JUDGMENT V. P. Bhatnagar, J.—Two main incriminating circumstances which have weighed with the learned Sessions Judge, Sirmur district at Nahan, for returning a verdict of guilty against the accused-appellant (Mohar Singh) for an offence under section 302 of the Indian Penal Code and sentencing him to life imprisonment with a fine of Rs. 2,000 (in default to further undergo rigorous imprisonment for six months) by his judgment dated 21-8-1990, are extra-judicial confessions and some recoveries made pursuant to disclosure statement made under section 27 of the Indian Evidence Act, in particular the discovery of the dead body. We are of the firm view that the extra-judicial confessions relied upon are first, inadmissible and, secondly, not worthy of acceptance in any case. As regards the recoveries, the investigation is tainted and lop-sided to an extent that it would be highly unsafe to hold that the dead-body was recovered at the instance of the accused. This appeal, therefore, has to be accepted. 2. The prosecution case may now be briefly stated. One Patti Ram of village Jong Bas, Gram Panchayat Jamna, Tehsil Paonta Sahib of District Sirmur, had two sons, namely, Jalam Singh aged 55 years and Jati Ram, aged 50 years. According to the custom prevalent in that area, both of them had a common wife, Surmi Devi. Notwithstanding their common marriage to one wife, all the five children born to Surmi Devi are stated to be from the loins of Jati Ram, She gave birth to three sons—Laiq Ram, Mohar Singh and Balbir Singh and two daughters—Parvati and Leela Devi. Patti Ram owned land in villages Singa Bas, Jong Bas and Kando The eldest son Laiq Ram with his family lived in village Singa Bas Accused Mohar Singh, the second son with his family resided in Jong Bas and had been retained by Jalam Singh as his son in which capacity Mohar Singh used to look after him. The third son Balbir Singh was a student of 10th class and had been away to Shimla. However, be alongwith his two younger sisters Parvati and Leela Devi were settled in village Kando with Jati Ram. The above relationship is not disputed. 3. The further case of the prosecution is that some villagers prepared an application Ex. P. H on 28-5-1989 and this was address to the I/c Police Post Raj Ban. However, be alongwith his two younger sisters Parvati and Leela Devi were settled in village Kando with Jati Ram. The above relationship is not disputed. 3. The further case of the prosecution is that some villagers prepared an application Ex. P. H on 28-5-1989 and this was address to the I/c Police Post Raj Ban. The police was informed by way of this application that Jalam Singh had been missing for the last 5/6 days from his village and that the villagers suspect that he had been murdered. It was specifically mentioned that the signatories to the application further suspected that the murder bad been committed in conspiracy with those of his relatives with whom he was living for several years and had strained relationship, from the endorsement made at the bottom of this application Ex. P. H., it appears that it was presented by one Kundan Singh to the Sub-Inspector, Police Station, Paonta Sahib, on 28-5-19&9 and that the said Sub-Inspector endorsed it to 1/c Police Post, Raj Ban, for immediate necessary action as warranted under law after thorough verification. One Head-constable, presumably the Incharge of Police Post Raj Ban is stated to have reached village Jong Bas in the evening on same day. He was followed by S. I. Ahmad Saiyad (PW 15) who was then working as Addl. Station House Officer at Police Station Paonta Sahib. The entire case was investigated by this witness. He recorded statement Ex. P. K on 29-5-1989 under section 154 of the Code of Criminal Procedure by examining Rai Mal (PW 6) another Panch of Gram Panchayat Jamna. Ruqa Ex. P. K. was then forwarded to Police Station Paonta Sahib and was received there at 4.30 p m. by M. H. C. Balbir Singh (PW 14) on that very day. On its basis he recorded First Information Report Ex. PW 14/A and also made endorsement Ex. PK/1 on the aforesaid Ruqa. After the completion of investigations Inspector Kehar Singh (PW 12) then working as Station House Officer, Police Station, Paonta Sahib, prepared the challan and presented it in the Court. 4. Accused Mohar Singh, according to the posecution case, made extra-judicial confession to Telu Ram (PW 1), Rai Mal (PW 6) and Guman Singh (PW 7). He is stated to have confessed in categorical terms that he killed Jaiam Singh. 4. Accused Mohar Singh, according to the posecution case, made extra-judicial confession to Telu Ram (PW 1), Rai Mal (PW 6) and Guman Singh (PW 7). He is stated to have confessed in categorical terms that he killed Jaiam Singh. The confession is further stated to have been made in the presence of all the above-named witnesses at one time. S. I. Ahmed Saiyad then interrogated the accused and recorded his disclosure statement Ex. P A. in the presence of Gulab Singh Sarpanch (not examined), Telu Ram (PW 1) and Rai Mai CPW 6). The accused stated that he knew the whereabouts of dead body of Jalam Singh, Takuva Ex. P-l which had been used as a weapon of offence, Kilta Ex. P-2 in which he had carried the dead body and clothes Ex. P-5 and Ex, P-6 which he had been wearing at time of occurrence. The recoveries are then stated