JUDGMENT : The appellants are accused Nos. 1 to 3 in S.C. No. 324 of 2002 on the file of the IInd Additional Sessions Judge, Kozhikode and they are challenging the conviction and sentence imposed on them for the offence under Section 392 IPC. 2. The prosecution case is that PW1 and PW11 exchanged their vehicles and in that transaction, PW1 had to pay Rs.1,87,000/- to PW11. But, subsequently, the vehicle was seized by the financier at Madras and then it was agreed between PWs 1 and 11 that PW1 will pay Rs.1,87,000/- to the financier and that the balance amount due to the financier will be paid by PW11 and accordingly, they decided to meet the financier at Madras for releasing the vehicle. The 5th accused was the broker between PWs 1 and 11 in connection with the vehicle transaction and when he came to know about the journey, he entered into a criminal conspiracy with accused Nos. 1 to 4 to rob the money by committing dacoity. On 13.11.1998. PW1, PW15, accused No.5 and the deceased Kunhimoosa, who is the brother-in-law of PW1, boarded train No. 6602 Mangalore- Madras Mail from Payyannur Railway Station and the deceased was in possession of the bag containing Rs.2,20,000/- and accused Nos. 1 to 4 also unauthorisedly boarded S-V compartment of the said train in which Kunhimoosa and others travelled. When the train reached Parappanangadi, the 3rd accused snatched the bag containing money from Kunhimoosa. But, Kunhimoosa caught the 3rd accused with the bag and then accused Nos. 1, 2 and 4 forcibly released the 3rd accused from the hands of Kunhimoosa and thereafter, accused Nos. 1 to 4 jumped to the platform with the bag containing money and then Kunhimoosa also jumped into the platform and there occurred a scuffle for the bag in the platform and accused Nos. 1 to 4, after getting possession of the bag, pushed Kunhimoosa towards the running train and he was run over by the train and died instantaneously. Accused Nos. 1 to 5 are thereby alleged to have committed the offences under Sections 395, 302, 201, 139, 120B and 34 IPC. Additionally, the 5th accused is alleged to have committed the offences under Sections 177, and 203 of IPC. 3. Accused Nos. 1 to 5 are thereby alleged to have committed the offences under Sections 395, 302, 201, 139, 120B and 34 IPC. Additionally, the 5th accused is alleged to have committed the offences under Sections 177, and 203 of IPC. 3. In the trial court, the accused persons pleaded not guilty to the charges and accordingly, PWs 1 to 34 were examined and Exhibits P1 to P39 and MOs1 to 18 were marked from the side of the prosecution and from the side of the defence, Exhibits D1 to D10 were marked. 4. After hearing both sides and considering the oral and documentary evidence on record, the learned Additional Sessions Judge, by the impugned judgment dated 18.08.2006, convicted and sentenced accused Nos. 1 to 3 to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.15,000/- each and in default of payment of fine, to undergo rigorous imprisonment for one year each. Accused Nos. 4 and 5 are acquitted of all the charges and accused Nos. 1 to 3 are acquitted of all other offences charged against them. 5. Heard Sri. T.K. Sandeep, the learned counsel for the appellants/accused Nos. 1 and 3, Sri. T.V. Jayakumar Namboodiri, the learned counsel for the appellant/second accused and Sri. Sanal P. Raj, learned Public Prosecutor and perused the records. 6. The point that arises for consideration is whether the conviction entered and the sentence passed against the accused/appellants are legally sustainable. 7. The learned counsel appearing for the appellants argued that the evidence adduced from the side of the prosecution is of a circumstantial nature and the prosecution has not succeeded in fully establishing the circumstances from which the conclusion of guilt is to be drawn. It is argued that apart from the hearsay evidence of PW1, there is absolutely no proof, either documentary or oral, to show that the deceased carried Rs.2,20,000/- in the bag and that the evidence of PW7, the only witness who happened to see the incident, would show that the 1st accused was not there at the place of occurrence and he was not among the persons who jumped from the train to the platform. It is argued that the evidence of the Investigating Officer regarding the alleged recovery of MO7 bag does not satisfy the conditions necessary for the applicability of Section 27 of the Indian Evidence Act and therefore, the accused are entitled for the benefit of reasonable doubt. 8. The learned Public Prosecutor argued that the evidence of PWs 1, 7, 9, 15 and 27 and the recovery of MO7 bag on the basis of the information received from the third accused taken cumulatively will form a chain so complete and incapable of explanation of any other hypothesis than that of the guilt of accused Nos. 1 to 3 and that there is no reason for the said witnesses to falsely depose against the accused in a serious case of this nature and therefore, there is no reason to interfere with the impugned judgment. 