Judgment N. M. KASLIWAL, J. ( 1 ) THIS appeal is directed against the judgment passed by the Additional Sessions Judge, Hanumangarh (Camp at Dungarpur) dated March 20, 1976 by which the appellant Smt Sukhi was convicted for the offence under section 302/34. Indian Penal Code and sentenced to imprisonment for life and a fine of Rs. 250/- in default of payment of fine to undergo six months rigorous imprisonment. ( 2 ) BRIEFLY stated the facts of the case giving rise to, this appeal are as under:-On May 17, 1975 deceased Pemji along with his wife appellant Smt. Sukhi and children had gone to village Kathdi Kheda to attend the marriage of one Huraj. After attending the marriage on May 18, 1975 the deceased Pemji along with (?) went to village Punjpur and returned on the morning of May 21, 1975. The deceased and the appellant slept in the night at the appellantts fatherts house at village Kathdi-Kheda. In the night Ramji co-accused (since acquitted) went there and took Pemji with him to his house. Appellant Sukhi also accompanied tern at the house of Ramji, Poona and Teju, other accused (acquitted by the trial Judge) were also present. Ramji and Teju gave a beating to Pemji and hanged him in the Kotha of a house with the iron rail beneath the roof. He was then taken away in the jungle and hanged with a rope ort Mahuwa tree. On May 22,1975 Amarji (P. W. 4) had gone to graze his cattle in that jungle. He saw the dead body of Pemji hanging on the tree. Kachra (P. W. 5) also saw the body hanging on the tree. They went to village Devla to-inform the parents and brothers of the deceased. The members of the family of the deceased went to the site to ascertain the fact. Punja (P. W. 15) brother of the deceased lodged a report at police station. Ganeshpur on May 23, 1975 at 2-30 p. m. Case under section 302 Indian Penal Code was registered by Daulat Ram. Head Constable In-charge of the Police Station at the direction of the Station House Officer, Mangilal who was at Bankoda in connection with the investigation of a criminal case, Shanker (P. W. 14) was directed to conduct the investigation. He proceeded to the site and prepared the inquest memo (Ex. P. 3) and the site, plan (Ex. Head Constable In-charge of the Police Station at the direction of the Station House Officer, Mangilal who was at Bankoda in connection with the investigation of a criminal case, Shanker (P. W. 14) was directed to conduct the investigation. He proceeded to the site and prepared the inquest memo (Ex. P. 3) and the site, plan (Ex. P. 5 ). The dead body of Pemji was sent for postmortem examination to PHC Dandi. Dr. Jaikrishna Road, In-charge of the PHC, Dandi conducted the autopsy over the dead body on May 24, 1975 and prepared the post mortem examination report. The Doctor noted rigormortis in the small joint of both extremities, upper and lower. He also found multiple blisters on the body surface leading to the pealing off the skin. The tongue was protruded in between the teeth. The eyeballs were coming out of the socket. Magots were present in both the cars. The body was giving foul smell with no injury marks on the surface of the body. The Doctor noted two ligature marks around the neck. The abrasions were present in between the two marks. In the opinion of the Doctor death was due to as phyxia caused by hanging. Hanging was post mortem. The duration of death was between 36 to 48 hours before the postmortem examination. Appellant Smt. Sukhi gave confessional statement. (Ex. P. 7) before Shri B. L. Goya Munsif and Judicial Magistrate, Dungarpur on June 17, 1975. ( 3 ) AFTER completion of necessary investigation, charge-sheet, under section 302 and 201 Indian Penal Code was filed against the appellant and the three co-accused viz. Ramji, Teju and Punja, The learned Magistrate finding a prima facie case exclusively triable by the Court of Sessions committed the appellant and the co-accused to the Court of Additional Sessions Judge, Dungarpur to stand their trial. The learned Additional Sessions Judge charge-sheeted all the accused for the offence under section 302 Indian Penal Code and proceeded with the trial. Prosecution examined eighteen witnesses in all to substantiate its case. All the accused denied the allegations leveled against them in their statements. The learned Judge did not hold the prosecution case established against Ramji Punja and Teju and acquitted them of the charges. Prosecution examined eighteen witnesses in all to substantiate its case. All the accused denied the allegations leveled against them in their statements. The learned Judge did not hold the prosecution case established against Ramji Punja and Teju and acquitted them of the charges. The learned Judge however held the appellant Smt. Sukhi guilty for the offence under section 362/34 Indian Penal Code on the basis of confessional statement Ex P. 7 and passed the judgment under appeal. ( 4 ) THE appellant has filed the appeal from Jail. As she was unrepresentative, Mr. B. Advani was appointed as Amicus Curia to plead on her behalf. ( 5 ) WE heard Mr. B. Advani, learned Amicus Curiae and Mr. M. D. Purohit learned Public Prosecutor and gave our anxious consideration to the material on record. ( 6 ) AT the very outset it may be observed that the prosecution case against the appellant solely rests on her confessional statement Ex. P. 7 Mr. Advani has assailed the finding of the learned trial judge on the ground that when the confessional statement has been disbelieved so far as the three co-accused are concerned, there cannot be any justification to press the same into service to convict the appellant. It has also been argued that the statement taken as a whole does not show its voluntary nature and therefore, should not have been considered to be a piece of evidence against the appellant. ( 7 ) THE