Judgment S. H. S. Abidi, J. 1. As both the appeals have been heard together both are being disposed of by this common judgment. 2. These/appeals have been filed against the judgment and order dated 4-1-1984 passed by Sbri Gauti Shanker Choubey, 1st Additional Sessions judge, Gaya in Sessions Trial No, 30//10 of 1983 by which the appellants have been convicted under Sec.302 resd with Sec.34 of the Indian penal Code and sentenced to undergo rigorous imprisonment for lite. 3. The case of the prosecution is that on the night of 16/17th of March, 1983, deceased Ram Prevesh Singh of village Rasalpur. P. S. Gaya Mufassil was sleeping over brick kiln towards north of his village. His nephew Rana eqbal Singh (D. W.5) and a labourer Bishwanath Paswan were busy in putting coal in the fire place of the brick kiln at some distance towards north-cast. Musafir Paswan and Chalitar Paswan, the other labourers were also sleeping over the same brick kiln distance from Ram Pravesh Singh. At about 1 A. M. (nere was some rustle of dry leaves towards west which attracted the attention of Ram Eqbal Singh. Ram Eqbal Singh make enquiries whereupon reply came that that they are pathera (manufacturers of bricks ). Two persons are said to have climed over the brick kiln where Ram Pravesh singh was sleeping. One of their, has a torch and the other fired from his gun putting the barrel on the chest of Ram Pravesh Singh on account of which, he died then and there. While the culprits were making good their escape, they threw a bomb which exploded. They made good their escape in darkness. The explosion attracted the attentions of Holi-singing people in the village Including Upendra Singh (P. W.10) and Surendra Singh who came running When the people reached the victim, they found him dead on the brick kiln. The victim was sleeping thereby spreading straws covered with a chadar. Ram Eqbal Singh is said to have given out the version about the occurrence to the people. He also went to the police station which was at a distance of 4 kms. and lodged the report against unknown persons on 17-3-1983 (Ext.3) upon which the investigation was started. The inquest report was prepared, and the dead body was sent for post mortem examination. 4. He also went to the police station which was at a distance of 4 kms. and lodged the report against unknown persons on 17-3-1983 (Ext.3) upon which the investigation was started. The inquest report was prepared, and the dead body was sent for post mortem examination. 4. On the next day, when the cremation of the dead body was finished and when members of the family and some villagers were sitting at the house of the victim, at about 10 P. M. some villagers came and informed that they had learnt that appellant Abhay Singh of their village has sustained some burn injuries on his person which created suspicion of his involvement in the said bomb explosion matter. Some villagers went to the house of Abhay Singh and called him out, it was found that there was some burn injuries on his person. On the asking of the villagers that as to now he got these injuries he confessed in the presence of the villagers that when he was sleeping, three appellants case asked him to accompany. Than they all went to the place of the occurrence and on enquiry as who are they, they replied that they are patberas. After that, appellant Nand Kishore Singh lighted the torch in the light of which, appellant Sheolal Tatwa fired for his gun and then Nank kishore Singh threw a bomb on the brick kiln causing injuries to the victim. As he was also standing near then, he got injuries also. Thereafter, according to him, they ran towards west and then south. He returned to his village with the burn injuries while the other three persons went away towards further south-west. On getting these informations the villagers went to search Sbeolal Tantwa at his house but the nearby villagers told them that he had left his village with his family in the morning. Then the villagers went to the house of Nand Kishore Siogh and Wakil Singh where they were not found. But at Kutti, they were found and so, they were caught and brought to the house of the deceased where Abhay Singh had been brought from his house also. One Niranjan Singt (not examined) who was recorded the confessional statement of Abhay Singh (Ext.1), who implicated him and other accused persons. But at Kutti, they were found and so, they were caught and brought to the house of the deceased where Abhay Singh had been brought from his house also. One Niranjan Singt (not examined) who was recorded the confessional statement of Abhay Singh (Ext.1), who implicated him and other accused persons. Then the villagers took all of them to Gaya Mufassil police Station on the same night along with the confessional statement. After getting the post mortem report (Ext.4) done by Dr. Mithlesh Kumar sinha (P. W.6) who had done the autopsy ot the deceased and atter completing the investigation, the charge sheet was submitted by Laxman Dubey (P. W.7 ). 