JUDGMENT : The appellants, eleven in number, have been convicted under Section 126 B of the Indian Railways Act and each has been sentenced to suffer rigorous imprisonment for seven years thereunder by the Assistant Sessions Judge of Ranchi. 2. A written report (Ext. 10) dated the 4th September, 1964, was sent by Adi Nath Sen (P.W. 7) an Assistant Engineer of the Eastern Railway at Bano, to the officer-in-charge of Bano police station which was to the following effect : – “Sri Laluah, P. Way Mistry at Kurkura, informs that on the night of 2.9.64 at about 23.30 hrs Patrolmen on duty noticed that one rail was lying at right angles over the track at K.M. 516/7 near Rabai. The patrolmen on duty informed the sectional mate about this who with his gangmen cleared off the rail from the track. If this would have remained unnoticed or could not be noticed before any passage of train, serious consequences of derailment of train was inevitable. You are requested to look into the matter and take necessary action to prevent occurrence of similar mischievous activities by miscreants.” On the basis of this written report., P.W. 6, Nand Kishore Singh, who happened to be the officer-in-charge of Bano police station at the time, drew up a formal first information report (Ext. 7) and started investigation. In course of the investigation he examined on the 5th September, 1964, appellant no. 2, Mangat Rai Nagbanshi Munda, who was under arrest in connection with another occurrence relating to case no. 2(ix)64, pertaining to Kolebira Police Station. The informant A.N. Sen, as also S.K. Chakravarty and another were examined and the Investigating Officer reached the alleged place of occurrence pointed out to him by Lalu Munda (not examined in this case) and it was found to be the railway track between 516 and 517 kilometre at 47 ft. inches to the north of culvert no. 532. The Investigating Officer found two big rails kept beside the track on the eastern side of the railway lines and at the place of the occurrence he noticed two big rails lying transversely across the railway track close north to the place of occurrence, which was found to be in Mauja Jamtoli within Bano police station. 532. The Investigating Officer found two big rails kept beside the track on the eastern side of the railway lines and at the place of the occurrence he noticed two big rails lying transversely across the railway track close north to the place of occurrence, which was found to be in Mauja Jamtoli within Bano police station. In course of the investigation three letters (marked Exhibits i to i/b) and the envelope (marked Exhibit ii) were said to have been produced by appellant no. 1, Mangar Nagbanshi Munda. They were seized under seizure list (Exhibit 8) and appellant no. 1 was put under arrest and on the 8th September, 1964, he was forwarded to the Subdivisional Magistrate, Simdega, with a remand report about appellant no. 2 Mangat Rai Nagbanshi Munda. The other appellants were arrested subsequently by P.W. 6 and they were forwarded to the Subdivisional Magistrate, Simdega, on the 18th September, 1964, with a request to get their confessional statements recorded. A test identification parade was arranged on the 26th September, 1964, in which Mangar Munda was the suspect and it was conducted by P.W. 4, Sri Zafirul Hassan Khan, Magistrate, on the 31st October, 1964. P.W. 1 A.S.I. Kameshwar Nath Trivedi, on the direction of P.W.6, obtained specimen writings of appellant no.2, Mangat Rai Nagbanshi Munda in the presence of Shree K.P. Sinha, Magistrate (P.W.2), and they were marked Exhibits I to i/q. Another set of specimen writings was obtained from the same appellant no. 2 by P.W. 1 on the 2nd November, 1964 and they were marked Exhibits i/r to i/w. The confessional statements of the appellants were duly recorded by two Magistrates, Shree K.P. Sinha (P.W.2) and Shree B.B. Sinha (P.W.3) and the specimen writings obtained in the case were sent to the hand-writing expert for comparison with the writings in the letter (Exhibits I to i/b) and after the conclusion of the investigation chargesheet was submitted in the case. 3. The accusation against the accused-appellants was that they, on the 2nd September, 1964, at Mauja Rabai put two rails across the railway track at kilometer 516 with intent or with knowledge that they would thereby endanger the safety of the persons travelling or being upon the rail. 4. The accused pleaded not guilty to the accusation and claimed to be innocent. 4. The accused pleaded not guilty to the accusation and claimed to be innocent. There was a general denial of the confessional statements before the magistrates and from the suggestions put to the Investigating Officer (P.W. 6) the defence appears to have been that appellant Mangat Rai was persuaded to make the confession that he had put two rails on the railway track and was told that the Government would accede to his demand if he did so and if he could persuade the other accused persons also to make such confessions before the Magistrate. 