Shrama, J.—This is an appeal by Kedar Nath Singh and Bhim Singh both of whom have been convicted by the learned Additional Sessions Judge Kishangarh under sec. 302 read with sec. 34 of the Indian Penal Code and sentenced to transportation for life. 2. The case for the prosecution is that on the 27th of October, 1953. report was lodged at the Police Kotwali, Kishangarh by one Mahmood that two hands and two legs of same human being were floating on the water of the moat of Kishengarh Fort. The Sub-Inspector incharge of Kotwali after the recording of the report reached the place where the hands and legs were said to have been floating and got them taken out of water atonce. On further search a bag was also found. On investigation it came to light that one Deepchand Singh had been missing since 4th October, 1952 and he was seen going with Bhim Singh appellant to the house of the appellant Kedarmath Singh alias Bapulal on the said date, and that two of the fingers of Kedarnath Singh appellant were seen cut off since then. Both the appellants were interrogated and it is said that Kedarnath Singh confessed that he has called Deepchand to his house through Bhim Singh and that he with a sword and Bhim Singh with a dagger had killed Deepchand (hereinafter to be referred as the deceased) and the hands and legs of the deceased were cut of and were thrown in the most by Bhim Singh. It is alleged that a dead body identified to be that of the deceased was recovered from Kedarnath Singhs Nohra as his instance and a sword, a dagger, apart of trousers, Niwar and other articles were also recovered from his house. Blood stained earth is also said to have been scrapped from a room in Kedarnath Singhs house. As regards Bhim Singh it is said that he also confessed having committed the crime and a watch with its band and gold buttons belonging to the deceased were recovered from his house at the instance of Bhim Singh A cap belonging to the deceased and two fingers belonging to Kedarnath Singh appellant were also recovered. An inquest report was prepared and the dead body was sent for post mortem examination. An inquest report was prepared and the dead body was sent for post mortem examination. According of the Medical Officers report, who carried out the post-mortem examination, the death was due to the neck having been cut by some sharp edged weapon & other injuries were also sufficient to cause instantaneous death. Articles said to be belonging to the deceased were put up for identification and it is said that they were duly identified. The statement of Kedarnath Singh was recorded on the 11th of October, 1952 and that of Bhim Singh on the 14th of Oct., 1952 by Sri Gopal Narain Dhawan, Extra Magistrate, Kishengarh. They have been put forward by the prosecution as the confessions of the appellants and are Exs. 23 and 24 respectively on the record of the case. The following articles were sent for chemical examination— (1) One shirt striped labelled Kedarnath Singh. (2) Pyjama white labelled Kedarnath Singh. (3) One Shirt chaukhana labelled Bhim Singh. (4) One dhoti, green border labelled Bhim Singh. (5) One bagger with signatures of Medical Officer, Kishangarh. (6) One sword with signatures of Medical Officer Kishangarh. (7) Niwar with coloured water with no label. (8) One small earthen pot with earth. According to the Chemical Examiners report, all the articles except the sword were found positive for blood and according to the sero-logists report Arts. Nos. 7 and 8 had human blood stains. 3. After investigation the case was cha-llaned against both the appellants under sec. 302 I.P.C. in the court of the Sub-Divisional Magistrate, Kishengarh who committed them to take their trial under the aforesaid section before the learned Additional Sessions Judge, Kishengarh. 4. Both the accused retracted their confessions in the court of the committing Magistrate as well as in the Sessions Court. Bhim Singh however stated that on the morning of the 4th October, 1952, he had been to call the deceased to the appellant Kedarnath Singh house at the instance of Bilas Kuar, brothers wife of Kedarnath Singh. The deceased, however, did not come to Kedarnath Singhs house at the time but promised to see Bhim Singh in the evening. Bhim Singh however stated that on the morning of the 4th October, 1952, he had been to call the deceased to the appellant Kedarnath Singh house at the instance of Bilas Kuar, brothers wife of Kedarnath Singh. The deceased, however, did not come to Kedarnath Singhs house at the time but promised to see Bhim Singh in the evening. He stated that he did not know whether in the evening the deceased visited Kedarnath Singhs house, He admitted that the buttons and the watch alleged to be belonging to the deceased were recovered from his house at his instance but he did not admit that they belonging to the deceased. He stated that they were given to him by the appellant Kedarnath Singh. As regards the called confession, he said that it was made due to the fear of the Kotwal because the letter had threatened him that if he did not make a confession, a remand would be taken and he word be punished. 5. Kedarnath Singh said that he had made the confession due to fear of the police and that it was false. He admitted that the shirt and the pair of trousers which were recovered from his room belonged to him and said that they might have been smeared with blood of his injured hand. He admitted that two fingers were he but said that they had been cut by his flour machine. He stated that the watch and the buttons produced in the case were his. 6. No direct evidence was produced in the case. The learned Additional Sessions Judge, however, based the conviction of the appellant on circumstantial evidence alone which in the case of Kedarnath Singh included his retracted confession. 7. We have heard Sri A. D. Bareth on behalf of the appellant and Sri C.B. Bhargava Deputy Government Advocate on behalf of the State. Mr. The learned Additional Sessions Judge, however, based the conviction of the appellant on circumstantial evidence alone which in the case of Kedarnath Singh included his retracted confession. 7. We have heard Sri A. D. Bareth on behalf of the appellant and Sri C.B. Bhargava Deputy Government Advocate on behalf of the State. Mr. Bareth has attacked the judgment of the lower court on the following grounds— (1) that there was no direct evidence to show that either of the two accused killed Deepchand deceased; (2) that the circumstantial evidence relied upon by the learned Additional Sessions Judge was altogether insufficient to bring home the charge of the murder to either of the two accused; (3) that it was not established that the watch with its band and the buttons recovered from the place of Bhim Singh accused belong to the deceased; (4) that the so called confession of Kedarnath Singh on which the lower court had relied was neither voluntary nor true and there was no independent evidence to corroborate the said confession in material particulars; (5) that the lower court has wrongly relied upon the circumstance of Kedarnath Singhs finger having been found cut for the conviction of the accused Kedarnath Singh; as he has given a very satisfactory explanation how his fingers were cut; (6) that the lower court was altogether unjustified in making use of the statement of Mst. Bilas Kaur under sec. 164 of the Criminal Procedure Code. Her statement before the committing Magistrate was wrongly admitted under sec. 33 of the Evidence Act. It was found on chemical examination that the sword with which Kedarnath Singh is said to have murdered the deceased had any human blood stains; (7.) that there was no charge under sec. 302 read with sec. 34 I.P.C. and the learned Additional Sessions Judge was therefore, unjustified in convicting both the accused under sec.302 by virtue of the sec.34 and it has resulted in prejudice to both the accused. 8. We take up the point No 6 first. It has already been decided by this court by its judgment dated 7-4-55, that the evidence before the committing Magistrate was wrongly admitted under sec. 33 of the Evidence Act. We need not, therefore,say nothing more on this point. So far as the question whether the lower court was justified in making use of the statement of Mst. Bilas Kaur under sec. 33 of the Evidence Act. We need not, therefore,say nothing more on this point. So far as the question whether the lower court was justified in making use of the statement of Mst. Bilas Kaur under sec. 164 of the Crimi-nal Procedure Code is concerned, we can say without any hesitation that that statement should not have been read as substantive evidence by the learned Additional Sessions Judge. He has himself said in tine part of his judgment that authorities cited before him showed that statements under sec. 164 are not to be used as substantive evidence We do not know how in the end learned Additional Sessions Judge made use of this statement of Mst. Bilas Kaur for the conviction of the accused. We consequently rule out that statement from consideration. 9. It has now to be seen whether the remaining evidence which has been relied upon by the learned Additional Sessions Judge in convicting Kedarnath S:ngh and Bhim Singh was sufficient for conviction in the case of each of the two accused. So far as Bhim Singh is concerned, we have no hesitation in holding that the evidence is altogether in sufficient. His so-called confession, Ex.P.24, has been ruled out by the learned Additional Sessions Judge himself and rightly so as it was exculpatory. His conviction is based simply on the four following pieces of evidence— (1) the statement of Mst. Bilas Kaur recorded under sec 164 of the Criminal Procedure Code (Ex. P. 5); (2) the confession of the co-accused Kedarnath Singh; (3) the statement of Mst Bilas Kaur, dated 12th Dec, 1952 (Ex. P. 26) recorded before the committing Magistrate, and (4) the recovery of cap (Ex. P.A.3) at his instance and the recovery of buttons and watch (Ex. P. A 1 and Ex. P. A 2) respectively) from his house. 