Judgment : VIKRAMADITYA PRASAD, J. :-, J. ( 1 ) THIS criminal appeal is against the order of conviction and sentence passed on trial by Sri Surya Kant Mishra, Sessions Judge, Hazaribagh, in S. T. No. 17/1992 against the appellant Gobardhan Rajbansi whereby and whereunder the learned trial Court held the appellant guilty of an offence under S. 307 I. P. C. and sentenced him to undergo R. I. for life. ( 2 ) THE appellant admittedly was the husband of the deceased Lodhia Devi. One Md. Aziz, PW1, was unloading a truck of the Dhillan Transport at about 10. 30 to 11. 00 AM on 29-7-1991 when he saw that the accused holding the hand of his wife Lodhiya Devi came out from the shop of Gopal Seth and came in front of his shop and he started assaulting her by spade which he was possessing in his hand, firstly on waist and back and thereafter, on the head of Lodhiya Devi for four times and thus, hit on her head and above her neck on back. Lodhia Devi fell down and a crowd assembled and in the meantime one jeep of Bhera Singh came there on which the said Lodhia Devi was taken to hospital in injured condition. After the crowed had assembled Gobardhan Rajbansi along with spade fled away. The said Md. Aziz made his fardbeyan, Ext. 3, on 24-7-1991 at Golpark Dhillan Transport near Sathish Cinema Hall at 2. 30 hours and alleged that in order to kill his wife the accused had assaulted her in the aforesaid manner. ( 3 ) IT transpires that at 4. 30 p. m. on 24-7-1991 from the bushes standing in the corner of tank near Ganth More in presence of two witnesses, namely, Lal Mohammad, P. W. 8, and Nazir Mohammad (not examined) the police had seized one broken spade. The edge of which was 6" and which had also some blood stains. The seizure list was made Ext. 5 and the signature of the seizure list witnesses put on the seizure list were made Ext. 2 and 2/1. ( 4 ) IT also transpires that incourse of the investigation a confessional statement of the accused under Section 164 Cr. P. C. was recorded, vide Ext. 1. The seizure list was made Ext. 5 and the signature of the seizure list witnesses put on the seizure list were made Ext. 2 and 2/1. ( 4 ) IT also transpires that incourse of the investigation a confessional statement of the accused under Section 164 Cr. P. C. was recorded, vide Ext. 1. ( 5 ) ORIGINALLY the case was instituted under S. 307 I. P. C. , but as later Lodhia Devi Succumbed to her injuries the offence was converted into S. 302 I. P. C. and the accused -appellant was charged for the offence under S. 302 I. P. C. , but was convicted under S. 307 I. P. C. ( 6 ) THE defence version of the case was that the appellant was innocent and has been falsely implicated in this case at the behest of some persons. In the Court below, on behalf of the appellant, written argument was filed. It was seriously contended that after being allegedly assaulted, the injured was taken first to the Nai Saria Hospital and subsequent thereto, she was rushed to R. M. C. H. , Ranchi where she died after treatment, but none of the Doctors of these Hospitals was examined or even made a chargesheet witness. As one Doctor of the R. M C. H. did not turn up before the Court, the post-mortem report could not be proved. Defence claimed that because of the non-examination of the Doctor and non-proving of the injuries on the part of the prosecution, it was not proved that actually what type of injuries had been sustained by the injured /deceased, and reliance was placed on 1986 Est. Cr. C. 700 (1986 Cri. L. J. 1727) (Pat), 1993 Est. Cr. C. 228 (1993 AIR SCW 1123) (A) (SC ). It was argued that how the police came at the P. O. and what was the source of information to the police was not clear and therefore the fardbeyan, Ext. 3, could not be treated as an F. I. R. and the earliest information that was given to the police as per the evidence of P. W. 8 para 7, was deliberately conclealed. It was also not clear as to whether the accused appellant was arrested. 3, could not be treated as an F. I. R. and the earliest information that was given to the police as per the evidence of P. W. 8 para 7, was deliberately conclealed. It was also not clear as to whether the accused appellant was arrested. There is contradiction among the witnesses with regard to the seizure of the spade and it was asserted that according to the seizure list, weapon was seized at 4. 