JUDGMENT :- Appellant-original accused has preferred the present Criminal Appeal against the judgment and sentence passed by Shri J.A. Shaikh, first Additional Sessions Judge, Beed, in S.C. No. 168/1995, convicting the appellant under Section 304(1) of I.P.C. and is sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 1,000/-, in default to suffer rigorous imprisonment for three months on 27-2-1996. Learned First Additional Sessions Judge, Beed (hereinafter referred to as the learned Judge) has acquitted the appellant under Section 302 of I.P.C. Usual set off is given to the appellant under Section 428 of Cr.P.C. 2. In short, the case of the prosecution is that the appellant was then working as a Lineman in M.S.E.B. Department and was posted at Arvee. He had erected a hut in his agricultural land and it is situated at a distance of about 1 km. from village Arvee. Vatsalabai is the first wife of the appellant while Sindhubai (deceased) was his second wife. Vatsalabai has one daughter and two sons while Sindhubai has one daughter by name Kirti who was then aged about one and half year. It is the case of the prosecution that the appellant was accustomed to consume liquor. Some time on 7-6-1995, there was marriage ceremony of Vatsala's brother and hence she, along with children, had gone to her parent's place in the same village. Appellant and deceased Sindhubai used to reside in the house situate in their agricultural land. 3. On 10-6-1995, quarrel took place between the appellant and deceased Sindubai at their house situated in the field. The accused got enraged lost his temper and he took an axe and assaulted on Sindhubai's head as a result of which she died instantaneously. Appellant's son, by name Pandurang, was in the field and was giving water to the farm. He saw the quarrel between the appellant and Sindhubai and he further saw the incident in question and immediately went to the residence of Police Patil Goverdhan Mayekar (PW No. 1), at Arvee, and informed the incident. At the same time, Dadasaheb, who is brother of Vatsalabai, also came to know about the incident from Goverdhan Mayekar and that the Police Patil had gone to the place of incident along with some people. At the same time, Dadasaheb, who is brother of Vatsalabai, also came to know about the incident from Goverdhan Mayekar and that the Police Patil had gone to the place of incident along with some people. In the meantime, PW No. 1 Goverdhan Mayekar went to the place of incident and saw that Sindhubai's dead body was lying in the hut in kitchen room and that blood was oozing from the head injury. Thereafter, he went to Police Station, Shirur, and lodged a report. Immediately, within next two hours, P.S.I., Shirur, came there. He prepared the inquest. He also noticed that the appellant was lying nearby in injured condition. His bloodstained clothes were attached and he was interrogated. Sindhubai's dead body was sent for post mortem examination and similarly the appellant was also sent to the hospital for medical treatment. When the appellant was undergoing treatment, Special Judicial Magistrate was called for recording his confession. It appears that Special Judicial Magistrate recorded his confession. 4. It is further the case of the prosecution that after the appellant assaulted Sindhubai by means of an axe on her head and committed her murder, he got fed up and repented also. He climbed on the electric pole and caught hold of live wire as a result and was thrown away from the electric pole and thus he sustained further injuries. Appellant was discharged from the hospital on 1-7-1995 and immediately he was arrested. The investigating Officer recorded statements of witnesses, attached articles were sent to the office of Chemical Analyser for examination and thereafter he filed chargesheet against the appellant. 5. Charge (Ex. 7) is framed against the appellant and it was explained to him in Marathi. He denied the charge and claimed to be tried. The defence of the appellant is of total denial. He has denied that he assaulted his second wife Sindhubai by means of an axe and committed her murder. In respect of the injuries sustained by him, he has denied that he attempted to commit suicide. According to him, the witnesses are on cross terms with him and hence they are deposing falsely. He and Police Patil are on cross terms and hence false story is put against him. All the injuries which were found over his body were old. According to him, because of collapse of a stone wall, Sindhubai sustained injuries and she expired. According to him, the witnesses are on cross terms with him and hence they are deposing falsely. He and Police Patil are on cross terms and hence false story is put against him. All the injuries which were found over his body were old. According to him, because of collapse of a stone wall, Sindhubai sustained injuries and she expired. He has not adduced any evidence in his defence. 