JUDGMENT R.K. Agrawal, J.
1. This appeal has been filed against the order of conviction and sentence passed by IV Addl. Sessions Judge, Gonda in Sessions Trial No. 322 of 1977 convicting both the appellants for an offence under Section 302/14 IPC -and sentencing each of them to undergo imprisonment for life for committing murder of Mangal in the night of 27/28-5-76 in village Pathanjet h/o Mancharjet, P.S. Kharaupur, District Gonda.
2. Prosecution story is as follows:-
On 28-5-76 Chhotey Lal Chowkidar got information in the morning that a dead body was lying in village Pathanjet in a field. He along with other persons went there and saw a naked dead body lying in a field. No one could, however, identify the said dead body. The information about the same was given by Chhotey Lal Chowkidar by lodging FIR Ext. Ka 6 at P.S. Khargapur at about 14 hours. The case was taken up by SI Thakur Pd. Pandey for investigation. He along with other police personnel reached the spot in the evening and prepared Panchayatnama of the dead body. He also took into custody Dhoti Ext. 4, Banyain Ext. 5 and Angochha Ext. 6 from the dead body of the deceased. He sealed the dead body and sent the same for post-mortem. He took into custody the blood stained and ordinary clay from the spot and prepared necessary Fard. He also took photograph of the dead body. He interrogated Chhotey Lal Chowkidar on the spot and inspected the site and prepared site-plan Ext. Ka 15.
3. On 30-5-76 Dr. Narendra Verma conducted post-mortem examination on the dead body of the deceased and found following things :-
On external examination the doctor found Rigor mortis passed off, decomposition present, body swollen and also found following ante-mortem injuries :-
Incised wound 20 cm x 6 cm x neck vertobrae deep on right side of neck at the root of head extending from left side of front of neck to right side and back of neck towards left side, cutting down trachea Oesophagus and neck vessels of right side and third cervical vertebrae of neck. Injury was caused by a sharp heavy cutting weapon.
On internal examination the doctor found the stomach empty, small intestine empty and large intestine full and conjested. Death was caused by haemorrhage and shock due to neck injury.
4. On 30-5-76 SI Thakur Pd. Pandey interrogated Mahadeo P.W. 6. Mahadeo and other witnesses after the post-mortem of the dead body identified the dead body as that of Mangal. On the basis of interrogation of Mahadeo the Investigating Officer started search for Mahrajdeen.
5. Subsequently from 2-6-76 the investigation was taken over by Station Officer Rajendra Pd. Singh PW 7. He on 10-6-76 again interrogated Mahadeo PW.6 and arrested accused Mahrajdeen and interrogated him and on his pointing out a blood-stained Kurta was recovered from a box kept in the Kothari of Mahrajeen. in presence of Mahadeo PW.O and Pauzdar. The said Kurta was kept in scaled cover and Fard Ext. Ka 2 was prepared. On that very day accused Dhaniram was also arrested and he too was interrogated and on his pointing out a Gandasa Ext. 1, and Gamchha Ext. 2 were recovered in presence of Mahadeo PW.6 and Pauzdar from the side of 'Dahri' (grain container) from the western kothri of his house. The said two articles were kept in sealed cover and Fard Ext. Ka 3 was prepared. These articles were then deposited in the police Malkhana.
6. According to the prosecution both the accused Mahrajdeen and Dhaniram had made extral judicial confession before Mahadeo PW.6 admitting their guilt. A report was also sent for recording confessional statement of both the accused Mahrajdeen and Dhaniram under Section 164 Cr.P.C. Accused Maharajdeen was produced before Munsif Magistrate Sri B.P. Singh PW.5 on 12-6-76 for recording his confession and the Magistrate recorded his statement on that very day, which is Ext.Ka 1 Dhaniram did not appear for making confession. In his statement Mahrajdeen had stated that a few days prior to the incident he had seen his uncle Mangal in a compromising position with his sister Sughra. He on the next day scolded Mangal and his sister Sughra and decided to kill Sughra. Two days after he met Dhaniram, who informed him that Mangal was also having illicit connection with his (Dhaniram's) Bhaujai. Both of them then decided to commit murder of Mangal. Both of them made a plan to take Mangal to village Pathanjet on the pretext that they would supply a beautiful woman to him. They, therefore, on that pretext brought Mangal to village Pathanjet and stayed there in a field. All the three laid down in the night and when Mangal went in sleep, both the accused persons attacked Mangal with Gandasa and committed his murder. After committing murder they wanted to throw away the dead body, but were not successful in doing so. They, therefore, left the dead body there. They went to nearby pond and washed Gandasa. He (Mahrajdeen) washed his Kurta and Dhaniram washed his Banyain. Two days after they were arrested by the Inspector and he (Mahrajdeen) gave his Kurta to the Inspector and Dhaniram gave Angochha and Gandasa to the Inspector.
