JUDGMENT 1. (Oral) - This is a state appeal against the acquittal of the respondents from charge under sections 302,364, 392 and 201 I.P.C. against Gokalia and under sections 302 and 201 I. P. C. against Hartal and under sections 302 read with section 34 and 201 I. P. C. against Sukhlal and Kishna. 2. On 7. 3. 69 one Birdhichand a resident of village Akodia lodged information with Police Station Anwa to the effect that a corpse was seen floating in the village Well. On receipt of the report the Station House Officer of the Police Station recorded the first information report and went to the spot. The corpse was taken out which was ultimately identified to be that of Bajranga Khati who was originally a resident of village Akodia but was living in the village Balapura at a distance of 2 miles from village Akodia for the last 7 to 9 years. 3. The accused Gokalia was arrested on 10.3.69. Accused Harlal and Sukhlal were arrested on 24.3.69. Accused Kishna was arrested on 2.4.69. 4. Kishna is said to have made his confession before the First Class Magistrate on 11.4.69, His confession in short is that on the day of the last Holi, Gokalia a resident of Akodia came to him and asked him to accompany him to village Duni where his brother-in-law was lying ill but instead of taking him there he took him to a jungle where already Sukhlal and Harlal accused were there. The deceased Bajranga Khati was also said to be in jungle.The confession further states that Gokalia inflicted an axe blow on the left side of the Bajranga's head as a result of which the latter fell down and while he was falling down Harlal accused inflicted a sword injury on his neck. Thereafter Gokalia is said to have taken out a vial and filled it with the blood coming from Bajranga's neck.Thereafter Gokalia, Harlal and Sukhlal lifted the body of the deceased ana threw it in the well of Narain Singh. After throwing the body all the four went to the temple and there Gokalia Bheel offered the blood to Matrvji. Thereafter Kishna Sukhlal and Gokalia came to Duni and Harlal came to Akodia. Gokalia is said to have killed Bajranga because he wanted to learn Jantar. After throwing the body all the four went to the temple and there Gokalia Bheel offered the blood to Matrvji. Thereafter Kishna Sukhlal and Gokalia came to Duni and Harlal came to Akodia. Gokalia is said to have killed Bajranga because he wanted to learn Jantar. Though Kishna admits having accompanied them to the well, he says he did not even touch the body of the deceased. He says he was taken deceitly by Gokalia to the jungle. 5. The post mortem on the dead body. of the deceased was performed on 8. 3. 69. and the following injuries were found on his person:- 1. Incised wound 21/2" x 1/2" on the occipital bone on the left side, fracture V long on the occipital bone on the left side, the brain matter escaping. 2. Incised wound 21/2" x 11/2" in front of the neck cutting admosaple. 3. Lacerated wound 11/2" x 1/4" through and through labula of the left ear. 4. Abrasion 3" x 3" on the left back. 5. Abrasion 2" x 1" above the right eye-brow. The accused denied their complicity. 6. Before the case against each of the accused is considered and other relevant evidence is referred it is important to deal with the alleged confession Ex. P/13 made by Kishna. There is no direct evidence of the alleged murder of Bajranga. The prosecution also relies heavily on the said confession of Kishna. It is, therefore, necessary to clear the ground by dealing with said confession and to find out whether the said confession can be relied upon by the prosecution in support of its case. We have already reproduced the substance of the confession. It is manifest that in it Kishna is not accepting any blame for the murder of the deceased. According to him he was taken to the spot by Gokalia by deceit. Also he names Gokalia and Harlal as the persons who gave the blows. Thereafter he names the other three accused who picked up the body and threw it in the well. He is careful enough to say that he did not even touch the body. His whole statement is meant to say that Kishna had nothing to do with the crime but was only an eye witness to crime committed by the other three co-accused. He is careful enough to say that he did not even touch the body. His whole statement is meant to say that Kishna had nothing to do with the crime but was only an eye witness to crime committed by the other three co-accused. So far as the confessional statement of one accused is concerned, it may be taken into consideration against the other co-accused if it fulfils the conditions laid down in section 30 of the Evidence Act. One of the conditions is that the confession must implicate the maker substantially to the same extent as the other accused person against whom it is sought to be taken into consideration. Where on reading the confession as a whole it appears that he was really trying to throw the main blame on the other accused and make out that he was an unwilling spectator of the crime committed by the other accused the utmost that can be stated is that the confession can be used at all against the other accused (vide A. I. R. 1957 S. C. 216). In that view the said confessional statement Ex. P/3 cannot obviously be used against Kishna or other co-accused because the statement is exculpatory rather than inculpatory, there is not even a remote suggestion of his implication in the crime. This is one of the grounds on which the trial court has ruled out the use of the said confessional statement of Kishna against him and the other co-accused and we are in the agreement with this finding. It may also be noticed that Kishna in his statement under section 342 Cr. P. C. has stated that he gave his confession because of the fear of police and not voluntarily. Though the statement may not be capable of being accepted fully nevertheless the fact remains that the confession has been retracted by Kishna. In such a case the rule of prudence and practice requires that it should be corroborated by independent evidence; but as we are inclined to hold that the said confessional statement is inadmissible as it does not comply with the conditions under section 30 of the Evidence Act the same could not be relied upon by the prosecution. 