Judgment M.L.Visa, J. 1. As all these three appeals are directed against the judgment and order dated 28-2-1987 passed by Additional Sessions Judge II Gaya in Sessions Trial No. 393 of 1994/24 of 1994 convicting and septencing appellants Rajesh Kumar Singh and Madan Singh, both appellants of criminal No, 93 of 1997 and appellant Lallu Singh, appellant of criminal appeal No. 126 of 1997 and appellant Sanjay Kumar Singh, appellant of criminal appeal No. 165 of 1997 to undergo rigorous imprisonment for ten years for the offence committed u/s. 364 of Indian Penal Code (In short " Indian Penal Code, 1860 "), rigor-cue- imprisonment for five years for the offence committed u/s. 387 of Indian Penal Code, 1860 , rigorous imprisonment for life for the offence committed u/s. 120B of Indian Penal Code, 1860 , rigorous imprisonment for five years for the offence committed u/s. 365 of Indian Penal Code, 1860 , rigorous imprisonment for life for the offence committed under Secs. 302/34 of Indian Penal Code, 1860 and rigorous imprisonment for five years for the offence committed u/s. 201 of Indian Penal Code, 1860 but ordering all the sentences to run concurrently, have been heard together and are being dispose of this common judgment, 2. Case of prosecution, in short is that on 29-9-1992, informant Bijay Kumar Jaiswal (PW-13) submitted a written report (Exhibit-4) at Kotwali Police Station, Gaya stating therein that his father Badri Prasad Jaiswal aged about 58 years as usual left the house at about 5 a.m. for morning walk but did not return till 3 p.m. and in the meantime at about 10 a.m., he received a telephone call from some unknown person giving him information that his father was in custody of the caller and if he wanted his safety, he be prepared to pay a sum of rupees five lacs which was being realised from him in lieu of releasing his father safely. He was further informed that further information he will receive on phone and was also given threatening that in case he informed the police, his father would be killed. On the basis of this written report, police registered a case under Secs. 365 and 387 of Indian Penal Code, 1860 against unknown by drawing a formal first information report (Exhibit-3) and investigation was taken up. On the basis of this written report, police registered a case under Secs. 365 and 387 of Indian Penal Code, 1860 against unknown by drawing a formal first information report (Exhibit-3) and investigation was taken up. During investigation, informant on 3-10-1992, submitted his report (Exhibit-6) before police stating therein that his father and appellant Rajesh Kumar Singh were running a cinema hall named as Pawan Picture Palace, Nawada in partnership and a dispute arose between them and appellant Madan Singh, father-in-law of appellant Rajesh Kumar, had asked Badri Prasad Jaiswal on telephone to make payment of entire dues of his son-in-law within one week failing which action would be taken. Informant suspected that appellant Rajesh Kumar, his father-in-law appellant Madan Singh and his relative appellant Lallu Singh, in conspiracy, kidnapped his father and might have committed his murder. On 14-11-1992, appellant Sanjay Kumar Singh produced one silver ring taking it out from a box of his house before police and on 15-12-1992, statement of co-accused Babulal Tiwary (now dead) was recorded u/s. 164 of Criminal Procedure Code in which he named appellants Rajesh Kumar, Madan Singh, Lailu Singh, Sanjay Singh :- - and further stated that on 30-9-1992, he saw that Badri Prasad Jaiswal was surrounded by them in the house of co-accused Upendra Singh where co-accused Upendra Singh and appellant Rajesh Kumar fired from their pistols and committed murder of Badri Prasad Jaiswal, On 18-12-1992 on the disclosure made by co-accused Babulal Tiwary, clothes of Badri Prasad were recovered from the bank of Falgu river and on the same day, co-accused Babulal Tiwary produced one pair of shoes of Badri Prasad Jaiswal before police which he had brought from the roof of his house and on 27-5-1993, appellant Rajesh Kumar Singh produced one golden ring and one silver ring of deceased before police taking them out from the box of his house and, thereafter, statement of witnesses, namely, Surajdeo Singh (PW-6) Surendra Kumar Singh (PW-8), Krishna Thakur (PW-5) and Upendra Kumar (PW-9) were recorded u/s. 164 of Criminal Procedure Code. The kidnappers also sent letters to informant through registered post and demanded a sum of rupees three lacs from him for release of his father and gave threatening that they would not release the victim and would kidnap him also if information to police or any other person was given and informant also received letter