JUDGMENT : (Delivered by Hon'ble Rajeev Misra,J.) 1. The present criminal appeal arises out of the judgment and order dated 12.1.1984, passed by the Special Judge, Essential Commodities (Special Provisions) Act, 1981 Banda, in Sessions Trial No. 344 of 1979 (State Vs. Ram Autar and three others), whereby the accused appellant no. 1 Ram Autar, along with the accused appellant no. 2 Ram Deen, were convicted under Section 302 IPC read with Section 34 IPC. Each of the aforesaid accused were sentenced to undergo imprisonment for life. They were further convicted under Section 201 IPC, and each of them were sentenced to undergo rigorous imprisonment for a period of seven years. Accused appellant no. 3 Rameshwar, along with accused appellant no. 4 Gulab, were convicted under Section 302 IPC read with Section 109 IPC, and each of them were sentenced to undergo life imprisonment. They were further convicted under Section 202 IPC, and each of them were further sentenced to undergo rigorous imprisonment for a period of six months. The sentence awarded to each of the accused appellants were to run concurrently. 2. From the record, it transpires that the present criminal appeal was filed by the above mentioned four accused appellants on 17.1.1984. They were enlarged on bail during the pendency of the present criminal appeal vide order dated 8.3.1984. However, on account of the death of the accused appellant no. 3 Rameshwar, on 23.1.2014 and accused appellant no. 4 Gulab, on 21.2.2016 the appeal stood abated against these two appellants vide order dated 11.12.2006. Thus the present Criminal Appeal survives only in respect of the accused appellant no. 1 Ram Autar, and the accused appellant no. 2 Ram Deen. 3. Sri Rajeev Lochan Shukla assisted by Sri Amber Khanna and Sharda Prasad Mishra, learned counsel for the accused-appellant nos. 1 and 2 and Sri Rajiv Sharma, learned A.G.A. appearing on behalf of the State were heard at length. 4. The complainant Sri Chakra Pani Srivastava was represented by Mr. V.C. Tiwari, Senior Advocate. Both the complainant and his counsel are reported to be dead. 5. The criminal proceedings giving rise to the present criminal appeal came into motion, when a written missing person report dated 26.3.1979 (Ex. Ka. 4. The complainant Sri Chakra Pani Srivastava was represented by Mr. V.C. Tiwari, Senior Advocate. Both the complainant and his counsel are reported to be dead. 5. The criminal proceedings giving rise to the present criminal appeal came into motion, when a written missing person report dated 26.3.1979 (Ex. Ka. 48) was submitted by Sri Chakra Pani Srivastava, father of Brijesh Kumar Srivastava with the police of Police Station- Pailani, District, Banda, alleging therein that his son Brijesh Kumar Srivastava is missing since the morning of 3.3.1979. According to the aforesaid report, it was alleged that Brijesh Kumar Srivastava aged about 20 years, is a student of B.A first year. He had come from Banda to his father's place who was working as Principal at Pandit Jawahar Lal Nehru Akhand Inter College, Chandwara, Banda. Sri Chakra Pani Srivastava left for Banda on 2.3.1979, leaving his son who was staying with him in the residential quarter allotted to him as Principal and situate in the premises of the Intermediate college. Sri Chakra Pani Srivastava returned to the Intermediate college in the evening of 6.3.1979. Thereafter the Daftari Gulab Prasad, as well as the Chaukidar Rameshwar informed the Principal Sri Chakra Pani Srivastava that his son Brijesh Kumar who was wearing a coat, shirt, bell bottom pant and high heal black shoes, woke up around 6:00 am and requested the Chaukidar Rameshwar to open the gate as he has to attend natures call. At this Juncture the Daftari Gulab Prasad, who was also going to attend nature's call opened the gate. Brijesh Kumar also went out but did not return. Since 6.3.1979, Sri Chakra Pani Srivastava has been searching for his son. On 26.3.1979, one Umesh Chandra Sharma working as Assistant Clerk in the intermediate College informed Sri Chakra Pani Srivastava that a Coat pant, shoes and other articles have been recovered from the bank of Yamuna river, which have been collected by some residents of the village. Finding similarity with the description of the clothes and articles so recovered, Sri Chakra Pani Srivastava, along with other teachers of the intermediate college went to the house of Nathu Singh from where the clothes shoes, socks and measurement tapes were recovered. Finding similarity with the description of the clothes and articles so recovered, Sri Chakra Pani Srivastava, along with other teachers of the intermediate college went to the house of Nathu Singh from where the clothes shoes, socks and measurement tapes were recovered. Similarly, a lighter and the comb of Brijesh Kumar was recovered from the house of the tailor Sri Krishna, whereas from the house of Chandra Kishore, the local business man, the pant of Brijesh Kumar was recovered. 6. The aforesaid three persons informed Sri Chakra Pani Srivastava that the Coat is still lying on the bank of the river which has become distorted on account of it being torn and rotted, the button of which were taken out by Chandrapal Singh. Thereafter Sri Chakra Pani Srivastava went to the bank of the river Yamuna, where he met one Chunvad Singh who gave him a key ring alleged to have been recovered by her niece from the banks of the river. Thereafter, the bank of the river was searched for other materials relating to Brijesh Kumar Srivastava, but no other item was recovered. The said report further contains a recital that as the examinations are to commence and the complainant is the Centre Superintendent, therefore the report is being sent to the Police Station through Mr. Dharma Raj Singh, Assistant Teacher. 7. On 31.3.1979 the accused Dhani Ram approached the District Magistrate, Banda for getting his statement recorded under section 164 Cr.P.C. Accordingly Dhani Ram was referred to the SDM, Banda for getting his statement recorded and he gave his statement which is Ex. Ka. 1 purported to be under Section 164 Cr.P.C. The Sub-Divisional Magistrate, Banda set Dhani Ram at liberty. The aforesaid statement Ex.Ka.1 was sent to the Police Station, Pailani, District Banda and it reached the aforesaid Police Station on 7.4.1979 (G.D Ex. Ka 53). On the basis of this statement the concerned official of Police Station Pailani, District Banda registered a case under Section 302, 201, and 202 IPC against P.W. Dhani Ram and accused Ram Autar, Gulab, Ram Deen and Rameshwar in G.D dated 7.4.1979. The copy of G.D. is Ex.Ka. 53. 8. Accused Dhani Ram was arrested on 8.4.1979 and while he was in jail, he sent an application dated 30.4.1979 Ex.Ka.2 to the Chief Judicial Magistrate, Banda requesting him to tender pardon. The copy of G.D. is Ex.Ka. 53. 8. Accused Dhani Ram was arrested on 8.4.1979 and while he was in jail, he sent an application dated 30.4.1979 Ex.Ka.2 to the Chief Judicial Magistrate, Banda requesting him to tender pardon. On 3.5.1979 Sri R.C. Shukla the then Chief Judicial Magistrate Banda passed an order dated 3.5.1979 itself tendering Dhani Ram pardon on the condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concerned in its commission. The accused Dhani Ram accepted it. The acceptance of pardon is in the hand writing of Dhani Ram which is Ex.Ka.3. Thereafter on 4.5.1979 the statement of Dhani Ram was recorded under Section 306 (IV)(a) Cr.P.C, Ex.Ka.4, which is the statement of the approver. 9. S.I. Sri Rang Lal Pandey started the investigation of the case and reached village Chandwara soon after the registration of the case. He interrogated Manni Singh, Sheonandan and Surajpal Singh. It is said that on 6.4.1979 at about 9.30 P.M. the above named accused persons came at the house of Manni Singh and they confessed to P.Ws. Manni Singh and Sheonandan Singh that they have committed murder of Brijesh Kumar. On 8.4.1979 at 8.30 A.M. the Investigating Officer arrested accused Ram Autar, Ram Deen, Rameshwar and Gulab in the ravines of Yamuna river. On the same day at 10.15 A.M. he arrested P.W. Dhani Ram in village Marauli. The Investigating Officer interrogated all the accused persons. 10. On the pointing out of the accused Ram Autar, the Investigating Officer is stated to have recovered Farsa (a sharp edged weapon) Ex.6 in the presence of the witnesses. He sealed it and prepared recovery memo Ex. Ka.5. On the pointing out of accused Ram Deen he recovered blood stained Sabbal (which is a heavy iron rod with flat end on one side) Ex. 5. He sealed it and prepared recovery memo Ex.Ka.6. On the pointing out of accused Rameshwar and Gulab he recovered a key Ex.8. He sealed it and prepared recovery memo Ex. Ka. 7. On the pointing out of accused Ram Autar, Ram Deen and Dhani Ram the Investigating Officer recovered a ladder from the residential quarter of the complainant which was stated to have been used for the commission of the crime in question. He sealed it and prepared recovery memo Ex. Ka. 7. On the pointing out of accused Ram Autar, Ram Deen and Dhani Ram the Investigating Officer recovered a ladder from the residential quarter of the complainant which was stated to have been used for the commission of the crime in question. He dismembered the blood stained portions of the ladder, sealed them Ex. Ka 9 to Ka 9/3 and prepared memo Ex.Ka. 8. He prepared site-plans Ex.Ka.54, Ex.Ka.55, Ka.56 and Ka.57 relating to these places. He inspected the place of occurrence on the pointing out of the accused where Brijesh Kumar was done to death and prepared site-plan Ex.Ka.58. The blood stained articles were sent for Chemical Examination. The reports of the Chemical Examiner and that of Seriologist are Ex.Ka.61 and Ka.60 respectively. After investigation S.I. Sri Rang Lal Pandey submitted the charge-sheet dated 18.5.1979 Ex. Ka.59, against Ram Autar, Ram Deen, Rameshwar and Gulab. 11. Upon the submission of the charge-sheet dated 18.5.1979 (Ex. Ka. 59) cognizance was taken upon the same by the Court concerned. Thereafter vide order dated 11.12.1979 passed by R.C. Shukla, the C.J.M., Banda the case was committed to the Court of sessions and converted to S.T. No. 344 of 1979 (State Vs. Ram Autar and others) came into existence. Thereafter, the sessions Court vide order 15.2.1980 framed charges against the accused persons. The accused appellant No. 1 Ram Autar along with the accused appellant No. 2 Ram Deen were firstly charged for an offence under Section 302 IPC read with Section 34 IPC. Secondly, they were charged for an offence under Section 201 IPC. The accused appellant No. 3 Rameshwar along with the accused appellant No. 4 were firstly charged for an offence under Section 302 IPC read with Section 109 IPC and secondly for an offence under Section 202 IPC. 12. The accused persons pleaded not guilty and demanded trial. 13. The prosecution in support of its case adduced nine witnesses namely, P.W. 1 Dhani Ram (Accused/Aprover), P.W. 2 Mani Singh (Extra Judicial Confession), P.W. 3 Sheo Nandan Singh, P.W. 4 Chunu Waad Singh (Witness of Recovery), P.W. 5 Chandra Kishore (Witness of recovery prior to First Information Report), P.W. 6 Chakra Pani Srivastava (Informant/father of deceased), P.W. 7 K.P. Vishwakarma (Proved documents against Ram Avtar), P.W. 8 H.C.-110 Onkar Nath, P.W. 9 S.I. Mr. Rang Lal Pandey (Investigating Officer). 14. Rang Lal Pandey (Investigating Officer). 14. During the course of investigation, the investigating officer had collected material evidence relating to the commission of the crime. These were marked as material exhibits. The same have been referred to in the earlier portion of the judgment but for the sake of convenience the same are catalouged below:- 1 Exhibit -1 Pants 2 Exhibit-2 Coat 3 Exhibit-3/1 and 3/2 Pair of socks 4 Exhibit-4/1 and 4/2 Pair of shoes 5 Exhibit-5 Sabbal 6 Exhibit-6 Farsa 7 Exhibit-7 Key-ring 8 Exhibit-8 Keys 9 9 to 9/3 Pieces of lader 10 Exhibit-10 Lighter 11 Exhibit-11 Comb 12 Exhibit-12 Inch Tape(measuring tape) 13 Exhibit-13/1 to 13/7 Buttons 15. Thus the prosecution story which emerges from the chain of events as detailed above is as follows:- 16. On 1.3.1979 deceased Brijesh Kumar came up at the residential quarter of the Principal situate within the premises of Pandit Jawahar lal Nehru Akhand Inter College, Chandwara within the police circle of Police Station, Pailani District Banda and stayed with his father Sri Chakra Pani Srivastava the then Principal of the Inter College. On 2.3.1979 Sri Chakra Panri Srivastava came to Banda in connection with some official work. On the night of 2.3.1979 in the absence of Sri Chakra Pani Srivastava accused Gulab Prasad, Ram Autar, Ram Deen P.W. Dhani Ram and deceased Brijesh Kumar were enjoying the game of playing-cards inside the residential quarter of the Principal till 10.00 P.M. At that time accused Rameshwar was present in the verandah situate outside the residential quarter of the Principal. After the game of playing-cards was over accused Gulab, Ram Autar and Ram Deen came out of the residential quarter of the Principal, P.W. Dhani Ram bolted the door from inside. P.W. Dhani Ram and deceased Brijesh Kumar began to sleep inside the quarter. At about 10.30 P.M. accused Ram Autar and Ram Deen came up at the residential quarter of the principal. They told Dhani Ram and Brijesh that they were not enjoying sleep and asked them to play the game of playing-cards again. At this deceased Brijesh Kumar opened the door from inside and then accused Ram Autar and Ram Deen entered into the residential quarter. Accused Gulab and Rameshwar remained present outside of the quarter. Deceased Brijesh Kumar asked P.W. Dhani Ram to prepare tea. At this deceased Brijesh Kumar opened the door from inside and then accused Ram Autar and Ram Deen entered into the residential quarter. Accused Gulab and Rameshwar remained present outside of the quarter. Deceased Brijesh Kumar asked P.W. Dhani Ram to prepare tea. At this Dhani Ram prepared tea and all of them sipped together the same and started playing-cards. At about 11.00 or 11.15 P.M. accused Ram Autar took Brijesh Kumar, Dhani Ram and Ram Deen to the court-yard of the residential quarter on the pretext that some body was flashing a torch there. When all of them reached the court-yard of the residential quarter, accused Ram Deen and Ram Autar caught hold of Brijesh Kumar and threw him down. Accused Ram Autar began to strike blows with a Sabbal on the head of Brijesh Kumar. When he cried, accused Ram Deen thrust a towel in his mouth to prevent him from crying and both of them strangled him to death. They lifted the dead body of Brijesh Kumar and climbed over the wall with the help of a ladder which was lying in the residential quarter of the Principal and threw the dead body down to the west of the wall. Thereafter they collected shoes, shocks, pant and coat belonging to Brijesh Kumar. 17. They took Dari and Chaddar of Dhani Ram. Thereafter all of them along with above clothes, shoes and socks climbed over the wall with the help of the ladder and jumped down. In the mean time accused Rameshwar and Gulab came over there. All the five persons (Dhani Ram, Ram Autar, Ram Deen, Rameshwar and Gulab) wrapped the dead body in Dari and Chaddar. P.W. Dhani Ram and accused Ram Autar and Ram Deen took the dead body and clothes, shoes and shocks belonging to deceased Brijesh Kumar to Yamuna river. Accused Rameshwar and Gulab remained present at the residential quarter of the Principal. At the bank of the Yamuna river accused Ram Autar and Ram Deen chopped off the head of the dead body. The dead body and clothes belonging to Brijesh Kumar were thrown into the flooded Yamuna river. Thereafter Ram Deen, Ram Autar and Dhani Ram came back to the residential quarter of the Principal. They entered into the quarter by scaling down the wall and cleaned the court-yard where Brijesh Kumar was done to death. The dead body and clothes belonging to Brijesh Kumar were thrown into the flooded Yamuna river. Thereafter Ram Deen, Ram Autar and Dhani Ram came back to the residential quarter of the Principal. They entered into the quarter by scaling down the wall and cleaned the court-yard where Brijesh Kumar was done to death. Accused Ram Autar and Ram Deen asked Dhani Ram not to tell anybody about the occurrence in question failing which he would have to face dire consequences. Thereafter they closed the door of the quarter and met accused Rameshwar and Gulab. They asked accused Rameshwar and Gulab not to tell any body about the occurrence in question otherwise they would be done to death. Accused Ram Autar and Ram Deen threatened accused Rameshwar and Gulab and P.W. Dhani Ram with some dire consequences and thereafter they did not tell the Principal about the occurrence in question. On 6.3.1979 when they met the Principal they told him that Brijesh Kumar had gone somewhere. 18. The defence case is that the Principal and the manger of the college did not give the accused persons their full pay and extorted money out of the salary of the accused persons. They made complaints regarding the same against the Principal and the Manager of the college with the result that the Principal and the Manager of the college had animosity against the accused persons and therefore falsely implicated them in the present case. 19. The Court below after scanning the whole of the prosecution evidence, hearing the oral submissions put forth by the counsel for the parties convicted all the accused persons of the charges framed against them. 20. Thus feeling aggrieved by the judgment and order of the trial court dated 12.1.1984, the present criminal appeal has been filed. 