Piari and Others vs State of U.P.

U.S. Tripathi, J.—This appeal has been directed against the judgment and order dated 22.4.1980/29.4.1980 passed by Sessions Judge, Ghaziabad in Sessions Trial No. 253 of 1978, convicting Appellants Smt. Piari, Masih Charan, Omvir and Ganga Sharan u/s 302, I.P.C. read with Section 34, I.P.C. and sentencing each of them to imprisonment for life under said section and further convicting them u/s 201, I.P.C. and sentencing each of them to undergo R.I. for a period of five years.

The prosecution story briefly stated was as under:

Appellant Omvir is son of Smt. Piari, Appellant. Ghan Shyam deceased aged about 12 years, was son of Hari Kishan (P.W. 2) and Smt. Lajjawati (P.W. 7). All the Appellants and deceased and his parents were residents of village Chhaulas, Police Station, Dadri, district Ghaziabad. The deceased, his parents and Appellants Omvir and Smt. Piari were sweepers and Appellants Ganga Sharan and Masih Charan were Harijans. Houses of Appellant Ram Piari and Smt. Lajjawati (P.W. 7) were adjacent to each other. Appellant Omvir was ill. He was under treatment of Ganga Saran, a sorcerer and Masih Charan was his assistant. It is alleged that Appellant Ganga Saran advised Smt. Piari to offer human sacrifice in order to cure her son.

On the morning of 30.7.1978 at about 10.00 a.m. Ghan Shyam deceased was playing in his chaupal along with Km. Kamlesh (P.W. 1), sister''s son and daughter of Omvir and some other children. Smt. Lajjawati (P.W. 7) along with her brother Jagdish and Ram Singh was sitting in the chaupal. Appellant Omvir came there and called Ghan Shyam and other children to enjoy swing installed in his verandah. Ghan Shyam deceased, Km. Kamlesh (P.W. 1) and other children went there and were enjoying swing there. Appellants Smt. Piari, Masih Charan and Ganga Sharan were also present there. After some time Appellant Omvir asked other children to go away and detained Ghan Shyam deceased.

When Ghan Shyam deceased did not return to his house for a long time his mother Smt. Lajjawati (P.W. 7) started searching him. She went to the house of Km. Kamlesh (P.W. 1) and enquired from her about her son (Ghan Shyam deceased). On her information she went to the house of Smt. Piari and Omvir Appellants. The doors of Smt. Piari was closed and Ganga Saran and Masih Charan were busy in preparation for puja. She called Smt. Piari. She came out. Lajjawati enquired from her about Ghan Shyam. She told that he left her house after enjoying swing. She traced his son in the village but he was not found. Then she sent her brother Jagdish to inform her husband Hari Kishan (P.W. 2) who was at Delhi. Her husband Hari Kishan (P.W. 2) who was serving in Akashvani Delhi, got information at about 6.30 p.m. Immediately he started for his house along with his brother-in-law. Coming to his village he also searched his son Ghan Shyam deceased, but he could not be traced. He enquired about his son from Omvir and Smt. Piari. Omvir told him that he had left Ghan Shyam at Sikandrabad. On it the persons of the village asked him to show the boy. Omvir Appellant along with Hari Kishan (P.W. 2) and other villagers proceeded towards Sikandrabad. On going about a mile he told that he did not know about Ghan Shyam deceased and he had wrongly told them that he had left Ghan Shyam at Sikandrabad. Hari Kishan (P.W. 2) then came to Police Station, Dadri and lodged oral report Ext. Ka-1 at 6.35 p.m. on 2.8.1978. Chick F.I.R. Ext. Ka-1 was prepared by Head Moharrir Veer Singh (P.W. 8), who made an endorsement of the same at G.D. report Ext. Ka-5 and registered a case u/s 302/201, I.P.C. against the Appellants.

