ORDER Agarwal, J. -- 1. This appeal is filed being aggrieved of the judgment dated 30.9.1995 passed by the learned 2nd Additional Session Judge, Sehore in Sessions Case No.2/1995 (State of M.P. Through Police Station Mandi, Sehore v. Manoj S/o Ganesh Ram Rathore and Shiv Narayan S/o Amar Singh Rathore. Learned trial Court convicted the appellants under section 302 IPC with life imprisonment and fine of Rs.5,000/- each with default stipulation of 6 months simple imprisonment. 2. Brief facts of the present case are that on 11.12.1994 one Premnarayan, Chowkidar, (PW-1) had given intimation to the police that dead body of Munna was lying in the fields of Ajay Rathore. Police had recorded marg intimation No.38/1994 vide Ex.P-4 and during marg investigation had recorded statements of one Ramesh Chand Kushwaha (PW-7), brother of the deceased Munna. These statements were recorded on 14.12.1994, when Ramesh Chand had informed that accused Manoj and Shiv Narayan on account of some altercation in relation to money transaction had committed murder of Munna at Subhash school ground in the presence of witnesses Dev Prasad (PW-8) and Kishorilal (PW-9) by strangulating him and causing injuries with an object like ‘Pocker’. 3. On such intimation, I.O. of the case, Vijendra Pal Singh (PW-13) had reached Subhash school ground where he had found accused persons in the company of witnesses Dev Prasad and Kishorilal. At Subhash school ground itself, memorandum under section 27 Evidence Act was prepared and a ‘Pocker’ was seized from a place near Machhli Pull. On completion of investigation, charge-sheet was filed in the Court of Chief Judicial Magistrate, Sehore from where the case was committed and was registered as Sessions Case No.2/1995. 4. Shri Ishan Datt, learned counsel for the appellants submits that evidence of Ramesh Chand Kushwaha (PW-7), Dev Prasad (PW-8) and Kishorilal (PW-9) is not trustworthy and the conviction of the appellants is based on surmises and conjectures, therefore, it is liable to be set aside. 5. Reliance is placed on the judgment of Hon’ble Supreme Court in the case of Pritinder Singh @ Lovely v. State of Punjab [ (2023) 7 SCC 727 ] , where relying on para 23, it is submitted that extra-judicial confession should be credible and it is held that Courts below erred in relying on the extra-judicial confession made to PW-2. 6. 6. Similarly, reliance is also placed on the judgment of Hon’ble Supreme Court in the case of Pawan Kumar Chourasia v. State of Bihar [(2023) SCC Online SC 259] on the aspect of evidentiary value of extra-judicial confession. 7. Reliance is also placed on the judgment of Supreme Court in the case of Vijay Shankar v. State of Haryana [ (2015) 12 SCC 644 ] where it is held that in cases based on circumstantial evidence, prosecution relied on circumstances of : (i) motive; (ii) last seen theory; (iii) extra-judicial confession; and (iv) recovery of blood stain clothes and knife held that circumstances not proved beyond reasonable doubt and reversed the conviction. 8. Aforesaid judgment has laid down the principles when conviction can be based solely on the circumstantial evidence and it is submitted that none of these principles are applicable. It is further held that extra-judicial confession is a weak piece of evidence and Courts are to view it with greater care and caution. 9. Thus placing reliance on these three judgments, it is submitted that conviction of the appellants on the basis of extra-judicial confession cannot be upheld and is liable to be reversed. 10. Shri G.S. Thakur, learned Public Prosecutor for the State, in his turn, submits that extra-judicial confession has its own value and that cannot be undermined merely at the instance of the appellants. 11. After hearing learned counsel for the parties and going through the record. Premnarayan (PW-1) is not only the author of marg intimation but also of village Chowkidar. He has stated that two and a half - three months ago, he was going to sehore from his village Bijora by the side of railway line. Near railway cabin, he met Ganesh, who informed him that Amrit Lal is lying in a wheat field, they had gone to the fields to see the dead body of Amrit Lal. After seeing the dead body, he had given intimation to the police, when S.H.O. had come along with the Head Constable to the spot and prepared Lash Panchnama. There were small holes on the stomach, chest and near the throat. He had not identified the dead body but later on it was revealed that whose dead body it was. 12. Ramchandra (PW-2) has stated that Amrit Lal is his grandfather and witness Ajay Rathore is his brother. There were small holes on the stomach, chest and near the throat. He had not identified the dead body but later on it was revealed that whose dead body it was. 12. Ramchandra (PW-2) has stated that Amrit Lal is his grandfather and witness Ajay Rathore is his brother. He had also seen the dead body when he had gone to take a bath on a well situated in the fields. He had come to know that dead body was that of Munna. 