JUDGMENT : S.L. Talati, J. This appeal is directed against the judgment of the Sessions Judge, Amreli dated 28-11-1980 in Sessions Case No. 44 of 1980 by which the appellant came to be convicted for an offence of committing murder of Bai Lila and also for an offence of committing murder of Jitu Ranchhod and as a result the appellant came to be convicted under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/- in default to suffer R.I. for six months for the murder of Bai Lila and also came to be convicted under Section 302 of the Indian Penal Code for committing murder of Jitu Ranchhod and for that he came to be sentenced to suffer imprisonment for life and to pay a fine of Rs. 1,000/- in default to suffer R.I. for six months. The substantive sentences were ordered to run concurrently. 2. The facts which emerge are that the incident occurred between the night of 28th and 29th May, 1980 in village Gavadka in Amreli District. The incident occurred at about 3.00 a.m. It appears that in a hut the present appellant was residing with his son Ranchhod, his son’s wife Lila and his grand son Jitu. Jitu at the relevant time was hardly aged one year old. At about 3.00 a.m. the persons in the neighbourhood saw that the hut was burning. The neighbours and other persons of the village including Parshottam Valji of the village and one Parshottam Vasta went to the place of the incident. They found that the doors were chained from inside and, therefore, they broke open one of the doors and entered the hut. They found that Lila and her son Jitu were burnt. There were quilts near the place where they were sleeping and at that place one iron kerosene lamp in an extinguished position was lying which according to the Sarpanch he placed it on one earthen Jhar. The inquiry was made in regard to the appellant and it was found that he at that particular point of time was in his Vadi. His son Ranchhod with his mother had gone to another village and they returned in the morning. The inquiry was made in regard to the appellant and it was found that he at that particular point of time was in his Vadi. His son Ranchhod with his mother had gone to another village and they returned in the morning. Under these circumstances the Sarpanch Parshotta Valji went to Police Station, Amreli and he submitted a report that there was an accidental fire at village which had resulted in the death of Lila and her son Jitu. Head Constable Megjibhai went to the village and started the inquiry. 3. It appears that thereafter the prosecution case is that Sarpanch heard several rumours in the village and the rumours were heard from many persons including one Laxman who is not examined in the case. On 30th May 1980 the Sarpanch met one Arjan and he also met Parshottam Vasta and he made certain inquiries from them. The prosecution case is that as a result of the inquiries the suspicion which had arisen out of the rumours got confirmed and as a result the Sarpanch collected several persons and at mid-night on 30th May, 1980 he went to the hut of the accused. Several persons including one Parshottam Pranshankar had accompanied him. The prosecution case is that Sarpanch questioned the accused and the accused wanted to say something in private taking the Sarpanch into Vadi but the Sarpanch insisted that in presence of every one there was nothing wrong if he disclosed the correct facts as they were all persons who could be trusted. Thereafter the prosecution case is that the accused made a confession and he stated that he put fire by sprinkling crude oil and after doing so he has escaped through the roof. Before setting fire according to the confession he had put quilts on Lila and Jitu. Thereafter police again went to the village on 31st May, 1930 and on that day the statement of Sarpanch was recorded and the statement of Parshottam Pranshanker was also recorded. The accused was arrested. On the next day the statement of Arjan was recorded. The other evidence on record is the inquest panchnama and the panchnama of the place of the scene of offence; 4. The accused was arrested. On the next day the statement of Arjan was recorded. The other evidence on record is the inquest panchnama and the panchnama of the place of the scene of offence; 4. The prosecution mainly relied upon the evidence of P.W, 2 Parshottam Valji, the Sarpanch who was examined at the trial at Exhibit 15 and prosecution witness No. 3, Parshottam Pran-shanker who was examined at Exhibit 17. 5. The learned Sessions Judge on appreciation of the above evidence considered the circumstances appearing in the case and came to the conclusion that though the accused was charged for the offences punishable under Sections 302 and 201 of the Indian Penal Code, the offence under Section 201 of the Indian Penal Code was not established but the offence under Section 302 was established and, therefore, convicted the accused as above. 