to have been made vide Memos Ex P. B. P. E., P. F. and P. G. 5. The motive for the crime is alleged to be that Jalam Singh had been pressing for the division of land between the two brothers and wanted to sell away his share He was done away with in order to stop him from selling his share of the land. 6. Dr. G. Narang, then posted as Medical Officer, Civil Hospital, Paonta Sahib, performed the postmortem examination on 30-5-1989. In his opinion, the death had been caused due to excessive internal haemorrhage and shock caused by multiple injuries. The postmortem report given by him is at Ex. P. J. 7. When examined under the provisions of section 313 of the Code of Criminal Procedure, the accused pleaded innocence. He came out with a defence version to the effect that Guman Singh (PW 7) and his brother Magni Ram (PW 8) wanted to usurp the land of his father Jalam Singh. Telu Ram (PW 1), Rai Mai (PW 6) and others belong to their party in the village. They have given false depositions in order to help Guman Singh and Magni Ram. Disputes regarding partition had been there between his father Jalam Singh on one side and Magni Ram on the other. It has been further pleaded by him that he had been having good relations with his father Jalam Singh who had taken him as a son by his own choice. 8. Disputes regarding partition had been there between his father Jalam Singh on one side and Magni Ram on the other. It has been further pleaded by him that he had been having good relations with his father Jalam Singh who had taken him as a son by his own choice. 8. The law pertaining to the evaluation of the extra-judicial confession made by the accused is well-settled by now. Notwithstanding the fact that ordinarily it is considered as a weak type of evidence, there is no bar to convict the accused on the basis of uncorroborated extra-judicial confession provided such confession is acceptable and inspires confidence to a degree that the conscience of the court is satisfied about the criminal involvement of the accused because of it. While considering the various aspects of the confessional statement, the circumstances under which it was made, to whom it was made, its voluntary character and the other relevant attendant circumstances have always to be kept in mind. 9. In State of Madhya Pradesh v. Dayaram Hemraj, AIR 1981 SC 2007 it was observed that the confession was recorded by the Magistrate in the form of questions and answers showing as if the accused was virtually cross-examined and whatever he said as in answer to leading questions put to him by the learned Magistrate. Also, several discrepancies regarding the persons to whom the confession was made were noticed by the High Court Discrepancies had also crept in with regard to the occasions when the confession was made and what precisely was said by the accused. The Supreme Court, therefore, agreed with the High Court rejecting the confessions. That case has been relied upon by the learned Counsel for the appellant before us. On the other hand, the learned Asstt. Advocate General has cited State of U. P. v. M. K. Anthony, AIR 1985 SC 48. The Supreme Court, therefore, agreed with the High Court rejecting the confessions. That case has been relied upon by the learned Counsel for the appellant before us. On the other hand, the learned Asstt. Advocate General has cited State of U. P. v. M. K. Anthony, AIR 1985 SC 48. In para 15 of that judgment, the Supreme Court has this to say :— "It thus appears that 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 corroborated If the evidence about 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 attributing an untruthful statement to the accused ; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test, on the touchstone of credibility, if it passes 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 tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon." 10. Another case relied upon by the learned Asstt Advocate General is Baldev Raj v. State of Haryana, AIR 1991 SC 37 and in particular on the following observations i "An extra-judicial confession, if voluntary, can be relied upon by the Court along with 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 that the Court requires the witness to give the actual words used by the accused as nearly as possible but it is not an invariable rule that the Court should not accept the evidence, if not the actual words but the substance were given. It is true that the Court requires the witness to give the actual words used by the accused as nearly as possible but it is not an invariable rule that the Court should not accept the evidence, if not the actual words but the substance 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 " 11. As stated above, the extra-judicial confession has been made by the accused in the case before us in the presence of Telu Ram (PW 1), Rai Mal (PW 6) and Guman Singh (PW 7). 