30 p. m. from the Jhari at the corner of the Talab whereas according to the seizure list witness, P. W. 8, para 2, it was seizsed from the P. O. and thus, this contradiction falsifies the seizure of the weapon. Moreover, the seized weapon was not produced in the Court and therefore, the accused was entitled to the benefit of doubt. In this connection, reliance was placed on 1987 East Cr C 658 , 1987 East Cr C 705. It was also argued that non-seizure of the blood stain from the P. O. by the P. W. 10, I. O. , was a serious lapse on the part of the I. O. and the statements of the accused recorded under S. 164 Cr. P. C. was attacked. Reliance was placed on AIR 1992 SC 90, AIR 1978 SC 1248 , 1987 East Cr C 194, AIR 1978 SC 1944, 1986 East Cr C 756 and it was argued that the confessional statement recorded by the Magistrate cannot be relied upon. It was also argued that there was no motive on the part of the accused to kill his wife or to beat her because as per P. W. 4, para 4, para 6 and 8, the relationship between thedeceased and the accused was good and if there was a good relation, then in that circumstance there can be no motive to beat her or kill her. Reliance was made on 1992 East Cr C 180 (Pat ). One material witness, who recorded the fardbeyan and went to the P. O. first and allegedly seized the weapon was not examined and as such the defence suffered prejudice it was also argued that there is evidence that 5-6 other person vide P. W. 1, para 4, were unloading goods and the Manager was also there but they were not made witnesses. Witnesses examined are not trustworthy as there was inherent contradiction in their evidences. Witnesses examined are not trustworthy as there was inherent contradiction in their evidences. The aforesaid arguments that were raised in the Court below in the written argument were also argued before this Court and the citations that have been referred to were also relied upon here by the learned counsel appearing for the appellant. ( 7 ) THE main question is as to whether Ext. 1, which is the confessional statement recorded under S. 164 Cr. P. C. by Sri Jaganath Ram P. W. 3 was rightly rejected by the learned trial Court. Ext. 1 is a plain statement of the convict that was recorded by the learned Magistrate. This statement has L. T. I. of the convict. It was read over to the accused, of course, apparently not by the Magistrate but it appears by the office staff. But this endorsement that the statement was read over does not bear the signature of any person as to who read it over. The orders sheet dated 26-7-1991 simply shows that the confession of the accused under S. 164 Cr. P. C. has been recorded which is annexed on a separate page of the record. The record was forwarded to the Chief Judicial Magistrate. It also transpires from this order that the accused was brought before the Magistrate recording the confession from the judicial custody. It further transpires by the ordersheet dated 25-7-1991 that on that date the accused was produced before the Chief Judicial Magistrate and the police had made a prayer that the confession of the accused under S. 164 Cr. P. C. be recorded. Learned Chief Judicial Magistrate deputed Sri Jagarnath Ram P. W. 3 for this purpose and remanded the accused to Jail custody with a direction that till 26-7-1991 he should be kept in segregation. Thereafter on the next date i. e. 26-7-1991 the accused was produced before the learned Magistrate who ultimately recorded the confession. The aforesaid confession Ext. 1 or the ordersheets referred to above do not show that the accused was warned before recording of his confession or any question to search voluntariness of the confession so recorded was made by the learned Magistrate. There is no certificate appended to the confessional statement under S. 164 Cr. P. C. , but the Magistrate was examined as P. W. 3. There is no certificate appended to the confessional statement under S. 164 Cr. P. C. , but the Magistrate was examined as P. W. 3. In his examination-in-chief he made the following statements :-the accused confessed before me without any pressure and voluantarily. In his cross-examination he said that the accused was produced by the S. I. in handcuff. He further said that he had warned and impressed the accused that he was not under obligation to confess his guilt and if he confessed it could be used against him. Though the Magistrate further adds that this fact he did not record in his statement itself. He has stated that he had not given 2 or 3 days for making his confession, nor he had such a recording in the statements. In para 6, he says that he has not enquired from the accused as to whether the police (Darogaji) wanted to get his confession made under any type of inducement. As usual the appellant retracted from his confessional statement at the stage of recording statements under S. 313 Cr. P. C. and said that he had made his statement under the threat of the police. ( 8 ) THE question therefore now is whether in the face of the aforesaid evidence of recording by the Magistrate, the defect that has been found in the statement has been curable under S. 463 Cr. P. C. Section 164 Cr. P. C. practically consists of two parts - one of substance and the other of form. The next question is what