13. Santosh Kumar Rathore (PW-3) has turned hostile. He has stated that though he knows the appellants but they had never approached him before. 14. Dr. Hari Om Gupta (PW-4), is the Senior scientific Officer at Forensic Science Lab, Sehore. He stated that he had received intimation from the police control room that a dead body was lying in the fields of Amrit Lal where he had reached at about 12:00 noon for inspection. He had inspected the dead body. There was blood loss from mouth and nose. There were three pointed injuries near the eyebrows. On removal of Shirt, he had seen several pointed injuries on the stomach and they were corroborating with the corresponding holes in the Shirt. He had advised that on arrest of the accused and seizure of suspected weapon, it should be subjected to medico legal examination. He had also suggested that the threads which were attached to the Shirt and which may be found on the object of offence should also be subjected to FSL examination along with the clothes of the accused. 15. G.S. Thakur, A.S.I., (PW-5) stated that he had registered the marg. 16. Bharose ( PW-6) is the Police Constable and he has stated that he had sent the body of deceased Munna for postmortem. 17. Ramesh Chand Kushwaha (PW-7) has stated that decesed was his real brother, his name is Munna @ Ram Narayan, he also identified accused Manoj and Shiv Narayan. He stated that he is a vegetable seller at old bus stand, Munna was also a vegetable seller and use to sell vegetables on a handcart. Munna was residing with him along with his wife and children. On 10.12.1994 at about 4:00 pm when he was at home, Munna was also present, then this witness had come to his shop, thereafter he does not know as to where Munna had gone. Munna was residing with him along with his wife and children. On 10.12.1994 at about 4:00 pm when he was at home, Munna was also present, then this witness had come to his shop, thereafter he does not know as to where Munna had gone. When he reached home at 9-10 pm, then he had slept after having his meals. In the morning he had opened his shop when his mother had preceded him and wife followed him. At about 8:15, Monoj had come to his shop and had said that dead body of Munna was lying near the railway cabin. Then this fact was narrated to the mother of this witness Ramesh Chand, then he had reached the railway cabin on the bicycle of Manoj, dead body was not found near the cabin, then Manoj said that it may be good that if dead body is not found and, thereafter, this witness stated that after four days of the incident Manoj and Shiv Narayan had come to Subhash school where Kishorilal and Dev Prasad were sitting with him when Manoj and Shiv Narayan had made extra-judicial confession in front of these three persons saying that they committed a mistake and they be saved. 18. Dev Prasad (PW-8) has turned hostile. He has neither supported the extra-judicial confession nor seizure of any object in his presence. Similarly. this witness also stated that all the documents which have been signed by him were signed at police station and accused persons were not present at the police station. He admitted that he belongs to Kachhi community and Ramesh Chand as well as Kishorilal are also of the same community. He also admitted that deceased Munna’s father-in-law is Revti Patel whereas name of father-in-law of this witness Dev Prasad is Babu Lal. Revti Patel and Babulal are real brothers. 19. Kishorilal (PW-9 too has not supported the prosecution case. He stated that police had not recorded any statements of Manoj in front of him though he admitted his signatures on Ex.P-14. We denied seizure of Pocker at Machhli Pul. Thus, PW-8 and PW-9 have not supported the prosecution case. 20. Chanda Bai (PW-10) is the wife of the deceased, she has stated that at about 6-6:15 pm accused persons came and took her husband. We denied seizure of Pocker at Machhli Pul. Thus, PW-8 and PW-9 have not supported the prosecution case. 20. Chanda Bai (PW-10) is the wife of the deceased, she has stated that at about 6-6:15 pm accused persons came and took her husband. At that point of time her husband was wearing a Pant-Shirt and was putting on a Shawl around him, he was also wearing a watch. Her husband had not returned to the house for the whole night. In the morning, Manoj had informed her brother in law that he had seen the dead body of munna near railway cabin. 