JUDGMENT : (Pankaj Purohit, J.) This appeal preferred under Section 374 read with 389 of the Code of Criminal Procedure, 1973 (for short “the Code”) is directed against judgment and order dated 16/17.08.2013, passed by learned Sessions Judge, Pithoragarh in Sessions Trial No. 17 of 2012, State Vs. Banwari Lal, whereby the said court, on conclusion of trial held the appellant guilty for the offence under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life, with a fine of Rs.20,000/-, and in default of making payment of fine the convict was directed to undergo six months additional simple imprisonment. 2. Facts of the case, in brief, are that on 17.06.2012 complainant P.W.1-Ganesh Dhami made a complaint (Ex. Ka-1) to Police Station Didihat with allegations that he and his cousin Deepak Dhami used to do labour work and were residing in the house of Prithawi Raj Singh Chufal; on 16.06.2012 he had gone to his work leaving behind his cousin; when he came back in the morning on 17.06.2012 at 06:30 A.M., he found his cousin lying on bed with a severe injury on his forehead with profuse bleeding; he informed his landlord and with help of his 3-4 associates, he took his injured cousin to Didihat hospital, doctors thereafter referred the injured to District Hospital, Pithoragarh. Accordingly, he took his brother to the said hospital, where his brother was declared brought dead; previously a labour from Lakhimpur Kheri (the accused) used to live with them, in the same room. However, 4-5 days before he had a quarrel with the deceased, therefore, he had doubt that the accused might have killed his cousin. 3. On the basis of the aforesaid FIR a criminal case was registered in Police Station Didihat on lodging of chick FIR (Ex. Ka-15) under Section 302 of IPC against unknown persons on 17.06.2012 at 13:30 hours. 4. The matter was investigated and the Investigating Officer arrested the accused, collected evidence against him, sent the body for conducting post-mortem examination, and on culmination of investigation, submitted a charge-sheet against him, in the court under Section 302 IPC. The Investigating Officer also sent the blood samples for forensic examination; the report given by the Forensic Science Laboratory, Dehradun, Uttarakhand is (Ex. Ka-17) on record. The Investigating Officer after completing the investigation submitted a charge-sheet (Ex. Ka-19) against the appellant. The Investigating Officer also sent the blood samples for forensic examination; the report given by the Forensic Science Laboratory, Dehradun, Uttarakhand is (Ex. Ka-17) on record. The Investigating Officer after completing the investigation submitted a charge-sheet (Ex. Ka-19) against the appellant. After complying with provision of 207 of the Code i.e., supplying copies of documents collected during investigation, the case was committed to the court of Sessions. 5. Vide order dated 06.10.2012 learned Sessions Judge, Pithoragarh proceeded to frame charges against the appellant under Section 302 IPC, which was denied by the appellant, and he claimed to be tried. The prosecution in order to prove its case produced as many as nine witnesses’ viz. P.W.1 Ganesh Dhami (informant), P.W.2-Prithawi Raj Singh Chufal (landlord of the deceased), P.W.3-Govind Singh, P.W.4-Dr. Sanjeev Kumar, who conducted post-mortem, P.W.5-Dinesh, P.W.6-S.I. Kishan Ram, P.W.7-Constable Deepak Jalal, P.W.8-S.I. Vishan Ram Arya and P.W.9-Uday Pratap Singh, the Judicial Magistrate. 6. The trial court on conclusion of trial, found the case to be proved against the appellant, beyond all reasonable doubts; and accordingly, the said court convicted and sentenced the accused as mentioned in para no.1 of this judgment. Feeling aggrieved, the present appeal has been preferred. 7. Before proceeding any further, we would like to advert the evidence led by the prosecution witness. Feeling aggrieved, the present appeal has been preferred. 