of his father in which he was. asked to arrange the money and pay the same to kidnappers. The recovered clothes, rings and shoes were put on test identification parade which were identified by the informant and his family members. The police, after completing the investigation, submitted charge-sheet under Secs. 364, 302, 201, 387 of Indian Penal Code, 1860 and Chief Judicial Magistrate, Gaya took cognizance of the case. The case of co-accused Satish Sharma, Niwas Sharma and Upendra Sharma who were absconding even from the beginning and of co-accused Jai Singh who absconded after commitment of the case was separated. After sometime, co-accused Jai Singh was remanded in this case and was put on trial. In the trial before the Court below, besides appellants, co-accused Panna Singh and Jai Singh also faced trial but they were not held guilty and they were acquitted. The appellants and Babulal Tiwaiy who had filed criminal appeal No. 132 of 1997 but who died during the pendency of the appeal were held guilty and convicted and sentenced, as indicated above. 3 The case of appellants is of total denial of charges and their complete innocence. One witness on their behalf has been examined. 4. Altogether, twenty one witnesses on behalf of prosecution have been examined. Surajdeo Singh (PW-6), Surendra Kumar Singh (PW-8), Upendra Kumar (PW-9) and Arun Kumar Sinha (PW-10) have not supported the case of prosecution which has declared them hostile. Sukhdeo Prasad (PW-1) is a formal witness who has proved the formal first information report (Exhibit-1). Nagendra Paswan (PW-12), Constable No. 156, brought a golden ring on which the letters "B P J" were written (Material Exhibit-171) and a silver like ring (Material Exhibit-1/2) in Court from Malkhana. Sanjay Kumar Jaiswal (PW-14) and Birendra Kumar Singh (PW-19) are tendered witnesses. Narayan Mandal (PW-11), Constable No. 1020 produced one silver ring fitted with white stone (Material Exhibit-1), a pair of shoes (Material Exhibit-II), a full pant (Material Exhibit-Ill) and a flying shirt (Material Exhibit-IV). Sanjay Kumar Jaiswal (PW-14) and Birendra Kumar Singh (PW-19) are tendered witnesses. Narayan Mandal (PW-11), Constable No. 1020 produced one silver ring fitted with white stone (Material Exhibit-1), a pair of shoes (Material Exhibit-II), a full pant (Material Exhibit-Ill) and a flying shirt (Material Exhibit-IV). Rajiv Nayan Kumar Pandey (PW-2) is a seizure list witness when some clothes of victim were recovered from the bank of Phalgu river on the information given by co-accused Babu Lal Tiwary, Praveen Kumar Pandey (PW-3) is a seizure list witness when appellant Sanjay Kumar Singh produced a silver ring of victim fitted with white stone, Rajendra Singh (PW-7) is also a seizure list witness when appellant Rajesh Kumar produced two rings, one of gold and another of silver. Rajesh Kumar (PW-16) is a photographer who has proved eleven negatives (Material Exhibits-VI to VI /10) and eleven photographs (Material Exhibits-V to V/10) which were taken at the Shradh ceremony of victim, father of informant. Perwez Alam (PW- 17) is a Judicial Magistrate who had recorded the confessional statement of co-accused Babulal Tiwary under Section 164 of Criminal Procedure Code, Dudhnath Singh (PW-18) is also another Judicial Magistrate who had recorded the statement of Surajdeo Singh (PW-6), Krishna Thakur (PW-5), Surendra Kumar Singh (PW-8) and Upendra Kumar (PW-9) (Exhibits-9/1 to 9/4) u/s. 164 of Criminal Procedure Code. Sant Prasad Upadhyaya (PW-20) is an Executive Magistrate who had conducted test identification parade of some articles of victim recovered during investigation. Syed Sah Sadaruddin Ahmad (PW-2) is the Investigating Officer of this case. Vijay Kumar Jaiswal (PW-13) is the informant. Ajay Kumar Jaiswal (PW-4) is the brother of informant and son of victim who has stated that on 29-9-1992 his father left the house in the morning at about 5 a.m. but he did not return and on the same day at 10 a.m., a telephone call from an unknown person was received by informant informing him that his father was in his custody and a sum of rupees five lacs be paid otherwise he would be killed and he further informed that he would again call within two to three days and, thereafter, he regularly after the intervals of two or three days used to call on telephone demanding money and giving threatening. He has admitted that he did not have any talk with anybody in this matter. He has admitted that he did not have any talk with anybody in this matter. Sanjeev Kumar (PW-15) is also one of the brothers of informant and son of victim and he has also said that on 29-9-1992, his father left the house for morning walk but did not