Judgment :- K.N. Basha, J. First Accused Rajendran is the appellant in this appeal challenging his conviction and sentence passed by the learned II Additional Sessions Judge, Madurai in S.C.No.433 of 1995 dated 5.2.1998 convicting him under section 302 read with 34 IPC and sentencing him to undergo life imprisonment. 2. Charge against the first accused is one under section 302 read with 34 IPC and the first accused faced the Trial along with the second accused in this case. The learned Trial Judge, disbelieving the case of prosecution as against the second accused, acquitted him. 3. Theaccused have faced the Trial under the following backdrop: - (a) The prosecution case mainly stands on the extra judicial confession said to have been given by the first accused under Ex.P1 to PW1, the Village Administrative Officer. It is claimed by PW1, who was the Village Administrative Officer of Melur Taluk that on 26.2.1995 at about 7.30 pm, while he was in charge of Karuthapuliyanpatti village also, PW2, the village menial brought both the accused in this case to his house and the first accused is said have informed PW1, the Village Administrative Officer that he caused the murder of the deceased Rakku and he made a confession marked as Ex.P1 and he has also produced the knife used by the second accused. (b) It is stated in Ex.P1, extra judicial confession of A-1, that his sister Pandiammal was married to PW4 and both of them lived only for about a month and thereafter; she was driven out of the matrimonial home. Thereafter, there was a panchayat convened for amicable settlement, but even in the panchayat, nothing was materialised. It is further stated in Ex.P1 that PW4, after separation from the sister of the first accused, started living with the deceased and the deceased also has done witchcraft due to which the hands and legs of Pandiammal became paralytic. Therefore, the first accused, provoked by the conduct of the deceased, went to the house of the deceased along with the second accused to Karuthapuliyanpatti alias Therkupatti village at about 7.00 pm and questioned the deceased about the whereabouts of PW4 for which the deceased replied that the first accused has no business in their affairs and immediately, the first accused took aruval M.O.1 and cut the deceased thrice on her neck. When the deceased fell down, the first deceased also cut the right hand of the deceased. Thereafter, the second accused that is a friend of the first accused, stating that the deceased is not dead, stabbed the deceased twice on her stomach. Thereafter, both the accused straightway went to the house of PW1 the Village Administrative Officer. (c) PW1, on the statement given by the first accused, recorded the same under Ex.P1 and also obtained the signature of the first accused. PW1, the Village Administrative Officer also claimed as per his chief examination that both the accused were brought to his house by PW2 the village menial. Thereafter, both PW1 Village Administrative Officer and PW2 the village menial left for the scene of occurrence along with the accused. Their PW1 found the deceased lying dead with the injuries. From the scene of occurrence, PW1 went to the police station with the statement, Ex.P1 given by the first accused and also with covering letter Ex.P2. (d) PW7, Head Constable attached to Melur Police Station received Ex.P1 along with the report Ex.P2 from PW1 on 26.2.1995 at about 9.00 pm and also received M.Os. 1 and 2 aruval and knife. PW7 registered the FIR in Crime No.169 of 1995 under section 302 IPC. Ex.P8 is the printed FIR. He obtained the signature in the printed FIR from PW1. He also arrested both the accused and recovered M.Os.1 and 2 under Ex.P3. Thereafter, he sent the copy of the FIR through the Police Constable to the Inspector of Police. (e) PW11 received the FIR on 26.2.1995 at about 9.45 pm and took up the investigation in this case. On 26.2.1995 at about 10.15 pm, he went to the scene of occurrence, prepared the observation mahazar in the presence of witnesses marked as Ex.P4 and rough sketch Ex.P13 and made arrangements to take photographs by PW5 and the negatives and photographs taken were marked as M.Os.3 and 4 series. On 26.2.1995, at about 10.45 pm, PW11 recovered blood stained earth and sample earth under Ex.P5 in the presence of PW2. He also conducted inquest upon the dead body of the deceased between 11.00 pm on 26.2.1995 and 2.00 am on 27.2.1995 and during the inquest, he examined P.Ws.1 and 2 and one Madhavanai and one Selvam and recorded their statements. Ex.P14 is the inquest report. He also conducted inquest upon the dead body of the deceased between 11.00 pm on 26.2.1995 and 2.00 am on 27.2.1995 and during the inquest, he examined P.Ws.1 and 2 and one Madhavanai and one Selvam and recorded their statements. Ex.P14 is the inquest report. Thereafter, he sent the body through PW9 for post mortem. (f) PW6, the Doctor attached to Melur Government Hospital conducted post mortem on the dead body of the deceased on 27.2.1995 at about 9.30 am and found the following injuries. "1. Stab wound 2 cm x ½ cm x 6 cm present on the left side chest 5 cm below the nipple obliquely present. On exploration, enters the left side Thoracic Cavity. 