H. C. MITAL, J. ( 1 ) THE appellant Hemant Kumar has preferred this appeal against his conviction and sentence u/s. 302, IPC to life imprisonment for having committed the murder of Constable Ram Kishan Yadav with a service musket on the tea shop of Dinesh Chandra near Paniyali Forest barrier within the police station Kotdwara on 18-4-85 at about 12 in the noon ( 2 ) THE facts of the case, in brief, according to the prosecution are that on 17-4-85 at about 7-30 p. m. this appellant had taken one Smt. Saroj, a young woman of about 26 years, and requested Constable Ram Kishan Yadav deceased to spare a room in the Home Guard out post for night stay along with that woman. Ram Kishan Yadav had taken both of them in the room and had told the Home Guard Behari Lal to bolt the room from outside. Thereafter Ram Kishan shouted that he would make a complaint and report the matter at the Police Station and also slapped the woman Smt. Saroj. Thereafter Hemant Kumar intervened and Ram Kishan obtained a written letter from Hemant Kumar that he had sexual inter course with that woman with her consent and thereafter Ram Kishan raped the woman in the presence of Hemant Kumar in spite of latters remonstrations. Subsequently Hemant Kumar threatened Ram Kishan Yadav that he would teach a lesson for insulting that woman and left. It is said that on the following day, i. e. on 18-4-85, when Constable Bhim Singh was on guard duty at police station Kotdwar and on feeling pain in his stomach he desired to be relieved of his duty at 11-30 a. m. this appellant Hemant Kumar was deputed to relieve Bhim Singh and thus Hemant Kumar got the service musket and cartridges from Constable Bhim Singh. Thereafter Hemant Kumar along with the musket reached the shop of Dinesh Chandra where Constable Ram Kishan Yadav was there and fired shots with that musket as a result of which he died on the spot. The appellant thereafter along with the musket appeared in the court of the Chief Judicial Magistrate, Pauri, who was camping at Kotdwar at a short distance from Paniyali Forest Barrier and volunteered the information that he had committed the murder of a Constable and surrendered himself with the service musket and cartridges. The appellant thereafter along with the musket appeared in the court of the Chief Judicial Magistrate, Pauri, who was camping at Kotdwar at a short distance from Paniyali Forest Barrier and volunteered the information that he had committed the murder of a Constable and surrendered himself with the service musket and cartridges. At the direction of the Chief Judicial Magistrate the Court Moharrir took the appellant in custody and thereafter the appellant was taken to police station Kotdwar. ( 3 ) THE First Information report of the case was recorded at the dictation of Constable Inder Deo, Pairokar of Police Station Kotdwar, district Pauri, wherein he stated that the appellant had surrendered in the court of the Chief Judicial Magistrate with the service musket and cartridges in the presence of the Lawyers when proceedings were going on in the court and that he had made a confession in the court that he had killed a Constable on the tea shop and the Chief Judicial Magistrate had asked two Constables to escort the appellant. ( 4 ) THEREAFTER investigation took place. The deadbody of Constable Ram Kishan was sent for post-mortem and after completion of the investigation the charge sheet was submitted against the appellant and he was tried. At the trial the prosecution examined in all 9 witnesses of whom P. W. 1 Inder Deo had given information at the police station on the basis of which FIR was recorded. P. W. 2 Anand Singh Rawat and P. W. 7 Dinesh Chandra are two eyewitnesses of the occurrence. P. W. 3 Smt. Saroj and P. W. 6 Constable Bchari Lal are witnesses of the rape committed by the deceased Constable Ram Kishan Yadav in the presence of the appellant and had contended threat to him. P. W. 8 Constable Bhim Singh deposed that he had changed the duty and handed over the musket to the appellant. P. W. 4 Birendra Singh is Court Moharrir and P. W. 5 Jig Mohan Singh is Reader of the court of Chief Judicial Magistrate and deposed that the confession Ext. Ka-2 was recorded by him at the direction of the Chief Judicial Magistrate. ( 5 ) THE genuineness of the postmortem examination report Ext. Ka-17 was admitted and, therefore, the Dr. M. S. Rawat was not examined. On the person of the deceased the following ante-mortem injuries were noted vide postmortem examination report Ext. Ka-2 was recorded by him at the direction of the Chief Judicial Magistrate. ( 5 ) THE genuineness of the postmortem examination report Ext. Ka-17 was admitted and, therefore, the Dr. M. S. Rawat was not examined. On the person of the deceased the following ante-mortem injuries were noted vide postmortem examination report Ext. Ka-17:-"1. "oval fire-arm entry wound over left side of breast bone 15 cm down to left stereo clavicular joint over left chest size 1. 