7. After completing the investigation the Investigating Officer submitted a charge-sheet against both the accused persons. The accused persons pleaded not guilty and stated that they have been falsely implicated in this case. Mahraj Deen has stated that he gave the statement before the Magistrate in presence of the Inspector and the police-men. He gave statement under threat as he was beaten by the police. His statement was recorded under threat and inducement. The statement given by him was not correct. He also denied the recovery of Kurta on his pointing. Dhaniram also denied the recovery of Gamchha and Gandasa on his pointing. According to both the accused persons they were implicated at the instance of Mahadeo.
8. In support of its case, the prosecution had examined Sadhu PW.l, Ram Manorath PW.2, Ram Dularey PW.3 and Mahadeo PW.6 on facts. Dr. N. Verma PW.4 had conducted the post-mortem report. Sri B. P. Singh, Munsif Magistrate PW.5 had recorded the confessional statement of Maharajdeen. S.T. Thaur Pd. Pandey PW.8 had started investigation and SO. Rajendra Pd. Singh PW.7 concluded the investigation and submitted charge-sheet against the accused persons.
9. Accused persons in their defence had examined Swami Dayal DW.l, who deposed that Smt. Sughra was not the real sister of Mahrajdeen. For the muder of Mangal, initially Mahadeo was taken into custody by the police and subsequently he was let off and the accused persons have been implicated falsely. Const. Onkarnath Srivastava DW.2 has deposed that several cases were lodged against Mahadeo PW.6.
10. There is no eye-witness account of the incident and the prosecution has merely relied upon the circumstantial evidence, viz. (i) the deceased was last seen in the company of the accused persons; (ii) recovery of Kurla, Gandasa and Banyain under Section 27 of the Evidence Act; and (iii) extra judicial confession made by the accused to Mahadeo PW.6 and (iv) judicial confession made by Mahrajdeen in the court of Sri B.P. Singh, Munsif Magistrate.
11. The learned Addl. Sessions Judge relying on the prosecution case convicted and sentenced the accused persons as mentioned above.
12. The aforesaid narration of facts would indicate that the case is based on circumstantial evidence only and there is no eye-witness account. The law regarding circumstantial evidence is clear and the circumstances which the prosecution is required to establissh must be such as to complete the chain inevitably leading to the conclusion that it was the accused and the accused alone who have committed the murder. Heavy burden, therefore, lies on the prosecution in this regard to complete the chain of circumstances leading to the guilt of the accused.
13. The first circumstantial evidence relied upon by the prosecution is that the deceased was last seen in the company of the accused persons and for this the prosecution has examined Sadhu PW. I and Ram Dularey PW.3. Both the witnesses, however, turned hostile and did not support the prosecution case. Sadhu PW. I has staled that a day before the murder none of the accused along with Mangal had come to his house nor the accused persons had told him that they were carrying Mangal on the pretext of supplying a girl to him. Ram.- Dularey PW.3 has said nothing that he had seen the accused persons in the company of Mangal. Ram Manorath PW.2 has also not supported the prosecution case that Sadhu had informed him that accused Mahrajdeen and Dhaniram had told Sadhu that they were carrying Mangal on the pretext of supplying a girl to him. Statement of Mahadeo PW.6 that he had gone to the house of Mangal and there he had seen Mangal talking with Dhaniram, does not at all inspire confidence. As would be discussed presently he is not at all a reliable witness. He changes his statement as and when it suits him. From the statements of all these witnesses, therefore, it cannot at all be said that any of the accused persons was last seen in the company of the deceased. There is no other evidence on this point.
14. We would first discuss about the extra judicial confession alleged to have been made by accused Mahrajdeen and Dhaniram to PW. 6 Mahadeo.
