JUDGMENT : V. K. TAHILRAMANI, J. The Appellant-State of Maharashtra has preferred this appeal against the judgment and order of acquittal of Respondent nos. 1 to 4 (original accused nos. 2 to 5) dated 21.10.2005 passed by the 1st Ad-hoc Additional Sessions Judge, Thane in Sessions Case No. 238 of 2003. Pending the hearing of the appeal, Respondent No.1-original accused no.2 expired, hence, the appeal against him abates. 2. By the impugned judgment and order the present Respondents/original accused nos. 2 to 5 were acquitted for the offences punishable under Sections 302, 364, 342,384 and 201 read with Section 34 of IPC and punishable under Section 25 (c) of the Indian Arms Act and Section 37 (I) read with Section 135 of Bombay Police Act. 3. The case of the prosecution, briefly stated, is as under: Dilip Panse (deceased) was working at Marol Depot of BEST. On 3.2.2003 he had left for his work as usual but did not return back to his home at any time thereafter. According to his wife Smt. Meenal Panse (PW4), on the next day she received a telephone call purported to have been made by her husband Dilip Panse mentioning to her that he has not attended the work and was going to Miraj for taking treatment for AIDS disease contracted by him. According to PW-4 she was also informed over telephone not to tell this fact to their daughters and he will return back home only when he is cured and if he survives. Thereafter on the same day, according to PW4, she received another phone call and the caller gave his name as Krishna Bondre and stated that he was speaking from Khopoli and apparently working as some security personnel in one company and also gave name of the company. According to PW-4 that time on her intimation regarding missing of her husband Dilip, one PW-5 Vinod a friend of the Dilip was present at her house. He took the telephone and had a talk with the person who gave his name as Krishna Bondre. Over the telephone it was informed that said Krishna Bondre had met the deceased at Khopoli Railway Station and he found the deceased Dilip weeping and on enquiries said deceased has told him that he was going to Madras for treatment of AIDS. Over the telephone it was informed that said Krishna Bondre had met the deceased at Khopoli Railway Station and he found the deceased Dilip weeping and on enquiries said deceased has told him that he was going to Madras for treatment of AIDS. On earlier evening, noticing that the victim was missing and his whereabouts could not be found, PW-4 called her brother PW-l Dilip Avachat and also brother of the victim PW-19 Sanjay Panse to her home. Enquiries were made with the relatives, but, in vain and there was no clue as to where Dilip Panse had gone. Thereafter on 4.2.2003 a missing complaint (Exh.19) was lodged with Arey Police Station. There was no trace of the victim and nothing was heard by PW-4 and her relatives so also the police were clueless. However, according to police there was a breakthrough in the said missing complaint due to alleged voluntary statement made by the original accused No.1 Shirish Khot. It may be stated here that he has been convicted under Sections 302 and 201 of IPC by the trial Court and in appeal he has been acquitted by this Court. Said voluntary statement was allegedly made by original accused no. 1 on 13.2.2003. during the interrogation in another case i.e. C.R. No. 35 of 2003. According to police on 12.2.2003 original accused No.1 and Respondents 1 to 3 i.e. original accused Nos.2 to 4 along with some of their associates were apprehended at Ushma Petrol Pump by Manpada police. A trap was laid near the petrol pump on the alleged information received by the Sr. PI of Man pad a police station regarding some persons assembling to commit dacoity after making preparation to commit dacoity. As such initially on 12.2.2003 original accused No.1 and original accused Nos.2 to 4 i.e. Respondent nos. 1 to 3 were arrested in the said Manpada police station CR. No.35 of 2003 in the matter of offence punishable under Sections 399 and 402 of IPC. At this juncture, it must be mentioned that said matter was committed to the Court of Sessions vide Sessions Case No. 141 of 2003 and it ended in acquittal. This is an admitted position. 4. As mentioned above, during interrogation of the original accused No. 1 Shirish Khot in Manpada police station CR. No.35 of 2003, he made voluntary statement that he will produce body of Dilip Panse. This is an admitted position. 