come back and on that day at about 10 a.m., a telephone call by an unknown person was received by informant that his father was in his custody and a demand of a sum of rupees five lacs was made and threatening was given that in case the matter was reported to police, his father would be killed and such type of calls used to be received after every two or three days. He has further said that ten days after the occurrence, a registered letter was received by informant and the letter on one side was written by abductors and on the other side by victim himself. He has further said that letter was produced before Investigating Officer who prepared a production list (Exhibit-2/3) on which he put his signature (Exhibit-3/8). He has further said that in test identification parade, he had identified a full pant, a half shirt, a pair of shoes and a silver ring with white stone and he put his signature (Exhibit-3/9) on test identification chart. Krishna Thakur (PW-5) is a witness who is said to have seen appellant Sanjay Singh along with co-accused Sri Niwas Singh and Babulal Singh making telephone calls from Manpur Sattu Factory saying that victim Badri Prasad was in their custody and demanding a sum of rupees two lacs and giving threatening that in case of non-fulfilment of their demand, victim would be killed. 5. Vijay Kumar Jaiswal (PW-13), informant, in his evidence has said that on 29-9-1992 his father, early in the morning, left the house for morning walk but did not come back and on that day at about 10 a.m. he received a telephone call from some unknown that his father was in his custody and if he wanted his safety, he must pay a sum of rupees five lacs immediately which would be received by him as ransom and he would receive further information and in case he reported the matter to police, his father would be killed. He has further said that after receiving such information, he started searching his father and at Kirani Ghat, he came to know that his father had returned up to that ghat and when he did not get further information, he submitted a written report (Exhibit-4) to police. He has also said that in the year, 1987, an agreement was executed between his father and appellant Rajesh Kumar Singh for running a cinema hall named as Pawan Picture Palace Nawada and after five to six months of the business a dispute arose in the matter of accounting and cinema hall was closed and at that time, Kanhaiya Prasad Singh, father of appellant Rajesh Prasad Singh used to look after the cinema hall and after the death of Kanhaiya Singh, appellant Rajesh Kumar Singh married the daughter of appellant Madan Singh and appellant Lallu Singh was the Manager of cinema hall. He has further said that about three months prior to occurrence at the house of appellant Madan Singh, a Panchayati in connection with dispute of partnership was held which was attended by appellant Rajesh Kumar Singh, Madan Singh, Lallu Singh, his father, Arun Kumar Sinha and he was also present in that Panchayati and after accounting, it was found that appellant Rajesh Kumar Sihgh had invested a sum of rupees four lacs for that cinema hall and his father was ready to pay the money but appellants Rajesh Kumar Singh, Madan Singh and Lallu Singh made a demand of rupees six lacs but his father said that he would only a pay a sum of rupees four lacs and when no decision was arrived at Panchayati. he and his father left the Panchayati, He has proved the agreement (Exhibit-5) of partnership executed by his father and appellant Rajesh Singh. According to him on 23-5-1989, Kanhaiya Prasad Singh, along with his men, entered the Pawan Picture Palace and took away a sum of rupees thirty five hundred, parts of a projector machine and lens for which his father filed a criminal case No. 127 of 1989 and, thereafter, on 19-1-1991, a theft by some unknown persons was committed in Pawan Picture Palace for which Nawada Police Station Case No. 17 of 1991 by his father was lodged and both the cases are still pending in the Court. He has added that ten days prior to occurrence, appellant Madan Singh had given threatening on telephone to his father to settle the account within a week otherwise he would come in action and he gave this information in writing (Exhibit-6) to police. He has also proved handwriting of his father on a letter (Exhibit-7) which he received through registered post when his father was in custody of abductors by which his father had asked him to arrange money and make payment otherwise his life would be in danger. He has said that he produced that letter before police and a production list (Exhibit-2/3) was prepared by Syed Sah Sadaruddin Ahmad, Sub Inspector who also put his signature on the