constitutes form and what constitutes substance. Voluntariness is the essence of a confession and this is the material substance behind any confession. The rest part of the requirements under S. 164 Cr. P. C. relates to the form. As found above, the Magistrate in clear terms admitted that he did not ask any question from the accused whether he was under any type of inducement from the side of the police then it sufficiently indicates that the Magistrate badly failed in searching the volunatariness of the accused before recording the confession. Therefore, in the absence of this testing of the voluntariness the very essence of the confession is not proved. Therefore, in the absence of this testing of the voluntariness the very essence of the confession is not proved. Though such questions to test voluntariness must be on the record itself, but even if the Magistrate would have said in this evidence that he had complied with this provision, in that circumstances, as the Magistrate is a competent and reliable witness, this situation could have been met. But in the face of the evidence of the Magistrate himself and in absence of any question to test voluntariness in the record i. e. in the ordersheet or in the statement, I am of the considered view that the substantial aspect of S. 164 Cr. P. C. has not been complied with and even after the examination of the Magistrate as a witness, the defect that exists in the confession has not been cured under S. 463 Cr. P. C. It is, therefore, held that the confession was not duly recorded. The learned trial Court considered this confession as suspicious and also held that it could not be acted upon unless corroborated by other reliable evidence. The learned trial Court, in out opinion, erred in holding that this piece of evidence could be acted upon it was corroborated by other reliable evidence. This confession as it is, for the reasons discussed above, is not only suspicious, but in the circumstances is quite inadmissible and therefore, the learned trial Court could not be used it even if it is corroborated by some other reliable evidence. This very very valuable piece of evidence has thus been lost because of inaptness on the part of the Magistrate, which indicates not only his ignorance of law, but also utter carelessness in his part. He deserves some instruction. Let this aspect be placed before the administrative side of the Honble High Court or if the learned Magistrate is posted in Bihar under the Honble Patna High Court, the matter be placed there through the Registrar General of that Honble High Court. ( 9 ) THE seizure list, Ext. 5, is another piece of evidence which according to the learned counsel for the prosecution that corroborates the allegation against the appellant. The Investigating Officer, who made the seizure, has not been examined. The I. O. , who has been examined in this case, has categorically said that the seizure list has been prepared by him. 5, is another piece of evidence which according to the learned counsel for the prosecution that corroborates the allegation against the appellant. The Investigating Officer, who made the seizure, has not been examined. The I. O. , who has been examined in this case, has categorically said that the seizure list has been prepared by him. P. w. 5 (Lal Mahommad) has admitted his signature on the seizure list but he has said that the Spade, which was allegedly used in the commission of the crime, was seized from the P. O. whereas the seizure list Ext. 5, shows that it was seized from under a bush near a tank. The seized spade was also not placed before the trial Court as a material exhibit to show that it contained some blood stains or not. In view of these two contradictions with regard to the seizure at the P. O. or as stated above at a place other than the P. O. creates a doubt with regard to the seizure itself. and if the seizure is not proved because of the facts discussed above, then another corroborative piece of evidence has been lost. ( 10 ) ON perusal of the record of the trial Court, it transpires that the steps were taken to examine the Doctor who conducted the post-mortem and prepared the post-mortem report. That post-mortem report forms the part of the record but has not been proved even formally and the Doctor was not examined. Thus, this important piece of evidence, that could have corroborated the nature of the assault and thus proved the manner of assault and weapon used in that crime, has also not been proved. This important piece of evidence is again not available. ( 11 ) NOW the question comes as to whether the single eye-witness of the occurrence i. e. P. W. 1 can be believed for upholding the conviction. P. W. 1 is the person who gave his fardbeyan, Ext. 3. He did not come to the P. S. to make fardbeyan, rather, it appears, the