JUDGMENT 1. - All these three appeals arise out of the same judgment of the Additional Sessions Judge, Gangapur City, dated, 25th July, 1978, by which he convicted and sentenced the accused appellants under Section 302 I P.C. and sentenced to imprisonment for life and a fine of Rs. 1000/- and, in default of payment of fine, further to undergo six months' rigorous imprisonment; under section 320/120B Indian Penal Code to three months rigorous imprisonment and a tine of Rs. 200/-; in default of payment of fine to undergo two months' rigorous imprisonment and, under Section 120 B I. P. C. to 3 years' rigorous imprisonment and a fine of Rs. 200/-; in default of payment of fine to further undergo two months' rigorous imprisonment. All the sentences were ordered to run concurrently. 2. According to the prosecution story a report was lodged on 16th July, 1976 at 7.30 A M. by Jorawar Mal Patni, Manager, Digamber Jain Kshetra, Mahaveerji before S 1-1 O. 1-lindon. In that report he alleged that in Dharmashala No. 33, a dead body of unknown person has been found in room No. 86. The room is closed and locked. On receipt of this information the Dy. Superintendent of Police alongwith the S. H. O. Hindon, went to Mahaveerji and got the room No. 86 opened. He saw a dead body of a boy aged 10 years lying on the ground. The Dy. Superintendent of police called a person from the market who could open the lock. The Photographer was also with the Dy. Superintendent of Police who took the photographs of the dead body. The dead body was decomposed and the insection megats were moving thereupon. Thereafter, the Deputy Superintendent of Police returned and again went in the morning of 17.7.1976 and he found that the knife had been thrusted in the mouth of the deceased as a result of which there was bleeding. He also noticed that a stone was placed on the head of the body As it was a case of murder he sent a constable for lodging a detailed First Information Report. He got prepared the site-plan and removed the clothes from the body of the deceased and also seized the lock which was on the room outside. 7 he doctor was called in the Dharmashala for performing post-mortem examination on the spot. He got prepared the site-plan and removed the clothes from the body of the deceased and also seized the lock which was on the room outside. 7 he doctor was called in the Dharmashala for performing post-mortem examination on the spot. The Manager of the Dharamshala, Shri Patni, also gave a written statement written by accused Yogesh to the Investigating Officer The dead body was identilited to be that of Anil alias Pappu, who was staying in room No 124 of the same Dharamsala. During investigation it was found that two ladies. Gyan Bai and Sarojani hid come alongwith this body (deceased) Anil to Mahavrerji for pilgrimage and they stayed with accused Yogesh in the same room No. 14, which had two portions. On 13.3.1976, the dec aced had gone alongwith this accused Yogesh and never returned thereafter. On the next day, Yogesh mixed some Bhang in the 'lassi' of these two ladies who felt giddiness and started vomitting. Thereafter, Yogesh was held up by Dharamshala authorities who then gave the statement, Ex. p. 1 to the Manager of the Dharamshala. Till then Yogesh did not disclose the story of murdering Anil. He was arrested on 28.7.1976 and, during investigation, it was found that Yogesh with the assistance of accused Pawan Kumar and Nirmal Kumar murdered the body. This was done by them to take away the money and ornaments of the ladies. On 2.8.1976, Nirmal Kumar and Pawan Kumar were also arrested. During police custody Pawan Kumar gave information under Section 27 of the Evidence Act with regard to the recovery of the key of the lock which was on room No. 86 and on his information, the key was recovered. During investigation another evidence which was collected against Pawan Kumar is that who two ladies felt giddiness and were vomitting. it is he who brought a tablet "sequil" which is used for stopping vomitting and the tablet was administered to the ladies. After the arrest of Yogesh Kumar he was produced before the Magistrate for recording his confessional statement under Section 164 Cr P. C. on 30-7-1976. After completing usual investigation the Police submitted challan against all the three accused persons under Section 302/34 I.P.C., 120-B I. P. C. and 328 I. P C. in the Court of Munsif cum judicial Magistrate, Hindon, who committed them to the Court of Additional Sections Judge, Gangapur City. After completing usual investigation the Police submitted challan against all the three accused persons under Section 302/34 I.P.C., 120-B I. P. C. and 328 I. P C. in the Court of Munsif cum judicial Magistrate, Hindon, who committed them to the Court of Additional Sections Judge, Gangapur City. The Additional Sessions Judge framed charges against all the accused appellants tinder Sections 12013, 302/120-B and 328 1. P. C and, in the alternative, under Section 302/34 and 328/34 I. P. C. Accused persons pleaded not guilty and claimed trial. 3. The prosecution to establish its case examined 26 witnesses. Accused persons in their statement under Section 313 Criminal Procedure Code have denied the allegations made against them. No defence witness has been examined by the accused persons, 4. Yogesh Kumar in his statement has stated that after his arrest he was given beating by the Dy. S. P. who told him that he will be made the witness in this case if he gives statement as stated by him. In case he did not give the statement according to police he will be beaten and entangled in this murder case. On account of this he gave the confessional statement before the Magistrate. 