confessional statement Ex. P. 7 has been recorded on May 17, 1975 by Shri B. I. Goyal (P. W. 12), Munsif and Judicial Magistrate, Dungarpur the appellant has retracted the confessional statement in her statement under section 33 of the Code of Criminal Procedure at the trial. In order to base a conviction on the retracted confessional statement of the accused, Court has to be vigilant to find out certain factors. Firstly, whether the statement is inculpatory secondly, whether it is voluntary and thirdly, whether it is corroborated on material particulars by other evidence oral or documentary. ( 8 ) EX. P. 7 clearly shows that it is an exculpatory statement. The appellant instead of showing her complicity in the commission of the crime, has stated about her efforts to save her husband and her being threatened by the assailants. ( 8 ) EX. P. 7 clearly shows that it is an exculpatory statement. The appellant instead of showing her complicity in the commission of the crime, has stated about her efforts to save her husband and her being threatened by the assailants. ( 9 ) REGARDING the voluntary nature of alleged confessions the statement of the Magistrate recording the statement carries importance. The Magistrate recording the statement is expected to append a note at the bottom of the statement to the effect that the statement was made voluntary by the witness and he had ascertained about its being voluntary. The learned Magistrate recording the statement has stated that the certificate was appended at the bottom of the statement and he had not made a separate note to that effect to show that the statement was voluntary. The appellant has stated about her being given a beating. The Magistrate recording the statement has supported this contention and stated that the accused had deposed that the police had beaten her with danda asking her to tell the truth, and that she was also given a beating in the Kheda. The Magistrate has also stated that the appellant had told him that she was kept at the police station for fifteen days. The Magistrate was unable to show as for how many days she was kept in the judicial lockup prior to her giving the statement, P. W. 17 Mangilal, Station House Officer has stated that Smt. Sukhi was arrested by the Deputy Superintendent of Police on June 10, 1975 and was sent to judicial lock-up on June, 11, 1975. At the same time the station house officer has admitted that she was being called at police station for investigation though he could dot tell the dates when she was so called. He has also admitted that he had filed an application before the District Magistrate for making Smt. Sukhi a witness in the case. ( 10 ) THE incident had taken place on May 23, 1975. There is no explanation as to why the appellant was not arrested till June 10, 1975 despite her being called at the police station a number of times during the course of investigation and as her own statements shows, she was kept at police station for fifteen days. Hence there is force in the arguments advanced by Mr. There is no explanation as to why the appellant was not arrested till June 10, 1975 despite her being called at the police station a number of times during the course of investigation and as her own statements shows, she was kept at police station for fifteen days. Hence there is force in the arguments advanced by Mr. Advani that all this time was utilized by the police to persuade the appellant to state as directed by the police and therefore the statement cannot be said to be voluntary. The circumstances of the case, therefore, raise suspicion about voluntary nature of the confessional cannot be made the basis of the conviction. It is also pertinent to note that there is no corroborative piece of evidence on any fact appearing in the statement. Prosecution has tried to seek corroboration from the statement of Vala (P. W. 7) grand father of the appellant to the effect that on the fateful night the appellant and her husband and stayed at this house and were not available in the morning. The witness does not state as to at what time and at whose instance the appellant and her husband left the house. There is the version in Ex. P. 7 that the appellant was asked by co-accused to run away to Ahmedabad but as she had no money she remained at her house. Prosecution had sought corroboration to this version in the statement of Game Chand (P. W. 6) who had deposed that appellant had gone to his shop and purchased sugar for one rupee and chilly for two rupees. That she told him that he may give him money for railway fare but he refused to give. That, on the day next to the came to know about murder of the son-in-law of Vala. The witness could not tell the date when the appellant went to his shop. Even if the statement of this witness is taken to be true, still it cannot be said to be an incriminating circumstance against the appellant. ( 11 ) FROM the above discussions it is evident that Ex. P. 7 does not fulfil the requirements of a voluntary statement which may be made the basis of conviction. ( 12 ) IN this view of the matter conviction based on the retracted exculpatory statement of the appellant cannot be sustained. ( 11 ) FROM the above discussions it is evident that Ex. P. 7 does not fulfil the requirements of a voluntary statement which may be made the basis of conviction. ( 12 ) IN this view of the matter conviction based on the retracted exculpatory statement of the appellant cannot be sustained. ( 13 ) CONSEQUENTLY, the appeal is allowed and the judgment of conviction and sentence dated March 20,1976 of the Additional Sessions Judge, Hanumangarh (camp at Dungarpur) is set aside. The appellant is acquitted of the offence under section 302/34 Indian Penal Code. She will be released forthwith if not required in any other case. Appeal allowed. .