21. Mr. Rajeev Lochan Shukla, learned counsel for the appellants in support of the appeal has raised the following submissions:- (a) No motive can be attached to the accused persons in committing the crime and they have been falsely implicated. (b) The confessional statement of the accomplice Dhani Ram recorded under Sections 164 Cr.P.C., is itself illegal and therefore the registration of criminal case on the basis of the same against the accused persons is also illegal. (b) The confessional statement of the accomplice Dhani Ram recorded under Sections 164 Cr.P.C., is itself illegal and therefore the registration of criminal case on the basis of the same against the accused persons is also illegal. (c) The statement of the accomplice Dhani Ram recorded under section 306 (iv) (a) Cr.P.C. has been recorded contrary to the mandate of Section 306 (iv) (b) Cr.P.C, as such the same is illegal and has vitiated the trial. (d) The statement of the approver Dhani Ram recorded under Section 306 (iv) (a) Cr. P.C. is not voluntary and therefore cannot be relied upon. (e) There are various contradictions in the statement of the accomplice given under sections 164, 306 (iv) (a) Cr. P.C. and as a prosecution witness as such unworthy of credit. (f) The corroboration of the statement of the approver was sought to be explained with the aid of extra judicial confessions. (g) The extra judicial confession that was sought to be proved against the appellants cannot be relied upon. (h) The recovery of articles and materials used in the commission of crime including the weapon are not according to law and hence the same cannot be relied against the accused persons. (I) All the witnesses of facts are interested witnesses. 22. On the strength of the aforesaid submissions, it was vehemently urged by the appellants' counsel that the prosecution has failed to prove its case beyond reasonable doubt and therefore, the appellants are liable to be acquitted of the charges alleged against them. 23. In order to understand the import of the submissions raised by the counsel for the appellants in the light of the facts and circumstances of the present appeal four important facts need to be noticed. Firstly, no documentary evidence was adduced by the accused persons in proof of their defence. Secondly, the body of the deceased Brijesh Kumar Srivastava was never recovered. Thirdly, except for the evidence of the approver there is no other eye-witness account of the incident. Fourthly, the success or failure of the prosecution case in proceeding to prosecute the accused persons will depend primarily upon the credibility/reliability of the statement of the approver Dhani Ram, his evidence as P.W. 1 as well as the supporting prosecution witnesses. 24. Thirdly, except for the evidence of the approver there is no other eye-witness account of the incident. Fourthly, the success or failure of the prosecution case in proceeding to prosecute the accused persons will depend primarily upon the credibility/reliability of the statement of the approver Dhani Ram, his evidence as P.W. 1 as well as the supporting prosecution witnesses. 24. Since the central question involved in the present criminal appeal is regarding the credibility/reliability of the statement of the approver i.e. P.W. 1 Dhani Ram, as also his statement as P.W. 1. The law relating to the necessity of having the evidence of the approver, the nature of the evidence of the approver and the test to be applied before accepting the approver's evidence have to be referred to. The aforesaid issues have already been answered by the Apex Court and reference in this regard is made to the law as settled by the Apex Court itself. 25. With regard to the necessity of having the evidence of the approver reference may be made to the judgment of the Hon'ble Supreme Court in the case of Jasbir Singh V. Vipin Kumar Jaggi and others, as reported in AIR 2001 SC (2734), Paragraphs 14, 16 and 18 of the aforesaid judgment are relevant for the issue in hand:- "14. The grant of pardon by Court is rooted in the premise that most criminals try to avoid detection. Crimes like smuggling, by definition are carried on secretively. The persons involved in such criminal activity would obviously try to conceal and hide any evidence of their activities in as many ways as human ingenuity can devise. That is why the prosecution is often compelled to rely on the evidence of an accomplice to bring the most serious offenders to book. Besides ".....to keep the sword hanging over the head of an accomplice and to examine him as a witness is to encourage perjury." Laxmipat Choraria V. State of Maharashtra, AIR 1968 SC 938 : (1968 Cri LJ 1124). 16. The issue has to be weighed in the balance so that at the cost of not bringing one of the offenders to book, the others or at least the principal offender can be convicted. 16. The issue has to be weighed in the balance so that at the cost of not bringing one of the offenders to book, the others or at least the principal offender can be convicted. ".....The basis of the tender of pardon is not the extent of the culpability of the person to whom pardon is granted, but the principal is to prevent the escape of the offenders from punishment in heinous offences for lack of evidence."Suresh Chandra Bahri v. State of Bihar, 1995 (Supp) 1 SCC 80, 106: (1994 AIR SCW 3420 (3444, 3445): AIR 194 SC 2420 : 1994 Cri LJ 3271). 18. Although the power to actually grant the pardon is vested in the Court, obviously the Court can have no interest whatsoever in the outcome nor can it decide for the prosecution whether particular evidence is required or not to ensure the conviction of the accused. That is the prosecution's job. This was the view expressed in LT. Commander Pascal Fernandes v. State of Maharashtra, AIR 1968 SC 594 at p. 599 (1968 Cri LJ 550), where it was said: ".......Ordinarily it is for the prosecution to ask that a particular accused, out of several, may be tendered pardon. But even where the accused directly applies to the Special Judges he must first refer the request to the prosecuting agency. It is not for the Special Judge to enter the ring as a veritable director of prosecution. The power which the Special Judge exercises is not on his own behalf but on behalf of the prosecuting agency, and must, therefore, be exercised only when the prosecution joins in the request. The State may not desire that any accused be tendered pardon because it does not need approver's testimony. It may also not like the tender of pardon to the particular accused because he may be the brain behind the crime or the worst offender. The proper course for the Special Judge is to ask for a statement from the prosecution on the request of the prisoner. If the prosecution thinks that the tender of pardon will be in the interests of a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, it will indubitably agree to the tendering of pardon. If the prosecution thinks that the tender of pardon will be in the interests of a successful prosecution of the other offenders whose conviction is not easy without the approver's testimony, it will indubitably agree to the tendering of pardon. The Special Judge (or the Magistrate) must not take on himself the task of determining the propriety of tendering pardon in the circumstances of the case." 26. Regarding the question relating to the nature of the evidence of the approver, reference be made to paragraph 7 of the judgment of the Hon'ble Supreme Court as reported in 1957 SCR 953 / AIR 1957 SC 637 Sarwan Singh V. State of Punjab. The same is quoted herein below:- "7. On behalf of Harbans Singh, it has been urged. before us by Mr. Kohli that the judgment of the High Court of Punjab suffers from a serious infirmity in that, in dealing with the evidence of the approver, the learned Judges do not appear to have addressed themselves to the preliminary question as to whether the approver is a reliable witness or not. The problem posed by the evidence given by an. approver has been considered by the Privy Council and courts in India on several occasions. It is hardly necessary to deal at length with the true legal position in this matter. An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in,the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. It would not be right to expect that such independent corroboration should cover the whole of the prosecution story -or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true. But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered. In other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver. Mr. Kohli's contention is that since the learned Judges of the High Court of Punjab have failed to address themselves to this initial question, their appreciation of the approver's evidence suffers from a serious infirmity. In our opinion, this contention is well- founded. We have carefully read the judgment delivered by the High Court but we find no indication in the whole of the judgment that the learned Judges considered the character of the approver's evidence and reached the conclusion that it was the evidence given by a reliable witness." 27. With regard to the test to be applied before accepting the evidence of the approver reference may be made to the three Judges judgment of the Hon'ble Supreme Court in the case of Lachhi Ram Vs. State of Punjab as reported in AIR 1967 SC 792 , which approves the earlier three judges judgment as reported in 1957 SC 637 Sarwan Singh Vs. State of Punjab. Paragraph 9 of the aforesaid judgment lays down the test to be applied for accepting the evidence of the approver. The same is reproduced herein below:- "9. State of Punjab as reported in AIR 1967 SC 792 , which approves the earlier three judges judgment as reported in 1957 SC 637 Sarwan Singh Vs. State of Punjab. Paragraph 9 of the aforesaid judgment lays down the test to be applied for accepting the evidence of the approver. The same is reproduced herein below:- "9. It was held by this Court in Sarwan Singh v. The State of Punjab 1957 S.C.R. 953: ( AIR 1957 SC 637 ) that an approver's evidence to be accepted must satisfy two tests. The first test to be applied is that his evidence must show that he is a reliable witness, and that is a test which is common to all witnesses. The test obviously means that the Court should find that there is nothing inherent or improbable in the evidence given by the approver, and that there is no finding that the approver has given false evidence. The second test which thereafter still remains to be applied in the case of an approver, and which is not always necessary when judging the evidence of other witnesses, is that his evidence must receive sufficient corroboration. In the present case, as we have pointed out above, the High Court has held that the evidence of the approver was reliable and was corroborated on material particulars by good prosecution witnesses who have been believed by the Court. We are, therefore, unable to find any error in the judgment of the High Court in upholding the conviction of the appellant." 28. It is in the aforesaid legal background that the submissions raised by the counsel for the appellants need to be examined. (A) No motive can be attached to the accused persons in committing the crime and they have been falsely implicated. 29. To appreciate the contention raised by the counsel for the appellants Mr. Rajiv Lochan Shukla that no motive can be attached to the accused persons in committing the crime and they have been falsely implicated, it is first necessary to understand the meaning of the term 'motive' as assigned to it in criminal jurisprudence and secondly its importance in deciding the criminality alleged to have been committed. Paragraph 21 of the judgment of the Apex Court in the case of Suresh Chandra Bahri Vs. Paragraph 21 of the judgment of the Apex Court in the case of Suresh Chandra Bahri Vs. State of Bihar reported in AIR 1994 SC 2420 , clearly deals with the aforesaid:- "21.At the very outset we may mention that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the court that the accused was guilty of the offence charged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime. In the present case before us the prosecution has adduced evidence that the appellant Suresh Bahri had strong motive to eliminate his wife and two children from his way which evidence has been accepted by both the courts below. We shall, therefore, have a look at the said evidence to see whether the two courts are justified or not in taking the view that the appellant Suresh Bahri had a strong motive to hatch a conspiracy with the assistance of the other two appellants, namely, Raj Pal Sharma and Gurbachan Singh to commit the murder of his wife and the two children." 30. With the aforesaid meaning of the term motive, and its importance in judging a criminality, the submissions raised by the counsel for the appellants are to be considered. In the appeal in hand the question of motive is not of much relevance as there is direct evidence against the accused persons. The law is well settled that in the case of direct evidence the question of motive becomes irrelevant. In the appeal in hand the question of motive is not of much relevance as there is direct evidence against the accused persons. The law is well settled that in the case of direct evidence the question of motive becomes irrelevant. However, in spite of the aforesaid an attempt was made in the court below as well as before this Court to suggest that no motive can be attached to the accused persons in committing the crime and they have been falsely implicated. Consequently, the same is being dealt with but not in detail. 31. The Court below upon consideration of the facts and circumstances of the case and also upon evaluation of the oral and documentary evidence on the record found strong motive on the part of the accused persons in committing the crime. In arriving at the aforesaid conclusion the court below relied upon the fact that the accused persons were working as Class-IV employees in the Intermediate College of which the complainant Chakra Pani Srivastava was the Principal. As the accused persons were under the administrative control of the complainant, being the Principal of the Intermediate College, the complainant had sent various letters to the accused persons regarding dereliction of duty and called for the explanation of the accused persons regarding the same and further to show cause why their salary be not deducted. The trial Court referred to the documentary evidence in this regard in detail and concluded that strong motive can be attached to the accused persons in committing the crime. Learned counsel for the appellant could not point out any illegality in the conclusion drawn by the Court below which is based upon detailed consideration of the documents available on record in attaching strong motive to the accused persons in committing the crime. 32. It was however contended before us that the Principal and the Manager of the Intermediate College (P.W. 2) had been extorting money out of the salary of the accused persons. As such, complaint was made in this regard which resulted in the annoyance of the complainant Chakra Pani Srivastava against the accused persons who is also the Principal of the Intermediate College. It is thus argued that on account of the aforesaid, the accused persons have been falsely implicated. The submission so made sounds good, but on deeper scrutiny it is devoid of substance. It is thus argued that on account of the aforesaid, the accused persons have been falsely implicated. The submission so made sounds good, but on deeper scrutiny it is devoid of substance. There is no evidence adduced on behalf of the accused persons describing the period in which the alleged extortion was made. Secondly, there is no evidence to show the amount of salary paid to the accused persons, the mode of payment of salary and the amount extorted. Thirdly, there is no documentary evidence regarding the complaint alleged to have been made by the accused persons regarding the extortion of money out of the salary of the accused persons by the complainant Chakrapani Srivastava the Principal of the Intermediate College (Complainant) and the Manager of the Committee of the Management of the Intermediate College i.e. Manni Singh (P.W. 2). It will be useful to note that Manni Singh as per his own statement was the manager of the Intermediate College from 1965 to 1976 i.e. almost two years before the incident. 33. It was further submitted that it has come in paragraph 9 of the statement of P.W. 1 Dhani Ram that on the date of the incident i.e. 2.3.1979, the accused persons and the deceased Brijesh Kumar were gambling in which Ram Avtar had won Rs.100/- from the deceased Brijesh Kumar. Subsequently, Brijesh Kumar demanded the return of Rs. 100/- from Ram Avtar failing which he shall complain about the same to his father. Subsequently, Brijesh Kumar demanded the return of Rs. 100/- from Ram Avtar failing which he shall complain about the same to his father. The relevant portion of the statement of P.W. 1 Dhani Ram relating to the aforesaid as occurring in paragraph 9 is reproduced herein below:- ** ml fnu mijksDr pkjks eqfYteku e`rd fozts'k o eS&lc us fnu esa 2] 3 cts fnu esa & mu fnukas Ldwy es vkj{k.k dks ysdj gMrky py jgh Fkh yMds Ldwy ugh vk jgs Fks] & fizaLiy ds DokVZj es gh tqvk [ksyrs FksA ml fnu 10 cts fizaLiy lkgsc ckank pys x, FksA mlh fnu e`rd fo`ts'k Ldwy ij 12-1@2 cts fnu es igWqp x;k FkkA ge yksx 4] 4-1@2 cts rd tqvk [ksys FksA mles jke vkSrkj 100 :i;k lkS :i;k fozts'k ls thrk FkkA fozts'k us [ksyrs le; rks :i;k nsrk x;k FkkA tc [ksy [kre gqavk rks mlus jke vkSrkj eqfYte gkftj vnkyr tks e`rd fozts'k ls 100 :0 thrs Fkk ls dgk fd esjk 100 :i;k] lkS :i;k] okil dj nks ojuk firk th ls f'kdk;r dj nWwxkA bl ckr dks ge lc us eglwl fd;kA ge yksxks dks cqjk yxkA jke vkSrkj us Mj ds dkj.k iSlk okil dj fn;k vkSj dgk fd iSlk rks ys yks ysfdu ge ckn esa crk,axsA ** 34. On the basis of the aforesaid statement of P.W. 1, learned counsel for the appellants strongly urged before us that the aforesaid was a strong reason for falsely implicating the accused persons in the crime. The submission so made is to trivial. It neither inspires any confidence in the defence case nor does it prick the conscience of the court to conclude that the accused persons have been falsely implicated in a criminal case of such a serious nature on account of the aforesaid fact. 35. Thus looking into the totality of the submissions made by the counsel for the appellant before us, the facts and circumstances of the case, and the evidence on record, it is impossible to conclude that the accused persons have been falsely implicated as there was no motive on the part of the accused persons in committing the crime. 