JUDGMENT 1. This appeal is preferred against the judgement of learned Sessions Judge, Udaipur, dated 22-7-1977 by which the appellant Moti son of Goda Bheelwas convicted and sentenced under section 302, 326 and 210 I.P.C. as under:- 1. Under Section 302 I. P. C. - Life imprisonment. 2. Under Section 326 I. P.C. - 7 years rigorous imprisonment and a fine of Rs. 300 in default of payment of which to undergo further R. I. for three months. 3. Under section 201 I. P. C. - 7 years R. J. and a fine of Rs 300/-, in default of payment of which to undergo further R. I. for three months. 2. The prosecution case was as follows Pratabi was the wife of the appellant Moti and she did not like to live with the appellant and wanted to go elswhere. On 12-10-75 because of some quarrel, appellant with his teeth cut the nose of Pratabi. She, therefore, went to the house of her sister Khumani. Pratabi then left the house of her sister and proceeded on to the house of her father situated in village Pasonian. Appellant saw Pratabi going to village Pasonian in the way and caught hold of her. He brought her to his house. Appellant Moti had a child of about 9 months. He asked Pratabi to feed the child but the latter declined and threw away the child. She also refused to cook the food and, thereafter, threw a stone which hit the appellant on his teeth. Moti then gave a kick with leg on the back of Pratabi. She fell down. Appellant then sat on the chest of Pratabi and strangulated her with a piece of 'Odhni' (cloth used for covering the head). One Lakma helped him in strangulating Pratabi, who died as a result of strangulation. Her dead body was burried in a pit in the house. The appellant then with the piece of the nose which he had cut went to Nathdwara and consulted Kanhaiya Lal , advocate. The appellant narrated the entire story to Kanhaiya-Lal, appellant then paid fees to Kanhaiyalal who accompanied the appellant to his house and saw the site. Kanhaiyalal advised the appellant to drop the dead body of Pratabi in a well. The appellant narrated the entire story to Kanhaiya-Lal, appellant then paid fees to Kanhaiyalal who accompanied the appellant to his house and saw the site. Kanhaiyalal advised the appellant to drop the dead body of Pratabi in a well. The appellant, thereafter, with the help of Lakma took the dead body of Pratabi to a well known as 'Rabari ka kua' and dropped it therein, Kalu and Raju the two brothers of Pratabi came to the appellant and enquired about their sister. The appellant replied that he did not know about the whereabouts of Pratabi. On 14.10.1976 the dead body of Pratabi was discovered in the well by P. W. 1, Govindlal. After seeing the dead body, Govindlal rushed to police station Nathdwara and lodged a written report Ex. P. 1 Head Constable Kalu Lal on the next day recovered the dead body of Pratabi and got it examined by the Medical Officer, Gordhan Hospital, Nath-dwara. The Head Constable also prepared inquest memo of the dead body, inspected the site and prepared site inspection memo and map Ex. P. 3. The appellant was arrested on 15.10.75. He was then wearing a shirt, a 'dhoti' and a 'safa'. As it was suspected that these clothes were stained with blood, they were seized and sealed by the police. While in police custody appellant Moti gave information under section 27 of the Indian Evidence Act that he had concealed a piece of 'Odhni' amongst some clothes in his room. As a consequence of this information this piece of 'Odhni' was seized at the instance of the appellant and sealed. The seized articles were sent to the Chemical Examiner who in turn send them to Serologist. From the report of the Chemical Examiner it appears that this piece of 'odhni' was not stained with blood but he found blood on shirt and 'Pachewda' which were recovered from the person of the appellant. During the course of investigation the appellant desire to confess and, therefore, on 29-10-1975 he was produced before P. W. 17 Pradeep Shah, Additional Munsif Magistrate, Rajsamand, who recorded his confessional statement Ex. P. 25. After completing the investigation, the police preferred two charge sheets in the court of Munsif Magistrate, Nathdwara. One charge sheet was filed against Kanhaiya Lal and Durga Shankar. P. 25. After completing the investigation, the police preferred two charge sheets in the court of Munsif Magistrate, Nathdwara. One charge sheet was filed against Kanhaiya Lal and Durga Shankar. As it appeared to the Munsif Magistrate, Nathdwara that the offence was triable exclusively by the court of session, he committed the case to the court of session, Udaipur. The learned Sessions Judge discharge accused Durga Shankar and framed charges under section 201/100 and 120-B against Kanhaiya Lal .Charges under section 302, 326, 201 and 120-B were framed against Moti, Goda and Lakma. Accused denied the offence and claimed trial. The learned Sessions Judge held the trial and acquitted Goda, Lakma, and Kanhaiyalal of the offences with which they were charged and convicted and sentenced the appellant Moti in the manner stated above. Aggrieved by this judgement of conviction the appellant has preferred this appeal. 3. We have heard the learned counsel for the appellant and the learned Public Prosecutor and carefully perused the record of the case. At the outset it may be stated that there was no eye witness of the incident and the learned Sessions Judge in convicting the appellant relied upon the following circumstances : (1) Inimical relations between Pratabi and appellant Moti, (2) Shortly before the death of Pratabi she was beaten by the appellant and her nose was cut off by him with his teeth, (3) Pratabi was last seen in the company of appellant. (4) The appellant dug a pit in his house, (Recovery of a human blood stained piece of 'odhni' on the information and at the instance of the appellant. (6) Recovery of human blood stained shirt and 'Pachewda' which the appellant was wearing at the time of his arrest and (6) Confession made by the appellant before the Additional Munsif Magistrate, Rajsamand. 