J. P. DESAI, J. ( 1 ) WE would like to mention here that accused No. 2 Daya Jina gave a complaint to the Police Officer on 16-7-1982 which was given mark A by the learned trial Judge at the time on recording evidence but at the time of delivering judgment the learned trial Judge relying upon the decision of this Court in RABARI KHIMA GANDA V. STATE OF GUJARAT 20 G. L. R. 847 held that the said complaint is not hit by section 162 Cri. Pro. Code and therefore admissible in evidence. The evidence of P. S. I. Tirmiji P. W. 15 Ex. 57 shows that he took over the investigation of this case on 16-7-1981 at about 3-30 P. M. and on that day he arrested accused Nos. 1 and 2 and attached the muddamal weapons and blood stained clothes of accused No. 1 and then arrested accused Nos. 3? 4. and 5 and then attached the muddamal weapons from them and then recorded the complaint mark A of accused No. 2 Daya Jina. This evidence shows he did further investigation in the matter and then submitted charge-sheet to the Court on 14-10-1981. This shows that the P. S. I. Tirmiji was the investigating officer in this case. His evidence at para. 13 also shows that after arresting accused Nos. 1 and 2 he recorded their statements as accused in this case and at that time accused No. 2 said that he was beaten and he felt that a cognizable offence was committed and hence he asked accused No. 2 Daya to give his complaint and thereafter he recorded the complaint Mark A of accused No. 2. Inspite of this the learned trial Judge has with respect to him at para. 6 of his judgment that the P. S. I. did not do any other investigative work and therefore. the statements were not hit by sec. 162 Cri. Pro. Code. We may also mention here that the learned Judge himself has observed at para. of his judgment that P. S. I. Tirmiji P. W. 15 was the investigating officer who completed the investigation and charge-sheeted the accused. In view of this it is difficult to understand how the learned trial Judge came to observe that the P. S. I. had not done any other investigative work except arresting the accused and recording their statements. of his judgment that P. S. I. Tirmiji P. W. 15 was the investigating officer who completed the investigation and charge-sheeted the accused. In view of this it is difficult to understand how the learned trial Judge came to observe that the P. S. I. had not done any other investigative work except arresting the accused and recording their statements. Even arresting the accused attaching the muddamal weapons and cloths of accused No. 1 and recording statements of accused Nos. 1 and 2 was on the face of it during the course of investigation of this case. On these facts it is clear that mark A though styled as a complaint was in fact a statement of accused No. 2 recorded during the course on investigation and therefore hit by sec. 162 Cri. Pro. Code. We may mention here that in the case of Rabari Khima Ganda (Supra) this Court has only laid down as to what is the test to be applied in deciding whether a particular statement though styled as a complaint is in fact a complaint or whether it is hit by sec. 162 Cri. Pro. Code. The Division Bench has observed at para. 16 of the judgment after referring to several decisions as follows:-"thus whether a document produced as a counter - complaint in a given case after investigation has started upon another complaint is inadmissible in evidence under sec. 162 (1) of the Code depends upon the facts and circumstances of each case". We may mention here that only the portion approved for reporting has been reported. That reported portion does not show as to whether on the facts of that case the statement of the accused styled as a complaint was held to be admissible. Hence we have looked into the original judgment of this Court in the case of Rabari Khima Ganda (supra ). It appears that in that case it was contended by the accused that the complaint given by him was admissible in evidence because it supported his plea of self-defence while it was contended by the learned public prosecutor that it was hit by sec. 162 of the Code. In that case also it appears that the accused in that case was first questioned by one Sub-divisional Police Officer Mr. Mahapatra and the accused complained before him that he was also beaten and thereafter his complaint was recorded. 162 of the Code. In that case also it appears that the accused in that case was first questioned by one Sub-divisional Police Officer Mr. Mahapatra and the accused complained before him that he was also beaten and thereafter his complaint was recorded. It also appears from the facts of that case that the Sub-divisional Police Officer had first questioned the accused in that case and he was arrested by the P. S. I. and thereafter his so-called complaint was recorded. Taking into consideration these facts the Division Bench held in that case that though dressed up in the form be a complaint it was in fact a statement recorded during the course of investigation and therefore inadmissible as hit by sec. 162 of the Code. The complaint was taken into consideration it did not advance the case of the accused any further. The facts as disclosed in the evidence in the present case are more or less similar because as stated a little earlier it is clear from the evidence of the P. S. I. that he arrested accused Nos. 1 and 2 then attached some Muddamal weapons then recorded their statements and he came to know during the recording of their statements that accused No. 2 was also beaten and thereafter he recorded Mark A which is styled as a complaint. It is thus crystal clear that on the facts of this case Mark A was