2. Stab wound 1-1/2 cm x ½ cm x 2 cm present over the left side Abdomen. 3. Wide gapping incised wound over the left cheek obliquely present extending 2 cm below the left lower eye lid obliquely downwards upto left chin 10 cm x 2 cm x bone deep exposing muscles, bone, vessels. On exploration of the wound fracture of the left medulla, left mandible present. 4. A stab wound 2 cm x ½ cm x muscle deep present over the left arm close to the left axilla. 5. Incised wound 3 cm x ½ cm x 1 cm present over the left side neck above the clavicle obliquely present. 6. Incised wound ½ cm x ½ cm x 1 cm present over sternum region. 7. Wide gapping incised wound extending from the right side back of the neck obliquely upwards upto the right cheek 12 cm x 3 cm x bone deep exposing muscles, bone, major vessels. On exploration of the wound, right side jugular vein, carotid artery at the side of wound goes upto cervical vertebra 4th and 5th. 8. Right forearm completely severed from the arm at the level of elbow joints. On exploration of the wound, upper and of the severed forearm bones (radium ulna) exactly articulated with and of human bone." Ex.P7 is the post mortem report issued by the Doctor. The Doctor is of the opinion that the deceased died due to shock and hemorrhage. (g) PW11, in continuation of his investigation, sent M.Os.5 to 11 to the Court and emanded the accused that were already arrested by PW7 for judicial custody. The Doctor is of the opinion that the deceased died due to shock and hemorrhage. (g) PW11, in continuation of his investigation, sent M.Os.5 to 11 to the Court and emanded the accused that were already arrested by PW7 for judicial custody. On 27.2.1995, PW11 examined P.Ws.3, 4, 7, 8, 9 and others and recorded their statements. PW12 Inspector of Police took up further investigation from PW11 and sent the material objects recovered in this case for chemical examination through the requisition sent to the Magistrate Court. PW13 took up further investigation on 1.5.1995. Thereafter, he seems to have examined P.Ws.5, and 6 and recorded their statements. He also received the chemical analysis report Ex.P11 and serologist report Ex.P12 and after completion of investigation, he filed charge sheet under section 302 read with 34 IPC against both the accused. 4. The prosecution, in order to bring home the charges levelled against the accused, examined P.Ws.1 to 13, filed Exs.P1 to P14 and marked M.Os.1 to 12. 5. When the accused were questioned under section 313 Cr.P.C. in respect of the incriminating materials appearing against them based upon the evidence adduced by the prosecution witnesses, both the accused have come forward with the version of total denial stating that they have been falsely implicated in this case. They have not chosen to examine any witness on their side. 6. Mr.K.Jegannathan, learned counsel appearing for the appellant submitted that the entire prosecution case rests on circumstantial evidence and the only circumstance put forward against the accused is Ex.P1, the alleged extra judicial confession said to have been made by the first accused to PW1, the Village Administrative Officer. The learned counsel appearing for the appellant that Ex.P1 contends it, extra judicial confession is surrounded by many suspicious circumstances. 7. It is also contended by the learned counsel for the appellant that PW1, the Village Administrative Officer is said to have recorded the extra judicial confession Ex.P1 from the first accused stating that both the accused were brought only by PW2, the village menial, but, PW2, the village menial has categorically stated that he has not brought both the accused and only PW1 has informed him that the first accused appeared before him and gave extra judicial confession. The learned counsel would further submit that though PW2 has been treated hostile, the portion in respect of the information given by PW1, which is in favour of the accused, may be relied by this court. It is also contended by the learned counsel for the appellant that PW1 has categorically admitted in his cross-examination that right from the time of recording Ex.P1 till the time of reaching the place of occurrence, the police officials were present throughout and therefore, Ex.P1 extra judicial confession is not a genuine document and absolutely no value can be attached to such a statement more particularly when the first accused was surrounded by the police officials at the time of recording the extra judicial confession, Ex.P1 and thereby it is very clear that Ex.P1 itself is a product of threat and coercion. 