Investigation of the case was taken up by Shri Suresh Chandra Sharma (P.W. 10). The Investigating Officer interrogated Hari Kishan (P.W. 2) at the police station and along with police force reached village Chhaulas, where he interrogated Smt. Lajjawati (P.W. 7). Thereafter he arrested Appellant Omvir and interrogated him. He also interrogated Km. Kamlesh (P.W. 1). On 3.8.1978, Rohitashwa Kumar (P.W. 4) and Shafi Abbas (P.W. 5) were called and interrogated by the Investigating Officer. They told that the Appellants had made extra judicial confession before them that they had killed Ghan Shyam deceased and buried his dead body in the room of Omvir. The Investigating Officer called Shiv Raj Singh (P.W. 6), Sub-Divisional Magistrate, Dadri. On the pointing out of the Appellant Omvir the dead body of Ghan Shyam deceased was recovered by digging out the room in the presence of S.D.M. and other authorities. The dead body was identified by Hari Kishan (P.W. 2) and Smt. Lajjawati (P.W. 7) as that of their son Ghan Shyam. A khurpa, articles of worship and some burnt articles of pooja were also recovered along with the dead body. Recovery memo Ext. Ka-3 and Ka-8 were prepared. The Investigating Officer also took into possession blood stained and simple earth from the spot and prepared memos of recovery. Sub-Inspector Jai Prakash conducted inquest of the dead body in the presence of Shiv Raj Singh, Sub-Divisional Magistrate and other witnesses and prepared inquest report Ext. Ka-4. The dead body was sealed and sent for post-mortem. A swing was also recovered from the house of Omvir. The Investigating Officer inspected the place of occurrence and prepared site plan. Other Appellants were also arrested.

Autopsy on the dead body of Ghan Shyam deceased was conducted on 4.8.1978 by Dr. S. U. K. Zuveri (P.W. 3), who found one incised wound 4" x 2" x bone deep on front of neck middle part transverse cutting all the muscles, thyroid cartilage, oesophagus and third clavicle vertebra and cause of death was shock and hemorrhage as a result of injury. The doctor prepared post-mortem report Ext. Ka-2.

The Investigating Officer completed the remaining investigation and submitted charge-sheet against the Appellants.

The cognizance of the case was taken by the Magistrate who committed the case to the Court of Sessions.

The Appellants were charged with the offence punishable u/s 302 read with Sections 34, I.P.C. and 201, I.P.C. Appellants pleaded not guilty and contended that they were falsely implicated on account of enmity.

The prosecution in support of its case examined Km. Kamlesh (P.W. 1), Hari Kishan (P.W. 2), Dr. S. U. K. Zuveri (P.W. 3), Rohitashwa Kumar (P.W. 4), Shafi Abbas (P.W. 5), Shiv Raj Singh Sub-Divisional Magistrate (P.W. 6), Smt. Lajjawati (P.W. 7), Head Moharrir Veer Singh (P.W. 8). Head Constable Chandra Bhan Sharma (P.W. 9) and Suresh Chandra Sharma, Investigating Officer (P.W. 10). Appellants did not adduce any evidence in their defence.

Learned Sessions Judge on considering circumstantial evidence relied on by the prosecution held that the prosecution has proved barious links of circumstantial evidence and they are of such nature which point to the guilt of the Appellants and to no other inference. With these findings he convicted and sentenced the Appellants as mentioned above.

Aggrieved with their above conviction and sentence the Appellants preferred this appeal.

Smt. Piari died during pendency of appeal, vide report of C.J.M., dated 15.3.2001. Therefore, the appeal preferred by Smt. Piari stood abated.

Appellant Omvir was absconding. Non-bailable warrants were issued against him. C.J.M., Gautam Budh Nagar and Ghaziabad reported vide their report dated 30.4.2003 and 7.5.2003 that Appellant Omvir had left the place of his residence after selling his movable and immovable properties and his sureties were not traceable for want to surety bonds. Therefore, the appeal preferred by Omvir was heard in his absence and is being disposed of on merit vide Bani Singh and ohters Vs. State of U.P.,

We have heard Shri Vinay Sharan, learned Counsel for the Appellants Masih Charan and Ganga Saran and the learned A.G.A. for the Respondent and have gone through the entire evidence on record.

There is no direct evidence in this case. The case is based on circumstantial evidence. It is settled law that where a case rests squarely on circumstantial evidence, the 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 or guilt of any other person. See Hukam Singh Vs. State of Rajasthan, ; Eradu and Others Vs. State of Hyderabad, ; Earabhadrappa v. State of Karnataka AIR 1963 SC 446 ; State of U.P. Vs. Sukhbasi and Others, ; Balwinder Singh alias Dalbir Singh Vs. State of Punjab, ; Ashok Kumar Chatterjee Vs. State of M.P., . In Bhagat Ram Vs. State of Punjab, , it was laid down that where the case depends on the conclusion drawn from circumstances, the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.