9. The evidence of PW1 in chief examination shows that along with his brother-in-law, Kunhimoosa, and PW15, Abdul Latheef, he reached Payyoli Railway Station on 13.11.1998. and at that time, PW11 was not there and instead, the 5th accused was there. According to PW1, the 5th accused informed them that PW11 will reach the station before the departure of the train and subsequently, PW11 reached the Railway Station at about 2.10. p.m. and there occurred some verbal altercations between PW11 and the deceased Kunhimoosa regarding the balance amount to be paid by PW11 and subsequently, after pledging the RC book of the vehicle, PW11 handed over Rs.17,000/- and PW1 entrusted the said amount to his brother-in-law Kunhimoosa. 10. According to PW1, his brother-in-law, Kunhimoosa, kept that amount in the pocket of his pants. According to PW1, Kunhimoosa, was in possession of the bag containing the money and when the train departed Kozhikode, Kunhimoosa was occupying birth No. 67 and 5th accused was occupying birth No.66 and he was occupying birth No.26. PW1 stated that subsequently while the train was moving from some other station, he woke up on hearing noise and someone uttering the word ‘thief’ and he suspected that the sound was that of his brother-in-law, Kunhimoosa. When PW1, along with PW15 Abdul Latheef, reached near the berth of Kunhimoosa, they could not see Kunhimoosa or his bag and subsequently, the 5th accused and PW1 pulled the chain to stop the train. 11. When PW1, along with PW15 Abdul Latheef, reached near the berth of Kunhimoosa, they could not see Kunhimoosa or his bag and subsequently, the 5th accused and PW1 pulled the chain to stop the train. 11. The evidence of PW1 further shows that along with PW15 and the 5th accused, they proceeded towards the platform through the railway track and then they saw the dead body of Kunhimoosa on the railway track. It is pertinent to note that PW1 has no case that he saw any of the accused persons snatching the bag from the possession of the deceased Kunhimoosa or anyone jumping from the train to the platform. 12. In cross-examination, PW1 deposed as follows: The above evidence of PW1 in cross-examination clearly shows that he has no direct knowledge regarding the money inside the bag in the possession of Kunhimoosa and no other witness examined from the side of the prosecution has a case that he saw Kunhimoosa keeping money inside the bag or that he has direct knowledge regarding the money inside the bag of Kunhimoosa. When the prosecution alleges that Kunhimoosa was in possession of Rs.2,20,000/- in his bag, the prosecution ought to have adduced reliable evidence to prove the said fact. 13. The evidence of PW7 shows that he was a student of law and on the date of occurrence, he was returning from the Law College at Thalassery, in Madras Mail and he alighted from the train at Parappanangadi Railway Station at about 11 O’clock in the night. According to PW7, when he reached near the tea stall at the Railway platform, he looked back on hearing a sound and saw one person jumping from the train to the platform followed by 3 others and he could not see the incident clearly as it was dark. According to PW7, the persons who jumped from the train are seen running towards south and for informing the station master about the incident, he proceeded towards the room of the station master and then he saw a railway staff coming with a lantern and another person running towards the place of occurrence through the back of the said railway staff. PW7 identified the first accused before the court as the person whom he saw running towards the place of occurrence while he was proceeding towards the station master’s room. 14. PW7 identified the first accused before the court as the person whom he saw running towards the place of occurrence while he was proceeding towards the station master’s room. 14. The evidence of PW7 in cross-examination shows that he heard the sound when he reached about 30 feet near to the tea stall, and the place of occurrence is about 150 feet towards south. According to PW7, the office of the station master is in the middle of the platform and the tea stall is about 100 feet south from the office of the station master. In another part of the cross-examination, PW7 stated that he saw the railway staff with the lantern near the tea stall and he saw the person coming running from a distance of 50 feet north. PW7 further admitted that the said person was not running at high speed and that he was only running slowly towards the place of incident. 