7. Before proceeding any further, we would like to advert the evidence led by the prosecution witness. P.W.1- Ganesh Dhami deposed in his testimony that deceased Deepak Dhami was his cousin; at the time of the incident deceased and appellant used to work for contractor-Chufal, who had given one room to them in his house where they lived together; on 16.06.2012 he had gone with the canter of contractor Prithawi Raj Singh Chufal for ferrying the sand and concrete towards Thal leaving behind his cousin-Deepak; on 17.06.2012 at 06:00-06:30 A.M. he came back in his room and found the doors of the room ajar; as he entered he found his cousin Deepak lying unconscious with injuries on his head and face, with profuse bleeding; he informed his landlord Prithawi Raj Chufal and with help of his associates he took the injured to Didihat Government Hospital, where the Doctor referred the injured to Government Hospital Pithoragarh however, the Doctors at Pithoragarh declared the injured brought dead; 4-5 days before the incident, appellant had left the room and started living somewhere else and 2-3 days before the incident the appellant had a quarrel with the deceased in his presence; in that quarrel, the deceased had given beating to the accused Banwari Lal; on 15.06.2012 at 10:00-11:00 A.M. The deceased told him that appellant had extended threat to the deceased; therefore he apprehended that accused might have killed him. 8. P.W.2-Prithawi Raj Singh Chufal has mainly stated that he reached at the spot on the information given by P.W.1. He has stated that the accused was taken to hospital, where he succumbed to his injuries. He wrote the F.I.R (Ex. Ka-1) at the instance of P.W.1. 9. P.W.3-Govind Singh did not support prosecution’s story and was declared hostile by the prosecution. 10. P.W.4-Dr. Sanjeev Kumar is the Medical Officer, who conducted the post-mortem examination on the body of the deceased. He found the ante-mortem injuries caused by some hard blunt object. This witness has proved the post-mortem report (Ex. Ka-5). 1. Lacerated wound 6 cm. long bone deep over forehead in middle with six stitches in place. On dissection, Haemotoma present in underlying tissues. Parietal bone # beneath. 2. Lacerated wound 3 cm. long below left eye, three stitches in place. 3. Lacerated wound 3 x 1 cm. This witness has proved the post-mortem report (Ex. Ka-5). 1. Lacerated wound 6 cm. long bone deep over forehead in middle with six stitches in place. On dissection, Haemotoma present in underlying tissues. Parietal bone # beneath. 2. Lacerated wound 3 cm. long below left eye, three stitches in place. 3. Lacerated wound 3 x 1 cm. in front of left ear, three stitches in place. 4. Lacerated wound 2 cm. on left pinna. 5. On dissection, frontal parietal and temporal bone of scalp fracture on left side. 6. Contusion 6 x 5 cm. area over left side of the face with depressed fracture of maxillury bone. 7. Mandible bone ramus fractured. Teeth loss. Bleeding present. Gum lacerated. In the opinion of the Medical Officer cause of death was Coma as a result of anti-mortem head injury. 11. P.W.5-Dinesh also did not support the prosecution’s story and was declared hostile. 12. P.W.6-S.I. Kishan Ram is a Police witness, who has mainly proved the inquest report, preparation of necessary documents i.e., sketch of body, report for conducting the post-mortem report etc. 13. P.W.7-Constable Deepak Jalal is also a witness. He has proved preparation of arrest memo (Ex. Ka-12) of accused. He has also proved recovery of blood stained stone, which was recovered at the instance of appellant. This recovery was marked as Ex. Ka-13. 14. P.W.8-S.I. Vishan Ram Arya is the Investigating Officer of the case. This witness has proved modalities of the investigation, preparation of necessary documents, inspection of place of occurrence, arrest of appellant, recovery of murder weapon (stone), regarding the statement of complainant P.W.3-Govind Singh and P.W.5-Dinesh under Section 164 of the Code before the Judicial Magistrate, Didihat and finally submission of charge-sheet (Ex. Ka-18) against the appellant, in the court, on culmination of investigation. 15. P.W.9-Uday Pratap Singh is the Judicial Magistrate, Didihat. This witness has proved that on 19.06.2012, he recorded the statements of the informants-P.W.1, P.W.3 and P.W.5 under Section 164 of the Code and proved the same. Thereafter, the statement of the appellant was recorded under Section 313 of the Code, in which, he submitted that he was innocent; he has falsely been implicated by the Police, in connivance with the informant; however, no evidence was led by him in his defence. 16. Thereafter, the statement of the appellant was recorded under Section 313 of the Code, in which, he submitted that he was innocent; he has falsely been implicated by the Police, in connivance with the informant; however, no evidence was led by him in his defence. 16. We have heard learned counsels for either of the parties and carefully perused the oral or documentary evidence, available on record, with the help of learned counsel for the parties. 