Judgment P.S.Mishra and B.N.Sinha JJ. 1. The appellants have been convicted under sections 302/34 as also under sec. 364 of the Indian Penal Code by the judgment and orders of the Learned Fourth Additional Sessions Judge. Rohtas at Sasaram in Sessions Trial No. 150-82 but they have preferred 80 far two criminal appeals. Since the two appeals, however, arise from a common judgment they have been heard together and are being disposed of by a common judgment. 2. It started on 20-1-1981, according to the prosecution, when the appellants came to the house of Ambika Prasad (the victim) and on the pretext of going to Dehri-on-sone they took him away in the after noon and while leaving his house Ambika told his brother that he would be returning from Dehri-onsone in the evening. He, however, did not return until the following day. P.W. 15, the informant who is the brother of Ambika along with his relations, namely Ramta Prasad (P.W. 8) and Bajrangi started searching Ambika Prasad and made inquiries from the appellants who it is said, informed that Ambika had already left for his home when they last saw him. Ambika however, could not be found out until on 25-11-81, when P.W. 15 learnt that a dead body was lying in the bed of Durgawati River. Accompanied by P.W. 15 went to the said place and found a dead body without its head lying in the bed of the river. They could identify the dead body as that of Ambika and accordingly lodged report with the police on 26-11-81. On 30-11-81 the appellants surrendered in Court and remanded to police custody for interrogation. P.W. 12 the investigating officer found in the confessional statement of the appellant Sheo Bachan that after the murder the head had been separated from the trunk and concealed in a pump set in a field near the river Durgawati. At the confession of appellant Sheo Bachan the head was recovered. 3. The Learned Sessions Judge has set out almost in full the confessional statement of appellant Sheo Bachan in which he disclosed how the victim was enticed away and kept with the accused persons and how with the help of other accused the appellants got him killed. His head was separated from the trunk, the trunk thrown in the river and the head concealed in the pump set. His head was separated from the trunk, the trunk thrown in the river and the head concealed in the pump set. Other accused persons were also put on trial but they have been acquitted by the learned Sessions Judge. 4. Sheo Bachan was married in the village Kajana, police station Rafiq Ganj, District Aurangabad, that is to say, the village of the victim Ambika, who had been visiting Sheo Bachans in-laws, which was not liked by Sheo Bachan and he resented Ambikas visit to his in-laws family. It was said that Ambika had some illicit relationship with Sheo Bachans sister-in-law. 5. There is no ocular evidence about the murder, but the murder has not been questioned before us by the learned counsel for the appellants. There is evidence on the record to show that the trunk and the head discovered respectively on 25-11-81 and 2-12-81 were that of Ambika. The dead body was identified with a tattoo mark of a scorpion on the right arm and Sihula marks on the chest by P.W. is as also by P.W. 8. There was some delay in the autopsy and nothing specific could be found as to the cause of death by Dr. Jai Prakash Bihari P.W. 11 but he opined that the death was due to the cutting and removal of neck and head by a sharp cutting instrument. There should be, however, little doubt that Ambika was done to death and he met his death due to cutting of his neck by a sharp cutting instrument. It is not necessary to dilate further to investigate how Ambika was murdered and how his homicidal death was committed. When the appellants were suspected and when they surrendered they were taken in custody. In this case there are circumstances which, if proved, go to show that appellant Sheo Bachan had motive to kill, that the appellants had the opportunity to kill, that they were last seen with the victim, and that they prevaricated and misled P.Ws. When the appellants were suspected and when they surrendered they were taken in custody. In this case there are circumstances which, if proved, go to show that appellant Sheo Bachan had motive to kill, that the appellants had the opportunity to kill, that they were last seen with the victim, and that they prevaricated and misled P.Ws. 8 and 15 when they made enquiries from them about Ambika on 21-11-81 or thereafter and the fact that Sheo Bachan had the knowledge of Ambika having been killed, his head concealed in a pump set and his clothes and other articles destroyed on the bank of river Durgawati as on the basis of his confessional statement the head was recovered from the pumping set and the place was discovered where Ambikas clothes etc. had been disposed of by the culprits. These circumstances if accepted complete the chain and accordingly point out that none but Sheo Bachan and his companion appellant, Pram Hans, had killed Ambika. The learned Sessions Judge has, accordingly, convicted the appellants for the offence of murder with the aid of lection 34 of the Indian Penal Code. 6. The prosecution has however, led no evidence of motive except a mention in the deposition of P.W. 7, who has said that he had heard that appellant. Sheo Bachan resented Ambikas visiting his in-laws. A full description about the alleged illicit relationship of Ambika with the sister-in-law of appellant Sheo Bachan Mahto is available in the confessional statement (Ext. 8) of Sheo Bachan. This however, is not admissible in evidence, as it was recorded by the police in course of the investigation. In the First Information Report P.W. 15 has said that he learnt about the discovery of a dead body from river Durgawati on 25-11-81. In his deposition in the Court, however, he has stated that when he was returning with P.W. 8 after meeting appellant Sheo Bachan at his house, he heard rumours at the railway station about the discovery of the dead body and went to see the dead body thereafter and after seeing the same he Identified the dead body as that of Ambika. He returned to the police station, informed the officer-in-charge about the discovery