7. The next reason for placing any reliance on Ex. P/13 by the trial court is that according to the memo Ex. 7. The next reason for placing any reliance on Ex. P/13 by the trial court is that according to the memo Ex. P/30 dated 3.4.69 the information was given to Rameshwar Singh, Sub Inspector by Kishna that he could get recovered the axe and the sword kept by accused and also lead them to the place' where Gokalia and Harlal washed the blood stained axe and sword. The criticism by the trial court is that as Kishna had agreed to show the place where the blood stained weapons were washed On 3. 4. 69 it is not understood why he was not produced for making confession before the Magistrate earlier to March 31, 1969. Though no doubt it is true that Kishna had stated that he was prepared to show the place where the blood stained weapons were washed it is not clear whether he did indicate any desire to confess to the full story and this criticism of the learned trial court may not be very justified. 8. Another reason doubting the veracity of the said confession by the trial court is on the statement of Kishna that he was arrested two days subsequent to the Holi and also to the evidence of P W.8 Shiv Charan, the Sub Divisional Magistrate that he was convinced that the accused was in police custody two days after the Holi (Holi fell on 3.3.69). But the police has shown the arrest on 2.4.69, the production before Magistrate was on 9.4.69. The trial court on this took the view that the late production of the accused also casts doubt on the confession of the accused. The trial court has made some criticism as to the manner of recording confession by the Magistrate. Kishna was produced before the Magistrate on 9.4.69 and then sent back to judicial custody and when he appeared before him on 11th the Magistrate recorded the confession and that too after allowing over an hour to pass before recording the confession. From these circumstances we do not feel that it could reasonably be said that compliance by the Magistrate with necessary procedure had not been done in the matter of recording of confession. But that of course makes no difference because as we have already held that the so-called confession Ex. From these circumstances we do not feel that it could reasonably be said that compliance by the Magistrate with necessary procedure had not been done in the matter of recording of confession. But that of course makes no difference because as we have already held that the so-called confession Ex. P/13 is not a confession under law and cannot be relied upon because it does not comply with the conditions under section 30 of the Evidence Act, and therefore it could not be used against any of the accused and the prosecution will not be able to take any advantage from it. 9. The trial court found that the nature of injuries leave no manner of doubt that Bajranga died an unnatural death. The question still was as to who had perpetrated the crime. He has discussed the evidence with regard to each accused and we think that we should follow the same method. 10. Against Kishna the blood stained earth is said to have been recovered at the instance of Kishna in pursuance of his statement Ex. P/13. This blood stained earth was found to contain human blood. But the pointing out of the place from where blood stained earth found does not in any manner implicate himself. There is no other evidence of his implication and therefore find no reason to interfere with the order of bis acquittal.Re : Sukhlal 11. Apart from the confessional statement of Kishna in which Sukhlal is said to be present in the jungle no part is attributed to him. There is no other evidence either of recovery or any other incident implicating Sukhlal and we find no compelling reason to take a different view of the evidence from that taken by the trial court. The only evidence sought to connect him with the crime is Ex. P/13 the confession made by Kishna and as that is held to be inadmissible there was no evidence against him.Re: Harlal. 12. One of the pieces of evidence said to be implicating the accused Harlal is the recovery of sword in pursuance of information given by him to the police. Now the accused's statement Ex. P/28 was that he had left the sword at the house of Lala Daroga of Akodia. The sword however was recovered from the house of Kalu Daroga of Dandola. Now the accused's statement Ex. P/28 was that he had left the sword at the house of Lala Daroga of Akodia. The sword however was recovered from the house of Kalu Daroga of Dandola. Obviously the recovery cannot be said to be at the instance of the accused and must be ruled out. There was no evidence how the sword which was said to have been left by accused Harlal at Lala Daroga found its way in the house of Kalo Daroga. The trial court has also disbelieved the recovery and accepted the evidence of Shiv Narain that this very sword was produced before the police when it went to the village by Nanda Daroga and evidently the recovery cannot be said to be in pursuance of the statement of accused Harlal. The trial court has also commented on the fact that the Investigating Officer had admitted that Harlal was called every 2 or 3 days from 8.3.69 and that also injuries were found on his person immediately after he was released by the police on 19. 3.69. We thus find that the case against Harlal has not been proved. We find no compelling reason to take a different view from that taken by the trial court with regard to acquittal of Harlal accused.Re : Gokalia, 13. The first circumstance said to be implicating Gokalia is the evidence of P. W. 5 Lala who is said to have been the deceased going with Gokalia in the afternoon on the day of Holi. But the statement of P. W. 5 Lala has been disbelieved by the trial court because he had simply said that Gokalia was seen sitting by the side of Bajranga on Holi. Thus this witness does not prove that he was the deceased going with Gokalia on the said day. But this evidence even if believed would only show the deceased going with Gokalia and cannot advance the matter any further. The circumstantial evidence is said to be the recovery of gold Murkis Ex. 8 and Ex. 9 which the deceased was said to be wearing. These recoveries are said to have been made at the instance of accused Gokalia from the house of Hemchand. Ex. P/16 the recovery memo shows that Gokalia took the police to the shop of Bhuralal, father of Hemchand and on his asking Hemchand gave the mark is to the police. 