5. It is not disputed that Anil was murdered by some body. The postmortem was conducted on the dead body and the post-mortem report is Ex P. 4. According to this post-mortem report as well as the statement of Dr. Gajanand Parasar, P. W. 10, who proved the post-mortem report, the cause of death was of injury of skull leading to fractures of skull and also le iding to intra-cranial haemorrhage & shock.According to Doctor, the duration of death appears to b:~ 4 to 5 days. There is nothing to idsafree (sic disagree) with the statement of the dcctor. Hence, it is established that the death of Anil Kumar, a boy of 10 years, is homicidal in nature. 6. There is no eye-witness in this case. The entire case depends on the circumstantial evidence. According to the Tibrewal, learned counsel for the appellant. Pawan Kumar and Nirmal Kumar the first circumstance is that of last seen of the deceased with accused Yogesh. The second circumstantial evidence is of administering Bhang to two ladies and the statement given by Yogesh before Shri Patni, the Manager of the Dhartmshala. According to the Tibrewal, learned counsel for the appellant. Pawan Kumar and Nirmal Kumar the first circumstance is that of last seen of the deceased with accused Yogesh. The second circumstantial evidence is of administering Bhang to two ladies and the statement given by Yogesh before Shri Patni, the Manager of the Dhartmshala. The third circumstance is that at the instance of Nirmal Kumar the Bhang was given to Yogesh by Mahaveer Prasad, P. W. 4. The fourth circumstantial evidence is the information given by Pawan Kumar for the recovery of the key and its recovery at his instance. The fifth circumstance is the confessional satement under Section 164 Cr. P. C. 7. From perusing the entire prosecution evidence we find that accused Yogesh was staying in room No. 124 in Dharamshala No. 3 The two ladies, Mst. Gyan Bai and Mat. Sarojani alongwith dece sed Anil came to Ivlahaveerji and they also stared in room No. 114 alongwith accused Yogesh. Accused Yogesh fell short of the money so he want, d some money. He saw that the ladies have ornamonts and money with them. Thus, according to the prosecution Yogesh Kumar conspired with Pawan Kumar and Nirmal Kumar, who became friends during his stay at Mahaveerji. In order to get money and ornaments from the ladies all the three accused persons conspired and Anil Kumar was removed from the room No. 124 and later on murdered in room, No. 86. Thereafter, Yogesh Kumar ad.ninistcred Bhang to the ladies. The ladies felt giddiness and started vomitting. So, the Manager of Dharamshalala. Mr. Paini arrived and he caught Yogesh. It is in the evidence that Yogesh gave statement Ex. P. 1 to Mr Patni, Manager of the Dharamshala. It has also come on evidence that Mr-Patni felt some bad smell coming from room No 86 and so he got the look broken. When he entered into the room he found the dead body of Anil lying on the ground in pool of blood. The report was sent by Mr Patni to the Police Station and on this report. Dy. S. P. arrived on the spot and he also saw the dead body of Anil lying in the room. 8. The evidence of last seen. as argued by Mr. Tibrewal, is that of Mst. Gyan Bai, P. W 19 and Mst. Sarojni, P. W. 21. 9. Dy. S. P. arrived on the spot and he also saw the dead body of Anil lying in the room. 8. The evidence of last seen. as argued by Mr. Tibrewal, is that of Mst. Gyan Bai, P. W 19 and Mst. Sarojni, P. W. 21. 9. We have read the statements of both these witnesses. Mst. Sarojani P. W. 21 has stated that on the last day, of the Mela of Mahaveer Ji, Yogesh took Pappu alias Anil for a walk. Pappu after taking bath and wearing bushshirt and Neeckar of brown colour went with him. At that time Mst. Cyan Bai had gone to the temple. Yogesh went to temple and brought key from Mst. Gyan Bai. Yogesh also informed Mst. Gyan Bai at the temple that Pappu had g')ne to Bhind in the bus. Gyan Bai asked Yogesh why Pappu was sent alone to Bhind. She, Mrs Sarojni, was cross examined on this point and she has stated the she was lying in the room when Pappu came and changed his clothe,. She has further stated that she also saw Yogesh there and Pappu when with him. There is nothing to disbelieve the statement of this witnesses. Mst. Gyani has stated that she went all alone to the temple at 6 P.M. and Pappu Sarojni were in the room. Yogesh came to the temple and told her that Pappu is desiring the key of the box. She gave the key to, Yogeshwari remained in the temple while Yogesh returned hack to Dharamshala. After one hour when she was in the temple Yogesh again met her at the temple and told her that he had sent Pappu in the bus of Rajendra to Bhind She inquired Yogcsh as to why he had sent Pappu without her consent. Yogesh told her that she should not worry about this and after taking oath of Mahaveer Ji he said that he had sent Pappu with Rajendra quite safely. He will reach there, she should not worry. She believed Yogesh. Nothing has been asked about this fact in the cross examination. So from the statements of these two witnesses it is clear that the deceased Anil was last seen with accused Yogesh. 