not admissible in evidence ( 2 ) WE may also mention here that even if Mark A is taken into consideration as admissible in evidence then also it does not advance the case of prosecution any further because it only shows that the complainant side was the aggressor and accused No. 2 and accused No. 1 were injured by those persons. We may also mention here that the so-called compliant mark A could only be used qua accused No. 2 and not any other accused if at all it can be used because the so-called complaint of accused No. 2 is more or less a statement of accused No. 2 which cannot be used against the other accused. We may also mention here that the so-called compliant mark A could only be used qua accused No. 2 and not any other accused if at all it can be used because the so-called complaint of accused No. 2 is more or less a statement of accused No. 2 which cannot be used against the other accused. We may also mention here that it is doubtful whether the prosecution can use mark A for establishing the prosecution case against even accused No. 2 because any incriminating statement which may even go to establish the presence of accused No. 2 at the time of-this incident will amount to a confession and hence that by sec. 25 Evidence Act as held by the Supreme Court in the case of AGHNOO NAGESIA V. STATE OF BIHAR. A. I. R. 1966 S. C. 119. The Supreme Court has held that a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive the preparation the opportunity the provocation the weapons used the intention the concealment of the weapon and the subsequent conduct of the accused. When the confession is tainted the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non-confessional statement. The Supreme Court has further observed that every admission of an incriminating fact contained in the statement is part of the confession. Even in the case of KHIMA GANDA (SUPRA) this Court has observed at para 19 of the judgment as follows :"as against the aforesaid illustration we can also conceive of a case in which the accused does not want to file a counter-complaint. Such an accused would be examined under sec. 161 (1) of the Code by the investigation officer and in the course of his statement he gives out a version showing that he had a se for filing of a complaint. An intelligent investigating officer in such a case should get a complaint of the accused recorded instead of recording his statement and when the occasion arises he would use that complaint against the accused at the trial. That complaint which may not amount to confession would contain some admissions of fact which may ultimately be used at the trial against the accused. That complaint which may not amount to confession would contain some admissions of fact which may ultimately be used at the trial against the accused. (Emphasis supplied)"these observations show that the Division Bench which decided this case was conscious of the fact that if the statement amounted to confession the question of admitting it in evidence will not arise. The Supreme Court has held as stated a little earlier in the case of Aghnoo Nagesia (supra) that even an incriminating statement will amount to confession hit by see. 25 of the Evidence Act if made to a police officer. If therefore a statement or part of the statement amounts to a confession it can naturally not be used against the accused. Even in the case of FADDI V. STATE OF MADHYA PRADESH A. I. R. 1964 S. C. 1850 at page 1953 in paragraph 15 the Supreme Court has observed as follows :" The report is not a confession of the appellant. It is not a statement made to a police officer during the course of investigation. Sec. 25 of the Evidence Act and sec. 162 of the Code of Criminal Procedure do not bar its admissibility"the above observations of the Supreme Court have been extracted by the Division Bench in para 11 of the judgment. These observations go to show that the report i. e. counter-complaint given by the accused will not be hit by sec. 25 of the Evidence Act provided it does not amount to a confession. Mark A therefore cannot be used against accused No. 2 much less against other accused for establishing any incriminating facts against either accused No. 2 or other accused. Mark A can at the most be taken into consideration only for considering the case of self-defence put forward by the accused. We may also observe here that the Division Bench which decided the ease of Khima Ganda (supra) has at more than one place observed that the provisions of secs. 25 26 and 27 of the Evidence Act and sec. 162 of the Cri. Pro. Code are for the protection of the accused. We may also observe here even at the cost of repetition that the Division Bench has illustrated how a counter-complaint of an accused which may support the ease of self-defence put forward by the accused if held inadmissible may cause hardship to the accused. 162 of the Cri. Pro. Code are for the protection of the accused. We may also observe here even at the cost of repetition that the Division Bench has illustrated how a counter-complaint of an accused which may support the ease of self-defence put forward by the accused if held inadmissible may cause hardship to the accused. The question of admissibility and its use has therefore to be decided on the facts of each case bearing in mind even the relevant provisions of the Evidence Act and any portion even of a counter compliant is to be excluded from consideration if it amounts to a confession as held by the Supreme Court in the ease of Aghnoo Negesia (supra ). (Rest of the judgment not material for the reports. ). (ATP) Accused nos. 2 and 3 acquitted: accused no. 3 convicted. .