Amar Singh S/o Pat Ram vs State of Rajasthan

In both the these cr. appeals filed by the appellant Amar Singh and Mukesh Kumar under Section 374(2) Cr.P.C. the

judgment dated 20.8.2009 passed by the learned Addl. Sessions

Judge (FT) NO.1, Hanumangarh in Sessions Case No.30/2007 is

under challenged. In the aforesaid judgment, both the accused

appellants held guilty for offence under Section 365, 302 / 34 and

201 IPC and following sentence was passed against them, which

reads as under: Under Section 302 / 34 IPC Life imprisonment with fine of Rs.3,000/- and in default of payment of fine to further undergo four months RI.

Under Section 365 IPC Seven years RI with fine of Rs.2,000/- and in default of payment of fine to further undergo three months RI

Under Section 201 IPC Three years RI and to pay a fine of Rs.1,000/- and in default of payment of fine to further undergo two months RI.

In view of the fact that both the appeals are directed against

the judgment dated 20.8.2009 passed by the learned Addl.

Sessions Judge (FT) No.1, Hanumangarh in Sessions Case

No.30/2007, therefore, both the appeals are decided by this

common judgment.

As per facts, the complainant Rani Kanwar (PW--3) wife of

late Jaikaran Singh submitted a typed report at Police Station,

Tibbi on 19.3.2007 at 12.45 pm stating therein that on 16.3.2007

in the evening at about 5.30 pm when she was sitting alongwith

her husband Jaskaran Singh in her house, two persons namely

Amar Singh S/o Pat Ram and Mukesh Kumar S/op Sharwan Ram

came there on motorcycle. Amar Singh called her husband to

accompany him, but her husband denied to go with them, they

said that we will come back soon and while saying so forcibly

taken her husband on motor cycle from his house. According to

the complainant, the aforesaid incident was seen by two persons

namely, Gurdev Singh S/o Dayal Singh and Sadurl Singh S/o

Jagraj who were loading tractor trolley near the house. In the late

night when the husband of the complainant Jaskaran did not

return at home, she called her uncle Amar Singh S/o Chatar Singh

and Rajpal and informed whole story, thereafter, they commenced

search of Jaskaran Singh. As per allegation of complainant on

19.3.2007 they went to the house of Amar Singh S/o Pat Ram to

make an inquiry where both the accused appellants were sitting in

the house. When they reached to the house of Amar Singh and

made inquiry about her husband, then they made confession that

we have killed your husband by strangulation by their turban and

thrown his body in the Indira Gandhi canal and made a prayer

that we have committed serious mistake of murder of your

husband so kindly excuse us. The complainant came back and

immediately went to the Police Station for registration of the FIR.

Upon aforesaid written complaint (Ex.P/1) lodged by the

complainant Rani Kaur, FIR no.114/2007 for the offence under

Section 364, 302 / 34 was registered against the accused

appellants and investigation was commenced.

The body of the deceased was recovered from canal and

handed over to the family members after post mortem. Both the

accused appellants were arrested and produced before the

concerned court and after investigation and recovery of articles as

per their information, they were sent to the judicial custody. The

police after completion of investigation filed charge-sheet against

the accused appellants for the offence under Section 365, 302 / 34

and 201 IPC in the court of learned Judicial Magistrate, First Class,

Tibbi from where case was committed to the Sessions Court, but

later on transferred to the court of learned Addl. Sessions Judge

(FT) No.1, Hanumangarh for trial.

On commencement of trial, after providing an opportunity of

hearing to the accused appellants, the charges were framed

against the accused appellants for alleged offence of murder

under Section 302 / 34, 201 and 365 IPC.

The statements of 19 prosecution witnesses were recorded

during trial and 49 documents were exhibited from prosecution

side to prove the case. After recording evidence of prosecution,

statement of the accused appellant under Section 313 Cr.P.C.

were recorded by the learned trial court in which accused

appellants denied all the allegations of prosecution witnesses. No

witness was produced by them in defence, however, one

document (Ex.D/1) was got exhibited in defence.