10. The second circumstance is about the administering Bhang in the Lassi by Yogesh. He will reach there, she should not worry. She believed Yogesh. Nothing has been asked about this fact in the cross examination. So from the statements of these two witnesses it is clear that the deceased Anil was last seen with accused Yogesh. 10. The second circumstance is about the administering Bhang in the Lassi by Yogesh. This is also in the evidence of the prosecution witness that Yogesh brought Bhang from Mahaveer Prasad and administered it to Mst. Gyan Bai and Mst. Sarojani. On account of this Bhang both the ladies felt giddiness and started vomitting. The people who were in Dharamshala collected there and called the Magager. Shri Jorawa Mal Patni, P. W. 17. Learned Public. Prosecutor while referring the statement of P. W. 17, Jorawar Mal Patni, argued that the accused Yogesh gave statement Ex P. I and after recording the statement Ex P.I he with handed over to Police on 17-7-76. So, according to the learned Public Prosecutor administering Bhag is a step to proceed with the conspiracy of the accused person. It. We have perused the statement of Ex. p. 1 and also the statement of Jorawar Mal Patni. He has stated that in the night at 10. p.m. on 14-7-76, the Chowkidar reported him that two ladies R/o Bhind are unconscious. At this he called a Baid who administered some medicines to them and told that they had taken Bhang and they will be all right. On second day i. e. on 15-7-76, he called Yogesh and those ladies and talked to them. At this Yogesh gave him a written statement which was got written by Jagan Lai and signed by Yogesh. This statement is Ex. P. I.11-12. According to Mr. Jorawar Mal Patni, the statement Ex. P. 1 was not written by Yogesh accused on 15-7-76. Then on 16-7-1976 at about 11 A. M. he was on the round of Dharamshala, No 3 and when he came in front of the room No 86, he felt some bad smell coming from the room. He called the Chowkidar and enquired about this bad smell. He told that some rat or cat might have been dead inside it so the bad smell is coming He then called another Chowkidar and got the lock opened after taking the report of the Chowkidar. He called the Chowkidar and enquired about this bad smell. He told that some rat or cat might have been dead inside it so the bad smell is coming He then called another Chowkidar and got the lock opened after taking the report of the Chowkidar. The Mistri broke the lock and chowkidar informed him that a dead body is lying inside the room and. after that he sent the report Ex P. 18 to Police Station. While sending the report Ex. P. 18 to the Police Station - Jorawar Mal did not send the statement Ex. P. I. Learned Public Prosector argued that when the report Ex. P. 18 was sent about the tact that a dead body is lying in room No. 1+6, Jorawar Mal Patni had no knowledge that this dead body is of the boy who came with the two ladies Mst. Gyani and Mst Sarojani. He also did note weather the statement given by Yogesh accused, Ex.P. 1. had any connection with this murder. So, there was no question of sending Ex. P. 1 to the Police Station alongwith the report Ex. P. 18. We have considered this argument and we do not agree with the learned Public Prosecutor. Room No. 124 and and 86 are in the same Dhara ms halal No 3 On 15th July an incident of administering Bhang had occurred in the Dharmshala to two ladies. Then on 16th the dead body of a boy was found. It cannot be believed that there could not be any talk about the dead body in the Dharamshala. It cannot be believed that the two ladies did not notice the dead body of Anil in room No. 86 and assuming that on 16th it was not thought proper by Jorawar Mal to send Ex. P. 1. alongwith Ex. P. 18, but. when the Dy. S.P. came at the Dharmashala and found the dead body in the room why the statement Ex. P.1 wai not handed over to him by Jorawal Mal Patni. P W. 17. Whole day the investigation was going on in the Dharamshala bit the statement Ex. P. 1 was not handed over to the Dy. S.P. Then on 17th July, 197 i, when Dy S. P. again came to Dharamshalal and inves-igated the matter whole day, thereafter. I:x. P. 1 was given to him. P W. 17. Whole day the investigation was going on in the Dharamshala bit the statement Ex. P. 1 was not handed over to the Dy. S.P. Then on 17th July, 197 i, when Dy S. P. again came to Dharamshalal and inves-igated the matter whole day, thereafter. I:x. P. 1 was given to him. So, it creates doubt that the statement Ex. P. I was given by Yogesh accused on 15.7.1976 as stated by Jorawar Mal Patni. No proper explanation has been given by the learned Public Prosecutor about this fact that why statement Ex P. I was not given by Jorawar Mal Patni to Dy. S.P. on 16.7.1976 when he came at the Dharashala or why it was not sent to the Police Station alongwith the report Ex. P 18 Therefore, it creates doubt that the statement Ex P. I is a voluntary statement given by Yogesh.13. Much stress was laid on the recovery of key by the learned counsel for the appellant. This key was recovered at the information of Pawan Kumar which is Ex P 29. This information is the memo under Section 27 recorded by Dy. Superintendent of Police on the basis of which the key was recovered from a Nala at the instance of Pawan Kumar. We have read the information memo Ex P. 29 and we find that it is nothing a confessional statement of Pawan Kumar. This is not admissible in evidence