Judgment Bahadur, J. 1. There are six appellants in this appeal They had been jointly tried by the Sessions Judge of Palamau for various offences. AH of them have been convicted under Sec.302 read with Sec.34 of the Indian Penal Code for murdering one Kashim Mian, and have been sentenced to suffer rigorous imprisonment for life. They have been further convicted under Sec.201 read with Sec.34, Penal Code, and have been sentenced to suffer rigorous imprisonment for four years. Appellants Nos. 1, 2 and 3, named Sohar, Bhonu and Kail, have been further convicted under Sec.364 read with Sec.34, Penal Code, and sentenced to undergo rigorous imprisonment for five years The sentences have been ordered to run concurrently. The accused persons have now preferred this appeal from jail 2. The prosecution case, shortly stated, is that Kashim of village Mukta within police station Daltonganj was employed as a Munshi by the Rohtas Industries Ltd. (hereinafter to be referred to as the Company) in Kundelpur jungle of Karma centre. On Wednesday, the 1st May, 1963, Kashim went to the head office of the Company and stayed there for the night. It is said that on the next day, i.e., the Thursday, the 2nd May, 1963, at about noon Sohar met him at Manatoo and after some talk with him, he took him to the house of Bhonu Mistry at village Kharikdag. From that place Sohar, Bhonu and Kail took Kashim to a place, which was a dry rivulet in Kundelpur jungle. The other three accused persons, named. Dhanpat, Rajapati and Foolchand also came to that place. They all made Kashim sit there by telling that the persons stealing the bamboos of the Company would be passing by that way and they would be able to catch those thieves. The prosecution case further is that while Kashim was silling there, all of a sudden Bhonu assaulted him with the blunt side of a langi, upon which Kashim fell down, and then all the accused persons assaulted him with the blunt side of their respective tangis. After having killed him they buried his dead body on an elevated place near the nala. 3. It is said that Rameshwar Bishwakarma (P W 1) who was the Assistant Supervisor of the Company and was attached to Karma centre, under whose jurisdiction Kashim was working, had gone to Manatoo on the 1st May, 1963. After having killed him they buried his dead body on an elevated place near the nala. 3. It is said that Rameshwar Bishwakarma (P W 1) who was the Assistant Supervisor of the Company and was attached to Karma centre, under whose jurisdiction Kashim was working, had gone to Manatoo on the 1st May, 1963. He had also seen Kashim Mian staving at Manatoo on the night of 1st May, 1963. On the 3rd May, 1963. P. W. 1 returned to Karma centre and on the 6th May, 1963, be returned to Manatoo and learnt from the forest Assistant Harinaudan Prasad (P. W 11) that Kashim had not returned P W 1 further learnt that one Jalil Mian had been sent to the place of the father-in-law of Kashim and another person to the place of Kashims father to find out if Kashim was at any of those places, but it was learnt that he had not gone to either of the two places Thereafter. P W 1, accompanied by the two other persons, Chaturgun Singh (P. W 2) and Karimuddin (P. W 10) went to Urur in search of Kashim Mian. On their way they met Sohar at Urur at about 3 to 4 p.m. They brought Sohar to Manatoo office and questioned him about the whereabouts of Kashim, upon which he told them the aforesaid facts, which led to the killing and death of Kashim, already stated above Sohar further told them that they took Kashims dead body and concealed near a Tongra (hillock) and that he was prepared to show the place to them Thereafter P W 1 took Sohar to Manatoo police station and a first information report (Ext 5) was lodged there, which was recorded by the Sub-Inspector of Police (P W 14) He took up investigation of the rase arrested Sohar Singh, and left for the place of occurrence on a truck, accompanied by Sohar Singh They carried with them a pelromax light and reached village Kharikdag at about 10.45 P M He arrested the other five accused persons and recovered some tangis from the houses of Bhonu. Kail and Rajapali, and prepared a seizure list P W 14 then went to Kundelpur jungle along with the accused persons. Kail and Rajapali, and prepared a seizure list P W 14 then went to Kundelpur jungle along with the accused persons. Sohar took him to a place near the dry rivulet (nala) and found that there was a stone slab and at short distance from the nala the ground was scrapped at six places. There was no mark of blood. Sohar took them to a hillock, which was to the south-west of the dry rivulet, and told them that the body of Kashim had been buried there P. W 14 found the place covered with dry leaves and fresh earth had been placed over that place He also found some boulders at that place and after those boulders were removed, foul smell emanated from the place . After the place was dug out, the dead body of a man was brought out, which was highly decomposed He also found a lungi, kamij and underwear on the person of the deceased A permit book and a fountain pen were also found in the upper pocket of the kamij P W 14 seized those articles and brought the dead body to the police station where he held inquest over it, and arranged to send the corpse to the Daltonganj hospital for post-mortem examination P. W. 14 handed over charge of the investigation to another Sub-Inspector B.H. Kumar (P. W. 8), who after completing the investigation, submitted charge-sheet in the case Substantially, on these allegations, which was also the evidence of Rameshwar Bishwakarma (P W. 1), the accused persons were put on trial with the result indicated earlier. 