15. According to the prosecution both the accused persons had made extra judicial confession to Mahadeo PW.6 by slating that they had committed murder of Mangal in village Pathanjet and that at his instance both the accused persons had agreed to make confession before the police. Mahadeo, in his statement recorded on 29-6-79 before the court did not support the prosecution case regarding extra judicial confession alleged to have been made by the accused to him. He has deposed that Mangal was his ploughman and that he had left his (Mahadeo's) house at about 5-6 P.M. stating that Dhaniram had called him. Mangal, however, did not come back. Mahadeo went to the house of Dhani Ram and saw that both of them i.e. Mangal and Dhaniram were having talks with each other and Mangal informed Mahadco that he would be coming back very soon. Mangal however, did riot come back and on the third day he got information that a dead body was found in village Pathanjet and the same was sent for postmortem. He went there and identified the dead body as that of Mangal. He further stated that thereafter both the accused persons were arrested. He, however, did not say that any of the accused persons had made any confession of their gult. The learned Sessions Judge granted permission to the prosecution to put leading questions to the witness as he did not support the prosecution case. Thereafter he stated that accused Mahrajdean had told him that since Mangal was having illicit connection with the sister-in-law of Dhaniram. Dhaniram had committed murder of Mangal with Gandasa. It may be noted that Mahadeo in his statement did not at all say that Dhaniram made any confession before him. The mere fact that Mahrajdeen had told to Mahadco that Dhaniram had confessed his guilt before Maharajdeen, would not at all be an extra judicial confession by Dhaniram to Mahadeo. At the same breath Mahadeo has denied the suggestion that Mangal had indulged in illicit act with his (Mahrajdeen's) sister Sughra and on that account Mahrajdeen and Dhaniram had committed the murder of Mangal in village Pathanjet with Gandasa. Therefore, the statement of Mahadeo does not at all establish that any of the accused persons had made any extra judicial confession before him.
16. The aforesaid statement of Mahadeo was recorded on 29-6-79. but his statement could not be concluded and, therefore, the case was adjourned to 17-7-79 for further cross-examination of Mahadeo. After the case was adjourned and parties counsel left the court-room, it appears that Mahadeo again entered into the court-room and ventured to give statement. The court administered oath to Mahadeo and in absence of the counsel for the accused and the State counsel and even after the case was adjourned, recorded the statement of Mahadeo on a separate sheet of paper. In this statement he staled that accused Mahrajdeen had told him that he and Dhaniram had committed the murder of Mangal in village Pathanjot. He then asked Mahrajdeen to give the said statement before the Daroga. On this Mahrajdeen requested Mahadeo to save and he (Mahadeo) promised to extend full help to Maharajdeen and had also given him (Mahrajdeen) temptation that he (Mahadeo) would transfer 15 bighas of land in his (Mahrajdeen's) favour. After getting the said assurance Mahrajdeen admitted his guilt before the Daroga. He further stated that at the time of his earlier statement he did not state the aforesaid fact as he was in a fix that he could not save Mahrajdeen and did not transfer 15 bighas of land then why should he implicate Mahrajdeen that he had made confession before him. Since the aforesaid statement was recorded in absence of parties counsel the question of cross-examination by any of them did not arise and he case was taken up on 17-7-79 as ordered earlier and on that day the witness Mahadej) was cross-examined.
17. In cross-examination it was suggested to Mahadeo that after his earlier statement was recorded in the court, he was tortured by the police and under that duress he gave the subsequent statement in court in absence of parties counsel. The learned Sessions Judge has treated this witness as reliable witness. It is rather strange that the learned Sessions Judge has treated this witness Mahadeo as a reliable witness and on the basis of his statement the learned Sessions Judge has held that both the accused persons had made extra judicial confessions before him.
18. Regarding the extra judicial confession alleged to have been made by accused Dhaniram, there is absolutely no averment in the statement of Mahadeo that Dhaniram had made any extrajudicial confession before him. According to Mahadeo, accused Mahrajdeen had stated before him that since Mangal was having illicit connection with the brother's wife of Dhaniram, Dhaniram had committed murder of Mangal by cutting his neck by a Gandasa. We are afraid this alleged information given by Mahrajdeen to Mahadeo regarding Dhaniram may at all be an extra judicial confession of Dhaniram to Mahadeo.
19. The learned Sessions Judge, however, held the accused Dhaniram guilty on the basis of recovery of Gandasa and Gamchha under Section 27 of the Evidence Act coupled with the alleged confessional statement made by Mahrajdeen to Mahadeo in respect of murder committed by Dhaniram. The approach of the learned Sessions Judge is in our opinion erroneous and unwarranted by any law. The confessional statement made by co-accused in respect of another accused cannot at all be made basis of conviction in respect of another accused who has not made any confessional statement before any witness.
