prosecution witnesses including Investigating Officer, P.W. 5, Bhola Prasad Yadav, but nothing has been elucidated during their cross-examination to dispel the prosecution case. Learned counsel for the State has thus submitted that considering the nature of the offence committed by these two appellants, coupled with the fact that they have confessed their guilt during their extra-judicial confession in presence of Mangal Kudada (P.W.2), Vikash Nayak (P.W.6) and Budhram Murmu (P.W.7), whose signature have been found on the confessional statement of the accused persons and their statements have also been recorded under Section 164 Cr.P.C which has been brought on record, there is no space for the appellant to take benefit of doubt, and as such the impugned judgment of conviction and order of sentence does not warrant any interference by this Court and the same may be upheld and affirmed. 14. Heard learned Amicus Curiae, Mr. Ajit Kumar and learned counsel for the State, Mrs. 14. Heard learned Amicus Curiae, Mr. Ajit Kumar and learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor and perused the materials brought on record including the First Information Report, framing of charge, evidence of 12 prosecution witnesses and 10 prosecution exhibits and the statement of the accused persons recorded under Section 313 Cr.P.C as well as the impugned judgment of conviction and order of sentence. This Court has scrutinized the prosecution evidence. From mere reading of the First Information Report recorded on the basis of the Fardbeyan of the informant, Sagu Sabar (P.W.8), it appears that no body has seen the occurrence. Apart from that all the prosecution witnesses who have been examined in this case have supported the prosecution case except P.W.3, Losro Sardar, who has been declared hostile by the prosecution. None of the prosecution witnesses have claimed themselves to be an eye witness to the occurrence. The evidence brought on record also does not show that these accused/appellants have been last seen with any of the two deceased. The dead body of both the deceased, namely, Dhunda Sabar and Ruiba Sabar have been found at two different places. Learned Trial Court apart from the last seen theory and extra-judicial confession, has also taken note of the other circumstantial evidence while passing the impugned judgment of conviction and order of sentence against these two appellants. So far as the last seen theory is concerned, there is no material evidence on record that any of the prosecution witness has seen these appellants with any of the deceased before the occurrence. So far other circumstantial evidence is concerned the prosecution has not brought on record anything except the extra-judicial confession of the accused in presence of Vikash Nayak, P.W. 6 and Budhram Murmu P.W. 7 recorded by S.I Bhola Prasad Yadav P.W.5 and the same has been proved and marked as Ext.- 5 and 6 and the statement of the witnesses i.e., P.W.6 and P.W.7 and their signatures have been marked as Ext.-7/(i) and 7/1 and 8/(i) and 8. From careful analysis of these materials brought on record and comparing the same with the evidence of P.W. 6, Vikash Nayak, and P.W.7, Budhram Murmu, it appears that P.W. 6, Vikash Nayak has categorically stated at paragraph- 4 of his cross-examination that he has put his signature on the paper prepared in his presence which was written by the Police Officer and at that time he was going to Jamshedpur and the said inquiry was made near Budhakadia. This witness has stated at para-5 that he has not gone to the place of occurrence and at that time he was alone with the Police Officer. At Para-6 this witness has stated that he has no knowledge regarding the house of Thoga Kudada nor he has seen the dead body. Similar statement has been given by P.W.7, Budhram Murmu in whose presence the statement has been recorded by the police and he has put his signature on the same, though this witness has categorically stated in his cross-examination that the paper on which he has put his signature is not prepared before him and he has signed the paper as per the direction of police officer. He is not knowing the accused prior to this and at that time only police officers were present. From perusal of the confessional statement of the accused/appellants, Thongo Kudada and Kanda Ram Purti @ Master Purti and the evidence of P.W.6, Vikash Nayak and P.W.7, Budhram Murmu, it is apparent that presence of both the witnesses at the time of recording of confessional statement is under cloud. If the statement of P.W.6, Vikash Nayak is accepted as a true then presence of Budhram Murmu (P.W.7) at the time of recording confessional statement is doubtful. Similarly if the statement of Budhram Murmu (P.W.7) is taken to be true then presence of Vikash Nayak (P.W.6) at the place where confessional statement of the accused was recorded by the police is seems to be highly doubtful. Similarly if the statement of Budhram Murmu (P.W.7) is taken to be true then presence of Vikash Nayak (P.W.6) at the place where confessional statement of the accused was recorded by the police is seems to be highly doubtful. Under the aforesaid circumstances, considering the contradictory evidence of P.W. 6, Vikash Nayak and P.W.7, Budhram Murmu, this Court is of the view that the prosecution has not brought such clinching evidence in the form of extra-judicial confession of the accused, namely, Thongo Kudada and Kanda Ram Purti @ Master Purti, to be relied upon to fasten the accused with the guilt under Section 302/34 IPC with regard to murder of Dhunda Sabar and Ruiba Sabar. This Court has also taken note of the fact that learned Judicial Magistrate, who has recorded the statement of the witnesses, Vikash Nayak (P.W.6), Budhram Murmu (P.W.7), has also not been examined in this case. Under the aforesaid circumstances, in view of the inherent weakness in the extra-judicial confession of the accused regarding presence of Vikash Nayak and Budhram Murmu, this Court is of the view that putting reliance upon the statement of the witnesses, Vikash Nayak (P.W.6) and Budhram Murmu (P.W.7) recorded under Section 164 Cr.P.C which have been proved and marked as Exts.