10. It has already been said that the statement of Mst. Bilas Kaur in the committing Magistrates court was wrongly admitted under sec. 33 of the Evidence Act. It has also been held that the statement of Mst. Bilas Kaur under sec 164 too could not be made use of Thus out of the four pieces of evidence which the lower court has relied upon, the two go away. There remains only the confession of the accused Kedarnath Singh and the recovery of cap (Ex. It has also been held that the statement of Mst. Bilas Kaur under sec 164 too could not be made use of Thus out of the four pieces of evidence which the lower court has relied upon, the two go away. There remains only the confession of the accused Kedarnath Singh and the recovery of cap (Ex. P. A 3) and buttons and watch (Ex P.A. 1 and Ex. P.A.2) respectively. So far as the recovery of buttons Ex. P. A.l and watch Ex. P. A. 2 are concerned, we are not satisfied on the evidence on the record that they were proved to be the properly of the deceased. The evidence of identification of the said two properties is that of Jawahar Singh P. W. 3 Chanderbai P. W. 9 and Fakir Mohd. P.W. 10. Jawahar Singh identified the two articles before the Magistrate who carried out the identification proceedings. The evidence of Jawahar Singh has not been believed on this point by the learned Additional Sessions Judge himself and he has given good reasons for that. We are left only with the evidence of Chanderbai P. W. 9 (mother of the deceased) and Fakir Mohd. P. W. 10. The evidence of Chanderbai and Fakir Mohd. has been believed by the learned Additional Sessions Judge. Mst. Chanderbai was confronted with her statement before the committing Magistrate and had to admit that she had stated there that the buttons and watch did not seem to be those of the deceased. She explained this statement by saying before the trial court that she had said so because she was over-whelmed with grief when she was examined in the committing Magistrates court. However, this explanation does not appear to be convincing. If she was really over-whelmed with grief,she could have very well stated before the committing Magistrate that on account of her grief she was not properly able to identify the two articles. It is also not believable that she might have presence of mind enough to depose about other things but only at the time of the identification of the two articles grief overwhelmed her all of a sudden and incapacitated her from identifying these articles. It is also not believable that she might have presence of mind enough to depose about other things but only at the time of the identification of the two articles grief overwhelmed her all of a sudden and incapacitated her from identifying these articles. Before the Magistrate also, who held identification proceedings, the watch was mixed up with certain other watches which had their winding keys alright while the winding key of this watch was in a broken condition, and was not attached to the watch at that time. About buttons, the Magistrate was not in a position to say whether the buttons which were in court were the same buttons which had been put up for identification before him. Mst. Chanderbais evidence was not sufficient to prove that the watch and buttons belonged to the deceased, As regards Fakir Mohd. P. W. 10, he came forward as the partner of the deceased but he did not mention it in his statement before police nor had he said there anything about the buttons and the watch nor anything about the cap. He stated that the cap was not of any special design. It was just an ordinary cap. The identification of this witness about any of the above three articles could not be of any value. Bhim Singh has given a explanation that he had borrowed these articles from Kedarnath Singh and Kedarnath Singh has admitted it. Under these circumstances the recovery of these articles from the possession of Bhim Singh cannot be held to be an incriminating factor. This piece of evidence also has been wrongly relied upon by the learned Additional Sessions Judge. 11. Coming to the last question it is necessary to see whether support for the conviction of Bhim Singh could be drawn from the confession of the accused Kedarnath Singh. There is a recent ruling of the Supreme Court in the case of Kashmira Singh vs. The State of Madhya Pradesh (1) in which the value of confession of an accused against his co-accused has been discussed. The following observations of their Lordships of the Privy Council in the case of Bhuboni Sahu vs. The King (2) were quoted with approval — "It is not required to be given on oath, nor in the presence of the accused and it cannot be tested by cross-examination. The following observations of their Lordships of the Privy Council in the case of Bhuboni Sahu vs. The King (2) were quoted with approval — "It is not required to be given on oath, nor in the presence of the accused and it cannot be tested by cross-examination. It is obviously an evidence of a very weak type.........It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of these infirmities." After quoting these observations of the Privy Council, their Lordships say They (their Lordships of the Privy Council) stated in addition that such a confession cannot be made the foundation of the conviction and can only be used in support of other evidence. In view of these grounds, it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question, is in what way can it be used in support of other evidence ? Can it be used to fill in missing gaps ? Can it be used to corroborate an accomplice or, as in the present case, a witness who though not accomplice, is placed in the same category regarding credibility because the judge refuse to believe him except in so far as he is corroborated". Replying the question posed by their Lordships themselves, their Lordships observed as follows: "In our opinion the matter was put succinctly by Sir Lawrence Jenkins in Emperor vs. Lalit Mohan(3) where he had said that such a confession can only be used to lend assurance to other evidence against a co-accused or to put in another was as Reilly J. did in In re Periyaswami Moopan(3).— "the provision goes no further than this; where is evidence against the co-accused sufficient if believed, to support his conviction, then the kind of confession described in sec. 30 may be thrown into the scale as an additional reason for believing that evidence." 12. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what, without the aid of the confession, he would not be prepare to accept. 13. The confession of Kedarnath Singh cannot, therefore, be used against Bhim Singh except for the purposes mentioned above. It has already been said, the other evidence which has been relied upon by the Additional Sessions Judge for the conviction of Bhimsingh except the recovery of cap, buttons and watch is inadmissible against him. The cap was an ordinary cap without any speciality about it and its identification as the cap of the deceased was of no value. As regards the buttons and watch, it has been held above that it was not satisfactorily proved that they were the buttons and watch of the deceased. Under these circumstances, out of the evidence relied upon by the learned Additional Sessions Judge, there remains no evidence from which it may be said that Bhim Singh committed any offence. The mere confession of the accused Kedarnath Singh cannot therefore, be thrown into scale against Bhim Singh. 14. We may also make a mention of another piece of evidence which has not been relied upon by the learned Additional Sessions Judge. That evidence consists of the statements of Mst. Chandarbai P.W. 9 and Fakir Mohd P.W. 10. According to Chandarbai, on the fateful day Bhim Singh came to the house of the deceased in the forenoon and took him along with him. That evidence consists of the statements of Mst. Chandarbai P.W. 9 and Fakir Mohd P.W. 10. According to Chandarbai, on the fateful day Bhim Singh came to the house of the deceased in the forenoon and took him along with him. Thereafter the deceased never returned and afterwards his legs and hands and other parts of his body were recovered According to Fakir Mohd, the deceased was seen going along with Bhim Singh from the side of Deepchands house and when asked the deceased said he was going to Kedarnath Singhs house. The witness actually saw Deepchand and Bhim Singh entering the house of Kedarnath Singh and thereafter the deceased was no longer seen alive. He was them going inside Kedarnath Singhs house slightly before the Harijan procession which passed though his shop that day. The time which Chanderbai has given is about the same time which Fakir Mohd, has given. There is no reason to disbelieve the evidence of these two witnesses on this point and to our mind it fully proved from their evidence that Bhim Singh took the deceased to Kedarnath Singhs house on the Harijan Day i.e. Kartik Badi 1, Svt. 2009 corresponding to 4th of October, 1952, sometime in the forenoon. The question, however, is whether this circumstance alone is sufficient to prove that Bhim Singh had any hand in the Killing of deceased. To this our answer is unhesitatingly in the negative. 15. Having considered all the evidence against this accused we are unable to agree with the earned Additional Sessions Judge that Bhim Singh could be convicted of the murder of the deceased or for any other offence in connection with the killing of the deceased. 16. Taking up the case of Kedarnath Singh the following evidence has been relied upon by the learned Additional Sessions Judge for his conviction. (1) the confession of Kedarnath Singh; (2) recovery of dead body at the instance of Kedarnath Singh from the compound of the house of this accused: (3) the recovery of dagger PA. 7 and the sword P. W. 6 from the house of Kedarnath Singh who led the investigation party there on that occasion; (4) the statement of Mst. Bilas Kaur, Ex. P. 4 recorded under sec. 164 Criminal Procedure Code and her evidence before the committing Magistrate, admitted under sec, 33 of the Evidence Act; (5) the recovery of buttons Ex. 7 and the sword P. W. 6 from the house of Kedarnath Singh who led the investigation party there on that occasion; (4) the statement of Mst. Bilas Kaur, Ex. P. 4 recorded under sec. 164 Criminal Procedure Code and her evidence before the committing Magistrate, admitted under sec, 33 of the Evidence Act; (5) the recovery of buttons Ex. P.A. 1 and watch, Ex., P.A. 2, from the possession of Bhim Singh and admission by both the accused that they were given by Kedarnath Singh to Bhim Singh ; and (6) the fingers of right hand of Kedarnath Singh having been found cut. 17. So far as the statement of Mst. Bilas Kaur, Ex P.4, recorded under sec 164 Cr.P.C. and her statement before the committing Magistrate are concerned, we have already held that they were inadmissible. We shall, therefore, rule these two pieces of evidence out. So far as the recovery of watch and buttons is concerned, we have said above that we are not satisfied that they were the properties of the deceased. This evidence too, therefore, goes out. Thus out of the evidence relied on by the lower court we are now left only with the following evidence, (1) the confession Ex. P. 23 of Kedarnath Singh. (2) the recovery of sword and dagger Exs. P.A 6 and 7 respectively from the house of the accused Kedarnath