JUDGMENT Hon’ble Sudhanshu Dhulia, J. This appeal, under Section 378 (3) of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.) is directed against the judgment and order dated 04.12.2002 passed by learned District & Sessions Judge, Pauri Garhwal in Sessions Trial No. 40 of 2001 whereby the accused/respondents, namely, Dhan Singh and Prem Bahadur have been acquitted of the charge of offence punishable under Sections 302 read with Section 34 and 201 read with Section 34 of I.P.C. 2. The brief facts, as per the prosecution are that a complaint was lodged on 06.09.2000, under Section 156(3) of Cr.P.C. before the Judicial Magistrate, Srinagar Garhwal by the complainant – Smt. Maina Devi (P.W.1) alleging therein that at about 10:00 p.m. in the night accused Dhan Singh and Prem Bahadur and one another person, namely, Bali Bahadur came to her house and took her husband – Gorak Bahadur for some work. Since then her husband had not returned back. She had tried to search him at various places, including her original home at Nepal, but in vain. She further states in the complaint that after a week she went to police station, Srinagar along with the photograph of her husband and complained to Station House Officer (SHO) about the three persons, namely, Dhan Singh, Prem Bahadur and Bali Bahadur. On the basis of the complaint, SHO had called all the three persons at the police station, but later they were left. These three persons have threatened her (i.e. complainant – Smt. Maina Devi) that they will kill her and her children. She further states that all these three persons have either abducted her husband or have killed him. She further states that she wrote a complaint about this to the District Magistrate, but no action was taken on her complaint. The learned Judicial Magistrate, on the basis of the complaint, directed the SHO, Srinagar to register the First Information Report, which was registered on 14.09.2000 and consequently, the investigation started. Initially on the strength of the said First Information Report a case was registered against all the three accused under Sections 364, 504 and 506 of I.P.C. and the investigation was given to Sub-Inspector – Jagdev Malik. The Investigating Officer, after completing the investigation, requested his superior authority that the accused were falsely implicated in the case, therefore, he may be permitted to submit the Final Report. The Investigating Officer, after completing the investigation, requested his superior authority that the accused were falsely implicated in the case, therefore, he may be permitted to submit the Final Report. However, the then Superintendent, Pauri vide order dated 21.11.2000 rejected his application and directed the SHO, Srinagar – Sri Kailash Chandra Panwar to re-investigate the matter. On 22.11.2000, SHO – Sri Kailash Chandra Panwar arrested the present accused, namely, Dhan Singh and Prem Bahadur and produced them before the Judicial Magistrate on the very next day i.e. 23.11.2000. On the request of the Investigating Officer, statements of these accused were recorded under Section 164 of Cr.P.C. before the Magistrate. Accused – Dhan Singh confessed in his statement that he had called Gorak Bahadur from his house on instigation of Prem Bahadur and Bali Bahadur at about 09:00-10:00 in the night regarding some work and when they reached near the Jhoolapul, they met Bali Bahadur and Prem Bahadur and thereafter all of them started moving together. They all had consumed liquor together and suddenly Prem Bahadur and Gorak Bahadur had some altercations and arguments relating to some transaction of money. One thing followed another and soon Prem Bahadur and Bali Bahadur started kicking Gorak Bahadur and when he fell down, Prem Bahdaur sat on his chest and started strangulating him. Both of them i.e. Prem Bahadur and Bali Bahadur kicked Gorak Bahadur in his groin and thereafter threw his body in the river. Thereafter, all of them came back to their respective homes and slept. This witness further states that on the next morning wife of Gorak Bahadur – Smt. Maina Devi enquired about her husband and he told her that her husband had returned along with Bali Bahadur and Prem Bahadur. Thereafter, this witness states he left Srikot. 