Judgment NAOLEKAR, J. ( 1 ) BRIEF narration of the facts necessary for the adjudication of the question involved in this appeal is that on 31-5-1976 at 2 p. m. an F. I. R. was lodged by Mani Ram PW. 2, uncle of the accused-appellant Sultan Ram, alleging that his elder brother Ganesha Ram resides in his dhani at 3 KSD along with his two married sons Sultan (accused-appellant), Sahab Ram (PW. 4) and other members of the family. At about 3 a. m. Lachhu Ram (PW 3) son of Ganesha Ram came to his dhani and informed him that Sultan has killed his wife Rupa. On this information, he went to the house of his brother along with Thakur Ram. There they saw on the northern side of the bakal Smt. Rupa lying dead. Ganesha informed him that Sultan had killed his wife by throttling her and after committing the act he had run away. Sultan was not found there. In the morning Lachhu was sent on a camel to 2 KSD. When he returned he informed that Ganesha Ram was seen hanging near the canal, they reached the spot and saw Ganesha Ram hanging. On this information, the police started investigation. ( 2 ) THE accused was arrested on 4-6-1976 and was later on sent to judicial custody on 10-6-1976. Post mortem of the dead-body of deceased Rupa was conducted by P. W. 12 Dr. Sahdev Singh Shekhawat on 31-5-1976. Accused-appellants confessional statement admitting the guilt was recorded by Munsiff Magistrate Shri Hazari Lal PW 9 on 11-9-1976. The trial Court after trial has found the accused-appellant guilty under Section 302, I. P. C. for committing the murder of his wife and sentenced him to undergo life imprisonment. Sahdev Singh Shekhawat on 31-5-1976. Accused-appellants confessional statement admitting the guilt was recorded by Munsiff Magistrate Shri Hazari Lal PW 9 on 11-9-1976. The trial Court after trial has found the accused-appellant guilty under Section 302, I. P. C. for committing the murder of his wife and sentenced him to undergo life imprisonment. While convicting the accused the learned Sessions Judge has relied upon circumstantial evidence that (i) accused and the deceased were last seen together before the death of deceased Rupa, (ii) after hearing the cry of the deceased the witnesses reached the spot and they did not find the accused present, (iii) there was difference of age - the deceased being older than her husband (accused) which caused inferiority-complex in the accused prompting him to commit the crime, (iv) the death was caused by squeezing the neck with hands and the accused had an opportunity to do that, (v) the accused remained absconding after the incident and was produced at the police station by his uncle Mani Ram, and (vi) the accused has admitted his guilt before the Magistrate under Section 164, Cr. P. C. According to the learned Sessions Judge the circumstances are sufficient to point the finger of guilt towards the accused and exclude all reasonable possibilities of any other person committing the crime. ( 3 ) PROSECUTION witnesses PW. 3 Lichhu Ram is the younger brother of the accused-appellant. He has stated that Kalawati, younger sister of deceased Rupa was married to his another brother Sahab Ram who used to sleep in the angan whereas Sultan and his wife used to sleep in the bakal. He, his father and mother used to sleep near the diggi outside the house. He has further stated that Sultan was not present at the house on the day Rupa died, he had gone to their field for irrigation and had not returned. After the death of Rupa he went to call Sultan at the field but he (witness) did not find him there. He has further stated that after the death of Rupa he found his father Ganesha Ram scared and he had said that he committed a mistake and the police would apprehend him. Thereafter, he left the place. In the morning he saw his father hanged. He has further stated that after the death of Rupa he found his father Ganesha Ram scared and he had said that he committed a mistake and the police would apprehend him. Thereafter, he left the place. In the morning he saw his father hanged. He further stated that his father was not happy with Rupa on account of her having acquaintance with one Rup Ram Bawari. PW 4 Sahab Ram is brother of the accused who has stated that on the fateful night Sultan was not present in the house and had gone to the fields for irrigating. On the relevant day, his wife was sleeping in the angan whereas Rupa (deceased) was sleeping alone outside the dhani. His father Ganesha was not happy with Rupa because of her intimacy with Rup Ram Bawari. His father had informed him after the death of Rupa that he had committed a mistake and the police will round him up. He had also said that the police will arrest him on account of the death of Rupa and, thereafter, he went away. Kalawati P. W. 5 is younger sister of deceased Rupa. She has deposed that she used to sleep along with her husband in the angan and Rupa along with her husband Sultan used to sleep outside the house. Her parents-in-law and other members of the family used to sleep near the diggi. On the relevant day, she woke up hearing the cry of her sister. She went to her