After recording evidence, the learned trial court heard final

arguments of both the parties and held accused appellants guilty

for commission of offence under Section 302 / 34, 365 and 201 IPC

vide judgment dated 20.8.2009 and passed sentence aforesaid.

In both the appeals, the judgment dated 20.8.2009 passed

by the learned Addl. Sessions Judge (FT) No.1, Hanumangarh is

under challenged.

Learned counsel for the appellants at the outset submits that

the finding of guilt recorded by the learned trial court against the

appellants is perverse and contrary to material evidence available

on record, therefore, not sustainable in law. It is further argued

that if we go through the contention of FIR, it is clear that

complainant herself disclosed the fact that her husband was taken

forcibly by the accused appellants and they made confession

before her and said that they killed her husband Jaskaran by

strangulation with his turban and thrown his dead body in the

canal. If the fact of taking away her husband forcibly by the

accused appellants was with the knowledge of the complainant

Rani Kaur then why information was not given to the police when

her husband did not return home in the night of 16.3.2007. It is

also argued that as per assertion made in the complaint, the

complainant Rani Kaur called her uncle Amar Singh S/o Chatar

Singh and Rajpal, brother-in-law of Jaskaran but no missing report

was given to the police and later on after three days typed FIR

was submitted by the complainant Rani Kaur on 19.3.2007 at

about 12.45 pm at the Police Station Tibbi, after framing

concocted story and planting two witnesses Amar Singh and

Rajpal in the FIR with the allegation that accused appellant

Mukesh Kumar made confession and said that due to some hot

conversation before 8 days, we have killed Jaskaran and thrown

his body in the canal. The counsel for the appellants argued that

such type of concocted story does not inspire confidence because

there was no question for both accused to make confession before

the complainant who is wife of deceased that they committed

murder of her husband, therefore, the whole prosecution case

travelled on concocted story framed by the prosecution without

any evidence to corroborate the allegation.

Learned counsel for the accused appellants invited our

attention towards the statements of PW--1 Amar Singh and PW--

2 Rajpal and submits that both the persons were not present

during investigation, so also, they themselves admitted in their

statements before the court that no signatures were made by

them on any of the memo prepared by the investigating agency,

so also, they did not participate in any proceedings during

investigation. Therefore, the entire prosecution case which is said

to be based upon evidence of last seen and extra judicial

confession is far from the truth. With regard to evidence of last

seen of accused appellants with Jaskaran by Gurdev Singh and

Sardul Singh whose names planted and incorporated in the FIR. In

their statements recorded during trial as PW--5and PW--7 it is

nowhere stated by them, efforts were made by them for rescue

of Jaskaran when he was forcibly lifted and taken on motorcycle

by the accused appellants Amar Singh and Mukesh. It is also

accepted by witness PW--5 Gurdev Singh that deceased Jaskaran

was my cousin brother. The father of Jaskarn is real brother of

my father and accepted that he has no knowledge whether any

quarrel took place before 6-7 days in between Jaskaran the

accused appellants but said that on the date of incident, when

they were loading tractor trolley in front of house, at that time,

Mukesh was sitting on motor cycle outside the house of Jaskaran

and Amar Singh went inside the house and Jaskaran left the place

alongwith them on motorcycle. Meaning thereby, the witness

PW--5 Gurdev Singh is close relative of the deceased but no

efforts were made by him to rescue, therefore, his testimony

cannot be accepted for the purpose of accepting the prosecution

case to prove the fact of last seen.