3. Prem Bahadur another accused, in his statement recorded under Section 164 of Cr.P.C. before the Magistrate states that Dhan Singh went to Gorak Bahadur house in the night of occurrence and when they reached at Choras Jhoolapul, they met Bali Bahadur and Prem Bahadur and leaving him all the rest had liquor together. Thereafter, he asked Gorak Bahadur to return his money, which he had borrowed from him. On this, Gorak Bahadur started abusing Prem Bahadur, not only did he abuse to him, but he also abused Bali Bahadur and Dhan Singh. Thereafter, he asked Gorak Bahadur to return his money, which he had borrowed from him. On this, Gorak Bahadur started abusing Prem Bahadur, not only did he abuse to him, but he also abused Bali Bahadur and Dhan Singh. On this, they got angry and when Bali Bahadur kicked Gorak Bahadur he fell down, thereafter, he (Prem Bahadur) sat on his chest and started strangulating him. Dhan Singh was holding both the hands of Gorak Bahadur and Bali Bahadur was kicking him and shouting “we will kill him today”. Since he was being strangulated Gorak Bahadur could not shout and after sometime he died. All three, namely, Dhan Singh, Prem Bahadur and Bali Bahadur threw the body of the deceased (Gorak Bahadur) into the river and came back to their respective homes. This witness further states that on the very next day, Smt. Maina Devi – wife of the deceased came to him enquiring about her husband and she was told that he has not seen him and he cannot tell the whereabouts of her husband. After two days of the said incident, Bali Bahadur and Dhan Singh fled away from Srinagar. The Investigating Officer after completing the investigation submitted the chargesheet before the court concerned against the accused Dhan Singh and Prem Bahadur under Sections 302, 201, 504 and 506 of I.P.C. and a Final Report against Bali Bahadur. 4. After submission of chargesheet, the learned Magistrate committed to the Court of Sessions for trial and the learned Sessions Judge, after hearing the parties, framed charges under Section 302/34 and 201/34 of I.P.C. against the accused/appellants. 5. The prosecution in support of its case produced as many as five witnesses, namely, Smt. Maina Devi (P.W.1) – wife of the deceased, Intzar Husain (P.W.2), Sri Prashant Joshi (P.W.3) – the concerned Judicial Magistrate before whom the confession was made, Kulo Singh Gabaryal – A.S.I. (P.W.4) – Investigating Officer and Kailash Panwar (P.W.5) – Investigating Officer. The accused/respondents denied charges and claimed trial and produced Narendra Singh (D.W.1) and Lal Kali (D.W.2) in their defence. 6. The trial court, after hearing learned counsel for the parties and perusing the entire material available on record, found that the charge against the accused/respondents are not proved beyond reasonable doubt and acquitted them of the charge framed against them vide judgment and order dated 04.12.2002. 7. Heard Mr. 6. The trial court, after hearing learned counsel for the parties and perusing the entire material available on record, found that the charge against the accused/respondents are not proved beyond reasonable doubt and acquitted them of the charge framed against them vide judgment and order dated 04.12.2002. 7. Heard Mr. Hari Om Bhakuni, Brief Holder for the State, Mr. Manoj Mohan, learned Amicus Curiae for the respondents and perused the record. 8. According to the prosecution, one of the main witness is Smt. Maina Devi (P.W.1), who is the wife of the deceased – Gorak Bahadur. In her examination-in-chief on 07.05.2002, she states that Dhan Singh, Prem Bahadur and Bali Bahadur had came to her house in the night at about 10:00 p.m. and called her husband and when he did not return back, she filed a complaint before the Judicial Magistrate. She also told the police about the fact that her husband is missing and she suspected that the three accused, namely, Dhan Singh, Prem Bahadur and Bali Bahadur had either abducted her husband or killed him. Since nothing was done, she moved an application before the District Magistrate, but nothing happened on the said application as well. After moving a complaint before the Judicial Magistrate, she met Prem Bahadur and Dhan Singh at Srinagar Bus Stand, who told her that her husband has already reached God almighty and nothing would happen on her complaint. Thereafter, she reported about this incident to the police. According to her she met one Intzar Hussain, who told her that when he had gone to Srikot (6 to 8 Km away from Srinagar) he had met two ‘Gorkhas’, confessed to him of having killed one Nepali and now his wife is after us and requested him for help. This person – Intzar Hussain has been produced by the prosecution as P.W.2. Intzar Hussain and Smt. Maina Devi went along with police in search of accused at Koteshwar Mandir (Temple) and arrested both the accused, namely, Dhan Singh and Prem Singh below the Pipal tree. Thereafter, these accused were arrested and brought to the police station. 