Singh, (3) the recovery of the dead body at the instance of Kedarnath Singh from the compound of Kedarnath Singhs house and (4) the fingers of the right hand of Kedarnath Singh having been found cut. 18. We shall take up first the confession of Kedarnath Singh, This confession was retracted by Kedarnathsingh in committing Magistrates court as well as in the Sessions Court There is, however, the evidence of Gopal Narain Dhawan, Magistrate, who recorded the confession that all precautions were taken to ascertain that Kedarnath Singh was making a voluntary statement and not on account of any fear, threat of promise. Before the confession was recorded certain preliminary questions were put by the Magistrate to the accused. He was warned that he was not bound to make any statement and if he would make one it might be used against him. He was asked whether he was making the statement voluntarily of due to some inducement, threat or promise. Before the confession was recorded certain preliminary questions were put by the Magistrate to the accused. He was warned that he was not bound to make any statement and if he would make one it might be used against him. He was asked whether he was making the statement voluntarily of due to some inducement, threat or promise. He replied that he was making it voluntarily and not on account of any threat, inducement or promise. He was asked whether he knew that he was standing before a first class Magistrate and he replied in the affirmative. He was asked if any police employee was standing in the court in near about it or out-side it and he clearly replied that he has seen that there was no police employee there. After this he was asked to say what he wanted to say and he got his statement recorded. At the end there is a certificate by the Magistrate that he had explained to Kedarnath Singh that he was not bound to make a confession and that if he did make one it might be used as evidence against him. Thereafter the Magistrate certified that he believed that the confession was voluntarily made and that it was taken in his presence and hearing and was read over to Kedarnath Singh and admitted by him to be correct and contained a full and true account of the statement made by Kedarnath Singh. There is no reason to doubt the record made by the learned Magistrate or the evidence given by him before the trial court. The statement of Kedarnath Singh was recorded on the 11th of September, 1952, and he was given two days time to think over the matter since he was first produced before the Magistrate for the recording of the confession During this interval he remained in judicial custody. The accused does not say that he was subjected to any physical torture of any kind. All that he says is that he had made confession due to fear of police as he had been told that all the members of his family would be arrested unless he made a confession. The accused does not say that he was subjected to any physical torture of any kind. All that he says is that he had made confession due to fear of police as he had been told that all the members of his family would be arrested unless he made a confession. It is not believable that if any such threat had been given to the accused he would not have stated so before the Magistrate who recorded his confession specially when he was given two days time to think over the matter and during that interval he remained in judicial custody. Far from making any complaint about any threat by the police he clearly stated before the Magistrate that he was making the statement altogether voluntarily and not under any threat or promise. The explanation given by the accused is an after thought and there is not the least reason to doubt the voluntary nature of the confession. 19. Learned counsel for the accused seems to have put certain questions like the following to the Magistrate Mr.Dhawan in cross-examination— (1) Did you first hear the whole story of the accused before writing the same? (2) Did you ask the accused when the police first questioned him? (3) Did you question the accused whether he was detained anywhere by the police before he was taken into custody and, if so, in what circumstances? and (4) Did you ask the accused whether he was induced or urged by the police to make a formal confession? 20. To all these questions, the Magistrate replied in the negative but he said that he had warned the accused that he should not make any statement if he was doing so under any fear, inducement or assurance. He had also told him the consequences of making a confession. Now it may be that some Magistrates might put more searching questions to an accused when he is produced before them for the according of the confession than the Magistrate in the present case did but the law nowhere lays down that the questions as suggested in cross-examination on behalf of the accused ought to be put to the accused before the recording of his confession. All that sec. All that sec. 164 Criminal Procedure Code under which confessions are recorded requires is that the statement shall be recorded by the Magistrate in such of the manners prescribed in the Criminal Procedure Code for the recording of the evidence, as is, in his opinion, best fitted in the circumstances of the case and that such confessions shall be recorded and signed in the manner provided in sec. 364 and that before recording any such confession the Magistrate shall explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless upon questioning the person making it he has reason to believe that it was made voluntarily. The Magistrate is then required to make a memo at the foot of the confession to the following effect— "I have explained to (Name) that he is not bound to make a confession and that if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and was read over to the person making it and admitted by him to be correct, and that it contains a full and true account of the statement made by him." From the record of confession, Ex. P. 23 of Kedarnath Singh, it is quite clear that such questions, as are required by sec. 164, were put to Kedarnath Singh before he was asked to state what he had to state. It is also quite clear that the certificate, as required by s. 164, has also been appended by the Magistrate concerned Mr. Dhawan. Other questions, as already said, were also put by the Magistrate for satisfying himself whether Kedarnath Singh was making a voluntary statement and not under threat, inducement or promise. The confession has been recorded and signed in the manner provided in sec. 364. Thus on a plain reading of sec. 164 Cr.P.C. it will be found that all the conditions necessary for recording a confession have been fulfilled. The Magistrate was examined in this case and his statement also shows that the confession was recorded by the Magistrate after duly satisfying himself that it was being made voluntarily and not under threat, inducement or promise. 164 Cr.P.C. it will be found that all the conditions necessary for recording a confession have been fulfilled. The Magistrate was examined in this case and his statement also shows that the confession was recorded by the Magistrate after duly satisfying himself that it was being made voluntarily and not under threat, inducement or promise. 21. A large number of rulings were cited on behalf of the accused before the learned Additional Sessions Judge which he has very carefully discussed. None of those rulings are of any help to Kedarnath Singh. The confession, Ex. P. 23 Kedarnath Singh, was not recorded after any undue delay and, therefore, the rulings in which it has been held that if the accused is put up for the recording of confession after under delay, its value would be very much diminished do not help Kedarnath Singh. Similarly the rulings in which it has been held that if the confession is not recorded in the manner laid down by secs. 164 or 364,it would not be considered to be a confession properly recorded do not help this accused. The ruling in the case of Nazir Ahmad vs. King Emperor(4) was cited on behalf of the accused but in that case there was absolute failure of any attempt to follow the procedure set out in sec. 164 and 364 Cr.P.C. That ruling, therefore, does not apply to the facts of the present case. In some cases like the case of Bakhshan vs. Emperor(5), the Magistrate put no question to the accused to ascertain that they were going to make a statement voluntarily. In this case questions were put by the Magistrate to ascertain that Kedar-nath Singh was going to make a statement voluntarily and, therefore, that ruling too is of no help to this accused. 22. In case of State vs. Magha(6), the accused was coming direct from the police custody and the Magistrate did not try to find out from him whether he had been threatened or induced to make the confession and proceeded to record the statement of the accused within five minutes of his arrival and it was doubtful whether the Magistrate even told the accused before taking down his confession that he was not bound to make a confession. Such confession was not considered against the accused. That is also not the case in the present case. Such confession was not considered against the accused. That is also not the case in the present case. Here Kedarnath Singh was given full two days to consider over the matter when he was produced from judicial custody for the recording of his confession and the Magistrate told the accused that he was not bound to make confession and that it would be read against him if he made it. We carefully convinced that all the precautions were taken and all legal formalities were complied with before the recording of the confession and, therefore, it cannot be said to be a confession not properly and validly recorded To us it appears to be altogether a voluntary confession made without any inducement, threat or promise and, therefore, the first condition for the admissibility of a confession, it that should be voluntary, is fulfilled. 