JUDGMENT Hon’ble Amar Saran, J.—This Criminal Appeal arises from the judgement of the Additional Sessions Judge, VI, Bareilly dated 25.3.1983 convicting and sentencing the appellant Mohd. Nasir @ Naseeruddin to imprisonment for life under Section 302 I.P.C. 2. The case commenced on an F.I.R. lodged by the informant Khalil Ahmad, PW 1 father of the deceased Mohd. Hanif on 3.11.1979 at 7.10 a.m.,at P.S. Baheri wherein the informant alleged that at 5.15 a.m. on the same day he heard the sound of a fire inside his house, on which the informant alongwith Sharfuddin, Naseeruddin and women folk of the house, who were sleeping in the verandah (Dalan) out side the house noticed a man climbing up the stairs. The man was chased. He was carrying a country made pistol and could not be apprehended. The informant claimed to have clearly identified the assailant in the light of electric bulbs and stated that they could recognize him, if he appeared before the informant and witnesses. When they got down the stairs, he saw the deceased Mohammad Hanif had been fired upon on his left eye and was lying in a pool of blood and had succumbed to his injury. There was litigation and enmity over the house of the informant with Abdul Nabi and Ali Hussain and they were being supported by Dr. Iftikhar. There was also some other dispute with Dr. Iftikhar over purchase of an Air Pump. The informant suspected that on account of this enmity, his son had been got murdered. The report of this incident scribed by Mohammad Ibrahim PW 2 was handed over at Police Station Baheri by Mohd Ibrahim in the presence of P.W. 8 S.S.I. Kshetrapal Tiwari on 3.11.1979 at 7.10 a.m. H.M. Suresh Chandra Dwivedi, P.W. 5 prepared the check report. The informant Khalil Ahmad was the author of this report. 3. A case under Section 302 I.P.C. was registered by H.M. S.C. Dwivedi. S.S.I. Kshetrapal Tiwari commenced the investigation of this case. After recording the statement of Ibrahim, he reached the spot and prepared the inquest of the dead body (Ext. Ka-14). He also prepared photo lash and challan lash after sealing the dead body. It was forwarded by Constable Ram Singh for post-mortem. The autopsy was conducted on the body of Mohammad Hanif by Dr. S.K. Khare at District Hospital, Bareilly. After recording the statement of Ibrahim, he reached the spot and prepared the inquest of the dead body (Ext. Ka-14). He also prepared photo lash and challan lash after sealing the dead body. It was forwarded by Constable Ram Singh for post-mortem. The autopsy was conducted on the body of Mohammad Hanif by Dr. S.K. Khare at District Hospital, Bareilly. As its genuineness was admitted by the defence, formal proof of the post-mortem report (Ext. Ka-5) was dispensed with. The following ante-mortem injury was seen on the body of Mohammad Hanif: Gun shot wound of entry 4 cm x 4 cm x orbit deep on the left side of face. Eye ball lacerated. Tattooing and charring were present around the wound. The cause of death was the ante-mortem injury. After collecting the blood stained clothes of Mohammad Hanif from the spot and the blood stained chadar and pillow cover and recording the statement of Khalil Ahmad, P.W. 1, the site plan (Ext. Ka-18) was prepared by the I.O. on the pointing out by PW 1, Khalil Ahmad. Khalil Ahmad, P.W. 1 father of the deceased deposed that his wife was the real sister of Sarfuddin. Sarfuddin was the father of the appellant Nasir @ Naseeruddin, whilst the deceased was the son of Khalil Ahmad. As per the site plan, on 11.11.1979 at about 10.30 a.m., the appellant Mohd. Nasir @ Naseeruddin is said to have gone to the shop of Mohammad Ibrahim. P.W. 2, who was also the scribe of the F.I.R. at Baheri. At that time, a customer Chheda Lal, P.W. 3 was present at the shop. With folded hands the appellant Naseeruddin had asked Mohd. Ibrahim to save him from the police. He claimed to have committed a great sin by murdering his brother-in-law (Bahnoi). On being questioned by Mohammad Ibrahim as to why he had killed his brother-in-law, he stated that his brother-in-law had unlawful sex (zina) with his wife four or six months earlier. In the meantime, P.W. 2 Mohd. Ibrahim signalled Chheda Lal to call the police and accordingly Chheda Lal brought the police to his shop. On the search of the appellant Mohammad Nasir, a letter (Ext. 1) was recovered from his possession confessing his guilt from his pocket and the recovery memo (Ext. Ka-2) was prepared. There was also another confessional letter (Ext. Ibrahim signalled Chheda Lal to call the police and accordingly Chheda Lal brought the police to his shop. On the search of the appellant Mohammad Nasir, a letter (Ext. 1) was recovered from his possession confessing his guilt from his pocket and the recovery memo (Ext. Ka-2) was prepared. There was also another confessional letter (Ext. Ka-4), which mentions that P.W. 4 Khalil Ahmad, son of Bali Mohammad, Abdul Wasid had got a confessional letter written by the appellant (Ext. Ka-4). The said letter was written in hindi and the appellant’s