Further the Apex Court in the case of C. Chenga Reddy and Others Vs. State of Andhra Pradesh, observed as below:

In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.

In Padala Veera Reddy Vs. State of Andhra Pradesh and others, , it was laid down that when 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 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.

In State of U.P. Vs. Ashok Kumar Srivastava, , the Apex Court pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.

First of all, we will take up the appeal preferred by Appellant Omvir. The prosecution relied on the following circumstances against Appellant Omvir:

(1) Appellant Omvir was ill and was under treatment of Appellant Ganga Sharan a sorcerer. He was advised to offer a human sacrifice in order to cure him ;

(2) On the morning of 30.7.1978 at about 10.00-10.30 a.m. he called Ghan Shyam deceased from his house on the pretext of enjoying swing in his house and after enjoying swing he detained him at his house ;

(3) Smt. Lajjawati, mother of Ghan Shyam, deceased enquired about the deceased from the mother of Appellant and she told that the deceased left his house after enjoying swing.

(4) On 2.8.1978 Hari Kishan, father of deceased enquired about his son from Omvir Appellant and he told him in the presence of other villagers that he had left Ghan Shyam deceased to Sikandrabad. He went along with Hari Kishan and others towards Sikandrabad up to one mile and then told that he had given wrong information ;

(5) On the pointing out of Omvir Appellant the dead body of Ghan Shyam deceased was recovered from his room, which was buried in the said room and articles of puja, khurpa and some burnt articles of puja were also recovered from the said place.

(6) Omvir along with his mother Smt. Piari made extra judicial confession before Rohitashwa Kumar (P.W. 4) and Shafi Abbas (P.W. 5).

On the circumstance No. 1 there is evidence of Hari Kishan and Smt. Lajjawati (P.W. 7) as well as documentary evidence Ext. 3 to 14, which were recovered from the house of Appellant Omvir. Smt. Lajjawati (P.W. 7) stated that Omvir was ill for a long time and Ganga Sharan, a sorcerer was treating him and offering puja. She further stated that once she had gone to the house of Omvir and a curtain was lying on his door. His mother Smt. Piari was not permitting any body to enter into her house on the pretext that shadow of the body would disturb of pooja. Hari Kishan (P.W. 2) also stated that Omvir was ill for a long time. The blood examination reports of Central Laboratory, Ghaziabad and Chaudhary Clinic Laboratory, prescriptions of Hindon Nadi Surgeon and X-ray plates relating to Appellant Omvir relating to the period from 11.6.1978 to 11.7.1978, laboratory test reports concerning examination of blood, urine, stool, sputum and urethral smear of Omvir (Ext. 3 to 9), patient card of Hindon Nadi Surgeon dated 11.6.1978 Ext. 10 and X-ray plates Ext. 11 to 14 relate to Appellant Omvir and were recovered from his house by Investigating Officer Shri Suresh Chandra Sharma (P.W. 10). The above documents have not been challenged. The above documentary evidence coupled with oral evidence of Hari Kishan (P.W. 2) and Smt. Lajjawati (P.W. 7) established that Appellant Omvir was ill. It is also clear from the evidence of Smt. Lajjawati (P.W. 7) that Omvir was also being treated by Ganga Sharan sorcerer assisted by Masih Charan. She had also seen the above two persons at the house of Omvir Appellant several times. Therefore, the prosecution has established the above circumstances that Appellant Omvir was ill for a long time.

On the second circumstance, there is evidence of Km. Kamlesh (P.W. 1) and Smt. Lajjawati (P.W. 7) Km. Kamlesh (P.W. 1) stated that on the date of occurrence at about 10.30 a.m. she along with Ram Singh, Jagdish and Smt. Lajjawati was present in chaupal of Hari Kishan (P.W. 2). Ghan Shyam was also with them and they were playing there. Omvir Appellant came there and asked Ghan Shyam to come to his house to enjoy swing. She and Ghan Shyam went to the house of Omvir. There was a swing in his verandah. They enjoyed swing for some time and thereafter Omvir asked other children except Ghan Shyam to go away saying that only Ghan Shyam would enjoy the swing. He himself was pushing the swing. Smt. Lajjawati (P.W. 7) mother of Ghan Shyam deceased stated that on the date of occurrence at about 10.00 a.m. her son Ghan Shyam was at his chaupal. Jagdish, Ram Singh and Km. Kamlesh (P.W. 1) daughter of Rajvir, Bhanja and Bhanji of Omvir were also there and they were playing with Ghan Shyam. In the meantime, Omvir came there and called Ghan Shyam to enjoy swing. Ghan Shyam went with him to his house and thereafter did not return.