8. The learned counsel would further contend that the blood stained earth and the sample earth said to have been seized by the police were not marked before the Court. It is further contended by the learned counsel that the though the weapons viz., M.Os.1 and 2 are claimed to have been blood stained, grouping was not found as per the serologist report Ex.P12 whereas the cloths of the deceased were found to have contained Human A group blood and therefore, it is submitted by the learned counsel that the prosecution has miserably failed to putforward any clinching materials and circumstances to connect the accused with the crime. 9. The learned counsel also placed reliance on two decisions viz., (1) JASPAL SINGH v. STATE OF PUNJAB reported in 1997 SCC (Cri.) 358 for the preposition that extra judicial confession of the accused could not be placed reliance in the absence of any reasons to show as to why and how the accused had reposed such a confidence in the Sarpanch to confess the guilt; and (2) KISHORE CHAND v. STATE OF HIMACHAL PRADESH reported in 1991 SCC (CRI) 172 for the proposition that the extra judicial confession must satisfy the requirement of sections 24, 25 and 26 of the Evidence Act which must be construed strictly and in order to test the voluntaryness of such confession, there should be other reliable evidence available on the evidence adduced by the prosecution. The learned counsel also pointed out that in this decision, the Apex Court held that the alleged extra judicial confession was made to the Pradhan of the village while the accused was in police custody and therefore, the same is hit by section 26 of the Evidence Act. 10. Per contra, Mr.V.Kasinathan, learned Additional Public Prosecutor submitted that the prosecution has adduced acceptable evidence and the evidence of PW1 is quite natural and he being the Village Administrative Officer has no animosity with the accused to implicate them in a false case. It is also submitted by the learned Additional Public Prosecutor that though there are certain contradictions between the chief examination and cross examination of PW1, those contradictions would not affect the main case of prosecution. It is also submitted by the learned Additional Public Prosecutor that as per the prosecution case the weapons viz., aruval and knife marked as M.Os.1 and 2 were also stained with blood and though as per the Serologist report, grouping was not found coupled with other materials viz., cloths of the deceased which were found with human A group blood, the prosecution case cannot be rejected on that score itself. 11. We have given our careful consideration to the rival contentions putforwarded by either side and also perused the entire records both oral and documentary evidence adduced by the prosecution. 12. This is a case of circumstantial evidence. The prosecution heavily placed reliance on the single piece of evidence viz., the extra judicial confession, Ex.P1 said to have been given by the first accused to PW1, the Village Administrative Officer. Apart from this piece of evidence, the prosecution has not come forward with any other clinching circumstances to connect the accused with the crime. Though it is claimed by the prosecution that the blood stained weapons M.Os.1 ad 2 were recovered, the fact remains that grouping was not found as per the Serologist report, Ex.P12. Therefore, in our view, the prosecution cannot place any reliance upon that piece of evidence. Therefore, we are left with the sole piece of circumstance viz., extra judicial confession. 13. The undisputed fact remains that the Village Administrative Officer, PW1 who is said to have been in charge of the occurrence village, recorded the extra judicial confession. Therefore, in our view, the prosecution cannot place any reliance upon that piece of evidence. Therefore, we are left with the sole piece of circumstance viz., extra judicial confession. 