8 cm x 1. 5 cm margins inverted scorching around the wound 0. 5 cm present, on dissection of chest and abdomen in line of direction of the wound-left rib 7, 8 and 9 are fractured over an area, 5 cm x 5 cm adjacent to breast bone (L) side. Pericardium and heart lacerated, adjacent diaphragm in anterior part lacerated, spleen lacerated 3 cm x 2 cm in inferior border, left kidney lacerated in upper part, circular flat lead pellet found lodged in muscle behind the left kidney. Clotted fluid blood present around left kidney. Pellet taken out and preserved. 2. Oval fire arm entry wound 7 cm 4 cm over lower right lateral aspect of chest and axillary line 18 cm down and back to right nipple, margins everted, ragged, scorching present around the wound 0. 5 cm. Torn pieces of liver coming out of the wound. On Section of chest and abdomen in the line of direction fracture of right ribs 9, 10 and 11 over an area 7 cm x 6 cm at the site of the wound extending to right lobe of the liver which is lacerated with adjacent peritonium to diaphragm, Gall bladder lacerated and empty. Left lung lacerated with adjacent pleura in middle portion. Fracture of left 6 and 7th ribs over an area 3 cm x 2 cm in post axillary line in left chest wall pellet found lodged in muscles posterior to the fractured ribs. Clotted fluid blood present in peritoneal cavity and left pleural cavity. Pellet found removed and preserved-Circular and flat lead pellet. 3. Oval fire arm entry wound 1. 7 cm x 1. 5 cm over back and inner part of right upper thigh, 12 cm down and right to root of Penis, Margins inverted 0. 5 cm scorching around wound present. 4. Oval fire arm exit wound over right inquiral region 2 cm x 1. 3. Oval fire arm entry wound 1. 7 cm x 1. 5 cm over back and inner part of right upper thigh, 12 cm down and right to root of Penis, Margins inverted 0. 5 cm scorching around wound present. 4. Oval fire arm exit wound over right inquiral region 2 cm x 1. 5 cm in size margins everted 4. 5 cm right from upper portion of root of penis. On dissection wound No. 3 communicated with wound No. 4 under skin and muscles. 5. Oval fire arm entry wound over back and upper part of thigh right 1 cm medial and proximal to wound No. 3; size 1. 6 cm x 1. 5 cm. Scorching 0. 5 cm around the wound present, margins inverted. 6. Oval fire arm exist wound over right inguinal region, 4 cm above the wound No. 4. Margins averted size 3 cm x 1 cm, on section wound No. 5 communicates with wound No. 6, under skin and muscles. " ( 6 ) ON internal examination semi digest food in stomach and in small intestines was found. In the opinion of the Doctor the death was caused due to haemorrhage on account of aforesaid ante-mortem injuries. ( 7 ) P. W. 9, Station Officer K. C. Pundir conducted the investigation and deposed about the various steps taken by him during the course of investigation and that musket and cartridges were sent to the ballistic expert for report. ( 8 ) THE version of the appellant was that he has been falsely implicated; that at about 11-30 a. m. on the date of incident Head Constable Shobat Singh had sent him for search of Bhim Singh who was on Pahra duty and had gone with his musket towards the bridge; that when he reached there, he found the deceased lying and the musket and cartridges were there; that he picked them up and produced the same in court of the Chief Judicial Magistrate; that he was apprehended by the Pairokar and the Court Moharrir and the Chief Judicial Magistrate was told that he had committed murder. ( 9 ) THE learned Sessions Judge believed the prosecution evidence and convicted and sentenced the appellant as above. ( 9 ) THE learned Sessions Judge believed the prosecution evidence and convicted and sentenced the appellant as above. On being aggrieved, this appeal has been