5. The learned Assistant Sessions Judge found no eye-witness connected with the alleged offence and he found that the evidence of the informant (P.W.7) suffers from defect of hearsay report but on the evidence of P.W.s 8 and 9, it was established that on the night of the 2nd September, 1964, two rails had been placed on the railway track between kilometres 516 and 517, although there is nothing in the statements of any of the witnesses examined in this case to connect any of the accused persons on trial with this offence. With regard to the writings in the letters (Exhibits I to I/f), which were examined in the case by the hand-writing experts, the trial court came to the finding that although the Expert found the writings of the letters to tally with the specimen writings of Mangat Rai Nagbanshi Munda there is no evidence and nothing in Exhibits I to I/f to establish that the accused Mangat Rai placed the rails across the railway track on that particular night. The trial court, however, relied upon the confessional statements made by the accused before the two Magistrates named above and their retraction of the same was, in his opinion, only a show of retraction and there was in fact nothing to vitiate those confessions, which were, in the opinion of the learned Assistant Sessions Judge, made voluntarily. He accordingly based the conviction of the appellants on the above said confessional statements and has sentenced the appellants in the manner indicated above. 6. Mr. Nakuleshwar Prasad, appearing for the appellants, submitted that the conviction passed in the case on retracted confession, without any independent corroboration was wholly unjustified and. in fact, this is the only point which needs our serious consideration. 6. Mr. Nakuleshwar Prasad, appearing for the appellants, submitted that the conviction passed in the case on retracted confession, without any independent corroboration was wholly unjustified and. in fact, this is the only point which needs our serious consideration. With respect to the written report of the informant, P.W. 7, learned counsel contended that it was based entirely on hearsay report and as such it could not be legally admissible in evidence and the entire prosecution case based on Exhibit 10 should be rejected outright. I shall refer to the other submissions of the learned counsel in proper context hereafter. 7. The prosecution examined ten witnesses, out of sixteen named in the chargesheet, and the trial court has observed that in spite of the court's efforts to secure the attendance of the remaining witnesses named in the chargesheet, they could not be examined in the case and the hearing of the case had to be closed without their evidence. None of these witnesses in this case, however, is any eye-witness of placing of the rails by any of the appellants and although Exhibit 10, the first information report, discloses that one Laluah, a P.W. Mistry at Kurkura conveyed the information on the night of the 2nd September, 1964, at about 23.30 hours (11.30 P.M.) that patrolmen on duty had noticed one rail lying at right angles over the rail way track at K.M. 516/7 at Rabai and the gang men cleared off the rail from the track, P.W. 7 in his evidence in court stated that on the morning of the 4th September, 1964, which was the date of his report (Ext. 10), he was verbally informed by one Sushil Kumar Chakraverty (not examined in the case) that he learnt from Lallu that near village Rabai a rail was placed at right angles across the railway track and Head Mistry Lallu received that information from a patrolman whose name was not given to the informant. The information conveyed by Sushil Kumar Chakraverty, according to this witness, was that during the night of the 2nd September, 1964, between 11 and 12 p.m. the patrolmen on duty found that rail across the railway track. The information conveyed by Sushil Kumar Chakraverty, according to this witness, was that during the night of the 2nd September, 1964, between 11 and 12 p.m. the patrolmen on duty found that rail across the railway track. Neither Head Mistry Lallu, nor S.K. Chakraverty was examined by the prosecution in this case, and, evidently, Adi Nath Sen (P.W.7) had no personal knowledge and he had never gone to the place of occurrence to inspect it on receipt of the information from S.K. Chakraverty. It was, in fact, an information sent by the informant, who had no personal knowledge about the occurrence and as such the first information report suffered from inaccuracies to the extent that two rails were actually found on the railway track by the gangmen, P.W’s. 8 and 9, and not one, as was noted in the written report, Exhibit 10. The evidence of P.W. 8 in the case is that he was the mate of the gangmen in September, 1964, and on the 2nd September, 1964, he was on duty on the railway track at Jitu Toli and was getting work done by the gangmen on the railway lines. He proceeded at 7 P.M. towards Jamtoli to supervise the work of patrolmen along with Bilkan Munda (P.W. 9) and one Khirodhar Barai (not examined) and during the period between 7 and 10 p.m. they noticed two rails put across