JUDGMENT 1. - The appellant Shyam has been convicted by the learned Sessions Judge, Pali by the impugned judgment dated 19.6.1999, in Sessions Case No. 40/88, for the offence under Section 3021.P.C., and sentenced to imprisonment for life, with a fine of Rs. 100/- in default of payment of fine to undergo further simple imprisonment for one month. 2. The facts of the case are, that according to the prosecution on 11.11.1987 one Abdul Rehman informed Shri Satyanarayan, the then S.H.O. Kotwali, about the appellant having made extra judicial confession in the morning of 11.11.87, to the effect that the appellant Shyam along with his friend Isu s/o Karamchartd Sindhi (Ishwarlal) and Smt. Asha w/o Ganeshgiri committed murder of Ganeshgiri. According to him Asha bargained for Rs. 5000/- with accused Isu. for elimination of Ganeshgiri. Isu asked Shyam to fetch Rs. 2000/- from Smt. Asha, and the rest of Rs. 3000/- would be given after the commission of crime, then on 20.9.87 Asha took Ganesh for Darshan of Parasram Mahadev, where they committed his murder. According to prosecution story, Asha and Ganesh first went to Faina, Shyam and Ishwar went thereafter in a Matador, both party met at Parasram Mahadev, all of them had Darshan, and then came down, there they took liquor, and Ganesh was administered greater quantity of liquor.to the extent that he was fully intoxicated and lost senses. From that spot, they all started to see Kumbhalgarh Fort. After some time on gesture of Asha they all sat there and Ishu (Ishwar Lal) and Shyam Strangulated Ganeshgiri with handkerchief, and threw him beneath the ridge. Ganeshgiri started crying, whereupon Ishu went beneath near him and killed with the help of knife. Thereafter they came to Pali. Asha paid the balance amount of Rs. 3000/- then Shyam and- lshu came to Marwar Junction. Shyam is also alleged to have told Abdul Rehman that on the previous night Ishwar under the influence of alcohol threatened him that if he divulges anything he too would be killed. Thereafter they came to Pali. Asha paid the balance amount of Rs. 3000/- then Shyam and- lshu came to Marwar Junction. Shyam is also alleged to have told Abdul Rehman that on the previous night Ishwar under the influence of alcohol threatened him that if he divulges anything he too would be killed. This information was recorded and police arrested all the three accused persons, decomposed body was recovered, the garments, undergarments and footwear were also recovered from the dead body, the spot was identified, the knife was recovered on the information, and at the instance of accused Shyam, handkerchief was also recovered, and evidence was also collected by the police regarding selling of gold bangles to the goldsmith. After investigation challan was filed against all the three accused persons. 3. During trial the present appellant Shyam applied for becoming approver and the learned Sessions Judge vide order dated 11.1.94 accepted his request and granted pardon to him. Thereafter Shyam was examined by the then Chief Judicial Magistrate under Section 164 Cr.RC. on 23.1.94. On being satisfied with the statement, the present appellant was granted status of approver, and the trial court of the remaining accused was commenced de novo, and the accused appellant Shyam was sent to judicial custody, as per requirement of Section 306 Cr.PC. 4. During trial against the two accused persons, the present appellant Shyam was examined, as RW. 24. on 21.3.94 and 22.3.94 and thereafter was cross- examined on 7.4.94. On all these three dates he maintained his statement dated 23.1.94. However, on 8.4.94, to which date of cross- examination had continued/deferred, he shifted his stand, to the effect that the purportedly exonerated the two accused persons. Ishwar and Asha, and took the entire blame on himself. The result was that those two accused persons were acquitted by the learned trial court vide judgment dated 12.8.1997, for want of evidence. However, since in the opinion of the learned RR the appellant did not comply with the conditions of pardon, the certificate was given under Section 308 Cr.RC. by the RR for the prosecution of the present appellant by moving an application, whereon Cr. Misc. However, since in the opinion of the learned RR the appellant did not comply with the conditions of pardon, the certificate was given under Section 308 Cr.RC. by the RR for the prosecution of the present appellant by moving an application, whereon Cr. Misc. file No. 263 of 1997 was opened, and on 6.1.98 that file was closed with the observation that order has been passed in the original Sessions Case No. 40/88 and that file was directed to be tagged with the original Sessions Case No. 40/88. This is how a fresh file was opened against the appellant on 6.1.98, by order accepting the Public Prosecutor s application mentioned above, and the file of Sessions Case No. 40 of 1988 was directed to be tagged with this file. As the things had it, this file of trial of the present appellant was also assigned the same number of Sessions Case No. 40 of 1988. 5. The learned trial court thereupon explained, the charge under Section 302 I.PC. to the appellant, and that he did not comply with the conditions of pardon, and also to satisfy as to why he should be tried for the said offence. During trial the learned trial court recorded the statements of PW. 1 Abdul Rehman, RW. 2 J.D. Thanvi, RW. 3 K.K. Gupta while the defence examined D.W. 1 Gangasingh, D.W. 2 Lajwanti, and the appellant also appeared under Section 315 Cr.RC. in his defence as D.W. 3. 