Per KILAM J. - These are three first appeals by Malla Mohamadoo, Gulla Mir and Hasan Nanwai against an order of the learned Special Magistrate dated 25th Poh, 2006, and will be disposed of by this judgment. The three accused appellants, Malla Mahamadoo, Gulla Mir and Hasan Nanwai were proceeded against in his Court under section 406 and other sections of the Ranbir Penal Code and were sentenced as under: - Malla Mohamadoo to five years rigorous imprisonment and Rs. 500 fine, and in default of payment of fine to undergo rigorous imprisonment for a further period of two years; Gulla Mir to two years rigorous imprisonment with a fine of Rs. 200 and in default of payment of fine to undergo rigorous imprisonment for a further period of one year and Hasan Nanwai to one years rigorous imprisonment with a fine of Rs. 1oo, and in default of payment of fine to undergo rigorous imprisonment for a further period of six months. The case against Malla Mohamadoo is that he was put in charge of 300 mds. of wheat which were meant to be doled out as relief to the people residing in Devar. His duty was to have weighed out the wheat to people who had secured slips from the Ghat Munshi. It is alleged that out of this wheat which was in his charge he sold two maunds of wheat for a sum of Rs. 65 to accused No. 3 Hasan Nanwai. This wheat is alleged to have been carried by Gulla Mir accused No. 2 to Hassan Nanwni accused No. 3 through two persons by name Akbar Dar and Mohd. Dar. The prosecution allegation further is that when this wheat was in the process of being carried away by Hasan Nanwai the news leaked out and the neighbouring villagers came and seized the wheat and set the police machinery in motion. The prosecution has produced a number of witnesses in this case, two of whom Akbar Dar and Mohd. Dar have been produced to prove the actual embazzlement committed by the accused Malla Mahamadoo, Gulla Mir has made a statement under Section 342 Criminal Procedure Code in which he has more or less accepted the prosecution case. His statement has been treated by the trial magistrate as a confession and has been used against accused No. I under section 30 of the Evidence Act. His statement has been treated by the trial magistrate as a confession and has been used against accused No. I under section 30 of the Evidence Act. Hassan Nanwai also does not deny the iactum of his having purchased some wheat from Amir Mir, father of Gulla Mir, but adds that Amir Mir had made a stipulation with him to supply Kashmir wheat, but he supplied him Punjabi wheat instead. He does not drag in Malla Mohamadoo in the affair and states that he did not know that the wheat was given to him from out of the Government Stocks. Malla Mohamadoo denies having given any wheat to Gulla Mir. He says that he was engaged on daily wages to weigh out shah to different people who were holding slips issued by the Ghat Munshi and that the keys of the room where the wheat was stored remained with the Ghat Munshi during the night. Malla Mohamadoo was charged under S. 409 R P. C., Gulla Mir under Ss. 409/109 R. P. C, and Hasan Nanwai under Ss. 409/109 R. P. C. Hasan Nanwai was, however, convicted under S. 411 R. P. C. All the accused were sentenced as mentioned above. This case is a very badly investigated one. The police at the outset got four people by name Samad Shah, Ghani Dar, Mohd. Dar, and Akbar Dar examined under S. 164 Criminal P. C, as carriers of the wheat. These four persons were produced to state their having been engaged by Gull a Mir for carrying wheat from the shop where the Government stocks of wheat lay to the house of Gulla Mir wherefrom it is alleged to have been handed over to Hasan Nanwai. But later on we find that these four persons dwindled to only two, Samad Shah and Ghani Dar dropped out and only two persons Mohd. Dar and Akbar Dar were produced at the trial to prove the fact of carrying wheat from Malla Mobamadoo to Gulla Mirs house. These two witnesses have not been cross examined as to the statements that they had made under S. 164 nor was their attention specifically drawn to that portion in which they had stated that the carriers of this wheat were four persons i. e. Samad Shah, Ghani Mir, Mohd. These two witnesses have not been cross examined as to the statements that they had made under S. 164 nor was their attention specifically drawn to that portion in which they had stated that the carriers of this wheat were four persons i. e. Samad Shah, Ghani Mir, Mohd. Dar and Akbar Dar, and as such this portion of the statement cannot be used to contradict their statements. The learned counsel appearing on behalf of the accused has not questioned these witnesses in the light of their previous statements and if he has failed to do what was expected of him, even the learned magistrate has fared no better. The copies of the statements recorded Under S. 164 Criminal P. C. were on the file. We would have expected the magistrate to have got this most important point cleared by the prosecution. But, none-the-less, the fact remains that the police had got four people examined as the alleged carriers of this wheat and the police itself had produced the copies of the statements of these four persons along with the challan. From all this it becomes