23 In the case of Hemraj Devilal vs. The State of Ajmer(7), the confession of the accused was recorded after the following questions : (1) Do you wish to make a confession? (2) Are you making it of your own free will and without the compulsion of anybody? (3) You are not bound to make a confession Do you understand this? (4) If you make a confession it may be used in evidence against you. Do you realise this? (5) Shall I record your confession? To all these questions the accused replied in the affirmative and, thereafter the confession was taken down. 24. The confession in that case was made on the 30th of July, i.e. 2 days after the accused had been lodged in Jail and was not in police custody or amenable to police influence. The accused was a cycle dealer. The confession of the accused was held to be voluntary and was acted upon Their Lordships observed "He had more than 36 hours to make up his mind whether to make a confession or not. He is not a rustic but runs a cycle shop in Bijainagar. "Their Lordships further observed-" From the30th of July till 5th of September, no steps were taken by the accused (Hemraj) to resile from his confession. There was ample time at his disposal to make an application to the Magistrate or to the District Magistrate that the confession had been extorted from him by threats and inducement." Considering all these circumstances, their Lordships held that the confession was voluntary. There was ample time at his disposal to make an application to the Magistrate or to the District Magistrate that the confession had been extorted from him by threats and inducement." Considering all these circumstances, their Lordships held that the confession was voluntary. In that case the accused had said, when examined u/s 342 Cr.P.C. that he had made the confession under threats held out by the Superintendent of Police and Sub-Inspector. The allegations made by the accused were denied by the Police Officer examined. The confession was recorded not in the court house but in Jail. Their Lordships held that although it was not proper to record the confession in Jail but this irregularity did not affect the confession in that case. Their Lordships further observed "The mere bald assertion by the prisoner that he was threatened, tutored or that inducement was offered to him, cannot be accepted as true) without more. There is no material whatsover to hold that the prisoner was threatened or beaten....... As regards inducement, again, there is no material whatsover and the circumstances relied upon are not such which raise a suspicion that the confession was extorted by inducement." In that case the Magistrate does not appear to have put the questions to the accused whether he knew that he was before a Magistrate The Magistrate, however, when put into the witness box stated that the had put such questions. In the present case the Magistrate had put the question whether the accused knew that he was before a Magistrate. The accused in this case is not a rustic He is an intelligent and literate man and is a resident of a town like Kishengarh. He did not make any complaint before the Magistrate from 14th October, 1952 to 14th October, 1953 that he had been made to confess on account of any influence, threat or promise. The circumstances, in the present case, are more in favour of the prosecution than in the case before their Lordships Looking to all the aspects of the case we are fully convinced that the confession Ex. P. 23 of Kedarnath Singh was perfectly voluntary and not due to threat, influence or promise. 25. The circumstances, in the present case, are more in favour of the prosecution than in the case before their Lordships Looking to all the aspects of the case we are fully convinced that the confession Ex. P. 23 of Kedarnath Singh was perfectly voluntary and not due to threat, influence or promise. 25. Krishna vs. The State(8), it was held that three conditions are necessary for acting upon a retracted confession ; (1) It should be voluntary; (2) It should be true; and (3) In some of the material particulars, it should be corroborated by independent evidence. The same principle was reiterated in the case of Durga Dutt vs. The State(9). We have already found above that the confession of Kedarnath Singh was voluntary. It remains to examine whether it is true and is corroborated in some material particulars by independent evidence which gives guarantee of its truthfulness. 26. In order to find out whether the confession is true, we have very carefully read it. It appears to be quite clear and cogent and there is nothing to suggest that Kedarnath Singh was narrating an imaginary tale. After due warning and complying with the legal formalities and satisfying himself that this accused was prepared to make his statement voluntarily, the Magistrate Mr Dhawan asked him to state what he had to state. The accused state that some quarrel had taken place between him and the deceased about a year back and Bhim Singh had started telling him since fifteen or twenty days that he was not sufficiently cautious though the deceased was visiting the harem. Bhim Singh suggested that either some restriction should be imposed on the deceased or he should be boycotted to which Kedarnath Singh replied that it would be batter to Kill him. On this Bhim Singh went and called Deep Chand next day at about noon and took him in the room of Kedarnath Singhs house. Kedarnath Singh also entered the room and its door was closed. Kedarnath Singh took the deceased Deep-Chand to task for his being ungrateful. Before the deceased could reply, Bhim Singh questioned Kedarnath Singh why he was delaying ; the deceased might run away. On this Kedarnath Singh gave a stroke of sword on the neck of the deceased who caught it with one of his hands and with the other he wrested the Sword from the grip of Kedarnath Singh. Before the deceased could reply, Bhim Singh questioned Kedarnath Singh why he was delaying ; the deceased might run away. On this Kedarnath Singh gave a stroke of sword on the neck of the deceased who caught it with one of his hands and with the other he wrested the Sword from the grip of Kedarnath Singh. On this Bhim Singh gave one or two strokes of dagger to Deep Chand due to which the sword fell down. The deceased caught hold of one of the hands of Kedarnath Singh Kedarnath Singh caught hold of the neck of the deceased with his free hand. Bhim Singh took up the sword and gave a stroke of it on the neck of the deceased in which process two fingers of Kedarnath Singh got cut. Bhim Singh then put an end to the life of the deceased and there after put oil over the wounded fingers of Kedarnath Singh and bandaged them. After this the dead body of Deep Chand was placed in another room. Bhim Singh cleaned the room where the deceased was, Kedarnath Singh poured water for its cleansing. In the night Bhim Singh dug a pit and buried the deceased. On the next day at about 12 oclock Kedarnath-Singh asked Bhim Singh to take away the dead body as it was not desirable to keep it inside his house and thereupon Bhim Singh promised to take it away in due time, in the afternoon Bhim Singh cut the dead body to pieces with the sword and placed some of its part in a bag and buried the remaining parts in the pit. In the night at about 10 p.m. those parts which were not buried were taken away by Bhim Singh and in the morning hands and feet of Deep Chand were found floating in the canal. After the recovery of hands and feet, the police arrested him and Kedarnath Singh. The accused Kedarnath Singh has clearly stated in his confession as to what part he took in the affair. He did not say that it was his stroke which actually killed the deceased If the confession were put in his mouth by the police, there was no reason why he should not have been made to state that his blows also caused injuries to the deceased. He did not say that it was his stroke which actually killed the deceased If the confession were put in his mouth by the police, there was no reason why he should not have been made to state that his blows also caused injuries to the deceased. It appears from his statement that Kedarnath Singh suspected some misbehaviour on the part of the deceased inside his Zanana. Of course, has not clearly said what misbehaviour was seen on the part of the deceased and with which of the ladies of the Zanana, but it appears to be due to the fact that he did not want to expose any particular lady of his family to ill reputation and dishonour. On this account he before a silent grudge which was whetted by the recent complaint made to him by Bhim Singh He, therefore, thought of doing away with the deceased and with this view he called him to his house through Bhim Singh. Thereafter the deceased was killed inside the house of the accused and according to him his attempt to kill the deceased failed as the caught hold of the sword but Bhim Singh put an end to the life of Deepchand. Kedarnath Singh even after he was disarmed by Deepchand caught hold of his neck and facilitated the killing of the deceased (Deepchand) by Bhim Singh and in that process Kedarnath Singh got his two fingers cut. The statement of Kedarnath Singh bears a ring of truth and we are satisfied that it is true. The truthfulness of the confession has been a guaranteed also by corroboration in some material particulars by independent evidence, which we shall examine shortly. It may be said that it is not illegal to convict an accused on his retracted confession alone if it is found to be voluntary and true. But in order to give it the guarantee of truthfulness, it has been insisted upon, as a rule of prudence, that for founding a conviction on retracted confession corroboration in some material particulars by independent evidence should be sought. We have already referred to two rulings on this behalf and we may also site a ruling of the Supreme Court on this point in the case of Puran vs.The State (10). We have already referred to two rulings on this behalf and we may also site a ruling of the Supreme Court on this point in the case of Puran vs.The State (10). Their Lordships have said that it is a settled rule of evidence that unless a retracted confession is corroborated immaterial particular it is not prudent to base the conviction in a criminal case on its strength alone. 