6. The learned trial court went into the matter thread bare on the question as to whether the accused appellant had violated the conditions of pardon, or not and found accused to have violated the conditions. Thereafter after going through the confessional statements of the appellant as recorded under Section 164, and the statement recorded during trial being Ex. 48 and Ex. 68, and after appreciating the evidence produced in the present trial, including that of the statement of the appellant as D.W. 3, held the appellant guilty as above. 7. During the course of hearing, while perusing the record of the learned trial court, it transpired that the earlier statements of the accused appellant, marked as Ex.R 48 and R 68, are not available on record, though the other evidence being the statement of RWs. and D.Ws. are available. 7. During the course of hearing, while perusing the record of the learned trial court, it transpired that the earlier statements of the accused appellant, marked as Ex.R 48 and R 68, are not available on record, though the other evidence being the statement of RWs. and D.Ws. are available. In that view of the matter, when the record was probed in it revealed that they were marked exhibit in the original sessions case, and as transpired from the order sheets of the present file, that the original record of the sessions case had been sent by the learned trial court to this Court in some other appeal, which was requisitioned by the trial court before recording the statements of RW. 2, 3 and 4, and the statements were recorded after receiving the record, we orally asked the Registry to requisition the record from the Sessions Court telephonically, and it was reported that the record was lying here, which was traced out to have been tagged with D.B. Cr, Appeal No. 154/98 State v. Ishwar Lal, and the same was orally requisitioned and perused. 8. In order to avoid any further confusion and for convenience it is directed that the Registry should place the photo state certified copies of the two statements, Ex. P- 48 and P- 68. available in the aforesaid original record at Pages A- 6/61 onwards and 8/61 onwards, on the record of the present case. 9. Assailing the impugned judgment it is contended by the learned Amicus Curiae, that the present is the case where there is absolutely no evidence against the appellant, and therefore, the conviction is bad. Elaborating the argument it was submitted that, it is settled law that conviction for the offence of murder cannot be recorded solely on the basis of retracted confession, and there should be some other evidence showing involvement of the accused, and in that event of course - he confession may be pressed into service, to lend assurance to the other evidence, and to fortify the conclusion of guilt, but since in the present case, apart from the alleged retracted confession, there is no other evidence, the conviction is bad. 10. The learned RR, on the other hand, has supported the impugned judgment, by contending that under Section 308(1) Cr.RC. 10. The learned RR, on the other hand, has supported the impugned judgment, by contending that under Section 308(1) Cr.RC. if the approver does not comply with the conditions of pardon, he may be tried for the offence, in respect of which the pardon was so tendered, and any statement made by such person accepting the tender of pardon and recorded by Magistrate under Section 164, or by the Court during trial, under sub- section (4) of Section 306, may be given in evidence at such trial. According to the learned PR, in view of this language of Section 308(2) the statement of the appellant as recorded under Section 306(4) is, by itself, a substantive evidence, capable of being given in evidence against him, as required in the event of the person not complying with the conditions of pardon. In the present case according to the learned RR, since it is clearly established that the appellant did not comply with the conditions of pardon, the previous statements were given in evidence in the present trial, and the two statements have been got duly proved from the evidence of RW. 3 K.K. Gupta, they constitute substantive evidence, and bare reading of those statements show, that the appellant is the person who has committed murder of the deceased Ganeshgiri, by inflicting knife injuries. It is also contended by the learned RR that, it is altogether misnomer on the part of the appellant to contend, his previous statement to be a retracted confession, inasmuch as, the appellant had never retracted from his confession, but had only committed breach of conditions of pardon, inasmuch as, the conditions of pardon interalia were, to make a true and complete disclosure of facts before the Court, while in the statement as recorded on 23.1.94, 21.3.94, 22.3.94 and 7.4.94, he did make the true and complete disclosure of facts., showing the involvement of all the three persons in the murder, and it was thereafter on 8.4.94, that by committing breach of the terms of pardon, he changed the version in the manner that, he purported to exonerate the other two accused persons and owned the entire blame on himself. Thus according to the learned RP. even in the statement recorded on 8.4.94, the confession of the appellant, so far he himself is concerned, does very much continue, and therefore it cannot be said to be a retracted confession. Thus according to the learned RP. even in the statement recorded on 8.4.94, the confession of the appellant, so far he himself is concerned, does very much continue, and therefore it cannot be said to be a retracted confession. 11. We have considered the rival submissions, and have gone through the record. 