6. Prosecution examined in all 18 witnesses in support of its case. Learned Additional Judge after considering the evidence on record, came to the conclusion that the confession of the appellant recorded by the Special Judicial Magistrate is proper and lawful and that there is also independent corroboration to the same and thus convicted the appellant. Being aggrieved, the appellant has preferred the present Criminal Appeal. 7. Shri R.M. Borde, learned Advocate for the appellant, initially, attacked on the so called confessional statement of the appellant recorded by Shankar Channya Pagote (PW No. 14) and submitted that Special Judicial Magistrate has absolutely no power to record the confession. According to learned Advocate, such a power is exclusively conferred upon Metropolitan Magistrate or Judicial Magistrate of the First Class or, in case if such a special power is conferred, only in that case, Judicial Magistrate, Second Class, or the Special Judicial Magistrate can record the confession. Learned Advocate submitted that in the present case, Shankar Pagote (PW No, 14), in his evidence, has nowhere stated as to whether he is specifically empowered by the State Government or by the High Court to record confession. According to learned Advocate, in case if this Court comes to the conclusion that the Special Judicial Magistrate (PW No. 14) has no power to record confession of the appellant, in that case, it is not necessary to consider as to whether the retracted confession of the appellant is duly corroborated by the independent evidence on record. It is also not necessary to consider if there are some other circumstances on record to corroborate the contents of the retracted confession so as to come to the conclusion that, in fact, it is a confession, legal and valid, and can be relied upon. The second attack of the learned Advocate is in respect of mode of recording the confession. The second attack of the learned Advocate is in respect of mode of recording the confession. It is submitted that, assuming for the sake of argument that, Special Judicial Magistrate is empowered to record the confession, whether the same is recorded according to the provisions of Section 164 of Code of Criminal Procedure read with Chapter I, paragraphs 17 and 18 of the Criminal Manual. Reference is further made by the learned Advocate that in the present case, the mandatory time of 24 hours is not at all given to the appellant to think over the matter. Lastly, learned Advocate submitted that the learned Additional Sessions Judge has taken into consideration the evidence on record to show that there is independent corroboration to the retracted confession. According to learned Advocate, those circumstances which are brought on record by the learned Additional Sessions Judge are not at all sufficient to warrant conclusion that chain of circumstances is completed against the appellant so as to warrant the only irresistible conclusion that it is the appellant and appellant only who has committed the offence in question. Thus, in short, learned Advocate submitted that it is a case where there is no proper appreciation of evidence and the conclusions drawn are totally wrong and incorrect. 8. Shri Godamgaonkar, learned A.P.P. has tried to distinguish between the provisions of Sections 11 and 14 of the Code of Criminal Procedure and though an attempt is made by the learned A. P.P. to show that the Special Judicial Magistrate can record the confession, it is rather difficult to concur with it. 9. Shri R.M. Borde, learned Advocate, took me through the provisions of Section 3 of Code of Criminal Procedure. It is in respect to construction of reference and particularly in respect of sub-clause (3) which is in reference to the Magistrate of First Class. It means that Magistrate of the First Class is in relation to the Metropolitan Area is to be construed as reference to the Metropolitan Magistrate, exercising jurisdiction in that area and, in relation to any other area, it is to be construed as a reference to Judicial Magistrate of the First Class, exercising jurisdiction in that area. With reference to Section 6 of Code of Criminal Procedure, the heading of Chapter No. II is 'Constitution of Criminal Court and Offices'. With reference to Section 6 of Code of Criminal Procedure, the heading of Chapter No. II is 'Constitution of Criminal Court and Offices'. Section 6 