17. Learned counsel for the appellant has argued that it was a case of blind murder, nobody had witnessed the incident and appellant was victim of false implication. The accused is innocent and has falsely been roped in with this crime. It is, emphatically, argued by learned counsel for the appellant that appellant was convicted in a case, where it can be said that there is neither circumstantial evidence nor any direct evidence, on record, against him. The appellant was convicted only on the basis of conjectures and surmises. She further, strenuously, argued that the prosecution, in order to make out a case against the appellant, recorded the statement of P.W.3-Govind Singh under Section 164 of the Code before the learned Judicial Magistrate, Didihat. P.W.3-Govind Singh was a witness of the fact and that he had last seen the appellant and the deceased together in the night of the incident and in order to take abundant caution his statement was recorded under Section 164 of the Code before the Magistrate. But P.W.3-Govind Singh did not support the evidence and turned hostile. Similarly, P.W.5-Dinesh was also produced before P.W.9-Uday Pratap Singh, Judicial Magistrate, who recorded the statement of P.W.5-Dinesh (Ex. Ka-20) under Section 164 of the Code. P.W.5-Dinesh was the witness of the fact that extra judicial confession was made by the appellant to him, saying that “I was in the same room at Didihat, where there was Deepak Nepali” and he told that “I am coming after hitting stone on the head of Deepak and do not tell it to anyone, otherwise he will get his payment seized and would beat him”, but this P.W.5-Dinesh also turned hostile during trial and did not support the prosecution. 18. Learned counsel for the appellant argued that the trial court despite these two witnesses having been turned hostile relied upon the statement recorded under Section 164 of the Code of these two witnesses and convicted the appellant. 18. Learned counsel for the appellant argued that the trial court despite these two witnesses having been turned hostile relied upon the statement recorded under Section 164 of the Code of these two witnesses and convicted the appellant. Thus, according to learned counsel for the appellant the conviction is perverse and cannot sustain and the appellant is entitled to be acquitted of the charges. 19. Learned counsel for the appellant also disputed the recovery of murder weapon (stone) at the pointing out of appellant as there was no disclosure statement recorded by the Investigating Officer to which his evidence is quite silent. 20. Per-contra, Mr. Amit Bhatt, learned Deputy Advocate General for the State supported impugned judgment and conviction of the appellant. It has been argued by learned counsel for the State that P.W.3-Govind Singh witness of last seen and P.W.5-Dinesh to whom the appellant told about hitting the deceased on his head, turned hostile, during trial, but mere turning of these witnesses hostile would not bring any respite to the appellant, for the reason that the prosecution examined P.W.9-Uday Pratap Singh, during trial, who was Judicial Magistrate, Didihat before whom, 164 of the Code, statements of these two witnesses were recorded. It is further submitted by learned counsel for the State that P.W.9-Uday Pratap Singh testified during the trial that he recorded statement of these two witnesses:-P.W.3-Govind Singh and P.W.5-Dinesh Kumar under Section 164 of the Code. He proved Ex. Ka-20 and Ex. Ka-6, respectively, and also proved his signature on the statements and also stated that P.W.3-Govind Singh and P.W.5-Dinesh put their signature on Ex. Ka-6 and Ex. Ka-20. 21. P.W.9-Uday Pratap Singh, Judicial Magistrate, stated in his evidence that P.W.3-Govind Singh and P.W.5-Dinesh statements were recorded by him and he had recorded what the witnesses told him. He read over the statement under Section 164 of the Code to P.W.3-Govind Singh and P.W.5-Dinesh and it is only thereafter both these witnesses put their signatures in the statements recorded under Section 164 of the Code. 22. He read over the statement under Section 164 of the Code to P.W.3-Govind Singh and P.W.5-Dinesh and it is only thereafter both these witnesses put their signatures in the statements recorded under Section 164 of the Code. 22. It is also argued by learned counsel for the State that P.W.3-Govind Singh and P.W.5-Dinesh did not deny their signatures on the statements and it is submitted by him that both witnesses resiled from their earlier statements during trial would make no difference, in view of the every factual aspect, particularly, in the light of the evidence of P.W.9-Uday Pratap Singh, Judicial Magistrate, Didihat. 