12. According to the Section 306(4). every person, accepting a tender of pardon made under sub- section (1), has to be examined, as a witness in the Court of the Magistrate taking cognizance of the offence, and in the subsequent trial, if any. Then under Section 308, where in regard to a person who has accepted a tender of pardon, the PR certified that in his opinion such person has, either by will fully concealing anything essential, or by giving false evidence, no complied with the condition, on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered, or for any other offence, of which he appears to have been guilty, in connection with the same matter, and also for the offence of giving false evidence but then such person cannot be tried jointly with any of the other accused, and can also not be tried for giving false evidence, except with the sanction of the High Court. Then according to Section 308(2), any statement made by such person accepting the tender of pardon, and recorded by a Magistrate under Section 164, or by a Court under sub- section (4) of Section 306, may be given in evidence against him, at such trial. The only requirement is that, at such trial the accused is entitled to plead that he has complied with the conditions of pardon, and in that event it is for the prosecution to prove that the accused has not complied with the conditions of pardon. 13. Therefore, the things required to be seen in the present case are, as to whether the appellant has committed breach of the conditions of pardon, or rather lias not complied with the requirement of conditions of pardon, and since the previous statements of the accused have already been given in evidence and proved by RW. 3, whether from those statements the offence is proved against the appellant or not? 14. 3, whether from those statements the offence is proved against the appellant or not? 14. Coming to the first question, sufficient it to say that a bare reading of the previous statement of the accused, as given in evidence in the present trial, read with his statement recorded as D.W. 3, leaves no manner of doubt that, so far as the other two co- accused Asha and Ishwar are concerned, in the cross- examination got recorded on 8.4.94, the accused has absolved them by giving statement contrary to the statement as deposed earlier, and is guilty of not complying with the conditions of pardon. A perusal of his statement recorded as D.W. 3, also makes it clear that, even according to him the reason for his giving out this different version was that, he was pressurised by or on behalf of the two other accused Asha and Ishwar, so also by his mother, on the ground that if he does not absolve the other two accused persons, his mother and brothers would also be done to death. Thus even according to the appellant, he did change his version on 8.4.94, while reading of the cross examination as recorded on 8.4.94 shows that he did change in a manner so as to absolve the two accused persons, who according to him were participants along with him, likewise in his statement as D.W. 3, he has maintained that the statement given by him prior to 8.4.94 are the correct statements. Thus, to say the least, even from the bare reading of the evidence of D.W. 3, it cannot be disputed that the appellant did not comply with the conditions of pardon. 15. Coming to the second question, a bare reading of the statements of the accused recorded under Section 306(4), and as reproduced by the learned trial court in the impugned judgment, leaves no manner of doubt that the appellant did commit the murder of Ganeshgiri, in the manner deposed in those statements (Ex.P- 48 and P- 68). Likewise in view of the fact that even as D.W. 3 he has admitted that the statements deposed by him prior to 8.4.94 were correct, it cannot be said to be any retracted confession, rather it continues to be confession un- retracted qua himself. 16. Likewise in view of the fact that even as D.W. 3 he has admitted that the statements deposed by him prior to 8.4.94 were correct, it cannot be said to be any retracted confession, rather it continues to be confession un- retracted qua himself. 16. So far as the contention about the requirement of existence of other evidence as primary evidence, and the allegedly retracted confession being capable of use as a corroborative evidence is concerned, suffice it to say that apart from the fact that, even in the judgment is ... v. ... reported in AIR 1957 SC- 381 , as cited by the learned counsel for the appellant, it has not been held as an absolute rule that confessional statement of the accused cannot be a primary evidence, and can only be a corroborative evidence, the present case stands on different footing, inasmuch as the appellant was given pardon under Section 306 Cr.RC. and it was on that pardon that he made a correct and complete disclosure of all detailed facts regarding the offence, and thereafter, while maintaining his own complicity, he purportedly absolved the other two accused persons, and therefore, by virtue of language of Section 308(2), such statement by itself a substantive piece of evidence given by the accused, and is capable of being used against the accused as evidence. Since as D.W. 3 the appellant has chosen to withstand testimony about, correctness of those statements in our opinion, it cannot be said that, that is only a retracted confession, rather that is a substantive piece of evidence, voluntarily given out by the appellant, to which he is adhering till the last, i.e. even in this trial as D.W. 3 and there is nothing to show any infirmity in that statement, so far as the involvement of the accused appellant is concerned, and a look at those statements does clearly show that, it was the appellant who assisted in strangulating the victim with handkerchief and threw him beneath the ridge, and when the deceased screened from that place, the appellant went there and caused his death by inflicting injuries with knife. Thus from those statements it is clearly established that the appellant did commit the offence of murder of Ganeshgiri.In that view of the matter, we do not find any sufficient ground to interfere with the impugned judgment.The appeal, therefore, dismissed.Appeal dismissed. *******