production list. He has also said that clothes and shoes which his father was wearing at the time of occurrence were recovered during investigation and he identified those articles in test identification parade. In Court also, he identified one ring (Material Exhibit-I) and other two rings out of which one was of square shape with violet coloured stone with letter "BPJ" (Material Exhibit-I/ 1) and another silver ring with pink coloured stone (Material Exhibit-I/2), a pair of shoes (Material Exhibit-II) a full pant (Material Exhibit-Ill) and half shirt (Material Exhibit-IV). He has proved the test identification chart (Exhibit-8) prepared by Sant Prasad Upadhyaya (PW-20),the then Circle Officer of Gaya Town. 6. Syed Shah Sadaruddin Ahmad (PW- 21) is the Investigating Officer of this case and he, in his evidence, has said that on 29-9-1992, he received the written report of informant on the basis of which a formal first information report was drawn and he was entrusted the work of investigation of this case. He has further said that on 3-10-1992, he received a confidential information on the basis of which he went to Lakhiabad and raided the house of Hriday Narayan Singh and arrested two persons, namely, Jay Singh and Panna Singh and on 9-10-1992, informant showed him a registered letter (Exhibit-7) and he then prepared production-cum-seizure list (Exhibit-2/3). He has further said that on 3-10-1992, he received a confidential information on the basis of which he went to Lakhiabad and raided the house of Hriday Narayan Singh and arrested two persons, namely, Jay Singh and Panna Singh and on 9-10-1992, informant showed him a registered letter (Exhibit-7) and he then prepared production-cum-seizure list (Exhibit-2/3). According to him, informant told him that he was continuously receiving telephone calls for demand of rupees two lacs and Superintendent of Police by a letter addressed to DET, Gaya made a request for finding out the telephone number from where calls were given to informant and information from Telephone Department was received that from telephone No. 21298, calls were being made to the telephone of informant and he then went to Manpur where telephone No. 21298 is installed where he recorded the statement of Surajdeo Singh (PW-6) who had disclosed that appellants Sanjay Singh, co-accused Babulal Pandey and Sri Niwas Sharma used to call on phone for his release. In para 5 of his evidence, he has said that at Manpur, there is a Sattu Factory of Moti Babu and a telephone is installed there also bearing No. 20561. He has further said that he took appellants Sanjay Singh on police remand and Sanjay Singh pointed out the place of occurrence of Kirani Ghat and he went to western bank of Phalgu river along with appellants Sanjay Singh and Satish Sharma and started the work of digging with labourers and, thereafter, he along with Sanjay Singh went to the house of Sanjay Singh situate on the eastern bank of river where he found a box in one of the rooms of the house and appellant Sanjay Singh took out a silver ring fitted with a white stone and produced before him and he prepared a production-cum-seizure list (Exhibit-2/2). He has identified the ring in Court which is marked material Exhibit-I. He has further said that he raided the house of co-accused Babulal Tiwary and arrested him and, thereafter, took him in police remand and recovered a light cream coloured full pant and a white coloured half flying shirt from a place at western bank of Phalgu river pointed out by co-accused Babulal Tiwary and prepared a seizure list (Exhibit-2). He has also proved a full pant (Material Exhibit-III) and half shirt (Material Exhibit-IV) and has further said that he had gone to the house of co-accused Babulal Tiwary from where Babulal Tiwary produced a pair of shoes taking out from tiled roof where the shoes were kept wrapped in a bag and he prepared production-cum-seizure list (Exhibit-2/1). He has identified the shoes in Court (Material Exhibit-II). He has proved his application (Exhibit-10) which he had filed before Chief Judicial Magistrate for test identification parade of recovered articles. In para 31 of his evidence, he has said that after taking appellant Rajesh Kumar on police remand, he went to his house at Wazirganj where he found a box kept in a room at first floor and appellant Rajesh Kumar took out two rings one made of gold fitted with violet coloured square stone with letter "BPJ" in English engaged below the stone and a silver ring fitted with pink coloured stone and prepared a production-cum-seizure list (Exhibit-2/4). He has identified the aforesaid rings-in Court which are marked Material Exhibits-I/1 and 1/2. 