4. It is contended by the learned counsel for the appellant that the confession alleged to have been made by the appellant was inadmissible into evidence as the formalities as required by section 164 and 281 of the Code of Criminal Procedure were not complied with. 4. It is contended by the learned counsel for the appellant that the confession alleged to have been made by the appellant was inadmissible into evidence as the formalities as required by section 164 and 281 of the Code of Criminal Procedure were not complied with. Sections 164(2) and 281(2) of the Cr.P.C. read as follows "164(2) - The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him, and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. 281(2) - Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the presiding Judge or Magistrate himself or where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in this behalf''. In our opinion this argument is not without substance. 5. It is apparent from the perusal of Ex. P. 25 that the Magistrate recorded therein that he believed that Moti was making the confession voluntarily. However, the Magistrate omitted to record the questions put to the appellant and his answers thereto on the basis of which he came to a conclusion that the appellant was making the confession voluntarily. It is also doubtful whether the Magistrate had put any questions to the appellant to arrive at the conclusion that he was making the confession voluntarily, under section 164(2) of the Cr. P. C. It, is enjoined upon the Magistrate that he shall not record any such confession, unless, upon questioning the person making it he has reason to believe that it is being made voluntarily. Under section 281(2) it is further obligatory on the Magistrate that the whole of such examination of the accused including every question put to him and every answer given by him shall be recorded in full. Under section 281(2) it is further obligatory on the Magistrate that the whole of such examination of the accused including every question put to him and every answer given by him shall be recorded in full. Thus in the absence of the questions put to the appellant and the answers given by him it is not possible to judge whether the confession was made voluntarily. It is, therefore, inadmissible in evidence. Moreover, the Magistrate did not state that he told the appellant that he would not be remanded to the police lock up, even if he did not confess his guilt. We are fortified in our opinion by the following authorities: 1. Nazir Ahmad v. King Emperor (AIR 1936 P. C. page 253): "Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation. The rule which applies is that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. No doubt the Magistrate acting under S. 164 and 364 is not acting as a Court, yet he is a judicial officer, and both as a matter of construction and of good sense, the rule above applies to S. 164 Sections 164 and 364 must be looked at and construed together, and it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves." 2. Punia Mallah and others v. Emperor (AIR 1946 Patna P. 169) "The provision of S. 164(3) requiring the Magistrate to put questions to the accused in order to ascertain whether his confession was being made voluntarily is of a substantial character and not merely a matter of form. Non-compliance with it renders the confession bad in law and inadmissible. The defect cannot be cured under S. 533." 3. Gurubaru Praja and another v. The King (AIR 1949 Orissa page 67). Non-compliance with it renders the confession bad in law and inadmissible. The defect cannot be cured under S. 533." 3. Gurubaru Praja and another v. The King (AIR 1949 Orissa page 67). "Lastly, he should also consider it expedient that satisfaction of his conscience as to the voluntary character of the statement is not the only act to be achieved by him but he should leave such materials on record in proof of compliance with the imperative requirements of the section as would satisfy the Court that sits on judgment in the case that the confessional statement was made voluntarily. In short, the provision of the statute must be complied with both in letter and spirit." 6. The other circumstances on which reliance has been placed by the learned Sessions Judge in convicting the appellant are not inconsistent with the innocence of the appellant and are capable of being explained away on other hypothesis than that of his guilt. The prosecution tried to prove that a few days before the dead body of Pratabi was recovered from the well she was beaten by the appellant and her nose was cut by him with his teeth. The above circumstance has not been established on the record by any direct evidence. No witness has been examined by the prosecution to show that the nose of Pratabi was cut by the appellant with his teeth. Takhtiya P. W. 4 did not say a single word about the injury caused to the nose of Mst. Pratabi by the appellant. He merely stated that when he was coming from his field he saw in the way that the appellant was quarrelling with his wife. He further claimed to have seen the appellant giving a kick on the back of his wife and taking her to his house about three days before her dead body was recovered from the well. The evidence of Takhtiya is not believable because in his cross examination he admitted that darkness had set in and he saw the appellant beating his wife from a distance of 15 feet. If the beating was given in a dark night this witness could not have seen the appellant beating his wife. The evidence of Takhtiya is not believable because in his cross examination he admitted that darkness had set in and he saw the appellant beating his wife from a distance of 15 feet. If the beating was given in a dark night this witness could not have seen the appellant beating his wife. Another witness is Moti son of Bhajia P. W. 5 who merely stated that when he returned to his