15. A perusal of Exhibit P39, site plan, and the evidence of PW7 would clearly show that there is a distance of about 150 feet from the place of occurrence and the person who was seen running from north at a distance of about 50 feet from the tea stall and it is in evidence that PW7 proceeded towards the office of the station master immediately after the occurrence and in that circumstance, what emerges from the evidence of PW7 is that the first accused was not among the persons who jumped out of the train to the platform and ran towards south, as it is not possible for a person who ran towards south from the place of occurrence, which is at a distance of 150 feet from the tea stall in the platform to reach a place at a distance of 50 feet north from the tea stall and in that circumstance, I find force in the argument of the learned counsel for the appellants that even if the evidence of PW7 regarding the identity of accused No. 1 as the person whom he saw at a distance of 50 feet north from the tea stall in the platform is accepted as reliable, the same will, in no way, establish the complicity of the first accused in the alleged crime. 16. 16. PW9 deposed that he was an autorickshaw driver and on 13.11.1998, while he was returning from Tanoor and reached half kilometer away from Parappanangadi, 4 persons had shown signal to stop the autorickshaw and the said persons, after entering his autorickshaw, asked him to take them to the town and after reaching the town and when it was found that no taxi was available there, they asked him to take them to Chemmad. According to PW9, on enquiry, the said persons told him that a child was missing from the train and that the train left while they were in search of the child and therefore, they wanted to go to Shornur to catch the train. PW9 deposed that there was no taxi at Chemmad and the persons who travelled in his autorickshaw asked him to take them to Kakkad and when they reached Kakkad, they saw a KSRTC bus coming from the opposite direction and the persons who travelled in the autorickshaw had shown signal to stop the bus. 17. According to PW9, one among the passengers asked him the fare and he heard others calling him the name ‘Vinu’. PW9 stated that the said Vinu left a 100 rupee note in his autorickshaw and ran towards the bus and he also heard others calling another passenger by name ‘Vijayan’ and PW9 identified the said Vinu and Vijayan as accused Nos. 1 and 2 in this case. According to PW9, when the passengers entered his autorickshaw, he turned back to see whether all of them could be accommodated in the back seat and then he was able to recognize the face of accused Nos. 1 and 2 in the beam of the top light inside the autorickshaw. 18. The learned counsel appearing for the appellants argued that there is nothing in the evidence of PW9 to show the distance from Parappanangadi Railway Station to the place from where the above said 4 persons entered his autorickshaw and the evidence of PW9 only shows that he was returning from Tanoor on 13.11.1998 and when he reached half kilometer south from Parappanangadi, 4 persons boarded his autorickshaw for proceeding to town and there was no attempt on the part of the prosecution to establish that the said place at a distance of half km. south from Parappanangadi town, is proximate to the place of occurrence in this case. 19. south from Parappanangadi town, is proximate to the place of occurrence in this case. 19. I find force in the argument of the learned counsel for the appellants that the evidence of PW9 that he identified the face of the persons who entered the back seat of his autorickshaw by just a glance to the back seat while riding the autorickshaw, does not inspire confidence. In cross-examination, PW9 admitted that he is not the owner of the said autorickshaw and that he lost his licence and badge and after 13.11.1998, he had no occasion to drive this autorickshaw. 20. PW15, Abdul Latheef, also deposed in tune with the deposition of PW1 regarding the occurrence. According to PW15, before the departure of the train from Payyannur Railway Station, he saw the 5th accused Bhaskaran along with accused Nos. 1 to 4 in the platform and he also stated that accused Nos. 1 to 4 were sitting on a bench in the platform. The evidence of PW15 shows that the accused are known to him previously. However, in crossexamination, PW15 admitted that when the police questioned him one or two days after the occurrence, he has not told the police that he saw the 5th accused talking to accused Nos. 1 to 4 and he would say that he informed the said fact to the police only when he was questioned two or three years after the occurrence. PW15 cannot remember whether he told the police that Kunhimoosa was in possession of a bag when he was first questioned by the police or when he was subsequently questioned by the Railway police and he has nothing to say if the same is not seen recorded in his statement to the police. 