21. In cross-examination this witness has stated that at the shop she had not met Manoj. She admitted that her sister in law, mother in law and brother in law had informed as to what Manoj had said. This witness also admitted that when dead body was not found, then her brother in law had come to house before leaving for Suhagpur where she had narrated this fact to her brotherin- law that Manoj and Shiv Narayan had taken Munna along with them. However, she admitted that her statements were recorded after thirteen days of the murder of her husband. 22. Puniya Bai (PW-11) is sister-in-law of Munna. This witness admitted that Munna had informed her that he may go to Suhagpur, when she has said that he can go to Sohagpur as a result of which her husband had gone to Suhagpur in search of Munna, later on, police personnel had come to her house informing her that they had recovered dead body of Munna. She has contradicted Chand Bai (PW-10) stating that before her husband left for Sohagpur, there was no communication with her Devrani. She had not informed anything to her. 23. Dr. S.S. Tomar (PW-12), is the Assistant Surgeon, who had conducted postmortem and found following injuries : 1. Abrasion Bruise -- 4 on left side and 3cm on right side of neck on its ant. ospect with a distance of 2-3 cms each in direction above downward with in area 1 1/2" distal to midline of neck on both side. Size -- about 1 1/2 cm to 3/4 cm x 1 cm to 1/2 cm superficial loss of skin, as dark bluish ecchymosis (colour) 2. ospect with a distance of 2-3 cms each in direction above downward with in area 1 1/2" distal to midline of neck on both side. Size -- about 1 1/2 cm to 3/4 cm x 1 cm to 1/2 cm superficial loss of skin, as dark bluish ecchymosis (colour) 2. Abrasion -- 3 in nos present on left shoulder, size 1 1/2 cmx 1 cm, 1cm x 3/4 cm, 1cmx1/2 cm, with a distance of 2" in a&b and 1" in b and c from each other with superficial loss of skin, dark bluish in colour. 3. Abrasion 1" x 3/4" present on right knee, on its ant. ospect, bluish in colour. 4. Abrasion 1" x 1/2" present on left knee just below the patella on its ant ospect with some character as of No.3 5. Abrasion - 2" x 1 1/2" present on ulnar side of right hand with dark bluish ecchymosis (colour). 6. Bruise with Abrasion- 3/4" x 1/2" present on right thumb on its distal phalanges with bluish ecchymosis (colour). 24. Dr. S.S. Tomar (PW-12) has admitted in cross-examination that he had started postmortem on 11.12.1994 at quarter to 5:00. In his opinion, deceased had died immediately on sustaining injuries after quarter to 5:00 in the evening. He admitted that police had not sent any weapon for his opinion asking him to show as to whether said weapon could have caused injuries as were sustained by the deceased or not. 25. Vijendra Pal Singh (PW-13) is the SHO, Dorha, who deposed that when he had come back to the police station it was informed that at the instance of Chowkidar Premnarayan, marg intimation 38 was recorded under section 174 by ASI, G.S. Thakur, then Ramesh Chand Kushwaha had visited the police station informing that the persons who had killed his brother had given a extra-judicial confession. This intimation was recorded in Rojnamcha Sanha 739 on 14.12.1994 at about 6.:30. This Rojnamcha was marked as Ex.P-23 and it contains signature of Ramesh Chand Kushwaha. This witness has stated that on 14.12.1994 at 8:00 am Manoj s/o Ganesh Prasad Rathore had given his memorandum statements under section 27 of the Evidence Act, Ex.P-14, and had stated that Rs. 250/- which had come in his share are lying in his Pant and he had thrown the Pocker in a Nala close to Machhli Pul from where it was recovered. 250/- which had come in his share are lying in his Pant and he had thrown the Pocker in a Nala close to Machhli Pul from where it was recovered. Accused Manoj Kumar had helped in seizure of two notes of Rs.50 and fifteen notes of Rs.10 each. Similarly, from Shiv Narayan a Shirt was seized which contained blood stains, seizure memo P-15 was made and sum of Rs.250/- was also recovered at his instance. 26. In cross-examination, this witness has admitted that earlier he had recorded memorandum of Shiv Narayan and, thereafter, recorded memorandum of Manoj. He also admitted that before Manoj, stated that Rs.250/- are kept in his pocket, he had already seized that amount. He has explained delay in recovery of Pocker saying that it was recovered at 10:10 after recording memorandum at 8:00 because Manoj had gone on the other side of the Nala where he was searching for the Pocker but when it was not recovered from that side, then he searched for it elsewhere. He admitted that no memorandum was made in regard to recovery of Pocker from Nala. He admitted that he had not put any seal on the bundle of clothes which was recovered from the hospital. He had not put any seal on Ex.P-16, Ex.P-5. He admitted that he had not sent Pocker to the Doctor who had conducted postmortem for his opinion as to whether the injuries sustained by the deceased could have been caused with the said Pocker or not. He admitted that there is a residential colony near the Subhash school ground but he has not made mention of this fact that witnesses had disbursed due to presence of the police and, therefore, he had not employed local witnesses. He admitted that he is narrating this fact on the basis of his memory that local witnesses were not available. There is no documentary evidence to this effect. 