the railway lines obliquely near Jamtoli between 516 and 517 Kilometres and that they removed the two rails with the help of Sabai and put them towards the north by the side of the said railway track and he reported about the incident at about mid-night time to Head Mistry Lallu. P.W. 8 has been substantially corroborated by P.W. 9 Bilkan Munda. P.W. 6, the Investigating Officer, however, when he inspected the place of occurrence on the 4th September, 1964, noticed two big rails kept beside the track to the east of the railway lines and two big rails lying transversely across the railway lines close north of the place of occurrence. Consequently on a reference to this evidence, learned counsel contended that the written information report suffers not only from the fact that it was not based on any personal knowledge, but it also suffers from inaccurate information. Consequently on a reference to this evidence, learned counsel contended that the written information report suffers not only from the fact that it was not based on any personal knowledge, but it also suffers from inaccurate information. But, it must be noted that the prosecution is not strictly bound down to the case in the first information report and it is never per se statement of the case of the prosecution. A defective first information report cannot destroy the otherwise credible evidence, if there be any in the case since the first information report is a substantive evidence and is not the last word in the prosecution case and the inaccurate information’s contained therein, without knowledge of true facts, are not to be viewed too narrowly. The evidentiary value, however, of the written report (Ext. 10) and the oral testimony of its author (P.W. 7) A.N. Sen, lose all value and weight and we can leave them out of our consideration, for the purpose of a decision to be arrived at in this case. 8. On the 26th September, 1964, Shree Zafirul Hassan Khan (P.W. 4) a Magistrate of Simdega, conducted the test identification parade of accused Mangar Nagbanshi Munda and Tipru Munda and Sheelal Baraik was the only identifying witness but he has not been examined in the case. The relevant T.I. Chart is Exhibit 4, and the court below has rightly pointed out that in the absence of the identifying witness this T.I. Chart is hardly of any use in this case. It appears that appellant Mangar Nagbanshi Munda was placed on the T.I. parade because according to the Investigating Officer it was he who had produced the three letters) Exhibits I to I/b and the envelope (Ext. II) before him in presence of the witnesses. Appellant no. 2, Mangat Rai Nagbanshi Munda, according to the prosecution, was the author of those letters and so his specimen writings were obtained by P.W. 1 and they were forwarded with the letters Exhibits I to l/f to the handwriting expert at Patna for comparison and report. The trial court has discussed this part of the prosecution case and the Expert report (Ext. 5) as also the evidence of one of the experts (P.W. 5) who examined the writings in the letter with the specimen writings. The trial court has discussed this part of the prosecution case and the Expert report (Ext. 5) as also the evidence of one of the experts (P.W. 5) who examined the writings in the letter with the specimen writings. In paragraph 11 of its JUDGMENT : and it does not appear necessary for me to refer in detail to the contents of those letters, as the learned judge points out that the contents of Exts. I to I/e were only aimed at exhorting the Mundas to insist on their rights and to secure the same and they had no way out, save and except to take recourse to direct action. In Exhibits I and I/f, there was some clear indication that they would resort to direct action with effect from the 3rd September, 1964, and their modus operandi would be by stopping the movements of railway trains and the whole object of their activities would be to make the authorities feel the importance of granting the demands of the Mundas. Consequently, these letters would at best be a circumstance to connect appellant Mangat Rai Nagbanshi Munda and his party members with the offence of placing the rails across the railway track with effect from the 3rd September, 1964, and even if we assume that Exts I and I/f were in the pen of the appellant Mangat Rai Nagbanshi Munda, they were pot such evidence as would establish that the said appellant or for the matter of that the other appellants had actually placed the rails across the railway tracks at the place of occurrence between 7 and 10 p.m. of the night of the occurrence, i.e., on the 2nd September, 1964. I may, incidentally, point out that it is a settled law that expert opinion must always be received with caution but perhaps none so with more caution than the opinion of a handwriting expert, and it is well established that it is not safe to base a JUDGMENT : purely on expert opinion without substantial corroboration. I may, incidentally, point out that it is a settled law that expert opinion must always be received with caution but perhaps none so with