We have gone through the cross-examination of Km. Kamlesh (P.W. 1) and Smt. Lajjawati (P.W. 7). Km. Kamlesh (P.W. 1) was a child aged about 10-11 years. She was equal to the age of Ghan Shyam deceased. Therefore, it was but natural for Km. Kamlesh (P.W. 1) to play with Ghan Shyam and other children. There is nothing in her cross-examination to show that she had any ground to depose falsely against the Appellants. Smt. Lajjawati (P.W. 7) is mother of the deceased. Her presence at her house along with her son Ghan Shyam was natural. She was the next door neighbour of Appellant Omvir. She and Kamlesh also stated that there was a swing in the verandah of Omvir Appellant. There was no enmity between Smt. Lajjawati (P.W. 7) and Appellant Omvir as nothing has been suggested or shown. Smt. Lajjawati (P.W. 7) had also no reason to object taking of Ghan Shyam by Appellant Omvir as generally children enjoy swing, if it is available in their neighbourhood. The evidence of above witnesses is also corroborated by the evidence of Investigating Officer Shri Suresh Chandra Sharma (P.W. 10) who had recovered a swing from the verandah of Appellant Omvir. We find no ground to disbelieve the above witnesses on the above circumstance. As such, the prosecution has established that on the date of occurrence at about 10.30 a.m. Appellant Omvir took the deceased to his house under the pretext of enjoying swing and he detained him and thereafter he was not seen alive.

On the third circumstance, there is evidence of Smt. Lajjawati (P.W. 7). She stated that when Ghan Shyam deceased went with Appellant Omvir, she performed her domestic work and when Ghan Shyam did not return for a long time, she started searching him. She went to the house of Rajvir, father of Km. Kamlesh and enquired from Km. Kamlesh (P.W. 1) as to where Ghan Shyam was. She told that Omvir had detained him at his house. Thereafter her brother Jagdish also came. Both of them went to the house of Smt. Piari, mother of Appellant Omvir. She called Ghan Shyam from the door of Piari as her doors were closed. Smt. Piari came and told that Ghan Shyam had left her house after enjoying swing. Thereafter she searched Ghan Shyam in the village and when he was not found she sent her brother Jagdish to inform her husband at Delhi, where he was residing in connection with his service. If Ghan Shyam had not returned to his house for a long time, it was but natural for his mother Smt. Lajjawati (P.W. 7) to search him. As mentioned above, there is nothing in the evidence of Smt. Lajjawati (P.W. 7) to disbelieve her. Therefore, the prosecution has also proved this circumstance.

On the circumstance No. 4, there is evidence of Hari Kishan (P.W. 2), the father of Ghan Shyam deceased. He stated that he was serving in Akashvani, Delhi and was residing there. His brother-in-law Jagdish came to his quarter at Delhi and informed that Ghan Shyam was missing. He came to his house on the night of occurrence at about 9.30-10.00 p.m. and searched his son, but he was not traceable. He told the fact of missing of his son to the persons of village and also enquired from Omvir and his mother Smt. Piari. Omvir told before him and other persons of the village that he had left Ghan Shyam to Sikandrabad. On it the persons of the village asked him to go with them and show Ghan Shyam. He went along with him and other villagers up to a distance of one mile from his village and then told that he did not know the whereabouts of Ghan Shyam and due to fear of persons of village he told that he had left Ghan Shyam to Sikandrabad. Thereafter he lodged report of the occurrence on 2.8.1978. No enmity, ill-will or grudge has been suggested with the witness. The witness admitted in his cross-examination that a panchayat was convened in the village. The son of the witness was taken by Appellant Omvir to his house and since then he was missing and, therefore, it was but natural for the witness to convene a panchayat to pressurize Omvir to tell about his son. It is true that Hari Kishan (P.W. 2) lodged report of the occurrence on 2.8.1978, while the deceased was missing from 30.7.1978, but it has come in the evidence of the witness that he was searching his son and had also taken help of the villagers. Thus, the lodging of report on third day has also been explained and it was also natural for the informant first to trace his son and then lodge the report. There is also no ground to disbelieve the evidence of Hari Kishan (P.W. 2). Therefore, the prosecution has also established this circumstance.

