G.M. LODHA, J.—Accused - appellant Ratna has filed the appeals against the judgment passed by the learned Sessions Judge, Tonk, dated 31st October, 1977, in Sessions Case No. 14/1977 convicting him under Sec. 302, IPC and sentencing him to imprisonment for life. 2. The prosecution case is that PW/1 Ram Chandra lodged a written report before the S.H.O., Malpura on 13th November, 1976 that his daughter Sampati by caste Regar is not traceable since 12th November, 1976. There were silver ornaments on her person. On 15th November, 1976, he again lodged an information, Ex.P/2, mentioning that his daughter was 10 years of age and was wearing silver ornaments for which information was given on 13th November, 1976, is not traceable and he suspects that Kalolias of Bhagwanpura might have taken her. Investigation was made; but since she was not traceable, no prosecution could take place. On 26th April, 1977, Mool Chand (PW/15), who is an employee in the Sheep & Wool Department, while grazing the cattle show one-skull informed the police. Upon which, the Sub-Inspector of Police, Ashok Kumar (PW/25), started taking active proceedings. He went to the place where skull, skeleton and bones were lying. Some hair were there and some clothes were spread. Site inspection note and recovery memo etc. were prepared. Dr. Om Prakash (PW/18) was called who conducted the post-mortem examination of skull, skeleton, bones etc. which was found. 3. Now, the police started the search of the accused. During the search, it was found that Ratna, accused-appellant, from the very day of disappearance of the girl, was not available in the village and this had created suspicion. On 4th May, 1977. Ratna was arrested. During the course of investigation, on 8th May, 1977. accused Ratna got recovered axe and dharia after giving information. Recovery memo and information memo were prepared. On 9th May, 1977, the accused then gave an information about the silver ornaments. As information memo was prepared and then the accused was taken to the place where he led the police party, as per the information, to PW/12 Kanhaiyalal Gold-smith of Malpura and Kanhaiyalal gave to silver Kadiyas and also some melted silver, which he had prepared after melting Hasali. Recovery memos were prepared. A note - book was also recovered, which had a mention that Rs. Recovery memos were prepared. A note - book was also recovered, which had a mention that Rs. 360/- of Ratna is, thus, kept, was alleged to belong to Kanhaiyalal and this amount was for the ornaments. Remand was taken upto 14th May, 1977. On 15th May, 1977. Ex. P/7 was moved by the accused at the residence of the Magistrate for permitting him to make confession. The Magistrate took the prosecution of sending the accused to the judicial custody and not taking the confession at that time in order to give him enough time to have serious thought about the matter. On 17th May, 1977 the accused was produced as per the directions and he made a confession Ex.P/26 at 11.10 a.m. 4. Identification of the silver ornaments and the clothes were made vide Ex.P/22 and Ex. P/23, which have been proved by PW/21 Prahlad. PW/1 Ram Chandra, PW/4 Amra and PW/24 Rama have also identified the blouse and the silver ornament, Kadiya. Investigation was concluded after examination of the accused and the accused was charge-sheeted as under:- 1. That you on or about the 12th day of Nov. 1976 did commit murder by intentionally (or knowingly) causing the death of Sampati D/o Ramchandra, Regar and thereby committed an offence punishable under Sec. 302 of the Indian Penal Code. 2. That you on or about the 12th day of 1976 kidnapped or abducted Mst. Sampati D/o Ram Chandra, Regar in order that the said Sampati might be murdered and thereby committed an offence punishable u/s 364 of the Indian Penal Code and within my cognizance. 3. That you on or about the 12th day of Nov. 1976 committed robbery of the property of Smt. Sampati d/o Ramchandra and that as such, you voluntarily caused hurt to the said Sampati and thereby committed offence punishable u/s. 394 of the Indian Penal Code and within my cognizance. 4. That you on or about the 12th day of Nov. 1976 dishonestly received or returned a stolen property to wit, one pair or Kari and one silver khungali belonging to Sampati D/o Ramchandra, knowing or having reason to believe the same to be stolen property and that you thereby committed an offence punishable u/s 411 of the Indian Penal Code and within any cognizance." 5. The accused denied the charge. The prosecution examined 25 witnesses and produced 44 documents and various articles. The accused denied the charge. The prosecution examined 25 witnesses and produced 44 documents and various articles. The defence examined DW/1 Hanumanand produced Ex.D/1 to Ex.D/5. After completion of the investigation the accused was examined under Sec. 313, Cr.P.C. and he denied all the allegations and mentioned that the confession was recorded by beating and torturing by the police and it was not a free and voluntary confession. 