JUDGMENT : A. Pasayat, J. - Three young boys in their teens lost their lives on the Raja Sankranti Day, i. e.' 16-6-1985 according to the English calendar. Five accused persons faced trial on the allegation of having committed offences punishable Under Sections 302/34 and 201/34 of the Indian Penal Code, 1860 (in short, 'IPC'). Four of them are appellants in Criminal Appeal while another, namely, Gobind Sethi alias Das is the appellant in the jail criminal appeal. Since both the criminal appeal and the jail criminal appeal are directed against the same judgment of the learned Sessions Judge, Puri they are disposed of by this common judgment. After stating facts and submission, it was held : 5. We shall deal with three circumstances indicated above. According to the learned Sessions Judge, the deceased boys were last seen with Gobinda Sethi at the upper Maninag hill on the date of occurrence. For this purpose reliance was placed on the evidence of PW 5, who stated to have seen the accused at about 3 p. m. on the date of occurrence. He also stated to have seen accused Guna Maharana, his son Rabi Maharana and one unidentified man going towards the upper Maninag temple. Then he went towards the Tala Maninag temple for having darshan of the Devi. At the Tala Maninag Road crossing, he found three boys going towards the upper Maninag temple at the nill top. He has stated to have heard deceased Babu telling others that accused Guna Maharana and Rabi Maharana had already gone to the top of the hill, they would gamble there and Guna Maharana had promised to pay Rs. 10/- each for a feast, after which they would come down to the Tala Maninag temple and see the fair. The boys instead of going to Tala Maninag temple proceeded towards the entrance of the upper hill where the deity Bata Mangala situated. At the entrance road there is a signboard of cashew plantation where accused Gobinda Sethi was standing and the three boys went to Gobinda Sethi. He found accused Guna Maharana standing on a stone at a distance of 200 to 300 feet from the ground level on the hill top road and accused Rabi Maharana and Anr. unknown man were sitting on a stone nearby. There is no definite material about the time of occurrence. He found accused Guna Maharana standing on a stone at a distance of 200 to 300 feet from the ground level on the hill top road and accused Rabi Maharana and Anr. unknown man were sitting on a stone nearby. There is no definite material about the time of occurrence. Accused Gobinda was known to the deceased boys. Therefore, there was nothing unusual for the boys to talk with him. That cannot lead to a conclusion that they were last seen with that accused just prior to their death. This witness was examined after 20 to 25 days of occurrence. He has accepted that after his return from Mussaffarpur he did not come to the police station for 20 to 22 days though he had knowledge that the deceased boys had been murdered and that he had seen the deceased boys with accused Gobinda on the date of occurrence. He claims to have seen the occurrence while sitting on the wall of the backside of house of Babula alias Bijaya Mishra on the block road of Ranpur. In his cross examination he has accepted that the place where he first saw the three deceased boys was at a distance of about 200 feet from the house of Babula Mishra. He has also accepted that as it was a festival day many people were going for darshan to Tala Maninag Temple. The distance from which this witness claims to have seen is practically impossible in view of the admitted fact that many persons were moving because of the festival. 6. The last seen theory can be pressed into service when two persons were found together at a particular time and immediately there after one of them is found dead. It would be difficult to positively establish that the deceased was last seen with the accused where there is long gap and the possibility of other persons coming in between exists. In the absence of any further positive evidence that accused and the deceased ware last seen together it would be hazardous to come to a conclusion of guilt. This aspect has been highlighted by the Apex Court and this Court in several, case. We do not propose to proliferate our judgment with large number of such decisions. Suffice it would to refer to a decision recently rendered by this court in Radha Mohan Nayak and Another Vs. This aspect has been highlighted by the Apex Court and this Court in several, case. We do not propose to proliferate our judgment with large number of such decisions. Suffice it would to refer to a decision recently rendered by this court in Radha Mohan Nayak and Another Vs. State of Orissa, to which one of us (Pasayat, J.) was a party. It is not the case of the prosecution that immediately after Gobinda was allegedly seen in the company of the deceased boys, the latter were manrdered. that is nobody's case . in fact, during afternoon many people were acceptably going towards the temple, as it was a festival day. Obviously, therefore the last seen theory is of no assistance to the prosecution. 