contemplates formation of classes of Criminal Courts, namely (i) Courts of Session, (ii) Judicial Magistrate of the First Class, and in any Metropolitan Area, Metropolitan Magistrate, (iii) Judicial Magistrate of the Second Class; and (iv) Executive Magistrate. These provisions are pointed out by the learned Advocate in respect of his arguments that in respect of classes of Criminal Courts, there is no reference to the Court of Special Judicial Magistrate. Section 1l of the Code of Criminal Procedure is in respect of Courts of Judicial Magistrate and, it is as follows: "11. (1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify: (Provided that the State Government may, after consultation with the High Court, establish, for any local area, one or more Special Courts of Judicial Magistrate of the first class or of the second class to try any particular case or any particular class of cases, and where any such Special Court is established, no other Court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which such Special Court of Judicial Magistrate has been established.) ...... ........... .......... ......... (3) The High Court may, whenever it appears to it to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court." Section 13 of the Code of Criminal Procedure is in respect of special judicial magistrates and Sub-Section (1) is as follows: "13. (1) The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by or under this Code on a Judicial Magistrate (of the first class or of the second class, in respect of particular case or to particular classes of cases, in any local area, not being a metropolitan area:)" Proviso to Sub-Section (1) of Section 13 states; Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify. Sub-Section (2) of Section 13 states. "Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such term, not exceeding one year at a time, as the High Court may, by general or special order direct."' Sub-Section (3) of Section 13 states. "The High Court may empower a Special Judicial Magistrate to exercise the powers of a Metropolitan Magistrate in relation to any metropolitan area outside his local jurisdiction."" 10. Shri Borde, learned Advocate for the appellant, further pointed out the provisions of Section 164 of Code of Criminal Procedure which is in respect of recording of confession and statements. Reliance is placed by the learned Advocate on the very first line of Section 164, "Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of investigation. ........" According to learned Advocate, the words 'Judicial Magistrate' as occurring in Sub-Section (1) of Section 164 are to be construed with reference to Section 11 of Code of Criminal Procedure which is already discussed above. 11. After going through the evidence of Shankar Pagote (PW No. 14), though he states that he is working as a Special Judicial Magistrate for a period of three years at Beed, this very sentence in his evidence appears to be rather doubtful. Especially when the appointment of the Special Judicial Magistrate cannot exceed one year at a time vide Sub-Section (2) of Section 13, it is rather difficult to accept his version that since last three years he is working as a Special Judicial Magistrate. Especially when the appointment of the Special Judicial Magistrate cannot exceed one year at a time vide Sub-Section (2) of Section 13, it is rather difficult to accept his version that since last three years he is working as a Special Judicial Magistrate. Though no questions are put to him in the cross examination, challenging his appointment as a Special Judicial Magistrate, for a period of three years, it is for the prosecution to prove or it is for the witness to produce relevant orders of appointment to show that in fact his appointment was for a period of three years as Special Judicial Magistrate, at that time, much less, he was continued on the same post subsequently. It is further necessary to refer to the letter which was sent by Police Station, Shirur, to him whereby he was directed to record statement of the appellant. This is the letter which was sent by P.S.I., Shirur, Camp Arvee, to the Special Judicial Magistrate, Beed. The subject stated in this letter is to record statement of a person by name Bhausaheb alias Babu s/o Baburao Paul (present appellant). In this letter, it is pointed out by Shri R.M. Borde, that there is no reference as to whether the Special Judicial Magistrate is to record the dying declaration of the patient or his confessional statement. After receiving this letter, Shankar Pagote, PW No. 14, rushed to the hospital on 11-6-1995. He saw the patient appellant in the hospital but it appears