6. After hearing the arguments the trial Court framed various points to be considered, divided into 7 parts and decided them. After an elaborate discussion of the entire evidence and the various legal points involved in the case and decided the case. 7. Mr. Surana appearing on behalf of the accused-appellant has challenged the finding of the trial Court on various grounds. The principles submission of Shri Surana is that the confession was neither voluntary nor recorded according to law and, therefore, it is vitiated. According to Mr. Surana, it was the result of police beating and torture and the Magistrate did not take the usual precautions required by Sec. 164 read with Sec. 281, Cr.P.C. 8. Mr. Surana pointed out that the accused retracted the confession by denial of the charge. The charge was framed and read over to him. Again, when he was examined under Sec. 313, Cr.P.C. he gave a detailed version as to how he was tortured and beaten for making the confession. Shri Surana has pointed out that the learned Magistrate committed a serious error in not recording the statement of the accused in question and answer form. He did not take the precaution of putting all the questions which are prescribed in the prescribed form. He has further pointed out that the confession is not a voluntary one because the accused was sent to the police lock-up after making of the confession. He was not told that he would be sent to the police lock-up. Shri Surana also argued that third degree method of torture and beating for making confession was adopted. He has further pointed out that the confession is not a voluntary one because the accused was sent to the police lock-up after making of the confession. He was not told that he would be sent to the police lock-up. Shri Surana also argued that third degree method of torture and beating for making confession was adopted. It was argued that the accused is helpless in police custody and if the court accepts the confession, like the present one, it would be encroaching the provisions of Sec. 164 Cr.P.C. and would be denial of justice to the accused, as the accused is presumed to be innocent unless the prosecution is able to prove the guilt against him beyond any manner of doubt Mr. Surana also pointed out that the burden is always on the prosecution and the accused is not in a position to prove beating and torture given to him. But, the Court should read between the lines if the facts and circumstances of the case are established in that respect. Mr. Surana relied upon various judgments in this respect and referred the case of Ramham Vs. The State of Rajasthan (1). He also relied upon the following dacisians:-Bhanwar Lal vs. The State (2), Prag vs. Emperior (3) and Badri Vs. State of U.P. (4). 9. Mr. Surana then pointed out that so far as the recovery of weapons is concerned, blood grouping has not been done and, therefore, the recovery cannot be used against the accused. He then pointed out that so far as articles are concerned, firstly the evidence in support of the recovery of so called discovery is not reliable. Moreover, there was no discovery as held in Kottaya Vs. Emperor (5). He further pointed out that the circumstances of absconding cannot be used against the accused and relied on Kartar Singh vs. State of Punjab (6). 10. The learned Public Prosecutor has vehemently opposed the appeal and submitted that this is a case where the confession of the accused has been recorded after taking all precautions and the Magistrate in his testimony has stated that the confession was voluntary and ensured the same before it was recorded. The learned Public Prosecutor also submitted that even if the oral evidence shows that the Magistrate took the precautions for ensuring that the confession is voluntary. The learned Public Prosecutor also submitted that even if the oral evidence shows that the Magistrate took the precautions for ensuring that the confession is voluntary. Merely because it was not recorded in question and answer form, it is not vitiated and relied upon Chandran vs. State of Tamil Nadu (7). 11. The learned Public Prosecutor placed reliance on the judgments of the Supreme Court and our own High Court: Shankariya vs. State of Rajasthan (8) and Moda vs. State of Rajasthan (9). 12. He also submitted that the present one is a case in which the confession was voluntary and corroborated by other circumstantial evidence. 13. We have given out serious thought to the rival contentions of the learned counsel for the parties and have gone through the entire record referred to by the learned counsel for the parties. 14. It must be noted that in the present case the accused was produced before the Magistrate on 15th May, 1977. He was arrested on 4th May, 1977. On 15th May 1977, the learned Magistrate, before when he was produced, took the precaution not to record the statements of the accused, but sent him to the judicial custody The accused remained in the judicial custody and then produced on 17th July, 1977. The learned Magistrate, has been examined as PW/23. He stated that he sent the accused to the judicial lock-up and gave an order Ex.P./ 25. On 17th May, 1977, the accused was produced from the judicial lock-up at 5 a.m. He did not examine him even then at once. He was made to understand and was given enough time for thinking. He was allowed to sit in the courtroom and an order was passed to that effect. His hand cuffs were removed and the police was not allowed to remain in the room. The police remained outside the room. Then at 11.10 a.m. he inquired from the accused, Ratna if he was under any sort of influence or pressure or duress. He also informed him