quite obvious that at one time the case of the police was that four people were the carriers, but at the trial they shifted their ground and their case came to be that only two people were the carriers. Under such circumstances it is not at all easy for us to rely or act upon the evidence of the two witnesses by name Mohd. Dar and Akbar Dar. It is the police itself which has put material on the file to discredit their veracity. The learned Special Magistrate, has along with pinning his faith in the veracity of these two witnesses treated the statement of Gulla Mir recorded under S. 342 Cr. P. C. as a confessional statement which could be taken into consideration against accused No. 1, Malla Mohamadoo. In his judgment the learned magistrate observes that "The statement of Gulla Mir which adversely affects him can be taken into consideration against accused No. I under the provisions of S. 30 of the Evidence Act". S.30 of the Evidence Act runs as follows. In his judgment the learned magistrate observes that "The statement of Gulla Mir which adversely affects him can be taken into consideration against accused No. I under the provisions of S. 30 of the Evidence Act". S.30 of the Evidence Act runs as follows. "When more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other persons as well as against the person who makes such confession." Before dealing with the arguments that have been advanced in this connection by the learned counsel appearing for the parties, we would like to make it clear that S.30 Evidence Act, conceives of a confession in which the confessor takes the fullest measure of guilt upon his shoulders and does not in any way plead or even suggest a mitigating circumstance. But a reference to the statement of Gulla Mir would show that his so-called confession falls very short of the ingredients that go to make up a full-gledged confession. Gulla Mir nowhere in his statement says that he had guilty knowledge or privity of guilt with Mala Mohamadoo. But apart from this, it is vehemently contested on behalf of the counsel appearing on behalf of Malla Mohamadoo that the statement of Gulla Mir made under S. 342 Cr. P. C., even though it may be treated as a confession, cannot be taken into consideration against Malla Mohamadoo accused No I. His argument is that a confession made by an accused when he is in the dock along with his other co-accused, cannot be proved against a co-accused. According to the learned counsel it is only those confessions that have been recorded before the accused are arraigned in the dock, that can be used against a co-accused. In support of his argument, the learned counsel has drawn our attention to A. I. R. 1923 All. 322 in which it has been held that: - "Evidence cannot be received against an accused person which he has no power to submit to cross-examination. Secondly an accused person cannot himself give evidence. In support of his argument, the learned counsel has drawn our attention to A. I. R. 1923 All. 322 in which it has been held that: - "Evidence cannot be received against an accused person which he has no power to submit to cross-examination. Secondly an accused person cannot himself give evidence. No body could pretend that the administration of justice would be assisted, if upon one accused making a confession implicating his colleague in the dock, his colleague were thereupon allowed to cross-examine him; there is nothing in the Procedure Code suggesting such a proceeding. To use therefore a statement made in the dock by one accused against the other in a joint trial, offends against at least two of the fundamental principles of the criminal law. What is contemplated by S. 3o is formal proof by the prosecution of a confession previously made When yon prove a confession made by a person, you tender evidence at the trial that on some previous occasion he did in fact make a confession, and that is the only thing which was ever contemplated by the Section." This view finds support in Madras Judgment reported as A. I. R. 1931, Madras 820, in which it has been held that: "A confession of accused I made from the dock in the magisterial proceedings admitting his own guilt and accusing accused 2 cannot be considered by the Court as against accused 2. " The Oudh Chief Court has also taken a similar view. In 1933 Oudh 86 it has been held that " 5.30 applies only to statements made before and proved at the trial. The expression "is proved" used in this section seems hardly applicable to statements made at the trial. The Lahore High Court was also at one time of the same view , though in a subsequent judgment of the same Court a different view has been taken. In A. I. R. 1935 Lahore 35 the word "proved" occurring in S. 30 of the Evidence Act has been held to mean " proved before the prosecution case comes to an end either proved in the course of the prosecution case or proved in some proceedings previous to the trial." In this case a passage occurring in A. I. R. 1923 Allahabad 322 referred to above was quoted with approval. This view has found further support in A. I. R 1940 Nagpur 287. Their Lordships in course of a very well reasoned judgment with which we find ourselves in respectful agreement have laid down the law in the following words: "There is obviously