more caution than the opinion of a handwriting expert, and it is well established that it is not safe to base a JUDGMENT : purely on expert opinion without substantial corroboration. In the instant case, there is nothing except the unsupported evidence of the handwriting expert to connect Mangat Rai Nagbanshi Munda with the writings in Exhibits I to I/f. Of course, in his statement under Section 342 of the Code of Criminal Procedure, Mangar Rai did say that the letter (Exhibit I/f) was in his writing, but the prosecution cannot avail of this admission, the object of Section 342, Code of Criminal Procedure, being to enable the accused to explain any circumstance appearing against him and not to enable the court to fill up the gaps and lacuna in the evidence of the prosecutions. The opinion of the handwriting expert, therefore, was correctly not relied upon by the trial court and thus, on an analysis of the whole evidence, I find that barring the evidence of P.W.’s 8 and 9 there is nothing (excepting of course the retracted confessional statements, to which I shall presently refer) to indicate that two rails had been placed on the railway track between Kilometres 516 and 517 near village Rabai on the night of the 2nd September, 1964, between 7 and 10 p.m. and which had been removed by these patrolmen on duty and the point at issue is whether those two rails found by P.W.’s 8 and 9 at the place of occurrence had actually been placed by the appellants or by anyone of them. 9. The trial court has based the conviction of the appellants only on the confessional statements of the appellants recorded by the two Magistrates, P.W.’s 2 and 3. These confessional statements have been marked Exts. 3 to 3/j. P.W. 3, Shree B.B. Sinha, recorded the confessional statement of appellant no. 2 Mangat Rai Nagbanshi Munda on the 11th September, 1964 and of appellant no. 1, Mangar Nagbanshi Munda on the 9th September, 1964. They are Exhibits 3/i and 3/j. Referring to Exhibit 3/i, which is the statement of appellant no. 3 to 3/j. P.W. 3, Shree B.B. Sinha, recorded the confessional statement of appellant no. 2 Mangat Rai Nagbanshi Munda on the 11th September, 1964 and of appellant no. 1, Mangar Nagbanshi Munda on the 9th September, 1964. They are Exhibits 3/i and 3/j. Referring to Exhibit 3/i, which is the statement of appellant no. 2 Mangat Rai Nagbanshi Munda, I find that the confession was by the appellant relating to an occurrence which took place on the night between the 2nd and 3rd of September, 1964, after midnight, but we have noticed above, on reference to the evidence of the patrolmen P.W.’s 8 and 9 that they had found two rails placed at right-angle on the rail way track on the evening of the 2nd September, 1964, between 7 and 10 p.m., and, therefore, clearly: the confession of appellant no. 2 did not relate to the occurrence covered by the charge in the case. The confessional statement of Mangar Nagbanshi Munda, appellant no. 1 is Exhibit 3/j and he stated before the Magistrate that he received a letter from Mangat Rai Nagbanshi Munda on Wednesday, the 2nd September, 1964, to the effect that on the 3rd September, 1964, the strike should commence on the lines and that he should also participate in the same, and the same day, on the night of the Wednesday after 12 p.m. and up to 3 A.M. of the night of the Thursday (the 3rd September, 1964), they reached the railway lines near about Jamtoli and they placed rails across the railway track near about Jamtoli. This confession also clearly relates to an incident that took place after the midnight on the 3rd September. 1964, and this confession also did not relate to the incident noticed by the patrolmen on the evening of the 2nd September, 1964, between 7 and 10 p.m. The trial court has failed to notice this part of the confessional statement, and, therefore, the confessional statements (Exhibits 3/i) and 3/j, did not prove anything relating to the occurence of this case against the appellants no, 1 and 2. So far as the confessional statements of the other appellants are concerned, they were recorded by Shree K.P. Sinha (P.W. 2), on the 21st September, 1964. They are Exhibits 3 to 3/g. On 3rd October, 1964, this Magistrate also recorded the statement of appellant no. So far as the confessional statements of the other appellants are concerned, they were recorded by Shree K.P. Sinha (P.W. 2), on the 21st September, 1964. They are Exhibits 3 to 3/g. On 3rd October, 1964, this Magistrate also recorded the statement of appellant no. 11, Thuma Nagbanshi Munda and it is Exhibit 3/h. When examined under Section 342 of the Code of Criminal Procedure, all these appellants denied to have made any such confessional statements, except appellant no, 4, Pardhia Munda, who, when questioned about his confessional statement, merely said that he would not say anything about it and he had nothing more to add. Learned counsel for the appellants urged that the manner in which these confessions were recorded would show that they were not voluntary statements, inasmuch as questions in leading form were put by