what position he (Magistrate) is holding The Magistrate told him that the statement which he would give would be used against him. The police remained outside the room. Then at 11.10 a.m. he inquired from the accused, Ratna if he was under any sort of influence or pressure or duress. He also informed him what position he (Magistrate) is holding The Magistrate told him that the statement which he would give would be used against him. When questions were put to him, he answered that he wanted to give statement without any pressure or fear and, when the Magistrate was satisfied that the accused is intending to give his statement free from influence, pressure or duress, he started to record his statement, Ex. P./28. He then gave a certificate A to B in this statement and signed it, and got the thumb impression of the accused. 15. This witness in his cross-examination has given the details. He stated that he made understand the accused the material information before the statement was recorded. Since the investigation was yet to be completed after the confession was recorded, the accused was sent to the police custody. 16. Mr. Surana laid much stressed on his submission that the confession should be recorded in the prescribed form. Yesterday, after the arguments were heard for some time, he was given time to show whether in the Criminal Procedure Code or the Rules made thereunder any such form is prescribed. Today, during the arguments, Shri Surana showed a form, which, according to him, has been published by the Government for the same. According to him, this is the usual practice and this form is in vogue i.e. required by Sec. 164 and 281 Cr.P.C. 17. We have carefully considered this aspect of the matter. We are of the opinion that since no form is prescribed either in the Code of Criminal Procedure or in the Criminal (General) Rules framed by the High Court, no confession would be vitiated because it has not been recorded in the prescribed form. Sections 161 and 281 of the Code of Criminal Procedure, when read together, makes it abundantly clear that the Magistrate must be conscious of his duty in ensuring that no accused who has come from the police custody for giving evidence against his own self, is deprived of normal requirement that the confession should be voluntary, free from any torture fear or temptation. For ensuring this, he must put certain question to the accused and satisfy himself. 18. For ensuring this, he must put certain question to the accused and satisfy himself. 18. No particular questions and answer have been prescribed, either in the Code of Criminal Procedure or in any rules made there under. The form prescribed by that Government can only provide illustrative questions for the guidance of the Magistrate, it" the same are made available to him. Neither such prescribed form can have any binding effect, nor absence of recording the confession in such a form would result in vitiating the confession. 19. We find that Sec. 164 of the Code of Criminal Procedure prescribes that a note in the form of memorandum after recording of the statement should be given by the Magistrate. This is contained in sub-section (4) of Sec. 164, Cr.P.C. that the accused is not bound to make a confession and that, if he does so, any confession he may be used as evidence against him. The Magistrate should further note that he believes that such confession was voluntarily made. Subsection (4) of Section 164, Cr.P.C. reads as under:- (4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person and making the confession, and the Magistrate shall make a memorandum at the foot of such record to the following effect :- "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and 1 believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and submitted by him to be correct, and it contains a full and true account of the statement made by him. " (Signed) A.B. Magistrate. 20. Another prosecution is that when the accused is produced for recording the confession; if he states that he is not willing to make the confession, the Magistrate should not send him to the police custody. It is provided in subsection (3) of Section 164; Cr.P.C. Obviously, the object is that this is to ensure that if he refuses to give confession, the police would not be in a position to use third degree methods and torture him as retaliation for resiling from the stand taken in police. It is provided in subsection (3) of Section 164; Cr.P.C. Obviously, the object is that this is to ensure that if he refuses to give confession, the police would not be in a position to use third degree methods and torture him as retaliation for resiling from the stand taken in police. 21. Section 164(2), Cr.P.C. mentions that 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. The pith and substance of the scheme of Sec. 164 and 281, Cr.P.C. is that the confession should be voluntary, free from police fear, torture or temptation and further that if an accused refuses to make confession, he should not be sent to the police custody. However, there is no time to send him to the police custody after he has made a statement as confession because then the even is over. In the instant case, we find that the Magistrate has taken the precaution of not recording the statement when he was produced on 15th July, 1977 and he sent him to the judicial custody, obviously, for giving him free time, away from police custody where he can think over independently, voluntarily, without fear of police and decide for himself whether to make or not to make a statement in the form of confession. The fact that he was produced on 17th July, 1977 and again the Magistrate took precaution to give him time of two and a half hours to think over the matter by permitting him to sit in the Court and then recording him confession shows that the Magistrate took extra precautions to ensure that the confession was voluntary and there was no police influence. 