-7/(i) and 8 respectively was fallacious for the learned Trial Court in convicting the appellant under Section 302/34 IPC. This Court has also taken note of the fact that none of the witnesses are eye witnesses even the Investigating Officer who has been examined as P.W. 5 has categorically stated that he has submitted charge-sheet as per the direction of the superior officer. He has categorically stated that he has not found any of the witnesses to be an eye witness to the occurrence, rather on the basis of the extra-judicial confession of the accused which was recorded by him, he has submitted the charge-sheet though he has not collected any material at the place of occurrence as stated by him in paragraph-15. This Court has taken note of the fact that no material has been brought on record which can be said to be a corroborative material for placing reliance upon such extra-judicial confession. This Court has taken note of the judgment relied upon by learned Amicus Curiae in the case of Munna Kumar Upadhyay alias Munna Upadhyaya(supra), paragraphs 56 to 63 quoted as under: “56. This Court has taken note of the judgment relied upon by learned Amicus Curiae in the case of Munna Kumar Upadhyay alias Munna Upadhyaya(supra), paragraphs 56 to 63 quoted as under: “56. This Court has had the occasion to discuss the effect of extra-judicial confessions in a number of decisions. In Balwinder Singh v. State of Punjab this Court stated the principle that: (SCC p. 265, para 10) “10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.” 57. In Pakkirisamy v. State of T.N. the Court held that: (SCC p. 162, para 8) “8. … It is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession.” 58. Again, in Kavita v. State of T.N. the Court stated the dictum that: (SCC p. 109, para 4) “4. There is no doubt that convictions can be based on extra-judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made.” 59. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in State of Rajasthan v. Raja Ram stated the principle that: (SCC p. 192, para 19) “19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.” The Court further expressed the view that: (SCC p. 192, para 19) “19. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.” The Court further expressed the view that: (SCC p. 192, para 19) “19. … Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused….” 60. In Aloke Nath Dutta v. State of W.B., the Court, while holding that reliance on extra-judicial confession by the lower courts in absence of other corroborating material, was unjustified, observed: (SCC pp. 265-66, paras 87 & 89) “87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration. * * * 89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof.” 61. Accepting the admissibility of the extra-judicial confession, the Court in Sansar Chand v. State of Rajasthan held that: (SCC p. 611, paras 29-30) “29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v. State of U.P., Sivakumar v. State (SCC paras 40 and 41), Shiva Karam Payaswami Tewari v. State of Maharashtra and Mohd. Azad v. State of W.B.] 30. [Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v. State of U.P., Sivakumar v. State (SCC paras 40 and 41), Shiva Karam Payaswami Tewari v. State of Maharashtra and Mohd. Azad v. State of W.B.] 30. In the present case, the extra-judicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872.” 62. Dealing with the situation of retraction from the extra-judicial confession made by an accused, the Court in Rameshbhai Chandubhai Rathod v. State of Gujarat held as under: (SCC pp. 772-73, para 53) “53. It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless, the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true.” 63. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. [Ref. Sk. Yusuf v. State of W.B. (SCC pp. 762-63, para 28) and Pancho v. State of Haryana.]”. 15. Apart from the Chaukidar, Sudam who has disclosed things before Sumitra Sabar and others, that these accused persons have killed the victims there is absence of any corroborative material. This Sudam Choukidar has not been examined in this case. Neither Tulsi Sabar, daughter of the deceased and Sagu Sabar, informant of this case who have been examined as P.W. 9 and P.W.8 respectively have assigned any reason or motive against these appellants for killing the deceased. This Sudam Choukidar has not been examined in this case. Neither Tulsi Sabar, daughter of the deceased and Sagu Sabar, informant of this case who have been examined as P.W. 9 and P.W.8 respectively have assigned any reason or motive against these appellants for killing the deceased. As per the evidence of the informant Sagu Sabar, P.W. 8 in paragraph-3 he has categorically stated that Chaukidar, Sudam has disclosed before them that these two accused persons have killed them, though F.I.R was lodged against two other named accused Runja Sabar and Thori Sabar persons. In paragraph-4 this witness has further stated that as the money was not returned by the deceased as such both have been killed by the accused persons. Sumitra Sabar, wife of Ruiba Sabar has been examined as P.W. 10. She has also not alleged any motive against these accused persons, rather she has also stated that Sudam Chaukidar has disclosed to her that they have killed the deceased. Under the aforesaid circumstances, in view of no other legal evidence against these appellants and that extra-judicial confession is an inherently weak type of evidence which has not supported by any corroborative material brought on record coupled with the fact that Sudam Chaukidar has not been examined in this case, it is not safe to base their conviction upon such material. On re-appreciation of the evidence brought on record by the prosecution, we find that there is no foundation to sustain the last seen theory. Moreover, motive has also not been proved. As such, this court has reason to interfere with the impugned judgment of conviction and order of sentence. Accordingly, the same is hereby set aside. The accused/appellants are hereby acquitted from the charge and conviction under Section 302/34 I.P.C The accused/appellant no. 1, Thongo Kudada, who is in custody is directed to be released at once, if not wanted in any other case. So far the accused/appellant no.2, Kanda Ram Purti @ Master Purti is concerned, who is on bail, he is discharged from the liability of his bail bond. 16. The criminal appeal is allowed. Let Lower Court Record be sent to the concerned Trial Court. 17. Before parting with this judgment, this Court appreciates the assistance provided by learned Amicus Curiae, Mr. Ajit Kumar. 16. The criminal appeal is allowed. Let Lower Court Record be sent to the concerned Trial Court. 17. Before parting with this judgment, this Court appreciates the assistance provided by learned Amicus Curiae, Mr. Ajit Kumar. The Secretary, Jharkhand High Court Legal Services Committee is directed to bear the admissible legal remuneration to learned Amicus Curiae within 4 weeks from the date of production of the certified copy of this judgment along with application.