27. The learned Additional Sessions Judge has relied upon the following evidence in corroboration of some of the material particulars of the confession— (1) Recovery of the dead body of Deepchand inside the compound of Kedarnath Singh at his instance; (2) Recovery of dagger and sword from the Toshekhana of the accused; (3; Statement of Mst. Bilas Kaur under sec. 164 as well as before the committing court; (4) Recovery of buttons Ex. A/1 and watch Ex. A/2 from the possession of Bhim Singh; and (5) Fingers of right hand of Kedarnath Singh having been found cut. 28. We have already said that both the statement of Mst. Bilas Kaur are inadmissible and cannot be read in evidence either against Bhim Singh or the accused Kedarnath Singh. We have also said that it is not satisfactorily proud that the buttons, Ex. A/1, and watch, Ex. A/2, were the properties of the deceased and we are left only with the following evidence relied upon by the learned Additional Sessions Judge as a corroborative evidence in material particulars of the confession of the accused Kedarnath Singh— (1) The recovery of sword and dagger Exs. P. A/6 and 7 respectively from the house of Kedarnath Singh; (2) The recovery of the dead body of Deepchand at the instance of Kedarnath Singh from the compound of Kedarnath Singhs house; and (3) The fingers of right hand of Kedar-nath Singh having been found cut. 29. We will take up these pieces of evidence one by one. (1) The recovery of sword and dagger Exs. 29. We will take up these pieces of evidence one by one. (1) The recovery of sword and dagger Exs. P. A/6 and 7 respectively from the house of Kedarnath Singh— It is proved by the evidence of Mangi-lal P.W. 12 and Harinarain P. W. 20 that the dagger and the sword were recovered at the instance of Kedarnath Singh from the Toshekhana of Kedarnath Singh and his brother Sheopratap Singh However on chemical examination and serologists examination no human blood marks or for the matter of that any other blood marks were found upon the sword. It is, therefore, difficult to connect the sword recovered with the murder of Deepchand. It may be that this sword might have been washed after the murder and, therefore, there were no traces of human blood on it. But there being no evidence that the sword was washed we would be simply drawing upon imagination if we say that this is the very sword with which the murder is said to have been committed but it had been washed afterwards. So far as the dagger is concerned it was certainly found on chemical examination to have blood marks but they could not be detected to be human blood marks. Moreover Kedarnath Singh does not say in his confession that he used this dagger. The recovery of the sword and dagger, therefore, cannot be said to be an incriminating circumstances against Kedarnath Singh and we have, therefore, to rule this out from the evidence against Kedarnath Singh. (2) Recovery of the dead body inside the compound of Kedarnath Singh at his instance and the fact of his two fingers having been found cut. 30. To take up the former first, we are perfectly satisfied from the evidence on the record that the dead body minus the hands and feet was recovered from the compound of the accused Kedarnath Singh and it is proved beyond doubt not only by the evidence of Harinarain Sub-Inspector but also by the evidence of Mangilal P.W. 12 and Mohd. Sulehman P.W. 17. Mukand Singh P. W. 4 has also deposed about the recovery of the dead body but his cross-examination shows that he reached the spot after the dead body has been taken out. We, therefore, do not accept Mukand Singhs statement in proof of the fact that the dead body was recovered underground of the accused Kedarnath Singh. Sulehman P.W. 17. Mukand Singh P. W. 4 has also deposed about the recovery of the dead body but his cross-examination shows that he reached the spot after the dead body has been taken out. We, therefore, do not accept Mukand Singhs statement in proof of the fact that the dead body was recovered underground of the accused Kedarnath Singh. Ex. P. 6 is the recovery memo and it has been proved by the attesting witnesses Mangilal, Mohd. Sulehman and Anand Singh P. Ws 12, 17 and 19 respectively. This memo was prepared by Harinarain, Investigating Officer, who has also proved it. The question remains whether this recovery was made at the instance of Kedarnath Singh. Mangilal P. W. 12 stated that the accused Kedarnath Singh was asked to point out the dead body of Deepchand and he took the police party and the witness in the Nohra and pointed out the place where the dead body was lying buried. At first Kedarnath Singh dug out the earth but as he was feeling pain in his hand, Bhim Singh dug it next and after latter was tired some Harijans dug out the earth and the body without head, hands and feet was found therein. Then the Investigating Officer asked where the head was and Kedarnath Singh pointed out the same place and on further digging the head was also found out. The same thing has been stated by Mohd. Sulehman, P. W. 17. Harinarain, P. W. 20 has also stated the same thing. There is no reason to disbelieve the evidence of these three witnesses and we fully agree with the learned Additional Session Judge that it is proved that the trunk and the head were found inside the Nohra of Kedarnath Singh at his instancy. The other question which arises is whether the body and the head have been proved to be those of Deepchand. No doubt according to the medical evidence the body had become decomposed at the time of post-mortem examination on the 8th of October, 1952 and was incapable of identification. Anand Singh P. W. 19, who is a relation of the deceased saw the head and the trunk on the 7th of October, 1952 i.e., about 18 hours before the post-mortem examination He has clearly deposed that he was able to identify the body as that of Deepchand. Anand Singh P. W. 19, who is a relation of the deceased saw the head and the trunk on the 7th of October, 1952 i.e., about 18 hours before the post-mortem examination He has clearly deposed that he was able to identify the body as that of Deepchand. Harinarain P. W.20 also says that at the time of the recovery,the skin of the body was there excepting that of some portion of his back which was removed through scratch. He also stated that the dead body was capable of identification at that time. We are fully satisfied by evidence of these witnesses that looking to the head and trunk, Anand Singh, who was a relation of the deceased, could identify the dead body to be that of Deepchand. The fact, therefore, that medical evidence shows that at the time of postmortem examination the body was in a state in which it could not be identified does not detract from the evidence of Anand Singh and Harnarain, who saw the dead body 17 or 18 hours before. We were referred to the statement of Mohd. Sulehman P.W. 17 wherein he said that he and Mangilal could not identify the body. Mangilal and Mohd. Sulehman were not relations of the deceased and it may be that they might not have had as much opportunity to see the deceased at close quarters as his relation Anand Singh had. The fact, therefore, that Mangilal and Mohd. Sulehman could not identify the body does not go to show that Anand Singh too could not identify it. Now Mangilal and Mohd. Sulehman have not said that the body was in such a condition that it could not at all be identified. All that Mohd. Sulehman says is that he and Mangilal could not identify it. He does not say that Anand Singh could not identify. As has been said, it is proved by the evidence of Anand Singh and Harinarain that the body was capable of identification at the time it was recovered. Therefore there is no reason to disbelieve the evidence of Anand Singh that he could identify the body to be that of Deepchand at the time of its recovery. As has been said, it is proved by the evidence of Anand Singh and Harinarain that the body was capable of identification at the time it was recovered. Therefore there is no reason to disbelieve the evidence of Anand Singh that he could identify the body to be that of Deepchand at the time of its recovery. That part of the confession therefore, where Kedarnath Singh says that the dead body of Deepchand was buried in his Nohra is corroborated by the recovery of the deadbody of the deceased in Kedarnath Singhs compound. 31. It is fully proved by the prosecution evidence and it is admitted by Kedarnath Singh in his statement before the court that his two fingers were found cut. The fact that the two fingers were found out is another corroboration in material particulars of the confession of Kedarnath Singh. 32. Before examining whether these two circumstances are of any help in the conviction of Kedarnath Singh for murder or some other offence, we may point out some other circumstances also which have not been relied upon by the learned Additional Sessions Judge but which,to our mind, corroborate the confession of Kedarnath Singh in material particulars. They are as follows— (a) The deceased was taken to Kedarnath Singhs house on the Harijan Day i.e., 4th October, 1952, and since then he was found missing. There is the evidence of Mst. Chander Bai, P.W. 9, that the deceased was taken by Bhimsingh at about 9 a.m. and thereafter he never returned although she searched for him. Fakir Mohd. P.W. 10 saw Bhimsingh and the deceased entering the Haveli of Kedarnath Singh on the day of occurrence and thereafter the deceased was not traceable. This evidence corroborates the confession in this material particular that the deceased was brought to the house of Kedarnath Singh on the 4th of October, 1952. (b) Another circumstance, which has not been considered by the learned Additional Sessions Judge as an incriminating circumstance, is that human blood stains were found in the room where Deepchand is said to have been killed The earth was scrapped and sent for examination by chemical examiner and the serologist. The report Ex. (b) Another circumstance, which has not been considered by the learned Additional Sessions Judge as an incriminating circumstance, is that human blood stains were found in the room where Deepchand is said to have been killed The earth was scrapped and sent for examination by chemical examiner and the serologist. The report Ex. P. 29 shows that the earth was stained with human blood The circumstance that the earth was found positive for human blood is another circumstance which furnishes corroboration in material particulars of that part of the confession of Kedarnath Singh wherein he says that the deceased was killed inside a room of his house. (c) A third circumstance is that the room from which the blood stained earth was scrapped was found recently washed. This is proved by the evidence of Mohd. Sulehman, P.W, 17. as also by the evidence of Harinarain, P.W. 20, who says that in the room there were marks of blood which were washed off. Kedarnath Singh in his confession Ex. P. 23 says that the room in which the deceased was killed was cleaned with wafer after Deepchand had been killed. Now, the circumstances, which, to our mind, afford corroboration in material particulars of the confession of Kedarnath Singh are as follows— (1) The recovery of the head and the trunk of the deceased from the compound of Kedarnath Singhs house at his instance; (2) The two fingers of Kedarnath Singh having been found cut and having been recovered under-ground in the compound of Kedarnath Singh; (3) The deceased having been entering the Haveli of Kedarnath Singh on the day of occurrence and never seen alive thereafter; (4) The earth of the room of Kedarnath Singhs house having been found stained with human blood; (5) The room of Kedarnath Singhs house from which human blood stained earth was scrapped having been found recently washed at the time of the recovery of the dead body on the 7th of October, 1952; and (6) The medical evidence which shows that a number of injuries with sharp edged weapon were found on the dead body of Deepchand corroborates that part of the confession where Kedarnath Singh says that several cuts with sword and dagger were given to the deceased at the time of his murder. 