that at that time his statement was not recorded. Again, in the evening, say by about 7.15 p.m., he visited the hospital. He ascertained the condition of the appellant as to whether he was in a fit position to give statement. It appears that few preliminary questions were put by PW No. 14 to the appellant in order to ascertain as to whether he was in fit condition to give statement. He disclosed his identity to the appellant and informed him that he is Special Judicial Magistrate: Directions given by P.S.I. to him were also informed to the appellant. He further told the appellant that his statement should be without any pressure and coercion and that it is likely to be used against him in the Court. It appears that the appellant was ready and willing to give his statement. He further told the appellant that his statement should be without any pressure and coercion and that it is likely to be used against him in the Court. It appears that the appellant was ready and willing to give his statement. Immediately thereafter, he recorded the statement of the appellant which, he himself, has styled as confession (Ex.41). In the cross examination, Mr. Pagote (PW 14) has admitted that he had not made endorsement on the statement that he disclosed to the appellant about his designation before recording his statement. No specific endorsement accordingly is made by PW No. 14 on the statement. PW 14 Mr. Pagote has further admitted that the appellant was not given 24 hours time to re-think before recording his statement. According to him, appellant told him that he wanted to give his statement voluntarily as he had felt that he had committed a wrong. Even Mr. Pagote thought that the appellant was giving statement voluntarily. In respect of the contents of letter Ex. 40, Mr. Pagote, PW N o. 14, states that in the letter (Ex. 40) there is nothing shown that he was informed that the accused was voluntarily ready to give his confessional statement. Though Mr. Pagote had gone through the contents of this letter (Ex. 40), he did not feel it necessary to enquire with the police as to whether he was to record the dying declaration of the appellant or the confessional statement. He did not enquire with the P.S.I. whether the appellant was ready to give confessional statement. He has further admitted that he has not made any endorsament on the so called confessional statement that he informed the appellant that in case if he gives such a statement, it is likely to be used in evidence against him. Even Mr. Pagote (PW No. 14) did not feel it necessary to obtain signature of the Nurse or other staff member of the hospital. After perusing the so called confession of the appellant (Ex. 41), on the top of it, it is mentioned that the statement is recorded in view of letter dated 11th June, 1995, issued by P.S.I., Shirur, Camp Arvi. In the so called confession of the appellant, he has simply stated that he was given to understand that his statement would be treated as a confession and that it will be used against him as evidence. In the so called confession of the appellant, he has simply stated that he was given to understand that his statement would be treated as a confession and that it will be used against him as evidence. Still the appellant has shown his willingness to give his confession. It is not necessary to go through the contents of this so called confession. 12. Shri R.M. Borde, learned Advocate for the appellant, pointed out that in this case Special Judicial Magistrate Mr. Pagote was not at all empowered specifically either by the High Court or by the State Government to record confession. Shri Godamgaonkar, learned A.P.P. was not in a position to point out as to whether if Mr. Pagote, PW No. 14, was specifically empowered to record the statement in his capacity as Special Judicial Magistrate. The work regarding confession is specifically assigned to Judicial Magistrate or Metropolitan Magistrate. Even the Executive. Magistrate is not empowered to record confession. The position of a Judicial Magistrate or of Metropolitan Magistrate certainly stands on a different footing. Certainly there is sanctity to the word Judicial Magistrate and/or Metropolitan Magistrate. The act of recording confession under Section 164 of Code of Criminal Procedure is a very solemn act and in discharging his duties under the said Section, the Magistrate must take care to see that requirements of Sub-Section (3) of Section 164 of Code of Criminal Procedure are fully satisfied. It would of course be necessary in every case to put the questions prescribed by the High Court but the questions intended to be put under Sub-Section (3) of Section 164 should not be allowed to become a matter of mere mechanical inquiry. No element of casualness should be allowed to creep in and the magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary. The whole object of putting the question to an accused persons who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise having reference to the charge against the accused person. (The paragraph is taken from page 31 of Chapter No. 1, para 18 of the Criminal Side, Bombay, by A.K. Gupta and S.D. Dighe, Advocates, 1955, Second Edition, Hindu Law House, 28D, Budhwar Peth, Appa Balwant Chowk, Pune). 