Learned counsel for the appellants further argued that PW--7

Sardul Singh gave identical statements as given by the PW--5

Gurdev Singh and this witness accepted in cross-examination that

deceased Jaskaran was his cousin brother because being son of

his elder father. Meaning thereby, both witness of last seen are

close relative of the deceased and complainant and there is no

other evidence of independent witness on record to prove the case

beyond reasonable doubt. Admittedly, it is a case in which charge-

sheet was filed against the accused appellants on the basis of

circumstantial evidence of last seen and extra judicial confession,

but there is no independent evidence to prove the fact of last seen

and confession because complainant Rani Kaur wife of the

deceased failed to give any information to the police for good

three days. The names of PW--5 Gurdev Singh and PW--7 Sardul

Singh cousin brothers of the deceased were purposely

incorporated in complaint (Ex.P/1) by the complainant so as to

create evidence of last seen and extra judicial confession against

accused appellants, therefore, the whole prosecution case is

doubtful.

As per argument of learned counsel for the appellants the

medical evidence is also not supporting prosecution case with

regard to extra judicial confession because PW--16 Dr. Madan

Singh who conducted post mortem of the deceased although said

that cause of death was asphyxia due to strangulation, but said

that sign of drowning were present over the body. Therefore, it

cannot be presumed that death was caused by the accused

appellant, as per principle laid down by the Hon''ble Supreme

Court the prosecution is required to lead trustworthy evidence to

complete the chain of circumstances to reach upon conclusion that

accused is guilty for committing offence of murder. The witness

PW--9 Mandar Singh has categorically stated in his statement that

wife of the deceased Jaskaran is my niece and in the cross-

examination, admits that in the police statement it is nowhere said

by him that upon bricks lying upon the place of occurrence there

was any sign so also accepted that the way going towards canal

is used by the villagers, therefore, his testimony cannot be

accepted for the purpose of verification of place of occurrence.

The witness PW--10 Jagsir Singh stated before the court that

deceased Jaskaran was my close relative and said that before

25.3.2007 I do not went at the place of occurrence and searching

the dead body.

The crux of argument of learned counsel for the appellants is

that all the witnesses are close relative of the deceased and

complainant and there is no independent witness to prove the fact

of last seen, so also, there is no witness except complainant and

her close relative to support the fact of extra judicial confession.

The witness PW--1 Amar Singh uncle of he complainant Rani Kaur

categorically stated in his statement before the court that Rani

Kaur informed us that Amar Singh and Mukesh forcibly took

Jaskaran with them and for 2-3 days all efforts were made to

search Jaskaran and at last went to the house of Amar Singh and

Mukesh in the morning on 19.3.2007 where both the accused

appellants made confession that they have killed Jaskaran by

strangulation and his body has been thrown in the canal. It is also

stated that one Parmendra Singh, Teacher wrote the complaint as

per instruction of Rani Kaur. Further in the cross-examination it is

stated that on 16.3.2007 daughter of Jaskaran came to my house

and called me but none of the witness except Rani Kaur is

produced before the court.

It is submitted that witness PW--2 Rajpal accepted before

the court that Jaskaran was my brother-in-law and on 16.3.2007

Rani Kaur informed that my husband Jaskaran has been forcibly

taken away by accused appellants Amar Singh and Mukesh. If this

fact was well within the knowledge of all the three witnesses PW--

1 Amar Singh and PW--2 Rajpal and PW--3 Rani Kaur then why

missing report was not submitted by them to the police.

According to the learned counsel for the appellants whole

prosecution story is doubtful. It is argued that in view of the

judgment of Hon''ble Supreme Court in the case of Kala @

Chandrakala Vs. State & Ors reported in 2016 AIR (SC) 3912 the

circumstantial evidence of extra judicial confession cannot be

accepted because body of the deceased was recovered at the

instance of the accused appellant, so also, as per the judgments

of the Hon''ble Supreme Court in the case of Sharad Birdhichand

Sarda Vs. State of Maharastra reported in AIR 1984 (SC) 1622

and Ram Lal @ Ramu Vs. State of Rajasthan reported in 2014 Law

Suit (Raj.) 1398. All the circumstances are required to be proved

by the prosecution to prove the case based upon circumstantial

evidence.