a difference between proof of a confession and proof of a fact. The definition of the word "proved" given in S. 3, Evidence Act, relates to proof of a fact in issue and not a statement recorded by the Court in the presence of the persons under trial. S. 30 speaks of the proof of a confession and not proof of a fact in issue." The word "confession" used there clearly means such a confession as is required to be proved at the trial as a part of the prosecution evidence. It cannot, therefore, signify any matter which comes on the record at the end of the prosecution evidence. " There is a distinction between a confession made by an accused person before the trial and one made by him when examined under S. 342. In the former case he admits his guilt without knowing or testing the whole of the evidence against him and against the other suspects. He spontaneously chooses to make a clean breast of the whole thing. The confession being an admission of his own guilt is admissible as evidence against him under S. 21, Evidence Act. That being so, a duty is cast on the magistrate who records a confession under Section 164 Criminal Procedure Code to warn the person making the confession that he is not bound to make a confession but that if he does so it might be used as evidence against him. The confession becomes thus admissible against him, as evidence unlike the statement that he makes under S. 342 Criminal Procedure Code. That statement comes after the prosecution has put forward the entire evidence and the accused is asked to state only for the purpose of enabling him to explain any circumstances appearing in the evidence against him. The confession becomes thus admissible against him, as evidence unlike the statement that he makes under S. 342 Criminal Procedure Code. That statement comes after the prosecution has put forward the entire evidence and the accused is asked to state only for the purpose of enabling him to explain any circumstances appearing in the evidence against him. The answer given by the accused can only be " taken into consideration" against him in the same enquiry, or trial although they can be put in evidence "for or against him in any other enquiry or trial for any other offence." In 1940 Calcutta 250 their Lordships of the Calcutta High Court have observed that: " The statements made by the accused under S. 342 Cr. P. C are to be considered by the Court and the Court should draw such an inference from the answer of the accused or refusal to answer as it thinks just. The Court in some cases may draw even an inference against the accused from his answer or refusal to answer. But the Court is not entitled to draw any inference against a co-accused from the answer of one accused given in response to questions put to him under the provisions of this Section� As against this, the learned counsel on behalf of the Crown has drawn our attention to A. I. R. 1936 Lahore 337. In this case it has been held that: " A confession made at the close of prosecution-by one of several accused persons who are being jointly tried implicating himself, and such other persons can be taken into consideration against such other persons, but this evidence would be of weakest kind and the value to be attached to such evidence would be a matter for determination in each particular case. If such a confession is made before a Magistrate at the close of the case for the prosecution, the accused whom it affects has an opportunity of nullifying its effects by his defence evidence and also by cross-examining the prosecution witness after the charge." In this case the learned Judge (Rangi Lal J.) who delivered the judgment on behalf of the Bench, while dissenting from the Allahabad judgment quoted above, has stated in his judgment: "Finally the learned Judge (of the Allahabad High Court) remarked that a confession could be "proved" only by tendering evidence to show that it was made on a previous occasion. We have to point out with great respect that in arriving at this conclusion, the learned Judge and the learned Judges of the Madras High Court overlooked the definition of "proved" in S. 3 Evidence Act." That definition is: "A fact is said to be proved when, after considering the matter before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists." If a confession is made before the Court itself it "is a matter before it " and the Court must believe it to exist. It must, therefore, be laid to be "proved." A fact can be proved not only by "evidence" as defined in S.3, Evidence Act but also by other matters before the Court. A confession recorded by the Court itself would not be "Evidence", but would be a matter before the Court." We are, therefore, of opinion that the language of S. 30 Evidence Act does not justify a distinction between a confession made by an accused person before the trial and in the course of the trials. The learned Assistant Advocate General has further drawn our attention to A. I. R. 1930 Bom. 354. But this ruling far from supporting him, lends its support to the applicants case. The Bombay High Court has laid down the law that there " is no provision in S. 342 Criminal P. C. which would seem to allow the statement made by one accused, person to be taken into consideration against the other