JUDGMENT DAS, J. :- The appellants Majhis, Budha Majhi, Hapua Majhi, Lutha Majhi and Pecha Majhi have been convicted under Ss. 302/34 and 201/34, Indian Penal Code, and sentenced to undergo R. I. for life under the former section, no separate sentence having been parsed under the latter section in Sessions Trial No. 3-K of 1961. 2. The prosecution may be briefly stated as follows : On the morning of 22-10-60 at about 11-30 A.M. the accused Majhi Budha Majid came to the house of the deceased Udechand Majhi and called him to go in his company to the liquor shop in the village Kuligaon, which is at a short distance from their village. Thereafter the other three accused persons joined them and the five went together to the shop and took liquor. After taking liquor while they were returning a quarrel ensued between the deceased on one hand and the other four accused persons on the other, somewhere inside the forest known as Budharaja jungle; and there the four accused persons are said to have killed Udechand with the axe (MO-1) which the deceased took from his house when he started with Majhi Budha Majhi, As the deceased did not return home that night his wire P.W. 2 Became anxious about her husband and informed about it to Kokila Majhi (P.W. 1) the elder brother of the deceased. P.W. 1 searched in vain in the near about village for about two days and reported the matter to the village Punch. The Chowkidar of the village (not examined) called a meeting of the Punches, where it is stated all the four accused persons made an extra-judicial confession to the effect that they had killed Udechand on 22-10-60. On the basis of this information, P.W. lodged first information report (Ext. 1) at the Khariar Police Station. The officer-in-charge of the police station, being absent, the assistant sub-inspector (P.W. 13) came to the spot and took up investigation and arrested the accused persons. It is stated that all the four accused persons led him and some villagers to the spot where they had hidden the dead body, and at the instance of the accused Majhi Budha Majhi the dead body was discovered from the place where it was concealed. At that time the head of the deceased was found severed from his trunk. It is stated that all the four accused persons led him and some villagers to the spot where they had hidden the dead body, and at the instance of the accused Majhi Budha Majhi the dead body was discovered from the place where it was concealed. At that time the head of the deceased was found severed from his trunk. Some bloodstained earth from the spot was seized under seizure-list, Ext. 2/7, and the Tangia (MO. 1) was produced by the accused Luthu Majhi from inside a straw-heap in his bar which was seized under seizure list Ext. 2/4. Some other seizures of cloths from the houses of different accused persons were also made under various seizure lists. Thereafter the accused persons were sent for making judicial confession before a Magistrate P.W. 12. The Magistrate recorded the confessions of the four accused persons 1 to 4 on 27-10-60, Exts. 9, 9/1, 9/2 and 9/3 respectively. Thereafter the accused persons were charge-sheeted and after due commitment, stood their trial under Section 302/34 for having caused the murder of Udechand and under Section 201/34 for keeping concealed the dead body of the deceased in a Nala in the aforesaid jungle with a view to screen themselves from legal punishment. Both the offences are said to have been committed in furtherance of their common intention. 3. The accused appellants retracted the confession and denied the occurrence altogether. They pleaded that the case has been falsely foisted upon them. 4. There is no direct evidence of murder; but the proof of the prosecution case is based upon (1) the extra-judicial confession said to have been made by the accused persons before the village Punch which was attended amongst others by P.W. 1. They pleaded that the case has been falsely foisted upon them. 4. There is no direct evidence of murder; but the proof of the prosecution case is based upon (1) the extra-judicial confession said to have been made by the accused persons before the village Punch which was attended amongst others by P.W. 1. the brother of the deceased and P.W. 3 Harihar Singh Chhatri, the Gountia of the village ; (2) discovery of the dead body in pursuance of the information given by the accused persons themselves as contemplated under S. 27 of the Evidence Act; (3) the judicial confession of the accused appellants recorded by the Magistrate, P.W. 12 and (4) the other evidence, such as the evidence of P.W. 2, wife of the deceased who identified the axe, M.O. 1 said to have been taken by her husband when he went out in the company of Budha Majhi and the evidence of P.W. 4 Balidhar Majhi and P.W. 10 Chhatrapal Chowkidar to the effect that they had last seen the deceased along with the four appellants sometime prior to the occurrence near about the village Kuligaon. 