under section 27 of the Evidence Act. The contents in this memo regarding committing the murder of Anil is inadmissible and cannot be relied upon. The only relevant portion is that he gave information of recovery of the key. On the basis of this information the key was recovered. The most important aspect is whether this key has any relevancy with the crime and whether this key is of that lock which was seized by the Investigating Officer which was on the door of room No. 86. Here we may say that the prosecution has failed to establish any connection of this recovered key with the lock which was recovered by the Investigating Officer during investigation and also with the crime i.e. the murder of Anil.14. With regard to the recovery of the lock the evidence is contradictory one. Jorawar Mal Patni, P W. 17. Here we may say that the prosecution has failed to establish any connection of this recovered key with the lock which was recovered by the Investigating Officer during investigation and also with the crime i.e. the murder of Anil.14. With regard to the recovery of the lock the evidence is contradictory one. Jorawar Mal Patni, P W. 17. has stated that on 16.7.1976, at 1l'o clock, he was on round and when he came in front of room No. 86 he felt some bad smell coming from the room, he called the peon and enquired about this bad smell. The peon told him that some rat or cat might have been inside the room and must have been dead. At this, he told to get it cleaned. The peon informed him that the room is locked. He told the Peon to open the lock and get it cleaned. He gave the report that the room No. 86 is locked by some pilgrimage. At this he ordered to open the room in front of motbirs. A 'Mistri' was called and he broke the lock and opened room. The Chowkidar then informed him that a dead body is lying in the room. At this he sent the report Ex. P. 18, to the Police. It means that the lock was opened at the direction of Jorawar Mal and when the police came after receiving the report, Ex. P. 1, the room was already open because the lock had already been broken by 'Mistri'. But the statement of Dy. S.P.. Mahima Nand. P.W. 25 is a different one. He has stated that on 16.7.1976 at 7 P.M., a report Ex.P. 18, was submitted to the S.H.O. Hindon, by Jorawar Mal Patni. The S.H.O. informed him and he alongwith police Guard and the S.H.O. came to Dharamshala and reached there at 8 P.M. The Manager of the Dharamshala, Mr. Patni was also with him. Room No. 86 was seen and a lock was on this room He called one person to break the lock and it was opened and found a dead body lying inside the room. Thus, according to the Dy. S.P., he got the lock opened. Jorawar Mal has stated that he called his employee (Mistri) who broke the lock and then he found the dead body. This is not the statement of Mr. Patni P.W. 17. Thus, according to the Dy. S.P., he got the lock opened. Jorawar Mal has stated that he called his employee (Mistri) who broke the lock and then he found the dead body. This is not the statement of Mr. Patni P.W. 17. that after seeing the dead body he again locked the room No. 86. Had it been a fact then the key must be with Mr. Patni. When Dy. S.P. came to Dharamshala the room was locked. Mr. Patni was with him and Dy. S.P. called some body from outside who broke the lock and then room was opened. This contradictory statement of Dy. S.P. and Jorawar Mal creats doubt in the correctness of the story, who had opened the room and who had broken the lock of the room No. 86, is not proved by the prosecution beyond reasonable doubt. The contradictory statement creates doubt about the fact of opening the lock. Then according to the Dy. S.P. the lock was seized at the spot in the presence of motbirs. When the key was recovered at the information of Pawan Kumar accused, it was the duty of the Dy. S.P, the Investigating Officer, to see whether this key is of that lock which was seized by him from room No. 66 He should have tested and applied the key to that lock and should have placed on the record that the kc) which was recovered at the instance of accused Pawan Kumar is of this lock which was seized by him. Therefore, in the absence of this evidence that the key which was got recovered at the instance of Pawan Kumar is the key of the lock, the chain of connecting the key with the crime is not established. Therefore, there is no relevance of the recovery of the key at the instance of accused Pawan Kumar. The only evidence against Pawan Kumar is the recovery of the key which, according to the prosecution, is of the lock which was on room No. 86. but this fact has not been established. So, there is no case established against Pawan Kumar.15. The only evidence against Nirmal Kumar is that at the instance of Nirmal Kumar, Mahaveer Prasad gave 'Bhang' to Yogesh Kumar. We have perused the entire evidence in this respect and we find that there is no evidence against Nirmal Kumar which connects him with the crime. So, there is no case established against Pawan Kumar.15. The only evidence against Nirmal Kumar is that at the instance of Nirmal Kumar, Mahaveer Prasad gave 'Bhang' to Yogesh Kumar. We have perused the entire evidence in this respect and we find that there is no evidence against Nirmal Kumar which connects him with the crime. N hatever the evidence is on record, is unbelievable and unreliable. There is no proof that all the accused persons had conspired to commit the