While inviting attention towards the aforesaid judgments, it

is submitted that in this case the complete chain of circumstances

is missing, therefore, accused appellants are entitled for benefit of

doubt because there is no direct evidence to connect them with

the crime and prosecution has failed to prove the fact of last seen

and extra judicial confession. Therefore, both the appeals may

kindly be allowed and the judgment impugned may kindly be set

aside.

Per contra, learned Public Prosecutor vehemently argued

that prosecution case is based upon circumstantial evidence but it

has been proved by the prosecution by leading trustworthy

evidence for last seen and extra judicial confession, therefore, it

cannot be said that any error is committed by the learned trial

court so as to hold accused appellants guilty for alleged offence of

murder. It is also submitted that the three witness PW--1 Amar

Singh, PW--2 Rajpal and PW--3 Rani Kaur categorically stated

before the court that before all the three persons extra judicial

confession was made by the accused appellants. Further, there is

evidence on record to prove the fact that accused appellants

forcibly took deceased Jaskaran from his house in the presence of

PW--3 Rani Kuar in the evening of 16.3.2007 and deceased did

not come back till evening, later on, FIR was filed by PW--3 Rani

Kaur against the accused appellants and subsequently, the dead

body of Jaskaran was recovered from canal on 22.3.2007.

Therefore, after proper assessment of evidence, the learned trial

court gave finding that accused appellants are guilty for

committing offence of murder. In support of his arguments,

learned Public Prosecutor invited our attention towards the

judgment in the case of Baskaran & Anr. Vs. State of Tamil Nadu

reported in 2014 Crl. L.J. 2705 and submits that both the appeals

may kindly be dismissed.

After hearing learned counsel for the parties, it emerges

from the facts and evidence on record that entire prosecution case

is based upon circumstantial evidence of last seen and extra

judicial confession. We have examined the finding of the learned

trial court in the light of the evidence on record. First of all, we are

examining the finding of the learned trial court, upon the evidence

of last seen. To prove the fact of last seen, there is only one

witness i.e., PW--3 Rani Kuar, wife of deceased Jaskaran who has

categorically deposed in her statement that before 5 months and

six days my husband came back from the party from the house of

Modan Lal. He came back at 12''O Clock and in the evening at 5''O

Clock Mukesh and Amar Singh present in the court came on

motor cycle at her residence and called Jaskaran to accompany

them but Jaskaran refused to go with them but Amar Singh and

Mukesh forcibly took Jaskaran, at that time, Gurdev Singh and

Sardul Singh were doing some work in front of her house but they

were not called by the complainant nor any efforts were made by

them for rescue. In the evening at 8.30 pm Amar Singh and

Rajpal uncle of complainant and brother-in-law of deceased were

called by her to search Jaskaran but no information was given to

the police. The other two witnesses of last seen are PW--5

Gurdev Singh and PW--7 Sardul Singh are cousin brothers of the

deceased Jaskaran and were present near the house, but they

were not called. According to the prosecution case Jaskaran was

forcibly taken away by accused appellants Amar Singh and

Mukesh but these witnesses never informed the police or other

resident of village. It is also stated by them that no objection was

made by wife of Jaskaran nor she cried or came for rescue of

Jaskaran nor any request was made by her to the accused

appellants Amar Singh and Mukesh not to take Jaskaran forcibly.

In our opinion, the testimony for the purpose of last seen of

PW--3 Rani Kaur, PW--5 Gurdev Singh and PW--7 Sardul Singh is

not trustworthy because if the husband of PW--3 Rani Kaur was

forcibly taken away by the accused appellants on motor cycle then

obviously it was her duty to inform the police to take action

against the accused appellants or to cry, but as per statement of

PW--3 Rani Kaur, her uncle Amar Singh and brother-in-law Rajpal

made search of Jaskaran for three days but it is nowhere said by

PW--3 Rani Kaur that two cousin brothers who were standing at

the time of taking away Jaskaran forcibly by the accused

appellants made any search or they were called to search the

deceased Jaskaran. It is beyond imagination that wife and cousin

brothers kept mum for three days and not made any report to the

police if husband of the PW--3 Rani Kuar and brother of two

cousin brothers were forcibly taken away by the accused

appellants. It is true that on oath they made statements before

the court to prove the fact of last seen but said statement cannot

be relied upon so as to accept the prosecution case that on the

basis of statement of these three witnesses, the fact of last seen

has been proved.