27. When evidence of this witness is taken into consideration, then it is evident that, firstly, this witness has not given reason for not recording memorandum of the accused in the presence of local witnesses, secondly, both the witnesses of seizure Dev Prasad (PW-8) and Kishorilal (PW-9) have turned hostile. Kishorilal (PW-9) has clearly stated that seizure memo of Pocker was not prepared at Machhli Pul but all the proceedings were recorded at the police station. Kishorilal (PW-9) has clearly stated that seizure memo of Pocker was not prepared at Machhli Pul but all the proceedings were recorded at the police station. He has further stated that no recovery was made from Shiv Narayan in his presence. He has further stated that no recovery was made from Manoj in his presence. He further stated that no recovery was made from close to the railway cabin. Thus, it is evident that the conviction of the appellants is based on the extra judicial confession of the accused persons allegedly made to the witnesses Ramesh Chand Kushwaha (PW-7), Dev Prasad (PW-8) and Kishorilal (PW-9) at play ground of Subhash school. 28. In cross-examination Ramesh Chand Kushwaha (PW-7) has admitted that Munna was daily drinker, he use to consume alcohol everyday. He also use to indulge in gambling occasionally. He admitted that Munna was sitting close to Mahesh Bakhiya. He admitted that two years ago his servant Prakash had put chillies in his eyes and had beaten him with a knife. He admitted that there was enmity with Prakash. He further admitted that he had given a statement that since he has enmity with Prakash s/o Ramesh Nai, therefore, his interrogation is necessary. He stated that he had given a statement to the police that he has doubt on Manoj, but this is contrary to Ex.D-1, his case diary statements, in which he had expressed suspicious towards Prakash s/o Ramesh Nai. 29. This witness has admitted that Ex.D-1, is recorded in the same language in which he had given his statement. He admitted that Manoj had accompanied him to the house of Lakhanlal Sharma where he had gone after receiving news of death of Munna. He admitted that he had not narrated to the police that Manoj ran away. He admitted that here is omission in this behalf in his case diary statements Ex.D-1 and D-2. In para 10, this witness has further stated that prior to leaving for Suhagpur he had asked his wife Puniya Bai (PW-11), wife of Munna Smt. Chanda Bai, (PW-10) and his own mother Gyasi Bai and had enquired about Munna and they had said that 2-3 days prior Munna was discussing that he may go to Suhagpur, they had also said that they can find out about Munna at place of some relative at Bhopal. Except this neither Puniya Bai nor Chanda Bai or Gyarsi Bai had informed anything to him. Thus, evidence of Chanda Bai (PW-10) that she had last seen Munna in the compnay of the accused persons who had come to her residence to call him is contrary to the record and is nothing but a false statement. 30. Therefore, firstly, nobody had seen Munna in the company of the accused persons, secondly, except for extra-judicial confession, there is no other circumstance pointing towards the guilt of present appellants specially when brother of the deceased Ramesh Chand Kushwaha (PW-7) had enmity with one Prakash Nai and he had expressed his doubt over Prakash but I.O. failed to investigate the matter in that light despite categorical statements of Ramesh Chand Kushwaha (PW-7) in this behalf as are contained in Ex.D-1. 31. Thus, it is clear that neither there is any circumstantial evidence to connect the appellants nor there is an eye witness account. Thus, links in the chain of circumstances are not established except for the so called extrajudicial confession. In the case of Munna Kumar Upadhyaya Alias Munna Upadhyaya Vs. State of Andhra Pradesh Through Public Prosecutor, Hyderabad, Andhra Pradesh , (2012) 6 SCC 174 , Supreme Court has dealt with the circumstances while referring to its earlier judgments like Balvinder Singh Vs. State of Punjab, 1995 supp.(4) SCC 259, wherein it is held that “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.” 32. In the case of Pakkirisamy v. State of Tamil Nadu [ (1997) 8 SCC 158 ], it is held that “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.” 