7. In this case, there is no direct evidence against any of the appellants for abducting the victim Badri Prasad Jaiswal or for committing his murder. The entire case of prosecution is based on certain facts which, according to prosecution, are strong circumstantial evidence completing the chain leading to a conclusive inference that appellants abducted the victim for ransom and on non-fulfilment of their demand which they made for release of victim committed his murder. These facts are recovery of a full pant and a shirt belonging to victim from the place at the bank of Phalgu river pointed out by co-accused Babulal Tiwary, production of a pair of shoes of victim by him and his confessional statement before a Magistrate. Admittedly Babulal Tiwary is dead now. Among the present appellants, so far appellants Madan Singh and Lallu Singh are concerned, I find that beside the fact that name of appellant Lallu Singh has appeared in the so called confessional statement of Babulal Tiwary which I will discuss later on, there is no material against them and none of the prosecution witnesses has said anything against them. Among the present appellants, so far appellants Madan Singh and Lallu Singh are concerned, I find that beside the fact that name of appellant Lallu Singh has appeared in the so called confessional statement of Babulal Tiwary which I will discuss later on, there is no material against them and none of the prosecution witnesses has said anything against them. So far remaining appellants, namely, Rajesh Kumar Singh and Sanjay Kumar Singh are concerned, the case Of prosecution Is that appellant Sanjay Singh took out a silver ring (Material Exhibit-I) from a wooden box kept in his house and produced it before Investigating officer saying that the ring belonging to victim. About appellant Rajesh Kumar Singh, the case of prosecution is that he took out two rings {Material Exhibits-I/1 and 1/2) one made of gold and another of silver from a box kept in his house and produced it before Investigating Officer and those rings were of victim. The further material against appellant Sanjay Singh is that Krishna Thakur (PW-5) had seen him and co-accused Babulal and Sriniwas making telephone calls from a telephone installed at the gate of a Sattu Factory saying that victim was in their custody and demanding a sum of rupees two lacs. So far the recovery of a silver ring from the house of appellant Sanjay Kumar Singh is concerned, Praveen Kumar (PW-3) is said to be one of the two witnesses on the seizure list which was prepared by Investigating Officer. Praveen Kumar (PW-3), in para 13 of his evidence, has said that when he came to know that a ring had been recovered from the house of Sanjay Singh, he then went to his house and in para 15, he has said that when he reached the house of appellant Sanjay Kumar Singh, he found four to five persons present there and a Police Inspector and four to five constables were also present there and Police Inspector gave him the ring to see and" in para 19, he has said that he put his signature on a paper which was already written. Taking all these statements into consideration it is clear that the ring was not recovered and no seizure list was prepared in his presence. Taking all these statements into consideration it is clear that the ring was not recovered and no seizure list was prepared in his presence. After recovery of ring when he knew this fact, he went to the house of Sanjay Singh and put his signature on a paper which was already prepared. Another witness of this seizure list is Baudha Moehi who has not been examined by prosecution. So far the recovery of two rings from the house of co-accused Rajesh Kumar Singh is concerned, the Investigating Officer, in para 32 of his evidence, has said that he prepared a production-cum-peizure list in presence of Birendra Singh (PW-19) arid Rajendra Singh (PW-7). It is true that Rajendra Singh (PW-7), in his evidence, has first Said that police recovered two rings from a box kept in the house of appellant Rajesh Kumar Singh and prepared a seizure list on which he and Birendra Singh put their signatures (Exhibits-3/3 and 3/4) but then in paras 6 and 7 of his cross-examination, he has said that he met the Investigating Officer in a market and from where the Investigating Officer, while talking with him, took him to Wazirganj Police Station which is situate adjacent to market and there Investigating Officer obtained his signatures and released him and the signatures (Exhibits-3/3 and 3/4) which he has proved are the signatures which were obtained at the Police Station. In para 8, he has again said that when police obtained his signature at police station, no material was shown to him. This evidence completely