accused in the same trial. This is exactly the case here. The Bombay High Court has laid down the law that there " is no provision in S. 342 Criminal P. C. which would seem to allow the statement made by one accused, person to be taken into consideration against the other accused in the same trial. This is exactly the case here. In this case what is treated as Gulla Mirs confession is a statement made under S. 342 Criminal P. C. and according to the Bombay ruling relied upon by the learned Assistant Advocate General, a confession made under S. 342 cannot be proved against a co-accused in the same trial. We shall, however, enter into a fuller discussion of this point immediately. Another judgment relied upon is that of Sindh reported as 1937 Sindh 218. This is a single Bench Judgment of that Court. In this judgment the learned Judge has adopted a different course from either of the two views, discussed above. In this ruling it has been laid down by the learned Judge that "Section 30 Evidence Act clearly contemplates that the statement of one accused admissible against his co accused must be made in the same trial when both accused are charged with the same offence and it must be a confession which affects himself as well as his co-accused." According to this view a confession made before a trial begins is excluded from being taken into consideration. This goes counter to the view of all the High Courts, and would not perhaps be relied on by the prosecution. Now coming to S. 342 Criminal P. C. This Section lays down the procedure for the examination of an accused after the prosecution evidence is recorded. In Sub-S. (3) of S. 342 Criminal P. C. it is laid down that "the answers given by the accused may be" taken into consideration in such enquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed." A reference to sub-S.(3) of S. 342 Criminal P. C. would make it abundantly clear that it excludes the possibility of a confessional statement made by an accused recorded under S. 342 Criminal P. C. to be used against a co-accused such answers as are given by the accused can be used only for or against him and not against others. We do not find any indication in this section which would go to show that the answers given by one accused under this section could be considered against his other co-accused. Coming now to the Lahore judgment reported as A. I. R. 1936 Lahore 337, their Lordships have held that a confession made before a Court during trial is a matter before it, and the Court must believe it to exist. It must, therefore, be said to be proved and can therefore be used against a co-accused in the same trial. As against this, the meaning given to the phrase "is proved" as it occurs in S. 30 Evidence Act by the majority of the Indian High Courts is that the confession to be proved must have existed before the trial had begun i.e., must have been recorded, before the trial of the case commenced. The Lahore High Court has based its interpretation upon the definition of the word "proved" as given in Section 3 of the Evidence Act. A reference to Section 3 of the Evidence Act would show that "A fact is said to be proved when, after considering the matter before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." With all respect for the learned Judges, we are of the opinion that this definition itself excludes the consideration of a confessional statement made by an accused under S. 342 Criminal P. C against a co-accused of his, because in order to hold that a fact is proved, the court must be in a position to believe, after consideration of the circumstances that it is true or is so probable that a prudent, man would under the circumstances of the case act upon the supposition that it so exists. Now with regard to the statement that is recorded by the Court under S. 342, neither the question of belief in its existence nor of the probability of its existence arises. Such a statement is within the knowledge of the Court itself and the belief in its existence or in the probability of its existence is out of question. A distinction has to be drawn between the words "belief" and "knowledge". Such a statement is within the knowledge of the Court itself and the belief in its existence or in the probability of its existence is out of question. A distinction has to be drawn between the words "belief" and "knowledge". A belief will be inculcated in the mind of a person by various factors: by evidence of witnesses or by inferences from given promises. But not so with knowledge. Knowledge is gained by a person by making use of his perceptional faculties and is clearly distinguishable from belief. Therefore according to the ordinary canons of interpretation a fact that has already come to the knowledge of the Court during the trial does not need being proved and cannot be proved so as to make the Court believe in its existence. Proofs needed of a fact which the Court does not know or believes to exist Under these circumstances we find ourselves in accord with the majority view of the Indian High Courts and hold that a confessional statement recorded under S. 342 Cr. P. C. cannot be considered against a co-accused in the same trial. We have already seen that the two witnesses Mohd. Dar and Akbar Dar. are not