Judgment (1) These appeals have been directed against the judgment and order dated 31. 1. 2003 passed in Sessions trial No. 160/2002 by the Fourth additional Sessions Judge (F. T. C.), Janjgir (C. G.),whereby, the appellants have been convicted u/ss 302 and 201 IPC and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 100, in default of payment of fine to undergo R. I. for 1 month and r. I. for 5 years and to pay fine of Rs. 500, in default of payment of fine to undergo R. I. for 6 months, with a further direction to run the sentences concurrently. (2) The facts, briefly stated, are as under: on 1. 3. 2002, at about 7. 00 a. m., Sarju prasad Rathore (PW1) saw two dead bodies lying in Mundinala near birgahni Chowk. He lodged Merg intimations (Ex. P1and P2) in the concerned police station. The Investigating officer reached to that place, gave notices (Ex. P40 and P41) to the Panchas and prepared inquest reports (Ex. P42 and P43) on the dead bodies of the deceased persons which were identified to be the bodies of Amardas @ Ammu and Anil Kumar, residents of Sadar bazaar, Champa. Site plan was prepared under Ex. P44a and another site plan was prepared by, Halka Patwari under Ex. P15 blood stained soil, plain soil and two pairs of chappels were seized from Mundinala under Ex. P37. During the course of investigation of the Merg, the Investigating Officer came to know that the deceased persons were assaulted by the accused/ appellants by lathi, iron hammer and pava (the leg of the cot) in the intervening night of 28. 2. 2002 and 1. 3. 2002 in the hotel belonging to appellant suresh Kumar Patel which was situated at Birgahni Chowk and their dead bodies were thrown by them in the nala. On such information, he recorded dehatinalishi (Exp46) at 2. 00 p. m., based on which, a First Information report (Ex. P47) was lodged. Blood stained soil and plain soil were seized from the place of occurrence (hotel of appellant Suresh Kumar Patel) under ex. P36. The dead bodies of the deceased persons were sent for their post-mortem to District Hospital, janjgir under Ex. P16 and P27, where the post-mortem examinations were conducted by Dr. R. S. Prabhakar (PW4) and Dr. R. D. Gupta (PW6), who prepared their reports Ex. P36. The dead bodies of the deceased persons were sent for their post-mortem to District Hospital, janjgir under Ex. P16 and P27, where the post-mortem examinations were conducted by Dr. R. S. Prabhakar (PW4) and Dr. R. D. Gupta (PW6), who prepared their reports Ex. P17 and P28. They noticed multiple grievous injuries on the vital parts of the bodies, including the skull, of the deceased persons and opined that the death or the deceased persons were caused by coma and haematoma due to head injuries and the deceased persons died homicidal death. In further investigation, after taking the accused/appellants into custody, their memorandum statements (Ex. P3, P4, P9 and P33) were recorded u/s 27of the Evidence Act and pava of cot (3 Nos.) and iron hammer were seized at the instance of the accused persons under Ex. P5, P6, P11 and P34. Cloths of the accused persons were also seized. The seized articles were sent for their chemical examination to Forensic science Laboratory, Raipur, from where, a report Ex. P59 was obtained. According to the F. S. L. report, blood stains were found on the pava and the hammer seized from accused/ appellants Sahdeo and Suresh. After completion of usual investigation, the charge-sheet was filed in the court of Chief Judicial Magistrate, janjgir, who in turn committed the matter to the concerned Sessions court, from where, it was received on transfer by the Fourth Additional Sessions judge (F. T. C.), Janjgir (C. G.), who conducted the trial and convicted and sentenced the accused/appellants as aforementioned. The prosecution came with a case based on two sets of evidence. One was the eyewitness account of sole eyewitness Ishwari yadav (PW9) who also narrated the story to Laxminarayan (PW5). The other was the extra-judicial confession made by appellant suresh Kumar before Rajesh Kumar Tiwari (PW7), Gulab (PW10), Ganesh Prasad Sahu (PW11) and Dharmendra (PW15) in which he allegedly confessed that he along with the other appellants namely Shiv Ram, dharmendra @ Gudda and Sahdeo @ chhotu Yadav had committed the murder of the deceased persons. (3) The sole eye-witness namely Ishwari yadav (PW9) turned hostile and he did not support the case of the prosecution. Even laxminarayan (PW5) also turned hostile and denied that the incident was disclosed to him by Ishwari Yadav (PW9). (4) The learned Sessions Judge convicted the appellants on the basis of extra-judicial confession made by appellant. (3) The sole eye-witness namely Ishwari yadav (PW9) turned hostile and he did not support the case of the prosecution. Even laxminarayan (PW5) also turned hostile and denied that the incident was disclosed to him by Ishwari Yadav (PW9). (4) The learned Sessions Judge