On the next circumstance of the recovery of the dead body of the deceased from his house where he was buried, there is evidence of Shri Shiv Raj Singh, S.D.M. Dadri (P.W. 6) and Suresh Chandra Sharma, Investigating Officer (P.W. 10). Shri Suresh Chandra Sharma (P.W. 10) stated that he arrested Appellant Omvir on 2.8.1978 and interrogated him. After interrogation he sent wireless message to the Higher Officers including the Sub-Divisional Magistrate and Circle Officer. The Sub-Divisional Magistrate came on the spot and recovery of the dead body was made in his presence and other witnesses. On the pointing out of Appellant Omvir, the floor of his room was dug and after digging up to depth of about 2 feet the dead body of Ghan Shyam was recovered. A khurpa and articles of worship and ashes of burnt articles were also recovered. Shri Shiv Raj Singh, the then S.D.M., Dadri (P.W. 6) stated that he reached at the house of Omvir along with the police force and Omvir had pointed out the place where the dead body was buried. The floor of the room was dug and dead body of a boy was recovered, which was identified by the parents of deceased. A khurpa, khappar, blood stained ash were also recovered. Recovery memo Ext. Ka-3 was prepared, which was attested by him. The Sub-Divisional Magistrate being a disinterested witness and was a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the Appellant or was in any way interested for fabricating recovery of dead body of deceased, question of doubt on recovery of dead body does not arise. The above two responsible offices had no reason to depose falsely against the Appellant. There is nothing in their cross-examination to doubt their testimony. Therefore, the prosecution has also established the recovery of dead body of Ghan Shyam deceased on the pointing out of the Appellant Omvir, which was buried in his room. The Appellant had not explained how dead body was buried in his room.

On the last circumstance, i.e., extra-judicial confession, there is evidence of Rohitashwa Kumar (P.W. 4) and Shafi Abbas (P.W. 5). Rohitashwa Kumar had not supported the prosecution case and he was declared hostile. However, he admitted in his cross-examination by the prosecution that Omvir had told him that dead body of Ghan Shyam son of Hari Kishan was buried in his room. The witness had not supported the prosecution story regarding Appellant Ganga Sharan and Masih Charan, but in his cross-examination, he stated about the extra-judicial confession made by Omvir. Shafi Abbas (P.W. 5) also stated that Appellants Ganga Sharan, Masih Charan and Smt. Piari came to the house of Rohitashwa and made extra-judicial confession. He had not stated about the extra-judicial confession made by Appellant Omvir. At the time of alleged extra-judicial confession, Rohitashwa Kumar and Shafi Abbas were present. Therefore, there is material discrepancy in the statement of above two witnesses regarding extra-judicial confession and it has also not been shown as to why the Appellants preferred to make extra-judicial confession before Rohitashwa Kumar who had no influence over the police or other authorities. Therefore, the evidence of extra-judicial confession is not believable.

The above circumstantial evidence are cogent and have firmly been established. The above circumstances taken cumulatively formed a chain so complete that there is no escape from the conclusion that within all human probabilities the crime was committed by Appellant Omvir. Even if the circumstances of extra-judicial confession is ignored, the above circumstances are sufficient to prove the guilt of Appellant Omvir and none of the above circumstances are inconsistent with his innocence. Therefore, the prosecution established the guilt of Appellant Omvir for the offence punishable u/s 302 read with Sections 34, I.P.C. and 201, I.P.C.

Now we will take up the case of Appellants Masih Charan and Ganga Sharan. Against these Appellants, the prosecution has relied on the following circumstances:

(1) On 30.7.1978 when Smt. Lajjawati (P.W. 7) went to the house of Appellant Smt. Piari Appellant Ganga Sharan and Masih Charan were present there and they were arranging a puja. Ganga Sharan was a sorcerer and Masih Charan was his assistant ;

(2) Both the Appellants made extra-judicial confession before Rohitashwa Kumar (P.W. 4) and Shafi Abbas (P.W. 5).