20. So far as the extrajudicial confession alleged to have been made by Mahrajdeen to Mahadeo is concerned, the statement of Mahadeo PW.6 cannot at all be accepted and he cannot at all by any stretch of imagination be treated as a reliable witness. In his examination-in-chief and the statement which has been recorded in presence of the parties counsel, Mahadeo did not at all say that Mahrajdeen had made any extrajudicial confession about his guilt. His cross-examination was to continue on another date. The learned Sessions Judge has, however, adopted a novel procedure by recording the statement of Mahadeo in absence of the accused persons and the parties counsel. Such statement which was given in absence of the parties cannot at all be taken into account. The learned Sessions Judge has relied on the said statement though in the order-sheet he has clearly mentioned that the said statement would not be read in evidence. A witness who can change his statement as and when it suits him, cannot at all be said to be a reliable witness and such statement has to be discarded outright.
21. Mahadeo PW.6 had absolutely no courage to say before the parties counsel that accused Mahrajdeen had made any extrajudicial confession before him about his guilt. On the contrary he clearly stated that no such statement was made by Mahrajdeen to him. The learned Sessions Judge has fallen in error in relyingon the statement of Mahadeo regarding the alleged extra judicial confession made to him by Mahrajdeen. In our considered opinion, therefore, there is absolutely no evidence on record, on the basis of which it can be said that Mahrajdeen had made any extrajudicial confession to Mahadeo. This circumstance that the accused persons had made extrajudicial confession about their guilt falls on the gorund.
22. The other circumstance which has been relied upon by the prosecution is the judicial confession made by Mahrajdeen before the Magistrate on 12-6-79. Accused Mahrajdeen in his statement under Section 313 Cr.P.C. has stated that the said statement was given by him under duress by police and inducement. In order to prove this confessional statement, the prosecution has examined Sri B. P. Singh, Munsif-Magistrate PW.5. Sri Singh has stated that he had recorded the confessional statement of Mahrajdeen in the court and that he had warned the accused that he was not bound to make confession and that any statement made by him would be read against him. He also stated that he had told the accused that he was giving statement before a Magistrate I Class. According to Sri Singh the accused had given statement of his own free will and there was no pressure by police or any persons.
23. The Magistrate has given a certificate below the statement of the accused as required under Section 164 Cr.P.C. Learned counsel for the appellants has, however, contended that the record does not indicate the basis on which the learned Magistrate had reason to believe that the statement was given voluntarily and there was no pressure on the accused from any side. Before recording confession of an accused under Section 164 Cr.P.C. it is the duty of the Magistrate to satisfy himself that the accused was giving statement voluntarily and for this he has to put certain questions to the accused and from the answers given to the questions, the Magistrate would come to the conclusion as to whether the confession which the accused is going to make would be voluntary or under some duress or inducement. The questioning of the accused before recording confession as to whether it was voluntary is a matter of substance and not of mere form. A Magistrate should ascertain at the beginning of the statement and not at the end whether the confession made is voluntary. In the instant case before us, from the statement of the learned Magistrate, it is clear that he had not put any question to the accused before making confession, but he had given only warning as has been given in the certificate. It is, therefore, clear that before recording the confession, the learned Magistrate had not at all made any enquiry by putting question to the accused for satisfying himself that the confession made by the accused was voluntary and not under duress and inducement.
24. In the case reported in 1973 Cri LJ 1478 Badri Prasad v. State of U.P. a Single Judge of this Court has come to the conclusion that if the Magistrate, who had recorded the confession under 164 Cr.P.C. had not put questions to the accused before recording statement in order to satisfy himself that the statement was being made voluntarily, the said omission, according to the Court, would not go to fill up the lacuna even if the learned Magistrate in his statement in court deposed that he had put questions to the accused. It was also held that the certificate which the Magistrate has given as required under Section 164 Cr.P.C. was only in compliance to the instructions given in Section 164 Cr.P.C. and that would not go to indicate that the Magistrate had put questions to the accused before recording statement under Section 164 Cr.P.C. to satisfy himself that the statement was voluntary. Similar view was taken by Orissa High Court in a case reported in 1977 Cri LJ 2053 (FB) Shanti v. State and by the Hon'ble Supreme Court in a case , Kohar Singh v. State.