12. Telu Ram (PW 1) has stated in his examination-in-chief that it was in the month of May 1989 that he took aside the accused in a room and asked him to tell the real facts. The accused then confessed that he had committed a mistake of killing his father Jalam Singh and that he should be saved by him. He has further deposed that the police was also present on that day outside the room He was thereafter declared hostile and allowed to be cross-examined by the learned Public Prosecutor. It was during the course of such cross examination that he came out with a statement that Rai Mai and Gulab Singh were also present when the accused had made the aforesaid confessional statement. During his cross-examination by the learned Counsel for the accused, this witness has deposed that after making the confession inside the room, the accused had come out and told all including the police about having committed murder. The police had arrested the accused at about 8/9 a. m. The witness then goes on to depose that the accused was in police custody and was not tied when he made the statement. In other words the confession was made, according to Telu Ram (PW 1)9 when the accused had already been arrested and was in police custody. 13. The police had arrested the accused at about 8/9 a. m. The witness then goes on to depose that the accused was in police custody and was not tied when he made the statement. In other words the confession was made, according to Telu Ram (PW 1)9 when the accused had already been arrested and was in police custody. 13. Rai Mal (PW 6) has stated in his examination-fn-chief that the accused had informed him that he had killed Jalam Singh and hurried the dead-body on the river bank under water and sand This witness has also clearly admitted in his cross-examination that the conversation between him and the accused regarding the confession had taken place at Sobha Rams house where 3-4 police constables were present though none of the senior officers was there The accused was in custody of one old constable at the time of making confession. Telu Ram and Guman Singh were also then present. 14. The last witness on the point of extra-judicial confession is Guman Singh (PW 7). According to his testimony Telu Ram and Rai Mai made enquiries from the accused on 29-5-989 if he had killed Jalam Singh and the accused had then confessed that he had done so. In cross-examination, he has stared on oath that it was the police party who had asked the villagers to first enquire from the accused if he had done anything and it was then that they had made enquiries from the accused at Dhian Singhs house (and in no other house). He alongwith Telu Ram and Rai Mai had gone inside the room of the accused when he made the confession. 15. The testimony of the above-named three witnesses to the extra-judicial confession strongly indicates that the police was actively involved in creating evidence in the nature of confession to be used at the trial. It looks as if there is every probability that the police itself was present at the time the so-called statement was made. In any case, the accused was in custody of police at that time. A confession made by the accused while in custody of the police cannot be proved against him unless it is made in the presence of a Magistrate and a confession made to a police officer also cannot be proved against the accused. In any case, the accused was in custody of police at that time. A confession made by the accused while in custody of the police cannot be proved against him unless it is made in the presence of a Magistrate and a confession made to a police officer also cannot be proved against the accused. The bare language of sections 25 and 26 of the Indian Evidence Act is clear on the point and there appears on need to cite case law on it. The manner in which the learned Sessions Judge has tried to evaluate the evidence so as to give a go-by to the salutary principles of criminal jurisprudence is not easy to comprehend. 16. Thus, the so-called extra-judicial confession made by the accused appears to be more of a handy-work of the police rather than having ensued from a sense of repentance or guilt from the accused. It is also not voluntarily made. There also appears to be no occasion for the accused to have made such a statement in the circumstances and to the persons whom he is stated to have taken into confidence. Last though not the least, there can be no escape from the conclusion that it would be highly unsafe to place reliance on such a shaky confession for convicting the accused for the serious crime of murder. We, therefore, reject the extra-judicial confession pressed into service by the prosecution as an incriminating circumstance against him. 17. The police investigation, on the whole, requires much to be desired as far as this case is concerned. The recovery of the dead body pursuant to disclosure statement Ex. P. A. given by the accused and thereafter the accused having led the police party to the spot where the dead body was hurried thus pinning down the accused with the exclusive knowledge of where the dead body was is a complete cooked up story. S. I. Ahmed Saiyad, Addl. S. H. O, Police Station, Paonta Sahib (PW 15), investigated this case. According to his statement, he reached village Jong Bas at about 1 p. m. accompanied by 3 or 4 constables. He then recorded the statement Ex- P. K. of Rai Mai and sent it to the police station Paonta Sabib for registration of the case, The disclosure statement Ex. According to his statement, he reached village Jong Bas at about 1 p. m. accompanied by 3 or 4 constables. He then recorded the statement Ex- P. K. of Rai Mai and sent it to the police station Paonta Sabib for registration of the case, The disclosure