As regards circumstance No. 1, there is evidence of Smt. Lajjawati (P.W. 7). She stated that when her son did not return she went to the house of Smt. Piari, Appellant to search her son Ghan Shyam deceased, she saw that the doors of house of Smt. Piari were closed. Appellants Masih Charan and Ganga Sharan were present there and preparation for puja was going on. She also stated that Ganga Sharan was sorceror and Masih Charan was his assistant. Assuming that the presence of above Appellants at the house of Omvir is established and they were making preparation for puja, without any other circumstance this circumstance alone does not implicate them for the sacrifice of the deceased.

The next circumstance against the above Appellants is that of extra-judicial confession. On this circumstance, there is evidence of Rohitashwa Kumar (P.W. 4) and Shafi Abbas (P.W. 5). Rohitashwa Kumar (P.W. 4) stated that about one year and four months ago Ganga Sharan, Masih Charan and Smt. Piari had come to his house. Shafi Abbas was also sitting at his house at that time. Smt. Piari told him that the son of Hari Kishan who was missing is dead. He enquired as to how he died, then Smt. Piari told that her son would tell him every thing. He was declared hostile.

Shafi Abbas (P.W. 5) stated that one year four months ago, he had gone to the house of Lala Rohitashwa Kumar to borrow some money at about 5.00 a.m. Appellants Ganga Sharan, Masih Charan and Smt. Piari were present there. Observing him, the above persons were terrified and told Rohitashwa that they had to say some thing to him. Rohitashwa asked him (Shafi Abbas) to go out but the above persons told that he should also stay. The above Appellants touched his feet and told that a blunder was committed by them as murder of a boy was done. Ganga Sharan told that Smt. Piari told him that her son was ill and human sacrifice needed to cure him. Ganga Sharan further told that Smt. Piari had paid to him Rs. 1,000 for performing human sacrifice. He also told that Omvir had taken the son of Hari Kishan and he was sacrificed. In his cross-examination, he stated that all the Appellants Smt. Piari, Ganga Sharan and Masih Charan told this fact before him and Rohitashwa.

It is not clear from the evidence of Shafi Abbas as to what sort of influence he had on the police or other authorities. In case the witness was not influential, there was no occasion for the above Appellants to make extra-judicial confession before him as held by the Apex Court in the case of Surendra Kumar v. State of Punjab 1999 SCC (Crl) 33 , that it is significant to note that the Appellant had no particular relationship or connection with the person to whom they made extra-judicial confession so as to confide in him and take assistance for surrendering before the police. Shafi Abbas (P.W. 5) has also not stated the actual words used by the Appellants. As held by the Apex Court in the case of Heramba Brahma and Another Vs. State of Assam, , such type of extra-judicial confession is vague and ambiguous because it is not clear whether each one spoke separately and what were the words used by each of the accused.

Extra-judicial confession is a weak type of evidence. It can be relied on only if it is corroborated by other circumstances. As mentioned above Rohitashwa Kumar (P.W. 4) before whom the alleged confession was made had not supported the prosecution case and there was no occasion for the Appellants to make extra-judicial confession in the presence of Shafi Abbas who had no concern with them and had no influence on the police or other authorities. In these circumstances, the evidence of extra-judicial confession is not worth reliable.

The above two circumstances relied on against Appellants Ganga Sharan and Masih Charan thus, do not conclusively prove their guilt and, therefore, the appeal preferred by the above two Appellants Ganga Sharan and Masih Charan deserves to be allowed.

The appeal is party allowed. The appeal preferred by Smt. Piari stands abated. The appeal preferred by Ganga Sharan and Masih Charan is allowed. Their conviction and sentences are set aside and they are acquitted of the offence to which they stood charged with. They are on bail. Their bail bonds are cancelled and sureties discharged. They need not surrender.

The appeal preferred by Appellant Omvir is dismissed and his conviction and sentence u/s 302, I.P.C. read with Sections 34, I.P.C. and 201, I.P.C. awarded by the trial court are confirmed. He is on bail and is reported absconding. The C.J.M., Ghaziabad shall again make efforts by using all process provided under the law to procure the arrest of Appellant Omvir and ensure sending him to jail to serve out sentence awarded to him.