4. The defence of the accused persons at the trial was a denial of their participation in the occurrence They said that they had been falsely implicated and on the day in question they were actually working as labourers (coolies) of one Sadhu Singh, who had taken lease of the jungle at Manaloo and the employees of the Company suspected that they were taking away the coolies employed by the Company and that they were also responsible for the removal of the bamboos in the jungle, which was under the lease of the Company. They had, therefore, been falsely implicated in the case. 5. They had, therefore, been falsely implicated in the case. 5. On a consideration of the facts and the circumstances appearing in the case, the learned Sessions Judge has held that appellant Sohar pointed out the place to the investigating officer (P W 14) in presence of the other accused persons, besides other persons, from where the dead body of Kashim had been recovered, and further held that Sohar had made a voluntary confession of the guilt, which clearly established the guilt of Sohar as well as of the other accused persons He also held that the recovery of the tangis from the houses of some of the accused persons was no circumstance against them specially in view of the fact that the chemical examiner did not find any blood marks upon them The learned Judge accordingly held the accused persons guilty of the offences charged 6. Mr. Bishwanath Agarwal, appearing as amtcus curiae, has contended. (a) that the conviction of the appellants on the basis of the extra judicial confession, said to have been made by Sohar Singh, before P W I, Rameshwar Bishwakarma and others, could not be sustained in law; as confession of a co-accused is no evidence against the other accused persons and as such the five appellants, other than Sohar, are entitled to acquittal, (b) The conviction of Sohar could not also be sustained in law, because the confession was neither voluntary nor true and in any case, did not incriminate himself. 7. In order to appreciate the contentions raised by learned counsel, it would be useful to state that there is no doubt that the dead body had been recovered as a result of the place having been shown by Sohar Singh. A number of persons were present at the place, namely P Ws 1. 2, 6, 7 and 12, besides others. These witnesses have stated that the dead fcody recovered in presence of the investigating officer (P. W 14) was that of Kashim Mian. an employee of the Company, who was working in Kundelpur jungle. Tt is thus established that the body recovered was that of Kashim Mian. 7A. On the 8th May. 1963, at 11.30 a.m. Dr. J. Dubey. who was Civil Assistant Surgeon of Daltonganj Sadar Hospital, held post-mortem examination on the dead body of Kashim Mian. who was a young man of 22 years. Tt is thus established that the body recovered was that of Kashim Mian. 7A. On the 8th May. 1963, at 11.30 a.m. Dr. J. Dubey. who was Civil Assistant Surgeon of Daltonganj Sadar Hospital, held post-mortem examination on the dead body of Kashim Mian. who was a young man of 22 years. The doctor found the skin dry and presented a look of mummification; tissues were dry and superficial skin epidermis was off. Heart was empty. Tongue was protruded and hair was shrunken, and the face was disshaped. P. W 13 found the following injuries. 1. Fracture of the lower jaw in the middle. 2. Smashed fracture of left maxilla temporal hone and a part of the frontal bone 8. In the opinion of the doctor, death was due to the said injuries, which could have been caused by hard part of a tangi He was of the view that the death might have taken place about a week before the post-mortem examination. It has been elicited from him in cross-examination that mummification takes place usually between three to six months after death, though no definite time could be given for that Usually rigor mortis disappears between 19 to 72 hours, depending on the climatic condition and the surroundings He admitted that in the present case rigor mortis had long disappeared and the heart was empty, which might be due to bleeding He further stated that certain parts had decomposed while other parts had not He also stated that the death might have taken place about 12 days before the post-mortem examination He further stated that smashed fracture is caused by heavy and blunt weapon, such as big piece of stone. 9. On the evidence of the doctor (P W. 13) and that of the investigating officer (P W. 14). apart from the evidence of the eye witnesses, dealt with above it is clear that Kashim had been murdered by the injuries caused to him by some heavy and blunt substance approximately on the date alleged by the prosecution and that the dead body had been concealed by some persons in the hillock in order to screen the offender or offenders from punishment. The learned Sessions Judge has examined this matter in great detail and I am in complete agreement with his finding. It is, therefore, not necessary to examine this matter any further. 