police had come and recorded his fardbeyan not at the P. O. but at a place where this witness was working, vide para 11. P. W. 1 is the person who gave his fardbeyan, Ext. 3. He did not come to the P. S. to make fardbeyan, rather, it appears, the police had come and recorded his fardbeyan not at the P. O. but at a place where this witness was working, vide para 11. This witness has said that seeing the occurrence he did not rush to the P. O. It appears that he did not run to the P. O. and saw the occurrence from the place where he was working, which is at a distance of 100 steps vide para 7. He has also stated in para 8 that he was not present at the P. O. In para 9, he has said that the accused used to live near his house and therefore, he knew him from before. A simple question arises that if a person knew a person from before and is present near him and if an occurrence is happening, then it is the natural conduct of the person (witness) to rush to the P. O. and at least try to pacify or even if the occurrence has already taken place, because such an occurrence takes place within a minute, at least to rush and see the condition of the injured. It is a general tendency and he himself admits that a crowd had also assembled there. If the crowd can come then why he did not come there. This is against the natural human conduct. This witness in para 4 has said that at the relevant time when he was unloading the truck there were 5-6 persons also, but he does not know their names. He has also said that the goods were being unloaded in presence of the Manager (Mal Manager Uttar Rahe Tha ). The name of the Manager is Shamim Khan. This witness is rickshaw puller and a labour. It is generally found that the labourers work in a particular concern on daily wage, then it is expected that they should have known the names of at least other labourers. Even if it is believed that for some reasons he did not know the name of other labourers who were present at that time, there also at least at that time Shamim Khan was present there. These persons were the competent witness. Even if it is believed that for some reasons he did not know the name of other labourers who were present at that time, there also at least at that time Shamim Khan was present there. These persons were the competent witness. None of the labourers or even Shamim Khan has been cited as a chargesheet witness or has been examined in this case. The learned trial Court has held that there is no reason to disbelieve this witness and therefore, relying upon this witness, it convicted the appellant. All other witnesses who appeared in the scene simply are hear-say witnesses. For example, P. W. 2 he says that he heard the Hulla that Rajbani has killed his wife after dragging her from the shopof Gopal Seth; from whom he heard it he has not disclosed. But it is also clear that he is also not an eye-witness. P. W. 4 has said that he has seen Gobardhan Rajbansi running away and there was crowd near Dhilan Transport and there sister of Lodhia Devi was raising Hulla that Gobardhan has assaulted Lodhia Devi. Now Munia Devi sister of the deceased is P. W. 5. She has said that Gobardhan caused the death of Lodhia Devi at 10 p. m. but she does not remember the place where she was assaulted but there is a Pan Dokan there. She is a resident of Golpark, Ramgarh, but she does not know the P. O. (she further said that Lodhia had not gone to shop and she had gone to fetch water from the well ). In her cross-examination, she said that when she arrived at the P. O. there she saw the crowd. Thus, it appears that she had arrived at the P. O. after the assault had taken place and crowd had assembled. P. W. 6 is the mother of the deceased. She is not an eye-witness. She has simply said that Lodhia was dead and she was assaulted by the accused. P. W. 7 is simply the driver of the jeep of Bherasi who allegedly took the injured to hospital on jeep. P. W. 8 is the witness of search, Ext. 2, of the spade as also claims to be a witness on fact. She has simply said that Lodhia was dead and she was assaulted by the accused. P. W. 7 is simply the driver of the jeep of Bherasi who allegedly took the injured to hospital on jeep. P. W. 8 is the witness of search, Ext. 2, of the spade as also claims to be a witness on fact. He says that at the alleged time at about 11 he was going to attend his cattle then he saw that Gobardhan had assaulted his wife on head by a spade and the accused then fled away. In his cross-examination, he said that before his reaching near the Dhilan Transport, the accused has already killed his wife. He has assaulted her thrice. In the same breath he said that in his presence the accused did not assault on the waist of the wife. He also said that it is not a fact that the accused has fled away with the spade and