35. Thus looking into the totality of the submissions made by the counsel for the appellant before us, the facts and circumstances of the case, and the evidence on record, it is impossible to conclude that the accused persons have been falsely implicated as there was no motive on the part of the accused persons in committing the crime. The facts which have swayed with the Court below and the recital contained in paragraph 9 of the statement of the approver P.W. 1 Dhani Ram to the contrary leave no room of doubt to conclude that there was strong motive on the part of the accused persons in committing the crime. (B) The confessional statement of the accomplice Dhani Ram recorded under Sections 164 Cr.P.C., is itself illegal and therfore the registration of criminal case on the basis of the same against the accused persons is also illegal. 36. From the record it transpires that on 31.3.1979, the accused Dhani Ram approached the District Magistrate, Banda for getting his statement recorded under Section 164 Cr. P.C. Accordingly, Dhani Ram was referred to the S.D. M. Banda and his statement purported to be under Section 164 Cr.P.C. was recorded, by the SDM, Banda on 31.7.1979, itself. 37. Learned counsel for the appellants strongly contended that the statement under Section 164 Cr.P.C. could be recorded only by a Judicial Magistrate or by a Metropolitan Magistrate but certainly not by a Sub Divisional Magistrate. Since the statement under Section 164 Cr.P.C, was recorded by the SDM Banda, the same cannot be treated as a confessional statement under Section 164 Cr.P.C. It was further submitted that this statement was sent to the police of Police Station Pailani, District Banda and the same was received at the aforesaid Police Station on 7.4.1979. On the basis of the aforesaid statement, the Police of Police Station Pailani, District Banda registered a case under Sections 302, 201 and 202 I.P. C. against P.W. 1 Dhani Ram and the accused Ram Avtar, Gulab, Ram Deen and Rameshwar in G.D. on 7.4.1979, copy whereof is Exhibit Ka 53. It was thus concluded that since the confessional statement of Dhani Ram recorded before the S.D.M, Banda and purported to be under Section 164 Cr.P.C, is itself illegal, the consequential registration of the case against the accused persons on the basis of the same is also illegal. 38. It was thus concluded that since the confessional statement of Dhani Ram recorded before the S.D.M, Banda and purported to be under Section 164 Cr.P.C, is itself illegal, the consequential registration of the case against the accused persons on the basis of the same is also illegal. 38. As submissions made by the counsel for the appellants, refer to the provisions of Section 164 Cr.P.C, it is useful reproduce the same herein below:- "164. Recording of confessions and statements.-- (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence: Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. (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. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.m (4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-" I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Singed) A. B. Magistrate". (5) Any statement (other than a confession) made under sub- section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. (6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried." 39. A perusal of the aforesaid provisions makes it clear that the statement under Section 164 Cr.P.C, can be recorded only by a Judicial Magistrate or a Metropolitan Magistrate but certainly not by a Sub-Divisional Magistrate. Further more the law on the subject stands crystallized by the judgment of the Privy Council in the case of Nazir Ahmad V. Emperor reported in (1936) 38 BoMLR 987 wherein, it has been held that where the law requires a thing to be done in a particular manner it can be done in that manner alone or not all. Paragraph 11 of the aforesaid judgment which answers the issue in hand is quoted herein below:- "11. To this contention it was answered that there was no ground for reading the word " may " in Section 164 as meaning " must" on the principle described in Julius v. Lord Bishop of Oxford (1880) 5 App. Cas. 214. There is no need to call in aid this rule Of construction-well recognised in principle but much debated as to its application. It can hardly be doubted that a Magistrate would not be obliged to record any confession made to him if, for example, it were that of a self-accusing madman or for any other reason the Magistrate thought it to be incredible or useless for the purposes of justice. Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation. Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation. The rule which applies is a different and not less well recognised rule, namely, that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. This doctrine has often been applied to Courts-Taylor v. Taylor (1875) 1 Ch. D. 426, 431 and although the Magistrate acting under this group of sections is not acting as a Court, yet he is a judicial officer, and both as a matter of construction and of good sense there are strong reasons for applying the rule in question to Section 164." 40. Learned counsel for the appellants is therefore right in submitting before us that the statement of the accomplice Dhani Ram recorded before the SDM, Banda and alleged to have been recorded under Section 164 Cr. P.C. cannot be treated as a confessional statement of an accused in terms of Section 164 Cr.P.C. On the strength of the aforesaid, it is further argued that once the statement of the accomplice Dhani Ram recorded before the SDM, Banda is not a confessional statement no sanctity can be attached to it and therefore, no criminal case could be registered against the accused persons on the basis of the same by the Police of Police Station Pailani District Banda. 41. The questions which now arise for consideration are:- Whether the alleged confessional statement of Dhani Ram recorded before the S.D.M. Banda purported to be under section 164 Cr. P. C. can have any legal sanctity? Secondly, Whether on the basis of the aforesaid statement, the police could have registered a case? 42. No doubt, the statement of Dhani Ram recorded before the SDM, Banda cannot be treated as a confessional statement under section 164 Cr. P. C in strict legal term, yet the registration of criminal case by the officials of police Station Pailani, District Banda on the basis of the aforesaid cannot be said to be illegal. 43. The Sub Divisional Magistrate is a public authority. The code of Criminal Procedure empowers the S.D.M. with the jurisdiction to take preventive as well as remedial action in accordance with the provisions of the Code. 43. The Sub Divisional Magistrate is a public authority. The code of Criminal Procedure empowers the S.D.M. with the jurisdiction to take preventive as well as remedial action in accordance with the provisions of the Code. The statement given by Dhani Ram before the S.D.M. may not be treated, as a confessional statement under section 164 Cr. P. C. in strict legal terms but the same is an statement by an accused (accomplice) before a public authority. Therefore, its credibility cannot be wiped out for the purpose of registering a criminal case against the accused persons. The confession made by the accomplice Dhani Ram before the S.D.M., Banda regarding the criminality committed upon the body of the deceased Brijesh Kumar can be treated like an information given to public authority regarding a wrong done. It was on account of the aforesaid that the statement of Dhani Ram recorded on 31.3.1979 by the S.D.M., Banda was sent to the Police of Police Station Pailani, District Banda, which was received at the aforesaid Police Station on 7.4.1979. Thus, treating the statement of Dhani Ram recorded before the S.D.M., Banda on 31.3.1979 as an information, the police registered a case on the same day i.e. on 7.4.1979 on the age old principle that a crime against a person is a crime against the State. The police in registering the case have discharged their statutory duty to investigate a crime and bring the wrong doer to books. 44. Consequently, in the light of the aforesaid discussion, the submission of the learned counsel for the appellants in contending that since the confessional statement of Dhani Ram recorded before the S.D.M., Banda cannot be treated as a confessional statement in terms of section 164 Cr. P. C, the consequential registration of a criminal case on the basis of the same is also illegal, cannot be accepted. To the contrary, the registration of a criminal case by the police of Police Station Pailani, District Banda against the accused persons on the basis of the statement of the accomplice Dhani Ram given before the SDM Banda on 31.3.1979 against the accused persons cannot be termed as illegal. (C) The statement of the accomplice Dhani Ram recorded under section 306 (iv) (a) Cr.P.C. has been recorded contrary to the mandate of Section 306 (iv) (b) Cr.P.C, as such the same is illegal and has vitiated the trial. 45. (C) The statement of the accomplice Dhani Ram recorded under section 306 (iv) (a) Cr.P.C. has been recorded contrary to the mandate of Section 306 (iv) (b) Cr.P.C, as such the same is illegal and has vitiated the trial. 45. Learned counsel for the appellants relying upon the provision of Section 306 (iv) (b) Cr.P.C. has strenuously argued before us that the accomplice Dhani Ram was arrested on 8.4.1979 and while he was in jail, he submitted an application dated 30.4.1979 (Ex. Ka 2) to the C.J.M Banda requesting him to tender pardon. On 3.5.1979 itself, R.C. Shukla, the C.J. M Banda passed an order dated 3.5.1979 tendering Dhani Ram pardon on the condition of his making a full and true disclosure of the offence and to every other person concerned in its commission. The accused Dhani Ram accepted it. The acceptance of pardon is in the hand writing of Dhani Ram (Ex. Ka 3). The sessions Judge granted bail to Dhani Ram on 4.5.1979. Thereafter, on 5.5.1979 his statement was recorded under Section 306 (iv) (a) Cr.P.C. Elaborating his submission the learned counsel for the appellants submitted that the accomplice Dhani Ram could not have been enlarged on bail on 4.5.1979 and was required to be detained in custody till the conclusion of the trial as per Section 306(iv)(b) Cr.P.C. As the accomplice Dhani Ram has been enlarged on bail prior to the conclusion of the trial, the same is violative of the mandatory provisions of Section 306 (iv)(b) Cr.P.C. Thus the trial stands vitiated and the appellants are liable to be discharged of the charges alleged against them. 46. The aforesaid submission is founded on Section 306 Cr.P.C, as such, it is imperative to reproduce the same for ready reference:- "306. Tender of pardon to accomplice. 46. The aforesaid submission is founded on Section 306 Cr.P.C, as such, it is imperative to reproduce the same for ready reference:- "306. Tender of pardon to accomplice. (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true dis- closure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. (2) This section applies to- (a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952); (b)any offence punishable with imprisonment which may extend to seven years or with a more severe sentence. (3) Every Magistrate who tenders a pardon under sub- section (1) shall record- (a) his reasons for so doing; (b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost. (4) Every person accepting a tender of pardon made under sub- section (1)- (a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; (b)shall, unless he is already on bail, be detained in custody until the termination of the trial. (4) Every person accepting a tender of pardon made under sub- section (1)- (a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; (b)shall, unless he is already on bail, be detained in custody until the termination of the trial. (5) Where a person has, accepted a tender of pardon made under sub- section (1) and has been examined under sub- section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,- (a)commit it for trial- (i) to the Court of Session if the, offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate; (ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court; (b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself." 47. A plain reading of Section 306 (iv) Cr.P.C, clearly reveals that it is in two parts. The first part is regarding the mandate of the Section i.e. every person accepting a tender of pardon under sub-section 1 shall be examined as a witness. The second part is procedural which provides that unless he is already on bail he shall be detained in custody until the conclusion of the trial. It is the second part which falls for consideration in this appeal. 48. According to the learned counsel for the appellants, once a person has been granted a tender of pardon, not only his statement is to be recorded, but he is also required to be detained in custody till the conclusion of the trial. The submission so made is unacceptable. The language of sub section (b) of Section 306 (iv) is very clear. It provides the detention of the person accepting the pardon till the conclusion of trial unless he has not been enlarged on bail. The words "unless he has been enlarged on bail" have to be given a wide meaning. The submission so made is unacceptable. The language of sub section (b) of Section 306 (iv) is very clear. It provides the detention of the person accepting the pardon till the conclusion of trial unless he has not been enlarged on bail. The words "unless he has been enlarged on bail" have to be given a wide meaning. In the present case the accomplice Dhani Ram whose statement was recorded on 5.5.1979 under Section 306 (iv)(a) Cr.P.C. was already enlarged on bail by the sessions court vide order dated 4.5.1979, which is prior to the date on which the statement of the accomplice as approver was recorded in terms of section 306 (iv)(a) Cr.P.C. i.e. on 5.5.1979. As such the present case is covered by the second part i.e. Section 306 (iv)(b) Cr.P.C. It is important to mention here that the order dated 4.5.1979 passed by the sessions court enlarging Dhani Ram on bail was never challenged by the appellants herein. Thus the words "occuring" in Section 306 (iv)(b) "if not already released on bail" are fully attracted in the present case. No illegality was committed by the sessions Court in granting bail to the accomplice Dhani Ram nor does it have any legal impact so as to vitiate the trial or cause any prejudice to the accused. 49. The legal issue raised by the counsel for the appellants in the light of the facts stated above that if an accomplice has been enlarged on bail contrary to the mandate of section 306 (iv)(b) Cr.P.C, the same shall vitiate the trial is no longer res-integra. Reference in this regard be made to the following observations contained in paragraph 34 of the judgment of the Apex Court as reported in AIR 1994 SC 2420 Suresh Chandra Bahri Vs. State of Bihar:- 34. As regards the contention that the trial was vitiated by reason of the approver Ram Sagar being released on bail contrary to the provisions contained in clause (b) of sub- section (4) of Section 306 of the Code. It may be pointed out that Ram Sagar after he was granted pardon by the learned Magistrate by his order dated 9-1-1985, was not granted bail either by the committing Magistrate or by the learned Additional Judicial Commissioner to whose court the case was committed for trial. It may be pointed out that Ram Sagar after he was granted pardon by the learned Magistrate by his order dated 9-1-1985, was not granted bail either by the committing Magistrate or by the learned Additional Judicial Commissioner to whose court the case was committed for trial. The approver Ram Sagar was, however, granted bail by an order passed by the High Court of Patna, Ranchi Bench in Criminal Miscellaneous Case No. 4735 of 1986 in pursuance of which he was released on bail on 21-1-1987 while he was already examined as a witness by the committing Magistrate on 30-1-1986 and 31-1-1986 and his statement in sessions trial was also recorded from 6-9-1986 to 19-11-1986. It is no doubt true that clause (b) of Section 306 (4) directs that the approver shall not be set at liberty till the termination of the trial against the accused persons and the detention of the approver in custody must end with the trial. The dominant object of requiring an approver to be detained in custody until the termination of the trial is not intended to punish the approver for having come forward to give evidence in support of the prosecution but to protect him from the possible indignation, rage and resentment of his associates in a crime whom he has chosen to expose as well as with a view to prevent him from the temptation of saving his one time friends and companions after he is granted pardon and released from custody. It is for these reasons that clause(b) of Section 306 (4) casts a duty on the court to keep the approver under detention till the termination of the trial and thus the provisions are based on statutory principles of public policy and public interest, violation of which could not be tolerated. But one thing is clear that the release of an approver on bail may be illegal which can be set aside by a superior court, but such a release would not have any affect on the validity of the pardon once validly granted to an approver. In these circumstances even though the approver was not granted any bail by the committal Magistrate or by the trial Judge yet his release by the High Court would not in any way affect the validity of the pardon granted to the approver Ram Sagar. 