It is also very strange that after three days in the morning of

19.3.2007 when extra judicial confession was made by the

accused appellants, the FIR was filed at Police Station. Meaning

thereby, it is a case in which complainant in spite of knowing that

accused appellant Amar Singh and Mukesh forcibly taken her

husband, but has waited for extra judicial confession of accused

appellants after three days and after so called extra judicial

confession made by the accused appellant, FIR was filed by her.

Upon assessment of entire evidence and upon the fact that

PW--3 Rani Kaur wife of the deceased and two cousin brothers

before whom deceased was taken away forcibly by the appellants

kept mum for three days and after three days filed FIR without

any acceptable ground, the conviction based upon circumstantial

evidence of last seen is not sustainable in law because prosecution

evidence is seriously.

In Sharad Birdhichand''s case (supra), the Hon''ble Supreme

Court laid down following principles to assess the circumstantial

evidence, which reads as under:

"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this Court in Shivaji Sahabrao Bobade & A nr . v. State of Maharashtra('') where the following observations were made: "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions." (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency. (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

In case of Ram Lal @ Ramu Vs. State of Rajasthan reported

in 2014 Law Suit (Raj.) 1398 in identical case based upon

circumstantial evidence, following adjudication was made by this

Court, which reads as under: "18. The law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events for which the only irresistible conclusion that can be drawn is the guilt of the accused and that no other hypothesis against the guilt is possible. In a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take legal proof. This court will have to satisfy itself that various circumstances in the chain of events have been established clearly and such complete chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. This court has to be watchful and avoid allowing the suspicion to take place of the legal proof. There is a long distance between ?may be true? and ?must be true?. When a case rests squarely on circumstantial evidence, an inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. Cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offence beyond any reasonable doubt. The circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved. In other words there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and it must show that in all human probabilities the act must have been done by the accused.

With regard to extra judicial confession it is required to be

observed that entire prosecution case is based upon testimony of

three interested witnesses PW--1 Amar Singh, PW--2 Rajpal and

PW--3 Rani Kaur before whom the accused appellants made extra

judicial confession. All these three witnesses stated on oath

before the court that confession was made by the accused

appellants when they reached to the house of accused appellants

in the morning at 9''O Clock on 19.3.2007. After perusing the

statements of PW--1 Amar Singh, PW--2 Rajpal and PW--3 Rani

Kuar it is obvious that evidence of extra judicial confession is not

trustworthy because dead body was not recovered upon

information given by the accused appellants, though dead body

was recovered on 22.3.2009. In view of the fact that PW--3 Rani

Kaur wife of the deceased Jaskaran and author of the FIR was

knowing that accused appellants forcibly taken away her husband

from the house, but keep mum for three days and after three days

at 12.45 am on 19.3.2007 filed FIR on the basis of extra judicial

confession of the accused appellants.

In our opinion, how it can be presumed that wife will wait for

extra judicial confession for three days so as to file FIR against

those persons who took her husband forcibly on motorcycle in the

presence of two other cousin brothers. If the story of prosecution

is accepted for the purpose of incident of taking away the

deceased forcibly by the accused appellants then obviously this

court cannot lost sight of the fact that wife was to cry and cousin

brothers were required to go for rescue of their brother but it is

nowhere stated by all the three witnesses that any efforts were

made for rescue when Jaskaran was forcibly taken by the accused

appellants from his house. It is true that long statements are

given by these witnesses, but all these witnesses are close

relatives of the deceased and they waited for three days after

missing Jaskaran and later on filed FIR on the basis of extra

judicial confession only.