4. As mentioned above, during interrogation of the original accused No. 1 Shirish Khot in Manpada police station CR. No.35 of 2003, he made voluntary statement that he will produce body of Dilip Panse. As such, according to the police during his interrogation, it was revealed that accused No. 1 along with co-accused had kidnapped said Dilip Panse and tried to extort an amount of Rs.25 lakhs from him and failing which committed his murder by cutting his throat and dumping his dead body in the valley at Malshej Ghat beyond Murbad after severing the head. Also according to the police, original accused no. 1 along with Respondent Nos. 1 to 3 tried to destroy the head by burning the same in some hilly area in Raigad District. As such, apparently according to the case of prosecution, initially lodged missing complaint turned out to be a case of kidnapping, extortion and murder and destruction of the corpus so as to render it unidentifiable. According to the police said mystery of missing of the victim was solved only because of statement made by original accused No.1 Shirish Khot leading to discovery of corpus without head from the valley at Malshej Ghat. 5. It is also case of the prosecution that on 14.2.2003 another voluntary statement was made by the original accused No.1 leading to discovery of various articles, such as, blood stained clothes of the victim, sickle, ration card in the name of father of the victim, identity card of the victim, some medical prescription in the name of wife of the victim, two telephone diaries, mobile phone, live cartridges, chemical by name Kesol i.e. potassium chloride and atropine injections, plastic syringe, needles etc.. These articles were found from Flat No.701 at Riverwood Park Society, Kalyan-Sheel Road, Kalyan and this flat was shown by the original accused No.1 to the police party and panchas. Also according to the prosecution on the next day i.e. on 15.2.2003 the police party along with panchas and also along with forensic science staff visited the said flat No. 701 and took various biological samples including the blood samples found in the flat, during which some blood was found on the bed-sheet and carpet. Also according to the prosecution on the next day i.e. on 15.2.2003 the police party along with panchas and also along with forensic science staff visited the said flat No. 701 and took various biological samples including the blood samples found in the flat, during which some blood was found on the bed-sheet and carpet. According to the prosecution said flat No.701 was taken on leave and license by Respondent No.4 i.e. original accused No.5 Vaishali Nale, and apparently she and original accused No.1 were residing in the said flat as husband and wife. 6. According to the case of prosecution though initially original accused No.1 along with Respondent Nos. 1 to 3 came to be arrested in Manpada police station C.R. No.35 of 2003 for the offence punishable under Sections 399, 402 read with Section 34 of IPC, they were implicated in the present case i.e. C.R. No.50/2003 registered with Manpada police station on the complaint lodged by Police Officer PW-24 Sanjay Pardeshi. According to the prosecution on the complaint of said Police Officer API Sanjay Pardeshi, first information report at Exh.100 was registered at 2:50 a.m. on 14.2.2003. After completion of investigation, the charge sheet came to be filed. 7. At the threshold, it must be mentioned that admittedly the case of the prosecution is based only on circumstantial evidence. We shall now proceed to examine the circumstance in relation to each of the respondents. RESPONDENT NO.2-ACCUSED NO.3 Deepak Wagh: 8. As far as the respondent no.2-original accused no.3 is concerned, the only material with which the prosecution wants to show that he is connected with the crime is the evidence of recovery of a transistor. This transistor was recovered from the show-case in the house of the father of respondent no.2. PW- 20 Sanjay Patil and PW-18 Pandurang are the panch witnesses to the said panchnama. Both these witnesses have not supported the prosecution. Even otherwise, it is pertinent to note that PW-4 Meenal Panse the wife of the deceased, PW-19 Sanjay who is the brother of the deceased, have not identified this transistor as belonging to the deceased or belonging to any of them. Both these witnesses have not supported the prosecution. Even otherwise, it is pertinent to note that PW-4 Meenal Panse the wife of the deceased, PW-19 Sanjay who is the brother of the deceased, have not identified this transistor as belonging to the deceased or belonging to any of them. It is pertinent to note that PW-4 Meenal or PW-19 Sanjay have not stated that when the deceased left his house, he carried the transistor from their house nor is it their case that a transistor was stolen or robbed from their house. In such case, we fail to see how the recovery of transistor can connect respondent no.2 with the crime. 