7. The second circumstance which has been relied upon by the learned Sessions Judge is the judicial confession made by accused Gobinda Sethi and the extrajudicial confession made by him. The confession recorded is marked as Ext. 24. On a reading of the same it is clear that the accused Gobinda has not confessed his own quilt. There was no self-inculpation. He claimed to have witness the occurrence and not to have participated in the killings. The requirement of Section 30 of the Indian Evidence Act, 1872 (in short the Act) is that before it is made to operate against the co-accused should be strictly established. In other words, what must be before Court should be a confession proper and not a mere circumstance or an information which could be an incriminating one. Secondly, it being the confession of the maker, it la not to be treated as evidence within the meaning of Section 30 of the Act against the non-maker co-accused and lsastly. its use depends on finding other evidence so as to connect the co-accused with the crime and that too as a corroborative Piece. It is only when the other evidence tendered against the accused unmistakably points to his guilt then the confesstion duly proved could be used against such co-accused if it appear affect him as lending support or assurance to such other evidence. To attract the provisions of Section 30 it should for all purposes be a confession, that is a statement containing an admission of guilt and not merely a statement raising the inference with regard to such a guilt. To attract the provisions of Section 30 it should for all purposes be a confession, that is a statement containing an admission of guilt and not merely a statement raising the inference with regard to such a guilt. The evidence of co-accused cannot be considered u/s 30 of the Act, where he was not tried jointly with the accused and where he did not make a statement incriminating himself along with the accused. The confession of a oo-accused does not come within the definition of evidence contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is only when a person admits guilt to the fullest extent, and exposes himself to the pains and penalties provided for his guilt there is a guarantee for his truth, and the Legislature provides that his statement may be considered against his fellow accused charged with the same crime. The test is to see whether it is sufficient by itself to justify the conviction of the person making it of the offence for which he is being jointly tried with the other person or persons against whom it is tendered. The proper way to approach a case of this kind is, first to marshal the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a coviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing that without the aid of the confession he could not be prepared to accept. This position has been clearly explained by the Apex Court in Kashmira Singh Vs. State of Madhya Pradesh. The exact scope of Section 30 was discussed by the Privy Council in the case of AIR 1949 257 (Privy Council) . This position has been clearly explained by the Apex Court in Kashmira Singh Vs. State of Madhya Pradesh. The exact scope of Section 30 was discussed by the Privy Council in the case of AIR 1949 257 (Privy Council) . The relevant extract from the said decision which has become locus classicus reads as follows : "Section 30 applies to confessions, and not to statements which do not admit the gulit of the confessing party......But a confession of a co-accused is obviously evidence of a very weak type ...It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, make it evidence on which the Court may act but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case ; it can be put into the scale and weighed with the other evidence. The confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction". The Apex Court cited with approval these observations of the Privy Council in Kashmira Singh's case (supra). 8. In the instant case, a reading of Ext.24 clearly shows that there was no self -implication by accused Govinda. In fact he has tried to extricate himself by stating that he was merely a witness to the occurrence, and was not a participant. 9. So far as extrajudicial confession before P..14 is concerned, it does not further the case of the prosecution in any manner. This witness has merely stated that accused Gobinda had stated before him that accused Guna and others had killed three boys and as previously he was involved in 3 to 4 cycle theft cases, police may arrest him in connection with the murder. The witness did not state that accused Gobinda confessed to have committed any crime. Further,Section 30 has no application, because he did not make confession of his own guilt. In the above circumstances the evidence of PW 14 is of no assistance to the prosecution case. 10. The witness did not state that accused Gobinda confessed to have committed any crime. Further,Section 30 has no application, because he did not make confession of his own guilt. In the above circumstances the evidence of PW 14 is of no assistance to the prosecution case. 10. The residual point which has been characterised as a link in the chain of circumstances is that finger prints found on the inner wall of the upper Maninag temple are identical with the right thumb impression of accused Rabi Maharana. Basing upon this material alone it would not be safe to fasten the guilt on the accused persons. There is no material to show the point of time when the prints were made. The place where they were found is temple The possibility of the prints being there prior to the occurrence cannot be ruled out. Though blood stained print of an accused is a suspicious circumstance, that would not be sufficient to rope in all the accused persons. The circumstances indicated by the learned trial Judge cannot be held to have established a complete chain to establish the sole hypothesis that the accused were guilty of the crime. We are conscious that three valuable lives were lost. The culprits deserve punishment. But, because of inadequacy to material, the accused persons cannot be convicted. 11. Both Criminal Appeal and Jail Criminal Appeal are allowed. The conviction made and sentence awarded against each one of them are set aside and they are acquitted of the charge u/s 302/34, IPC. Appellants. Gunanidhi Mahararra, Rabi Maharana in the Criminal Appeal and appellant Gobinda Sethi alias Das in the Jail Criminal Appeal be set at liberty forthwith, unless they are required to be in custody in connection with any other case. Bail bonds of appellants Kabi alias Laxmidhar Maharana and Chhabi Mahatana ' Gobinda Maharana he discharged. R.K. Patra, J. 12. I agree. Final Result : Allowed