33. 33. It was argued by the learned counsel for the appellant that all the recoveries were made before the confession of Kedarnathsingh was recorded and therefore the fact of recoveries cannot be called in aid to corroborate the confession. It is true that the recoveries were made before the confession was recorded but as held by their Lordships of the Supreme Court in the case of Hemraj Devilal vs. The State of Ajmer referred to above "the contention that a confession can only be corroborated by evidence discovered by the police after a confession has been made and the material that is already in their posses-sion, cannot be put in evidence in support of it, is not valid. A confession can be made even during a trial and the evidence already recorded may well be used to corroborate it. It may be made in the court of the committing Magistrate and materials already in possession of the police may well be used for purposes of corroboration." In the face of the above observations of their Lordships of the Supreme Court the argument of the learned counsel has no force, 34. It was argued by the learned counsel for the appellants that the fact that the dead body of the deceased was recovered from under ground in the compound of the deceased at the instance of Kedarnath Singh and the earth of the room pointed out by him having been found stained with human blood cannot be used in corroboration of the confession as these discoveries were not directly the result of any statement of the accused. It was urged that any statement which does not distinctly lead to discovery is not relevant under sec. 27 of the Evidence Act. Reliance was placed upon the followings rulings in this respect; Pulukari Kotayya vs. Emperor (12). The State vs. Kali (13) and State vs. Shanker Prasad (14). 35. In the first mentioned case, the statements of two of the accused namely Kottaya accused No. 6 and the other accused No. 3 were as follows— (1) Accused No. 6—About 14 days ago, "I Kotayya and people of may party lays in wait for Sivaya and others at about sunset time at the corner of Pulipad tank. We all beat Bedupati and China Sivayya to death. The remaining persons, Pullayya, Kotayya and Narayana ran away. We all beat Bedupati and China Sivayya to death. The remaining persons, Pullayya, Kotayya and Narayana ran away. Donda-pati Ramayya who is in our party received blows on his hands. He had a spear in his hands. He gave it to me then. I hid it and may stick in the rick of Venkata-narasu in village. I will show if you come. We did this at the instigation of Pulukari-Kotayya." (2) Statement of accused No. 3—"I stabbed Sivayya with a spear. I hid the spear in a yard in my village. I will show you the place." As regards the statement of the accused No. 6, only the following was held admissible by their Lordships— "I hid it (a spear) any my stick in the village. 1 will show you if you come." The remaining statement was held inadmissible as it did not lead distinctly to the discovery. The only statement which led distinctly to the discovery of the fact that the articles in question were concealed in the rick of Venkatanarasu was the statement relied on. Their Lordships held that the fact discovered was not the spear or stick but the fact that they were concealed in a particular place and the only statement which led distinctly to the discovery of that fact was "I hid it (the spear) and the stick in the risk of Venkatanarasu. I will show you if you come." Out of the statements of the accused No.3. the following portion alone was held admissible on the same ground— "I hid the spear in a yard in my village. I will show you the place." 36. In the second ruling cited above the statement of the accused was— One and a half months ago Bootinath Hirasingh and Dips-hand had brought four bags of opium to me. Then I and those persons buried it on a hillock four furlongs from my house. Later a Sikh companion of Bootinath took away one bag. There bags are still lying there covered with water proof." It was held that the only portion which was admissible was—"I buried the opium on a hillock four furlongs away from my house." 37. Then I and those persons buried it on a hillock four furlongs from my house. Later a Sikh companion of Bootinath took away one bag. There bags are still lying there covered with water proof." It was held that the only portion which was admissible was—"I buried the opium on a hillock four furlongs away from my house." 37. In the third case mentioned above two accused had made the following statements acting upon which the discoveries were made- (1) Shanker accused — "I have kept the property, which was allotted to me as my share, in an earthen pot in a Kothri in the house of my sister, Musammat Subraji, wife of Ram Piarey Brahman, resident of Baburiha, police station Bikapur. I can point out that property and deliver it." (2) The other accused Raghunath also made the following statement which led to the discovery in question— "I have kept the property which was given to me as my share, at the house of my brothers father-in-law, Ramlal, barber at village Kasturpur, police station Mahraj-ganj. I can point out that property and get the same recovered." Nothing is said in the report of that case as to how much statement out of the statements of the two accused was admissible by virtue of sec. 27 of the Evidence Act. The only thing that has (been said is with respect to these statements that even if the whole of them were admissible in evidence, it did not prove the connection of the accused with the murder in question. 38. In the present case no statement of the accused Kedarnath Singh before the police leading to the discovery of the dead body of the deceased or the blood sports standing the earth of the room has been placed on the record and, therefore, no question arises as to which part of it was admissible u/s 27 of the Evidence Act and which par was not. The first two rulings, therefore, have no bearing upon the facts of this case. So far as the third ruling is concerned, it is true that in that case the mere discovery of certain articles in consequence of the information given by the accused was not considered to be one of the circumstance from which an inference of the connection of the accused with the murder in question could be drawn. So far as the third ruling is concerned, it is true that in that case the mere discovery of certain articles in consequence of the information given by the accused was not considered to be one of the circumstance from which an inference of the connection of the accused with the murder in question could be drawn. In the present case the only thing which has been proved by the prosecution is that Kedarnath Singh was asked by the Investigating Officer Hari Narain to show the dead body of Deepchand where it was and the accused led him to the Nohra and there the dead body was shown buried in a pit. That place was dug out and the body and thereafter the head of the deceased was found out. As regards the blood stained spot the only thing which has been proved is that Investigating Officer was shown the room where the deceased was said to have been murdered and in that there were marks of blood which had been washed off. Now this sort of evidence was perfectly admissible and is not hit by sec. 27 of the Evidence Act which only relates to the admissibility of a statement made by an accused to a police officer or while in police custody which distinctly leads to discovery of a fact. That such sort of evidence is admissible finds support from a ruling of the majority of their Lordships of the Supreme Court in the case of Ram Kishan Mithalal Sharma vs. The State of Bombay (15) given on the 22nd Oct., 1954. In that case the police officer only said that the accused took him to a certain house and pointed out the wife of another accused who at the instance of the accused pointed out the property in question. It was held that the evidence was innocuous and sec. 27 was not attracted as it could be attracted if police officer had proved some statement of the accused leading to the discovery Evidence of the police officers only showed that the accused knew the existence of facts discovered in consequence of the information given by him but that would be merely a link in the chain which along with other evidence may prove the connection of the accused with the offence but by itself would not necessarily show his connection. 39. 39. In the present case also all that the accused did was to point out the place where the dead body was buried and on the digging of that place the dead body was recovered. Similarly the accused pointed out the room where body stained spot was found and it was found that an attempt had been made to wash out the blood. The circumstances standing by themselves only show that the accused had knowledge where the dead body was buried and where the crime took place. If that where the only evidence it would not have been possible to convict the accused of any offence in connection with the murder but in this case there is the confession of the accused Kedarnath Singh which when read along with these circumstances and other circumstances mentioned above proved the connection of the accused Kedarnath Singh with the murder of the deceased. 40. There is no doubt that there is corroboration of the confession of Kedarnath Singh in some material particulars only and each and every part of the confession has not been corroborated. However, as held in the case of Krishna vs. The State referred to above, it is not necessary that there should be corroboration of the confession in all the material particulars. Corroboration by independent evidence even in some of the material particulars only may be sufficient. The reason why corroboration in material particulars of the confession is insisted upon, as a rule of prudence, is that unless there is corroboration in some material particulars of the confession, there would be no guarantee of its truth. Making a confession is an unnatural thing and courts look upon it with some suspicion. In order to give it the guarantee of truth, therefore, the courts insist upon corroboration in some material particulars. When there is corroboration by independent evidence in some material particulars of the confession, confidence can be placed in the truthfulness of the confession. To our mind -corroboration, which is forthcoming in this case in the above material particulars of the confession is sufficient to guarantee the truth of the confession of Kedarnath Singh. 