reliable witnesses, because they have given statements against what was the case of the prosecution in the beginning. Therefore we find no evidence to hold that the accused Malla Mohamadoo did as a matter of fact pass out the alleged quantity of wheat from the stocks over which he had no dominion. But the matter does not stop here. It was argued on behalf of the accused that Malla Mohamadoo was not in charge of stocks of wheat. He was only a weighman whose function was to weigh out shall to different people who held slips issued by the Ghat Munshi. It is a fact that shall was not put initially in his charge, but this too is a fact that during the day he used to have dominion over the property when the distribution was made. But yet it has to be shown by the prosecution that he has made a mis-appropriation of that wheat which was in has charge. The case of the prosecution is not that some wheat was put in has charge out of which he accounted for a certain quantity and left the remaining quantity unaccounted. But yet it has to be shown by the prosecution that he has made a mis-appropriation of that wheat which was in has charge. The case of the prosecution is not that some wheat was put in has charge out of which he accounted for a certain quantity and left the remaining quantity unaccounted. We have it in the evidence of many prosecution withesses including Mohd. Dar that nobody had ever complained against Malla Mohamadoo that he had given to somebody a lesser quantity that what was due to him, and thereby saved some quantity which he later on misappropriated. Not only is there no such prosecution case as would have gone to show or even allege that the accused had not accounted for the whole quantity of wheat put in his charge, but there is positive evidence on the record to show that 300 mds. of wheat meant for Devar were completely accounted for by Malla Mohamadoo and no shortage was detected (vide Ghulam Mohd. Ghat Munshi). The learned Special Magistrate has stated in his judgment in this connection: "It is sought to challenge this direct evidence by presumptive proof. The admission of the Ghat Munshi as elicited in cross-examination that the stock was fully accounted for cannot be accepted to be correct and serves as an illustration of the cases where book adjustments are at variance with actual facts. The Ghat Munshi was principally responsible for the stock and he had no option to say otherwise. A different statement would have exposed him to grave dereliction of duty and carelessness bordering on to criminal negligence." One wonders what does he mean by actual facts." Has it been proved or even alleged by the prosecution that 300 mds. The Ghat Munshi was principally responsible for the stock and he had no option to say otherwise. A different statement would have exposed him to grave dereliction of duty and carelessness bordering on to criminal negligence." One wonders what does he mean by actual facts." Has it been proved or even alleged by the prosecution that 300 mds. wheat which were in charge of Malla Mohamadoo were not fully accounted for or that a shortage was detected: Even if we assume that it was Malla Mohamadoo who had sold wheat to Hasan Nanwai through Gulla Mir, yet in view of the fact that it is not proved that it was the same wheat or out of the same wheat which was put in his charge that the alleged sale was effected, Malla Mohamadoo cannot be proceeded against under S. 409 Ranbir P. C. The ingredients of S. 409 are that the property must be entrusted to a person or he must have some dominion over that property and who dishonestly misappropriates or converts that property to his own use or dishonestly uses or disposes of that property. Taking this into consideration, criminal breach of trust can never be brought home to the accused. It has positively to be established that breach of trust was made of the property entrusted to him or at least he had failed to account for the quantity put in his charge. This has not been proved in the present case. May be that he is guilty of an offence under some other law (assuming that he has in fact sold the property to Hasan Nanwai through Gulla Mir). but he cannot be proceeded against under S. 409 R. P. C. We, therefore, hold that no offence is proved against Malla Mohamadoo. As regards Gulla Mir, he has been convicted under Ss. 409/109 R. P. c. We have already recorded our opinion that it is not proved that Malla Mohamadoo has committed an offence under Section 409 R. P. C. As such the question of abetment of an offence under S. 400 does not arise. Hasan Nanwai has been convicted under S. 411 R. P. C. The fact that the wheat recovered from his possession not having been proved as being the subject of criminal breach of trust, his conviction also cannot stand. Hasan Nanwai has been convicted under S. 411 R. P. C. The fact that the wheat recovered from his possession not having been proved as being the subject of criminal breach of trust, his conviction also cannot stand. The result is that we accept these appeals and acquit Malla Mohamadoo, Gulla Mir and Hasan Nanwai and order that they be forthwith released if not required in some other case. Fine, if paid, shall be refunded. Let a copy of this judgment be attached to all the three appeals.