13. The undisputed fact remains that the Village Administrative Officer, PW1 who is said to have been in charge of the occurrence village, recorded the extra judicial confession. As rightly pointed out by the learned counsel for the appellant, PW1 has not produced any document to show that he was in charge of the occurrence village at the time of recording the extra judicial confession, Ex.P1. Further, the vehement contention put-forwarded by the learned counsel for the appellant is that PW1 is a total stranger to the first accused and there is absolutely no reason put forward by the prosecution as to how the first accused had reposed confidence in going to the extent of giving confession before PW1. PW1 has also stated in his cross examination that he cannot say under what circumstances or reasons, the accused appeared before him and P.W.1 also stated in his cross-examination that he cannot give any specific reason for the first accused to give the confession to him. The learned counsel in respect of this aspect has rightly placed reliance on the decision of the Honble Supreme Court in JASPAL SINGH v. STATE OF PUNJAB reported in 1997 SCC (Cri.) 358 wherein, the Apex Court has held that, "15. The third contention of Mr.Sodhi viz., that it is highly improbable that Jaspal Singh (A1) would have gone to this witness along with his co-accused to confess the guilt, is equally formidable. Chhota Singh (PW7) has not given any reason as to why and how Jaspal Singh (A1) and other co-accused have reposed such a confidence in him and confessed their guilt. After going through the evidence of Chhota Singh (PW7), we do not find it safe to hold any of the appellants guilty in the present crime." 14. There is also serious doubt about as to how the first accused went and gave the extra judicial confession to PW.1 Village Administrative Officer. Though PW.1 claimed that both PWs.1 and 2 were brought by PW.2, the village menial to his house, PW.2 the village menial has categorically stated that he has not brought A-1 and A-2 to PW.1. There is also serious doubt about as to how the first accused went and gave the extra judicial confession to PW.1 Village Administrative Officer. Though PW.1 claimed that both PWs.1 and 2 were brought by PW.2, the village menial to his house, PW.2 the village menial has categorically stated that he has not brought A-1 and A-2 to PW.1. But on the other hand, only he was informed by PW.1 that the first accused appeared before him and gave the extra judicial confession. Though PW.2 has been treated hostile, the contradictory version given by PW.1 which is in favour of the accused may be relied as it is well settled that the evidence of the hostile witness cannot be rejected in toto and any portion which is either in favour of the accused or in favour of the prosecution may be taken into consideration. It is also relevant to note, as pointed out by the learned counsel for the appellant that PW.1 has categorically admitted that while A-1 and A-2 came before him the police officials were present. It is further admitted by PW.1 that at the time of recording the statement from the first accused and also till they reach the scene of occurrence the police officials were present throughout. Two aspects emerge from this admission of PW.1. The first aspect is that in view of the presence of the police officials at the time of recording the statement of A-1 by P.W.1, the possibility of threat and coercion cannot be ruled out. The second aspect is that the above specific admission of PW.1 that right from the time of recording the confession from A-1 till the time of reaching the scene of occurrence, the police officials were very much present and therefore such confession is hit under Section 26 of the Indian Evidence Act which provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate shall be proved as against such person. The fact remains that admittedly A-1 has not made any confession in the presence of the Magistrate. The fact remains that admittedly A-1 has not made any confession in the presence of the Magistrate. The learned counsel for the appellant rightly placed reliance in support of his contention on this aspect in KISHORE CHAND v. STATE OF HIMACHAL PRADESH reported in 1991 SCC (CRI) 172, wherein the Apex Court has held that, "The next piece of evidence is the alleged extra judicial confession made by the appellant to PW10. An unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. But in the process of the proof of the alleged confession the court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26 of the Evidence Act. Therefore, the court has to look into the surrounding circumstances and to find whether the extra judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. For this purpose the court must scrutinize all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. Extra judicial confession if found to be voluntary, can be relied upon by the court along with other evidence on record. Therefore, even the extra judicial confession will also have to be proved like any other fact. The value of the evidence as to the confession depends upon the veracity of the witness to whom it is made and the circumstances in which it came to be made and the actual words used by the accused. Sometimes it may not be possible to the witness to reproduce the actual words in which the confession