41. We may also say that if the statement recorded under sec. To our mind -corroboration, which is forthcoming in this case in the above material particulars of the confession is sufficient to guarantee the truth of the confession of Kedarnath Singh. 41. We may also say that if the statement recorded under sec. 164 is exculpatory or one portion of it is inculpatory and another exculpatory then the whole of the statement is to be read and the exculpatory portion cannot be ignored and inculpatory portion alone relied on. This principle was laid down by their Lordships of the Supreme Court in the case of Palvendra Kaur vs. The State of Punjab (16 and in the case of Pakala Narayan Swami vs. Emperor (17). Reading the confession in question we find that the confession of Kedarnath Singh was not exculpatory. He has clearly confessed that he participated in the killing of the deceased and also that he intended to kill him Of course he has not said that he dealt the fatal blow but that does not mean that the statement is exculpatory. A man, who intended to kill and with that intention joins another in killing the person whom he intends to kill, is just as much culpable as the man who actually deals the fatal blow. We are, therefore, perfectly satisfied that the statement, Ex. P. 23, of Kedarnath Singh amounts to a confession and can be acted upon. 42. It was argued that the mere fact that the dead body was recovered from the nohra of Kedarnath Singh was not enough as the nohra was not in the sole occupation and control of Kedarnath Singh but that it belonged to his two brother also. It was also argued that the fact of the recovery of the dead body at the instance of Kedarnath Singh did not necessarily show that the dead body was buried there at the instance of Kedarnath Singh but that it only shows that Kedarnath Singh knew where the dead body was buried. It is perfectly true that the nohra was not in the sole possession of Kedarnath Singh and if that were the only evidence, it would not have afforded any sufficient evidence for the conviction of Kedarnath Singh for murder or its abetment or attempt. It is perfectly true that the nohra was not in the sole possession of Kedarnath Singh and if that were the only evidence, it would not have afforded any sufficient evidence for the conviction of Kedarnath Singh for murder or its abetment or attempt. But there is the confession of Kedarnath Singh where be admits that he participated in the killing of the deceased whom he intended to kill, and all that is sought from the recovery of the dead body inside the compound of Kedarnath Singh at his instance is corroboration of his confession. The fact, therefore, that the compound belonged to all the three brothers does not have any significance. From the position of the nohra, it appears that it is surrounded on all sides by high walls and is accessible only through a gate. It could not be possible that anybody else other than the three brothers could have buried the dead body there without the knowledge and connivance of at-least one of them. If there were no confession of Kedarnath Singh, it might have been doubtful as to which of the three brothers had complicity in the burial of the deceased there. However when this recovery is considered with the confession of Kedarnath Singh it leaves no room for doubt that it was Kedar Nath Singh who was responsible for the burying of the dead body there. 43. It was argued that Kedarnath Singh has given an explanation for the cutting of his fingers The medical evidence shows that if the fingers had been injured by a machine, there would not have been an incised wound but a lacerated wound, vide the statement of Dr. Khanchand, P. W. 6. According to the defence the fingers were cut two to four days before the date of occurrence vide the statements of Moti Singh, D W. 1, Vidhya Dhar, P.W. 2 and Mohanlal D. W. 3. The earliest date on which Kedarnath Singh went for his treatment to the hospital was 5th of October, 1952. This is proved by the evidence of Dr. Raghuveer Singh P. W. 8 and admitted by Kedarnath Singh himself. Some doubt was sought to be cast on the statement of Dr. The earliest date on which Kedarnath Singh went for his treatment to the hospital was 5th of October, 1952. This is proved by the evidence of Dr. Raghuveer Singh P. W. 8 and admitted by Kedarnath Singh himself. Some doubt was sought to be cast on the statement of Dr. Raghuveer Singh that the accused went for treatment of his fingers wounds on 5th Oct., 1952 but this argument has no force in the face of the statement of Kedarnath Singh U/s. 342 Cr.P.C. that he had been to the hospital on the 5th October, 1952 for the treatment of his fingers. If his hand had been so seriously injured as it was three or four days before the date of occurrence in an innocent manner it was improbable that he would wait till 5th of October, 1952, for seeking medical aid. Then there is another circumstance and it is this that the fingers were found buried under the earth in the compound of Kedarnath Singh. Where was the necessity of burying these fingers if they were cut by a mere accident ? The burying of the fingers shows that at first the accused wanted to conceal the fact of them having been cut but when he could not stand the pain, he attended the hospital on 5th October, 1952 and even then he was not prepared to undergo an operation which would have given greater publicity to his injuries than a mere dressing. 44. The question now is as to what offence the accused Kedarnath Singh committed. We cannot go beyond his confession and hold that it was he who caused the death of the deceased. The confession, however, proves that Kedarnath Singh had an intention to kill the deceased and called him to his house on the fateful day. It also shows that in the first instance Kedarnath Singh wanted to kill the deceased and dealt a sword blow but the sword was wrested from his hand by the deceased and, therefore, Kedarnath Singh failed in his attempt. His companion, how, ever, wrested the sword from the hand of the deceased and Kedarnath Singh caught hold of the neck of the deceased. The companion of Kedarnath Singh then put an end to the life of the deceased by dealing several dagger and sword blows. His companion, how, ever, wrested the sword from the hand of the deceased and Kedarnath Singh caught hold of the neck of the deceased. The companion of Kedarnath Singh then put an end to the life of the deceased by dealing several dagger and sword blows. It is true that no human-blood-stained sword was recovered and that the dagger, which was recovered, was not proved to have human blood stains. So far as the dagger is concerned it may be that by the time it was sent for chemical and serologists examination the blood stains had become so much decomposed that their origin could not be determined. It is, therefore, not possible to say definitely that the dagger,which was recovered, was or was not used in the killing of the deceased. The sword, which was recovered, was not found to have any blood stains. It may be that it might have been washed in order to remove the blood stains just as the room was washed but there is no evidence to that effect. We are, therefore, not-able to hold that the recovered sword was used in the killing of the deceased. However this does not altogether falsify the confession of the accused that a sword was used as it is proved by the medical evidence that a number of strokes were given to cut the limbs and throat and the injuries could be caused by a sword or dagger and that not a single injury was a stab wound and that all were cut wounds. The medical evidence shows that even the single injury on the throat of the deceased was sufficient to cause death and that there were other injuries too which could cause instantaneous death. The medical evidence also shows that there might have been a struggle between the deceased and the assailants. This corroborates the confession of the accused Kedarnathsingh that he wanted first to deal a sword blow to the deceased who wrested the. sword from his hands and then the other companion of Kedarnath Singh dealt sword and dagger blows and Kedarnath Singh caught hold of the neck of the deceased when he was being given blows. This corroborates the confession of the accused Kedarnathsingh that he wanted first to deal a sword blow to the deceased who wrested the. sword from his hands and then the other companion of Kedarnath Singh dealt sword and dagger blows and Kedarnath Singh caught hold of the neck of the deceased when he was being given blows. It is quite clear from the confession as well as the number of injuries that the person who joined in assaulting the deceased had a common intention to kill him, and it was in the furtherance of that common intention that blows by sharp edged weapon were given On the vital parts of the body of the deceased. The appellant was, therefore, guilty of the offence under sec. 302 I.P.C. read with sec. 341. P. C It was argued by Mr. Bareth on behalf of the appellant that no charge under sec. 302 read with sec. 34 I.P.C. was framed against the accused and. therefore, he could not be convicted under sec. 302 read with sec. 34 I.P.C. It was urged that the charge was under sec. 302 simpliciter and it has caused injustice to the accused that they have been convicted under sec. 302 read with sec. 34 I.P.C. without a charge-sheet to that effect. The ruling of their Lordships of the Supreme Court in the case of Nanakchand vs. The State of Punjab(18) was relied upon. We have read that ruling very carefully but we do not think that it applies to the facts of the present case. In that case the accused were charged under sec. 302 read with sec. 149 I.P.C. They were convicted by the learned Sessions Judge under sec. 302 read with sec.34 I.P.C. On appeal to the High Court out of the four accused three were acquitted and only one was convicted under sec. 302 I.P.C. As in that case the provisions of sec. 35 I.P.C., did not apply, it was held by their Lordships of the Supreme Court that the conviction of the appellant Nanakchand u/s 302 I.P.C. was not proper, as he was not charged with that offence but was charged with the offence under sec. 302 read with sec. 149 I. P. C, which was a distinct offence. It has been held in a number of cases that sec. 34 like sec. 302 read with sec. 149 I. P. C, which was a distinct offence. It has been held in a number of cases that sec. 34 like sec. 149 does not create any distinct offence and is simply