9. Thereafter the prosecution has tried to rely on the circumstance that Respondent No.2 pointed out the shop from where he and accused no. 1 Shirish purchased syringe. Both the panchas to the panchnama i.e. PW-18 Pandurang and PW- 20 Sanjay have not supported the prosecution. Moreover, it may be noted that it is the prosecution case that injection Kesol which is a coagulant was administered to Dilip and due to this he died. However, the forensic report shows that no such chemical was found in the body of deceased Dilip. In such case, the pointing out of the shop from where the syringes were purchased loses all significance. RESPONDENT NO.3 AJAYKUMAR PANDEY: 10. As far as respondent no.3-original accused no.4 is concerned, there is no recovery at his instance. No incriminating article was seized from him. There is no evidence of last seen nor is there any evidence in relation to motive for him to commit the crime. The only material against him is that he was arrested along with accused no.1 Shirish and accused nos.2 and 4 on 12.2.2003 in C.R.No.35 of 2003 of Manpada Police Station which is a case under Sections 399 and 402 of IPC. It may also be mentioned here that in the said case, respondent no.3 and the other accused in C.R.No.35 of 2003 have been acquitted in the said case. RESPONDENT NO.4 VAISHALI NALE: 11. Now coming to the circumstance as to finding of various articles in Flat No. 701, River Wood Park, Kalyan, where Respondent No.4 was residing, it is pertinent to note that the said articles were discovered at the instance of original accused No.1. RESPONDENT NO.4 VAISHALI NALE: 11. Now coming to the circumstance as to finding of various articles in Flat No. 701, River Wood Park, Kalyan, where Respondent No.4 was residing, it is pertinent to note that the said articles were discovered at the instance of original accused No.1. No doubt the evidence of PW-17 Bangera and PW-23 Thakur shows that Respondent No.4 had taken the said flat on leave and licence from PW-17 Bangera. The prosecution has examined PW- 12 Ramesh Joshi as panch witness. According to this panch, PSI Mali i.e. PW-26 was present in the police station and requested them to act as a panch regarding the memorandum statement of original accused No.1 Shirish Khot. Accordingly the accused No.1 Shirish made statement that he will produce the articles from the flat and accordingly memorandum panchnama (Exh.59) was drawn. Thereafter allegedly the original accused No.1 Shirish Khot led the police party and panchas to flat No.701 in River Wood Society. When they reached the flat and door bell was rung, the flat was opened from inside by Respondent No.4 Vaishali. Thus the original accused No.1 showed the flat and the place• and according to PW- 12 blood stains were found on the bed, carpet floor and also on the wall. There was one box-type bed and from underneath at the instance of the original accused No.1 blood stained clothes were recovered. So also identity card of the victim, ration card in the name of father of the victim and one medical prescription were seized. Apart from these articles, two telephone diaries, mobile phone, live cartridges, chemical by name Kesol i.e. potassium chloride and Atropen injections, plastic syringes, needles etc.. were recovered. Accordingly panchnama was drawn at Exhibit-60. This panchnama at the flat took place on 14.2.2003 between 7 p.m. to 10 p.m. However, the evidence on record shows that It Respondent No.4 Vaishali was arrested on the If very same day i.e. 14.2.2003 between 11:15 a.m. to 12:10 p.m. which is evident from Exh.82 which is the arrest panchnama of Respondent No.4 Vaishali. In such case, it is strongly submitted on behalf of Respondent No.4 that this entire panchnama of alleged recovery of articles at the instance of original accused No.1 is nothing but fabrication of evidence and planting of articles. In such case, it is strongly submitted on behalf of Respondent No.4 that this entire panchnama of alleged recovery of articles at the instance of original accused No.1 is nothing but fabrication of evidence and planting of articles. It is also argued that the said panchnama does not depict the correct factual position for the simple reason that according to the said panchnama and according to the evidence of panch PW-12 and also that of PW-26 police officer Shri Mali, Respondent No.4 Vaishali Nale had opened the door during the said panchnama and admittedly said panchnama was conducted from 7 p.m. to 10 p.m. on 14.2.2003. Mr. Sait submitted that if this