of the dead body of Ambika and the following morning he went to the river again when inquest report was prepared. He returned to the police station, informed the officer-in-charge about the discovery of the dead body of Ambika and the following morning he went to the river again when inquest report was prepared. About his visiting the house of appellant Sheo Bachan, he has deposed that on Sunday he along with P.W. 8 and Bajrangi Prasad reached Sheo Bachans house at about 12 noon and inquired about Ambika, when he told them that Ambika had returned from Dehri-on-son to his village. They went to the railway station where they learnt about the discovery of the dead body in the bed of the river. P.W. 8 has deposed that they went to Sheo Bachans house and when they learnt from him that Ambika had returned home they also returned back. According to their evidence, therefore, they had met appellants Sheo Bachan one Sunday, that is to say, 22/23-11-81 and on that day they had come to know about the discovery of the dead body in the river. 7. Both P.Ws. 8 and 15 have given conflicting version about their reaching at the house of Sheo Bachan and inquired from him about Ambika. According to P.W. 8 they had travelled by a bus and reached Ghat on the village of appellant Sheo Bachan, at about 6-30 p. m. They had travelled from the bus stop to the house of appellant Sheo Bachan on foot and stayed with him for about 2/3 minutes and inquired about Ambika. According to P.W. 15 they had travelled through railway and at Pusauli Railway Station they had sent for Sheo Bachan from his house and inquired about Ambika from him. 8. The pre-varication of appellant Sheo Bachan which is a relevant circumstance to connect the appellants with the murder has thus been weakened by the conflicting statements made by P.Ws. 8 and 15, who although have said that they had travelled together and met Sheo Bachan and inquired from him about Ambika, are at variance with each other about how they went, when they met and where they met Sheo Bachan. Once this part of the prosecution case is found not fully supported by legal evidence and/or the evidence is found to be shaky, the accused can legitimately suggest that they had said nothing to P. Ws. 8 and 15 from which any prevarication can be found out. Once this part of the prosecution case is found not fully supported by legal evidence and/or the evidence is found to be shaky, the accused can legitimately suggest that they had said nothing to P. Ws. 8 and 15 from which any prevarication can be found out. There are strong reasons, however to be live that Sheo Bachan knew about the death of Ambika. Whether he was a party to the homicide or not. However, has to be inferred from attending facts including discovery of the head from the pumping set on Sheo Bachans confession. As provided in sec. 25 of the Evidence Act no confessions made to a police officer, shall be proved as against a person accused of any offence. Sec.27, however, is an exception providing that when any fact as deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not; as relates distinctly to the fact there by discovered, may be proved. Discovery envisaged in sec. 27 of the Evidence Act is that of the fact only and not of discovered fact. The discovery of the head on the basis of the statement of Sheo Bachan before the police shall, therefore, make the statement of Sheo Bachan, that he head had been concealed in the Pumping set, admissible. This statement is a clue to the circumstance that Sheo Bachan knew, when he confessed before the police about the head having been concealed that Ambika had already been killed. Difficulty, however, in accepting- this, in the absence of any corroboration as a conclusive circumstance of Sheo Bachan and/or any of his associates committing the murder is that the fact that knowledge of murder of Ambika could come to Sheo Bachan not only from being his one of the participants in the murder but also from same sources after the murder was committed. This knowledge of concealment of the head of Ambika in the Pumping set alone will not be sufficient for holding that Sheo Bachan could know about the head being concealed in the Pumping set only on his being a participant in the murder. 9. Besides the evidence of P.Ws. This knowledge of concealment of the head of Ambika in the Pumping set alone will not be sufficient for holding that Sheo Bachan could know about the head being concealed in the Pumping set only on his being a participant in the murder. 9. Besides the evidence of P.Ws. 8 and 15 there are other witnesses also who have deposed that the appellants had come on the alleged date of occurrence at the house of Ambika and Ambika had gone with them saying that they were going to Dehri-on-sone. From this it is proved that the appellants were with Ambika and were last seen with Ambika until the knowledge that he was missing dawned upon P.W. 15 and other members of his family and his friends who started searching for him. This will be enough to infer that the appellants had the opportunity to kill. This is a case therefore, in which there is evidence to establish two circumstances, namely (1) that the appellants had the opportunity to kill, and (2) that at least one of the appellants knew on 2-12-81 that Ambika had been killed. On the facts and evidence, which we have noticed above, it will not be possible to hold that the appellants had motive to kill and although they had the opportunity to kill and at least one of them knew that Ambika had been killed, on the basis of the evidence indicated above, it will not be safe to hold that prevarication of the appellants is a pointer to indicate so that they knew about the death. This is a case in our view which remains in the realm of suspicion in all reasonable probabilities of the murder having been committed by some one other than the appellants. The appellants for the said reason are entitled to benefit of doubt. 10. In the result the two appeals are allowed, conviction of all the appellants under sec. 302/34 as also 364 of the Indian Penal Code are set aside and they are acquitted of the charges levelled against them and accordingly, they are discharged of the liability of their bail bonds.