9 which the deceased was said to be wearing. These recoveries are said to have been made at the instance of accused Gokalia from the house of Hemchand. Ex. P/16 the recovery memo shows that Gokalia took the police to the shop of Bhuralal, father of Hemchand and on his asking Hemchand gave the mark is to the police. P W. 12 Hemchand however in his cross-examination stated that the police took him from his shop to the shop of Dharmachand where the recovery memo was prepared and it was only at that place that he handed over the ear rings to the police. Thus there is a contradiction between the recovery shown at the shop of Hemchand as per recovery memo Ex. P/15 and the statement of P. W. 12 Hemchand. The greater criticism against any reliance to be placed on recovery is that it has not been shown that these murkis belonged or wert worn by the deceased. The only evidence which sought to be relied to connect these Murkis with the decased was that of P. W. 3. Ramchandcr who deposed that he had seen the murkis of similar type being worn by the deceased. The Murkis are of very ordinary kind and they are said to have been sold for Rs. 2/-. The brother of the deceased Kela has not been produced even though he was examined under section 161 Cr. P. C. and had been produced before the Magistrate to identify the Murkis. The best evidence which could prove that the murkis recovered were in fact worn or belonged to the deceased was through the evidence of the brother of the deceased or belonged to him. So this circumstance cannot be used against the accused Gokalia. 14. The next circumstance is said to be the recovery of blood stained axe Ex. P/11 at the instance of accused Gokalia. It has however not been proved that the axe had any blood stains. The axe Ex. 7 is said to have been recovered from the house of Kalayana, the brother of the deceased Bajranga. Ex. P/11 is the statement made by accused Gokalia that he would have the axe recovered from the house, he is said to have accompanied and asked Pari the wife of Kalyana to produce the axe. The axe Ex. 7 is said to have been recovered from the house of Kalayana, the brother of the deceased Bajranga. Ex. P/11 is the statement made by accused Gokalia that he would have the axe recovered from the house, he is said to have accompanied and asked Pari the wife of Kalyana to produce the axe. Neither, Kalyana nor his wife have been produced by the Prosecution and the recovery from them said to be at the instance of accused Gokalia is therefore doubtful. Even otherwise it does seem strange that the accused should have thought of leaving the axe with the evidence of P. W. 6 Smt. Sunder as to have been able to find out the said axe which was given to the accused. Though in the identification memo Ex. P/17 it is mentioned that P. W. 6 Sunder had identified the axe, in her statement she has stated that Gokalia came to her house empty handed on the day of Holi. She even refused to identify Kishna who was said to have accompanied Gokalia. She denied to have made a statement before the police that Gokalia had axe in his hand and came to her house and stated that she had made the statement at the instance and under fear of the police. Another reason for disbelieving the recovery is that P. W. 2 Shivnarain admitted in his cross examination that this axe was brought from the house of Kalyana on 14.3.69 when the police came to the village Akodia for the purpose of investigation. 15. The next piece of evidence is said to be blood stained earth near the Sanwaia Jat's well. Accused Gokalia is said to have led the police to the village from where blood stained earth was recovered vide memo Ex. P/10 dated 24.3.69. P. W. 2 Shivnarain had stated that the police took him to the village well and prepared the Panchayat Nama of the dead body three weeks earlier. No blood stained earth was found there at that time. Though the trial court did not rule out the possibility of the blood stained earth being found on being carefully looked by the notice this circumstance by itself could not connect the accused Gokalia with the crime. 16. No blood stained earth was found there at that time. Though the trial court did not rule out the possibility of the blood stained earth being found on being carefully looked by the notice this circumstance by itself could not connect the accused Gokalia with the crime. 16. It will thus be seen that On an assessment and consideration of the evidence on record the trial court has chosed not to believe the prosecution witnesses and has disbelieved the recoveries. The case obviously is a case of circumstantial evidence and unless each chain inexorably leads to the conclusion that the accused have committed the crime it is obviously unsafe to convict the accused. In case of conviction or. the basis of circumstantial evidence it must be conclusively established that it is totally incomplete with the innocent of the accused. There are two many lacunae in the evidence to come to such a conclusion in the present case. 17. We are hearing an acquittal appeal and therefore we must bear in mind the though the High Court has full power to review the evidence upon which an order of acquittal is founded it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by the trial court and the views of the trial judge as to the credibility of the witnesses must be given proper weight and consideration and the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses must also be kept in mind and there must be substantial and compelling reasons for the the appellate court to come to a conclusion different from that of the trial judge. As we have already held that the main base of the prosecution namely the said confession of Kishna is not admissible we find no compelling reasons to take a court different view from that taken by the trial court. 18. The result is that the appeal fails and is dismissed. *******