50. In these circumstances even though the approver was not granted any bail by the committal Magistrate or by the trial Judge yet his release by the High Court would not in any way affect the validity of the pardon granted to the approver Ram Sagar. 50. The same issue has further been dealt by the Apex Court in the case of Narayan Chetanram Chaudhary and another Vs. State of Maharshtra reported in AIR 2000 SC 3352 , Paragraph 27 of the judgment which is relevant in the context of the present case is reproduced herein below:- "27. There is no legal obligation on the Trial Court or a right in favour of the accused to insist for the compliance with the requirement of Section 306 (4) of the Cr.P.C. Section 307 provides a complete procedure for recording the statement of an accomplice subject only to the compliance of conditions specified in Sub-Section (1) of Section 306. The law mandates the satisfaction of the court granting pardon, that the accused would make a full and true disclosure of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. It is not necessary to comply with the requirement of Section 306(4) when the pardon is tendered by the Trial Court. The Trial Court, in this case has taken all precautions in complying with the provisions of Section 306(1) before tendering pardon to accused Raju, who later appeared as PW2. We do not find any violation of law or illegality in the procedure for tendering the pardon and recording the statement of PW2." From the discussions made above and the law on the subject as crystallized by the Apex Court, the inescapable conclusion is that the grant of bail to the approver Dhani Ram cannot be said to be illegal nor the same has vitiated the trial in any manner. (D) The statement of the approver Dhani Ram recorded under Section 306 (iv) (a) Cr. P.C. is not voluntary and therefore cannot be relied upon. 51. Mr. Rajiv Lochan Shukla, learned counsel for the appellants very strenuously pleaded that the statement of the approver Dhani Ram recorded under Section 306 (iv)(a) Cr.P.C. is not voluntary and therefore the same cannot be relied upon. P.C. is not voluntary and therefore cannot be relied upon. 51. Mr. Rajiv Lochan Shukla, learned counsel for the appellants very strenuously pleaded that the statement of the approver Dhani Ram recorded under Section 306 (iv)(a) Cr.P.C. is not voluntary and therefore the same cannot be relied upon. To buttress the aforesaid submission, learned counsel for the appellants referred to various portions of the statement of the accomplice Dhani Ram recorded before the S.D.M. Banda, purported to be under section 164 Cr.P.C, the statement of the approver Dhani Ram recorded under Section 306 (iv)(a) Cr.P.C, as well as, his statement recorded before the Court below as P.W. 1. 52. Elaborating his argument, learned counsel for the appellants referring to the fact that after the making of the statement before the SDM Banda purported to be under Section 164 Cr.P.C, the accomplice Dhani Ram was not detained in custody and furthermore, after his being declared as an approver he was not kept in confinement and was granted bail contrary to the provisions of Section 306 (iv)(b) Cr.P.C. On the aforesaid factual premise, it was submitted by the counsel for the appellants that the approver Dhani Ram was approached by P.W.6 namely Sri Chakrpani Srivastava while he was detained in custody and was also given money by P.W. 6. It was further urged that the accomplice Dhani Ram had made a request to P.W. 6 to get him bailed out as he was sick and P.W. 6 had told him that he would see what he could do. In support of the aforesaid submissions and the factual foundation laid regarding the same, as stated above, support was drawn by making reference to paragraph 20 of the statement of P.W. 1 Dhani Ram. In support of the aforesaid submissions and the factual foundation laid regarding the same, as stated above, support was drawn by making reference to paragraph 20 of the statement of P.W. 1 Dhani Ram. Paragraph 20 of the statement of Dhani Ram is reproduced herein below:- ** 20- eq>s ugh ekywe fd esjh tekur fdl odhd lkgsc us djk;k FkkA eq>s ;g ckr vkt rd ugh ekywe gSA mudks eSus ns[kk Hkh ughaA eq>s ugh ekywe fd tekur es fdruk o fdlds }kjk [kpZ gqvkA esjs cguksbZ Jh izse pUn th lo djrs jgsA eq>s] ;fn fizaLiy lkgsc us tekur djk;k gks rks ugh ekywe gS D;ksafd eS rks tsy es FkkA tc feykbZ djus x, Fks rc ugh crk;k Fkk fd og esjh tekur djok;saxsA eSus muls ;g dgk Fkk fd esjh rfc;r [kjkc gS esjh tekur djok nhft,A mUgksus dgk Fkk fd ns[kk tk;sxkA okgj vkus ij ;g irk fd esjh tekur fdlus djk;k ugh yxk;k] u rks fdlh us eq> ls crk;k ghA ;g xyr gS fd esjh tekur fizaLiy lkgsc us djk;k Fkk bls eSa tkurk gWw vkSj bl ckr dks fd esjh tekur fizaLiy lkgsc us djk;k Fkk tkucw>dj fNik jgk gWwA ** 53. On the basis of the aforesaid factual premise, it was emphatically submitted that the application for being declared an approver was not the voluntary act of the approver but the same had been done at the instance of Prem Chand the brother-in-law of the approver as well as P.W. 6 Chakrapani Srivastava. Even the first application before the District Magistrate, Banda on which his supposed statement under Section 164 Cr.P.C, was recorded, was not voluntarily given by the approver, but at the instance of his brother-in-law Prem Chand. It was also urged that the application was also not voluntarily written by the approver. To give strength to the aforesaid submissions, the attention of the Court was drawn to the various contradictions qua the writing of the application which are said to be highlighted in para-24 of the statement of P.W. 1 Dhani Ram. It was also urged that the application was also not voluntarily written by the approver. To give strength to the aforesaid submissions, the attention of the Court was drawn to the various contradictions qua the writing of the application which are said to be highlighted in para-24 of the statement of P.W. 1 Dhani Ram. Paragraph 24 of the statement of P.W.1 Dhani Ram reads as follows:- **24- [kkudkg gkbZ Ldwy es esjs cguksbZ pijklh gSaA Jh pdzikf.k th bl Ldwy ds fizaLiy ls feyus tk;k djrs FksA 31-3-79 dks esjk C;ku fMIVh lkgsc ds ;gkW gqvk FkkA ml le; esjs cguksbZ Jh izsepUnz th dejk btykl es ugh Fks] ckgj [kMs FksA C;ku nsus ds IkwoZ eSus ml nj[okLr dks i<+ fy;k FkkA dsoy ,d ckj gh i<k FkkA dbZ ckj ugh i<+k FkkA ogkW ij fMIVh lkgsc Fks] eS ;k o is'kdkj lkgsc FksA ogkW dksbZ odhy lkgc ;k nhxj ckgjh vkneh ugh FkkA ftl fnu lh-th-,e- lkgsc ds C;ku gqvk gS ml fnu C;ku ds le; ljdkjh odhy dksVZ lkgsc FksA muds lkFk dksbZ odhy lkgc nwljs odhy lkgc ugh FksA ljdkjh odhy lkgsc us dgk Fkk fd ;gh ;gh C;ku tks nj[okLr es fy[kk gS ns nks cp tkvksxsA tks nj[okLr eSus tsy ls] Hkstok;k Fkk mls i< dj dksVZ lkgsc us lquk fn;k FkkA tsy okyh nj[okLr tsy d vUnj uUnyky flikgh ls tsyj ds lkeus fy[kkbZ XkbZ FkhA fizaLiy lkgsc us ugh ogh tsy es cUn gokykfr;ksa us crk;k Fkk fd ,slh nj[okLr ns nksA eq>s esjs cguksbZ Hkh ;gh dgk FkkA fizaLiy lkgsc us Hkh feykbZ ds le; ,slh nj[okLr Hkstokus ds fy, dgk FkkA eq>s ;g ugha ekywe fd mlds ikl fy[kk dkxt Fkk mldh mUgksus udy dj fn;k FkkA mUgksus rks izkjEHk ls vUr rd esjs lkeus gh fy[kk FkkA eSus lc muls crk fn;k rks mUgksus fy[k fn;kA esjs cguksbZ us ;g crk;k Fkk fd og nj[okLr lh-th-,e-dh btykl esa Hksth tk;xhA esjs thtk th us crk;k Fkk fd ljdkjh xokg cutkus ls rqe ltk ls cp tkvksxsA izn'kZ d&2 ogh nj[okLr gSaA esjk gLrk{kj 30-4-79 dk gSaA rkjh[k ogkW dh eSus fy[kk gSA nj[okLr ds uhps rkjh[k vyx ls Hkh gSA ogkW igys 28-4-79 FkkA bl 28 dks dkV dj 30 fd;k x;k gSA 28 dk 2 o 8 nksuks lkQ lkQ tkfgj gks jgs gSA ;g nj[okLr esjs lkeus ugh fy[kh xbZ FkhA eq> ls dsoy bu ij nLr[kr djk fy;k FkkA bl nj[okLr dks uanyky us fy[kk gS ;k vkSj fdlh us] ugh crk ldrkA fQj dgk fd ;g ogh nj[okLr gSaA esjs lkeus fy[kh xbZ FkhA 28 dk 30 fdlus fd;k] dc fd;k] dgkW fd;k]\ ugh crk ldrkA fQj dgk fd ;g nj[okLr esjh fy[kkbZ ugh gSa og nj[okLr tsyj lkgsc ds ikl igWqph FkhA mUgksus cqyok dj esjk nks txg nLr[kr djok;k FkkA eSus ;g C;ku fd bl nj[okLr izn'kZ d2 dks uUnyky us fy[kk Fkk xyrQgeh ls xyr dg fn;k FkkA ** 54. Extending his arguments, the appellants' counsel urged that the Manager of the inter college, P.W. 2 Manni Singh, is one of the sureties of the approver when he was granted bail and the above gamut of facts lead to the irresistible conclusion that the statement was not voluntary and was induced by promises and acts of the prosecution witness, specifically P.W. 6 Chakrapani Srivastava and P.W. 2 Manni Singh, as also Prem Chand, the brother-in-law of the approver who, as per the evidence on record, had terms with P.W.6 even prior to the incident. Another factual aspect of the matter to which attention was drawn by the counsel for the appellants is that the statement under Section 164 Cr.P.C, was recorded on oath before the Sub- Divisional Magistrate, Banda and the presence of P.W. 6 in jail may also lead to a conclusion that the earlier statement, which was not voluntary, had been used as a threat/coercion to get P.W. 1 to seek pardon and turn an approver. Elaborating his submission further, the counsel for the appellants argued that even the prosecuting officer had promised the approver that if he deposes to what was written in the application then he would be saved. Therefore, according to the appellants' counsel, the entire exercise of P.W. 1 being granted pardon and turning an approver is therefore a sham and undue influence/threat/coercion/promise appears to have been used for inducing such statements. 55. The sum total of the aforesaid submissions of the counsel for the appellants can be summarized as follows. Firstly, the supposed confessional statement of the accused Dhani Ram recorded before the SDM Banda on 31.3.1979 was not voluntary but was the outcome of influence and presure exerted upon Dhani Ram by his brother-in-law namely, Prem Chand. Secondly, the statement of the accomplice Dhani Ram given before the SDM , Banda on 31.3.1979 was used as a tool of threat and coercion forcing Dhani Ram to turn approver and give his statement under Section 306 (iv)(a) Cr.P.C. i.e. the statement of the approver. Lastly, the cumulative effect of the instances detailed in the preceding paragraph clearly go to show that the statement of Dhani Ram as an approver was not the outcome of the voluntary act of Dhani Ram. As such by reason of Section 24 of the Indian Evidence Act, the same cannot be relied upon. 56. Lastly, the cumulative effect of the instances detailed in the preceding paragraph clearly go to show that the statement of Dhani Ram as an approver was not the outcome of the voluntary act of Dhani Ram. As such by reason of Section 24 of the Indian Evidence Act, the same cannot be relied upon. 56. To appreciate the challenge made to the nature of the statement of the accomplice/approver Dhani Ram and to decide whether the statement of Dhani Ram as an approver is voluntary or not, it will be useful to refer to the alleged confessional statement of the accomplice Dhani Ram recorded on 31.3.1979 before the SDM, Banda and also the statement of the approver Dhani Ram recorded before the Magistrate on 5.5.1979. 57. A perusal of the statement of Dhani Ram rendered before the S.D.M., Banda on 31.3.1979 purported to be under Section 164 Cr.P.C, Ex. Ka-1 will go to show that the aforesaid statement has been made by the accomplice Dhani Ram giving the true and complete description of incident which occurred in the night of 2/3.3.1979. However, the last three lines of the aforesaid statement on which much stress was laid by the appellants' counsel make a reference that the same has been made at the instance of the Principal i.e. the complainant P.W. 6 Chakrapani Sriwastava. The relevant portion of the statement of the accomplice Dhani Ram recorded before the SDM, Banda on which reliance was placed is extracted herein below:- **lkgc ds ;g dgus ij lgh 2 crk nks rqEgsa dqN ugha gksxk] eSus lgh 2 crk fn;kA lqukus ij lk{kh us crk;k fd IkSaV dksV vkSj twrs e`rd ds] vkaxu ls ugh cfYd DokVZj ls mBk, FksA** 58. Similarly the statement of the approver Dhani Ram given before the Magistrate on 5.5.1979 (Ex. Ka-4) will similarly go to show that the aforesaid statement not only gives a true and complete description of the event which occurred in the night of 2/3.3.1979 but the same is the outcome of his own free will, to disclose the truth about the aforesaid incident. Ka-4) will similarly go to show that the aforesaid statement not only gives a true and complete description of the event which occurred in the night of 2/3.3.1979 but the same is the outcome of his own free will, to disclose the truth about the aforesaid incident. This is explicit from the following portion of the statement of P.W. 1 Dhani Ram, which is reproduced herein below:- **jkevkSrkj o jkenhu us ogkW ij c`ts'k dks mBkdj iVd fn;k vkSj jkevkSrkj us lCoy ls c`ts'k ds lj ij okj dj fn;k c`ts'k fpyk;k rks jkenhu us mlds eqag esa diM+s Hkj fn;s vkSj mldk xyk nckus yxsA nksuksa vkneh xyk nokus yxs vkSj diM+k Bwlus yxs eSaus cpk;k rks jkevkSrkj us eq>s reapk fn[kkdj /kedk;kA c`ts'k ds ejus ds ckn vkaxu esa ulsuh yxkbZ vkSj ge lcus feydj mldh yk'k dks ihNs Qsad fn;kA esjs eu ls lp ckr dgus dh bPNk gqbZ rks eSus,l0Mh0,e0 ds vnkyr esa tkdj viuk c;ku fn;kA 8-4-79 dks tc eS pUnokj bu yksxks dh [kkst [kcj ysus x;k rks eq>s iqfyl us idM+ fy;kA eSus tsy ls 30-4-79 dks ljdkjh xokg cuus dh nj[okLr HkstokbZ FkhA eSus vkt tks c;ku fn;k gS og viuh ethZ ls fcuk fdlh tksj o ncko ds fn;k gSA ** 59. On a conjoint reading of the aforesaid statements of the accomplice/approver Dhani Ram as a whole and as referred to above, no such inference as asserted by the counsel for the appellant can be drawn. To the contrary the accomplice/approver is consistent regarding the manner in which the criminality was conducted upon the body of the deceased. The recital contained in the statement of the approver as quoted above, clearly reflects his state of mind to expose the truth. The accomplice/approver by giving his statement wanted to get relieved of the cloak of criminality committed by him in joining the accused appellants No. 1 and 2, which had also become unbearable for him. The act of motivation on the part of some persons motivating the accomplice to give his confessional statement or to give approver statement can by no stretch of imagination need to the conclusion that the statements are not voluntary. 60. The act of motivation on the part of some persons motivating the accomplice to give his confessional statement or to give approver statement can by no stretch of imagination need to the conclusion that the statements are not voluntary. 60. This bring us to the last part of the controversy as to whether the instances relied upon by the appellants' counsel to show that the statement of Dhani Ram as an accomplice as well as an approver were not voluntary and therefore the same could not be relied upon. Detailing his argument, learned counsel for the appellants with much eloquence canvassed before us that the statement of the approver being the outcome of threat, promise and inducement is not voluntary. Reference in this regard was made to the provisions of Section 24, 28, 29 and 30 of the Indian Evidence Act as well as Section 164 Cr.P.C. To appreciate the same, it will be useful to refer to the provisions of Sections 24, 28, 29 and 30 of the Indian Evidence Act which deal with the statement of an approver. The same are referred to herein below:- "24. Confession caused by inducement, threat or promise when irrelevant in criminal proceedings- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat for promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. 28. Confession made after removal of impression caused by inducement, threat or promise, relevant- If such a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court, been fully removed, it is relevant. 29. 28. Confession made after removal of impression caused by inducement, threat or promise, relevant- If such a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court, been fully removed, it is relevant. 29. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc- If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the accused person for the purpose of obtaining, it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him. 30. Consideration of proved confession affecting person making it and others jointly under trial for same offence- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person makes such confession. [ Explanation--"Offence" as used in this section, includes the abetment of, or attempt to commit, the offence.]" 