preferred and on behalf of the appellant it was urged by the learned counsel that apparently in view of the fact that a statement of the appellant was recorded in the presence of the Chief Judicial Magistrate in the court by the Peshkar admitting that he had committed murder this circumstance heavily weighed on the mind of the learned trial Judge and, therefore, he had convicted the appellant without considering whether the same was legally admissible against the appellant and besides that whether there was any other admissible evidence to bring home the guilt to the appellant. ( 10 ) ACCORDING to the prosecution, the motive for committing the offence was that the deceased had raped one Smt. Saroj in the presence of the appellant whom the latter had taken to the room. In support of that fact the prosecution examined P. W. 3 Smt. Saroj and P. W. 6 Constable Behari Lal. P. W. 3 Smt. Saroj has stated that she was a married woman but her husband had left her. She was living with her mother; that she did not know Hemant Kumar present in court but he met her in the market and had taken her to the room where another police man came and tried to molest her and at the protest of Hemant Kumar that Policeman slapped her and pushed aside Hemant Kumar and thereafter that Constable raped her and subsequently Hemant Kumar took her out but before that that Constable got a paper written forcibly from Hemant Kumar; that she had also put her thumb impression on that paper and then Hemant Kumar had told that Constable that he would take the revenge of insulting him. She subsequently stated that she could not say that the appellant present in court was the same Hemant Kumar who had taken her and further to a question whether Bhim Singh had taken her and given out his name as Hemant Kumar she replied in the affirmative. She further stated that in that room Bhim Singh and another Constable wanted to rape her; that she had gone in the room along with the Constable out of fear; that she had given the evidence as she has been threatened by the Police. She further stated that in that room Bhim Singh and another Constable wanted to rape her; that she had gone in the room along with the Constable out of fear; that she had given the evidence as she has been threatened by the Police. The paper on which her thumb impression was taken was not shown to her nor read over to her. It is thus clear that this witness has not specifically stated that this very appellant was the person who had taken her to that room and he had threatened the deceased. She has also not given out the name of the deceased but has given the name of Bhim Singh, who had raped her, in her cross-examination. ( 11 ) P. W. 6 Constable Behari Lal has stated that on 17-4-85 at 7-30 p. m. a person had brought a woman and asked Ram Kishan Yadav Home Guard Commander to permit them to take rest in a room; that though he had told Ram Kishan Yadav not to open the door of the room but he had opened the door and had gone along with the woman in the room and asked him to bolt the door from outside which he had bolted; that after sometime Ram Kishan Yadav came out and sometime thereafter the other man along with the woman also came out and left. This witness has thus not supported the prosecution case that this appellant had taken the woman and that woman was P. W. 3 Smt. Saroj or he had given any threat to the deceased Ram Kishan Yadav. There is force in the contention of the appellant that there is no admissible prosecution evidence regarding the alleged motive for the appellant to commit the offence. ( 12 ) AS regards the eye-witness account, there is evidence of P. W. 2 Anand Singh Rawat and P. W. 7 Dinesh Chandra. P. W. 7 Dinesh Chandra is owner of the tea shop and he has given evidence only to the effect that on that day he was in his tea shop. At about 12 in the noon on hearing the gun shots he came out and saw a person holding his chest and was bleeding. He then ran away. He did not see the killer as well as the victim. At about 12 in the noon on hearing the gun shots he came out and saw a person holding his chest and was bleeding. He then ran away. He did not see the killer as well as the victim. He further stated that the deceased was reading a paper in the shop and he saw the assailant but could not properly recognize him and that after 15 minutes a crowd collected there and nobody told