5. The accused persons, in their defence, denied the prosecution case and alleged that they have been falsely implicated in this case on account of enmity in and village polities. From the suggestion it appears that the occurrence had taken place else where murder committed by some unknown persons and the dead body of the deceased had been brought to falsely implicate the accused persons. No witness, in defence, has been examined by the accused persons, 6. The prosecution, in support of its case, produced ten witnesses, PWs 1, 2 and 3 Rajendra Singh, Oyas Singh, and Gulab Singh have deposed about the extra judicial confession (Ext.1) by appellant Abhay Singh. Dr. Badre ahmad (PW 4) had examined the accused Abhay Singh. On 18-3-1983 at about 1 P. M. the doctor had found five burn injuries being simple in nature and caused by explosive materials within 36 hours. His report is Ext.2. PW 5 Ram Ekbal Singh is the informant and nephew of the victim who has said about the occurrence though he did not identified any order of the accused persons. PW 6 is Dr. Mithilesh Kumar Sinha who had conducted the post mortem examination and submitted his report (Ext.1) PW 7, lakshan Dubey is the Investigating Officer in this case. PW 8 is bishwanath Paswan, another eye witness PWs9 and 10 Musafir Paswan aad Upendra Singh are two other hearsay witnesses who had came after the occurrence and told about the same. 7. The learned trial court, after considering the entire material on the the record, has convicted and sentenced all the appellants as said above. 8. PW 8 is bishwanath Paswan, another eye witness PWs9 and 10 Musafir Paswan aad Upendra Singh are two other hearsay witnesses who had came after the occurrence and told about the same. 7. The learned trial court, after considering the entire material on the the record, has convicted and sentenced all the appellants as said above. 8. The learned counsel for the appellants has urged that the order of conviction passed against the appellants is based only on the extra judicial confession of appellant Abhay Singh which is not to be relied upon in this case in these circumstances. Niranjan Singh who is said to have recorded the extra judicial confession, has not been examined nor the confession of accused Abhay Singh has been got recorded under Sec.164 of the Cr. P. C. before the learned Magistrate. It is also said that the appellants are resident of the scurd village and so, the informant could have identified the accused persons by feature in the darkness when there was light of the chimney and further they could also identify the accused by voice The informant has not identified any of the appellants and so the report is against unknown persons. The last argument was that the accusation against the accused is based on enmity and village politics. To appreciate these contentious, evidence will have scrutinized with care and caution. 9. Ram Ekbal Singh. PW 5, the informant in this case, who is also the nephew of the victim, has said that he was putting coal in the brick kiln along with his labourers and the victim, was sleeping there. He heard sound of resulting whereupon he made inquiries and the reply came that they were patheras. Then he aaw two persons climbing over the brick kiln near the place where the victim was sleeping and one of them lit the torch and other fired from his gun at the victim There was an explosion of bomb causing smoke and then the accused persons ran towards west. He and the labourers began to cry and when he went to Ram Pravesh Singh, they found him dead with bleeding and injuries on his chest. Alarm was raised which attracted the villagers and after that he went to the police station and lodged the report there. He has said the same thing in his cross-examination. He and the labourers began to cry and when he went to Ram Pravesh Singh, they found him dead with bleeding and injuries on his chest. Alarm was raised which attracted the villagers and after that he went to the police station and lodged the report there. He has said the same thing in his cross-examination. He has also said that he did not identified any of the accused there either by their voice or by their physical features that is why tha repon against unknown persons has been lodged, The next eye witness is Bishwanath Paswan (PW 8) who too has said the same thing as PW 5. He his also not identified any of the accused persons on the spot. From the evidence of these two witnesses, it appears that the occurrence has taken place at the place of occurrence in which bomb injuries were received by the victim. Post Mortem examination was done by Dr. Mithilesh Kumar Sinha who too found bomb injuries which support the story of injury by bomb by the victim. The investigating Officer has said about the place of the occurrence and his objective findings also support the versions. PWs 9 and 10, Musafir paswan and Upendra Singh who to had reached the place of the occurrence, have given out about the occurrence. Their evidence also is quite sufficient to corroborate the prosecution version on the basis of immediate disclosure to them. 10. Two things are there to connect the appellants with the offence. One is motive and the other is confession statement of Abhay Singh. As regards motive, PWs 8 and 9 have said that a few days before the occurrence, these four appellants had gone to the brick kiln of the deceased and they wanted to bake their potatos which was objected by the deceased upon which there was an altercation between the deceased and the accused and appellant vakil Singh had given out threat to the deceased These witnesses have said that they had given out this matter to the police under bection 161 of the Cr. P. C , but the same does not appear to have been given out and has been said only in the court There is no report about this threat nor the Investigating Officer, if given out under Sec.161 Cr. P. C , but the same does not appear to have been given out and has been said only in the court There is no report about this threat nor the Investigating Officer, if given out under Sec.161 Cr. P. C. to him in this behalf, has trial to investigate the matter of motive from the witnesses. Even PW 5 has expressed his ignorance about this motive. In there circumstances, motive is not made out to the accused to commit this offence. 