13. (The paragraph is taken from page 31 of Chapter No. 1, para 18 of the Criminal Side, Bombay, by A.K. Gupta and S.D. Dighe, Advocates, 1955, Second Edition, Hindu Law House, 28D, Budhwar Peth, Appa Balwant Chowk, Pune). 13. Shri Borde has placed reliance on the ruling reported in 1995 Cri LJ 396 (Punj and Har). State of Haryana v. Parmanand), (Para 11). "The provisions of Section 164 of the Code absolutely leave no scope of doubt that the recording of a confession of the accused person during investigation of the case, has been left exclusively to the judicial Magistrate or Metropolitan Magistrate and not to any Executive Magistrate. Thus, the confessional statement of the accused recorded by the Executive Magistrate-cum-Tehsildar cannot be relied upon as it is not admissible in evidence. It cannot be said to be a mere irregularity, especially when it has certainly resulted in prejudice to the accused because the Legislature itself had kept the Judicial Magistrate on better footing than Executive Magistrate qua the recording of such statement." Similarly, in the ruling reported in 1987 Cri LJ 1533 (Gauhati) (Ashim Das v. State of Assam), it is observed in para 16. "We find that the statements of Lili Bala Jagannath and Harmohan were recorded under Section 164 of Cr.P.C. by PW No. 9 Shri Srirrai, an Executive Magistrate. The provision of Section 164, is clear and according to said Section such a statement can be recorded only by a Judicial Magistrate. So the statements recorded by Sri Rai has no value in the eye of law." If the contents of Section 164(3) of Code of Criminal Procedure, together with the principles stated in the ruling stated above are to be taken into consideration, in that case the only inference that can be drawn is that P.W. No. 14, Mr. Pagote might be holding a post of Special Judicial Magistrate, at that time, had absolutely no power to record confession which task is specifically assigned to the Judicial Magistrates and/or Metropolitan Magistrate and hence the so called confession recorded by him is illegal and cannot be relied upon. Virtually it becomes a scrap of paper to which no evidentiary value can be attached. 14. Apart from the aspect as discussed aforesaid, it is further necessary to see as to whether Mr. Virtually it becomes a scrap of paper to which no evidentiary value can be attached. 14. Apart from the aspect as discussed aforesaid, it is further necessary to see as to whether Mr. Pagote (P.W. No. 14) has followed the provisions contained in paragraph 17 and 18 of the Criminal Manual and the aforesaid rules. The guidelines are given by the High Court for recording confessions. Sub-para (viii) of para 18 of the Criminal Manual provides that the Magistrate should give the accused a reasonable time, which should ordinarily not be less than 24 hours, for reflection in circumstances in which he would be free from influence of police and any other person interested in having the confession recorded. In the present case no time for reflection is given to the appellant. Even after going through the so called confession, it is abundantly clear that Mr. Pagote has not taken into consideration the contents of paragraph 17 of Chapter No. 1 of Criminal Manual, much less paragraph 18, sub-paras (i) to (xv). Needless to say that further guidelines which are given from paragraph 5, sub-para (xvi) onwards of Para 18 are not at all taken into consideration. Under these circumstances, the so called confession recorded by Mr. Pagote cannot be treated as confession and it is totally inadmissible in evidence. Learned Additional Sessions Judge, from paragraph 18 onwards, has discussed as to how the confession is admissible in evidence. However, it is difficult to agree with the reasons given by learned Additional Sessions Judge. Learned Additional Sessions Judge was overwhelmed with the fact that at the time of recording the so called confession the appellant was in the hospital and was under treatment. Though it is observed by the Additional Sessions Judge that further deposition in the cross examination