explanatory, and, therefore, if sec. 34 is not mentioned in the charge-sheet, the conviction for the substantive offence is not bad, unless it has occasioned injustice to the accused. In the case of Harilal vs. King Emperor(19) it was held by a Division Bench of the Patna High Court, that there is in law no distinction between a charge u/s 302 1. P. C. and a charge under that section read with sec. 34. The latter section is a mere statement of explanation to be attached to the section which deals with a criminal offence. In that case the charge was u/s 379 I.P.C. only but the accused were convicted u/s 379 I.P.C. read with sec. 34 and it was held that the conviction was not bad as the charge u/s 379 I. P. C- was not a charge distinct from a charge under sec, 379 I.P.C. read with sec 34 I.P.C. Similarly in the case of Waryam Singh Arur Singh vs. Emperor(20), it was held that because sec. 34 has not been specifically mentioned in the charge a conviction for the offence follow-wing the provisions of that section is not necessarily illegal. It was further observed that sec. 34 does not create any offence and that it is not necessary to specify it in the charge. It was finally observed that sec. 34 is really nothing more than explanatory common sense principle that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done it in dividual-ly. In the case of Dastarali vs. Emperor (21), it was held that a person charged with an offence read with sec. 34 can be convicted of the "substantive" offence. In the case of Dastarali vs. Emperor (21), it was held that a person charged with an offence read with sec. 34 can be convicted of the "substantive" offence. It was further observed that under sec 34, a person is charged with having committed the offence along with other persons and if it is proved that the other persons had no hand in committing the offence but it was committed by the accused himself, or if the prosecution fails to prove that the other persons committed the offence, but succeeds in proving that one of the accused did it or had a part in committing it, there is no reason why he cannot be convicted for committing the offence himself. 45. In the case of Sheoram vs. Empe-ror(22), it was held that sec.34 Penal Code docs not create an offence. It simply lays down a principle of criminal liability. It is therefore, not necessary to mention it in the charge. Consequently, a perform can be convicted of an offence read with sec. 34, Penal Code, if the facts of the case justly it and if the accused has not been misled in his defence and if there has been no failure of justice, irrespective of the fact whether the charge framed against him mentioned sec.34, Penal Code or not, or the charge framed against him was a charge of an offence read with sec. 149, Penal Code. So far as the last portion is concerned, there is some controversy after the judgment in the case of Nanakchand vs. the State of Punjab referred to above. But so far as the view that sec. 34 does not create a separate offence and an accused charge under a substantive offence only can be convicted under the offence read with sec. 34 if no prejudice is caused to the accused is concerned, it is not shaken by any authority, learned counsel for the appellant laid special stress on the following observations of their Lordships of the Supreme Court in Nanakchands case referred to above— "It was urged that in view of the decision of this court in Karnail Singh vs. State of Punjab(20), a conviction under sec. 302, read with sec. 149, could be converted into a conviction under sec. 302/34 which the trial court did. There showed be no valid objection, therefore, to converting a conviction under sec. 302, read with sec. 149, could be converted into a conviction under sec. 302/34 which the trial court did. There showed be no valid objection, therefore, to converting a conviction under sec. 302/34 into one under sec. 302, which the High Court did. This agreement is unacceptable. The High Court clearly found that sec 34 was not applicable to the facts of the case and acquitted the other accused under sec.302/34, that is to say the other accused were wrongly convicted by the trial court in the way but the appellant should have been convicted under sec 302. The High Court could not do what the trial court itself could not do, namely convict under sec. 302, as no separate charge had been framed under that section." The observations of their Lordships clearly show that they did not consider it proper that an accused charged u/s 302 read with sec. 149 could be convicted u/s 302 as the two were distinct offences They did not say that sec. 34 also created a distinct offence and, therefore if the accused is charge under the substantive section only he could not be convicted under sec. 302 read with sec. 34 I.P.C. Rather there are observations in the judgment which go to show that their Lordships accused the view the sec. 34 did not create a distinct offence and that the section was merely explanatory. 46. To our mind, there, it cannot be said to be illegal on the part of the learned Additional Sessions Judge to convict the accused under sec. 302 I.P.C. read with sec 34 although they were charge under sec. 302 I.P.C. simpliciter. If the conviction by aid of sec.34 had created any injustice to the accused it would have been another matter. We might say that although the charge does not mentioned sec 34 but it clearly says that each of the accused along with the other inten-tionally killed the deceased The charge clearly suggests that both the accused with common intention killed the deceased, although the specific word in furtherance of the common intention" have not been used. So far as Kedarnath Singh is concerned, his confession was also there. It cannot, therefore, be said that he was prejudiced by his convicted under sec. 302 I.P.C. read with sec. 34 I.P.C. when the charge did not mention sec. 34. So far as Kedarnath Singh is concerned, his confession was also there. It cannot, therefore, be said that he was prejudiced by his convicted under sec. 302 I.P.C. read with sec. 34 I.P.C. when the charge did not mention sec. 34. Learned counsel for the appellant was also not able to point out what injustice has been caused to the accused by the alleged irregularity in the charge. He has not been able to show what defence he has not been able to put forward on account of the omission of sec. 34 in the charge-sheet. 47. The question now arises as to under what section the conviction of the accused Kedarnath Singh would be proper. There is no doubt that no account of the paucity of evidence we have to acquit Bhimsingh. The confession of Kedarnath Singh which we have held to be voluntary as well as true cannot be made use of against Bhimsingh in the circumstances of the case. It cannot, however be said that the case against Bhimsingh as false. It is atleast fully proved that Bhimsingh brought the deceased to the house of Kedarnath Singh on the date of occurence and was seen entering the haveli of Kedarnath Singh along with the deceased. We cannot say that Kedarnath Singh has made altogether false statements when he was involved Bhimsingh although we cannot found the conviction of Bhimsingh on that confession. So far as Kedarnath Singh is concerned, we are entitled to make full use of his confession against him His confession clearly shows and the circumstances warrant it that Kedarnath Singh with one other atleast in furtherance of their common intention to kill the deceased killed him. Of course Kedarnath Singh did not deal the fatal blow but with the intention of killing the deceased, it was he who attacked the deceased with the sword and than when the sword had been wrested from his hands by the deceased, he caught hold of the neck of the deceased and facilitated the commission of murder by his companion Kedarnath Singh is, therefore, clearly guilty u/s 302 read with sec. 34 I.P.C. In this connection we may again advert to the ruling of their Lordships of the Supreme Court in the case of Hemraj Devilal vs. The State of Punjab quoted above In that case initially four person were chal-laned u/s 302 I.P.C. as well as some other sections. Two were acquitted by the learned Sessions Judge but two, namely, Hemraj and Hukam Singh were convicted of different offences with which they were charged read with sec. 34 I.P.C. One of them Hemraj had made a confession involving himself as well as Hukam Singh. His confession was, however, not acted upon against Hukam Singh and he was acquitted. Still the conviction of Hemraj under sec. 302 and other sections read with sec. 34 was maintained, which shows that their Lordships did not consider it illegal to maintain the conviction of one accused only by virtue of sec. 34 I.P.C. while the other co-accused was acquitted. We do not think it would be illegal, so far as Kedar-nath Singh is concerned, to maintain his conviction under sec. 302 read with sec. 34 I.P.C. although we are constrained to acquit Bhim Singh for want of sufficient evidence. 48 Learned counsel for the appellant referred us to a ruling of the Supreme Court in the case of Arjunlal Misra vs. The State(21) in which one of the two accused was acquitted by the High Court but the conviction of the other was maintained. Their Lordships set aside the conviction of the remaining accused also because they found that the prosecution case had been shattered in material parts and under the circumstances the retracted confession of the appellant could not be taken to furnish any basis for his conviction. In this case, to our mind, the prosecution has not been shattered in material parts. The other evidence along with the confession of Kedarnath Singh fully proved the prosecutions case but as against Bhim Singh the only material is the confession of Kedarnath Singh and the fact that he had brought the deceased to Kedarnath Singhs house on the fatal day and was seen entering the house of Kedarnath Singh along with the deceased after which the deceased was no longer seen alive. On that evidence alone the conviction of Bhim Singh would not have been justified and, therefore, we have to acquit him. On that evidence alone the conviction of Bhim Singh would not have been justified and, therefore, we have to acquit him. But so far as Kedarnath Singh is concerned, the case against him is fully proved. 49. The appeal is allowed so far as Bhim Singh is concerned, his conviction and sentence are set aside and he is acquitted. He shall be released atonce if not required in connection with any other case. The appeal, as far as Kedarnath Singh is concerned, fails and his conviction under sec. 302 read with sec. 34 I.P.C. and the sentence of transportation for life are maintained.