11. The only evidence to fasten the guilt to the accused remains the extra judicial confession said to have been given by Abhay Singh. The confessional statement is on the record contained in the application (Ext.1) addressed to the Officer-in-charge of Gaya Mafassil police station and tent by Rajendra singh and Gulab Singh (PWs 1 and 3 ). Niranjan Singh Yamuna Singh and jamadar Singh (all not examined ). This application says that on the wight between 16/17th of March, 1983, Ram Pravesh Singh had been murdered on his brick kiln in sleeping. The villagers were on the look out of the murderers. On the night of 17-3-1983 at about 10 p. m. they got information that appellant Abhay Singh had received burn injuries in his stomach, chest and shoulder and he was in his house upon which they went to the house of Abhay singh. On repeated askings he was not opening his door but when threatened to break open the door, he came out. When enquired about his injuries on his person, he gave but that Ram Pravesh Singh has been killed by appellant sheo Lal Tatwa, Vakil Singh and Nand Kishore Singh and when he had threw the bomb, her received injuries from its explosion and then he concealed himself in his house. On inquiry about the full details, he said that on theds of the occurrence at about 12, he was sleeping at the kutia of the village where the aforesaid appellants came and awoke him and asked to accompany them for some urgent work. As they were his friends, he accompanied them and when they reached near the brick kiln (bhattha) of the victim, Ram ekbal Singh nephew of the victim and his labourers inquired as to who are they upon which Vakil Singh said that they are patheras and saying so. As they were his friends, he accompanied them and when they reached near the brick kiln (bhattha) of the victim, Ram ekbal Singh nephew of the victim and his labourers inquired as to who are they upon which Vakil Singh said that they are patheras and saying so. appellant sheo Lal Tantwa and Nand Kishore Singh climbed up the brick kiln. Nand kishore Singh lighted his toruh and Vakil Singh who was behind them, on his asking Sheo Lal Tatwa fired from his small gun on Ram Pravesh Singh and then Sheo Lal Tatwa and Nank Kishore Singh got down from bhatha. In the meantime. Vakil Singh exploded the bomb at the bhathan where he was standing there. All the four persons ran towards west. As he got bomb injuries, he cause to his house and concealed himself. He said that about the injuries on bis person, he gave cut version to his family members that he has such injuries by fire. Earlier than this occurrence, about 8 or 10 days back, Sheo Lal Tatwa, Nand Kishore Singh and Vakil Singh had gone to the bhatha for baking potatos where there was alteration and abuses between the deceased and Vakil Singh. The victim had threatened to shoot out if they will come again for baking and doing gundagardi. Vakil Singh had also given out a threat that why, the four appellants have killed Ram prevesh Singh. After that, the applicants of Ext.1, went in search of Sheo lal Tatwa and Nandk Kishore Singh who were found sitting near the Kutia towards east of the village. During their apprehension the also got injuries. It was learnt that Sheo Lal Tatwa had gone with his family from the village in the night, thats why the appellants had been apprehended. 12. The application (Ext.1) by the persons addressed to the Officer in charge containing the admission along with Abhay Singh and two other appellants were taken to police station. After that they were medically examined by Dr. 12. The application (Ext.1) by the persons addressed to the Officer in charge containing the admission along with Abhay Singh and two other appellants were taken to police station. After that they were medically examined by Dr. Badre Ahmad (PW 4) who had found the injuries on the person of Abhay Singh on 18-3-1983 at 1 a. m. there were all burn injuries over abdomen, over left hand extending to the iower part of the back of the left side from elbow to the fingers and back of arms, right thigh below right elbow and on the laft thingh and all the injuries were charred. The doctor opined that the injuries were of within 36 hours and were simple in nature. The doctor had proved the injury report (Ext.2 ). In cross-examination, he has said that the injuries nos.1 and 2 could be caused by single explosion and fire. He did not find any foreign substance such as metalic glass etc. For there injuries, the accused persons have said that the injuries have been caused by fire or burn. 13. Appellant Abhay Singh, in his statement under Sec.213 of the Cr. P C. has said that he was sleeping in his house, that no statement has been given by his and no statement was recorded by Niranjan Singh, lie replied to the question that the witnesses and the doctors had