25. In this case no foundation or basis has been laid by the Magistrate for this Court to judge that the Magistrate had satisfied himself that the confession was made voluntarily and he also did not put questions to the accused as to why he was making confession and he had also not informed the accused that he would not be remanded to the police custody even if he did not confess his guilt. Similar question had arisen before the Hon'ble Supreme Court in a case reported in AIR 1978 1544 : (1978 Cri LJ 1614), Devendra Prasad Tewari v. State of U.P. In that case also the Magistrate who recorded the alleged confessional statement did not put questions to the accused as to why he was making confession and the Magistrate had also not told the accused that he would not be remanded to the police lock up even if he did not confess his guilt. The Hon'ble Supreme Court, therefore, did not rely on the alleged confessional statement. The mere certificate given by the Magistrate as required under Section 164 Cr.P.C. would not in our opinion, be sufficient.
26. In this case we do not have any material on record to indicate the circumstances under which the question of confession first arose and how the accused expressed his willingness to be placed before the Magistrate and his readiness to make confession. According to the prosecution, accused Mahrajdeen was arrested on 10-6-76 and he was put up before the Magistrate on 11-6-76. The accused was sent in judicial custody and was ordered to be produced on the next day i.e. on 12-6-76. We have perused the case diary. The case diary does not indicate the circumstances which led the accused Mahrajdeen to make confession of his guilt before the Magistrate. This circumstance also, in our opinion, creates doubt regarding voluntariness of the confession. Taking all these short comings in the retracted judicial confession, we are not inclined to place absolute reliance on the said confession. Even if for the sake of argument, it is accepted that the said judicial confession which was subsequently retracted, was voluntary one, (to which we do not agree) conviction cannot be based solely on the said retracted judicial confession, though there is no bar for basing conviction on the retracted judicial confession, but as a rule of prudence which has sanctified itself to the rule of law, the courts to look for corroboration before acting upon and accepting the retracted confession. In a case Shanker v. State of Tamil Nadu the Hon'ble Supreme Court has observed (para 32 of Cri LJ) :-
"The judicial confessions are those which are made before a Magistrate or in Court in due course of legal proceedings and when such a confession is retracted, the courts have held that apart from the statement being voluntary it should be true and should receive sufficient corroboration in material particulars by independent evidence. The rule of prudence namely requiring corroboration does not mean that each and every circumstance mentioned in the confession with regard to the participation of the accused in the crime must be separately and independently corroborated. It is sufficient if there is general corroboration of the important incidents, just like in the case of an approver's evidence and it is not necessary that the corroborative evidence itself should be sufficient for conviction. It may not be necessary to refer to remaining aspects governing the use of retracted confession for the purposes of this case. Suffice it to say that it is also laid down that it is not illegal to base a conviction or an uncorroborated confession of an accused person but as a rule of prudence which has sanctified itself to the rule of law, the Courts do look for corroboration before acting upon and accepting the retracted confession and what amount of corroboration would be necessary in a case would be a question of fact to be determined in the light of the circumstances of the case."
27. We have now to see if the said alleged retracted judicial confession finds corroboration from any other material or circumstances on record. The main circumstance which has been relied upon by the prosecution was regarding the recovery of Kurta from the possession of accused Mahrajdeen and Gandasa and Gamchha from the possession of Dhaniram under Section 27 of the Evidence Act. According to prosecution both the accused persons had stated that they could produce Kurta, Gandasa and Gamchha from their possession and on their pointing out the said articles were recovered from their possession.
28. The prosecution in this regard has examined Mahadeo PW.6 and S.O. Rajendra Prasad PW.7. Before discussing the statement of these two witnesses we would like to observe regarding entries made in the case diary by the S.O. Rajendra Prasad PW.7. Both the accused Mahrajdeen and Dhaninam were arrested by the S.O. on 10-6-76 and both of them were interrogated by the Investigating Officer before making recovery of the articles under Section 27 of the Evidence Act. In the statement recorded by the Investigating Officer Mahrajdeen had stated ^^eSa vius /kks, gq, dqrsZ dks njksxk th dks ns jgk gw¡ A**" Similarly Dhaniram in his statement has stated before the Investigating Officer: ^^viuk Hkkyk vkSj xMklk nsojh ds [kM esa fNik fn;k] ftls njksxk th ¼vki½ dks ns jgk gw¡ A**
29. From the aforesaid statements of these two accused persons it is therefore, clear that the articles, viz. Kurta, Gandasa and Gamchha were not recovered under Section 27 of the Evidence Act, but they were already given to the Investigating Officer before he allegedly went to the house of the accused persons and on their pointing out recovered the aforesaid articles. The said recovery of articles cannot at all be treated to be a recovery under Section 27 of the Evidence Act and as such no reliance can be placed on the same.