mother-in-law and told her that she heard the cry of Rupa. On that they went to the place where Rupa was sleeping and they saw her dead. Sultan was not present there at that time. She also said that she observed Ganesha to be scared and upset for something. PW. 6 Paro is the mother of the accused. She has narrated that number of persons used to sleep outside the house. Kalawati had awakened her and they say Rupa dead. Sultan was not present there. She has deposed that at about 9-10 Sultan had gone to irrigate the fields and Rupa was sleeping alone. She had acquaintance with one Rup Ram Bawari and Ganesha Ram was annoyed with her over it. Ganesha appeared scared and said that police will arrest him. ( 4 ) FROM the aforesaid statements it cannot be said that the accused and deceased were last seen together. She had acquaintance with one Rup Ram Bawari and Ganesha Ram was annoyed with her over it. Ganesha appeared scared and said that police will arrest him. ( 4 ) FROM the aforesaid statements it cannot be said that the accused and deceased were last seen together. The statements of the witnesses are to the effect that the accused went to irrigate the fields and Rupa was sleeping alone. It has not been proved by the prosecution that the accused came back after irrigating the fields and they had seen him sleeping along with Rupa. Therefore, there is no proof that the accused and the deceased were last seen together before the death of Rupa. It cannot also be said that after the incident the accused was seen missing from the place of incident as the witnesses have said that he went to irrigate the fields prior to the incident and had not returned. The notion that the accused had inferiority complex which led to commission of the crime is actually conjecture and surmise based on no material on record. It cannot be said that the accused is the only person who had an opportunity for commission of the crime. On the face of the evidence that number of persons used to sleep outside the house. The accused having absconded and produced by his uncle Mani Ram before the police and being arrested on 4-6-1976 could not alone be taken to be incriminating circumstances. As a matter of fact, to base conviction upon circumstantial evidence it is necessary that all the incriminating facts and circumstances should be fully established by cogent and reliable evidence. The facts so established must be consistent with the guilt of the accused and should not be capable of admitting any other reasonable hypothesis. The evidence adduced by the prosecution should invariably lead to the inference which can be said to be consistent with the guilt of the accused. The circumstances relied upon by the learned Sessions Judge on appreciation of the evidence do not conform with the well-established proposition of law above mentioned. ( 5 ) WE are now left with the evidence of confession made before the Magistrate under Section 164, Cr. P. C. In this regard, certain facts are necessary to be observed. The circumstances relied upon by the learned Sessions Judge on appreciation of the evidence do not conform with the well-established proposition of law above mentioned. ( 5 ) WE are now left with the evidence of confession made before the Magistrate under Section 164, Cr. P. C. In this regard, certain facts are necessary to be observed. The accused was arrested on 4-6-1976 and was in the police custody up to 10-6-1976 till he was produced before the Magistrate and was sent to judicial custody. After the accused was sent in judicial custody an application for recording confessional statement Ex. P/14 was moved by the police, stating that the accused is in judicial custody in the jail of Raisinghnagar and is willing to make confession of his guilt and, therefore, his statement be recorded. This application is dated 10-6-1976 moved by Indrajit Singh, SHO Anopgarh. The confessional statement of the accused was recorded on 11-6-1976. On 11-6-1976, an application was moved Ex. D/2 by Gajanand ASI for the certified copy of the confessional statement recorded of the accused. On 16-7-1976 an application was moved by the accused retracting the confessional statement. ( 6 ) ACCORDING to PW. 9 Hazari Lal, Magistrate he started recording the statement at 11. 30 a. m. and finished that within 20-25 minutes. Sultan was produced in his Court at 11. 30 a. m. and left his court at about 12 in the noon. It is not known as to who had produced the accused before him. This witness has deposed that he informed the accused that it is not necessary for him to make a confession and that if he does it will be used against him in evidence. The accused after understanding this had made the confession. He has recorded the statement as has been said by the accused. Nothing has been added or substracted from the statement. In Shivappa v. State of Karnataka, 1995 Cri LR (SC) 61 : ( AIR 1995 SC 980 ), Justice A. S. Anand delivering the judgement for the Bench, has observed as under (at p 982 of AIR) :"from the plain language of Section 164, Cr. P. C. and the Rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused under Section 