disclosed that some time was given to the appellant for reflection; of course, there is no specific evidence by the prosecution as to how much time was given to the appellant for reflection before recording the confession. Reliance is placed by the learned Additional Sessions Judge on the ruling reported in AIR 1978 SC 1248 : (1978 Cri LJ 1251) (Shankaria v. State of Rajasthan). Reliance is placed by the learned Additional Sessions Judge on the ruling reported in AIR 1978 SC 1248 : (1978 Cri LJ 1251) (Shankaria v. State of Rajasthan). However, these observations are not at all applicable to the facts of the present case especially when under paragraph 18 (viii) of Criminal Manual it is mandatory on the part of the Magistrate recording such confession to give appellant reasonable time, which should ordinarily not be less than 24 hours, for reflection in the circumstances ....... These mandatory provisions are not taken into consideration by the learned Additional Sessions Judge. 15. In the light of the aforesaid discussion, it is difficult of (Sic)(to) accept the reasons given by the learned Additional Sessions Judge in paragraph 18 to 20, when the learned Additional Sessions Judge came to the conclusion that the confession recorded by Mr. Pagote, P.W. No. 14, is legal and can be relied upon. These observations are totally wrong; incorrect and cannot be accepted. The learned Additional Sessions Judge has not taken into consideration the provisions of Criminal Manual as stated above much less has wrongly interpreted the provisions of Section 164(3) of Code of Criminal Procedure. It is submitted by Shri R. M. Borde that in case if the so called confession is not accepted as legal and valid, in that case, it is not necessary to consider as to whether there is independent corroboration to the same. DATE : 17-7-1996 16. From paragraph 21 onwards of the judgment, learned Additional Sessions Judge has stated the circumstances and there is also a discussion if the circumstances - the circumstantial evidence which is adduced by the prosecution -- can be accepted as independent corroboration to the so called retracted confession. It is true that the appellant sustained some injuries and, according to the prosecution, after the commission of the offence, the appellant also attempted to commit suicide by climbing on the electric pole and catching live electric wires. The appellant also sustained injuries and he was sent for medical treatment. Dr. Yashwant Bhanudas Khose (P.W. No. 18) examined the appellant at 4 a.m. on 11-6-1995. He noticed following injuries: "(l) Clavicle fracture on left side. (2) Elymoses on left eye with sub-conjuctival. (3) Contusion - thorasic T-8, T-9, T-10 vertebra. (4) Electric burn left hand 1/2 x 1/2 cm. oblique and irregular in shape. Dr. Yashwant Bhanudas Khose (P.W. No. 18) examined the appellant at 4 a.m. on 11-6-1995. He noticed following injuries: "(l) Clavicle fracture on left side. (2) Elymoses on left eye with sub-conjuctival. (3) Contusion - thorasic T-8, T-9, T-10 vertebra. (4) Electric burn left hand 1/2 x 1/2 cm. oblique and irregular in shape. All these injuries were caused within 24 hours by hard and blunt object. Out of the above external injuries, injury No. 1 was grievous in nature while other injuries were simple. He has further stated that external No. 4 is possible by electric shock and in case if a person had a fall from height on a hard surface, external injuries Nos. 1 to 3 are possible. He has noted history of the appellant in respect of injuries sustained by him and P. W. No. 18 Dr. Khose has stated that the appellant attempted to commit suicide by taking live electric wire by climbing electric pole. Dr. Khose has proved the medical certificate (Ex. 66). In the cross examination, Dr. Khose has admitted that he has not written on case papers that the appellant had given history regarding injuries. Even after noting the history of the injuries sustained by the appellant, he has not taken signature of the appellant below the same. Even there is no signature of Dr. Khose below the history of the case which he has written on case papers. The appellant in his statement recorded under Section 313, has denied that he sustained such type of injuries. Curiously, learned Additional Sessions Judge has not asked any question to the appellant with reference to the evidence of Dr. Khose (P.W. No. 18), under Section 313, Cr.P.C. It was necessary to ask these questions in detail to the appellant and to record his answers to the same. From the evidence of Dr. Khose, conclusion can be drawn that the appellant sustained these injuries, however, this particular circumstance cannot be connected as far as the incident in question is concerned. 