with regard to the spade and place of seizure, discussions have already been made. From the circumstances it appears that he has not seen the occurrence. P. W. 9 is a witness from whose shop allegedly the deceased was dragged by the accused and thereafter assaulted. This has come in the fardbeyan as also in the evidence of P. W. 1, the informant. But this witness has said that on the alleged date of occurrence, his shop was closed. The learned trial Court discarded his evidence on the ground that under the influence of the defence, he is saying this. There is nothing on the record to show that this witness was under the influence of the defence. Thus, the learned trial Court relied on the evidence of P. W. 1. ( 12 ) THE defence has made out a case that there was a General Bandh in Ramgarh, though there is no cogent evidence on this point, but one of the witnesses, P. W. 2, has also said in his cross-examination that on that date his betel shop was closed because he had gone to Ramgarh to purchase articles though he denied that his shop was not closed because of General Bandh in Ramgarh. The defence has also not examined the witness to prove that on that date it was a General Bandh in Ramgarh but there appears to be reason to disbelieve P. W. 9 when he says that his shop was closed and to believe P. W. 2 as a person to have heard Hulla whose shop was also closed. ( 13 ) THUS, in our opinion the rejection of the evidence of P. W. 9 or doubting of the evidence of the P. W. 9 is not appreciable. ( 14 ) P. W. 10 is the I. O. He has admitted that he had been given the charge of investigation and prior to that one other I. O. had recorded the F. I. R. He described the P. O. and says that in the East of the P. O. there is a Tea Shop, then sought to it is the shop of Umesh Sao, P. W. 2, in the West there is Dhilan Transport where the P. W. 1 was working and shop of Gopal Seth and the P. O. is a very busy road. Even if it is said that Umesh Saos shop was closed then Narendra Giri, who is the nearest shop-keeper, has not been examined as a witness in this case. This P. W. in para 5 says that he does not know as to at what time the information of occurrence had been received at the P. S. He did not record the evidence of the I. O. who had allegedly recorded the F. I. R. He did not go to the hospital even to check the injured or even he did not go to RMCH where she died. So the evidence of this witness does not lead us to reach any positive conclusion. He has said that he has not recorded in the case diary regarding the seizure of the blood stained soil. So other than the taking the restatement of the P. W. 1, he appears to have done nothing. ( 15 ) ON the basis of the discussions made above, we find that if the shop of Gopal Seth was closed, then the question of dragging of the deceased from that shop itself becomes doubtful or is not at all proved. So other than the taking the restatement of the P. W. 1, he appears to have done nothing. ( 15 ) ON the basis of the discussions made above, we find that if the shop of Gopal Seth was closed, then the question of dragging of the deceased from that shop itself becomes doubtful or is not at all proved. The learned trial Court in the face of the discussions made above was not justified in discarding the evidence of P. W. 9 and ingnoring this part of the evidence. The second question is if the accused was armed with a Belcha, he could have assaulted the deceased then and there and why had he brought the deceased on the road and assaulted her so that many people could speak and see appears to be an unnatural conduct, though the persons who are dare and devil professional in committing murder can do it. ( 16 ) THUS, considering the entire facts i. e. non-examination of other independent witnesses, though they were there and could have been examined, non-proving of the injury report. post-mortem report which could have corroborated the manner of occurrence, the seizure of the weapon of assault becoming doubtful, non-seizure of the blood stained soil from the P. O. by the I. O. and non-disclosure of the first information which reached P. S. because it is nowhere stated that it was the P. W. 1 who had gone to give information to the police derive us to feel that it was nor safer on the part of the learned trial Court to rely upon a sole eye-witness P. W. 1 whose conduct is against the natural conduct of common human being. Consequently, we find that the prosecution has not proved the charge beyond the limits of all reasonable doubts. ( 17 ) CONSEQUENTLY, this appeal has merit and is allowed and the conviction recorded against the appellant is reversed and the sentence set aside. ( 18 ) LET the appellant, who is in jail custody, be set at liberty forthwith, if not wanted in any other case (s ). Appeal allowed. --- *** --- .