61. For discarding the evidence of Dhani Ram as an accomplice/approver, on the ground of the same being involuntary, it is imperative to find out whether the statement of Dhani Ram before the S.D.M., as an accomplice and further his statement before the Magistrate as an approver was voluntary or the outcome of any inducement, threat or promise. To put it the other way, it is, whether the instances relied upon by the counsel for the appellants could be the basis for disbelieving the approver's evidence as it is an outcome of inducement, threat or promise and therefore involuntary. 62. To find a correct answer to the aforesaid, it is first necessary to have the meaning of the words 'Voluntary', 'Inducement', 'Threat' and 'Promise' as understood in criminal jurisprudence. (i) The word "Voluntary" has been defined in "Black's Law Dictionary" to mean: 1. Done by design or intention, 2. 62. To find a correct answer to the aforesaid, it is first necessary to have the meaning of the words 'Voluntary', 'Inducement', 'Threat' and 'Promise' as understood in criminal jurisprudence. (i) The word "Voluntary" has been defined in "Black's Law Dictionary" to mean: 1. Done by design or intention, 2. Unconstrained by interference, not impelled by outside influence, 3. Without valuable consideration or legal obligation, 4. Having merely nominal consideration. (ii) In "Words and Phrases Legally Defined 4th Edition the word Voluntary has been defined as: See also annual voluntary Contributions; conscious, voluntary And Deliberate Act; Free ' "Voluntarily" means, obviously, the doing of something as the result of the free exercise of the will.' Re Wilkinson, Page v Public Trustee [1926] Ch 842, 850, per Tomlin J 'In the present State of the law an admission of guilt or an admission of facts rending to establish guilt is only receivable in evidence against the party making it if it is shown to be "voluntary". It is clear that the word "voluntary" in this connection is not to be given its widest meaning, but unfortunately the reported cases and the leading text books are not unanimous as to the sense in which the word is to be used. The classic statement of the principle is that of Lord Summer in Ibrahim v. Regam [[1914] AC 599] where he said, "It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to be a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale" However, in five of the eleven text books cited to us... support is to be found for a narrow and rather technical meaning of the word "voluntary". The principle is as old as Lord Hale" However, in five of the eleven text books cited to us... support is to be found for a narrow and rather technical meaning of the word "voluntary". According to this view "voluntary" means merely that the statement has not been made in consequence of (I) some promise of advantage or some threat (ii) of a temporal character (iii) held out or made by a person in authority, and (iv) relating to the charge in the sense that it contemplated proceedings will or may be better or worse according to whether or not the statement is made.' Rv Harz, R v Power [1966] 3 All ER 433 at 454-455, per Cantley V. * (iii). The word "Voluntary" has also been the subject matter of consideration in a number of cases. However, reference be made to the case of Devendra Pal Singh Vs. State of N.C.T. of Delhi 2002 (5) SCC 234 , wherein paragraph 31, it has been observed: "Voluntary means that one who makes it out of his own free will inspired by the sound of his own conscience to speak nothing but the truth.As per Stroud's Judicial Dictionary, 5th Edn., at p. 2633, threat means. "It is the essence of a threat that it be made for the purpose of intimidating, or overcoming, the will of the person to whom it is addressed (per Lush, J., Wood v. Bowron (1866) 2 QB 21) cited Intimidate)." Words and Phrases, Permanent Edition Vol. 44,p. 622, defines "voluntary" as: " 'Voluntary' means a statement made of the freewill and accord of accused, without coercion, whether from fear of any threat of harm, promise, or inducement or any hope of reward -. State v. Mullin (85 NW 2d598, 600, 249 loan 10)." At p. 629, "confession" is defined as: "where used in connection with statements by accused, words 'voluntary' and 'involuntary' import statements made without constraint or compulsion by others and the contrary. Commonwealth v. Chin Kee(186 NE 253, 260, 283 Mass 248)." In Words and Phrases by John B. Saunders, 3rdEdn., Vol. 4 p. 401, "voluntary" is defined as: "The classic statement of the principle is that Lord Summer in Ibrahim v. Regem (1914 AC 599) (atp. Commonwealth v. Chin Kee(186 NE 253, 260, 283 Mass 248)." In Words and Phrases by John B. Saunders, 3rdEdn., Vol. 4 p. 401, "voluntary" is defined as: "The classic statement of the principle is that Lord Summer in Ibrahim v. Regem (1914 AC 599) (atp. 609) where he said, "It has long been established as a positive rule of English criminal law that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to be a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held bout by a person in authority. The principle is as old as Lord Hale".However, in five of the eleven textbooks cited to us...support is to be found for a narrow and rather technical meaning of the word "voluntary". According to this view "voluntary" means merely that the statement has not been made in consequence of (i) some promise of advantage of some threat (ii) of a temporal character(iii) held out or made by a person in authority, and (iv)relating to the charge in the sense that it implies that the accused's position in the contemplated proceedings will or may be better or words according to whether or not the statement is made." R. v. Harz, R.v. Power (1966)3 All ER 433 (at pp. 454, 455) per Cantley, V.' So the crux of making a statement voluntarily is, what is intentional, intended, enameled by other influences,acting on one's own will, through his own conscience. Such confessional statements are made mostly out of athirst to speak the truth which at a given time predominates in the heart of the confessor which impels him to speak out the truth. Internal compulsion of the conscience to speak out the truth normally emerges when one is in despondency or in a perilous situation when he wants to shed his cloak of guilt and nothing but disclosing the truth would dawn on him. It sometimes becomes so powerful that he is ready to face all consequences for clearing his heart." (iv). The word "Inducement" has been defined in Black's Law Dictionary to mean :- "An Act or process of enticing or persuading another person to take a certain course of action" (v). It sometimes becomes so powerful that he is ready to face all consequences for clearing his heart." (iv). The word "Inducement" has been defined in Black's Law Dictionary to mean :- "An Act or process of enticing or persuading another person to take a certain course of action" (v). In "Stroud's Judicial Dictionary", the word "Inducement" has been defined as follows: "An "Inducement" may amount to a bargain: "If a man is induced to do a thing upon the faith of a sum being paid to him, that amounts to a bargain between the parties, whether the word describing the transaction be 'inducement or 'bargain' ''(Per Hatherley C., Bayspoole v. Collings, 40 L.J. Ch. 292)" (vi). In "Words and Phrases Legally Defined 4th Edition" the word "Inducement" has been defined to mean:- "Inducement" is a word defined in the New Shorter Oxford Dictionary as (among other definitions) "lead, persuade, influence (a person)". Another definition is to be found in Butterworths Australian Legal Dictionary under the sub-heading "Criminal Law". The following appears: "A persuasion of temporal or worldly as opposed to moral or religious character aimed at producing some willing action on the part of an accused by a person with authority." The word "inducement" is coupled with the words "promise or threat". The composite phrase is "a promise or threat or any other inducement". Promises and threats are apt to incline suspects to accept guilt when they are not guilty. That is the rationale for being careful about admitting confessions which have resulted from promises and threats. The same rationale must apply to 'other inducement'. In broad terms therefore an inducement may by anything which might logically incline a suspect a suspect falsely to admit guilt. (vi). Similarly, in "Black's Law Dictionary", the word "threat" has been defined to mean:- "A communicated intent to inflict harm or loss on another or on another's property, esp. one that might diminish a person's freedom to act voluntarily or with lawful consent." (viii). In "Stroud's Judicial Dictionary" the word "threat" has been described as an action meaning that:- "it is the essence of a threat that it be made for the purpose of intimidating, or overcoming, the will of the person to whom it is addressed" (ix). one that might diminish a person's freedom to act voluntarily or with lawful consent." (viii). In "Stroud's Judicial Dictionary" the word "threat" has been described as an action meaning that:- "it is the essence of a threat that it be made for the purpose of intimidating, or overcoming, the will of the person to whom it is addressed" (ix). In "Words and Phrases Legally Defined 4th Edition", the word "threat" has been defined to mean as follows:- "See also Intimidation Australia [Section 30 of the Crimes Act 1900 (ACT) provides that it is an offence to, inter alia, make a 'threat' to another person to kill that other person or any third person.] ' There is no real question as to what is meant by the word "threat". It is a declaration: see Concise Oxford Dictionary, 1984, Oxford, Clarendon. The intention so declared has to be that of ending the life of the person or persons allegedly so threatened.' R v Leece (1995) 125 ACTR 1 at 4-5, per Higgins J Of industrial action 'After the decisions that have been given upon this statute [a repealed Act which dealt with illegal combinations of workmen] it is too late to say that the word "threat" is limited to the declaration of an intention to do those acts with which it stands in intimate connection, viz acts of violence to the property or person of another. The cases that have been decided show that the word must have a wider sense; namely, a threat by at or words of doing some injury to another person. But I apprehend that it is the very essence of a threat that it should be made for the purpose of intimidating or overcoming the will of the person to whom it is addressed.' Wood & Barrow v. Bowron (1866) LR 2 QB 21 at 30, per Lush J 'It is undeniable that the terms "threat", "coercion", and even "intimidation", are often applied in popular language to utterances which are quite lawful and which give rise to no liability either civil or criminal. They mean no more than this, that the so-called threat puts pressure, and perhaps extreme pressure, on the person to whom it is addressed to take a particular course. Of this again numberless instances might be given. They mean no more than this, that the so-called threat puts pressure, and perhaps extreme pressure, on the person to whom it is addressed to take a particular course. Of this again numberless instances might be given. Even then if it can be said without abuse of language that the employers were "intimidated and coerced" by the appellants, even if this be in a certain sense true, it by no means follows that he committed a wrong or is under any legal liability for his act. Everything depends on the nature of the representation or statement by which the pressure was exercised. The law cannot regard the act differently because you choose to call it a threat or coercion instead of an intimation or warning.' Allen v Flood [1898] AC 1 at 129, per Lord Herschell. 'A threat is only an intimation by one to another that unless the latter does or does not do something the former will do something which the latter will not like. But it is impossible to say whether such a threat is or is not lawful until if has been ascertained what it is that is threatened to be done. If the threat is to use violence to person or property, it is obviously an intimation that the threatener intends to use unlawful means for the purpose of attaining his end: and no one would doubt that a threat to do that which is unlawful cannot be defended. Where the threat is part and parcel of a conspiracy or unlawful combination, it may be affected by the illegality of the conspiracy or combination. I do not understand the legal basis for contending that is is unlawful for a man to threaten to do merely that which he is entitled to do. The act itself is immune from attack, yet an intimation that it will be done is to be ground of liability. It may be that the idea is due to the belief that the threat is a menace or intimidation, and that it is unlawful, because it puts unlawful pressure upon the person who is subjected to it. If a threat amounts to intimidation or a menace of violence it cannot be defended; but assuming that it does not, the question remains whether it does in fact exercise pressure of an unlawful kind. If a threat amounts to intimidation or a menace of violence it cannot be defended; but assuming that it does not, the question remains whether it does in fact exercise pressure of an unlawful kind. Omitting cases of conspiracy of combination, I venture to doubt whether the pressure of a mere statement that the speaker intends to do something which he is legally entitled to do if the man to whom he is speaking does not adopt a particular course, can be unlawful pressure.' Hodges v Webb [1920] 2 Ch 70 at 89, per Paterson J." (x). Similarly, in "Black's Law Dictionary", the word "promise" has been defined to mean: "The manifestation of an intention to act or refrain from acting in a specified manner, conveyed in such a way that another is justified in understanding that a commitment has been made; a person's assurance that the persons will or will not be something." (xi). In "Stroud's Judicial Dictionary" the word "promise" has been described as an action meaning that: (1)" 'promise' is when, upon a valuable consideration, we bind ourselves by our words to do or perform such an act as is agreed upon and concluded, upon which an action may be grounded; whereas, if be without consideration it is called nadum pactum, ex quo non oritur actio" (Cowel). Cp. Nude Contract.' " (2) Although "promise" usually refers to a future time it may also mean "to assert confidentially, to declare": see Sweeney v. Kennedy, 82 L1. L.R. 294. (xii). In "Words and Phrases Legally Defined 4th Edition", the word "Promise" has been defined to mean as follows:- "A promise is in the nature of a verbal convenant, and wants nothing but the solemnity of writing and sealing to make it absolutely the same. If therefore it be to do any explicit act, it is an express contract, as much as any convenant; and the breach of it is an equal injury. (3 B1 Com 157). " 63. Mr. Rajiv Sharma, the learned A.G.A, while controverting the aforesaid submissions has relied upon the jugement of the Supreme Court as reported in 1997 (3) SCC 721 , K. I. Pavunny Vs. Assistant Collector (Head Quarter), Central Excise Collectorate, Cochin, in support of his submissions, based upon paragraphs 5, 6 and 20 of the aforesaid judgment. " 63. Mr. Rajiv Sharma, the learned A.G.A, while controverting the aforesaid submissions has relied upon the jugement of the Supreme Court as reported in 1997 (3) SCC 721 , K. I. Pavunny Vs. Assistant Collector (Head Quarter), Central Excise Collectorate, Cochin, in support of his submissions, based upon paragraphs 5, 6 and 20 of the aforesaid judgment. The same are quoted herein below:- "5.The primary question, as referred to us for consideration, is: whether the retracted confessional statement, Ex. P-4, by the appellant is inadmissible in evidence under Section 24 of the Evidence Act and what is the scope for its consideration? Since we did not receive any assistance on the question of law, we have independently investigated the case law ourselves and to the extent we could lay our hands, we are dealing with the relevant case law in that behalf. Section 24 of the Evidence Act deals with admissibility of the confession. it reads as under: "24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." 