makes the case of prosecution doubtful that two rings, as alleged, were recovered from the house of appellant Rajesh Kumar Singh in presence of this witness. In para 8, he has again said that when police obtained his signature at police station, no material was shown to him. This evidence completely makes the case of prosecution doubtful that two rings, as alleged, were recovered from the house of appellant Rajesh Kumar Singh in presence of this witness. Birendra Kumar Singh (PW-19), another witness of seizure list said to have been prepared at the time of recovery of two rings from the house of appellant Rajesh Singh, in his evidence, has said that he is the friend of Arun Kumar who is cousin of informant and on account of his friendship, he had gone to the house of informant where he put his signature on a paper which was given to informant by Investigating Officer and he has proved his signature which is marked Exhibit-3/4 and he has clearly stated that he put his signature on blank paper and in para-4 of his evidence, he has said that in his presence no ring was produced by appellant Rajesh Kumar Singh before Investigating Officer and in para-5, he has said that when he came to know that. he has been made a witness in this case he, on 9-11-1994, filed an affidavit stating the aforesaid facts. So, I find that this witness is also not supporting the case of prosecution that two rings were recovered from the house of appellant Rajseh Kumar Singh. The Investigating Officer, in para-65 of his evidence, has said that the rings which were recovered from the house of appellant Rajesh Kumar Singh were not put on test identification parade and reason for this has been given that one recovered ring was found with. the letters "B P J" engraved on it. It is true that informant had identified these two rings said to have been recovered from the house of appellant Rajesh Singh as of victim but then in view of the evidence of Investigating Officer that these rings were not put on test identification parade, it is clear that for the first time In Court, informant identified those rings as of victim. The informant, in. The informant, in. para-27 of his evidence, has admitted that he first submitted his written report on 29-9-1992 and on the same day, he was examined by Investigating Officer and, thereafter, on 3-10-1992, he again submitted the written report to Investigating Officer and on 4-10-1992, he was again examined by Investigating Officer and in para-50 of his evidence, he has said that although in his written report, he had not given the description of clothes and rings which his father was putting on the day of occurrence but in his examination by Investigating Officer, he had given the description of these articles. In para-51 of his evidence, he has admitted that in his written statements, which he submitted to police on 29-9-1992 and 3-10-1992, he had not given the description of any article which his father was putting on the day of occurrence. The Investigating Officer, in para-108 of his evidence, has clearly stated that the informant, neither in his written reports nor in his examination during investigation, had given the description of clothes, shoes and rings which his father was putting on the day of occurrence on his person. The aforesaid evidence clearly shows that for the first time in Court, informant identified two rings along with some other articles as belonging to his father. If no adverse inference from this belated identification of articles in Court by informant is drawn even then moot question remains whether the two rings were recovered from the house of appellant Rajesh Singh, as alleged by prosecution. From the evidence, as discussed above, the recovery is not proved because seizure list witnesses have not supported the recovery of rings from the house of appellant Rajseh Kumar Singh. 8. Other material against appellant Sanjay Kumar Singh is the evidence of Krishna Thakur (P.W. 5) who has said that this appellant along with Babulal Tiwary and Sri Niwas Singh used to make telephone calls from a telephone installed at the gate of a Sattu Factory and on telephone, these persons used to tell that the victim was in their custody and they were demanding a sum of rupees two lacs for his release. In para-4 of his evidence, he has said that the aforesaid persons made telephone calls for a period of one month. In para-4 of his evidence, he has said that the aforesaid persons made telephone calls for a period of one month. In paras-7 and 8, he has said that police had called him at Sattu Factory and interrogated him and police enquired from him whether appellant Sanjay and co-accused Babulal Tiwary used to make telephone calls from