In view of the fact that the extra judicial confession is week

type of evidence and in this case there was no reason to make any

confessional statement by the accused appellants before the

complainant wife because she was the victim of missing of her

husband, therefore, allegation of extra judicial confession made by

the witnesses is far from the truth.

In the case of Kala @ Chandrakala (supra), the Hon''ble

Supreme Court gave the following verdict, which reads as under:

In the instant case, which is based on the circumstantial evidence, particularly when the body has not been recovered at the instance of the accused, the recoveries of moped and piece of nylon saree which were made are not proved to be related to commission of offence, they are not proved to be incriminating materials. The extra-judicial confession made by the appellant to Susheela, P.W.4 is prima facie unusual and doubtful and is not corroborated by other evidence on record. Merely, the fact that the deceased had left the house on 16.5.2005, as per version of appellant, cannot be used as a circumstance against her so as to fasten guilt. The deceased used to drink alcohol and used to spend money recklessly. Due to his bad habits, there may be so many enemies of him. How the deceased spent the amount of Rs.1,30,000/- which he received on execution of agreement is not on record. The prosecution has not been able to complete the chain of circumstances so as to fasten the guilt and to prove the commission of offence by the appellant beyond periphery of doubt. The father of appellant has also been extended benefit of doubt. As such, the appellant is entitled for benefit of doubt in view of the evidence which has been adduced by the prosecution."

We have perused the aforesaid judgment cited by the

learned Public Prosecutor in the case of Baskaran & Anr. (supra) in

which the Hon''ble Supreme Court held that extra judicial

confession can be relied upon, if the same is voluntary and true

and made in a fit state of mind. The value of evidence as to the

confession like any other evidence depends upon the veracity of

the witness to whom it has been made. In this case, there was no

question for the accused appellants to make extra judicial

confession to the wife of the deceased or the close relative of the

deceased. Further, if the testimony of these three witnesses is

accepted that extra judicial confession was made by the accused

appellants then why complainant and two other witnesses Amar

Singh and Rajpal did not call the police immediately and hand

over the accused appellants then when they made confession. As

per statement of PW--1 Amar Singh, PW--2 Rajpal and PW--3

Rani Kaur, extra judicial confession was made by the accused

appellant Mukesh and Amar Singh and after extra judicial

confession they went to one teacher Parmendra Singh for drafting

complaint and, thereafter, they went to the police for registration

of FIR. It is beyond imagination that if extra judicial confession is

made in front of three close relative then accused were to be

detained immediately to hand over the police, but here in this

case, FIR was registered after three days on 19.3.2007 in which

there is complete narration of extra judicial confession, but

accused appellants were arrested after three days on 22.3.2007

vide Ex.P/27 and P/28 in front of two police officials Raghurveer

Singh, FC No.1143 and Iqbal, FC No.313. Both these witnesses

were not examined before the court to prove the arrest of accused

appellants. It is also very important aspect of the matter that

entire prosecution case is based upon testimony of close relative,

no independent witness were produced before the court to prove

the fact of last seen or extra judicial confession, so also, there is

no evidence on record to prove the fact that there was any reason

for the accused appellants to make extra judicial confession before

the author of FIR PW--3 Rani Kaur, wife of the deceased. It is

also very important fact that no other witness has corroborated

the fact of extra judicial confession. The judgment cited by the

learned Public Prosecutor does not help the prosecution so as to

accept the extra judicial confession because it is a case in which

learned trial court has relied upon evidence of extra judicial

confession made before three close relative of the deceased and

those witnesses admittedly did not make any efforts to detain the

accused appellants at the time of making extra judicial confession

or take efforts to hand over them to the police then and there.

In para no.14 of the judgment citied by the learned Public

Prosecutor in the case of Baskaran (supra), the following

adjudication is made by the Hon''ble Supreme Court, which reads

as under:

"14. It is no doubt true that this Court time and again has held that an extra-judicial confession can be relied upon only if the same is voluntary and true and made in a fit state of mind. The value of the evidence as to the confession like any other evidence depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the

reliability of the witness who gives the evidence. But it is not open to any court to start with the presumption that extra-judicial confession is insufficient to convict the accused even though it is supported by the other circumstantial evidence and corroborated by independent witness which is the position in the instant case. The Courts cannot be unmindful of the legal position that even if the evidence relating to extra-judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction."