6. A bare reading of the above provision would indicate that for application of Section 24 of the Evidence Art, the following ingredients are required to be established: (a) the statement in question is a confession: (b) such confession has been made by an accused; (c) it has been made to a person in authority; (d) it was obtained by reason of any inducement, threat or promise proceeding from a person in authority; (e) such inducement, threat or promise must have reference to the charge against the accused person; and (f) the inducement, threat or promise must be, in the opinion of the Court is sufficient to give an accused person grounds which would appear to him to be reasonable by supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him." 20. The question then is: whether the retracted confessional statement requires corroboration from any other independent evidence? It is seen that the evidence in this case consists of the confessional statement, the recovery panchnama and the testimony of PWs 2, 3 and 5. It is true that in a trial and proprio vigore in a criminal trial, courts are required to marshal the evidence. It is the duty of the prosecution to prove the case beyond reasonable doubt. The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the IPC it is now well settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh V/s. State of Punjab [ AIR 1952 SC 214 , para 30]. If it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the Court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the Court for ordering conviction. However, rule of prudence and practice does require that the Court seeks corroboration of the retracted confession from other evidence. The confession must be one implicating the accused in the crime. It is not necessary that each fact or circumstance contained in the confession is separately or independently corroborated. It is enough if it receives general corroboration. The burden is not as high as in the case of an approver or an accomplice in which case corroboration is required on material particulars of the prosecution case. Each case would, therefore, require to be examined in the light of the facts and circumstances in which the confession came to be made and whether or not it was voluntary and true. These require to be tested in the light of given set of facts. The high degree of proof and probative value is insisted in capital offences." Relying upon paragraph 6 of the aforesaid judgment Mr. Rajiv Sharma, learned A.G.A. has seriously disputed the submissions of the counsel for the appellants. These require to be tested in the light of given set of facts. The high degree of proof and probative value is insisted in capital offences." Relying upon paragraph 6 of the aforesaid judgment Mr. Rajiv Sharma, learned A.G.A. has seriously disputed the submissions of the counsel for the appellants. According to the learned A.G.A, simply on the basis of the instances culled out of the statement of Dhani Ram as an accomplice, approver and as P.W. 1, it cannot be said that the statement of Dhani Ram is the outcome of the use inducement, threat and promise. According to the learned A.G.A, for discarding the approver statement of Dhani Ram, it is necessary to establish that the instances relied upon by the counsel for the appellants for discarding the statement of the approver are sufficient enough to establish that they are the outcome of the same. To establish the same what is primarily required is that the ingredients necessary for invoking the exclusion on account of the use of threat promise or inducment, the same are to be logically proved. However, the same are conspicuous by there absence in the present case. For invoking the applicability of Section 24 of the Indian Evidence Act, it is necessary to establish the ingredients of threat, promise and inducement, in the light of the facts which are totally lacking in the present case. Learned A.G.A. further submits that a half hearted attempt has been made by the appellants counsel regarding the exclusion of the statement of the accomplice/approver. 64. The law relating to the necessity of having the approver's statement has already been referred to in paragraph 23 of the Judgment. Consequently, the purpose behind the approver's statement need not be repeated. With this legal backdrop the submissions made by the counsel for the appellants, regarding the inadmissibility of the statement of the approver Dhani Ram have to be examined. The statement given by the accomplice Dhani Ram before the S.D.M. has already been discussed in the preceding part of the judgment and it has been held not be a statement under Section 164 Cr.P.C. in the strict legal terms. At the most the said statement of the accomplice Dhani Ram can be said to be an admission. The statement given by the accomplice Dhani Ram before the S.D.M. has already been discussed in the preceding part of the judgment and it has been held not be a statement under Section 164 Cr.P.C. in the strict legal terms. At the most the said statement of the accomplice Dhani Ram can be said to be an admission. The law relating to admission has now been crystallized and it has been held that an admission is not conclusive and the parties can show that it is not true. Therefore, a contradiction drawn from the statement of the accomplice given before the S.D.M. cannot be a ground for ignoring his statement as an approver. The statement given by Dhani Ram as an approver amounts to an admission made by him, it does not fall within the realm of contradiction. The words 'omission and contradiction' are two different words having different meanings. The statement of Dhani Ram as an approver improves upon the statement as a accomplice but it does not in any manner dilute or break the consistency of the manner in which the incident occurred. The categorical recital contained in the statement of the approver Dhani Ram (Ex. Ka. 4) clearly go to show that the aforesaid statement was given by Dhani Ram out of his own free will, as such the same is voluntary. The submission of the counsel for the appellants that the statement of Dhani Ram as an approver is the outcome of Inducement, threat or promise, was strongly opposed by the A.G.A. Mr. Rajiv Sharma to which reference has already been made in the preceding paragraph. The reliance placed upon certain part of the statement of Dhani Ram as an accomplice/approver and as P.W. 1 for the contention that the said statement is the outcome of promise, threat or inducement, cannot be accepted as the instances referred to and relied upon do not satisfy the ingredients necessary to establish that there is existence of Inducement threat or promise in having the statement of the accomplice/approver Dhani Ram. There is no factual foundation laid by the learned counsel for the appellants to bring home the theory that the statement of the accomplice was obtained by resorting to the use of promise threat or inducement. There is no factual foundation laid by the learned counsel for the appellants to bring home the theory that the statement of the accomplice was obtained by resorting to the use of promise threat or inducement. As such there is no occasion for this Court to discard the testimony of Dhani Ram as an accomplice as well as an approver. Consequently, in the aforesaid factual premise, the inescapable conclusion is that the statement of Dhani Ram as an accomplice/approver was not the outcome of any inducement, threat or promise, but the same was voluntary in character and therefore reliable evidence. (e) There are various contradictions in the statement of the accomplice given under sections 164, 306 (iv) (a) Cr. P.C. and as a prosecution witness as such unworthy of credit. 65. In continuation of the challenge to the conviction awarded to the appellants Mr. Rajiv Lochan Shukla, learned counsel for the appellants contended that a perusal of the statement of the accomplice Dhani Ram given before the S.D.M, Banda under Section 164 Cr.P.C, the statement as an approver under Section 306(iv)(a) Cr.P.C. and that given in Court as P.W. 1 would show various contradictions. The most important of such contradiction is the absence of the murder weapon 'Sabbal' in the statement under Section 164 Cr.P.C. The same is a later improvement made in the statement under Section 306(iv)(a) Cr.P.C. which has been recorded after the recovery of murder weapon 'Sabbal'. The narration of facts, which have been stated in the three statements, i.e., statements under Section 164 Cr.P.C, the statement under Section 306(iv)(a) Cr.P.C. and that recorded in the Court as P.W. 1, would show that the same is not inculpatory. The approver has taken care of extricating himself from criminal liability by stating that he was made to participate in the act of criminality committed by the accused persons on gunpoint whereas, he had actually tried to save the deceased but was prevented from doing so. No such country made pistol supposedly used in threatening the approver Dhani Ram has been recovered. 66. To lend support to the aforesaid submission, learned counsel for the appellants placed reliance upon Section 94 I.P.C. and submitted that the approver had concocted the case in the manner to avoid criminal liability. No such country made pistol supposedly used in threatening the approver Dhani Ram has been recovered. 66. To lend support to the aforesaid submission, learned counsel for the appellants placed reliance upon Section 94 I.P.C. and submitted that the approver had concocted the case in the manner to avoid criminal liability. Similarly, reliance was placed upon Section 114 Illustration-B of the Indian Evidence Act that an accomplice is unworthy of credit; unless he is corroborated in material particulars. 67. On the aforesaid factual and legal premise, it was contended that the approver Dhani Ram is unworthy of credit, and his statement is not worth placing reliance upon. 68. Before entering into the merits of the submission of the learned counsel for the appellants, it will be useful to refer to the provisions of Section 94 I.P.C. and Section 114 of the Indian Evidence Act for ready reference:- "94. Exclusion of evidence against application of document to existing facts:-When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts. 114. Court may presume existence of certain facts:- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." 69. To begin with the objective analysis of the submission of the learned counsel for the appellants, it is apparent that the argument of the appellants' counsel is within the circumference of the words namely, 'contradictory', 'inculpatory' and 'extricating'. (i) According to The Law Lexicon 3rd Edition, the word Contradictory means: "Contradict. The meaning given to the word 'contradict' must include the case of an omission in a previous statement which by implication amounts to contradiction. Tahshildar Singh v. State of U.P., AIR 1959 SC 1012 , 1033. [Indian Evidence Act(1 of 1872), S. 145] Contradiction. An omission is not a contradiction unless what is actually said contradicts what is omitted to be said. The test to find out whether an omission is a contradiction or not is to see whether one can point ot any sentence or assertion which is irrecconcilable with the deposition in Court. [Indian Evidence Act(1 of 1872), S. 145] Contradiction. An omission is not a contradiction unless what is actually said contradicts what is omitted to be said. The test to find out whether an omission is a contradiction or not is to see whether one can point ot any sentence or assertion which is irrecconcilable with the deposition in Court. Muninajappa v. State AIR 1958 Mys 138, 139." (ii) According to The Law Lexicon 3rd Edition, the word Inculpatory means: "Incriminatory; accusing." (iii) According to "A New English Dictionary", of Oxford, the word Extricate, extricating means: Extricate:- To disentangle (a person or thing); to disengage, set free from, out of (anything that entangles, a state of confinement, difficult, or entanglement). Extrication:- The action of extricating or disentangling; disentanglement from an involved situation, from difficulty or perplexity. 70. Now with the aid of the meaning of the aforesaid three terms which form the basis of the edifice of the arguments raised by the appellants' counsel, the arguments raised are to be considered. 71. Upon perusal of the statement of the accomplice Dhani Ram recorded before the S.D.M, Banda it is apparent that the accomplice Dhani Ram in his statement before the S.D.M. (Ex. Ka.1) has not used the word 'Sabbal'. The relevant portion of the statement is quoted herein below:- **vkWaxu esa fyok x, vkSj jke vorkj rFkk jkenhu us c`ts'k dks mBkdj iVd fn;k vkSj ekjus yxs eSa cpkus dks nkSM+k rks eq>s reapk yxk fn;k fd cpkvksxs rks rqEgsa Hkh ekj nsaxsA c`ts'k ds eqaWg esa diM+k Hkj fn;kA xyk ?kksV dj vkSj eqag esa diM+k ?kqlsM+ dj ekj M+kyk vkSj ekjus ds ckn ulSuh yxkdj nhokj ds mij ls fiNokM+s Qsad fn;kA** 72. The statement of the accomplice Dhani Ram before the S.D.M. Banda has already been held in the preceding part of this judgment not be a confessional statement in terms of Section 164 Cr.P.C. Therefore, legally there is no contradiction in the statement of the accomplice before the S.D.M., and his statement as an approver. It is true that Dhani Ram in his approver statement recorded under Section 306 (iv)(c) Cr.P.C. has stated the use of the murder weapon 'Sabbal'. The same is explicit from the following part of the statement of Dhani Ram as an approver (Ex. Ka. 4) at page 15 of the paper-book. It is true that Dhani Ram in his approver statement recorded under Section 306 (iv)(c) Cr.P.C. has stated the use of the murder weapon 'Sabbal'. The same is explicit from the following part of the statement of Dhani Ram as an approver (Ex. Ka. 4) at page 15 of the paper-book. **jkevkSrkj o jkenhu us ogkW ij c`ts'k dks mBkdj iVd fn;k vkSj jkevkSrkj us lCoy ls c`tsl ds lj ij okj dj fn;k c`ts'k fpyk;k rks jkenhu us mlds eqag esa diM+s Hkj fn;s vkSj mldk xyk nckus yxsA nksuks vkneh xyk nokus yxs vkSj diM+k Bwlus yxs eSaus cpk;k rks jkevkSrkj us eq>s reapk fn[kkdj /kedk;kA c`ts'k ds ejus ds ckn vkaxu esa ulsuh yxkbZ vkSj ge lcus feydj mldh yk'k dks ihNs Qsad fn;kA** 73. Upon drawing a parallel of the aforesaid two statements of Dhani Ram the issue which calls for determination is:- Whether the recital contained in the statement of Dhani Ram as an approver is contradictory of the statement given before the S.D.M, Banda or is explanatory giving better details. 74. The words 'contradictory', 'explanatory' 'detail' are often used casually even when they connote different meanings. A perusal of the statement of the Dhani Ram as an accomplice, as an approver and as P.W. 1 will clearly show that Dhani Ram has throughout been consistent in his evidence regarding the manner in which criminality was committed upon the body of the accused. This part of the statement Dhani Ram is free of any ambiguity throughout and to that there is no opposition. 75. Dhani Ram in his statement under Section 306 (iv)(a) Cr.P.C. has only detailed the entire event containing material particulars which further remain intact in his statement in chief as well as examination in chief as P.W. 1. Thus the credibility of the evidence of the approver Dhani Ram is not wiped out, on this score. 76. Now coming to the second limb of the argument raised by the appellants' counsel it is pertinent to mention here that the approver's statement of Dhani Ram was recorded on 5.5.1979. However, the recovery of the murder weapon Sabbal was made on 8.4.1979. (Ex. Ka. 6) at the pointing out of the accused Ramdeen, and not the approver Dhani Ram. Thus the credibility of the approver statement of Dhani Ram cannot be doubted on that score also. 77. However, the recovery of the murder weapon Sabbal was made on 8.4.1979. (Ex. Ka. 6) at the pointing out of the accused Ramdeen, and not the approver Dhani Ram. Thus the credibility of the approver statement of Dhani Ram cannot be doubted on that score also. 77. This leads us to the third limb of the argument of the counsel for the appellants that the statement of the aprover is not inculpatory. Having reference to the meaning of the words 'inculpatory' and 'exculpatory', it is to be judged what is the nature of the statement of the approver. Whether the same is inculpatory or expulcatory. There is no dispute regarding the fact that the story unfolded by the accomplice Dhani Ram regarding the manner in which the crime was committed is consistent throughout. The approver has assigned the role of assault and strangulation to the two accused namely, Ram Autar and Ram Deen, who have been charged for the offence under Section 302/34 I.P.c. and secondly for an offence under Section 201 IPC. The other accused persons Rameshwar and Gulab have been commuted under Section 302 IPC read with Section 109 IPC and secondly under Section 202 IPC. The approver in his statement has clearly admitted his participation in the crime insofar it relates to the manner in which the body of the deceased was destroyed by three persons namely, Ram Autar, Ram Deen and Dhani Ram. As such, the statement of the approver Dhani Ram is inculpatory in the present case as he admits his participation in the manner in which the body of the deceased was destroyed with. The non-recovery of the country-made pistol which was the weapon used in threatening the approver will not be fatal in the facts and circumstances of the present case. As already pointed out except for the testimony of the approver, there is no other eye-witness account of the incident in question. The laxity on the part of the investigating officer in in not recovering the country-made gun will not be fatal as it is not a weapon used in the commission of the crime. Both the accused person Ram Autar and Ram Deen in answer to question no. 51 in the statement under Section 313 Cr.P.C. have not explained this. The laxity on the part of the investigating officer in in not recovering the country-made gun will not be fatal as it is not a weapon used in the commission of the crime. Both the accused person Ram Autar and Ram Deen in answer to question no. 51 in the statement under Section 313 Cr.P.C. have not explained this. As such the non recovery of the alleged weapon is no ground to wipe out the credibility of the evidence of the approver. Now coming to the last part of the argument i.e. the effect of Section 94 IPC and Section 114 (d) of the Indian Evidence Act upon the statement of the approver. 78. The aforesaid provisions have been referred to earlier. By the very nature of the Section 94 IPC, it cannot be applied against Dhani Ram who is supposed to have been compelled to participate in the crime on gun point. The section does not lend any support to the argument of the appellants' counsel. Firstly, the case in hand is of murder. Secondly, the same is being relied in aid to wipe out the criminal act of Dhani Ram, whereas Dhani Ram has turned an approver. 