the telephone installed at the gate of Sattu Factory and he replied in affirmative and, thereafter, he was arrested by police and when his statement was recorded by Magistrate, he was released by police. In para-13, he has said that after seven to eight days after his arrest, his statement was recorded by a Magistrate. His evidence shows that before his disclosing the fact that appellant Sanjay :- - used to make telephone calls from the telephone installed at the gate of Sattu Factory, the police had already known this fact and, thereafter, it got it confirmed from this witness and when he gave his reply in affirmative, he was arrested by police. The prosecution has not made it clear that from whom, it came to know that appellant Sanjay and co-accused Babulal used to make telephone calls from the telephone installed at the gate of Sattu Factory and why this witness was arrested by police and was released only after his statement was recorded by Magistrate. Surajdeo Singh (P.W. 6) is the Munshi of this Sattu Factory but he has not supported the case of prosecution and has said that nobody came in his presence for making any call from the phone of his factory and he has further said that he was beaten badly by police and out of fear he gave his statement before the Magistrate. No doubt, he has been declared hostile by prosecution but then his evidence, coupled with the evidence of P.W. 5 that he was arrested by police and was released only after his statement was recorded by Magistrate, makes the statement of P.W. 5 quite doubtful that appellant Sanjay along with two others used to come to a Sattu Factory for making telephone calls. Besides this, his evidence, that appellant Sanjay Singh along with Babulal Singh and Srinivas used to make telephone calls from a telephone installed at the gate of a Sattu Factory and he used to hear them talking on phone and this process continued for a month but in between this period, he did not inform this fact to anybody, does not appear to be believable because this is against the normal conduct. Apart from it his evidence is quite vague that appellant, Sanjay Singh used to go to make telephone call, ;Babulal Singh also used to go for making telephone call and Srinivas also used to go or the said purpose and he heard all of them talking on phone. 9 Mr. Sudhir Singh, learned Counsel appearing on behalf of informant has given much importance to the confessional statement of co-accused Babulal Tiwary recorded u/s. 154 of Criminal Procedure Code (Exhibits) which shows that statement of Babulal Tiwary was recorded u/s. 164 of Criminal Procedure Code where he stated that on 30-9-992, he went to the house of Srinivas for demanding money of wood but he did not meet Srinivas and he was told that Srinivas had gone ,to the house of Upendra Singh and he then went to the house of Upendra Singh where he found Upendra Singh, Srinivas, Jay Singh, appellants Rajesh Kumar, Madan Singh, Lallu Singh and Sanjay Kumar Singh sitting there and victim Badri Prasad was also there sitting in the midst of the aforesaid persons and the persons present there were taking left thumb impression and signature of Badri Prasad on Court papers. Thereafter, appellants Sanjay and Rajesh took out rings of Badri Prasad and Upendra Singh fired and Rajesh also fired on the temple of Badri Prasad and he then fled away. His statement is exculpatory and cannot be treated as confessional statement. Thereafter, appellants Sanjay and Rajesh took out rings of Badri Prasad and Upendra Singh fired and Rajesh also fired on the temple of Badri Prasad and he then fled away. His statement is exculpatory and cannot be treated as confessional statement. Perwez Alam (P.W. 17), the Judicial Magistrate who recorded the statement of Babulal Tiwary u/s. 164 of Criminal Procedure Code, in para-3 of his evidence, has admitted that he has not mentioned in the statement whether he recorded the statement of Babulal Tiwary as statement of a witness or confession of an accused but before recording his statement, he himself had determined that Babulal Tiwary was a confessing accused and although he had given him warning before recording his statement but he had not given any certificate to that effect before recording his statement. Although at the end of Exhibit-9, there is a certificate to the effect that it was explained to Babulal Tiwary that he was riot bound to make confession and if he did so, that confession may be used as evidence against him but because, as stated earlier, the confession is exculpatory and Babulal Tiwary, in this so-called confession, has shown himself as a witness. Exhibit-9 cannot be treated as a confession in this case. Admittedly, Babulal Tiwary was one of the co-accused persons and he was not described as witness by the prosecution. "Mr. Sudhir Singh has argued that statement of co-accused Babulal Tiwary u/s. 164 of Criminal Procedure Code is admissible u/s. 10 and can be used against the appellants under Sec. 13 of the Indian Evidence Act. This argument is not acceptable because Sec. 10 of Indian Evidence Act says that: Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when Such intention was first entertained by anyone of them, is a relevant fact as against each of the persons believed-to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. 