signature was in urdu. 4. The prosecution has examined four witnesses of fact P.W. 1 Khalil Ahmad, father of the deceased, informant, P.W. 2 Mohammad Ibrahim, who was the scribe before whom the aforementioned extra judicial confession by the appellant is said to have been made. P.W. 3 Chheda Lal, who was also present at the shop, when the extra judicial confession was made, P.W. 4, Khalil Ahmad, who handed over the letter written by the appellant, which was given to Abdul Wasid, where also the appellant confessed to his involvement in this incident. Four formal witnesses have been examined, viz. P.W. 5 H.M. Suresh Chand Dwivedi, who prepared check report and registered the case, P.W. 6 Constable Ram Kumar, who carried the dead body for post-mortem, P.W. 7 Sri S.K. Muttoo, S.D.M., Baheri, before whom, the appellant is said to have given a 164 Cr. P. C. statement on 12.11.1979 and P.W. 8 S.S.I. Chhetra Pal Tiwari, the Investigating Officer. We have heard Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Ajat Satru Pandey, learned counsel for the appellant and Sri Anand Tiwari, learned A.G.A. for the State. 5. Sri G.S. Chaturvedi contended that the basic evidence for showing the complicity of the appellant in this case was the 164 Cr. P. C. statement, which was given by the appellant to the P.W. 7 Sri S.K. Muttoo, S.D.M., Baheri, confessing to his guilt. However the S.D.M. does not appear to have made any genuine effort to satisfy himself that this 164 Cr. P.C. statement was given voluntarily by the appellant and there was no extraneous influence by the police in getting the 164 Cr. P. C. statement recorded. The Magistrate was even unaware from whose custody, the appellant had been brought and to whose custody he was taken thereafter. P.C. statement was given voluntarily by the appellant and there was no extraneous influence by the police in getting the 164 Cr. P. C. statement recorded. The Magistrate was even unaware from whose custody, the appellant had been brought and to whose custody he was taken thereafter. The evidence of extra judicial confession before P.W. 2 Mohammad Ibrahim and P.W. 3 Chheda Lal, which has been used for corroborating the confession before the Magistrate cannot also be relied upon for establishing the complicity of the appellant in the offence. 6. Sri Anand Tiwari, learned A.G.A. has filed written arguments. He contended that implicit reliance can be placed on the confessional statement given before the Magistrate under Section 164 Cr. P.C. by the appellant on 11.11.1979 between 11 a.m. and 12 noon, and the required procedures have been duly complied with. There has been meagre cross-examination of the Magistrate. The appellant has not stated before the police that he was giving the statement on account of pressure. The extra judicial confession made before P.W. 2 and P.W. 3 also needs to be relied on. There was no reason for the false implication of the appellant. Case laws have been cited from the side of the appellant as well as by the learned A.G.A. and we shall examine the same as well as the laws relating to the recording of a confessional statement under Section 164 Cr. P. C. by the Magistrate. 7. The contention of Sri Chaturvedi was that it was incumbent on the Magistrate before recording the confession first to be satisfied after questioning the person making the confession that it was made voluntarily and that the same was not being made under the pressure or influence of the police. For arriving at this conclusion, the Magistrate was to have a clear idea regarding the custody from which the appellant was being brought and the custody to which he would be taken in the future. He was required to give the appellant sufficient time for reflection to remove any possibilities that the confession was being given under the influence of the police. He was required to give the appellant sufficient time for reflection to remove any possibilities that the confession was being given under the influence of the police. Before recording a statement, he was to explain to the appellant that he was not bound to make the confession and that if he gave evidence, it could be used against him and the mere recording of a memorandum at the foot of the statement as has been narrated in 164 (4) Cr. P. C. that he had explained to the accused that if he got the confession recorded, it will be used as evidence against him and he believed that the confession was voluntary and taken in his presence and was read over to the accused and was correct, would not suffice. 