10. The learned Sessions Judge has examined this matter in great detail and I am in complete agreement with his finding. It is, therefore, not necessary to examine this matter any further. 10. Now let me consider the contentions raised by learned counsel The prosecution has examined fourteen witnesses to prove its case, of whom three witnesses are on the point of extra judicial confession made by Sohar Singh. Mr. Agarwal has contended that the alleged confession is not in the language of the accused but merely carries the impression of the witnesses, who testified to that fact. He has further urged that it does not appear to be voluntary and true and as such the confession is not even a relevant piece of evidence. Learned counsel has further submitted that there is no substantive evidence in the case, which would justify the conviction of the accused persons in law In his submission, the extra judicial confession is only relevant evidence and may corroborate the circumstantial evidence, if any, adduced in the case. 11. Let me at this stage examine what the witnesses have to say about the confession. The substance of the evidence of P W 1 has already been given He has stated while Kashim Mian was sitting there accused Bhonu Mistry assaulted Kashim Mian with the rear portion of a (angi and Kashim fell down and then all the six accused assaulted him with the rear portion of tangis and Kashim died and there they concealed the dead body near a Tongra (hillock) Sohar Singh also told us that he could show us that place." P W 2 has stated: "Then we came to Manaloo bazar and near a well we began to question Sohar Singh and Sohar told us that he had taken Kashim Mian to the house of accused Bhonu Mistry at Khorigdag and from there Bhonu Mistry. Kail Mistry and Sonar Singh took Kashim to the jungle near a Nala and Kashim was asked to sit there seeing that the bamboo thieves would go away from there or not and the accused Dhanapat Rajpati and Phul Chan who is the brother-in-law of Rhomi Mistry, were there from before and that all of them had a langi in their hands Sohar Singh further said that Bhonu Mistry assaulted Kashim Mian on his head with the rear portion of his Tangi and Kashim fell down and that all the accused assaulted Kashim Mian and then buried the dead body in a Tongri which is towards west of that place and covered that place with boulders and earth and leaves." Mustaq Ahmad (P W 12) has slated, as follows. ".....I heard Sonar Singh (identifies the accused) saying to the people there that Bhonu, Sohar and Kail Mistry had called Kashim at Khorigdag through him and from Khorigdag they had taken Kashim to the dorha to the west of the village and that accused Rajpati, Dhanpaf and Phul Chan also collected there and that place Bhonu Mistry assaulted Kashim Mian with a Tangi and the remaining persons present there assaulted Kashim Mian when he fell down and that Kashim Mian died there as a result of the assault on him and that his dead body was buried on a Tongra which was at a distance of about 100 rassis from that dorha." The investigating officer (P. W. 14) has said: "Then accused Sohar Singh took us to a hillock which was to the south-west of the dry rivulet and said that the dead body of Kashira Mian had been buried there ....." On a comparison of the evidence of these witnesses as to what Sohar Singh had said in his confessional statement, it is clear that none of the witnesses has been able to give what were the exact words used by accused Sohar. It appears to me that these witnesses have not used the language of the accused but have merely given their own impression of what they had heard which has been taken to be a confessional statement. 12. It appears to me that these witnesses have not used the language of the accused but have merely given their own impression of what they had heard which has been taken to be a confessional statement. 12. It has been held in Sahoo V/s. State of Uttar Pradesh AIR 1966 S.C. 40 , that before accepting such evidence, it must be established by cogent evidence what were the exact words used by the accused Their Lordships have observed: "But, there is a clear distinction between the admissibility of an evidence and the weight to be attached to it, A confessional soliloquy is a direct piece of evidence. It may be an expression of conflict of emotion, a conscious effort to stifle the pricked conscience: an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime The tone may be soft and low: the words may be confused: they may be capable of conflicting interpretations depending on witnesses, whether they are biased or honest, intelligent or ignorant, imaginative or prosaic, as the case may be. Generally they are mutterings of a confused mind Before such evidence can be accepted, it must be established by cogent evidence what were the exact words used by the accused Even if so much was established, prudence and justice demand that such evidence cannot be made the sole ground of conviction It may he used only as a