6. The accused has preferred this appeal challenging the said conviction and sentence. 7. We have heard the learned advocate Shri Trivedi for the appellant who took us through the evidence of P.W. 2, Parshottam Valji, Exhibit 15 and P.W. 3, Parshottam Pranshanker, Exhibit 17. 8. Parshottam Valji, P.W. 2, Exhibit 15, after narrating as to what happened on the night of 28th and 29th May, 1980 at 3.00 a.m. stated that on 30th May, 1980 he had met Parshottam Vasta and Arjan Vallabh and on questioning he learnt from Parshottam Vasta that when he went to call the accused on the relevant night at his Vadi the accused burnt his clothes saying that he would come after burning his clothes. Thereafter he talked about the confession which according to him was made before him at midnight on that day. To begin with he stated that he would tell every thing in the Vadi. Thereafter he was persuaded and he admitted that he had killed Lila by inflicting a blow on the head by a rahpi and thereafter -according to him the quilts were thrown over Lila and the boy and from a tin of crude oil, the crude oil was sprinkled and fire was set. He thereafter accord-to confession escaped through the roof. He also stated to the Sarpanch that he did so because he had suspicion that Lila might kill them all by poisoning them by' medicine which was kept to kill rats. There is a long cross-examination. He thereafter accord-to confession escaped through the roof. He also stated to the Sarpanch that he did so because he had suspicion that Lila might kill them all by poisoning them by' medicine which was kept to kill rats. There is a long cross-examination. At first the cross-examination is diverted to the fact as to where exactly the iron lamp was lying and the Sarpanch stated that it was on the earthen jar. He denied the suggestion that at night the lamp was near the cot which was put on the earthen jar by him at the suggestion of Parshottam Pranshanker. The cross-examination, thereafter was diverted to the fact as to what happened immediately after the incident on the fateful night and the Sarpanch stated that when the accused came he was weeping and was stating that he lost every thing. According to him he had to give solace to him. Thereafter the cross-examination was diverted to the fact as to how he contacted Parshottam Pranshanker and he stated that he was on his shop and Parshottam Pranshanker had just passed on the road and he went to the road and talked with him for about 5 to 10 minutes. Thereafter some contradictions were put to him in the cross-examination in regard to what exactly happened when Parshottam Vasta had gone to call the accused. There is some contradiction in regard to the fact as to who actually burnt these clothes in the Vadi and that contradiction is duly proved. Thereafter the cross-examination was diverted towards the enmity in regard to the election at the time of the panchayat elections which might have been held in the village. 9. The next important witness is Parshottam Pranshanker P.W. 3, Exhibit 17. He practically gave the same version as given by the Sarpanch and practically the cross-examination is similar. 10. The learned Sessions Judge at the time of judgment while appreciating the above evidence mainly relied on the following probabilities: 11. According to the learned Sessions Judge, it was summer and it was hardly possible that Lila and Jitu would put quilts and use them at night. He, therefore, concluded that the accused must have thrown them before igniting the fire. According to the learned Sessions Judge, it was summer and it was hardly possible that Lila and Jitu would put quilts and use them at night. He, therefore, concluded that the accused must have thrown them before igniting the fire. Secondly he imagined that though the roof was destroyed as there was big earthen jar and an open plot nearby it was possible for the accused to come from the field, enter by roof putting his foot on the jar and do the mischief which he wanted to do and returned the same way. This to say the least is imagination, not borne out by any evidence. The third thing which the learned Sessions Judge has written in the judgment is that the police did not prepare the panchnama after they received the information from the Sarpanch that the crude oil was used otherwise the tin would have been recovered by that panchnama. This is again imagination. The tin may or may not be there. The first tiling which the learned Sessions Judge was to consider was that here was a case where he was considering extra judicial confession of an accused person made -before the Sarpanch. It was a relevant circumstance. The extra judicial confession was admissible in evidence. But he should have thought that here was a confession which was a retracted confession. The extra judicial confession is in itself a very weak piece of evidence. The reason is obvious .There is no