found injuries on his person, that no such injuries had been found. No doubt, there is denial and there is no defence witness to challenge but the fact remains that appellant Abhay Singh had been examined by PW 4 on account of receiving injuries. The presence of the appellant on account of his receiving injuries may be circumstance against the accused but not a clinching evidence, to hold that he was the person who had received the injuries in the said occurrence in any manner. In the case of Khushaba Maruti Shelke V/s. State of Maharashtra, air 1973 SC 2474 : 1973 Cri. LJ 1607, where the appellant was seen carrying a gun and cartridges in the village, he tired from his gun, he sought shelter in the house at about mid-night after the explosion of the handgrenade and that he had abrasions on his person at the time of his arrest and his underwear was found to be stained with blood. LJ 1607, where the appellant was seen carrying a gun and cartridges in the village, he tired from his gun, he sought shelter in the house at about mid-night after the explosion of the handgrenade and that he had abrasions on his person at the time of his arrest and his underwear was found to be stained with blood. The Supreme Court, in the, circumstances, opined that the circumstances taking singly or cumulatively do not go to show that it was he who exploded the hand-grenade. The evidence was that the appellant was accompanied by four other persons out of whom some have been acquitted. At page 2478 in paragraph 12 it was held "there is nothing to rule out the possibility of the hand-grenade having been exploded not by the appellant but by one ot his companions. The fact that the appellant was absconder in two earlier cases would not necessarily show that it was the appellant who exploded the hand-grenade and not one of his companions. For even if, the appellant was interested in preventing apprehausion and migh have for that object exploded the hand-grenade, it is equally possible that the explosion of the hand-grenade might have been the work of one of the companions of the appellant with a view to prevent the apprehension of the appellant and facilitate his escape. The presence of abrasion on the person of the appellant or of the blood stains on his underwear would not also show that il was the appellant and not one of his companions who had exploded the hand-grenade". 14. As regards the confession, a confession under the Evidence Act cacnotbe held to mean a statement of an accused suggesting that he committed the crime. Confession must be either admitting the commission of an offence or admitting such fact which constitute the offence. The Privy council in the case of Narayana Swamy V/s. The Emperor, (1939-Privy Council 47) at page 52 has said "no statement with contains self exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which is true would negative the offence alleged to be confessed However, a confession must either admit in terms the offence, or at any rate substantially all the facts which coustitute the offence. An admission ot a gravety incriminating fact, even a conclusive incriminating fact is not by itself a confession e. g. , an admission that the accused is the owner of and was in recent possession of the knife or rivolver which caused a death with no explanation of any other mans possession". "the definition is not contained in the Evidence Act, 1872 and in that case it would not be consistent with the natural use of language to construe confession as a statement by an accused suggesting the inference that he committed the crime". The Supreme Court, in the cases of Palvinder Kaur V/s. State of Punjab, air 1952 SC 354 at page 357, State of U. P. V/s. Deoman Upadhyay, AIR 1960 sc 1125 at page 1129, Aghnoo Nagesia V/s. The State of Bihar reported in air 1066 SC 119 at page 123 by quoted with the approval these observations of Lord Atkin. The Supreme Court, dealing with the law of confession, in the case of Aghnoo Nagesia (Supra) has observed at page 123 in paragraphs 12, 13 and 14 as follows t "shortly put, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be confessed. If admission of an accused is to bo used against him, the whole of it should be tendered in evidence and it apart of the admission is exculpatory and part, inculpatory, the prosecution is not at liberty to use any evidence of the inculpatory part only. " "13. "now, a confession may consist of several part and may reveal not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a known confessional statement. If the confession is tainted the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a known confessional statement. Each part discloses some incriminating fact, i. e. , some fact which by itself or along with other admitted or proved facts suggests the inference with the accused committed the crime, and though each part taken singly may not amount to a confession each of the being part of a confessional statement partakes of the character of a confession. If a statement contains a admission ot an offence, not only that admission but also, every other admission of an incriminating fact contained in the statement, is part of the confession. " 14. "if proof of the confession is included by any provision of law such as Sec.24, Sec.25 and Sec.26 of the Evidence act, the entire confessional statement in all its parts including the admissions of minor