corroborative piece of evidence" 13. Further the statement shows that Bhonu Mistry had assaulted Kashim with the rear portion of a tangi, upon which Kashim fell down and then all the six accused assaulted him with the rear portion of the tangi The medical evidence, on the other hand, does not support this statement, because, as already stated, the doctor had found only two injuries on the person of the deceased, which is not possible if all the six persons had assaulted him with the rear portion of the tangi As such, I am of opinion that the statement cannot be true. If it is not true, then if also appears to me that the confessional statement, said to have been made before P W 1. and the other employees of the Company, is also not voluntary. If it is not true, then if also appears to me that the confessional statement, said to have been made before P W 1. and the other employees of the Company, is also not voluntary. P W 1 was the Assistant Supervisor of the Company and all the accused were coolies under the Company in the jungle and as such P W 1 was a person in authority, who was in a position to have given some inducement, promise or threat. There is, however, no clear evidence on this point, but it is not free from doubt, specially in view of the fact that the statement is not true, Nextly, it suffers from another defect that accused Sohar, who made the confessional statement, does not incriminate himself. A confession is an admission by an accused in a criminal case and if he does not incriminate himself, the statement cannot be said to be a confession, because, it does not acknowledge his own guilt. 14. The point raised by learned counsel that the extra judicial confession made by a co-accused cannot be the basis of conviction of the other accused persons, must be accepted as correct Reliance has been placed cm a decision of the Supreme Court in Kashmira Singh V/s. State of Madhya Pradesh, AIR 1952 SC 159 , Their Lordships had to examine the question as to how far and in what way the confession of an accused person could be used against a co-accused. Their Lordships observed: "......It is evident that it is not evidence in the ordinary sense of the term, because, as the Privy Council say in Bhuboni Sahu V/s. The King, 76 Ind App 147 at p. 155: (AIR 1949 PC 257 at p. 260): "It does not indeed come within the definition of evidence contained in Sec.3, Evidence Act. It is not required to be given on oath, nor in the presence of the accused and it cannof be tested by cross-examination. Their Lordships also point out that it is obviously 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 those infirmities. Their Lordships also point out that it is obviously 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 those infirmities. They stated in addition that such a confession cannot he made the foundation of a conviction and can only be used in support of other evidence In view of these remarks, 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 an accomplice, is placed in the same category regarding credibility because the Judge refuses to believe him except in so far as he is corroborated? "In our opinion, the matter was put succinctly by Sir Lawrence Jenkins in Emperor V/s. Lalit Mohan, (1911) 38 Cal 559 al p 588 where be said that such a confession can only be used to lend assurance to other evidence against a co-accused or to put it in another was as Reilly J did in In re, Periyaswami Moopan, ILR 54 Mad 75 at p 77 (AIR 1931 Mad 177 at p 178) the provision goes no further than this where there is evidence against the co-accused sufficient, it 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. "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. 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 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 prepared to accept. "Then, as regards its use in the corroboration of accomplices and approvers. A co-accused who confesses is naturally an accomplice and the danger of using the testimony of one accomplice to corroborate another has repeatedly been pointed out. The danger is in no way lessened when the evidence is not on oath and cannot be tested by cross-examination Prudence will dictate the same rule of caution in the case of a witness who though not an accomplice is regarded by the Judge as having no greater probative value. But all these are only rules of prudence So far as the law is concerned, a conviction can be based on the uncorroborated testimony of an accomplice provided the Judge has the rule of caution, which experience dictates, in mind and gives reasons why he thinks it would be safe in a given case to disregard it. Two of us had occasion to examine this recently in Rameshwar V/s. State of Rajasthan Cri Appl No. 2 of 1961: (AIR 1952 S C 54) It follows that the testimony of an accomplice can in law be used to corroborate another though it ought not to be so used save in exceptional circumstances and for reasons disclosed. As the Privy Council observe in 76 Ind App 147 al p 157: (AIR 1949 PC 257 at p 261): "The tendency to include the innocent with the guilty is peculiarly prevalent in India. as Judges have noted on innumerable occasions, and it is very difficult for the Court to guard against the danger. The only real safe guard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates such accused." 