Judgment I.P.Singh, J. 1. These three appeals have been heard together as they are directed against the common judgment passed in S.T, No. 563/96 by the 5th Addl. District & Sessions Judge, East Champaran, Motihari. This judgment will govern all of them. Though in all these appeals similar grounds have been taken while dealing with them I will refer to the grounds taken in Cr. Appeal No. 510/2000 filed by Munna Diwan alias Bhuwan Diwan. 2. From the prosecution case it appears that Neha Kumari aged about 6 (six) years, daughter of the informant -Awadh Kishore Prasad (P.W.12) had gone out at about 2 P.M. on 15.7.1996 for playing. She, however, did not return back to the house. On this P.W. 12 alongwith his father Laxmi Prasad went out in her search but could not find her. On the next day (16.7.1996) at about 3 P.M. Madan Kishore Prasad (P.W. 6) came to the informant (P.W.12) and disclosed him that in the night between 15th/16th July, 1996 at about 11 P.M. while P.W. 6 alongwith Gauri Shanker Prasad (P.W. 4) was going to attend the call of nature they noticed appellant Munna Diwan with a gunny bag on his head. The rest two appellants were also with him. On enquiry they disclosed that they are carrying certain articles. P.Ws. 4 and 6 returned back to their houses and on the following day they had to go outside the village. When on their return they learnt about the missing of the deceased Neha Kumari they came to P.W. 12 and informed him about this incident. 3. On having come to learn about it, P.W.12 and other villagers started searching for appellant Munna Diwan. While they were moving in the village they could notice him while he was trying to escape. On chase this appellant was caught in course of which he sustained certain injuries. He confessed before the villagers about having committed the offence of murder. In the meantime, the Sub Inspector of Police Subodh Choudhary (P.W. 16) also reached there and asked questions to appellant Munna Diwan. He confessed his guilt which was, however, not recorded on the same day. P.W. 16 also found marks of injury on the person of this appellant. The police after completing investigations submitted charge sheet. The cognizance of the offence was taken and the case was committed to the court of session. He confessed his guilt which was, however, not recorded on the same day. P.W. 16 also found marks of injury on the person of this appellant. The police after completing investigations submitted charge sheet. The cognizance of the offence was taken and the case was committed to the court of session. It was finally heard by the learned 5th Additional District & Sessions Judge, East Champaran, Motihari who convicted the appellants under section 364A of the Indian Penal Code and sentenced each of them to imprisonment for life. He further convicted each of them under section 302/34 of the Indian Penal Code and awarded the sentence of imprisonment for life. Further the appellant were convicted under section 201 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for 7 years each. The sentences were ordered to run concurrently. 4. In these appeals the appellants have contended that the whole case is based on circumstantial evidence. No body has seen them taking away the deceased nor there is any eye witness on the point of killing of the deceased or disposing of the body. Only taking away a gunny bag on head can hardly go to show that a dead body was being carried in it. It is alleged that the deceased girl was kidnapped from outside the Video Hall in broad day light. This story cannot be believed as it would have certainly attracted the attention of the villagers. The rope alleged to have been used in the strangulation of the deceased has not been identified by P.Ws. So far as the confession is concerned; it is relevant to state here; that soon after the appellant, Munna Diwan was caught, the police also reached there and his confessional statement which was made in presence of the police was neither recorded by the police nor by anybody else, at the time when this statement was made. Independent and competent witnesses have not been examined in this case. There is no material to prove the alleged confessional statement made by the appellant Munna Diwan. On these grounds, amongst others, it has been contended that these appeals be allowed and the appellants be acquitted of the charges framed against them. 5. I have heard the parties in detail. Independent and competent witnesses have not been examined in this case. There is no material to prove the alleged confessional statement made by the appellant Munna Diwan. On these grounds, amongst others, it has been contended that these appeals be allowed and the appellants be acquitted of the charges framed against them. 5. I have heard the parties in detail. On behalf of the State it has been contended that the case is based on circumstantial evidence as also on the confessional statement made by the appellants Munna Diwan. As against it on behalf of the appellants it has been contended that the law with respect to the circumstantial evidence has not been specified and so far as the confessional statement of appellant, Munna Diwan, is concerned it is not admissible in the evidence in view of the fact that it has been made in presence of the police officer and is hit by section 25 of the Indian Evidence Act. In view of these submissions I will proceed to examine these contentions in detail. 6. I will firstly take up for consideration the submission made on behalf of the parties with respect to the circumstantial evidence. From the facts of this case it is clear that there is no eye witness of the alleged occurrence. No body has seen any of the appellants committing the alleged offences under section 302/34 of the Indian Penal Code or section 364 of the Indian Penal Code or even under section 201 of the Indian Penal Code. The prosecution has based this case on the circumstantial evidence. It is, therefore, necessary to examine the law on the point. 