23. It is argued by learned Deputy Advocate General for the State that the deceased was last seen with the appellant by P.W.3-Govind Singh and appellant made extra judicial confession of his guilt to P.W.5-Dinesh. 24. Having heard learned counsel for the parties and from perusal of the record, which falls for consideration to this Court is the effect of the resilement of P.W.3-Govind Singh and P.W.5-Dinesh from their earlier statement recorded by P.W.9-Uday Pratap Singh, Judicial Magistrate, Didihat. In order to appreciate the effect of the evidence of P.W.5-Dinesh, the statement given by him (Ex. Ka-6) under Section 164 of the Code are extracted below:- ^^eSa euMk esa cuokjh ds lkFk yscjh dj jgk FkkA 16-06-2012 dke ls NqV~Vh ds ckn ekfyd ls iSlk ysdj cktkj vk x;k mlds ckj og jkr Hkj cktkj esa jgkA lqcg 6 cts euMk igq¡pk rks geus iwNk rks blus dgk eS MhMhgkV es ml dejs Fkk tgk¡ usikyh nhid FkkA vkSj mlus dgk fd eS nhid ds lj ij iRFkj ekj vk jgk g¡wA ;g ckr fdlh ls uk dgukA ojuk rqe yksxksa dh iSesUV ejok n¡wxk vkSj rqe yksxksa dks ek#¡xkA^^ [I was doing labour work with Banwari at Bhanada. On 16.06.2012, taking wages from his employer after duty came to market, after that he stayed in the market during whole night. Reached Bhanada at 06:00 in the morning and on our asking, he told that “I was in the room in Didihat where Deepak Nepali was there” and he told that “I am coming after hitting stone on the head of Deepak. Don’t tell this to anyone otherwise I would stop your payment and would kill you.] 25. Reached Bhanada at 06:00 in the morning and on our asking, he told that “I was in the room in Didihat where Deepak Nepali was there” and he told that “I am coming after hitting stone on the head of Deepak. Don’t tell this to anyone otherwise I would stop your payment and would kill you.] 25. The statement of P.W.5-Dinesh bears his signature, which he admitted and also bears signature of P.W.9-Uday Pratap Singh, Judicial Magistrate, Didihat before whom the statements were recorded. By this statement prosecution wanted to prove that deceased-Deepak Dhami was with appellant-Banwari Lal, on the previous night of the incident and confessed his guilt of hitting deceased-Deepak to PW5-Dinesh Kumar. He also said to have threatened him not to disclose this information to anyone. There is no one before whom this confession was made by appellant to PW5-Dinesh Kumar and why would he make such confession and what PW-5 did after this information. 26. Statements of P.W.3-Govind Singh were also recorded earlier by P.W.9-Uday Pratap Singh, Judicial Magistrate, Didihat. In his statement (Ex. Ka-20) under Section 164 of the Code PW.3-Govind Singh stated as hereunder:- “In the night of 16.06.2012 at 09:00 P.M. deceased-Deepak Dhami came for dinner at my shop, Banwari Lal had also come with him; Banwari Lal had his dinner later, Deepak had earlier; both were drunk, they started quarrelling; I heard that there was a fighting in the room before five days; they were talking about some incident there, Banwari Lal was saying that you beat him and I will also kill you, if I got a chance, coming from Nepal you are bossing around; one day I will kill you. I said to them not to create nuisance in the shop and go from there. Both used to live together five days back. Thereafter I became busy with dinning the people. Next day, in the morning, deceased-Deepak did not come. I sent his brother-Ganesh for him, who found him injured and unconscious, from where we rushed him to hospital”. 27. I said to them not to create nuisance in the shop and go from there. Both used to live together five days back. Thereafter I became busy with dinning the people. Next day, in the morning, deceased-Deepak did not come. I sent his brother-Ganesh for him, who found him injured and unconscious, from where we rushed him to hospital”. 27. From statement of P.W.3-Govind Singh recorded under Section 164 of the Code, it transpired that “on 16.06.2012 at 09:00 P.M. deceased-Deepak Dhami had come to his shop with accused Banwari Lal; deceased-Deepak Dhami had his dinner later accused-Banwari Lal had his meals; both were inebriated; later they started quarrelling; he had learnt that five days before the day, they had a quarrel in their room and they were quarrelling on the same issue at his shop; the accused Banwari was saying to him that deceased was bullying despite having come from Nepal and had beaten the accused, therefore, he would kill the deceased one day whenever he got an opportunity; therefore, he told the quarrelling duo not to create mess at his shop; thereafter he became busy in serving dinner (to his customers); next day deceased-Deepak did not turn up, and on being sent for, the deceased was found injured and in an unconscious state; thereafter they took him to the hospital.” 