15. as Judges have noted on innumerable occasions, and it is very difficult for the Court to guard against the danger. The only real safe guard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates such accused." 15. The above principle has been reiterated by the Supreme Court in a recent decision in Haricharan Kurmi V/s. State of Bihar, AIR 1964 SC 1184 . where their Lordships, while referring to the Kashmira Singhs case. AIR 1952 SC 159 have observed that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon a confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the Court is inclined to hold that the said evidence may sustain in the charge framed against the said accused person, the Court turns to the confession with a view to assure itself that the conclusion, which it is inclined to draw on the other evidence, is right. Their Lordships further relied on a passage of Sir Lawrence Jenkins in (1911) 38 Cal 559 at p. 588: A confession can only be used to lend assurance to other evidence against a co-accused. It is, therefore, clear that in the absence of any substantive evidence in this case, the confession of Sonar Singh cannot be used against the other appellants. The learned Additional Government Pleader has frankly conceded that in view of the aforesaid decisions of the Supreme Court, this is the correct legal position and as such he could not support the judgment against these appellants. For these reasons, I am satisfied that the appellants Nos. 2 to 6 have been wrongly convicted as there is no legal evidence against them and as such they are entitled to acquittal. 16. Turning now to the case of Sohar Singh, it has been contended on his behalf that even his conviction cannot be legally upheld for two reasons. Firstly, the extra judicial confession made by him is neither true nor voluntary and he does not incriminate himself in his statement that he has made as having taken part in the crime. 16. Turning now to the case of Sohar Singh, it has been contended on his behalf that even his conviction cannot be legally upheld for two reasons. Firstly, the extra judicial confession made by him is neither true nor voluntary and he does not incriminate himself in his statement that he has made as having taken part in the crime. Secondly, when the appellant was charged under Sec.302 read with Sec.34, Penal Code, for having shared the common intention of the five named persons and having participated in the crime and the five persons having been acquitted, the element of sharing intention disappears Similarly, he has also been charged under Sec.201 read with Sec.34 for having shared the common intention of the five named persons. Appellant Sohar has further been charged under Sec.364 read with Sec.34. Penal Code, for having shared the common intention of the five named persons in abducting Kashim Mian, the deceased, in order to murder him This submission must be accepted as correct. 17. Reliance has been placed on a decision in Prabhu Babaji V/s. State of Bombay. (S) AIR 1956 S. C 51. as also on another case in Krishna Govind V/s. State of Maharashtra, AIR 1963 S C 1413. In the latter case for instance, it has been held that where the High Court acquitted 3 of the four accused charged for an offence under Sec.302 read with Sec.34 giving them the benefit of doubt in view of the fact that their identity was not established, but convicted the fourth accused under Sec.302 read with Sec.34 on the ground that he had committed the offence along with one or other of the acquitted accused, the conviction of the fourth accused was clearly wrong Their Lordships further observed that when accused were acquitted either on the ground that evidence was not acceptable or by giving benefit of doubt to them the effect in law would be that they did not take part in the offence Hence the effect of acquittal of three accused was that they did not jointly act with the fourth accused in committing murder. If that was so, the fourth accused could not be convicted under Sec.302 read with Sec.34 for having committed the offence jointly with the acquitted persons. 18. If that was so, the fourth accused could not be convicted under Sec.302 read with Sec.34 for having committed the offence jointly with the acquitted persons. 18. In the instant case, when once the five co-accused persons have been eliminated, then it cannot possibly be said in law that Sohar Singh shared the common intention with those other five persons. It would have been another matter if Sohar Singh had been charged for having shared the common intention with those five persons and other persons unknown, but that is not the position in this case, and as such applying the principles of the aforsaid two decisions. I have no hesitation in holdhig that Sohar Singh must also be acquitted of all the charges, namely, 302/34, 201/34 and 364/34, Indian Penal Code. 19. In the result, the appeal is allowed. The order of conviction and sentence passed upon the appellants is set aside. They are acquitted of all the charges levelled against them. They must now be released forthwith unless required in some other connection. Choudhary, J. 20 I agree.