murder of Anil. Pawan Kumar and Nirmal Kumar had no motive to commit the murder of Anil. It was for the prosecution to prove the motive and they have utterly failed to prove it. Therefore, there is no case made out against Nirmal Kumar also.16. Mr. Tirbrewal, learned counsel for the appellants, argued that the confessional statement, Ex. P. 20, under Section 164 Cr. P.C. of Yogesh Kumar is not admissible in evidence as it has not been recorded as per provisions of Section 164 Cr. P.C. It was also argued that the statement, Ex. P. 20, was recorded by the learned Magistrate after administering oath to Yogesh accused No oath is to be administered to the accused, hence it is illegal to administer oath and, when there is illegality, the entire statement cannot be relied upon.17. Mr. Tibrewal argued that the learned Magistrate before recording the statement under Section 164 Cr. P. C. has not put questions to the accused satisfying himself that the statement is being given voluntarily and there is no terror in his mind. The Magistrate should also have explained that he is not bound to give his statement and it will be used if given against him. The Magistrate should have also put auestion that, from where he has been brought for this statement and after recording the statement where he will be sent back. All these questions are necessary formalities which are to be adopted by the Magistrate before recording the statement under Section 164 Cr. P. C. Simply giving a certificate at the bottom of the statement which is marked 'G to H' in Ex P. 20 is not sufficient compliance of the provisions of Section 164 Cr. All these questions are necessary formalities which are to be adopted by the Magistrate before recording the statement under Section 164 Cr. P. C. Simply giving a certificate at the bottom of the statement which is marked 'G to H' in Ex P. 20 is not sufficient compliance of the provisions of Section 164 Cr. P. C. Learned Public Prosecutor, in reply, has argued that the Magistrate after recording the statement has given a certificate below the statement and this certificate proves that before recording the statement he explained the accused Yogesh that he is not bound to make the confessions and, if he does so, it may be used in evidence against him. The Magistrate was satisfied that the statement was given by Yogesh Kumar voluntarily, so this is sufficient compliance.18. An important aspect is to be noted in this regard which is that the accused were arrested on 28th July 1976 at 3.30 P.M. He was produced before Magistrate on 29th July, 1976 requesting that the identification parade of the accused is to be conducted. On this report Yogesh Kumar was sent to Judicial Custody c n 29th July 1976, thereafter, at 10.30 A.M , another application was submitted requesting that the accused has been sent to Judicial Custody for identification and his confessional statement is to be recorded. On this application learned Magistrate called Yogesh Kumar from Judicial Custody on 30-7-1976 and, on this day, the statement Ex. P. 20 was recorded. It shows that before submitting the application for recording the confessional statement accused Yogesh Kumar was produced before the Magistrate for sending him to judicial custody. At that time there was no request made by the Dy S, P. or the Investigating Officer to record the confessional statement of the accused. When the accused was sent to Judicial custody, in his absence, this another application was submitted at 10.30 A.M. for calling the accused to record his statement. Why this application was not submitted in the presence of the accused Yogesh Kumar and why this fact was kept secret even with the Magistrate when an order for sending him to judicial custody for identification purpose was obtained by the investigating officer. This shows that they had something fishy in their minds and. that is why, this fact was not brought to the notice of the Magistrate that the confessional statement is to be recorded. This shows that they had something fishy in their minds and. that is why, this fact was not brought to the notice of the Magistrate that the confessional statement is to be recorded. This fact was even kept secret from the accused and, all of a sudden, he was called on 30-7-76 for recording his statement. Had it been known to the accused on 29-7-76 that his statement is to be recorded on the next day, he would have given thought to this aspect and would have coolly considered whether he should make the confessional statement or not. On 30-7-76 all of a sudden, he was called from the judicial custody and was asked to give the confessional statement. No doubt, the learned Magistrate in his statement has stated that he gave two to three hours to consider whether the wants to give confessional statement or not and, after that he recorded the statement, but, this time of two to three hours is not sufficient. When the accused was in judicial custody on 29-7-76, he should have been informed that on the next cay his statement would be recorded under Section 164 Cr. P. C. He should have been given sufficient time to think over this matter. But, unfortunately this fact was even kept secret with him that he has to make a confessional statement on 33-7-76. This reflects on the way of investigation by the investigating Officer. The period of two to three hours to think over this matter is not sufficient.19. The provision for recording