convicted the appellants on the basis of extra-judicial confession made by appellant. Suresh kumar Patel before the above witness supported by the other circumstantial evidence of discovery and seizure made on their instances. Learned counsel appearing on behalf of the appellants have not disputed the homicidal death of the deceased persons. Moreover, it comes in the evidence of witnesses of inquest reports (Ex. P 42 and P43) that the dead bodies of the deceased persons were found in the nala. The deceased persons had sustained many injuries. The" two Autopsy Surgeons namely Dr. R. S. Prabhakar (PW4) and Dr. R. D. Gupta (PW6)also noticed multiple grievous injuries on the vital parts of the bodies, including the skull of the deceased persons and opined that their death was homicidal in nature. Therefore, it was established that the death of the deceased persons were homicidal in nature. (5) Learned counsel for the appellants argued that the sole eye-witness Ishwari yadav (PW9) has turned hostile as he has not supported the case of prosecution at trial. Even the witness to whom he allegedly narrated the story namely laxminarayan (PW5) has also turned hostile and denied that the incident was disclosed to him. They further argued that the evidence of extra-judicial confession made by appellant Suresh Kumar before the above witnesses is shaky and unreliable. They also argued that even otherwise also, conviction of the other appellants cannot be sustained on the basis of so called extra-judicial confession made by co-accused Suresh Kumar as the same was not a substantive evidence against them in the meaning of Section 30 of the Evidence Act. (6) On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the these arguments and supported the judgment and order passed by the Sessions court. We have heard the learned counsel for the parties at length and have also perused the records of the Sessions case. (7) IN. (6) On the other hand, Mr. Ashish Shukla, learned Govt. Advocate appearing on behalf of the these arguments and supported the judgment and order passed by the Sessions court. We have heard the learned counsel for the parties at length and have also perused the records of the Sessions case. (7) IN. State of U. P. v. U. K. Anthony the apex Court held that "there is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The courts have considered the evidence of extra-judicial confession a weak piece of evidence. If the evidence about extra-judicial comes from the mouth witness/witnesses who appear to be unbiased, not even remotely brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear unambiguous and unmistakably that the accused is the perpetrator of the convey crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility if it passes the test, the extra-judicial confession can be accepted and can be the basis itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and can be founded thereon. " (8) IN Narayan Sinah v. State of M. P. the Apex Court held that it is not open to any court to start with a presumption that an extra-judicial confession is a weak type of evidence and it depends upon the Veracity of the witnesses to whom it is made and it is for the court to decide on the acceptability the evidence having regard to the credibility of the witnesses. Further in Baldev Rai v. State of haryana the Apex Court laid down that "an extra-judicial confession, if voluntary can be relied upon by the court along with other evidence in convicting the accused. The value of the evidence as, to the confession depends upon the veracity of the witnesses to whom it is made. Further in Baldev Rai v. State of haryana the Apex Court laid down that "an extra-judicial confession, if voluntary can be relied upon by the court along with other evidence in convicting the accused. The value of the evidence as, to the confession depends upon the veracity of the witnesses to whom it is made. It is true that the court requires the witness to give the actual words used by the accused as nearly as possible but it is not an invariable rule that the court should not accept the evidence, if not the actual words but the substance were given. It is for the court having regard to the credibility of the witness to accept the evidence or not. When the court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, conviction can be founded on such evidence. Keeping these principles in mind, the apex Court found in this case that the confession has been properly accepted and acted upon by the courts below and there was no scope for any doubt regarding the complicity of the appellant in the crime. The confession of the appellant was voluntary. The testimony of PW4 and PW5 being responsible persons could not be doubted in the absence of any material to show that they had been to falsely implicate the appellant. The very presence of the appellant and his father with the party of Ishar Dass throughout the operation up