In our opinion, upon aforesaid principle it cannot be said that

in this case the prosecution evidence for extra judicial confession

can be accepted because there is no corroboration of the fact by

the independent witnesses to prove the extra judicial confession,

which is alleged to be made by the accused appellants before the

close relatives of the deceased. It is also one of the important fact

that body of the deceased was not recovered upon information

given by the accused appellants, so also, two police officers

before whom the accused appellants were arrested on 22.3.2007

have not been examined during trial.

To consider the arguments of learned counsel for the

appellants that there is no evidence of motive on record, we have

perused the entire evidence of prosecution. None of the witnesses

stated before the court that the was any enmity in between the

deceased and accused appellants. For motive, only evidence came

on record is incorporated in para no.4 of the complaint (Ex.P/1)

that before 8 days some hot discussions took place in between the

deceased and the accused appellants, therefore, they caused

death of her husband but to prove the said fact there is no other

evidence to prove the said fact. There is no doubt that dead body

of the deceased was recovered from canal vide Ex.P/8 in presence

of two witnesses Sewa Singh and Kewal Singh on 22.3.2007 but

admittedly, it was not recovered upon information of the accused

appellants nor in their presence. With regard to information given

by the accused appellant Mukesh Kumar to identify the place of

occurrence vide Ex.P/16, we are of the opinion that the said

verification of place of occurrence is meaningless because the

place of occurrence was already in the knowledge of investigating

officer. In view of the fact that prosecution has failed to prove the

fact of extra judicial confession by leading trustworthy evidence,

the statement of other witnesses for verification of place by the

accused appellants, became meaningless. With regard to recovery

of watch at the instance of the accused appellant Mukesh vide

Ex.P/22 and recovery of purse of deceased Jaskaran, we have

perused the typed FIR submitted by the complainant in which it is

nowhere said by the complainant that when accused appellants

forcibly taken away the deceased Jaskaran from his residence, he

was wearing any watch or he was having any purse with him.

Therefore, obviously on the basis of recovery of purse vide

Ex.P/32 of deceased at the instance of the accused appellants

became doubtful.

In our opinion, there is no direct evidence in this case and

entire prosecution case is based upon circumstantial evidence of

last seen and extra judicial confession only, but we cannot lose

sight of the fact that FIR was filed after three days on 19.3.2007

and the dead body of the deceased was not recovered upon

information given by the accused appellants after their arrest. The

fact of recovery of purse and watch of the deceased cannot be

treated to be an evidence to connect the accused appellants with

the crime because there was no disclosure by the complainant

Rani Kaur (PW--3) in her typed complaint that deceased was

wearing watch and having purse. In view of the above, the entire

prosecution case became doubtful.

In view of the above discussion, we are of the opinion that

accused appellants are entitled for benefit of doubt because

prosecution has failed to prove the case beyond reasonable doubt

on the basis of evidence of last seen and extra judicial confession.

Consequently, both these cr. appeals are hereby allowed.

The judgment dated 20.8.2009 passed by the learned Addl.

District & Sessions Judge (FT) No.1, Hanumangarh in Sessions

case No.30/2007 convicting and sentencing the accused

appellants Amar Singh and Mukesh Kumar for the offences under

Sections 302 / 34, 365 and 201 IPC is hereby quashed. The

accused appellants be set at liberty unless required in any other

case.

Keeping in view, however, the provisions of Section 437A

Cr.P.C. the accused appellants are directed to forthwith furnish

personal bond in the sum of Rs.20,000/- and a surety bond in the

like amount, before the learned trial court, which shall be effective

for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave,

the appellants, on receipt of notice thereof, shall appear before

Hon''ble the Supreme Court.