JUDGMENT : R. N. Thakur & L. P. N. Sahdeo, JJ.–These two appellants have been convicted under section 302/34 of the Indian Penal Code (in short "the Code") and each of them has been sentenced to undergo rigorous imprisonment for life. They have also been convicted under section 201 of the Code and sentenced to undergo rigorous imprisonment for three years each. Appellant Suraj Munda has been further convicted under section 323 of the Code and sentenced to undergo rigorous imprisonment for six months. All the sentences have been ORDER :ed to run concurrently. 2. The prosecution case, as narrated by the informant, Lalku Mahto (P. W. 2), is that on 24.1.1980 in the evening the informant had gone to the house of Mahanti for dinner. After dinner he along with Bihari, Jainath and Somra was returning. Mahanti came up to road to see them off. On the road these two appellants along with one Roket were there from before. The deceased Bihari asked the appellant Surja Munda, to oblige him with drink popularly called as Haria. Surja Munda replied that be had no money. Bihari (the deceased) then said that he had money. He would pay the price thereof. Therefore, he requested them to go for drink. Thereafter, the informant, Bihari (the deceased), Jainath, Somra, these two appellants and accused Roket went to the house of Fakira and there they took Haria. Thereafter, they all went to the house of village chaukidar to attend a marriage function. At the house of the chaukidar children were playing and dancing. These persons also participated in that dance. At that very time appellant Surja Munda went away from that place thereafter informant and his companions left for their houses. Mahanti again came along with theinformant and his party up to the road to see them off. Mahanti returned and the informant and his associates proceeded ahead. Appellant Surja Munda soon thereafter came and said "Mahanti Bula raha hai". Thereafter, the deceased, Bihari, and the informant returned with appellant Surja Munda. At that very time appellant James is alleged to have assaulted the deceased, Bihari, with Bhujali on his face. The informant protested on which appellant Surja hit the informant with Bhujali on his back. On being assaulted the informant fled away and due to fear conducted himself near the bank of a river. At that very time appellant James is alleged to have assaulted the deceased, Bihari, with Bhujali on his face. The informant protested on which appellant Surja hit the informant with Bhujali on his back. On being assaulted the informant fled away and due to fear conducted himself near the bank of a river. In the next morning he went to the village and to the house of Mohan who is brother of deceased Bihari. He enquired from Mohan about Bihari. Mohan told him that Bihari had not returned and, thereafter, he told about the occurrence to Mohan, Then again he came back to village Nagri along with Mohan and others. On the way the appellant, Surja Munda, seeing the informant and his companions tried to run away but he was caught hold of. After his arrest appellant Surja Munda told them that he along with James Toppo, and Roket (acquitted accused) had killed the deceased Bihari and had concealed the dead body. This appellant took the informant and his companions to the place where the dead body was kept. Thereafter, Surja Munda was taken to the Police Station and P. W. 2 (the informant) lodged a case on the basis of which a regular case was instituted against these two appellants and accused Roket. 3. After investigation charge-sheet was submitted against these two appellants and accused Roket. All the three accused were put on trial where 10 witnesses were examined on behalf of the prosecution. Appellants denied the allegation and pleaded their innocence. Their further case appears to be that they have been falsely implicated in this case. After considering the entire evidence the learned trying court convicted these two appellants as stated above and acquitted the accused, Roket. 4. Learned counsel appearing for the appellants has argued that the prosecution has not brought correct picture of the case in the court. He has further argued that the confession alleged to have been made by appellant Surja Munda is purely a myth and the story of recovery of the dead body at the instance of appellant Surja Munda is also false. According to him no reliance should be placed on the evidence of P. W. 2. 5. In this case at the very outset it must be stated that no witness has come to say about the actual murder. According to him no reliance should be placed on the evidence of P. W. 2. 5. In this case at the very outset it must be stated that no witness has come to say about the actual murder. P. W. 2 bas claimed himself to be part witness of the assault. The prosecution has tried to rely on the so called confession made by appellant Surja Munda leading to the recovery of the dead body of the deceased at his instance. 6. Out of the 10 witnesses P. Ws. 1, 4, 5 and 6 have stated about the extra judicial confession of the appellant Surja Munda and leading to the discovery of the dead body of the deceased. P. W. 9 and 10 are formal witnesses. The investigating officer of the case has not been examined in this case. P. W. 8 is the doctor who conducted the post mortem examination on the dead body of the deceased. 7. Now let us consider the evidence of informant (P. W. 2) first. According to his evidence in court appellant Surja Munda confessed his guilt and he (appellant Surja) led to the discovery of the dead body. P. W. 8 is the doctor who conducted the post mortem examination on the dead body of the deceased. 