incriminating facts, must also be excluded, unless proof of it is permitted by some other section such as section 27 of the Evidence Act. Little substance and content would be left in Sections 24, 25 and 26 if proof of admission or incriminating facts in a confessional statement is permitted. " in the case of Ram Singh V/s. State of U. P. reported in AIR 1967 SC 152 at page 154 has observed in para 14 that "extra-judicial confession are not usually considered with favour to that does not mean that such an confession coming from a person who has no reason to state falsely and to whom it is made in circumstances which tend to support his statement, should not be believed. " Again in the case of Maghar Singh V/s. State of Punjab, 1975 SC 1320, has held at page 1323 in para 5 as follows t "the evidence furnished by extra-judicial confession made by the accused to witness cannot be termed to be a tainted evidence and if corroboration is require It is only he way of abundant caution. If the Court believes the witnesses before whom the confession is made and it is satisfied that the confession was voluntary then in such a case conviction can be founded on such evidence alone. If the Court believes the witnesses before whom the confession is made and it is satisfied that the confession was voluntary then in such a case conviction can be founded on such evidence alone. As was done in Rao Shi* Bahadur Singh V/s. State of Vindhya pradesh, 1954 SCR 1098 ; AIR 1954 SC 322 , where their Lordships of the supreme Court rested the conviction of the accused on the extra-judicial confession made by him before two independent witnesses, namely, Gedkari and Perulkar. In the instant case also, after perusing the evidence of P. W.3 and P. W.12 we are satisfied that they are independent witnesses before whom both the appellants and accused Surjit Kaur made confession of their guilt and this, therefore, forms a very important link in the chain of circumstantial evidence. In our opinion, the argument proceeds on fundamentally wrong promises that the extra-judicial confession is tainted evidence. " In the case of Har Hayal V/s. State of U. P. reported in AIR 1976 SC 2055 , the Supreme Court has further observed at page 2060 in para 27 as follows : "even an extra-judicial confession, if proved to have been made trully and voluntarily, is an efficacious proof of guilt. The confessions or admission may by the appellant before these witnesses with regard to the act of kidnapping the boy is not of a type which is generally introduced as a bedding to bolster up a weak prosecution case. " In the case of State of Uttar Pradesh V/s. M. K. Anthony reported in AIR 1985 SC 48 the Supreme Court, at page 57 in para 15 has observed as follows : "it thus appears that the extra-judicial confession appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that It cannot be acted upon unless corroboroted. If the evidence about the extra-judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attrabuting an untruthfull statement to the accused the words spoken to by the witness are clear, unambiguous and in mistakably convey that the accused is the perpeterator of the crime and nothing is omitted by the witness which may militate against It, then after subjecting the evidence of the witness to rigorous test, on the touchstone of credibility if it possesses the test, the extra-judicial confession can be accepted and can be the basis of a conviction. In such a situation, to go in search of corroboration itself tend to cast a shadow of doubt over the evidence. Tf the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded. " In the case of Kishore Chand V/s. State of H. P. reported in AIR 1990 SC 2140 , the Supreme Court, at page 2145 in para 7 and 8. . . . . . . . . has observed as follows : "7. An unambigous extra-judicial confession possesses a high probative value force as it emanatic from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. But in the process of the proof of the alleged confession, the court has to be satisfied that it is voluntarily one and does not appear to be the result of inducement, threat or promises envisages under Sec.24 of the evidence Act or was brought about any suspicious circumstances to circumvent Sections 25 and 26 of the Evidence Act. Therefore, the court has to look into the surrounding circumstances and to find whether the extra-judicial confession is not inspired by any improper or collateral consideration or circumvent of the law suggesting that it may no to be true one. For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. Extra-judicial confession if found to be voluntarily can be relied upon by the Court along with other evidence on record. Therefore, even the extra-judicial confession will also have to be proved like any other fact. The value of the evidence as to the confession depends upon the veracity of the witness to whom it is made and the circumstances in which it came to be made and the actual words used by the accused. Some times, it may not be possible to the witness to reproduce the actual wores in which the confession was made. For that reason the law insist on recording the statement by a Judicial Magistrate after administrating all necessary warnings to the accused that ft would be used as evidence against him. " 8. "nothing prevented P. W.27 to take the appellant to a Judicial magistrate and