to lodging of complaint at the police station, dispel any suspicion against the prosecution case and clearly point to the truthfulness of the same. His Lordships said that, therefore, they were unable to find any infirmity in the confession which has been accepted and relied upon by the courts below. " (9) IN Kavita v. State of Tamilnadu the apex Court again reiterated the same principles that there is no doubt that convictions can be based on extra-judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence and therefore, it is to be proved just like any other fact and the value thereof depends upon the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the Court to decide on the acceptability having regard to the credibility of the witnesses. (10) Further in State of Punjab v. Gurdeep singh again the Apex Court emphasized that in the matter of evidence of extra-judicial confession, the evidentiary value of the evidence depends upon the veracity of the witnesses to whom it is made and it can be treated as substantive evidence if there is found some assuring material or circumstance recording extra-judicial confession before a person wholly unconnected with the police is always a matter of great suspect. In Gagam Kanojia and another v. State of Punjab the Apex Court held that the extra-judicial confession can form the; basis of a conviction and by way of abundant caution, court may look for some corroboration. (11) Thereforre, on the above principles, it is clear that there is no rule of law that the evidence of extra-judicial confession cannot be relied on alone and for recording a conviction on such confession, there should be corroboration by some other evidence. On the contrary, if the evidence of extra judicial confession is reliable, trustworthy and is beyond the shadow of doubts, the same can be made the sole foundation for recording conviction of the accused and the Court by way of abundant caution, may look for some corroboration. This is all about the extra-judicial confession made by an accused for himself which would be a substantive evidence against him. The law in relation to the extra-judicial confession in which the maker also involves the other accused persons and the evidentiary value of that evidence qua the co-accused persons is on different footings which we shall discuss later on. (12) Now we shall examine the extra-judicial confession said to be made by appellant suresh Kumar before the above 4 witnesses. Rajesh Kumar Tiwari (PW7) deposed that "on 1. 3. 2002, at about 9.00 A.M. Gulab bhavnani (PW10) and Ganesh Prasad Sahu (PW11) came to his place and stated that the dead bodies of deceased Ammu Udashi and Anil Sahu are lying in Mundinala. They went to Mundinala and saw the dead bodies. He telephonically informed the police regarding the dead bodies in nala. 3. 2002, at about 9.00 A.M. Gulab bhavnani (PW10) and Ganesh Prasad Sahu (PW11) came to his place and stated that the dead bodies of deceased Ammu Udashi and Anil Sahu are lying in Mundinala. They went to Mundinala and saw the dead bodies. He telephonically informed the police regarding the dead bodies in nala. They came to know that in the night, the deceased persons had gone for taking liquor and there was some quarrel and then they were killed. Appellant Suresh Kumar has a hotel at birgahni Chowk. They went to his hotel and saw that the floor of the hotel was cleaned. They called appellant Suresh and asked about all this. Firstly Suresh tried to avoid them but later on, he stated that deceased amardas @ Ammu and Anil Sahu came to his hotel in the night, they had asked for glasses and water for drinking liquor, after taking liquor some quarrel took place between dharmendra, Shiv Ram, Chhottu and the deceased persons and thereafter they were assaulted by the accused persons by pava of the cot and iron hammer and after the death, their dead bodies were thrown in Mundinala. " (13) GULAB (PW10) also deposed that on 1. 3. 2002, he was present along with dharmendra Udashi (PW15), Rajesh kumar Tiwari (PW7) and Ganesh Prasad sahu (PW11). Appellant Suresh made extra-judicial confession before them as deposed by Rajesh Kumar Tiwari (PW7). (14) GANESH Prasad Sahu (PW11) is the elder brother of deceased Anil Sahu. He deposed that "on the fateful night, at about 8. 