JUDGMENT : S. Acharya, J. - The Appellant stands convicted u/s 304, Part II, Indian Penal Code and sentenced there under to R.I. for five years. 2. The prosecution case, in short, is that Baji Munda, the deceased, a co. villager of the Appellant, suspecting that his wife Gumbari (p.w. 7) was being lured by accused Ramsingh to illicit intimacy, started publicly scandalizing the accused. On the morning of 1.5.1965, p.w. 2, the ex-Gountia of Gadapali, found the dead body of Baji Munda lying near the liquor shop of village Gadapali. He immediately reported the matter to p.w. 1, the ex-Choukidar of the village who went to the spot with some other villagers and found Baji's dead body with bleeding injuries on the lower jaw and on the left side of his head. P.W. 2 and some others kept watch over the dead body, and p.w. 1 went to Bonai Thana to lodge the F.I.R. Ext. 1. Thereafter, investigation Started and the accused was arrested on 3-7-1965, at 9.30 A.M. The accused stood his trial on a charge u/s 302, Indian Penal Code, and convicted anti sentenced u/s 304, Part II, Indian Penal Code as stated above. 3. The accused pleaded not guilty to the charge by denying the allegation of killing the deceased. 4. P.W. 5 who on 2-5-1965 held the post-mortem examination on the dead body of deceased Baji Munda found one lacerated wound on the right side of his lower jaw and another on his forehead. On dissection he found fracture of the first and second cervical vertebrae and dislocation of the first cervical vertebra, Spinal membrane and the spinal cord at the level of the cervical vertebrae were contused. There wag fracture of the lower jaw bone and three reeth of the lower jaw were uprooted. In the opinion of the doctor, the injuries were ante-mortem and death was instantaneous due to fracture and dislocation of the cervical vertebrae and damage of the spinal cord. There is therefore no doubt that the death of the deceased Baji Munda was homicidal and was due to the above mentioned injuries on his person. 5. 11 witnesses were examined by the prosecution. At the outset it must be stated that there is no eye-witness's account in this case against the accused. There is therefore no doubt that the death of the deceased Baji Munda was homicidal and was due to the above mentioned injuries on his person. 5. 11 witnesses were examined by the prosecution. At the outset it must be stated that there is no eye-witness's account in this case against the accused. The three items of evidence on which the Appellant has been convicted and on which the prosecution depends are: (i) the alleged extra judicial confession of the accused before p.ws. 4 and 8; (ii) alleged recovery of the lathi (M.O.I.) from the house of the accused, seized by the Circle Inspector (p.w. 11) under Seizure List Ext. 5, on the alleged information given by the accused to the police ; and (iii) the judicial confession (Ext. 9) made by the accused before p.w. 6, a Magistrate. The accused denied to have made any confessional statement before p.ws. 4 and 8, his statement u/s 342, Code of Criminal Procedure in this connection as that p.ws. 4 and a being inimically disposed towards him, spoke falsehood against him. He denied to have given recovery and/or any information to the police leading to the recovery of the lathi (M.O.I.) as alleged. He also stated that he was beaten by the police in the Gadapali School after he was arrested. Regarding the judicial confession (Ext. 9) before p.w. 6, he categorically stated that he made the said statement before the Magistrate due to the fear of the police as the police beat him and threatened him to make such a statement. He realized from the said confessional statement even at the committing stage before the Magistrate. 6. It was very seriously urged on behalf of the Appellant that the judicial confession (Ext. 9) could not be utilized against the accused Appellant, as the Magistrate admittedly did not give the pertinent warning to the accused, that the accused was not bound to confess the guilt, as specifically provided for u/s 164(3), Code of Criminal Procedure. From Ext. 9 I find that no question, specifically to that effect, was put to the accused before his confessional statement was recorded. P.W. 6, the Magistrate, who recorded the confession, categorically admitted in the very first sentence of his cross-examination that he did not tell the accused that he was not bound to make the confession. From Ext. 9 I find that no question, specifically to that effect, was put to the accused before his confessional statement was recorded. P.W. 6, the Magistrate, who recorded the confession, categorically admitted in the very first sentence of his cross-examination that he did not tell the accused that he was not bound to make the confession. In the Full Bench decision of this Court in Bala Majhi Vs. The State of Orissa it has been held that where the requirements of Section 164(3), Code of Criminal Procedure have not been substantially complied with, the statement which purports to be the confessional statement cannot be treated as a validly recorded confession u/s 164, Code of Criminal Procedure and as such cannot be brought in u/s 26 of the Evidence Act, and the came must therefore be, discarded. This decision is in accord with the cardinal principle laid down on this point by the Privy Council in AIR 1936 253 (Privy Council) . That being the law on the subject, the judicial confession (Ext. 9), which was one of the items of evidence utilized by the Court below in convicting the Appellant cannot, in the face of Ext. 9 and in the context of the above evidence of p. w. 6 be regarded as a valid record of confession to be brought in u/s 26 of the Evidence Act and as such the said statement has to be discarded. 