had his confession recorded as provided under section 164 of the Cr. P. C, which possesses probative value and affords an unerring assurauce to the Court. It is too incredulous to believe that for more asking to tell the truth the appellant made voluntary confession to P. W.10 and that too sitting in a hotel. The other person in whose presence it was stated to have been made not examined to provide any corroboration to the testimony of P. W.10. Therefore, it would be legitimate to conclude that the appellant was taken in which to the police custody and while the accused was in the custody, the extra-judicial confession was obtained through P. W.10 who accommodated the prosecution. Thereby we can safely reach an irresistible conclusion that the alleged extra-judicial confession statement was made while the appellant was in police custody. It is well settled law that Sections 25 and 26 shall be considered secretly. Therefore, all operation of Sec.26 of the Evidence Act, the confession made by the appellant to P. W.10 while he was in custody of the police officer (P. W.27) shall not be proved against the appellant. In this view it is unnecessary to go into the voluntary nature of the confession etc. Therefore, all operation of Sec.26 of the Evidence Act, the confession made by the appellant to P. W.10 while he was in custody of the police officer (P. W.27) shall not be proved against the appellant. In this view it is unnecessary to go into the voluntary nature of the confession etc. " Again in the case of Baldeo Raj V/s. State af Haryana reported in AIR 1991 SC 37 , the Supreme Court has held at page 39 in para 9 as follows : "an extra-judicial confession, if voluntary, can be relied upon by the court along with the other evidence in convicting the accused. The value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made. It is true the court requires the witnesses to give the actual words used by the accused is nearly as possible but it is not ingredient rule that the court should not accept evidence, if not the actual words but the substances were given. It is for the Court having regard to the credibility of the witness to accept the evidence or not. When the Court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, conviction can be founded on such evidence. " 15. Thus, from all these it is clear that a confession made by an accused not in custody of the police can be relied upon. It has got a value of force aa it is coming from the mouth of the prepetraiory of crime. But for placing reliance on it, the Court will have to see that it is neither suspicious nor has element of falsity. It is also to see that it has not been given by the accused on account of any prompting, co-erection of false hopes. The court has also to see that it has not brought out any suspicions circumstances and so the court has to see the time and place and even the manner where the confession is recorded. It may be either in the actual words given out by the accu. ed or the substance thereof. The court is also to see that the contents of the recorded confession, must be reliable one and the persons before whom it has been given should be reliable witness. It may be either in the actual words given out by the accu. ed or the substance thereof. The court is also to see that the contents of the recorded confession, must be reliable one and the persons before whom it has been given should be reliable witness. If all such considerations are there, then such a conlession can be considered and relied on. But if the court finds that is the evidence of the confession statement has been created to give a supporting and backing to a prosecution in which other evidence is not inspiring confidence or it has been obtained under threat, coerecion, inducement, temptation and the like or that it is motivated and based on concealment of fact then it is not to be relied on or if the prosecution some-how gives it a colour of free will confession but in tact the prosecution has obtained it without even attempting to get it recorded before the court under Section 164 Cr. P. C. , or betoie his arrest when opportunity was to get it before any other legal authority. Then, such confession may be a suspicious and unreliable document. When a confession is got recorded before a competent magistrate under Sec.161 it becomes judicial confession but when it is taken by any other persons including the magistrate in some other circumstance, it becomes extra-judicial confession. In any event, if the confession inspires confidence then reliance can be placed upon it. 16. At times, the accused making statement whether judicial or extra-judicial does not support it and goes back and denies to have given the same and says that it has been obtained under threat, duress, co-erection, compulsion, temptation and what not and so he denies to have given such statement. The court has to judge the same. If the court, after scrutiny finds that such confession is on the basis of his voluntary and free will and is not suffering from the voice of temptation, co-erection, duress, false promise etc. then the court can rely upon the same and the same can form the basis for conviction. The court has to judge the same. If the court, after scrutiny finds that such confession is on the basis of his voluntary and free will and is not suffering from the voice of temptation, co-erection, duress, false