17. Next circumstance taken into consideration by the learned Additional Sessions Judge is the evidence of Dadasaheb Mohanrao (P.W. No. 11) and Police Patil Goverdhan Mayekar (P.W. No. 1). According to Goverdhan Mayekar (.P.W. No. 1), on 10-6-1995, he went in his field and returned to the residence in the evening. 17. Next circumstance taken into consideration by the learned Additional Sessions Judge is the evidence of Dadasaheb Mohanrao (P.W. No. 11) and Police Patil Goverdhan Mayekar (P.W. No. 1). According to Goverdhan Mayekar (.P.W. No. 1), on 10-6-1995, he went in his field and returned to the residence in the evening. When the was in sleep at that time Dadasaheb Mohan told him about the quarrel between the accused-appellant and his second wife deceased Sindhubai in the cattle-shed which is situated at a distance of one kilometer from the village. P. W. No. 1 collected some persons by name Kachrabai Kadam, Sk. Rashid, Bandu Ambadas and others and went towards the place of incident. He noticed that Sindhubai was lying in the kitchen room and she was lying in a pool of blood. Therefore, he went to Police Station. He did not see the appellant at the spot. The evidence of P.W. No. 1 is not at all corroborated by Dadasaheb (P.W. No. 11) who has turned hostile and did not support the case of the prosecution. According to him, the Police Patil and others went to the residence of appellant in his land and that he did not accompany them. He also did not accompany the Police Patil to the Police Station. There is nothing in the cross examination so as to come to the conclusion that he has corroborated the version, of the Police Patil (P.W. No. 1). Learned Additional Sessions Judge has wrongly observed that from the evidence of Police Patil it becomes substantially clear that some information reached him which prompted him to run to the spot immediately and thus there is corroboration to the evidence of Police Patil (P. W. No. 1). It is difficult to accept these reasons given by the learned Additional Sessions Judge. 18. Thus, from the discussion as stated above, I hold that the so called confession given by the appellant which is recorded by the Special Judicial Magistrate is totally inadmissible in evidence and that the learned Additional Sessions Judge has wrongly placed reliance on it. It is difficult to accept these reasons given by the learned Additional Sessions Judge. 18. Thus, from the discussion as stated above, I hold that the so called confession given by the appellant which is recorded by the Special Judicial Magistrate is totally inadmissible in evidence and that the learned Additional Sessions Judge has wrongly placed reliance on it. There is absolutely no corroboration to the so called retracted dying declaration.(Sic)(contession) Especially when the said confession is to be treated as a scrap of paper, no evidentiary value can be attached to the same and as such there is no question to consider as to whether there is independent corroboration to the same The prosecution has failed to prove the guilt against the appellant under Section 304, Part I of I.P.C. 19. In respect of circumstantial evidence, Shri Borde, learned Advocate for the appellant, has placed reliance on the ruling reported in 1957 Cri LJ 1014 : ( AIR 1957 SC 637 ), wherein it is observed, "(k) It is no doubt a matter of regret that a foul cold-blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted." Accepting the principle as stated in the above ruling, chain of circumstances is not at all completed so as to draw an irresistable conclusion about the guilt of the appellant. Under these circumstances, the Criminal Appeal deserves to be allowed. 20. The Criminal Appeal is hereby allowed. The judgment and sentence passed by the First Additional Sessions Judge, Beed, in Sessions Case No. 168/ 1995, convicting the appellant under Section 304, Part I of I.P.C. and sentencing him to suffer rigorous imprisonment for three years and to pay fine of Rs. 1,000/-, in default to suffer rigorous imprisonment for three months, is hereby set aside and the appellant is acquitted of the said charge against him. The appellant Bhausaheb @ Babu s/o Bajirao Poul be set at liberty unless his presence is required in any other offence. 1,000/-, in default to suffer rigorous imprisonment for three months, is hereby set aside and the appellant is acquitted of the said charge against him. The appellant Bhausaheb @ Babu s/o Bajirao Poul be set at liberty unless his presence is required in any other offence. If the amount of fine is paid, the same be refunded to the appellant. Appeal allowed.