79. Regarding the application of Section 114 of the Indian Evidence Act, it is to be seen that the testimony of the approver Dhani Ram is corroborated in material particulars. The test of corroboration required in the case of the approver has already been referred to in para 27 of the judgment. Applying the same there is no iota of doubt much less on the ground canvassed by the appellants' counsel to discard the evidence of the approver. Judged on the touchstone of truthfulness and trustworthiness, the evidence of the approver is not only truthful but also trustworthy. 80. Having held that approver's evidence is credible and reliable, the requirement of law that the statement of the approver must receive sufficient corroboration shall be dealt with in the later part of the judgment. 81. As already discussed in the earlier part of the judgment, the statement of Dhani Ram as an accomplice, as well as an approver has been held to be admissible in evidence. The instances relied upon by the counsel for the appellants for discarding the evidence of the approver Dhani Ram on account of it being contradictory and not being inculpatory, cannot be sustained. The instances relied upon by the counsel for the appellants for discarding the evidence of the approver Dhani Ram on account of it being contradictory and not being inculpatory, cannot be sustained. A perusal of the statement of the accomplice Dhani Ram as well as his statement as an approver will go to show that Dhani Ram has been consistent all through out regarding the manner in which the criminality was conducted in the night of 2/3.3.1979. The Hon'ble Supreme Court has already clarified that even if some minor contradiction in the statement of the approver and his testimony as a witness will not wipe out the credibility or the admissibility of the evidence of the approver. The test laid down by the Apex Court in the case of Sarwan Singh Vs. State of Punjab (Supra) for accepting the approver's evidence has already been referred to. Applying the same, we find that the statement of Dhani Ram as an accomplice/approver as P.W.1 does not suffer from the vice of contradiction. As such the argument raised by the counsel for the appellants for discarding the statement of the approver Dhani Ram being contradictory is wholly misconceived. (f) The corroboration of the statement of the approver has been tried to be explained with extra judicial confession. 82. Mr. Rajiv Lochan Shukla, learned counsel for the appellants further contended that the corroboration of the statement of the approver has been tried to be explained by the prosecution with the extra judicial confessions supposedly made by other four accused persons before P.W. 2- Manni Singh and P.W. 3- Sheo Nandan Singh. The recovery of incriminating article shave been approved by P.W. 5-Chandra Kishore and P.W.9-Rang Lal Pandey (Sub Inspector). Elaborating his arguments, the appellants' counsel submits that P.W.1 in Para-14 clearly states that there was no disclosure or discovery of any fact as provided under Section 27 of the Indian Evidence Act inasmuch as P.W.1 had already informed the police of who had taken which item and where that was kept. The recovery of the ladder is also solely on the pointing of P.W. 1 and not the other accused persons. Thus, the corroboration of the statement of P.W. 1 -Dhani Ram cannot be made affective with the recoveries allegedly made on the pointing out of the other accused persons. 83. The recovery of the ladder is also solely on the pointing of P.W. 1 and not the other accused persons. Thus, the corroboration of the statement of P.W. 1 -Dhani Ram cannot be made affective with the recoveries allegedly made on the pointing out of the other accused persons. 83. Primarily, the learned counsel for the appellants seeks to challenge the corroboration of the statement of the approver from other evidence i.e. on the basis of the extra judicial confession as well as on the basis of the recoveries made by the investigating officer which are materials collected during the course of investigation. (g) The extra judicial confession which is being sought to be proved against the appellants cannot be relied upon. 84. It is contended that the extra judicial confession, which is being sought to be proved against the appellants is similarly tainted and the same can also not be relied upon for the following reasons:- (i) The two witness P.W. 2-Manni Singh and P.W. 3-Sheo Nandan Singh before whom the extrajudicial confessions have been made have clearly narrated different account of extra judicial confession. Reliance in support of the aforesaid contentions was drawn from the statement of P.W.2 Manni Singh, the relevant portion of which is at page-50 of the paper-book. Reliance in support of the aforesaid contentions was drawn from the statement of P.W.2 Manni Singh, the relevant portion of which is at page-50 of the paper-book. The same is quoted herein below:- **fizaLiy Jh pdzikf.k JhokLro ds iq= fozts'k dk dRy gks x;kA mldk dRy gq, djhou 1&1@2 o"kZ gks x,A eqfYteku jkenhu] jkesLoj] jke vkSrkj o xqykc esjs ikl 6 vizSy lu~ 1979 esa x, Fks] ?kj ij] djhcu 9&1@2 cts jkf= esaA ml le; esjs ikl f'ko uUnu flag o lw;Ziky flag tks esjs xako ds gS ekStwn FksA ;g yksx esjh [kkunku ds o iM+kslh gSaA vDlj esjs ;gak mBrs csSBrs FksA bues ls eqfYte jke vkSrkj us dgk fd eSustj lkgsc eS vki ls vdsys es dqN ckr djuk pkgrk gwWA eSus dgk fd lc vius gh yksx gSa tks gks crk nhft,] crkb, D;k ckr gSA pkjks vkneh vkdj esjk iSj Fkke fy;k vkSj dgus yxs fd gels,d cM+h Hkwy gks xbZ gS] ge yksxks us\ fizLiy lkgsc ds yM+ds dk dry dj fn;k gS] ge yksxks dks vki dk Hkjkslk gS ges opkb,A eSus iwNk fd dry D;ksa dj fn;k rks jke vkSrkj us crk;k fd fizaLiy lkgsc ges vDlj eqvRry dj fn;k djrs gSa] xkyh xykSt djrs gS vkSj tokc myVs ryc djrs gSaA ;g Hkh crk;k fd og eq>s Ldwy ls fudky nsus dh /kedh nsrs gSaA ;g Hkh crk;k fd fizLiy lkgsc dk yM+dk tqvk [ksyrk Fkk] mldk eSus,d fnu 100 lkS :i;k thr fy;k Fkk] mlus mls /kedh nsdj] fd vius firk ls dg dj rqEgsa fudyok nWwxk] :i;k eWkxk rks eSus mls okil dj fn;kA fiazLiy lkgsc ds yM+ds cM+s ckcw ls] jke vkSrkj us crk;k] i= tks cM+s ckcw dk Fkk mldks fizLiy lkgsc ds yM+ds us [kksy dj i<+ fy;k Fkk] ds dkj.k >xM+k gks x;k FkkA ge yksx ml fnu ekSdk vPNk le> djds jkr esa fozts'k dks rkl f[kyokrs jgs] dkQh jkr tkus ds ckn eSaus fozts'k ls dgk fd vki ds vakxu es dksbZ VkpZ yxk jgk gSA fozts'k mB dj vakxu dh vksj x;k rks eSa jkenhu o /kuhjke Hkh lkFk&lkFk x,] jkesLoj o nqykj fo|ky; ds vakxu esa fM;wVh Ikj Fks] vkaxu esa igqap dj ge yksxks us fozts'k dks ekjk o iVd fn;k] eWqg es diM+k Bwl fn;k vkSj lOoyks ls ekjkA fozts'k ogh vakxu esa ej x;kA fozts'k dh xyk nckdj] eWqg es diM+k Bwl dj lOoyks ls ekj MkykA ckn esa geus vakxu dh if'peh fnoky esa ulsuh yxk dj fozts'k dh yk'k dks ckgj Qsd fn;kA ge yksxks us fozts'k ds diM+s dksV] iSUV] eksts] o twrs ysdj lkFk es /kuhjke dh njh o pknj ysdj mlh ulsuh ls ihNs dwn x,] ogak ij jkesLoj o xqyko Hkh ihNs dh rjQ ls vk x,A ge yksxks us njh pknj esa fozts'k dh yk'k dks cak/kk vkSj rhuks vkneh] eS jkenhu o /kuhjke] yk'k dks lj ij jD[k dj tequk unh dh vksj ys x,] jkesLoj o xqykc dks fo|ky; dh ns[k ns[k ds fy, NksM+ x, FksA unh ij igqap djds fozts'k dh 'ko dks QlsZ ls dkV dj vyx fd;k vkSj pknj o njh esa cak/k djds yk'k dks unh es cgk fn;kA dksV esa iSUV] eksts o twrs yisV dj mUgs Hkh unh es ogk fn;kA jkr esa gh ogak ls okil vkdj fiNokM+s ls p<+ dj ulsuh ds lgkjs fiazLiy ds DokVZj\ esa mrj x,] ulsuh o lOoy ij rFkk vkSj tgak tgak [kwu Fkk lc dks geyksxks us lkQ fd;kA lkQ djds lOoy o ulsuh dks ;Fkk LFkku j[k fn;k] dejs dk rkyk cUn djds fo|ky; ds vakxu es x,] jkesLoj o xqykc dks dejs dh pkHkh fn;k vkSj muls iwjk fdLlk unh ds fdukjs dk crk dj ge vius ?kj pys x,A lqcg tc cM+s ckcw us geyksxks ls iwNk fd fozts'k dgak gS rks geyksxks us muls ;g crk fn;k fd VV~Vh ds cgkus QkVd [kqyok dj ckgj pyk x;kA jke vkSrkj us ;g Hkh eq>ls crk;k fd fozts'k ds diM+s unh esa fey x;s gSa o /kuh jke us vnkyr esa c;ku ns fn;k gS] vc vkidk gh lgkjk gS vki gesa cpk ldrs gSaA pkgs tks iSlk [kpZ gks vki gesa cpkosaA eSus dgk fd vki us dke rks cgqr cqjk fd;k gS tks dqN enn gks ldsxh eS d:WxkA vxys fnu eSus njksxk th ls] tks esjs ;gak 7 cts 'kke dks x, Fks] fnuakd 7&4&79 dks lc crk fn;k FkkA lc mijksDr ckr crk fn;k FkkA 6&4&79 dks eqfYteku us mijksDr ckr eq>ls crk;k FkkA ** (ii) Similarly referring to the third paragraph of the statement of P.W. 2 at page 59 of the paper-book, it was submitted that as per the statement of P.W. 3. It appears that P.W. 2 states that all the four accused persons fell at his feet and started apologizing and allegedly confessed to the killing of the deceased whereas, P.W. 3 only speaks of Ram Avtar making the said confession and the four accused falling at the feet of P.W. 3. Similarly, the part of extra judicial confession regarding the return to the school, cautioning the co-accused Rameshwar and Gulab for misdirecting whoever asked about the deceased, locking the door and handing over of keys narrated in the statement of P.W. 2 is conspicuously absent in the statement of P.W. 3. It was lastly submitted that even the manner in which the extra judicial confession is being made, the terminology used is strikingly different. (ii) It further transpires from the statement of P.W. 3 that he had disclosed the said fact of the extra judicial confession to his wife and on the next date i.e. 7.4.1979 and till the evening everyone in the village supposedly knew. The concoction by the police of this extrajudicial confession in line with P.W. 2 and P.W. 3 is apparent inasmuch as on 6.4.1979 the police P.W. 9 did meet with P.W. 1 at about 7-7:30 p.m. The extra judicial confession is of 9-9:30 p.m. and the police was not immediately informed. By the time the police is said to have been informed the case on the basis of the statement of P.W. 1 recorded before the S.D.M, Banda and purported to be under Section 164 Cr.P.C had already been registered. Thus, the extra judicial confession appears to be a farce. The conduct of P.W. 1 in not immediately informing the first informant also makes the extra judicial confession suspicious and liable to be disbelieved. It was further stated that from the statement of P.W. 2, it transpires that the extra judicial confession was made in front of Sheo Nandan Singh (P.W. 3) and Surya Pal Singh. However, Surya Pal Singh has not been examined as a prosecution witness. The only conclusion which can be drawn is that had Surya Pal Singh been examined as a witness, he would not have supported the prosecution case. Another aspect, which renders the entire story of extrajudicial confession doubtful is that the police has recorded the statement of the witnesses of the said extrajudicial confession in the house of P.W. 1 himself, which clearly makes the same suspicious. Another aspect, which renders the entire story of extrajudicial confession doubtful is that the police has recorded the statement of the witnesses of the said extrajudicial confession in the house of P.W. 1 himself, which clearly makes the same suspicious. Reliance in this regard was made to the statement of P.W. 2 Manni Singh at page 55 of the paper book. **njksxk th us lwjt iky flag o f'ko uUnu flag dks Hkh 7&4&79 dh 7&1@2 cts 'kke dks esjs ?kj ij gh cqyok;k FkkA bu yksxks us Hkh 6&4&79 dh eqfYteku }kjk ckr dks loZ izFke njksxk th ls gh crk;k vkSj fdlh dks blds iwoZ ugh crk;k FkkA tc eSus njksxk th ls crk;k fd ftl oDr eqyfteku us 6&4&79 dks eq>ls ;g ckrs crk;k Fkk rks ml oDr f'ko uUnu flag o lwjt iky flag ekStwn FksA bu yksxks rks esjh ckr dh rLnhd ds fy, gh mu yksxks dks cqyok;k] buds ogak cqyokus dh nwljh xjt ;k t:jr ugha FkhA ** (h) The recovery of articles and materials used in the commission of crime including the weapon are not according to law and hence the same cannot be relied against the accused persons. 85. It is then contended by learned counsel for the appellants that the recovery of articles during the course of investigation has been made at two stages, firstly, on 6.4.1979 when the supposed materials belonging to the deceased, which were purportedly taken away by the villagers vide Exhibit Ka-49. Secondly, on 8.4.1979 vide Exhibits Ka-5, Ka-6, Ka-7 and Ka-8 supposedly at the pointing out of the accused persons. So far as Exhibit Ka-49 is concerted, the materials so taken in custody by the police and sealed, there is no explanation in the entire prosecution version as to why when such material was available on 26.3.1989 itself, the missing persons report had been lodged and why the same was not handed over on the same day to the police. It seems that the materials were later on procured. Even in the written report dated 26.3.1979, Exhibit Ka-48, a proper description of the materials has not been given and the materials taken into custody by the police on 6.4.1979, which appear to have a slightly vague description, have not been so identified during the time of statements before the Court. It seems that the materials were later on procured. Even in the written report dated 26.3.1979, Exhibit Ka-48, a proper description of the materials has not been given and the materials taken into custody by the police on 6.4.1979, which appear to have a slightly vague description, have not been so identified during the time of statements before the Court. The recovery of the articles, comparison of seals and thereafter marking of material exhibits are highly suspected. The memo of Exhibit Ka-49 has supposedly been witnessed by Vijay Kumar Dwivedi and Surendra Singh who have not been produced as witnesses in the court below. All this makes the recoveries doubtful. 86. Furthermore, the entire process of investigation has been completed within a span of three days, i.e. 6.4.1979 to 8.4.1979. However the charge-sheet has been submitted by the police (even when the statement of the approver had been recorded on 4.5.1979) only on 18.5.1979 which clearly shows the ante-timing and ante-dating of police papers. In support of the said submission, reference was made to the statement of P.W. 9 as contained at pages-101 and 107 of the paper-book: **eqfYte /kuhjke dk c;ku eSus 8&4&79 dks fy;k FkkA mlus tokuh rks og crk;k Fkk fd og ljdkjh xokg cuuk pkgrk gS ysfdu mlds c;ku esa eSaus ;g fy[kk ughA 8&4&79 dks eSus bls vizwoj cukus dh fjiksVZ fn;k FkkA eSaus 18&7&79 dks iwoZ pktZ'khV ugha yxk;kA esjk Mk;jh dk igyk ipkZ,l0ih0 vkfQl esa dc igqapk ugh crk ldrkA lh-th-,e- lkgsc us igyk ipkZ 3-5-79 dks ns[kk FkkA mUgksaus 21-4-79 dks Hkh ns[kk gSA ipkZ ua 6 tks 8-4-79 vkB vizsy lu~ 1979 dk ipkZ gS dks lh-th-,e- lkgsc us 16-5-79 dks ns[kk FkkA 21-4-79 ds igys dksbZ Hkh ipkZ fdlh vf/kdkjh ds }kjk ugh ns[kk x;k gSA 8-4-79 dks Fkkus esa okilh ntZ djk;k FkkA th-Mh- esa okilh dh fjiksVZ esa fdu fdu xokgks dk c;ku fy;k ugha uksV djok;k FkkA buesa ls gj ipsZ ij flvks lkgsc dh nLr[kr gS ysfdu muds fdlh Hkh nLr[kr ij rkjh[k ugha iM+h gSA^^ 87. It was lastly urged that the recovery of Pharsa (a sharp edged weapon) from Ram Autar which is the weapon alleged to have been used to cut-off the head from the dead-body of the deceased is also false and suspicious for the following reasons:- (i) P.W. 1 had already disclosed the fact of who had taken which article and kept it where. (ii) Statement of P.W. 4 Chunubad Sing indicates that material exhibit-6 was kept in a locked Kothari. However, the lock and key of the said Kothari have not been seized by the police and there is no memo to that effect. (iii) P.W. 9 has not stated about any such lock and has, on the contrary, stated that the shaft of the Farsa was broken into pieces and sealed whereas the description of the articles seized vide Exhibit Ka-5 clearly does not match this statement. It has also come in evidence that the said Kothari was not inspected by the police to find out whether the same was in exclusive possession of the appellants and not his other family members and also whether any material was kept in the said Kothari. (iv) Recovery of Sabbal, material Exhibit-15, from the supposed Kothari said to be in possession of the accused Ram Deen is also similarly suspected as a blood-stained murder weapon, which has been wiped down by a white cloth is being recovered after more than a month. By no stretch of imagination, it can be presumed that a blood-stained murder weapon would be kept in a general Kothari without any attempt of concealment. It is also further relevant to point out here that the said Sabbal and its use is absent from in the statement of the accomplice Dhani Ram recorded on 31.3.1979 before the Sub Divisional Magistrate and purported to be under Section 164 Cr.P.C. (v) None of the locks, i.e. the lock on the Kothari of Ram Autar and the lock supposedly broke open by accused at the instruction of P.W.6 (the keys of which have supposedly been recovered on the pointing out of Rameshwar and Gulab, Exhibit Ka-7) have been sealed or memos with regard to the same prepared. This clearly shows that the entire recovery is false. This clearly shows that the entire recovery is false. (vi) Section 27 of the Indian Evidence Act only makes admissible new facts discovered from the voluntary statement of the accused in police custody and only that part of the information which leads to the discovery of this new fact is admissible in evidence. As has been stated above once Dhani Ram, the approver, had already stated regarding material being taken away by specific accused persons and where the same had been kept then, it is clear that no information as required under Section 27 of the Evidence Act nor the recovery so made can be made admissible against the appellants. (vii) It has also come in the statement of P.W. 4 Chunnubad Singh that when he reached the school, the five accused persons including the approver had already been arrested and were in handcuffs. At this stage reference was made to pages-62 and 63 of the paper-book. Thereafter the recoveries individually were affected by taking the accused separately to different places from where the said recoveries have been made. However, a perusal of statement of P.W. 9 would indicate that the accused persons Ram Autar, Ram Deen, Rameshwar and Gulab had been arrested on the banks of Yamuna river at 'Gajai Ghat' at about 8:30 a.m. The Accused Dhani Rqam was arrested at 10:50 am. Thereafter they were supposedly taken for recovery, which does not show the presence of the accused persons. It appears that coercion/threat has been used by the apolice and the materials have been planted as they were kept in confinement in handcuffs and that too not at the Police Station, but at the school where P.W. 6 is the Principal, who was in-charge and the accused persons had been charged with the killing of his son. 88. Point Nos. E, F and G are interconnected as well as interlinked. As such, the same are being dealt with together. 