7. Now let us consider the evidence of informant (P. W. 2) first. According to his evidence in court appellant Surja Munda confessed his guilt and he (appellant Surja) led to the discovery of the dead body. The first information report contains his earliest statement about the occurrence wherein he has said : ^^ge Hkkx dj [ksr esa fNi x,A vkt lqcg xk¡o tkdj lqdqj gq, x, rks tkus fd fcgkjh egrks ?kj ugh igqpk gS rks mij ds ?kVuk mlds HkkbZ eksgu egrks dks crk fn, fQj xk¡o ds yM+ds oks eqf[k;k th ds lkFk uxjh xk¡o es fcgkjh egrks dks [kkstus x,A djhc 7 cts lqjtk dks ?kj ij ugh tkus ls jksM rjQ ykSVrs le; ge yksxks dks ns[k dj lqjtk Hkkxus yxk rks mldks nkSM+ dj tSukFk egrks oks fcgkjh dk HkkbZ eksgu egrks idMs+ oks iqNs rks og igys lc dqN budkj fd;k ij eqf[k;k th oks vU; xk¡o okyks }kjk feyk dj iqNus ij og rFkk tSus oks jksdsV feyk dj fcgkjh egrks dks ekj fn;s cksykA mlds ¼fcgkjh½ ds yk’k dks jksdsV vkSj tSus f?kfl;krs gq, iDdh lM+d ds iwjc rjQ ls tkrs Fks cksyk rks [kwu dk fxjk nkx oks f?klhvkus dk nkx ika+trs ikatrs fcgkjh dh t[e Hkjk yk’k [ksr esa ik;s tks x<k+ es vkjh fdukjs j[kk FkkA^^ Therefore, according to the fardbeyan, the earliest statement, appellant Surja Munda, at the first instance, did not confess his guilt but on persuation by the Mukhiya and villagers he subsequently confessed. In the first information report it is not at all mentioned that this appellant took the informant and other villagers to the place where the dead body was lying rather from the first information report it will appear that following the blood stains and dragging marks they could recover the dead body. From the evidence of this witness (P. W. 2) it is clear that in his presence the deceased was not killed. From the evidence of this witness (P. W. 2) it is clear that in his presence the deceased was not killed. It is further stated that when the Mukhiya and others came this appellant Surja Munda was arrested while sitting by the side of Road and then he confessed to have killed the deceased along with the two other accused persons but P. W. 1, who is a Mukhiya, says in his evidence in court that on 25.1.1980 in the morning he was at his house. This P. W. 2 came to him along with 5 to 6 boys. Lalku Mahto told him that these two appellants and accused Roket had killed the deceased and thereafter he (P. W. 1) went to village Nagri along with P.Ws. 1 and 6. While they were returning they saw this appellant Surja Munda on the Rasta and when he was trying to run away he was arrested. Then he confessed his guilt. Therefore, according to the evidence of P. W. 2 and other witnesses he (informant) came to know about the death of the deceased on the confession of Surja Munda himself, but how could he (informant) then say to P.Ws.1 and 6 before the arrest of this appellant Surja Munda that these two appellants along with accused Roket had killed the deceased? There is another circumstance which also goes against the evidence of P. W. 2 i. e. his conduct soon after the occurrence. According to his own evidence James assaulted the deceased in his presence. On protest he (P. W. 2) was assaulted by appellant Surja Munda and thereafter he (P. W. 2) ran away and concealed himself by the side of a river through out the night and in the morning he went to the house of Bihari (deceased) to make enquiry. It does not look probable. When he and Bihari were assaulted and he could succeed in seaping out, why he did not go to his own house or to the house of Bihari in the night itself. It looks quite strange that he remained concealing himself through out the night near the river. There is another circumstance also. It does not look probable. When he and Bihari were assaulted and he could succeed in seaping out, why he did not go to his own house or to the house of Bihari in the night itself. It looks quite strange that he remained concealing himself through out the night near the river. There is another circumstance also. According to the evidence of P.W. 2 himself the deceased had taken his drink and dinner at the house of Mahanti and while returning from the house of Mahanti after drink and dinner he along with others met the appellants on the road. It was the deceased himself who asked appellant Surja Munda to supply him with drink. The appellant showed his inability in absence of money and then the deceased offered himself to get them drunk and thereafter they all took the drink and the deceased paid the amount. In that circumstance it does not look reasonable that for no fault of the deceased the appellants would kill him. Nothing has been said to indicate that these appellants had any grievance against the deceased from before or the deceased had done anything which might have provoked these appellants to kill him. 8. Besides these facts the extra judicial confession alleged to have been made by appellant Surja Munda does not appear to be reliable; firstly it is unwritten and it has been retracted. There is one circumstance which goes to create some doubt against the extra judicial confession. As stated above according to P. W. 2 himself after the extra judicial confession of the appellant Surja Munda people could come to know that the deceased was killed by these appellants, but according to the evidence of other witnesses including P. W. 1 before the arrest of appellant Surja Munda the informant told them that these appellants had killed the deceased. How could he say so before confession ? 9. There is another factor against the confession. P. W. 4 has stated in his evidence in paragraph 4 that at the first instance appellant Surja Munda did not confess. Thereafter, villagers assaulted Surja Munda with fists and slaps. About 6 to 7 persons had assaulted him. Even the brother of the deceased Mohan had assaulted him and, thereafter, he confessed the guilt. Therefore, from his evidence it appears that, if at all, this appellant made confession, he did under duress. Thereafter, villagers assaulted Surja Munda with fists and slaps. About 6 to 7 persons had assaulted him. Even the brother of the deceased Mohan had assaulted him and, thereafter, he confessed the guilt. Therefore, from his evidence it appears that, if at all, this appellant made confession, he did under duress. As stated above even according to the first information report at first instance this appellant did not make any confession but on persuation of the Mukhiya and others he confessed the guilt. Therefore, the so-called extra judicial confession cannot be said to be voluntary. 10. So far recovery of the dead body at the instance of appellant Surja Munda is concerned, this story also appears to be doubtful for the reasons stated above specially when it is not mentioned in the earliest statement of P. W. 2 i. e. the first information report. No doctor has been examined to prove that there was any injury on the person of the informant. 11. There is nothing on the record to show that the stains found on the shirt of the deceased were of human blood. 12. In that view of the matter the prosecution cannot be said to have proved the charges against the appellants beyond all reasonable doubts. Accordingly, the appeal is allowed and the ORDER :of convictions and sentences passed against these appellants is set aside. They are discharged from the liability of bail bonds. Appeal allowed.