the confessional statement is provided in Section 164 Cr. P C. which says that, any Magistrate may, whether he has jurisdiction or not in the case, record any confessional statement or statement made to him in the course of investigation under this Chapter or under any other law, for the time being in force, or at any time afterwards before the commencement of the inquiry or trial. Sub-clause (2) of this Section says that the Magistrate shall before recording any such confessions, explain to the person making it that he is not bound to make a confession and 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. Subsection (4) of Section 164 Cr. Subsection (4) of Section 164 Cr. P. C. says that, the 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 making the confession and the Magistrate shall make a memorandum at the foot of such statement and 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 which he may make, may be used as evidence against him and I 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 admitted by him to be correct and it contains a fill and true account of the statement made by him." 20. Section 281 Cr. P. C. says that whenever an accused is examined the whole of such examination including every question put to him and every answer given by him shall be recorded in full by the Magistrate.21. Thus, it is clear that before recording the statement of the accused the Magistrate is bound to put questions and he is bound to explain him that he is not bound to make the confession and that, if he does so, it may be used as evidence against him. In Section 161 Cr. P C. (Old Act) the provision was similar. According to the old Cr. P. C., 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, no Magistrate shall record any such confession unless upon questioning the person making it, he has reason to believe that it was made voluntarily, so the provision of Section 161 in the old Cr. P. C. and new amended Cr. P. C. is similar.22. In Sarwan Singh Rattan Singh v. State of Punjab : AIR 1957 SC 637 , their Lordships have observed as under : "The act of recording confession under S. 164, Criminal P. C., is a very solemn act and, in discharging his duties under the said section, the Magistrate must take care to see that the requirements of Sub s. (3) of S. 164 are fully satisfied. It would of course be necessary in every case to put the questions prescribed by the High Court circulars but the questions intended to be put under sub-Sec. (3) of S. 164 should not be allowed to become a matter of a mere mechanical enquiry. No element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary. The whole object of putting questions to an accused person who others to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or proise having reference to the charge against the accused person as mentioned in S. 24, Evidence Act. Incidentally the attention of the High Court of Punjab is invited to the fact that the circulars issued by the High Court in the matter of the procedure to be followed, and questions to be put to the accused, by Magistrates recording confessions under S. 164 may be revised and suitable amendments and additions made in the said circulars in the light of similar circulars issued by the High Courts of Uttar Pradesh, Bombay and Madras.It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case before recording his confession under S. 164. However, speaking generally it would be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded."23. In (2) Static of Rajasthan v, Chhuttanlal and others : 1970 Cr. L. J. 1206, which is a case of Division Bench of this Court, it has been observed as under : "The act of recording confession is a very solemn act and in discharging duties under S. 164 the Magistrate must take care to see that the requirements of sub-s. (3) of the Section are fully satisfied. L. J. 1206, which is a case of Division Bench of this Court, it has been observed as under : "The act of recording confession is a very solemn act and in discharging duties under S. 164 the Magistrate must take care to see that the requirements of sub-s. (3) of the Section are fully satisfied. It would be necessary in every case to put questions prescribed by the High Court circular ti e object of which is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or procedure. Where the confession recorded did not appear to be voluntary nor was it properly recorded strictly in accordance with law nor did it appear to be in harmony with prosecution version it was held that no reliance could be placed upon it." 24. In Gurubaru Praja and another v. The King : AIR 1949 Orissa 67 it has been observed as under : "In recording confessions the Magistrate should bear in mind the following principles of law : (i) Full and adequate compliance with the provisions of S. 164, Criminal P. C., is imperative and its non-compliance goes to the root of the Magistrate's jurisdiction to record and reduces the statement recorded by him to a nullity. (ii) Such compliance must be undertaken in the spirit of being done as a matter of essence. (iii) Every enquiry must be made from the accused as to the custody to which he was to be consigned and treatment that he had been receiving in such custody in order to e. sure that there is no scope for doubt any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the accused's mind; in case the Magistrate discovers on such enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is asked to make his statement and should assure himself that during this time of reflection, he is completely out of the police influence. (iv) Besides the warning specifically provided for in the first part of subs (3) of S. 164, namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complicity in the offence at the trial, that is to follow, he should also, in plain terms, be assured of protection from any sort of apprehended fortune or pressure from such extraneous agents as the police or the like in case he declines to make a statement. (v) He should particularly be asked the reason why he is going to make a statement which would surely go against his self-interest in course of the trial and he should further be told, in order to remove any lurking suspicion in his mind, that even if he contrives subsequently to retract the confession, it will be evidence against him still (vi) The Magistrate who is enthused with the duty of recording confession of an accused coming from police custody or jail custody must appreciate his function in that behalf as one of a judicial officer and that he must apply his judicial mind to the task of ascertaining that the statement he is going to make is of his own accord and not on account of any influence on him. That is what is the meaning of voluntary statement within the provision of the section. (vii) 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 b: achieved by him but he should leave such material is 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." 25. In Moti v. The State of Rajasthan 1979 Cr L.R. (Raj. Suppl.) 185 , it has been observed as under : "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. In Moti v. The State of Rajasthan 1979 Cr L.R. (Raj. Suppl.) 185 , it has been observed as under : "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 161 (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. Thus in the absence of the record of the questions put to the appellant and the answer 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." 26. The case of Moti v. State of Rajasthan (supra), has been relied by our High Court in Dhuli v. State of Rajasthan : 1983 WLN (UC) 67 , In this case it has been observed as under : "It is obvious from a bare perusal of Ex. P. 4 that the Magistrate has not recorded any question which he put to the accused for ascertaining whether the confession was voluntary. Contrary to it from the endorsement it appears that the Magistrate was in the impression that all that is required to be done is to tell the accused that she is not bound to make confession and if she makes it, it may be used against her for her conviction. After explaining this Magistrate thought that he has discharged his duties for the purpose of recording the statement. After explaining this Magistrate thought that he has discharged his duties for the purpose of recording the statement. From the statement of P.W. 3 K. C. Jain it appears that the only precaution which he took was to explain her that it was not necessary for her to make a confession and if she makes it, it can be used against her. Even in the statement recorded in the Court Shri K. C. Jain, P.W. 3, has not mentioned that he put any questions and obtained any answers in order to satisfy himself whether Mst. Dhuli was making a confession voluntarily and she was not in any threat or fear."27. Keeping in view the principles laid down in the above cited cases as well as in Section 164 and 281 Cr. P. C., we have perused the statements of accused Yogesh Kumar which is Ex. P. 20. No doubt, the learned Magistrate, at the bottom of this statement has given the certificate which is marked 'G to H'. From reading statement we find that the Magistrate has not asked any questions about the fact that, from which place he has been brought here i. e. either he is coming from the police custody or the Judicial Custody. Even before recording the statement he has not put any questions which he is bound to ask as provided in Section 164 Cr. P. C. The Magistrate has, no doubt, acted in very perfunctory manner. We think he has not read over Section 164 Cr. P. C. before recording the confessional statement and he did not bother to keep in mind what precautions he has to take and what questions he has to put to the accused before recording his confessional statement. He has simply reproduced the note as contained in Sub-section (4) of Section 164 Cr. P. C. But he has failed to keep in mind the provisions as laid down in Section 281 Cr. P. C. He failed to notice that he has to record the questions and answers and then has to record the statement under Section 164 Cr. P. C. Therefore, the confessional statement under Section 164 Cr. P. C. Ex. P. 20. is not in confirmity with the provisions laid down in Section 164 Cr. P. C. and 281 Cr. P. C. and 281 Cr. P. C. Therefore, the confessional statement under Section 164 Cr. P. C. Ex. P. 20. is not in confirmity with the provisions laid down in Section 164 Cr. P. C. and 281 Cr. P. C. and 281 Cr. P. C Under such circumstances, it is very unsafe to utilise such confession against the accused.28. In our considered opinion, this confessional statement has been recorded in flagrant disregard of law. It enjoins upon the Magistrate that he shall make the memorandum of the substance of the examination of the accused and whole of such examination, including every question put to him