33. In the case of Kavita v. State of Tamil Nadu, [ (1998) 6 SCC 108 ] , the Supreme Court held that “4. there is no doubt that conviction 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. In the case of Kavita v. State of Tamil Nadu, [ (1998) 6 SCC 108 ] , the Supreme Court held that “4. there is no doubt that conviction 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 veracity of the witnesses to whom it is made.” 34. In State of Rajasthan v. Raja Ram, [ (2003) 8 SCC 180 ], it is held that “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 evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.” 35. In the case of Aloke Nath Dutta v. State of West Bengal [ (2007) 12 SCC 230 ], it is held that “confession ordinarily is admissible in evidence. 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. 36. When these aspects are taken into consideration, then neither there is any corroboration nor any compelling circumstance. Both the witnesses Dev Prasad (PW-8) and Kishorilal (PW-9) have turned hostile. Conduct of Ramesh Chand Kushwaha (PW-7) is doubtful. Smt.Chanda Bai (PW-10) though stated that deceased was last seen in the company of the accused but that is not corroborated. Ramesh Chand Kushwaha (PW-7) had expressed doubts on one Prakash Nai, as is evident from Ex.D-1. But unfortunately Ex.D-1 does not contain any date. This is a major lapse on the part of the investigating officer. Admittedly, marg intimation was sent on 11.12.1994. FIR, Ex.P-24, was recorded on 13.12.1994 at 9.25. In this FIR, accused have been shown as unknown. It has come on record that Manoj had informed Ramesh Chand Kushwaha (PW-7) that dead body of his brother is lying near the railway cabin. Manoj had accompanied him to the house of Lakhanlal Sharma. Ramesh Chand Kushwaha (PW-7) has admitted that prior to the incident within his knowledge there was no enmity of Manoj and Shiv Narayan with Munna. 37. Manoj had accompanied him to the house of Lakhanlal Sharma. Ramesh Chand Kushwaha (PW-7) has admitted that prior to the incident within his knowledge there was no enmity of Manoj and Shiv Narayan with Munna. 37. Thus, in absence of any corroboration, so called confessional statements of the appellants Manoj and Shiv Narayan loses its importance specially when Ramesh Chand Kushwaha (PW-7) has admitted that the place from where Pocker was recovered is an open place and police personnel had not given their search prior to search of the Pocker from a open place coupled with the fact that the said Pocker was not referred to the doctor, this Court is of the opinion that neither the confession was voluntarily nor there is corroboration of the truthfulness of the confession and there is no material to show that the extra-judicial confession is true and made voluntarily in a fit state of mind. It has failed to pass the test of credibility and it has also failed to inspire confidence. It is not supported with any other cogent circumstances on record as is held by the Supreme Court in S.K. Yusuf v. State of West Bengal, [ (2011) 11 SCC 754 ]. 38. Similarly, in Vijay Shankar v. State of Haryana (supra) , it is held that extra judicial confession is a weak piece of evidence and Courts are to view it with greater care and caution. For extra judicial confession to form basis of conviction, it should not suffer from any material discrepancies and inherent probabilities. 39. However, in the present case not only there are material discrepancies but inherent improbabilities that why the accused person should come to Subhash school play ground to make extra-judicial confession and coupled with the fact that police failed to interrogate suspected accused Prakash with whom the complainant family had an old rivalry as admitted by Ramesh Chand Kushwaha (PW-7), and that being the ratio of law in Pawan Kumar Chourasiya (supra). That apart, Shirt seized from Shiv Narayan does not contain any blood stains. 40. When tested, then impugned judgment having failed to appreciate the scope and ambit of extra-judicial confession in the correct and appropriate manner as recorded its finding of conviction on inappropriate and inadmissible evidence, therefore, impugned judgment of conviction deserves to be set aside. 41. In the result, the appeal is allowed. 40. When tested, then impugned judgment having failed to appreciate the scope and ambit of extra-judicial confession in the correct and appropriate manner as recorded its finding of conviction on inappropriate and inadmissible evidence, therefore, impugned judgment of conviction deserves to be set aside. 41. In the result, the appeal is allowed. The impugned judgment dated 30.9.1995 passed by the Second Additional Sessions Judge, Sehore in Sessions Trial No.2/1995 is hereby set aside. 42. The appellants are on bail their bails bonds are discharged. The case property be disposed of as per the order of the trial Court. 43. Let record of the trial Court be sent back.