the Magistrate to the confessing accused, a practice which has always been deprecated by the courts. The confessing persons should be left to narrate his or her story as a whole without any leading question put to the confessing person, as, otherwise, the confession would lose much of its value and would lead to the reasonable inference that the confession so recorded was not voluntary. Learned counsel, on reference to these confessions, also pointed out that under Section 164 (3) of the Code of Criminal Procedure, a Magistrate is bound to question the accused clearly as to his motive in making the confession, and if he fails to do so he has no justification to say that he was satisfied that the confession was voluntarily made and he has no jurisdiction also to refer to it as a Magistrate. Reliance was placed on a Bench decision of this Court in the case of Jeobodban V. Emperor (A.I.R. 1917 Patna 475). On the basis of this authority, it was also urged by the learned counsel that the presence of the peon of the Magistrate at the time he recorded the confession was also prejudicial to the appellants concerned. The submissions appear to me to be reasonable. 10. On the basis of this authority, it was also urged by the learned counsel that the presence of the peon of the Magistrate at the time he recorded the confession was also prejudicial to the appellants concerned. The submissions appear to me to be reasonable. 10. The main point urged by the learned counsel, however, has been that no conviction should have been based in this case on retracted confessions and the court below was not justified to say that it was only a show of retraction and it also committed an error of record when it said that during cross-examination of P.W. 6 no suggestion was made that he had persuaded or had threatened or intimidated the accused to make the confession or that he had laid any bait to them. I have already noticed above that a suggestion was in fact put to the Investigating Officer (P.W. 6.) towards the close of his cross-examination that after taking the statement of Mangat Rai Nagbanshi Munda he had told him that the Government would accede to his demand if he had admitted that he had put two rails across the railway track and he also told him that he (Mangat Rai) should persuade the other accused persons also to make confessions that under his ORDER :s they put the two rails across the rail way track. Of course, the witness denied the suggestion, but the fact is that the suggestion was there. In such circumstances, the court below was wrong to take the view that the confessional statements, in the absence of any suggestion to raise a suspicion, could be taken as voluntary. 11. The law is well settled and it was pointed out by their Lordships of the Supreme Court in the case of (1) D.L. Bhargava V. The State of Rajasthan (1963 B.L.J.R. 407) that – “A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not rule of law, but is only a rule of prudence. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not rule of law, but is only a rule of prudence. It cannot even be laid down as inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration, but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars.” We have seen above that there is no other evidence to connect the appellants or anyone of them with the placing of the rails at the place of occurrence on the evening of the 2nd September, 1964, between 7 and 10 P.M, Of course, the evidence of P.W.’s 8 and 9, the two gangmen examined in this case, does show that two rails were found by them placed on the particular railway lines obliquely on that particular evening while they were on patrol duty. Mr. Mohammad Khaleel, learned counsel appearing for the state, contended on reference to the evidence of these two witnesses (P.W.’s 8 and 9) that their evidence that two rails were in fact found on the railway track at the particular time stated by them did amount to an independent corroboration of the confessional statements of appellants 3 to 11, though they retracted the said confessions in court. I am not inclined to accept it as a corroboration in material particulars against any of the appellants for the reasons already recorded above, namely, that the confessions (Exts. 3 to 3/h) were not recorded in proper form, the Magistrate did not appear to have questioned any of the accused as to the motive that led them to make the confession and the confessions were recorded in the presence of the court peon of the Magistrate, which has so often been deprecated by this Court, and the confessions, as I have said, have been retracted. 12. 12. For the reasons recorded above, therefore, I am satisfied that the conviction of the appellants in the case was not based on any good and satisfactory evidence and it must set aside. 13. In the result, the appeal succeeds and the conviction as also the sentence imposed upon the appellants are set aside. Unless required in any other case, they be released forthwith, and, if anyone of them be on bail, he will be discharged from his bail bond. Appeal allowed.