5. The learned Sessions fudge relying upon the judicial confession, appellants leading to the discovery of the dead-body, the extra-judicial confessions made by the appellants as also the circumstantial evidence adduced by the prosecution, came to the conclusion that the case against the accused-appellants had been fully made out under Ss. 302/34 and 201/34 and he accordingly convicted and sentenced them as aforesaid. It is against this order of conviction and sentence the present appeal has been filed. 6. Mr. Kanungo, learned counsel for the appellants, challenged the conviction and the sentence mainly for the following reasons : (1) the extra-judicial confession having been made to the Choukidar is inadmissible under Ss. It is against this order of conviction and sentence the present appeal has been filed. 6. Mr. Kanungo, learned counsel for the appellants, challenged the conviction and the sentence mainly for the following reasons : (1) the extra-judicial confession having been made to the Choukidar is inadmissible under Ss. 25 and 26 of the Evidence Act; (2) the discovery said to have been made under S. 27 of the Evidence Act being based upon information jointly given by all the accused persons is inadmissible in law against all the accused persons, and as such has no evidentiary value against any of them; (3) the formalities required under S. 164 of the Criminal P.C., not having been complied with, the judicial confessions said to have been made before the Magistrate cannot be taken into consideration; and in any case the confessions having been retracted, there is no sufficient corroborative evidence to sustain them; and (4) the oral evidence in this case is full of discrepancies and should not be relied upon. 7. So far as the first contention is concerned, P.Ws. 1 and 3 are witnesses to the extra-judicial confession said to have been made by the appellants before the village Punches. P.W. 1 had said : "The Choukidar convened the Punch. The member, Gountia and all the Bhadralokas assembled. It was at about noon. All the four accused were also called to the meeting. Harihari Singh Fountia asked the accused Majhi Budha about my brother." In cross-examination he admitted that the Choukidar was present at the time of the Punch. He called upon the members. The Choukidar was present when the accused Luthu stated the occurrence before the Punch. The other witness, P.W. 3, however, denied to have put any questions to the accused persons. According to him the Chowkidar was asking the accused persons at the Punch meeting. They (witnesses) did not ask them (accused) anything. The evidence is that clear that the Chowkidar convened the meeting of the Punch, he himself was present in the meeting and questioned the accused persons about the occurrence, and the extra-judicial confessions are said to have been made by way of replies to his questions. The point therefore arises whether such extra-judicial confessions are valid in law so as to be acted upon doubtless the chowkidar is a police officer for purposes of Section 26 of the Evidence Act. The point therefore arises whether such extra-judicial confessions are valid in law so as to be acted upon doubtless the chowkidar is a police officer for purposes of Section 26 of the Evidence Act. In this connection reliance was placed by the learned counsel upon a decision reported in Mst. Punia Goalin v. Emperor, AIR 1947 Pat 146, where their Lordships held "The Chowkidar is a Police Officer for the purpose of Section 26 of the Evidence Act. Hence a confession made to the Choukidar by the accused person is not admissible against him. The accused persons no doubt were not in the actual custody of the Chowkidar or any police officer when they made the extra judicial confessions, but Section 29 does not contemplate a formal custody, but it may as well include a case of this nature where they were under some sort of surveillance or restriction when the village Chowkidar was himself present and questioned them about their guilt. Learned Counsel for the respondent, however, contended that the mere presence of the Chowkidar in the meeting of the Punch will not nullify the effect of the extra-judicial confessions and he also-relied upon a decision of the Allahabad High Court reported in Mt, Maharani v. Emperor, AIR 1848 All 7 where their Lordships held that a confession made by the accused to the village people in course of an enquiry about the deceased even it made in the presence of the Choukidar would not be inadmissible under Section 26 of the Evidence Act as it is not made to the Choukidar. In that case, however, their Lordships found on fact that the confession was not made to the Chowkidar when they observed : "Nobody has deposed that the Chowkidar enquired from Mst. Maharani and that she confessed." Therefore, that case is quite distinguishable from the facts of the present case. In that case, unlike the present one, the confession was not made to the Choukidar. The Allahabad case has rather accepted the principle as laid down in the aforesaid Patna case, AIR 1947 Pat 146. Therefore on the basis off the aforesaid decisions, it is advisable to exclude the extra-judicial confession said to have been made by the accused persons before the Punch. 