9. In her cross-examination Smt. Maina Devi states that they have no enmity with Dhan Singh, Prem Singh and Bali Bahadur. She was put to a cross-examination from the defence, which questioned her character and that she has married many times, etc. Thereafter, these accused were arrested and brought to the police station. 9. In her cross-examination Smt. Maina Devi states that they have no enmity with Dhan Singh, Prem Singh and Bali Bahadur. She was put to a cross-examination from the defence, which questioned her character and that she has married many times, etc. All the same, nothing has come out from this cross-examination. P.W. 2 – Intzar Hussain in his examination-in-chief on 07.05.2002 stated that on 21st November, 2000 when he had gone to Sricot base hospital, he met both the accused. These accused told him that about five months back they had killed their friend and they have thrown his dead body from the bridge into the river and the matter could be informed to the police, so that, some compromise can be made. He further states that he told this incident to Smt. Maina Devi – wife of the deceased, who narrated the above fact to the police. 10. P.W. 3 – is Mr. Prashant Joshi, Judicial Magistrate, Srinagar who states that on 23rd November, 2000, the accused Prem Bahadur and Dhan Singh were presented before him by the police and he recorded the statements of these accused separately under Section 164 of Cr.P.C. He further states that before recording the statement under Section 164 of Cr.P.C., he had adopted due procedure and caution that such statement can be read as evidence against them; only thereafter their statements were recorded. He further states that after he was fully satisfied those statements have been given by the accused on their own free will and not due to any duress or threat. 11. Kulo Singh Garbiyal (P.W.4) is the person, who arrested the accused persons, who states in his statement that the investigation in the matter was being done by S.H.O. - Kailash Panwar (P.W.5). Kailash Panwar (P.W.5) is the investigating officer, who has supported the case of the prosecution which is before this Court. The accused have produced two witnesses, namely, Narendra Singh (D.W.1) and Lal Kali (D.W.2) but nothing has come out in their statements. 12. The crucial factor in the present case is the statements given by the two accused by confessing their crime before the Magistrate under Section 164 of Cr.P.C. The First Information Report in this case is highly belated, which is after a period of two months. 12. The crucial factor in the present case is the statements given by the two accused by confessing their crime before the Magistrate under Section 164 of Cr.P.C. The First Information Report in this case is highly belated, which is after a period of two months. Apart from the confessional statement made by the accused persons, no other eyewitness of the incident has been produced by the prosecution. The body of the deceased has also not been recovered. Undoubtedly, if the confession made by the accused in their statements is found by the court to be genuine, true and faithful and has been made without any threat or pressure, it is a settled law that the conviction can be made against these accused only on the strength of this confession. All the same it has still to be seen as whether it was truthful and liable to be taken cognizance by the trial court. The trial court has not accepted these statements, therefore, it has acquitted the accused. It is to be noted that the present case is based on circumstantial evidence and in these types of cases chain of commission of crime is necessary, but in the present case, there is no single evidence connecting the accused persons to the commission of crime. The evident value of the confession given by the accused under Section 164 Cr.P.C. before the Magistrate and the reliability and truthfulness has been repeatedly stated by the Hon’ble Apex Court in catena of judgments. This Court is of the considered view that the accused Dhan Singh and Prem Bahadur have been rightly acquitted from the charges levelled against them for conviction are not liable to be made on the strength of the confession made by the accused under Section 164 Cr.P.C. The reasons are as follows :- The case of the prosecution entirely rests on the judicial confession made by the accused before the Judicial Magistrate on 23.11.2000. It is indeed true that in a given case conviction can be made purely on the basis of judicial confession. However, this confession must be true, trustworthy and must appear to the Court