10. Here, Babulal Tiwary had not said anything in reference to any common intention shared by him and appellants. 10. Here, Babulal Tiwary had not said anything in reference to any common intention shared by him and appellants. As stated above, his statement is exculpatory and he had put the entire burden of the murder of victim on other appellants. sec. 13 of the Indian Evidence Act is also not applicable in this case because Exhibit-9 does not contain any statement which can be termed as confession affecting its maker Babulal Tiwary. Besides this Babu Lal Tiwari adduced evidence through his brother Sidhnath Tiwari (D.W. 1) that on the night of 4-11-1992 he and his minor son were arrested by police and when they were not released by police for about 15-20 days and when D. W. 1 came to know that Babulal Tiwari was being falsely implicated in this case,. D. W. 1 filed a petition (Exhibit-B) with Vakalatnama (Exhibit-C/1) in the Court of Chief Judicial Magistrate who called reports ; from police but police did not submit any, report. D. W. 1 has stated that when he met Babu Lal Tiwari in Jail, he told him that police was giving him threatening that if he did not give statement in this case as desired by police, he and his son would be killed and he and his son were tortured for about a week and Babulal Tiwari further disclosed that out of fear, he had become ready to give statement. D. W. 1 has further said that against the action of police, he sent petition to Collector, S P, D I G, Commissioner, D G P and Human Rights Commission through registered post. So, I find that even the exculpatory statement of Babu Lal Tiwary is a retracted statement. Notwithstanding this fact merely on the basis of statement of Babu Lall Tiwari, appellants cannot be held guilty without any corroboration. 11. The informant in his written report (Exhibit-4) which he first submitted on 29- 9-1992 did not raise even suspicion against anyone but in his subsequent written report (Exhibit-6) which he submitted on 3- 10-1992 he for the first time disclosed the matter of threatening by appellant Madan to his victim father and in his evidence, he has developed the story about motive. His evidence is that for cinema hall dispute, a Panchayati was held in which his father agreed to give a sum of rupees four lacs to appellants but they were adamant on a demand of rupees six lacs, in his first written report, informant has stated that he received phone calls for demand of rupees five lacs. Investigating Officer, in his evidence, has said that informant told him that he was receiving phone calls for demand of rupees two lacs. Krishna Thakur (P.W, 5), in his evidence, has said that he used to see appellant Sanjay Singh. along with Srinivas and Babu Lal Tiwari making telephone calls demanding a sum of rupees two lacs. So, I find that even on the point of money which used to be demanded by phone calls, the evidence of prosecution is not consistent and when victim father of information had agreed for making payment of rupees four lacs, the question of demanding a sum of rupees two lacs by appellants on phone does not appear trustworthy. 12. Admittedly, in this case, there is no direct evidence either of kidnapping the victim or committing his murder. It is also not established that victim, after his abduction, was killed and is now no more. Prosecution wants upholding the conviction of appellants on circumstantial evidence but it has not been able to bring on record circumstances which, if connected together, will form a complete chain leading to only the conclusion of commission of offence by appellants. 13. Considering the entire evidence on record, I find that prosecution has not been able to prove its case beyond all reasonable doubts against the appellants and the conviction of appellants cannot be upheld. 14. In the result, all the three appeals are allowed and judgment and order of Court below convicting and sentencing the appellants is hereby set aside. 15. As all the appellants are on bail, they are discharged from the liabilities of their bail bonds. Sadanand Mukherjee, J. 16 I agree.