8. The Allahabad case has rather accepted the principle as laid down in the aforesaid Patna case, AIR 1947 Pat 146. Therefore on the basis off the aforesaid decisions, it is advisable to exclude the extra-judicial confession said to have been made by the accused persons before the Punch. 8. I will now take up the next question as to the discovery made under Section 27 of the Evidence Act in consequence of information received from the-accused persons. Before going into the legal question, touching this point, it is necessary to examine the relevant evidence in relation to the applicability of the Section. After the first information was lodged by P.W. 1 at the Police Station, P.W. 13 came to the village and arrested the accused persons who however led him and the other villagers inside the Budharaja jungle to the spot where they had concealed the dead body. The Budha Majhi showed the place where the dead body was actually hidden in a Nala inside the jungle, and he, P.W. 13 brought out the dead-body from the place where it was buried in the Nala. P.W. 13 in his cross-examination admitted that all the 4 accused persons pointed out the place where the dead-body was hidden. P.Ws. 3 and 5 who accompanied P.W. 13 also deposed to the same effect. It was contended that the information contemplated under Section 27 of the Evidence Act must be given by any particular accused and not by all the accused persons together or simultaneously. Section 27 contemplates, that the information given by the accused would lead to some discovery of a fact relevant to the trial. If as a matter of fact the discovery is made as a result of information given by one of the accused persons, there is nothing left to be further discovered in consequence of the information given by the other accused persons. Therefore, in point of time the information which first led to the discovery becomes pertinent and the subsequent informations are not informations leading to the discovery. In this case, however, as I have already said though all the accused persons went in company of P.Ws. 3, 5 and 13, yet it was accused Budha Majhi who alone showed the place where, the dead-body was actually hidden. In this case, however, as I have already said though all the accused persons went in company of P.Ws. 3, 5 and 13, yet it was accused Budha Majhi who alone showed the place where, the dead-body was actually hidden. In this connection a case reported in Gurubaru Praja v. The King, AIR 1949 Orissa 07 was cited on behalf of the appellant where it was held : "Where as a result of joint information of the accused persons, the dead-body of the deceased is discovered but the evidence is not clear as to who gave the information first and who next, then it cannot be said that either of the accused made the crucial statement which led to the discovery and therefore the joint statement would not be admissible if evidence to establish the guilt of the accused." In their Lordships opinion, if the incriminating material is discovered in consequence of an information given by one of the several accused persons, it does not remain to be discovered within the meaning of S. 27, in consequence of any subsequent information given by any other. That would amount to discovery of a thing already discovered. Their Lordships further observed : "Had it been known, we could have held the statement, made first by one of the two accused persons, as admissible in evidence against him, but the evidence is too vague to lead us to any conclusion as to which of the accused persons made the statement in consequence whereof the dead body was discovered first." The law laid down in that case has no application to case as the present one, where according to the evidence of P.W. 13 it was Majhi Budha Majhi who showed the place where the dead body was kept hidden and the A.S.I. got it unearthed from that place. Therefore it cannot be disputed that the evidence available under S. 27 is admissible against Budha Majhi. A good deal of argument was advanced on the ground that simultaneous statements made by jail the accused parsons are inadmissible against any case of them. But the aforesaid observations in AIR 1949 Orissa 67 militate against such a contention. Similar questions were raised regarding the admissibility of such evidence in a case reported in Lachman Singh v. The State, AIR 1952 SC 167 . But the aforesaid observations in AIR 1949 Orissa 67 militate against such a contention. Similar questions were raised regarding the admissibility of such evidence in a case reported in Lachman Singh v. The State, AIR 1952 SC 167 . In that case evidence was lacking as to who was the accused person who first gave information leading to the discovery, and their Lordships observed : "But, as to what should be the rule when there is clear an unimpeachable evidence as to independent and authentic statements of the nature referred to in S. 27, Evidence Act, having been made by several accused persons, either simultaneously or otherwise all that we wish to say is that as at present advised we are inclined to think that some of the cases relied upon by the learned counsel for the appellants have perhaps gone farther than is warranted by the language of S. 27, and it may be that on a suitable