7. It is will settled in law that conviction can be based on circumstantial evidence provided it is consistent only with the guilt of the accused and wholly inconsistent with his innocence. On this point I will firstly refer to the case of Laxmi Raj Shetty and Anr. vs. State of Tamil Nadu (A.I.R. 1988 S.C. 1274). 7. It is will settled in law that conviction can be based on circumstantial evidence provided it is consistent only with the guilt of the accused and wholly inconsistent with his innocence. On this point I will firstly refer to the case of Laxmi Raj Shetty and Anr. vs. State of Tamil Nadu (A.I.R. 1988 S.C. 1274). In this decision it has been held as follows: "In case in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and the circumstances so established should not only be consistent with the guilt of the accused but they must in their effect be such as to be entirely incompatible with the innocence of the accused and must exclude a reasonable hypothesis with the innocence." From this decision it would appear that in order to prove the guilt of an accused on the basis of the circumstantial evidence it has to be seen that the conclusion of guilt sought to be drawn must be fully established beyond any reasonable doubt. The circumstance so established should only be consistent with the guilt of the accused and would be wholly inconsistent with his innocence. 8. The same view appears to have been taken by the Hon ble Supreme Court in the case of Kishore Chand vs. State of Himachal Pradesh (A.I.R. 1990 S.C. 2140). In this decision which lays down the law of circumstantial evidence it has been held as follows: "In case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. Ail the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed." Further in this decision it has held that if those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis. 9. They should be such as to exclude every hypothesis but the one proposed." Further in this decision it has held that if those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis. 9. In view of these authoritative pronouncements of the Hon ble Supreme Court with respect to the circumstantial evidence I will now proceed to examine it so far as the facts of the present case are concerned. To begin with there is evidence of P.Ws. 4 and 6 to the effect that in the night between 15th/16th of July, 1996 they had seen the appellants out of whom appellant Munna Diwan was carrying a bag on his head. On the basis of this statement of P.Ws. 4 and 6 it cannot be concluded that this appellant was carrying the dead body of the deceased in the bag. As stated above the circumstantial evidence must be fully established and should not admit of any other possibility. Hence this circumstance can hardly go to establish the guilt of the appellants. 10. Another circumstance to which my attention has been drawn is the fact that when the dead body of the deceased was taken out from the bag a Rassi was tied around the neck. This fact has been stated in the Fardbeyan (Ext. 6) in which also it has been stated that the appellant Munna Diwan after having confessed his guilt had gone to his Gohal and had taken out another piece of this Rassi and on comparison both the pieces of Rassi were found to be identical and part of the same Rassi. On the basis of this admission of the guilt by this appellant it has been submitted that this circumstance of finding identical Rassi one tied to the neck of the deceased and other recovered from the Gohal of the appellant, Munna Diwan will clearly go to establish the prosecution case. The Rassi which was found tied on the neck of the deceased has not been produced in the court by the prosecution. Of course the Rassi which was taken out from the Gohal of Appellant, Munna Diwan has been produced in court and has been marked as Material Ext. I. The informant has been examined on this point and initially he has stated that Material Ext. Of course the Rassi which was taken out from the Gohal of Appellant, Munna Diwan has been produced in court and has been marked as Material Ext. I. The informant has been examined on this point and initially he has stated that Material Ext. I is the same Rassi which was seized from Gohal of appellant, Munna Diwan. However in answer to the courts questions he admitted that Material Ext. I is of Plastic while the Rassi found tied to the neck of the dead body of the deceased was of Patua. He has further admitted that Materials Ext. I is not that Rassi a part of which was used for tieing with the neck of the deceased. From this it would appear that the prosecution has not been able to prove that two Rassis were parts of the same whole; one part tied with the neck of the deceased while other part was kept concealed in the Gohal of this appellant. It is no bodys case that the Rassi used to throttle the deceased was of Plastic. The informant (P.W.12) has clearly admitted that it was of Patua and not of Plastic. From this also it would appear that Material Ext. I is not the part of that Rassi which was used to throttle the deceased. In this connection reference may be made to the evidence of Dr. Bishwanath Agrawal (P.W. 11) who has stated in his evidence that he did not find any legation mark around the neck of the deceased. He also did not find the neck stretched as could have happened if the deceased would have been strangulated with the help of a Rassi. From the evidence of P.W. 11 it would appear that the story of strangulation has not been supported by the medical evidence on record and the story of Rassi has been falsely introduced in the case to prove the charges against the appellants. However, on this point also; as admitted by the informant (P.W. 12) himself; that Material Ext. 1 is of plastic and not part of the same Rassi (which was of Patua) used to strangulate the deceased. This also clearly goes to show that this part of the story of the prosecution is not established on the basis of the evidence on record. 