7. Another item of evidence utilized against the Appellant is his alleged extra judicial confession before P.Ws. 4 and 8. The dead body of Baji was seen on the early hours of 1-7-1965, and the prosecution evidence suggests that he died sometime in the night of 30-6-1965. On 1-7-1965 p.w. 10, the Officer-in-charge of Bonai P.S. after recording the F.I.R. reached the spot at about 11 P.M. He was at the spot till 5 P.M. of 2-7-1965. P.W. 1 took charge of the investigation of this case on 2-7-1965 at 10 A.M. and only on 3.7.1965 at 9 A.M. he examined P.Ws. 4 and a and till then these witnesses did not inform p.w. 10 or p.w. 11 or anybody else about the confession allegedly made before them by the accused. P.W. 1 took charge of the investigation of this case on 2-7-1965 at 10 A.M. and only on 3.7.1965 at 9 A.M. he examined P.Ws. 4 and a and till then these witnesses did not inform p.w. 10 or p.w. 11 or anybody else about the confession allegedly made before them by the accused. According to p.w. 4, he has his house close to the house of the Appellant, and came to know from the accused that it was he who assaulted Baji and killed him, but it is significant to find him stating in his examination-in-chief itself that he did not know anything about Baji's death till Friday the 2nd July, 1965. The following few sentences from his cross-examination are of immense importance: The police threatened me and detained me on that Friday night. I told the police that I did not know anything about the occurrence. Whatever I stated, I stated due to police threats. That completely falsifies and takes away the effect of his statement in the examination-in-chief containing the alleged extra judicial confession made by the Appellant. P.W. 8 in his examination-in-chief stated that on Thursday (i.e. on 1st July) be came to know from p.w. 1 that Baji was dead and on the following Saturday (i.e., on 3rd July) morning the accused told him that he killed Baji. He further stated that a police constable came and took him and the accused to the Thana officer on Saturday i.e., on the 3rd July. Thus, according to him, both himself and the accused were taken to the Thana office at the same time. Stating all that in examination-in-chief, be stated in cross-examination as follows: The constable took us to the Gadapali School and from there we all went to the Thana on Saturday. The accused was examined both in the Thana and Gadapali School. I told the police that I did not know anything. It is Dot a fact that the police threatened me. The accused was suffering from fever and had boil on his hand when be was arrested. He was taken to the Thana as soon as he was arrested. He did not go back to his house after his arrest. The accused was ill for 3 to 4 days before his arrest. I was also ill in my house, and I was busy in my house while illness of my family members (sic). He was taken to the Thana as soon as he was arrested. He did not go back to his house after his arrest. The accused was ill for 3 to 4 days before his arrest. I was also ill in my house, and I was busy in my house while illness of my family members (sic). So I did not meet, the accused. I saw him when the police arrested him. Thus, according to him, he bad not met the accused prior to his arrest by the police on the 3rd July at 9. 30 A.M. If that be so, it is not understood how and at what time and place the accused made the alleged confessional statement to this witness. Moreover, because of his statement in cross-examination that he told the police that he did not know anything about the occurrence it is hazardous to place any reliance on his evidence in examination-in-chief that the accused told him that it was he who killed Baji. On the above discussion of the evidence of p.ws. 4 and a evidently no reliance on the testimony of these two witnesses can be placed regarding the extra-judicial confession allegedly made by the accused before these two witnesses. Over and above the unconvincing nature of their evidence, the accused specifically asserted that, both these two witnesses were inimically disposed towards him, and as such falsely deposed against him in the above manner. From all these it has to be held that the alleged extra-judicial confession has not been proved and cannot be relied upon by the prosecution and utilised against the Appellant. 8. The only other piece of evidence utilised against the Appellant is the alleged recovery of the lathi (M.O.I) from the house of the accused on the information given by him to the police. According to p.w. 11, the Investigating officer, be was led by the accused to his house where he produced M.O.I. before him. P.W. 3, a witness to the seizure of the lathi under Ext. 5, stated that the Circle Inspector arrested the accused in the house of the accused in his presence. Thereafter, the accused brought out the lathi (M.O.I) from his house and gave it to the police who seized it under Seizure List Ext. 5 which this witness attested. P.W. 3, a witness to the seizure of the lathi under Ext. 5, stated that the Circle Inspector arrested the accused in the house of the accused in his presence. Thereafter, the accused brought out the lathi (M.O.I) from his house and gave it to the police who seized it under Seizure List Ext. 5 which this witness attested. All this is contrary to the evidence of p.w. 8 discussed and quoted above in the preceding paragraph. Moreover, p.w. 3 in his cross-examination stated that be did not remember if the accused made any statement to the police after he was arrested and before the lathi was seized. P.W. 2, the other witness, who signed the Seizure List Ext. 5, has entirely a different story to tell about the seizure of the lathi. According to him, the Thana. Babu in the presence of this witness arrested the accused and took him to the school house where the accused stated that be assaulted the deceased with a lathi and kept the lathi in his house. Thereafter, the accused took them to his house and gave recovery of a lathi which the Thana Babu seized and prepared the Seizure List Ext. 5 in the presence of this witness which he attested. His evidence thus is directly in conflict with that of p.ws. 3 & 8. Thus the evidence regarding the recovery of the lathi (M.O.I.) on the alleged information given by the accused is most unconvincing and cannot be relied upon. Moreover, the report of the Chemical Examiner shows that no blood was detected in the lathi (M.O.I) sent to him for serological test. On the above considerations this piece of evidence which was considered by the lower Court against the Appellant cannot be relied upon and is of no avail for the prosecution. 9. Thus each one of the three items of evidence on which the prosecution depended and on which the Court below convicted the Appellant, is absolutely of no worth for reasons stated above against each of them. Apart from the above three items of evidence, there is absolutely nothing to connect the accused with the offence culminating in the death of the deceased. Apart from the above three items of evidence, there is absolutely nothing to connect the accused with the offence culminating in the death of the deceased. In this view of the matter I am satisfied that the prosecution has not at all been able to establish the complicity of the accused with the above offence beyond reasonable doubt, and as such his conviction under Part II of Section 304, Indian Penal Code has to be set aside. In the result, the conviction and the sentence palsied by the Court below against the Appellant are hereby set aside, be is acquitted, and is directed to be Bet at liberty forthwith.