that it has been made by the accused independently by his own free will, without any duress, threat or coercion by the police. A confession can be recorded by a Judicial Magistrate under Section 164 of Code of Criminal Procedure. However, this confession must be true, trustworthy and must appear to the Court that it has been made by the accused independently by his own free will, without any duress, threat or coercion by the police. A confession can be recorded by a Judicial Magistrate under Section 164 of Code of Criminal Procedure. However, Section 164 itself lays down the procedure under which such a confession has to be made. Section 164 (2) of Cr.P.C. is important which reads as under : “164. Recording of confessions and statements . – (1) …. (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.” 13. In fact, Judicial Magistrate while recording the confession of an accused though strictly is not a Court yet a Judicial Magistrate while recording a confession still remains a Judicial Magistrate and he is performing a judicial duty. A Judicial Magistrate, therefore, has to be very careful while recording a confession. What has happened in the present case is that these two accused persons/respondents were arrested by the Police on 22.11.2000 at 2.20 P.M. They were produced before the Judicial Magistrate the very next date i.e. on 23.11.2000 after presumably they were interrogated by the police in the night. The Judicial Magistrate himself was examined as P.W. 3 who has given statement before the Court that it took him 1 to 1½ hours while recording this statement, and though he states and as is evident from the recorded statement itself the Judicial Magistrate had warned these two accused persons that this statement can be read against them and as to whether they are doing it on their own will or not, etc. But we must also remember that these two accused persons are poor labourers hailing from Nepal who are not even very well versed in Hindi language. Moreover, they had admittedly been presented before the Judicial Magistrate under police custody and after one and a half hours given back to the police custody. In fact, after recording the statement the first remand orders were passed by the concerned Judicial Magistrate. Moreover, they had admittedly been presented before the Judicial Magistrate under police custody and after one and a half hours given back to the police custody. In fact, after recording the statement the first remand orders were passed by the concerned Judicial Magistrate. Though the Judicial Magistrate in his statement before the Court states that he had given them opportunity to make this statement at some other time but it has not been recorded in the statement which are Exb. Ka-4 and Ka-5. 14. Can this be called a free confession or a confession which is truthful and trustworthy? In the opinion of this Court, it is not. The correct procedure for the concerned Magistrate was to take these two accused persons in judicial custody and after keeping them in judicial custody for some time and after giving them enough opportunity to contemplate freely, he could have recorded the statement after two or three days. This, he failed to do so. The parameters and the procedures for recording judicial confession has been laid down by a Constitution Bench of Hon’ble Apex Court in seminal decision of Kartar Singh v. State of Punjab reported in (1994) 3 SCC 569 wherein, inter alia, it has been noticed as under :- “The object of keeping the accused/suspect in judicial custody and giving him sufficient time for reflection and necessary warnings reinforces it since sufficient time given the accused frees himself from the pressure of police interrogation and for reflection before making confession. It will have sobering effect on the accused/suspect.” 15. The learned trial court, therefore, has rightly refused to rely upon the judicial confession and has acquitted the accused. The other evidence against the accused such as the extra-judicial confession made before Intzar Hussain (P.W.2) are equally untrustworthy. Thus, it has now become purely a case of circumstantial evidence where the First Information Report is highly belated and this could be a case of afterthought. 16. For the reasons, as discussed above, this appeal is liable to the dismissed. The same is dismissed. The order dated 04.12.2012, passed by learned District & Sessions, Pauri Garhwal, in Sessions Trial No. 40 of 2001, acquitting the accused/respondents Dhan Singh and Prem Bahadur from the charge of offences punishable under Sections 302/34 and 201/34 of I.P.C. is affirmed.