8. In the present case, it was pointed out that the accused was presented before the Magistrate by the police. Although the Magistrate claims to have given the appellant necessary warning and at that time, the police was absent from his chamber. He had, thereafter, entered the necessary memorandum, but he could not even state, when the accused was brought before him whether he was wearing handcuffs or not. In his cross-examination he further admitted that he did not even know, whether the accused had come from jail custody or judicial custody when the statement was recorded. and he had also not made any entry that when the accused was brought before him, whether he had come from police custody or from jail. 9. In Shivappa v. State of Karnataka, AIR 1995 SC 980 , it has been held that from the plain language of Section 164 Cr. P. C. and the rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused under Section 164 Cr. P. C., it is incumbent upon the Magistrate to ascertain the voluntary nature of the confession. This inquiry is the most significant and important part of the duty of the Magistrate. The failure of the Magistrate to put such questions from which he could ascertain the voluntary nature of the confession detracts so materially from the evidentiary value of the confession of the accused that it would not be safe to act upon the same. This full and adequate compliance has not only to be “in form”, but in essence with the provisions of Section 164 Cr. This full and adequate compliance has not only to be “in form”, but in essence with the provisions of Section 164 Cr. P. C. A searching enquiry has to be made before the confession was recorded as to which custody, judicial or police, the accused has been produced and the treatment he had received in such custody and there must not be even the lightest doubt remaining, in order to ensure that there was no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution, still lurking in the mind of the accused. In case, the Magistrate discovers on such enquiry that there is ground for such supposition, he is to give sufficient time for reflection to the accused before making the statement and he has to ensure that during the time of reflection, the accused is completely out of police influence. The accused is also to be asked the reason why he wants to make the statement, which would surely go against the said accused in the course of the trial, even if he contrives subsequently to retract the confession. The accused has to be assured in plain language, of protection from any sort of apprehended torture or pressure from such extraneous agents. The accused should be given an assurance that even if he declines to make such a confession, he shall not be remanded to police custody. The Magistrate recording the confession has to appreciate his function as a Judicial Officer, who is required to apply his judicial mind to ascertain and satisfy his conscience that the accused has not made the confession on any extraneous influence. He must leave such material on record in proof of compliance with the imperative requirements of the statutory provisions as would satisfy the Appellate Court that the confessional statement was made by the accused voluntarily. In the case of Shivappa (supra), although the Magistrate cautioned the appellant that he was not bound to make a statement and that if he did make a statement that could be used in evidence against him. In the case of Shivappa (supra), although the Magistrate cautioned the appellant that he was not bound to make a statement and that if he did make a statement that could be used in evidence against him. But the Magistrate admitted that he had not asked the accused whether the police have induced him to give the statement and had given him a warning regarding the consequences of making the statement and there was no clarification that the Magistrate had given any assurance to the appellant that he would not be sent back to police custody, in case, he did not make the confessional statement. No contemporaneous record was even produced showing that the appellant had actually been kept in the sub-jail, as ordered by the Magistrate on 21.7.1986 and that he was out of the zone of influence of the police, as the sub jail was located in the same premises in which the police station was located. No evidence was led to show that any jail authority had actually produced the accused before the Magistrate in that case. In the case no question was asked from the appellant as to why he wanted to make the confession or what had prompted him to make the confession, which led the Appellate Court to reach a finding that no serious attempt was made to ascertain the voluntary character of the confessional statement and that the cryptic manner of holding the enquiry to ascertain the voluntary nature of confession left much to be desired and had detracted materially from the evidentiary value of the confessional statement of the appellant. Therefore, reliance could not have been made on the confessional statement. 