was made. For that reason the law insists on recording the statement by a Judicial Magistrate after administering all necessary warnings to the accused that it would be used as evidence against him. 8. Admittedly PW10 and the appellant do not belong to the same village. For that reason the law insists on recording the statement by a Judicial Magistrate after administering all necessary warnings to the accused that it would be used as evidence against him. 8. Admittedly PW10 and the appellant do not belong to the same village. From the narrative of the prosecution story it is clear that PW27 and PW10 came together and apprehended the appellant from his village and was taken to Jassur for identification. After he was identified by PW7 and PW8 it was stated that he was brought back to Gaggal village of PW10 and was kept in his company and PW27 left for further investigation. Section 25 of the Evidence Act provides that no confession made to a police officer shall be proved as against a person accused of any offence. Section 26 provides that no confession made by any person while he is under custody of the police officer, unless it be made in the immediate presence of a magistrate, shall be proved as against such person. Therefore, the confession made by an accused person to a police officer is irrelevant by operation of Section 25 and it shall (sic not) be proved against the appellant. Likewise the confession made by the appellant while he is in the custody of the police shall not be proved against the appellant unless it is made in the immediate presence of the magistrate, by operation of Section 26 thereof. Admittedly the appellant did not make any confession in the presence of the magistrate. The question, therefore, is whether the appellant made the extra judicial confession while he was in the police custody. It is incredible to believe that the police officer, PW27, after having got identified the appellant by PW7 and PW8 as the one last seen in the company of the accused would have left the appellant without taking him into custody. It is obvious that with a view to avoid the rigour of Sections 25 and 26, PW27 created an artificial scenario of his leaving for further investigation and kept the appellant in the custody of PW10, the Pradhan to make an extra judicial confession. Nothing prevented PW27 to take the appellant to a Judicial Magistrate and have his confession recorded as provided under Section 164 of the Cr.P.C., which possesses great probative value and affords an unerring assurance to the court. Nothing prevented PW27 to take the appellant to a Judicial Magistrate and have his confession recorded as provided under Section 164 of the Cr.P.C., which possesses great probative value and affords an unerring assurance to the court. It is too incredulous to believe that for mere asking to tell the truth the appellant made voluntarily confession to PW10 and that too sitting in a hotel. The other person in whose presence it was stated to have been made was not examined to provide any corroboration to the testimony of PW10. Therefore, it would be legitimate to conclude that the appellant was taken into the police custody and while the accused was in the custody, the extra judicial confession was obtained through PW10 who accommodated the prosecution (sic appellant). Thereby we can safely reach an irresistible conclusion that the alleged extra judicial confession statement was made while the appellant was in the police custody. It is well settled law that Sections 25 and 26 shall be construed strictly. Therefore, by operation of Section 26 of the Evidence Act, the confession made by the appellant to PW10 while he was in the custody of the police officer (PW27) shall not be proved against the appellant. In this view it is unnecessary to go into the voluntary nature of the confession etc." 15. The above said principles laid down by the Honble Supreme Court are squarely applicable to the facts of the instant case, as stated above. As we have already stated that this Court is left with the solitary piece of evidence from the prosecution viz., the alleged extra judicial confession, Ex.P.1, said to have been recorded by PW.1, VAO. In view of the above said infirmities and on the basis of the settled principles of law laid down by the Apex Court, we are of the considered view that it is hazardous and most unsafe to place reliance on such solitary piece of evidence viz., the alleged extra judicial confession, Ex.P.1 said to have been recorded by P.W.1, VAO. 16. For the foregoing reasons, the appeal is allowed. The conviction and sentence is set aside. The appellant/accused is directed to be released forthwith unless his presence is necessary in connection with any other case. The bail bond shall stand cancelled.