22. The note appended to the statement of confession shows that the Magistrate has taken all the precautions to ensure that the confession was voluntary and it was told to the accused that he is not under any obligation to make confession and if he makes it, it may be used as evidence against him. We are, therefore; satisfied that the confession in these circumstances was voluntarily made. 23. We are, therefore; satisfied that the confession in these circumstances was voluntarily made. 23. It is true that, it has not been recorded in the form of questions and answers. It is also true that Sections 281 and 164, Cr.P.C. provide that the confession should be recorded in the form of questions and answers. We are also convinced that the questions which were put for ensuring that due precautions were taken, show that it was being given voluntarily without any fear, duress, influence or temptation, and a note to this effect was recorded at the end of the statement. We feel that none of these procedural acts can make the confession either erroneous or illegal and involuntary. In this connection, we would like to refer to the decision of the apex court in Chandran Vs. State of Tamil Nadu (supra). In the said case the Magistrate did not comply with Sec. 164 (3) inasmuch as (a) instead of certifying that he believed that the confession of the appellant was voluntarily made, he certified that "I hope that this statement was made by him voluntarily" and, (b) the Magistrate omitted to certify that the confession was taken in his presence and hearing and was read over to the person making it and that it was admitted by him to be correct and that it contains a full and true account of the statements made by him. Obviously, this was a very serious defect. Even so, Honble Supreme Court set aside the technicalities and observed that if the Magistrate who recorded the confession could have been asked by the prosecution to establish from his word of mouth that the use of the word "hopa" by him as inadvertent or accidental and he intended to use the word "believe", then this defect would have been cured. Their Lordships observed that although the Magistrate was examined as a witness at the trial, yet no attempt was made by the prosecution to establish from his word of mouth that the use of the word "hope" by him was inadvertent or accidental. In the witness-box, also the Magistrate did not go whole hog to vouch for the voluntariness of the confession. In the witness-box, also the Magistrate did not go whole hog to vouch for the voluntariness of the confession. Their Lordships have further observed: "There is a marked difference in what is connoted by "hope" and "believe"."To hope" means "to want and expect", "to look forward with expectation and desire." "Hope" is a wishful feeling floating on nebulous-foams projected into the unknown future. Deep hidden in "hope" dwells a lingering doubt, aspect of suspicion, that what is desired and expected may not turn out true. No unoften, in the mind of the person hoping, there lurks subconscious fear that the "hope" may turn out a "dupe". In contract with it, the term "believe" in the sense in which it is used Sub Sec. 164, has "logical confidence" or "rational conviction" as its essential element. It imports a high degree of expectation wrought by reason, a satisfaction fast-rooted in a terra firma free from doubt as to the truth of the fact perceived and believed. 24. All the decisions referred to above by Mr. Surana and the learned Public Prosecutor emphasised that the word voluntariness is sin quo non in acceptance of confessions. In none of the judgments it has been mentioned that merely because after the confession is recorded, the accused is sent to the police lock-up, it would loose its voluntariness or credibility. 25. So far as the judgments of the Apex Court is concerned, in none of the judgments it has been mentioned that the voluntariness cannot be accepted unless questions and answers are recorded and examined by the Court. As mentioned above, the above judgment which we deal with in detail on the contrary shows that confession can be accepted even if whatever has been written, even if defective is found to be incorrect and the true statement recorded by the Magistrate shows that it was voluntary. 