21. PW27 is another witness examined from the side of the prosecution to prove the presence of accused persons on the date of occurrence at the platform of Payyannur Railway Station. According to PW27, on the date of occurrence, he saw the deceased Kunhimoosa at the platform of Payyannur Railway Station in between 4 and 4.30 p.m. PW27 also deposed that he saw accused Jayan walking through the Railway platform towards Kasargod side and then Jayan told him that he is going to Kannur. According to PW27, on the date of occurrence, he saw the deceased Kunhimoosa at the platform of Payyannur Railway Station in between 4 and 4.30 p.m. PW27 also deposed that he saw accused Jayan walking through the Railway platform towards Kasargod side and then Jayan told him that he is going to Kannur. In crossexamination, PW27 admitted that in this case, the police questioned him more than 3 times; but, he cannot remember whether he told the name of the accused Vijayan to the police. The evidence of PW27 in cross-examination shows that on the date of occurrence, he reached the platform of Payyannur Railway Station in search of illicit liquor and he also admitted that he is not in a position to say whether the persons whom he identified in chief examination came there in search of illicit liquor. 22. PW27 also deposed that when he met the 4th accused Ramachandran at Payyannur bus stand, after two days of the death of Kunhimoosa, the said Ramachandran told him that he was also involved in the incident which resulted in the death of Moosa and that while Moosa was running with the bag after alighting from the train, others pushed him and thereby, he fell under the train. It is pertinent to note that the trial court has already acquitted the 4th accused. It is well settled that in order to accept extra-judicial confession, it must be voluntary and must inspire confidence. The confession of one accused cannot be used as evidence against the co-accused so as to form the basis of a conviction and only when the rest of the evidence is sufficient for a conviction, this confession could be used to tilt the balance against the co- accused. 23. As noticed earlier, the trial court has not accepted the evidence of PW27 regarding the extra-judicial confession of the 4th accused against the 4th accused. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence and considering the conduct and antecedents of PW27 as revealed from his evidence, this Court finds that he is not a reliable witness. Further, extra-judicial confession is a weak piece of evidence and it is the duty of the court to ensure that the same inspires confidence and is corroborated by other prosecution evidence. Further, extra-judicial confession is a weak piece of evidence and it is the duty of the court to ensure that the same inspires confidence and is corroborated by other prosecution evidence. In this case, the evidence of PW27 regarding the extrajudicial confession of the 4th accused is surrounded by suspicious circumstances and therefore, the same lacks credibility. 24. To prove the offence of robbery under Section 392 IPC, the prosecution has to adduce reliable evidence regarding the subject matter of the crime. As noticed earlier, in this case, the prosecution alleges that there was an amount of Rs.2,20,000/- in the bag of the deceased Kunhimoosa. But, the prosecution has not examined any witness who is having direct knowledge regarding the same. The evidence of PW1 only shows that he handed over Rs.17,000/- received from PW11 to the deceased Kunhimoosa and that the deceased kept the said money in the pocket of his pants. None of the prosecution witnesses has a case that he saw Kunhimoosa or any other person keeping money in the bag held by Kunhimoosa. 25. The evidence of PW26 and Exhibit P30, inquest report, shows that Rs.21,781.50 was recovered from the pant pocket of the deceased at the time of inquest. In a case based on circumstantial evidence, the prosecution has a duty to establish the primary or basic facts from which the inference of guilt is to be drawn. In Padala Veera Reddy Vs. State of A.P. and Ors. ( AIR 1990 SC 79 ), the Hon'ble Supreme Court has laid down 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." 26. The Hon'ble Supreme Court of India in "Hanumant Govind Nargundkar and Anr. Vs. State of Madhya Pradesh", reported in AIR 1952 SC 343 , has observed thus:- "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 be 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.” 27. In Mulakh Raj v. Satish Kumar (1992) 3 S.C.C. 43 , the Hon’ble Supreme Court held as follows:- “Undoubtedly this case hinges upon circumstantial evidence. It is trite to reiterate that in a case founded on circumstantial evidence, the prosecution must prove all the circumstances connecting unbroken chain of links leading to only one inference that the accused committed the crime. If any other reasonable hypothesis of the innocence of the accused can be inferred from the proved circumstances, the accused would be entitled to the benefit. What is required is not the quantitative but qualitative, reliable and probable circumstances to complete the chain connecting the accused with the crime. If the conduct of the accused in relation to the crime comes into question the previous and subsequent conduct are also relevant facts. Therefore, the absence of ordinary course of conduct of the accused and human probabilities of the case also would be relevant. The Court must weigh the evidence of the cumulative effect of the circumstances and if it reaches the conclusion that the accused committed the crime, the charge must be held proved and the conviction and the sentence would follow.” 