10. In the present case, we find that the appellant had been brought by the police for recording the statement under Section 164 Cr. P. C. The Magistrate, who was recording such a confession for the first time, was completely ignorant as to whether the appellant had been brought from police custody or jail custody. We also find that the Magistrate had not even questioned the appellant as to what had impelled him to make the confession before him, and whether he was under the influence of the police, nor does he appear to have clarified to the appellant that he would not be sent back to police custody, even if he refused to make the confession. He had not given any time for reflection before recording the confession for satisfying himself that no extraneous pressure was exerted. In these circumstances there does not appear to have been any compliance with the requirements of the statutory provisions and certainly no compliance with the essence of the provision as highlighted above. The case in hand, therefore, stands on a better footing than the case of Shivappa (supra). 11. In the case of Shankaria v. State of Rajasthan, (1978) 3 SCC 435 , cited by learned GA, we find that there is clear evidence that the accused was committed to judicial lock up on the evening of June 12, and the confession was recorded after 38 hours by the Magistrate only on June 14 and the Magistrate after satisfying himself that the appellant was willing to make a voluntary confession gave 15-20 minutes further time and then recorded the confession. The said confession was also corroborated in several material particulars by reliable and independent evidence of a circumstantial nature. 12. Relying on Sarwan Singh v. State of Punjab, AIR 1957 SC 637 and Abdul Razzak v. State of Maharashtra, 1969 SC 234, it has been clarified in Shankaria that the Court has to examine not only that the confession was voluntarily and without any undue influence or pressure, but that it was also true and in that context it was corroborated by other reliable independent evidence of circumstantial nature. 13. In Shankaria the Magistrate had subjected the accused to a long and searching questioning process for duly satisfying himself that the confession was voluntary and not the result of any inducement, threat or promise, by questioning the accused regarding his treatment in police custody, whether he was subjected to ill treatment or torture, whether he was told that he would be pardoned or any other benefit would be given to him if he made the confession and whether he was threatened that if he failed to make the confession, he would be sent to jail. The Magistrate also clarified that if the accused made the confession, it could be used against the accused in evidence and that he was no bound to make it. As a matter of fact the confession had been made after two days in judicial custody as mentioned above. The Magistrate also clarified that if the accused made the confession, it could be used against the accused in evidence and that he was no bound to make it. As a matter of fact the confession had been made after two days in judicial custody as mentioned above. In the present case, the confession being the first confession recorded by the Magistrate in his life time, he did not even satisfy himself as to whether the appellant had been brought from police or judicial custody. In fact there is no evidence on record that the appellant was brought from judicial custody. He also does not appear to have conducted any searching exercise as in Shankaria’s case that he had been subjected to no pressure by the police or other person for making the confession. 14. Also in regard to Sarwan Singh v. State of Punjab, 1957 SCR 953 , where it was mentioned that the Magistrate should keep the accused in custody for at least 24 hours, it was clarified that in Shankaria that no time limit could be prescribed. The material requirement was that the Magistrate was to be satisfied after detailed questioning of the accused and other circumstances that the confession had been made out of a sense of contrition or remorse, where the accused wanted to voluntarily unburden himself of the pangs of his crime, without any undue influence, threat or promise by the police. 15. Also so far as the truth of the confession and of its being corroborated in material particulars in Shankaria’s case is concerned we find the Court arrived at the finding that the other evidence adequately corroborate the confession in material particulars because the articles found at the spot, viz. the bloodstained Kassi and Dabbi (tin box) contained his finger prints. The appellant had failed to state before the trial Court that he was made to handle the articles after the incident on which his finger prints were found. His sample foot moulds also conformed to the foot prints found at the scene of occurrence. 16. It was further observed that giving only three hours’ time for reflection before recording confession that by itself would not render the confession involuntary if the confessional statement was amply corroborated by the circumstantial evidence. Its subsequent retraction by its maker would not make it unreliable. 16. It was further observed that giving only three hours’ time for reflection before recording confession that by itself would not render the confession involuntary if the confessional statement was amply corroborated by the circumstantial evidence. Its subsequent retraction by its maker would not make it unreliable. In that case the accused had given the full facts and details which were corroborated in material particulars and the Court held the confession to be reliable. 