guarantee that it is voluntary. In a confession made before the judicial officer the time for reflection is given. Thereafter it is recorded in writing. Thereafter the Judge gives a certificate that it was voluntarily made. All these things do not exist in an oral extra judicial confession. Therefore, the caution is required that he should not have acted merely because he got some corroboration from another witness P.W. 3, Parshottam Pranshanker. The first thing which was to be considered was whether this was a natural conduct and the person would have made such a confession. Further thing which was required to be considered was whether it was a true confession because for every confession to be acted upon it is necessary to decide that the confession is voluntary and true. Unless one comes to a definite conclusion that the confession is voluntary and true it can never be acted upon. Further thing which was required to be considered was whether it was a true confession because for every confession to be acted upon it is necessary to decide that the confession is voluntary and true. Unless one comes to a definite conclusion that the confession is voluntary and true it can never be acted upon. That law is required to be remembered in regard to appreciation of even confession which is made before the Judicial Magistrate. Here the confession was really made before the Sarpanch which the Sarpanch had not recorded in writing. He remembered it orally. He never bothered to even note down the same at any place. Fie never bothered to inform the police immediately thereafter. The confession according to him was made before him on 30th May, 1980 at midnight. No one prevented him from immediately approaching the police and narrate the whole incident. He did not do so. He never did it on even 31st May, 1980. On 31st May, 1980 the police of their own had come to the village and in the evening when he was questioned he narrated that the accused had made an extra judicial confession. Now, therefore, a weak piece of evidence which was not reported was required to be examined. It was a retracted confession. That again was required to be borne in mind. To have a guarantee that it is true, material corroboration was a must. Here the material corroboration according to the learned Judge was that in summer nobody will sleep with quilts clearly forgetting that in the confession it is stated that one blow on the head was given by a rahpi. Post mortem notes do not reveal any blow on the head, not even a bruise.- Therefore, no such blow was given. That fact was clearly forgotten or clearly lost sight of. The second aspect which was required to be seen was that the panchnama of the place of the scene of offence, Exhibit 11 clearly shows that there was no smell. There is not a single mention in the panchnama that when the smell was tried to be detected no kerosene smell or any other smell was coming. Now, therefore, to conclude that the crude oil was sprinkled was out of question. There is not a single mention in the panchnama that when the smell was tried to be detected no kerosene smell or any other smell was coming. Now, therefore, to conclude that the crude oil was sprinkled was out of question. If that was so the smell must be present in quilts of crude oil and the tin must have detected at the time of the first panchnama. There was no question of preparing any second panchnama and it is highly doubtful if such a tin was ever in existence if second panchnama was prepared. It is a pure imagination that if second panchnama was prepared perhaps the tin might have been found. This is a conjecture and the last conjecture is that the accused might have entered from the roof because there is an earthen jar in the hut and there is an open plot by the side. This would mean that any person might have entered or fire could be accidental as well. Accidental fire is not ruled out, entry of another individual is also not ruled out and to say that the accused burnt some clothes of his when he was called is no circumstance unless it was established that on those clothes at that particular point of time either there were stains of blood or some smell of kerosene was coming out. The blood stains even would have been useless because there was no injury. The case of rahpi blow is a myth. All these circumstances if considered together it clearly appears that the confession which is talked about is absolutely a false confession even if made. Under these circumstances it cannot be considered or suggested that it is prudent to act on such confession. The conviction based on such confession is required to be set aside. 12. In the result the appeal is allowed. The conviction and sentence passed on the appellant are set aside. The accused is ordered to be acquitted and set at liberty forthwith unless required for some other offence. Fine, if paid, to be refunded. Appeal allowed.