00 p. m. Anil Sahu left the house saying that he is going in some marriage. "he did not return in the night. In the morning, they came to know that the dead bodies of two persons, are lying in Mundinala. He went to mundinala and saw that one of the dead bodies was that of his brother and the other was of deceased Ammu Udashi. They had gone to hotel of Suresh Patel. Suresh made extra-judicial confession before them. Gulab bhawnani (PW10), Rajesh Tiwari CPW7)and other persons were also present there. " Dharmendra (PW15) is the brother of deceased Ammu. He also deposed that "appellant Suresh made extra-judicial confession before them saying that the deceased persons were assaulted by him, Gudda thakur, Shiv Ram Yadav and Chhottu yadav and when they died, their dead bodies were thrown in Mundinala. Gulab bhawnani (PW10), Rajesh Tiwari CPW7)and other persons were also present there. " Dharmendra (PW15) is the brother of deceased Ammu. He also deposed that "appellant Suresh made extra-judicial confession before them saying that the deceased persons were assaulted by him, Gudda thakur, Shiv Ram Yadav and Chhottu yadav and when they died, their dead bodies were thrown in Mundinala. " (15) RAJESH Tiwari (PW 7) deposed in examination in-chief itself that the police party reached Birgahni Chowk after 20-30 minutes of making of the extra-judicial confession by appellant Suresh Kumar before them. The information regarding murder of the deceased persons was given to the police by Laxminarayan (PW5). Laxminarayan is the witness to whom the eye-witness, ishwari Yadav (PW9) had narrated about the incident. Though many facts have been mentioned in Dehatinalishi (Ex. P46) but the facts in relation to making of extra-judicial confession by appellant Suresh kumar is not mentioned therein. If Suresh kumar had made extra-judicial confession before arrival of the police to the place of occurrence, as it comes in the evidence of above 4 witnesses, in all probability, something about mentioned in this document. (16) GULAB (PW10) is also a witness to inquest reports (Ex P42 and P43) of the dead bodies of the deceased persons. He did not mention at the time of inquest that appellant suresh has made extra-judicial confession before them, where as, the alleged confession was made prior to reaching of the police to the place of occurrence. Ganesh prasad Sahu (PW11) is also a witness of inquest (Ex. P 43) and is elder brother of deceased Anil Sahu. He also did not make mention about the alleged confession at the time of inquest. If these persons, one of whom was the close relation of the deceased, were knowing about the incident, why they did not disclose it to the police on the above opportunities and the facts in relation to making extra-judicial confession by appellant suresh Kumar came for the first time when their 161 statements were recorded on 5. 3. 2002. This creates a doubt about making of the extra-judicial confession by appellant Suresh Kumar before these witnesses on 1. 3. 2002 prior to reaching of the police at the scene of occurrence, as claimed by them in their Court evidence. Pw7, Rajesh Kumar Tiwari has been confronted by his police case diary statement (Ex. 3. 2002. This creates a doubt about making of the extra-judicial confession by appellant Suresh Kumar before these witnesses on 1. 3. 2002 prior to reaching of the police at the scene of occurrence, as claimed by them in their Court evidence. Pw7, Rajesh Kumar Tiwari has been confronted by his police case diary statement (Ex. D1)on many points but the important one is that he mentioned in his case diary statement that Suresh denied to accept the incident but when they asked him after pressurizing him, then he told the above incident of the night. This portion in his diary statement has also been marked as 'a to A' in his case diary statement (Ex d1) which he did not depose before the court. Similar is the position to Gulab (Pw10) who also stated in his diary statement (Ex D2)that firstly, Suresh denied the incident but when they asked by pressurizing him, he told about the incident of the night. This portion is his diary statement has also been marked as 'a to A' when he also did not depose before the court. Dharmendra Udashi (Pw15) was also confronted with his diary statement (Ex D3) in which he also stated that firstly Suresh did not tell them anything but when he was pressurized by them, then only he disclosed the incident. The portion of his such statement has also been marked as 'a to A' in Ex. D3 which he did not depose before the Court. In appreciation of evidence of these witnesses, firstly it appears to be doubtful that in fact, Suresh made any extra-judicial confession before them at about 8-9. 00 a. m. on 1. 3. 2002, as contended by these witnesses as nothing about such confession comes in dehatinalishi (Ex. P46) and the inquest reports (Ex. P42 and P43) which was prepared in their presence and Gulab (Pw10) and ganesh Prasad Sahu (Pw11) were parties to the inquest reports. Even if it is held for the sake of argument that appellant Suresh made such statement before them, according to the versions of these witnesses in 161 statements that was elicited after pressurizing him, which they have omitted to depose before the Court. This shows that if anything was stated by Suresh before these witnesses, that was not voluntary and it appears to have been caused by the inducement by pressurizing him by the said witnesses. This shows that if anything was stated by Suresh before these witnesses, that was not voluntary and it appears to have been caused by the inducement