17. The same principle, that the voluntary nature of the confession is to be ascertained from the facts and circumstances of each case including the nature of the confession, has been enunciated in other case laws cited by the learned Government Advocate viz Henry West Muller Roberts v. State of Assam, (1985) 3 SCC 291 ; State of Punjab v. Harjagdev Singh, (2010) 2 SCC Crl. 170; Ram Singh v. Sonia and others, (2007) 3 SCC 1 ; State of Maharashtra v. Damu, (2000) 6 SCC 269 and Kehar Singh v. State, (1988) 3 SCC 609 . 18. The reliability of the confession, whether it was voluntary or not and whether it was corroborated in material particulars is therefore a question of fact to be determined by the Court in each case. In so far as the reliability of the confession to the Magistrate in the present case is concerned, even on an intrinsic examination of the circumstances, in which the confession was made, we have reasons to doubt whether the said confession was made as a result of a sense of repentance and remorse or whether it was made consequent to pressure or influence exerted by the police and from other extraneous pressure. 19. P.W. 2 Mohammad Ibrahim states that the appellant had approached him on 11.11.1979 asking for his protection from the police and also at the same time he was saying that he was remorseful in view of the crime committed by him. As the factum of his having committed the crime was not known till then as per the prosecution case, there was no question of the police being in pursuit of the appellant for which he needed protection. As the factum of his having committed the crime was not known till then as per the prosecution case, there was no question of the police being in pursuit of the appellant for which he needed protection. As admittedly Ibrahim had immediately signalled to Cheda, PW 3 to call the police, when the appellant was confessing to his guilt before him, inherently also the witness does not appear to be such a reliable person whom the appellant would have chosen to unburden himself regarding his alleged crime or whose protection from the police he would have been seeking. In the confessional statement itself, the appellant has stated that he had gone to the police station Baheri and confessed to his crime on 11.11.1979. He did not mention that he had given any extra judicial confession before P.W. 2 Ibrahim or P.W. 3 Chheda Lal, who had taken him to the police. We also find two letters purportedly written by the appellant (Exts. 1 and 2), which the police are said to have taken out from his pocket at the place of confession before Ibrahim (whose memos are Exts. Ka-3 and Ext. Ka-4), which were the letter handed over to Wasid Ali from him, which had been given to P.W. 4 Khalil Ahmad, son of Bali Mohammad, which is also a confessional statement. Although the appellant had refused to give his hand writing for comparing the writings on the said letters, we are of the view that if a person with a genuine sense of remorse or contrition decides to confess to his guilt before some one whom he trusts and whom he believes has some influence with the police or even before the Magistrate, he would certainly not write two letters and make a confession before the scribe of the F.I.R. All these circumstances also go to suggest that pressure was being exerted on the appellant by the police and other sources to extract the confession, which provides a further ground for doubting the voluntary nature of confession. In his confession to the Magistrate under Section 164 Cr. P. C. the appellant also mentions that he had hidden a country made pistol in the grounds of Dr. Iftikhar, however, he could not find the said weapon. It is worthy of notice that Dr. In his confession to the Magistrate under Section 164 Cr. P. C. the appellant also mentions that he had hidden a country made pistol in the grounds of Dr. Iftikhar, however, he could not find the said weapon. It is worthy of notice that Dr. Iftikhar, was initially the main accused in this case and was named in the F.I.R., as the person helping Abdulli and Ali Hussain, who had committed the crime and who had civil litigation and enmity with the informant over his house and also there was some direct dispute with Dr. Iftikhar himself over purchase of an Air Pump. In these circumstances it could not be ruled out that Iftikhar Hussain, who appears to be a resourceful and influential persons may in order to extricate himself from his possbile involvement in this case, have exerted influence on the police or on the scribe Ibrahim and others for implicating the appellant in this crime, and have exercised his undue influence for getting the confessional and extra-judicial confessions recorded. If the alleged weapon of assault, (the country made pistol) had been got recovered by the appellant from the land of Iftikhar, it might have provided some vital corroboration of the appellant’s involvement, but unfortunately for the prosecution, that material is absent in this case. 20. So far as the motive that the deceased has had unlawful intercourse with the wife of the appellant is concerned, there is no corroboration of this allegation from any other source. Therefore, there was nothing to lend assurance to the truthfulness to the 164 Cr. P.C. statement of the appellant before the Magistrate, which we have already described above intrinsically suffered from a large number of infirmities. 