28. It is well settled that in a case based on circumstantial evidence, the prosecution has to establish fully all the links of the chain which should be consistent only with the hypothesis of the guilt of the accused and those circumstances should be of conclusive nature and tendency unerringly pointing towards the guilt of the accused and that there is a long distance between ‘may be true’ and ‘must be true’. In this case, it cannot be held that the circumstantial evidence relied by the prosecution is sufficient to form a chain of evidence complete and consistent only with the hypothesis of the guilt of the accused. 29. In this case, the prosecution is also relying on the recovery of the material objects by the Investigating Officer on the basis of the disclosure statement of the third accused. PW33 deposed that he arrested the third accused on 31.08.1999 and on the basis of the information received from the 3rd accused that he has given Rs.17,000/- to one Ashokan of Palazhi house, who is conducting a kury and if he is taken to that place, he will point out the said Ashokan and as led by the accused, the witness proceeded to the house of Palazhi Ashokan and the said Ashokan handed over Rs.17,000/- and the same was seized as per Exhibit P23 mahazar. According to PW33, on the basis of the disclosure statement of the third accused that the bag which he received is kept in his house and that he will take out the same, if he is taken there and as led by the 3rd accused, PW33 reached the house of the 3rd accused and the 3rd accused took out MO7 bag and handed over the same to PW33. According to PW33, he seized MO7 bag as per Exhibit P25 mahazar. 30. The learned counsel for the appellants pointed out that the alleged occurrence was on 13.11.1998 and the alleged recovery was effected on 16.09.1999. It is pertinent to note that PW33 has admitted in cross examination that he questioned the 3rd accused and recorded the statement on 31.08.1999. But, there was no explanation for the delay in effecting the recovery till 16.09.1999. PW32, Ashokan, deposed that after the death of Kunhimoosa, the 3rd accused has given him Rs. 20,000/- and subsequently, Rs.3000/- was returned to the 3rd accused and the remaining Rs.17,000/- was remitted in the chitty. But, the evidence of PW32 in cross-examination shows that he paid the amount remitted by the 3rd accused to the subscribers who bid for the chitty. He also admitted that he do not know the date of death of Kunhimoosa and therefore, he cannot say whether the 3rd accused paid the amount to him before or after the death of Kunhimoosa. 31. He also admitted that he do not know the date of death of Kunhimoosa and therefore, he cannot say whether the 3rd accused paid the amount to him before or after the death of Kunhimoosa. 31. The learned counsel for the appellants pointed out that the evidence of PW1 would show that the colour of the bag held by the deceased was military green and the evidence of PW1 in crossexamination would show that the colour of the front side of MO7 bag is blue. PW1 also admitted in cross-examination that he cannot say whether it was 3 months after the occurrence or 3 years after the occurrence, he told the police about the bag. 32. The evidence of PW33 would show that MO7 bag was produced before the court only on 20.12.1999 and Exhibit P25, seizure mahazar, relating to MO7 reached the court only on 18.12.1999 and no explanation is forthcoming regarding the delay in this regard. As noticed earlier, the prosecution has not adduced any reliable evidence as to whether the deceased had kept any money in his bag. It is not possible to draw any inference against an accused merely on the basis of the recovery of a material object under Section 27 of the Indian Evidence Act, unless the prosecution establishes a close link between the material object and its connection with the alleged crime. 33. Therefore, on a careful re-appreciation of the entire evidence, this Court finds that the prosecution has not succeeded in establishing the foundational facts and adducing reliable evidence in relation to the chain of circumstances to prove the guilt of the accused and therefore, the impugned judgment is liable to be set aside and the appeals are to be allowed. In the result, these appeals are allowed and the conviction and sentence imposed on the appellants/accused Nos. 1 to 3 in S.C. No. 324 of 2002 on the file of the II Additional Sessions Judge, Kozhikode is set aside and they are acquitted. Their bail bond shall stand cancelled and they are set at liberty. Interlocutory applications, if any pending, shall stand closed.