by pressurizing him by the said witnesses. (17) So far as evidentiary value of the alleged extra-judicial confession of accused/ appellant Suresh Kumar against the other co-accused persons are concerned confession of a co-accused is not substantive 'evidence' as defined in Section 3 of the Evidence Act, and can only be "taken into consideration" against the other accused. Hence a conviction of an accused person cannot be founded on the confessions of the co-accused only, if there is no substantive evidence on record on which such conviction can be based. In kashmira Singh v. State of M. P. the Court has laid down the principles as to the use to which the confession of a co-accused can be put, and it has been held that the only limited use to which such a confession can be put is to refer to it for the purpose of lending assurance to the belief which could be attached to such other evidence, if the Court entertains a hesitation on that point, and of fortifying that belief. (18) IN Nathu v. State of Uttar Pradesh it was held that if there is no sufficient sub-stantive evidence upon which conviction can be based, the confession of a co-accused cannot be of any use at all, and should be left altogether out of consideration, because there can be no question of lending assurance to the belief in any evidence if that evidence in itself is insufficient for being made the basis of a conviction. This appears to be a consistent view expressed by the Apex Court. In State of M. P through CBI and Others v. Paltan Mallah and Others dealing with the same question, the Apex Court observed in Para18 as under: "another incriminating circumstance sought to be proved against the accused is the extra-judicial confession alleged to have been made by the ninth accused Paltan mallah wherein he named A1, A2, a5 and A6. It is alleged that he made the confession to PW105 Satyaprakash nishad and A9 is alleged to have disclosed to PW 105 that these accused persons had given him money and he murdered shankar Guha Niypgi for the sake of money. It is alleged that he made the confession to PW105 Satyaprakash nishad and A9 is alleged to have disclosed to PW 105 that these accused persons had given him money and he murdered shankar Guha Niypgi for the sake of money. Under Section 30 of the evidence Act, the extra-judicial confession made by a co-accused could be admitted in evidence only as a corroborative piece of evidence. In the absence of any substantive evidence against these accused persons, the extra-judicial confession allegedly made by the ninth accused loses its significance and there cannot be any conviction based on such extra-judicial confession. " (19) IN Baldev Singh v. State of Punjab the Apex Court again held that the evidence of extra-judicial confession being weak evidence, by itself is not sufficient for recording a judgment of conviction against a co-accused, unless the same is corroborated. (20) Thereforre, the said piece of evidence even if held to be reliable (though we have not held it to be reliable) was not a substantive evidence against the remaining appellants and the conviction of the other appellants on the said evidence alone, was not possible. Mr. Ashish Shukla, learned Government Advocate argued that the bloodstained articles were seized at the instance of the appellants on their memorandum statements which also connect them from crime in question. Firstly, we may mention that the blood-stains were found only on the pava and hammer seized from the possession of appellants Suresh Patel and Sahdeo yadav and no blood-stains were found on any other article likepava and cloths seized from the possession of other appellants. Admittedly, the origin and the group of the blood stains have not been ascertained as no report to this extent could be filed. In the facts and circumstances of the case, in absence of any other clinching, cogent and reliable evidence, this solitary circumstance would hardly be an incriminating evidence in the matter. (21) For the foregoing reasons, the conviction and sentences awarded to the appellants under the aforementioned sections of the IPC cannot be sustained and the same deserve to be set aside. (22) ACCORDINGLY, the appeals are allowed. The conviction and sentences awarded to the appellants u/ss 302 and 201 IPC are set aside. They are acquitte4 of the charges framed against them. It is stated that appellants suresh Patel and Sahdeo @ Chhotu are in jail since 3. 3. (22) ACCORDINGLY, the appeals are allowed. The conviction and sentences awarded to the appellants u/ss 302 and 201 IPC are set aside. They are acquitte4 of the charges framed against them. It is stated that appellants suresh Patel and Sahdeo @ Chhotu are in jail since 3. 3. 2002; appellant Shiv ram Bareth is in jail since 8. 3. 2002; and appellant Dharmendra @ Gudda is in jail since 28. 3. 2002. They be set at liberty, forthwith, if not required in any other case. Appeals allowed.