and every answer given by him, shall be recorded in full.29. The act of recording the confession under Section 164 Cr. P. C being a solemn act, the Magistrate must take care that the requirements of sub-clause (3) of Section 164 Cr. P. C. are fully satisfied In the present case as the learned Magistrate has not recorded the confessional statement according to the provisions laid down in Section 164 Cr. P. C., we do not put any reliance on it.30. It was argued by Mr. Tibrewal that the confessional statement, Ex. P. 20, has been recorded by the learned Magistrate after administering oath to him. We have considered this argument also. Section 4 of the Oath, Act, 1969, is with regard to oaths of affirmations to be made by the witnesses, interpreters and jurors. Sub-section (2) of this section reads as follows : "Nothing in this section shall render it unlawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties." 31. Thus. according to this section 4 of the Oaths Act, the accused person while giving his statement is not to require to administer oath. During investigation Yogesh Kumar was produced before the Magistrate for his confessional statement under Section 164 Cr. P. C. For such statement no oath is to be administered to him. No doubt in the new Cr. Thus. according to this section 4 of the Oaths Act, the accused person while giving his statement is not to require to administer oath. During investigation Yogesh Kumar was produced before the Magistrate for his confessional statement under Section 164 Cr. P. C. For such statement no oath is to be administered to him. No doubt in the new Cr. P. C. the provision is that during trial if any accused wants to examine himself as a witness he can appear in the witness box and in that case the oath will be administered, but during investigation, when a confessional statement under Section 164 Cr. P. C. is being recorded no oath is to be administered to the accused.32. In the case of Karam Ilahi v. Emperor : AIR 1947 Lahore 92 , it has been observed as under : "A confession made in the course of an investigation by an offender under S. 164, Criminal P. C., comes within the ambit of S. 5, Oaths Act, and a Magistrate acts illegally in recording such a confession on solemn affirmation." 33. In State v. Suram Singh : 1976 Cr. L. J. 96 , it has been observed that a confessional statement recorded under Section 164 Cr. P. C. on solemn affirmation is inadmissible in evidence as made under compulsion of oath.34. In Philips v. State of Karnataka 1980 Cr, L. J. 171 , it has been observed that, administering oath to the accused before recording confessional statement is illegal, the statement has no evidentiary value,35. In our considered opinion, the confessional statement Ex. P.:O, which was taken after administering oath, is no statement & it has no evidentiary value. The accused while giving confessional statement under Section 164 Cr. P.C. does not require any oath to be administered. Learned Magistrate has committed this error in administering oath before recording his confessional statement. Therefore, this statement is illegal and it has no evidentiary value.36. After perusing the entire evidence and the record we are of the opinion that the entire case of the prosecution is based on the confessional statement Ex. P. 20 and the recovery of key at the instance of accused Pawan Kum L We have discussed above that the case against Pawan Kumar and Nirmal Kumar has not been established at all by the prosecution. P. 20 and the recovery of key at the instance of accused Pawan Kum L We have discussed above that the case against Pawan Kumar and Nirmal Kumar has not been established at all by the prosecution. The key which was recovered at the instance of Pawan Kumar accused has no connection with this crime of murdering Anil as the prosecution has failed to connect the key with the lock seized be them and also failed to have any relevancy so far as this crime is concerned. We have also held that the confessional statement Ex. P. 20, has no evidentiary value. It is inadmissible as it has been recorded by the learned Magistrate in disregard to the provisions of Section 64 Cr. P.C. Except this confessional statement there is no proof on record.37. It is no doubt a matter of regret that a child of about 10 years has been murdered. It is a cold blooded murder and a cruel murder. We feel sorry that such murders go unpunished. On all hypothesis and on such sentimental elements a person cannot be convicted unless a case is established against the accused beyond all reasonable doubts. It is possible that the prosecution story may be true but a long distance is to travel between 'may be true' and 'must be true'. This distance is to be covered by the prosecution. In the present case the prosecution has failed to cover that distance and failed to establish by reliable and unimpeachable evidence that the accused persons are guilty of committing the murder.38. As a result of our above discussion, all the three appeals of the accused persons are accepted. The accused persons are not found guilty of the offences under Section 302. 328/120 B and 120 13 of the Indian Penal code. The judgment of conviction passed by the learned Addl. Sessions Judge, Gangapur City, dated 25th July 1978, is set aside and all the appellants are acquitted. The appellants are on bail. Their bail bonds are cancelled, they need not surrenderAppeal accepted. *******