house he was informed by his wife that the appellant had cut the nose of his wife. His evidence is, therefore, hearsay, so far as nose cutting is concerned. The evidence of Khumani P. W. 6 also is hearsay because she claimed to have been informed by Pratabi deceased that her nose was cut by her husband with his teeth. Kali P. W. 7 also admitted in his deposition that he was informed by his daughter Heerki that Pratabi's nose was cut by the appellant. Likewise, Heerki's evidence carries no weight because she merely claimed to have seen that Pratabi's nose was cut and blood was flowing from the wound. Likewise, Rama P.W. 10 claimed to have received information from his wife that Pratabi's nose had been cut by her husband. On the basis of the hearsay evidence it cannot be safely held that the appellant was responsible for cutting the nose of his wife a few days before her dead body was recovered from the well. 7. Another circumstance brought on the record by the prosecution to connect the appellant with the crime of murder is that a pit was dug by him in his house. This circumstance does not prove anything because there is no evidence that the dead body of Pratabi was buried in this pit or the pit was dug by the appellant for the purpose of concealing the dead body of his wife after committing her murder. 8. Another piece of evidence relied upon by the prosecution against the appellant is recovery of a piece of 'loogda' (odhni) from the house of the appellant at his instance and in consequence of his information which he furnished to P.W. 15 Kailash Puri S. H. O. while in the police custody. This recovery is no doubt proved by the evidence Kailash Puri but it does not help in any way in connecting the appellant with the crime. This recovery is no doubt proved by the evidence Kailash Puri but it does not help in any way in connecting the appellant with the crime. This piece of 'loogda' alter its recovery was sealed and, later on, sent to the Chemical Examiner for analysis. The Chemical Examiner in his report clearly stated that this article marked B was negative for blood. It appears that the learned Sessions Judge committed a mistake in holding that the place of 'loogda' recovered from the house of the accused was stained with human blood. It is apparent from the reports of the Chemical Examiner and the Serologist that one 'odhni', one blouse and one 'ghaghara' which were found on the dead body of the deceased at the time when the dead body was taken oat of the well were found positive for human blood. Hence the recovery of the piece of 'odhni' from the house of the appellant is of no value. 9. The learned Sessions Judge has also relied upon the fact that the dhoti 'Pachewda' and shirt recovered from the person of the appellant were stained with human blood. It may be stated that the dhoti was not found stained with human blood by the Serologist and only 'Pachewda' and shirt were found stained with human blood. However, the police officer who arrested the appellant and recovered these clothes from his body was not examined by the prosecution and, therefore, in absence of his evidence it cannot be said that these clothes were duly sealed-after the recovery. The recovery is sought to be proved by the statement of PW 13 Udailal, a motbir of this recovery. However, he also failed to state that the dhoti 'Pachewda' and shirt were duly sealed by the police in his presence. In the absence of the evidence of proper sealing of these clothes it cannot be said that it the time of their recovery they were stained with human blood. 10. The other incriminating circumstances relied upon by the learned Judge is that Pratabi was last seen in the company of the appellant. In our opinion this circumstance also is not proved. P.W. 4. Takhtiya stated that at about sun set he saw Pratabi with Lakma, Goda and Moti. P. W. 6 Khumani stated that she saw Moti taking away Pratabi in the evening. In our opinion this circumstance also is not proved. P.W. 4. Takhtiya stated that at about sun set he saw Pratabi with Lakma, Goda and Moti. P. W. 6 Khumani stated that she saw Moti taking away Pratabi in the evening. P. W. 7 Kali stated that she saw Pratabi going towards her house. She was followed by the appellant, Heerki also saw Pratabi remaining from the house of her sister followed by Moti and Lakma. This evidence would at best show that a few days before the dead body of Pratabi was recovered from the well she was seen going to her house followed by Moti and Lakma. However, there is no evidence to show that soon after this Pratabi was murdered. Therefore this circumstances is not sufficient to connect the appellant with this murder. 11. Hence upon careful review of the entire evidence we are clearly of the circumstantial evidence brought on the record by the prosecution is not capable of proving beyond reasonable doubt that no other person but the appellant was the perpetrator of the crime of murder. The circumstances may lead to some suspicion but it is a settled law that suspicion, however strong it may be cannot play the role of proof in criminal cases. The prosecution ought to have led cogent and convincing evidence to prove that in all human probability the murder of Pratabi was committed by the appellant, and, as the prosecution has failed to adduce such proof, we do not feel persuade to hold the appellant guilty of the offence under section 302, 326 end 201 I. P. C. It will not be out of place to mention that there is not an iota of evidence on the record that it was the appellant who threw the dead body into the well with a view to destroy the evidence of murder and to screen himself free from the clutches of Law.The result is that the appeal filed by Moti is accepted. His convictions and sentences under sections 302, 326 and 201 I. P. C. are set aside and he is acquitted of the said charges. The appellant is in jail. He shall be set at liberty forthwith, if not required in any other case.Appeal accepted - Accused acquitted. *******