21. According to the F.I.R. version the accused had been recognized and he could be identified. No doubt in his evidence, P.W. 1 Khalil Ahmad has stated that he could not identify the appellant, when he was climbing up the stairs and running away, but if the appellant is closely related to the informant and others, it is normally to be expected that he would be identified by his close relations especially as it is mentioned in the FIR by the informant that he could identify the assailant if he came across him. There was then no question of the appellant’s name not having been mentioned in the F.I.R if he had indeed participated in the crime. This is another circumstance to show that there was no corroboration of the 164 Cr. P. C. statement before the Magistrate from any other sources. 22. So far as the reliability of the extra judicial confession was concerned in Sahadevan v. State of Tamil Nadu, (2012) 6 SCC 403 , upon relying on Balwinder Singh v. State of Punjab, 1995 Supp (4) SCC 259, Pakkirisamy v. State of T.N., (1997) 8 SCC 158 , Kavita v. State of T.N., (1998) 6 SCC 108 , it has been held in paragraph 14: “It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra-judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the Court to base a conviction on such a confession. In such circumstances, the Court would be fully justified in ruling such evidence out of consideration.” 23. We have already suggested some of the circumstances for not placing reliance on the extra judicial confession before P.W. 2 Mohammad Ibrahim, P.W. 3 Chheda Lal, as in his 164 Cr. P. C. statement, the appellant had not mentioned that he had met Ibrahim or Chheda Lal before making the statement 164 Cr. P. C. statement and that he had directly approached the police. This is contrary to the version set up by Ibrahim and Chheda Lal. We also find Ibrahim an omnipresent witness who had scribed and carried the FIR to the police station and who later becomes a witness of the extra-judicial confession, which also raises a question mark over his impartiality and reliability. He also does not appear to have any clout with the police for prompting the appellant to make an extra judicial confession before him. In his 313 Cr. P. C. statement, the appellant has himself stated that he owed Ibrahim some money for having purchased some clothes worth Rs. He also does not appear to have any clout with the police for prompting the appellant to make an extra judicial confession before him. In his 313 Cr. P. C. statement, the appellant has himself stated that he owed Ibrahim some money for having purchased some clothes worth Rs. 200/- from his shop, and a dispute between them may have arisen in this connection. The other witness of extra judicial confession Chheda Lal, P.W. 3 appears to be a pocket witness of the police. He is a complete stranger to the appellant. He had met him for the first time at the shop of Ibrahim. It was improbable that the appellant could have made the extra judicial confession in his presence and also the fact that he had given evidence in the charge-sheet in crime No. 302/80, under Sections 399, 402 I.P.C. P.S. Baheri, Crime No. 536/79, under Section 60 Excise Act and Crime No. 304/82 under Section 9 Opium Act, in which Chheda Lal, resident of Mohalla Ram Lila, P.S. and town Baheri were the prosecution witnesses on behalf of the police. He also admitted in his cross-examination that two days prior to this case, he has given evidence in a case under Sections 399, 402 I.P.C. The aforesaid extra judicial confession, therefore, also does not help in bolstering the prosecution case against the appellant. 24. For the reasons outlined above we are not in a position to place implicit reliance on the 164 Cr. P. C. statement given by the appellant to the Magistrate as we can neither hold that it was given voluntarily, without influence or pressure, after taking of proper precautions by the Magistrate or that it was corroborated in material particulars by other evidence, direct or circumstantial. The result is that the prosecution has failed to establish the case against the appellant beyond doubt. The judgement of conviction recorded by the Trial Judge is set aside. The appeal succeeds and is allowed. The appellant is acquitted of the charges. He is on bail. His bail bonds are cancelled. He need not surrender. His sureties are discharged. Let a photo copy of the order and lower Court record be forwarded to the lower Court.