occasion in future those cases may have to be reviewed". "For the purpose of this appeal, however, it is sufficient to state that if the argument put forward on behalf of the appellants, which apparently found favour with the High Court, is correct, the discoveries made at the instance of Swaran Singh cannot be ruled out of consideration. It may be that several of the accused gave information to the police that the dead bodies could be recovered in the Sakinala, which is a stream running over several miles, but such an indefinite information could not lead to any discovery unless the accused followed it up by conducting the police to the actual spot where parts of the two bodies were recovered. From the evidence of the Head Constable as well as that of Bahadur Singh it is quite clear that Swaran Singh led the police via Salimpura to a particular spot on Sakinala and it was at his instance that bloodstained earth was recovered from the place outside the village, and he also pointed out the trunk of the body of Durshan Singh. The learned Judges of the High Court were satisfied as appears from their judgement that his was "the initial pointing out" and therefore the case was covered even by the rule which according to the counsel for the appellants, is the rule to be applied in the present case." The aforesaid decision of the Supreme Court was relied upon by the Division Bench of the Nagpur High Court in a case reported in State Government of Madhya Pradesh v. Chhotelal Mohtnlal, AIR 1955 Nag 71, where their Lordships held that under S. 27, of the Evidence Act simultaneous statements made by the accused persons are not per se inadmissible in evidence and are liable to be considered if the discovery made in consequence thereof affords a guarantee about the truth of the statements. They held that in the circumstances, the respective statements made by each of the accused persons was admissible against him, as it affords a guarantee about the truthfulness of his statement. But in the present case in view of the fact that it was Budha Majhi who showed the place wherefrom the dead body was discovered, no further contention can be raised about the effect of simultaneous statements made by all the accused persons. 9. Coming to the next contention regarding the admissibility of the judicial confessions, it was contended that the Magistrate who recorded them, had not complied with the provisions of S. 164 of the Criminal Procedure Code because : (1) he gave only one hour's time for reflection which is hardly sufficient to meet the requirements of the law; (2) the Magistrate should have asked the accused persons about the motive for tht3 confession; and (3) the question that was put to the accused was more or less in a leading form when the Magistrate asked the accused persons as to whether they killed the deceased. 10. 10. So far as the time for reflection is concerned, reliance was placed on a case reported in Sarwan Singh Rattan Singh v. State of Punjab, (S) AIR 1957 SC 637 , where their Lordships held : "However, generally speaking it would be reasonable to insist upon giving the accused person at least 24 hours to decide whether or not he should make a confession." It is on the basis of this observation of their Lordships, learned counsel for the appellants, contended that the time given in the present case was hardly sufficient and in any case the Magistrate should have given at least 24 hours time. According to him this decision lays down as if any confession where less than 24 hours time is given for reflection, is not a valid confession though recorded according to the requirement of Section 184(3) of the Cr. P.C. It may be observed however, that in that decision also their Lordships have laid down that it would be lather difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case before recording his confession under Section 164. Mr. R.K. Mohapatra, learned counsellor the State placed before me a decision of the Supreme Court reported in Ram Prakash v. State of Punjab, AIR 1959 SC 1 where though only a time for one hour was given for reflection, their Lordships accepted the confession as a proper one. Therefore it can be safely said, as has been held in the aforesaid (S) AIR 1957 SC 637 , that no hard and fast rule can be laid down regarding the time to be given for reflection. 11. As to the non-questioning to the accused regarding the motive for the confession, reliance was placed upon a Division Bench decision of this Court in AIR 1949 Orissa 67 already referred to. In that case their Lordships held that motive to confess is a necessary question to be asked to the accused while recording a confession under Section 184, and laid down some conditions the non-compliance of which would reduce the confessional statement to a nullity. In that case their Lordships held that motive to confess is a necessary question to be asked to the accused while recording a confession under Section 184, and laid down some conditions the non-compliance of which would reduce the confessional statement to a nullity. This decision, however, came up for consideration before a Full Bench of this Court in a case