case of the prosecution is accepted, then it is doubtful whether under Exhibit-82, Respondent No.4 was arrested on that day during the panchnama conducted from 11: 15 a.m. to 12: I 0 p.m.. We have carefully gone through the memorandum panchnama Exh.82. This is the panchnama admitted by the accused persons under Section 294 ofCr.P.C.. It is the panchnama regarding arrest of the Respondent No.4 Vaishali in the afternoon between 11:15 a.m. to 12:10 p.m.. The substantive evidence of PW-31 Investigating Officer Shri Shamsherkhan Pathan is significant enough on this aspect. The substantive evidence of this police officer as appearing in para-l of the notes of evidence reads thus: " .... A.P.I. Pardeshi gave F.I.R. regarding this offence at 2.45 A.M. on 14/2/03. All the four accused were arrested in this case, formally. Thereafter in the morning at about 11 O'clock Respondent No.4 Vaishali was arrested. Case was informed to police commissioner who gave direction that case be investigated by Manpada police station though offence took place in the jurisdiction of Mumbra police station. Accordingly, I took over the investigation. Offence was registered at Mumbra police station vide C.R. No.50/03. ....." 12. From the above evidence, it must be accepted that Respondent No.4 Vaishali was arrested in the afternoon of 14.2.2003. If it is so then by no stretch of imagination Respondent No.4 could have been present in flat No. 701 during the alleged discovery panchnama at the instance of the original accused No.1. Even according to PW-31 Investigating Officer Pathan after arrest Respondent No.4 Vaishali was never released from custody or taken to any other place much less to flat No. 701. Even according to PW-31 Investigating Officer Pathan after arrest Respondent No.4 Vaishali was never released from custody or taken to any other place much less to flat No. 701. This single circumstance of discrepancy in both these panchnamas (Exh.82 and Exh.60) indicates that no reliance can be placed on the evidence regarding recovery of various articles at the instance of the original accused No.1 Shirish Khot from flat No. 701 of Respondent No.4 Vaishali. 13. There is one more panchnama during which again flat No. 701, Riverwood Park Society, Kalyan which was the flat of Respondent No.4 Vaishali was visited by the police along with officials from Forensic Science Laboratory. This apparently happened on 15.2.2003 i.e. on the next day of finding various articles from flat No.701 as mentioned above. Panch PW-3 Shastri is the witness who allegedly took part in the said panchnama. According to the case of prosecution during this panchnama various samples of blood found on the bed-sheet and on the carpet were taken charge of for sending to Forensic Science Laboratory. 14. On this aspect it is argued by learned Advocate for the Respondent No.4 Vaishali that there is serious doubt about the said panchnama allegedly conducted on 15.2.2003. It is further argued that once on the earlier evening from 7:00 p.m. to 10:00 p.m. allegedly under panchnama Exhibit-GO various articles were seized from the same flat No. 701, why that time the samples of blood found on the carpet, bed-sheet and other places were not taken and why it was done on the next day. Apparently there is no explanation from the Investigating Officer regarding this aspect. However, still only on this count that on the next day the blood samples were collected in presence of the officers from the Forensic of Science Laboratory, will not in itself be a circumstance against the case of prosecution. It must be said that the CA report is not incriminating so far as these blood samples are concerned. This factual position is fortified by the contents of the CA report Exhibit-l 58. Even it is a factual position that there is no determination of the blood group of the victim. 15. It is the prosecution case that Respondent No.4 Vaishali administered a chemical Kesol to Dilip with a syringe and due to this Dilip died as Kesol is a coagulant. Even it is a factual position that there is no determination of the blood group of the victim. 15. It is the prosecution case that Respondent No.4 Vaishali administered a chemical Kesol to Dilip with a syringe and due to this Dilip died as Kesol is a coagulant. In relation to this, it may be stated that no such chemical was found in the body of deceased Dilip. Moreover, the evidence of PW-32 Dr. Sude who performed the post mortem shows that death was not due to the deceased being administered a coagulating substance but death was due to decapitation of head. There is no evidence to show that Respondent No.4 had any role to play in the decapitation. 