30. Apart from this, in cross-examination Mahadeo PW.6 has stated that the witnesses and the Investigating Officer were standing in the courtyard and that accused Mahrajdeen had brought the Kurta from inside his house. Similarly Gandasa and Gamchha were not recovered in presence of the witnesses from the 'Dehri' of the house of Dhaniram, but these articles were said to have been given to the Investigating Officer who along with witnesses were standing in the court-yard. Further, there is no convincing evidence on record that the place from where those articles were alleged to have been given by the accused persons were in exclusive possession of the accused. It is also relevant to mention that strangely enough the Investigating Officer had not prepared the site-plan of the places from where the alleged recoveries were made. In absence of site-plan, the places from where the recoveries were alleged to have been made, cannot be located and fixed and it cannot also be said that those places were in exclusive possession of the accused persons.
31. Kurta, which is said to have been recovered from the possession of accused Mahrajdeen, according to the statement of the witnesses and the Fard, was blood-stained. The Chemical Examiner's report Ext. ka 17 on the contrary shows that the said Kurta was not at all blood-stained. The said Kurta, therefore, cannot be linked with the crime. Learned counsel for the State has contended that since the said Kurta was washed after committing the crime, hence the blood was washed off. This contention has no force as at the time of alleged recovery it was mentioned that the Kurta had blood-stains. Gandasa, which was allegedly recovered, according to the Fard and the statement of the witnesses, did not have blood stains. The report of the Chemical Examiner Ext.ka 17 on the contrary shows that the said Gandasa had blood stains. This also creates doubt about the genuineness of the recovery of the Gandasa.
32. According to the retracted judicial confession the murder was committed as deceased Mangal was seen having sexual act with Smt. Sushra, sister of Mahrajdeen and having illicit connection with the wife of the brother of Dhaniram. There is absolutely no material on record on this point. None of the witnesses Have said anything on this aspect.
33. The post-mortem report goes to show that there was only one ante mortem injury i.e. incised wound 20 cm x 6 cm x (sic) vertebrae deep on right side of neck. In the retracted judicial confession it was alleged that Dhaniram had caught hold of the leg of Mangal and that Mobarjdeen had given Gandasa blow on the neck of Mangal. Thereafter Moharjdeen had caught hold of the leg of Mangal and Dhaniram had also given Gandasa blow. Thus according to this statement more than one Gandasa blow were given on the neck of Mangal; whereas according to the post-mortem report as mentioned above there was only one incised wound on the neck. Learned counsel for the State however contended that subsequent Gandasa blows might have fallen at the same very point where the first blow was given. We are not inclined to accept this line of argument. The incident had taken place in the night and it cannot at-all be expected that the assailant would measure his subsequent blows so that those blows could also fall at the very place where the first blow had fallen. Dr. Verma P.W.4, who had conducted the post-mortem had also stated that the said ante-mortem injury was the result of one blow. Thus, the medical evidence also does not lend corroboration to the retracted judicial confession.
34. The investigation also does not appear to be fair and it appears that the entries in the relevant papers were not correctly made. S.O. Rajendra Prasad PW.7 in his statement has admitted that he had arrested both the accused persons from the house of Mahadeo. In the O.D. No. 27, however, it was mentioned that both the accused persons were arrested from their respective houses. This has been admitted by the S.O. Rajendra Prasad. The evidence regarding recovery of the articles under Section 27 of the Evidence Act has been created though according to the recitals made in the case diary these articles had already come in the possession of the Investigating Officer.
35. Taking all these facts and circumstances of the case, therefore, we are of the view that the circumstances relied upon by the prosecution are not at all complete so as to establish that it was the accused and the accused alone who have committed the murder. The prosecution has utterly failed to prove that the deceased was last seen in the company of the accused persons, that the accused persons had made any extra judicial confession to Mahadeo and that any recovery was made under Section 27 of the Evidence Act. The judicial confession made by accused Moharjdeen before the Magistrate, which was subsequently retracted cannot undoubtedly be said that the same was made voluntarily without any pressure or duress. The precautions which were required to be taken by the Magistrate before recording confession under Section 164 Cr.P.C. were not observed.
36. For the reasons stated above, therefore, we are not inclined to endorse the finding of the learned Sessions Judge convicting and sentencing the accused persons namely Moharjdeen and Dhaniram. The appeal is, therefore, allowed. The order of conviction and sentence is set-aside. The accused persons are on bail. They need not surrender. Their bail-bonds and sureties are discharged.