28. Even If we take even this evidence to be true and, on scrutiny, if we reach to this conclusion that the deceased was last seen with the appellant, only one of the circumstances - last seen would be proved. On deeper scrutiny of the hostile evidence of P.W.-3-Govind Singh, would it be sufficient to bring home charges against the appellant, is to seen. He was last seen with deceased on 16.06.2012 at 09:00 P.M. The deceased was found injured at 06:00-06:30 A.M. and it was not the case that both stayed together during night. There is no proximity between the last seen and when the deceased was hit. During this period anybody could commit crime with deceased. In this view of the matter, this place of evidence is very weak and would only create a suspicion. It is not safe to convict appellant on this weak evidence. 29. There is no proximity between the last seen and when the deceased was hit. During this period anybody could commit crime with deceased. In this view of the matter, this place of evidence is very weak and would only create a suspicion. It is not safe to convict appellant on this weak evidence. 29. So far as evidence of P.W.5-Dinesh, who also turned hostile during trial is scrutinized in the light of his statement recorded under Section 164 of the Code, only this could be said that extra judicial confession was made by appellant to P.W.5-Dinesh, although P.W.5-Dinesh denied the extra judicial confession made to him, during trial, by the appellant. Even if we take this evidence to be true the only fact would emerge from the evidence of P.W.5, on deeper scrutiny, is that an extra judicial confession was made by the appellant to P.W.5-Dinesh, but the question would arise for consideration would it be safe to convict the appellant on this evidence of extra judicial confession? 30. Time and again this question came up for consideration before the Apex Court and the Apex Court on many occasions mandated by saying that this type of evidence of extra judicial confession is a weak kind of evidence. According to the case of the prosecution, though P.W.5-Dinesh made a statement under Section 164 of the Code regarding extra judicial confession made by the appellant to him, by saying “I was doing labour work with Banwari in Bhanda. On 16.06.2012, after work; taking his wages from his master, he came to market where he remained during night. In the morning at 06:00 A.M. he reached back Bhanda, where the appellant told him that he hit Deepak with a stone on his head and told him to not to tell this to anyone, otherwise his payment will be seized and he would beat him”. 31. This statement was retracted by P.W.5-Dinesh during trial. If we see the evidence of extra judicial confession the same is improbable. Even if the version given under Section 164 of the Code does not appears to be plausible and further the same has been retracted, evidence of extra judicial confession in the very nature of things is a weak piece of evidence and it does not inspire confidence to nail the appellant in the alleged evidence. 32. Even if the version given under Section 164 of the Code does not appears to be plausible and further the same has been retracted, evidence of extra judicial confession in the very nature of things is a weak piece of evidence and it does not inspire confidence to nail the appellant in the alleged evidence. 32. The other evidence of P.W.1-Ganesh Dhami is not reliable simply for the reason that his evidence is of such a nature that he only found deceased-Deepak on 17.06.2012 at 06:00 to 06:30 A.M, injured in his room, when he went in the room of deceased. Moreover, P.W.1-Ganesh Dhami is a highly interested witness the cousin of the deceased. 33. The upshot of the aforesaid discussion unerringly points out that the chain of circumstance is not complete which, unerringly, points towards the innocence of the appellant. The prosecution failed to prove the charges against the appellant beyond all reasonable doubts. 34. The appeal is allowed; the judgment and order dated 16/17.08.2013 passed by learned Sessions Judge, Pithoragarh is hereby set aside. The appellant is acquitted of the charges under Section 302 of IPC. 35. The appellant is on bail. He needs not to surrender. His bail bonds are cancelled and sureties are discharged. 36. Let the lower court records be sent back for necessary action.