16. The next circumstance against Respondent No.4 Vaishali is that she gave judicial confession to PW-30 Smt. Parte who is the Special Judicial Magistrate. As far as Respondent No.4 Vaishali is concerned, heavy reliance is placed by the prosecution on the evidence of PW-30 Special Judicial Magistrate Smt. Parte who recorded the confessional statement of Respondent No.4 Vaishali. This confessional statement is at Exh. 145. In the said confessional statement, Respondent No. 4 Vaishali has stated the entire description as to how she was compelled to give injection to deceased Dilip but she has stated that there was no effect after she gave injection to the deceased. She has not stated anything about how the original accused no.1 Shirish Khot killed Dilip but stated that she saw him carrying some boxes out of the house. 17. In relation to the confessional statement, Mr. Sait submitted that as per the provisions of Section 164 of Cr.P.C., Special Judicial Magistrate has no power to record the confessional statement as only Judicial Magistrate F.C. or the Metropolitan Magistrate have power to record the confession. He pointed out that it is not prescribed anywhere that Special Judicial Magistrate has any power to record the confessional statement of the accused. Mr. Sait argued that confessional statement is in itself illegal as Special Judicial Magistrate PW-30 Smt. Parte had no power to record such statement of Respondent No.4. Reliance is placed on the decision of this Court in the case of Bhausaheb @ Babu Vs. State of Maharashtra, reported in 1997 Cri. L.J. Page 467 Bombay. Mr. Sait argued that confessional statement is in itself illegal as Special Judicial Magistrate PW-30 Smt. Parte had no power to record such statement of Respondent No.4. Reliance is placed on the decision of this Court in the case of Bhausaheb @ Babu Vs. State of Maharashtra, reported in 1997 Cri. L.J. Page 467 Bombay. In the said decision, it is observed as under: "If the contents of Section 164(3) of the Code of Criminal Procedure, together with the principles stated in the ruling stated above are to be taken into consideration, in that case the only inference that can be drawn is that PW No.14 Mr. Pagote might be holding a post of Special Judicial Magistrate at that time, had absolutely no power to record confession which task is specifically assigned to the Judicial Magistrate and/or Metropolitan Magistrate and hence the so called confession recorded by him is illegal and cannot be relied upon. Virtually it becomes scrap of paper to which no evidentiary value can be attached." In view of the decision in the case of Bhausaheb (supra), it is clear that no evidentiary value can be attached to confessional statement Exh. 145. In such case, question does not arise of going into the other aspects of the confession i.e. whether it was voluntary, true and trustworthy. 18. Lastly it must be mentioned that motive is relevant in the case based on circumstantial evidence and in this matter there is nothing brought on record by the prosecution regarding motive. Considering the substantive evidence of prosecution witnesses, in our considered view there is no motive established by the prosecution. 19. So far as the offence of extortion is concerned, there is absolutely no evidence on record that the victim was put under threat and an amount of Rs.25 lakhs was demanded from him or any family member. As such there is no substance in the said offence of extortion. The Respondents were rightly not convicted for the offence of extortion and other offences punishable under Section 342, 364, 384 read with Section 34 of IPC and offences under the Arms Act and Bombay Police Act. 20. As such there is no substance in the said offence of extortion. The Respondents were rightly not convicted for the offence of extortion and other offences punishable under Section 342, 364, 384 read with Section 34 of IPC and offences under the Arms Act and Bombay Police Act. 20. Considering the above discussion and effect of the substantive evidence brought before the trial Court, it must be said that the prosecution has not reached that standard of proof which is required to establish the guilt of the Respondents for the offence with which they were charged. In other words the circumstances as put forth before the trial Court by the prosecution were not of such a clinching character so as to point out that Respondents were perpetrators of the offences for which they have been acquitted. In the result, in our considered view, there is no merit in the appeal preferred by the State. In the result, the appeal is dismissed. Appeal dismissed.