11. 1 is of plastic and not part of the same Rassi (which was of Patua) used to strangulate the deceased. This also clearly goes to show that this part of the story of the prosecution is not established on the basis of the evidence on record. 11. It is alleged by the prosecution that on being caught the appellant Munna Diwan has confessed his guilt before the villagers as also before the S.I. of Police who had reached there while this appellant was still making his confessional statement. It has to be stated here that the dead body of the deceased was not recovered on the basis of the confessional statement made by this appellant. It was only after the recovery of the dead body that a search was made for this appellant who was apprehended on a chase. 12. The law with respect to the confession may briefly stated as follows: "The word "confession" has not been defined in the Evidence Act. For the first time this expression comes in section 2H of this Act under the heading "admission". So it is clear that confessions are merely one species of admission. Now the question is as to what admission amounts to confession? This question has been set at rest by judicial council of the Privy Council. In the famous case of Pakala Narayan Swami vs. Emperor (A.I.R. 1939 Privy Council 47) in which it has been held that no statement that contains self exculpatory statement can amount to a confession. It was further held that a confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence. 13 It is alleged that appellant, Munna Diwan, had made extra judicial confession before the informant, other villagers and also in presence of the S.I. of Police (P.W.16). Thus confession is known in law as extra judicial confession in which the maker admits to have committed the alleged offence. What are extra judicial confessions? They are those that are made by an accused elsewhere than before a Magistrate or in a court. An extra judicial confession can be made to any person or to a body of persons. It is not necessary that the statement should be addressed to any definite person. What are extra judicial confessions? They are those that are made by an accused elsewhere than before a Magistrate or in a court. An extra judicial confession can be made to any person or to a body of persons. It is not necessary that the statement should be addressed to any definite person. An extra judicial confession can be defined to be a free and voluntary confession of guilt by a person accused of a crime in course of a conversation before persons than a Judge or a Magistrate or in a court. In this connection reference may be made to section 25 of this Act which declares that any confession made before the Police Officer shall not be proved against a person accused of any offence. In the present case it will subsequently be seen that the alleged statement was made to the Police Officer (P.W.16) or at least in his presence. 14. A confession must be voluntary. The same principle applies to the extra judicial confession also. If making of a confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against fhe accused and proceeding from a person in authority and sufficient in the opinion of the court to give the accused grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of temporal nature, in relation to the proceeding against him, it will not be relevant and cannot be proved against a person making the statement. Section 24 of the Evidence Act lays down the law for the exclusion of the confession which are not voluntary in nature. 15. In general, a non-voluntary confession is that which has been induced by the hope of receiving some benefit or by the fear of suffering some injuries in connection with pending proceeding and which has been held out to the declarant by a person in an authority. A confession caused by inducement, threat or promise will not amount to confession. The term inducement involves a threat of prosecution if the guilt is not confessed and a promise for forgiveness if it is so done. Before a confession can be received as such it must be shown that it was freely and voluntary made. A confession caused by inducement, threat or promise will not amount to confession. The term inducement involves a threat of prosecution if the guilt is not confessed and a promise for forgiveness if it is so done. Before a confession can be received as such it must be shown that it was freely and voluntary made. This means that the confession must not be obtained by any sort of threat or violence. 16. As per section 24 of this Act the inducement, threat or promise must come from a person in authority. A person is authority within the meaning of section 24 is one who by virtue of his position wields some kind of influence over the accused. This term will also include any person who for the time being wields influence over the accused. It is well settled that a confession made under coercion is irrelevant as has been held in the case of Brijbasi Lal Shrivastava vs. State of Madhya Pradesh (A.I.R. 1979 S.C. 1080). Even as per section 316 of the Code of Criminal Procedure, 1973 (in short the Code) no influence by means of any promise or threat or otherwise shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge. 17. Coming to the facts of the present case it appears that the appellant Munna Diwan was caught by the villagers after a hot chase at the time when he had tried to escape. He was