him as to who was the victim. Thus he has not at all named this appellant to be the assailant. He has not even stated that the victim was Ram Kishan Yadav, the deceased. ( 13 ) P. W. 2 Anand Singh Rawat has stated that he had a tea shop near the Barrier and on that day at about 12 in the noon he was taking food in the kitchen then he heard gun shots from the shop of Brij Mohan; that out of fear he remained sitting inside the shop and did not see anything; that after an hour some persons came from court and enquired about the firing; that they found a dead body lying there and then a police Jeep also arrived. He then came to know that the deceased was a Police Constable. He specifically stated that he did not recognize Hemant Kumar. He was also not declared hostile. Thus there is absolutely no evidence of any eye-witness connecting this appellant with the crime. ( 14 ) P. W. 6 Behari Lal has, however, stated that at about 11-45 a. m. this appellant came with a rifle in his hand at the Barrier and inquired about Ram Kishan, who at that time had gone to take tea. Thereafter Hemant Kumar had gone away and after five minutes he heard a sound of the gun shot and after some time a Police Jeep arrived. He reached there and saw Ram Kishan lying there dead. On seeing the appellant in court he could not say that appellant Hemant Kumar had come with a rifle. In his cross-examination he stated that Daroga had told him the name of the appellant and, therefore, he earlier stated about him. Thus the evidence of this witness also does not connect the appellant with the offence. ( 15 ) LASTLY, there remains the sheet anchor of the prosecution Ext. In his cross-examination he stated that Daroga had told him the name of the appellant and, therefore, he earlier stated about him. Thus the evidence of this witness also does not connect the appellant with the offence. ( 15 ) LASTLY, there remains the sheet anchor of the prosecution Ext. Ka 2, the statement of the appellant recorded in the court of Chief Judicial Magistrate by P. W. 5 Jig Mohan Singh, Reader of the court. The prosecution did not examine the Chief Judicial Magistrate to prove that all the necessary precautions, as are required to be taken u/s. 164 were duly taken. ( 16 ) HE has, however, stated that on that date at about 11. 55 a. m. the appellant had appeared in court and made a request to surrender along with a Government gun and also stated that he had killed a Police Constable by shooting him. Thereafter at the direction of the court this appellant was taken into custody and whatever he had stated, at the dictation of the Chief Judicial Magistrate he has recorded his statement. He proved Ext. Ka-2 having been written by him and stated that it was signed both by the appellant as well as the Chief Judicial Magistrate. In Ext. Ka-2 the name of the victim whom the appellant is alleged to have shot down is given as Ramesh Chandra and not Ram Kishan Yadav. Therefore, even if this statement Ext. Ka-2 is considered to be admissible in evidence, there is no confession or admission of the appellant to have killed Constable Ram Kishan Yadav deceased. ( 17 ) THAT apart, on behalf of the appellant it was argued that this statement which was recorded without the compliance of S. 164, Cr. P. C. was not admissible in evidence and reliance was placed on the decision of their Lordships of the Privy Council in the case of Nazir Ahmad v. King Emperor, AIR 1936 PC 253 (2) : 1936 All LJ 895. In that case the prosecution sought to prove that the accused had made a confession before a 1st Class Magistrate Mr. Vashisht, who did not record any confession as laid down in S. 164, Cr. P. C. However, Mr. In that case the prosecution sought to prove that the accused had made a confession before a 1st Class Magistrate Mr. Vashisht, who did not record any confession as laid down in S. 164, Cr. P. C. However, Mr. Vashisht appeared in the witness-box to prove the alleged confession and stated that some rough notes of the confession were prepared on the spot which were subsequently destroyed and then he prepared a memorandum containing the substance but not all the matter to which the accused had referred. The sole question for consideration before their Lordships was whether the evidence tendered by Mr. Vashisht on the question of confession was admissible. After referring the language of Ss. 164 and 364 Cr. P. C. their