statement Ex. P. A. of the accused was recorded by him at about 2.30 p. m. He reached the place where the dead body had been concealed at about 5 pm. However, he contradicted himself when he had earlier stated that he had sent for the photographer after reaching the spot from where the dead body had been recovered and that he had reached that spot at 4 p. m. According to him, the photographer also reached the village at 4 p m. If the constable was sent from village Jong Bas at 4 p. m , on 29-5-1989 to bring the photographer from Paonta Sabib which was not less than two hours away, there was no question of the photographer reaching village Jong Bas at 4 p m. This confusion is made worst confounded by photographer Rajinder Singh who has stepped into the witness-box as PW 11 He took the photographs at Ex. P-20 to P-36, negative roll of which is Ex P-19. He has stated in his cross-examination that the police constable had come to call him at 9 a. m. on 29-5-1989 and that he had reached village Kando at about 12 in the noon by bus and had taken the photographs at about 2 p. m. This means that the dead body bad already been recovered by 2 p. m and that the disclosure statement Ex P. A. was recorded thereafter (at 2 30 p. m. according to the investigating officer). 18. The role played by Magni Ram (PW 8) in the entire episode appears to be much more than what has been brought before the Court. 18. The role played by Magni Ram (PW 8) in the entire episode appears to be much more than what has been brought before the Court. His testimony clearly shows that he was the moving spirit behind the penning down of the letter Ex P. H. addressed to the I/c Police Post Raj Ban stating that Jalam Singh had been missing for the last 5 or 6 days and that the villagers suspected that he had been murdered through a conspiracy by his relatives with whom he had been living This means, more or less, throwing a direct stone on accused Mohar Singh because it was with him that Jalam Singh had been living. This letter was written on 28-5-1989 and as stated above is addressed to the I/c Police Post Raj Ban but strangely enough is stated to have been presented at police station Paonta Sahib by one Kundan Singh who has not been examined by the prosecution. The question which arises is as to how could the villagers and particularly Magni Ram suspect Jalam Singh having been murdered merely because he had been found missing for the last 5/6 days. Magni Ram was cross-examined at length in the matter but he could not come out with a reasonable explanation. None other did. In this connection PW 7 Guman Singhs statement is highly relevant. He has stated in the examination-in-chief itself that Jalam Singh used to wander here and there and that he stayed away from his house sometimes for meeting saints for days together. While doing so, he did not inform anyone at home. In view of this habit of Jalam Singh, there was no occasion whatsoever for the villagers to get suspicious and immediately jump to the conclusion of his having been murdered merely because he was found missing for a duration of 5-6 days. The letter Ex. P. H., therefore, appears to have been written at the instance of the police itself. Then, in the statement Ex. The letter Ex. P. H., therefore, appears to have been written at the instance of the police itself. Then, in the statement Ex. P. K. recorded by the investigating officer under the provisions of section 154 of the Code of Criminal Procedure and later on converted into F. I. R., Rai Mai (PW 6) stated that he had been told by Magni Ram on 28-5-1989 at about 8/9 p, m. that Jalam Singh had been killed by Mohar Singh Here was a categorical statement accusing Mohar Singh of murder and this fact having been known on 28-6-1989 itself. Magni Ram (PW 8), however, has denied having made any such statement to Rai Mai on 28-5-89 It is also significant that Magni Ram was not found in the village when the police reached there and he was immediately sent for by the investigating officer but could be traced only on 5-6-1989. Why he made himself unavailable to the police all these days is shrouded in mystery. Further-more, Magni Ram has admitted in his statement that there was every possibility of his being suspected for committing Jalam Singhs murder, He has deposed about Jalam Singhs murder but reasons therefor have not been given. He had also testified to Jalam Singh having been mercilessly beaten by Mohar Singh at one point of time resulting in the uprooting of formers two teeth but stands contradicted on this point by none else than his own real brother Guman Singh (PW 7) who has stated that he never saw or heard of any fight between the two. 19. Thus, the chain of circumstances summarised by the learned Sessions Judge in para 15 of his judgment fall to the ground one by one and certainly do not answer the legal requirement that such a chain should be so strong as not to be capable of being explained except on the hypothesis of the guilt of the accused. 20. As a result of the above discussion, we are of the firm opinion that the prosecution has failed to bring guilt home to the accused and that this appeal merits acceptance. Accordingly, the judgment of conviction and sentence is quashed and it is ordered that the accused-appellant be released forthwith. Fine if paid be refunded to him.