26. In the present case, as we have already referred above, the Magistrate was extra-conscious is not recording the statement when the accused was produced and he sent him to the judicial lock-up on 15th and called him on 17th. morning and, then he gave him time and he did not examine even then at once. Then the Magistrate told him that the statement which he would give would be used against him. morning and, then he gave him time and he did not examine even then at once. Then the Magistrate told him that the statement which he would give would be used against him. On being satisfied that the accused was intending to give his statement free from influence, pressure or duress, he started to record his statement. All this shows that the Magistrate took all the precautions complying with the provisions of Sec. 164, Cr.P.C. We are; therefore, convinced that the confession recorded in the present case is voluntary and true and suffers from on infirmity, on account of which it can be said to have vitiated. 27. Now, so far as the recovery of the weapon of offence is concerned, it must be said that blood grouping is not indispensable. For each case, it depends upon availability of blood which is wanted and its condition at the time when the Serologist examined the same. There cannot be any rule of thumb that unless blood grouping is done, the report of the Serologist that the weapon of offence or the articles recovered in the form of clothes etc. were of human-blood would become useless and of no consequence for being used against the accused. 28. So far as recovery is concerned, we are satisfied for the detailed reasons given by the learned Sessions Judge which we need not repeat that it was on the information and at the instance of the accused that the recovery of the weapon of offence was made We, therefore, feel that it would be a futile exercise of repeating or reproducing the entire evidence on the point. 29. So far as the articles of the deceased in the form of silver ornaments and silver produced or the information of. the accused from the gold-smith is concerned, we have to consider certain points. The S.H.O. stated that on 7th May, 1977 during the course of investigation the information was not given, but it was given on 9th May, 1977. This information has been proved. Then Kanhaiyalal gold-smith was approached who sold the gold for Rs. 360/- on 12th November, 1976. The information is receipt Ex. 1/33. It should be noticed that Kadiyas have been recovered in the original form. So far as Hasali is concerned, the silver was melted. The recovery memo is Ex. P./15. Copy is Ex. P/16 and its recovery is Ex. P/17. 360/- on 12th November, 1976. The information is receipt Ex. 1/33. It should be noticed that Kadiyas have been recovered in the original form. So far as Hasali is concerned, the silver was melted. The recovery memo is Ex. P./15. Copy is Ex. P/16 and its recovery is Ex. P/17. PW/3 Chatara has been produced to prove these memos. PW/12 Kanhaiyalal stated that he was knowing accused Ratna who came with Kadiyas and hasali. Kadiyas was pledged for Rs. 360/-. Since he could not repay the amount, therefore, he melted the Kadiya into silver. When the police came, on being asked by them, he returned the kadiya and melted silver Art-7. He proved his signatures on Ex. P/15. He also proved Ex.P/16 and Ex.P/17. Many questions were asked about the entries in the bahi from this witness and Mr. Surana also argues that his testimony should not be believed because there is no entry in the account books and no account books have been produced. Mr. Surana argued that on 7th May, 1977, the accused has told about "Kadiya" therefore, the information of recovery on 9th May, 1977 is useless. 30. We are of the opinion that when the accused is interrogated by the police, it is not necessary that at the very first instance, the accused would come out with true story. He will initially resist all attempt that discloses or reveal or giving information for recovery of the ornaments or articles which ultimately may be used as evidence against him. That being so, we do not attach any importance to the evidence of the S.H.O. We are convinced that the statement of the gold-smith alongwith S.H.O. inspires confidence, and it has been proved to be the witness who has also been earlier identified these ornaments to be that of the deceased, and the evidence that she was wearing before she was missing that these ornaments have been recovered on the information given by the accused and at this instance, do provide incriminating circumstances against the accused. 31. In view of the above, the confession of the accused alongwith the recovery of the ornaments, and weapon of offence having been stained with human blood are sufficient for convicting the accused for the offence punishable under Sec. 302 IPC. 32. In the result, the appeal is dismissed. The conviction and the sentence passed against the accused-appellant, Ratna, are confirmed. In view of the above, the confession of the accused alongwith the recovery of the ornaments, and weapon of offence having been stained with human blood are sufficient for convicting the accused for the offence punishable under Sec. 302 IPC. 32. In the result, the appeal is dismissed. The conviction and the sentence passed against the accused-appellant, Ratna, are confirmed. The accused is not present today in Court. The learned counsel for the accused-appellant is directed to take steps to surrender him within a period of one month. The trial Court is also directed to issue a warrant of arrest and get him arrested and send him to jail for undergoing the Constance awarded to him. 33. The certified copy of the judgment will be issued only when a certificate for his having been arrested or having surrendered in jail is produced from the jail authorities.