Lordships held -"where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden". ( 18 ) MR. Vashishts evidence was, therefore, excluded. In that case it was urged for the Crown that, although the confession could not be admitted u/s. 164, Cr. P. C. , Mr. Vashishts oral statement was admissible, because it had nothing to do with S. 164, Cr. P. C. This contention was repelled by their Lordships. They observed on :-"on the matter of construction Secs. 164 and 364 must be looked at and construed together, and it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the Sections themselves. Upon the construction adopted by the Crown the only effect of S. 164 is to allow evidence to be put in a form in which it can prove itself u/ss. 74 and 80, Evidence Act. Their Lordships are satisfied that the scope and extent of the Section is far other than this, and that it is a section conferring powers on Magistrates and delimiting them. It is also to be observed that, if the construction contended for by the Crown be correct, all the precautions and safeguards laid down by Secs. 164 and 364 would be of such trifling value as to be almost idle. It is also to be observed that, if the construction contended for by the Crown be correct, all the precautions and safeguards laid down by Secs. 164 and 364 would be of such trifling value as to be almost idle. Any Magistrate of any rank could depose to a confession made by an accused so long as it was not induced by a threat or promise without affirmatively satisfying himself that it was made voluntarily and without showing or reading to the accused any version of what he was supposed to have said or asking for the confession to be vouched by any signature. The range of magisterial confessions would be so enlarged by this process that the provisions of S. 164 would almost inevitably be widely disregarded in the same manner as they were disregarded in the present case. . . . . . . . . . In their Lordships view it would be particularly unfortunate if Magistrates were asked at all generally to act rather as Police Officers than as Judicial persons; to be by reason of their position freed from the disability that attaches to Police Officers u/s. 162 of the Code; and to be at the same time freed notwithstanding their position as Magistrates, from any obligation to make records u/s. 164. In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever. . . . . . . . . . the effect of the statute is clearly to prescribe the mode in which confessions are to be dealt with by Magistrates when made during an investigation, and to render inadmissible any attempt to deal with them in the method proposed in the present case. " ( 19 ) IN the case of Singhara Singh v. State of U. P. 1961 All LJ 617 wherein a Magistrate II Class, who was not competent, recorded a confession u/s. 164, Cr. " ( 19 ) IN the case of Singhara Singh v. State of U. P. 1961 All LJ 617 wherein a Magistrate II Class, who was not competent, recorded a confession u/s. 164, Cr. P. C. it was held that such a statement could not even be considered as an extra judicial confession before an ordinary person as it was recorded in the presence of the Police Constables and the provision of S. 26 of the Evidence Act providing that a confession made in the immediate presence of a Magistrate may be admissible even though made while in the custody of the Police Officer would not enure such a confession unless the same duly recorded as provided u/ss. 164 and 364, Cr. P. C. ( 20 ) THE conclusions therefore, is that the confession Ext. Ka-2 recorded by the Chief Judicial Magistrate of the present appellant is not admissible in evidence and secondly, even if it is taken into consideration, the same does not relate to the murder of Ram Kishan Yadav deceased for whose murder the present appellant has been convicted and sentenced. ( 21 ) THE conclusion, therefore, is that the appellant has been convicted for no admissible evidence against him for the offence with which he was charged. The appeal is, therefore, allowed. The conviction and sentence of the appellant u/s. 302 I. P. C. to life imprisonment are quashed. He is in Jail. He shall be released forthwith if not wanted in any other case. Copy of this order may immediately be sent to District and Sessions Judge, Pauri as well as to the Superintendent of Jail concerned for immediate compliance. Appeal allowed.