reported in Bala Majhi v. State or Orissa, AIR 1951 Orissa 188, where their Lordships explained the aforesaid decision in AIR 1949 Orissa 87 and held that the requirements laid down in that case are not intended to be mandatory statutory requirements the non-observance of which by itself, without more, would vitiate the admissibility of the confession. The said requirements are wholesome and valuable principles to be observed by a Magistrate recording a confession under Section 164, Cr. P. Code; and a trial court which is called upon to decide whether the confession has been voluntarily made in order that it may be admissible may consider the omission to put any of the questions indicated in that decision as relevant either on the admissibility of the confession or the weight to be attached to it. Moreover, the model questions suggested in that decision are only illustrative and by no means exhaustive and it is always open to a Magistrate to put such further questions as the circumstances of each case may requite so as to satisfy himself about the voluntariness of the confession. In view of these observations, the contention that the confession suffers for want of motive has therefore no force. 12. Regarding the direct question that is to be put to the accused, learned counsel drew our attention to the question where the Magistrate has asked the accused whether they killed the deceased. No doubt, he should not have put that question in that leading form, In this connection, Mr. Kanungo relied upon a case reported in In re, Madegowda, AIR 1957 Mys 50, where it was held that the accused should not be made subject to cross-examination. In that case a number or questions were put to the accused by way of cross-examination in the hands of the Magistrate, but that is not the case here. In that case also unlike the present one, the warning contemplated under Section 164(3) was not given before recording the confession. In that case a number or questions were put to the accused by way of cross-examination in the hands of the Magistrate, but that is not the case here. In that case also unlike the present one, the warning contemplated under Section 164(3) was not given before recording the confession. That decision therefore cannot apply to the facts of the present case as the questions put to the accused in the present case were not in the nature of cross-examination, nor was no warning given before recording the confession. The Magistrate in the present case was examined and he deposed that he gave necessary warnings and was satisfied that the statement was made voluntarily. Therefore the requirements or Section 164(3) have been substantially complied with as required under the aforesaid Full Bench decision of this Court. 13. Coming to the contention that a retracted confession should not be acted upon without corroboration in general, reliance was placed on a decision of the Supreme Court reported in Subramania Goundan v. State of Madras, AIR 1958 SC 86 , where it was held : "In the case of a person confessing who has resiled from his statement, general corroboration is sufficient while an accomplice's evidence should be corroborated in material particulars. In addition, the Court must feel that the reasons given for retraction in the case of a confession are untrue." In the case before us, the accused persons have, in their examination under Section 342, Cri. P.C. denied to have made any confession. This statement, on the very face of it appears to be untrue. I may state here that a retracted confession can be used against a co-accused provided it gets material corroboration, as has been held by their Lordships of the Supreme Court in the case in AIR 1959 SC 1 already noticed. In that case it was held that : "Although a retracted confession is admissible against a co-accused by virtue of Section 30, Evidence Act, as a matter of prudence arid practice a Court would not ordinarily act upon it to convict a co-accused without the strongest and fullest corroboration on material particulars. In that case it was held that : "Although a retracted confession is admissible against a co-accused by virtue of Section 30, Evidence Act, as a matter of prudence arid practice a Court would not ordinarily act upon it to convict a co-accused without the strongest and fullest corroboration on material particulars. The corroboration in the full sense implies corroboration not only as to the factum of the crime, but also as to the connection of the co-accused with that crime." Applying the above test to the facts before us we have to see whether there is any corroboration to the retracted confession of the accused persons. It appears that so far as the Majhi Budha Majhi is concerned, he admitted in his confessional statement that all the four took drink with the deceased who held the Tabla (axe) in his hand, and after a quarrel ensued the deceased assaulted Hapua first and thereafter he and others with that Tabla gave several strokes on the deceased and the deceased fell dead. The Tabla, No. 1 was identified by P.W. 2 and according to the evidence of the doctor, P.W. 7 the injuries on the deceased were caused by several