promise etc. then the court can rely upon the same and the same can form the basis for conviction. After following the rule of prudence of corroboration, the Supreme Court, in the case of Pyare Lal Bhargava V/s. State of Rajasthan, reported in AIR 1963 sc 1094 has observed at page 1096 in para 7 as follows : "a retracted confession may form the legal basis of the conviction when the court satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. It cannot even be laid down as a infiixible rule of practice or prudence that under no circumstance such a conviction can be made without corroboiation, for a court may, in a particular case, be convicted of the absolute truth of a confession and prepared to act upon it without corroboration ; but it may be laid down as a general rule of pratice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars. " 17. When an accused makes an exculpatory confession implicating the other accused, that sort of confession cannot be the legal basis for the conviction of other accused. The confession ot an co-accused has not been defined in the Evidence Act. But if a self inculpatory confession in support of a co-accused is there, and it is corroborated by othar evidence, then this sort of confession or corroboration may be used to supplement or corroborate or support the other evidence Such other evidence should be fulfilled the standard of proof and should taken support of such a weak tupe of evidence. But if a self inculpatory confession in support of a co-accused is there, and it is corroborated by othar evidence, then this sort of confession or corroboration may be used to supplement or corroborate or support the other evidence Such other evidence should be fulfilled the standard of proof and should taken support of such a weak tupe of evidence. The Supreme Court in the case of Nathu V/s. State of U. P. , AIR 1956 SC 56 has observed at page 58 paragraph 5 as follows : "the question how far the confession of co-accused, could be treated as evidence against an accused was considered elaborately in kashmira Singh V/s. State of M. P. , reported in AIR 1972 SC 159 (A) and it was held therein that such statement were not evidence as defined in Sec.3 of the evidence Act, that no conviction could be found thereon, but that if there was other evidence on which conviction could be based, it can lend assurance but other evidence itself should be clinching, trustworthy and reliable. " 18. In the light of these observations of the apex Court, Ext.1, application to the station officcer containing the confession of the appellant Abhay singh may be considered. The appellant was not in the custody of the police but the villagers had gone to him, threat was given by them to break open the door and then he is said to have come out and on account of the burn injuries, he is said to have gtven a self inculpatory statement involving the other accused. The appellant has denied to have given such statement. The application is said to have been written by Niranjan Singh though signed by him and others, Nirajan Singh has not been examined. The other witneses have been examined. The investigation was going on the basis of the FIR against unknown persons though these appellants were of the same village and well known to the informant himself. The I. O. on getting this application did not take any steps to get the statement of any of the confessed accused recorded under Sec.164 of the Cr. P C. which may be a ground to presume that these two witnesses deposing about the alleged confession in the night and thereafter, getting it sent to the Officer-in-charge through the application, ext.1. P C. which may be a ground to presume that these two witnesses deposing about the alleged confession in the night and thereafter, getting it sent to the Officer-in-charge through the application, ext.1. This may be a device by the police to get such statement to boost up the prosecution case after the accused had gone to the police station, after arrest. The police after getting this application, Ext.1, did not take any step for getting his statement recorded under Sec.164 Cr. P. C. , it will be legitimate to conclude that after his arrest, when the victim was taken to the police station, this application was get written by persons who signed the same and so they have accompanied the prosecutions and so it is not to be relied on in view of the provisions of Sec.26 of the Evidence Act. Further, there is no other witness except these two witnesses who appear to have accomodated the prosecution through Ext. J. Their evidence also for this reason, does not appear to be worthy of credence. Further the fact that the appellant has denied to have given any such confession statement cannot be ignored. In these circumstances, when there is no other reliable clinching and trustworthy evidence of the prosecution to fasten the guilt to the accused, this weak evidence cannot form the basis of conviction and so having regards to the facts and circumstances enumerated above, the appellants are entitled to get benefit of doubt. As such, they are acquitted of the charges levelled against them. 19. In the result, this appeal are allowed. The order of conviction and sentence passed against the appellants is hereby set aside. As all the appellants are on bail, they are discharged from the liabilities of their bail bonds. Appeals allowed.