surrounded by the villagers including the informant. The Fardbeyan (Ext. 6) shows that at that time he had marks of injuries on his person. Ext. 6 further shows that in course of his chase and arrest he sustained some injuries. Even the I.O. (P.W.16) has stated in his evidence that he forwarded an injury report for medical examination of the injuries found on the person of the this appellant. From this it would become perfectly clear that at the time when Munna Diwan was caught by the villagers he had sustained certain injuries on his person. D.W. 1 has proved the injury report (Ext. A). Another important thing to be noted in this connection is that while this appellant was caught and surrounded by the villagers with a number of the injuries on his person no body come to support him. D.W. 1 has proved the injury report (Ext. A). Another important thing to be noted in this connection is that while this appellant was caught and surrounded by the villagers with a number of the injuries on his person no body come to support him. Can it be said that he made a voluntary confessional statement before the villagers and the I.O. (P.W.16)? Under the circumstances it can be safely concluded that any statement made by him cannot be said to be voluntary. 18. As stated above, appellant, Munna Diwan, has made his confessional statement in presence of the Police (P.W.16). P.W. 5 has admitted this position. P.W. 6 has stated that the statement of this appellant was taken after the arrival of P.W. 16 (I.O.). So far as P.W. 16 is concerned he has stated that he had questioned this appellant and in reply to which this appellant has confessed his guilt. He has, however, stated that he did not reduce the statement made by this appellant into writing. He recorded his statement on the following day. Even then he found marks of injury on the person of this appellant. In this connection I have already referred to section 25 of the Evidence Act which makes the confessional statement made before the police irrelevant. Therefore, any confessional statement said to have been made by this appellant can hardly be said to be voluntary and free from any inducement, threat or promise. It is also hit by section 25 of the Evidence Act. 19. It is the admitted position that at the time of making the confessional statement he had injuries on his person. Even the I.O. (PW.16) had found injuries on his person and had prepared the injury report which he sent to the Doctor for medical examination. On behalf of the prosecution it has been submitted that while this appellant was still making his confessional statement P.W. 16 had reached there and a part of the confessional statement was made in presence of this Police Officer. On this ground it has been contended that this statement will not be hit by section 25 of the Evidence Act. However P.W.16 has himself stated that he had questioned appellant, Munna Diwan and before him also this appellant confessed his guilt. In this connection a reference may be made to the case of Kishore Chand (supra). On this ground it has been contended that this statement will not be hit by section 25 of the Evidence Act. However P.W.16 has himself stated that he had questioned appellant, Munna Diwan and before him also this appellant confessed his guilt. In this connection a reference may be made to the case of Kishore Chand (supra). In this case also the prosecution case was that the extra judicial confessional statement was made in presence of Pradhan who had accompanied the I.O. after the Officer had got the accused identified as a person last seen with the deceased. Further case of the prosecution in the said case is that thereafter the police officer left the place it was held that it was incredible to believe that the Police Officer after having got identified the accused as the one last seen in the company of the deceased would have left the accused without taking him into custody. Further it was observed that with a view to avoid the rigour of Section 25 and 26, the Officer created an artificial scenario of his leaving for further investigation and kept the accused in the custody of the Pradhan to make an extra judicial confession. This part of the story was not believed by the Hon ble Supreme Court as reported in this decision. From the above discussions made above it becomes perfectly clear to me that no conviction can be based on this type of extra judicial confession. 20. In the present case, however, on behalf of the appellants it has been contended that even this extra judicial confession was retracted by this appellant. When there is no circumstances to connect the accused with the alleged offence except retracted extra judicial confession the conviction cannot solely be based on it as has held in the case of Sakhara Shankar Bansode vs. State of Maharashtra (A.I.R. 1994 S.C. 1594). 21. From the detailed discussions made above I find that the prosecution has not been able to prove the charges against the appellants. I have carefully gone through the judgment under appeals and I find that it suffers from manifest errors and cannot be sustained in the eyes of law. 22. In the result these appeals are allowed and the judgment of conviction of the appellants under the sections mentioned above is set aside. The appellants are directed to be set at liberty. I have carefully gone through the judgment under appeals and I find that it suffers from manifest errors and cannot be sustained in the eyes of law. 22. In the result these appeals are allowed and the judgment of conviction of the appellants under the sections mentioned above is set aside. The appellants are directed to be set at liberty. It has been stated that the appellant, Shambhu Ram is in jail. He is ordered to be released forthwith if not wanted in any other case.