blows by a weapon like M.O. 1. P.W. 2 has also said that it was accused Majhi Budha Majhi who called her husband from the house, and thereafter the deceased did not return home. P.Ws. 4 and 10 have deposed that they had last seen the deceased together with Budha Majhi and other accused persons as stated earlier. We have already seen that Budha Majhi led the police to the place of occurrence and also led to the discovery of the dead body. Therefore, his confession gets substantial corroboration and can be safely acted upon. So far as the accused Lutha is concerned, his confession is to the same effect as that or Majhi Budha Majhi. P.W. 13 has said that M.O. 1 was recovered from his hay-stack and was produced by Luthu before the Police. A good deal of argument was advanced to challenge this recovery. P.W. 3 has stated that the A. S. I. seized the Tangia Mo. 1 from the house of Luthu under seizure list Ext. 2/4 in his presence and under his attestation. He, in his cross examination however, said that he did not go inside the house, but only stood at the threshold. P.W. 3 has stated that the A. S. I. seized the Tangia Mo. 1 from the house of Luthu under seizure list Ext. 2/4 in his presence and under his attestation. He, in his cross examination however, said that he did not go inside the house, but only stood at the threshold. It was elicited in his cross-examination that the seizure list was attested by him at the Khariar Police Station. It was contended that this amounts to an irregularity in search, and the provisions of Section 101 have thus not been fully, complied with. But as has been held by the Supreme Court in the case reported in Sunder Singh v. State of Uttar Pradesh, A.I.R. 1958 S.C. 411 at the highest the irregularity in the search and the recovery made in so tar as the terms of Section 103, Cri. P.C. are concerned (sic) had not been fully complied with but that would not affect the legality of a proceeding. It cannot be disputed in this case that the recovery was made from the house of the accused, though there might be some discrepancy as to whether it was recovered from the hay-stack or from somewhere else inside the house. The recovery of this M.O. 1 belonging to the deceased which according to the report of the Chemical Examiner, contained human blood goes a great way in lending corroboration to the confessional statement of this accused. 14. So far as the other two accused persons, viz. Luthu Majhi and Pecha Majhi are concerned there is no recovery made from them and there are no other circumstances corroborating their retracted confessional statements. No human blood was found from the clothing of any of the accused and an easy explanation may be available about the minor injuries on their persons. Therefore, they are entitled to the benefit of doubt and their conviction and sentence must be set aside. 15. The next question for consideration is whether the accused Majhi Budha Majhi and Luthu Majhi have committed an offence under Section 302/34, I.P.C. It appears from their confessional statement that when they were coming together obviously in a friendly manner, a quarrel ensued when the accused Hapua was assaulted by the deceased and thereafter all the accused participated in assaulting the deceased. Thus there was no premeditated plan for the murder. Thus there was no premeditated plan for the murder. As has been held by their Lordships of the Supreme Court in the case reported in Palviuder Kaur v. State of Punjab A.I.R. 1952 S.C. 354, a confession is to be accepted or rejected as a whole and the court is cot competent to accept the inculpatory and exclude the exculpatory portion. In the present case, the confessional statements fully make out that there was no premeditated plan for the murder, but it was the result of a sudden quarrel on the spur of the moment and in a fit of temper the accused persons assaulted the deceased to death. Therefore the case clearly comes within the purview of S. 304, Part II, I.P.C. I would accordingly convict the accused Sudha Majhi and Luthu Majhi under Section 304 Part II, I.P.C. and sentence them to R.I. for five years each. The conviction of the other two appellants under Section 302/34 and their sentence thereunder are set aside. 16. Coming to the conviction of the appellants under Section 201 I.P.C. there is nothing in evidence to come to the conclusion that the appellants did in fact conceal the dead body with a view to screen themselves from the legal punishment for murder. As a matter of fact the dead body is said to have been found from near the place of occurrence itself. Thus, there is no ground to sustain their conviction under Section 201 and they must accordingly be acquitted of the charge. In the result the conviction and sentence of the appellants under Sections 302/31 and 201/34 are set aside but the appellants Budha Majhi and Luthu Majhi are convicted under Section 304, Part II, I.P.C. and are sentenced to five years' R. I. each. The other two appellants, viz. Hapua Majhi and Pecha Majhi are acquitted of all the charges and they are directed to set at liberty forthwith. 17. BARMAN, J. :- I agree. Order accordingly.