164, Cr. P. C. and the Rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused under Section 164, Cr. P. C. is manifest that the said provisions emphasise an inquiry by the Magistrate to ascertain the voluntary nature of the confession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the confessional statement of an accused under Section 164, Cr. P. C. The failure of the Magistrate to put such questions from which he could ascertain the voluntary nature of the confession detracts so materially from the evidentiary value of the confession of an accused that it would not be safe to act upon the same. Full and adequate compliance not merely in form but in essence with the provisions of Section 164, Cr. P. C. and the Rules framed by the High Court is imperative and its non-compliance goes to the root of the Magistrates jurisdiction to record the confession and renders the confession unworthy of credence. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of an accused. In case the Magistrate discovers on such enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is asked to make his statement and should assure himself that during the time of reflection he is completely out of police influence. "the decision of the Supreme Court clearly lays down that the Magistrate should be very particular to see that the confession is made by the accused with free mind and on his own will. This duty is not merely in form but in substance and has to be fulfilled by the Magistrate to give credibility to the confessional statement made by the accused. ( 7 ) IT appears from the evidence of PW. This duty is not merely in form but in substance and has to be fulfilled by the Magistrate to give credibility to the confessional statement made by the accused. ( 7 ) IT appears from the evidence of PW. 9 Hazari Lal that he had not satisfied himself that the accused was completely free of any influence which was to necessary because the accused was in police custody till he was produced before him on 10-6-1976 and was in judicial custody only for a day. The confessional statement was recorded at 11. 30 a. m. within a short span of time after he was produced in his Court. It appears that the police personnel were present in the Court when the accused was produced and his statement was recorded as is evident from the application Ex. D/2 moved on 11-6-1976 for certified copy of the statement recorded by the Magistrate which indicates that police personnel were keeping watch on the ongoing proceedings. The Magistrate has also not extracted from the accused as to why and under what circumstances he is making the confessional statement. The confessional statement has been retracted by the accused on 16-7-1976. It is settled rule of evidence that unless a retracted statement is corroborated in material particulars it is not prudent to base a conviction on its strength alone. ( 8 ) IN the confession recorded of the accused he has said that he has squeezed the neck of this wife Rupa with both hands sitting on her chest. The medical evidence does not support this statement. According to Dr. Shekhawat P. W. 12 the death was caused due to asphyxia on account of the ligature on the neck. Modis text-book on Medical Jurisprudence and Toxicology, XXI Edition describes ligature marks as under :"ligature Mark.- This is a well-defined and slightly depressed mark corresponding roughly to the breadth of the ligature, ususally situated low down in the neck below the thyroid cartilage, and encircling the neck horizontally and completely. The marks are multiple if the ligature is twisted several times round the neck, also more than one firm knot of the ligature is certain of homicide. . . . 2. If the fingers are used (throttling) marks of pressure by the thumb and finger tips are usually found on either side of the windpipe. The marks are multiple if the ligature is twisted several times round the neck, also more than one firm knot of the ligature is certain of homicide. . . . 2. If the fingers are used (throttling) marks of pressure by the thumb and finger tips are usually found on either side of the windpipe. The thumb mark is ordinarily higher and wider on one side of the front of the neck, and the finger marks are situated on its other side obliquely downwards and outwards and one below the other. . . . . . . "on post mortem, ligature marks were found on the dead-body on the neck and not the thumb-marks. Thus the medical evidence does not corroborate the confessional statement made before the Magistrate that the death was caused by use of hands. For the aforesaid reasons, we do not find the confessional statement made before the Magistrate reliable and sufficient for convicting the accused appellant for causing the death of his wife Rupa. The circumstantial evidence produced by the prosecution does not unequivocally prove that the accused was the person who caused the death of the wife Rupa. ( 9 ) ACCORDINGLY, this appeal is allowed. The conviction and sentence of the accused-appellant is set aside. The accused-appellant is in custody. He shall be set at liberty forthwith. Appeal allowed.