89. The sum total of the submission of the appellants' counsel on the aforesaid three points is to the following effect: (a) The corroboration of the statement of the approver has been sought to be made with the extra judicial confession and the recovery of the weapons used in the commission of the crime and other materials. 89. The sum total of the submission of the appellants' counsel on the aforesaid three points is to the following effect: (a) The corroboration of the statement of the approver has been sought to be made with the extra judicial confession and the recovery of the weapons used in the commission of the crime and other materials. (b) The extra judicial confession sought to be explained against the appellants and from which corroboration of the approver's statement is sought to be made, cannot be relied upon. Therefore, there is no corroboration of the statement of the approver from the confession so made. (c) The recovery of the weapons used in the commission of the crime as well as of the articles and materials used in the commission of the crime are not according to law and hence, the same cannnot be relied upon. (d) As the corroboration of the statement of the approver is sought to be made from such material which cannot be relied upon or are contrary to law. There is no corroboration of the statement of the approver. 90. Before proceeding to consider the aforesaid issues, it would be necessary to have the meaning of the term 'corroboration' and its relevance in criminal jurisprudence. (i). The word "Corroboration" has been defined in The Law Lexicon Dictionary to mean :- "Corroborate. To support; to confirm; to concur in testimony. To strengther; to give support to give; additional strength; to make more certain; to add weight or credibility to a thing. See 141C 896 (902): 13 CrLJ 352:12 MLT 1. Corroboration. The act of corroborating or strenghtening or confirming; addition of strength; confirmation. As a general rule evidence of an accomplice is not acted upon by Courts without corroboration in material particulars. 'COROBORATION' is nothing other than evidence which 'confirms' or 'supports' or 'strengthens' other evidence. It is, in short, evidence which renders other evidence more probable. Director of Public Prosecutions v. Kilbourne, (1973) I AII ER 440, 460 (HL). The corroboratie evidence need not relate to the particular incident or incidents spoken to by the suspect witness. It was merely independent testimony which confirmed in some material particular not only the evidence that a crime had been committed but also that the defendant had committed it. R.v. Beck, (1982) 1 ALL ER 807, 815. Corroborative evidence. Evidence which concurs with another evidence. [S.8, ill. It was merely independent testimony which confirmed in some material particular not only the evidence that a crime had been committed but also that the defendant had committed it. R.v. Beck, (1982) 1 ALL ER 807, 815. Corroborative evidence. Evidence which concurs with another evidence. [S.8, ill. (j), Indian Evidence Act (1 of 1872)]." (ii) In "Stroud's Judicial Dictionary", the word "Corroboration" has been defined as follows: "CORROBORATE; CORROBORATION. (1) "Corroborated in some material particular" (Bastardy Laws Amendment Act 1872 (c. 65), S.4; Affiliation Proceedings Act 1957 (c. 55), s.4(2) where these words are repeated). In an application in bastardy the evidence of the mother is so corroborated if, by other evidence than hers, it is proved that the putative father was silent when taxed with the parternity, or said that rather than pay he would go to America (R.v. Piercey, 18 L.T.O.S. 238), or if it is so proved that there had been acts of familiarity even though long antecedent, and having no direct relation to the actual begetting of the child (Cole v. Manning, 2 Q.B.D. 611), or that admissions had been made or money paid for the child by the putative father (R.v. Berry, 23 J.P. 81, 86). But the corroborative evidence must have some relation to the putative father or to the probability of his being the father (per Alverstone C.J., Reffell v. Morton, 70 J.P. 347); e.g. if the woman, being a guest at the alleged father's house, changes her bedroom to a room next to the man's bedroom, that is no corroborative evidence unless it be proved that the change was at the man's request. See M Kinven v. M Millian, 29 S.L.R. 308; Harvey v. Anning, 87 L.T. 687; Thomas v. Jones [1921] 1 K.B. 22; Marsh v. Daley [1914] 3 K.B. 1226; R.v. Lincolnshire Justices, 95 L.J. K.B. 827. (2) Child's evidence to be corroborated by "some other material evidence" (Prevention of Cruelty of Children Act 1894 (c.41), s. 15- see Children and Young persons Act 1933 (c.12), s. 38 (1)). Unsworn testimony of a child cannot by itself constitute corroboration: R.v. Manser, 25 Cr. App. r. 18. (3) It was no corroboration, under Criminal Law Amendment Act 1885 (c. 60), s. 4 for a man accused thereunder to refuse to be examined by a doctor (R.v Gray, 68 J.P. 327). Cp. Unsworn testimony of a child cannot by itself constitute corroboration: R.v. Manser, 25 Cr. App. r. 18. (3) It was no corroboration, under Criminal Law Amendment Act 1885 (c. 60), s. 4 for a man accused thereunder to refuse to be examined by a doctor (R.v Gray, 68 J.P. 327). Cp. Re Betts, 19 Q.B.D. 39, and Re Garnett, 55 L.J. Q.B. 77, cited Conduct; Niddrie Coal Co. v. M. Kay, 40 S.L.R. 798 and cognagte cases, cited Review, Silence on the part of a person who was taxed with being guilty of a criminal offence, was some evidence of corroboration; it might be sufficient, e.g. when a father accused a person of giving his daughter something to procure abortion and the person remained silent (R.v. Cramp, 14 Cox C.C. 393; but see R.v. Whitehead, 98 L.J.K.B 67); but a formal charge by a policeman demands no instant reply, and silence then on the accused's part was not a sufficient corroboration of the evidence of an accomplice (R.v. Tate [1908] 2 K.B. 680). See also, as to the corroboration of an accomplice's evidence, R.v. Bennett, 1 Cr. App. R. 64;R.v. Jacobs, ibid 215; R.v. Everst, 73 J.P. 269; R.v. Warren, 73 J.P. 359; R.v. Kams, 4 Cr. App. R. 8; R. v. Beauchamp, 73 J.P. 223; R.v. Baskerville [1916] 2 K.B. 658; R.v. Bryant, 13 Cr. App. R. 49; Re Meunier [1894] 2 Q.B. 415; R.v. Norris, 12 Cr. App. R. 156; R.v. Mellins, 3 Cox 526; R.v. Feigenbaum [1919] 1 K.B. 432. "The evidence of one accomplice is not corroborative of the evidence of another" (per Lord Macdermott in Tumahole Berreng v. R. [1949] A.C. 253, see also R.v. Rudd, 64 T.L.R. 240). Cp. Material Evidence; see also Sthatham v. Statham [1929] P. 131. (4) An insufficiently strenuous denial of guilt does not constitute greater corroboration than no denial (R.v Kelling, 58 T.L.R. 205). (5) A person might not be convicted of driving at an excessive speed under the Road Traffic Act 1930 (c.43), s. 10(3) on the uncorroborated opinion of a single witness. A speedometer might be sufficient corroboration (Russell v. Beesley [1937] 1 All E.R. 527; Nicholas v. Penny [1950] 2 K.B. 446). (6) The word "corroboration," in the context of charges for indecent assault, has no special technical meaning, and by itself means no more than evidence tending to confirm other evidence. A speedometer might be sufficient corroboration (Russell v. Beesley [1937] 1 All E.R. 527; Nicholas v. Penny [1950] 2 K.B. 446). (6) The word "corroboration," in the context of charges for indecent assault, has no special technical meaning, and by itself means no more than evidence tending to confirm other evidence. No distinction should, therefore, be drawn between coroborative evidence and evidence which might help the jury to determine the truth of the matter (D.P.P.v. Kilbourne [1973] A.C. 729). Mere rejection of a defendant's evidence is not corroboration of the otherwise uncorroborated evidence against him (R.v Chapman [1973]1 Q.B. 774). (7) Corroborative evidence is testimony which confirms in some material particular not only the evidence that a crime has been committed but also that the defendant had committed it (R.v. Beck [1982] 1 All E.R. 807). Promise of marriage to be corroborate;see Material Evidence. Cp. "Essential particular."under Essential." (iii) In "Words and Phrases Legally Defined 4th Edition" the word "Corroboration" has been defined to mean:- "Evidence which is admissible, relevant to the evidence requiring corroboration and (if believed) confirmatory of that evidence in a material particular, is capable of being corroborative and, when believed, is corroboration. The word 'corroboration' is not a technical terms of art; it means by itself no more than evidence tending to confirm, support or strengthen other evidence. (11(2) Halsbury's Laws of England (4th Edn) (2006 Reissue) para 1141) 'There is, I apprehend, a great difference between evidence of probability and evidence corroborative of a fact... Evidence proving the probability of any transaction, but no going to the transaction or act itself, is not corroborative evidence in the sense in which I must use the term.... Where there is no rule as to the number of witnesses required, evidence as to probability may have great weight and be justly considered in forming a conclusion; but when two witnesses are required by law, either together to one overt act, or separately to two overt acts, I conceive that evidence to mere probability, not applying to the act, cannot be received as corroborative. I think so for this reason, that, unless this distinction be adhered to, the rule of two witnessed must vanish into air, for there scarcely ever was a case in which some circumstance, in some degree tending to prove probability, might not be found.' Simmons v. Simmons (1847) 1 Rob Eccl 566 at 572-573, 575, per Dr. Lushington 'Corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed the crime is true, no merely that the crime has been committed, but that it was committed by the accused.' R v Baskervlle [1916] 2 KB 658 as 667, CCA, per cur' 'The word "corroboration" in itself has not special legal meaning; it is connected with Latin word robur and the English word "robust" and it means "strengthen": perhaps the best synonym is "support". Director of Public Prosecutions v Hester [1972] 3 All ER 1056 at 1070, HL, per Lord Pearson' 'Corroboration can only be afforded to or by a witness who is otherwise to be believed. If a witness's testimony falls of its own inanition the question of his needing, or being capable of giving, corroboration does not arise.' Director of Public Prosecutions v. Kilbourne [1973] 1 All ER 440 at 452, per Lord Hailsham of St. Marylebone LC' 'There is, without doubt, some confusion in the authorities as to the extent to which lies may in some circumstances proved corroboration and it was this confusion which probably and understandably led the judge astray in the present case. In our judgment the position is as follows. Statements made out of court, for example statement to the police, which are pro0ved or admitted to be fasle may in certain circumstances amount to corroboration.... To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be realization of guilt and a fear of the truth. The jury should in appropriate cases be remind that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shamr or out of a wish to conceal disgraceful behaviour from their family. Thirdly the motive for the lie must be realization of guilt and a fear of the truth. The jury should in appropriate cases be remind that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shamr or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence [1981] 2 All ER 1008 at 1011, CA per cur' 'The leading case on the subject of corroboration remains R v Baskervile [supra] in which Lord Reading CJ said that it must be "independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him- that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it." The other case to which reference must be made is R v Mullins [(1848) 3 Cox CC 526] in which it was said (by Maule J summing up to the jury), in our judgment correctly, the corroboration does not mean that there should be independent evidence of that which the accomplice relate, otherwise his testimony would be unnecessary, as it would merely be confirmatory of other independent testimony. These principles are endorsed by the textbooks' R v Back [1982] 1 All ER 807 at 815, per cur Australia 'Corroboration does not mean merely evidence which supports evidence of a complainant. It must also support that evidence in a material particular, and it must be evidence which itself implicates the accused-that is shows or tends to show guilt of the offence charged.' R v Witham [1962] Qd R 49 at 53, per Hanger J." 91. In order to appreciate the contention advanced by learned counsel for the appellants, it is necessary to refer to paragraphs 33 and 34 of the judgment of Apex Court reported in AIR 2000 SC 3352 (Narayan Chetanram Chaudhary and another V. State of Maharashrta) which deals with the manner in which corroboration of the statement of an approver is required:- 33. The evidence of the Approver must, however, be shown to be of a reliable witness. 34. The evidence of the Approver must, however, be shown to be of a reliable witness. 34. In Jnanendra nath Ghose vs. The State of West Bengal [ 1960(1) SCR 126 ] this Court observed that there should be corroboration in material particulars of the Approver's statement, as he is considered as a self- confessed traitor. This Court in Bhiva Doulu Patil v. State of Maharashtra [ AIR 1963 SC 599 ] held that the combined effect of Section 133 and 114 illustration (b) of the Evidence Act was that an accomplice is competent to give evidence but it would be unsafe to convict the accused upon his testimony alone. Though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal, yet the courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. In this regard the court in Bhiv Doulu Patil's case observed (para 6 and 7): "In coming to the above conclusion we have not been unmindful of the provisions of S.133 of the Evidence Act which reads: S. 133 "An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice". It cannot be doubted that under that section a conviction based merely on the uncorroborated testimony of an accomplice may not be illegal, the courts nevertheless cannot lose sight of the rule of prudence and practice which in the words of Martin B. in R v. Boyes, (1861) 9 Cox CC 32 "has become so hallowed as to be deserving of respect" and the words of Lord Abinger "it deserves to have all the reverence of the law". This rule of guidance is to be found in illustration (b) to S.114 of the Evidence Act which is as follows: "The court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars." Both sections are part of one subject and have to be considered together. This rule of guidance is to be found in illustration (b) to S.114 of the Evidence Act which is as follows: "The court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars." Both sections are part of one subject and have to be considered together. The Privy Council in Bhuboni Sahu v. The King, 76 Ind App 147; ( AIR 1949 PC 257 ) when its attention was drawn to the judgment of Madras High Court in In re Rajagopal ILR (1994) Mad 308: (AIR 1944 Mad 117) where conviction was based upon the evidence of an accomplice supported by the statement of a co-accused, said as follows: "Their Lordships......... would nevertheless observe that Courts should be slow to depart from the rule of prudence, based on long experience, which requires some independent evidence implicating the particular accused. The danger of acting upon accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue." The combined effect of Ss.133 and 114, illustration (b) may be stated as follows: According to the former, which is a rule of law, an accomplice is competent to give evidence and according to the latter which is a rule of practice it is almost always unsafe to convict upon his testimony alone. Therefore though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal yet the courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. The law may be stated in the words of Lord Reading C.J. in R. v. Baskerville 1916-2 KB 658 as follows: "There is no doubt that the uncorroborated evidence of an accomplice is admissible in law (R. v. James Atwood, (1787) 1 Leach 464). The law may be stated in the words of Lord Reading C.J. in R. v. Baskerville 1916-2 KB 658 as follows: "There is no doubt that the uncorroborated evidence of an accomplice is admissible in law (R. v. James Atwood, (1787) 1 Leach 464). But it has been long a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice, and in the discretion of the Judge, to advise them not to convict upon such evidence, but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence (R. v. Stubbs, (1855) Dears CC 555; in re, Meunier, 1894-2 Q.B. 415)." Again in Dagdi & Ors. v. State of Maharashta [ 1977 (3) SCC 68 ] ( AIR 1977 SC 1579 ): 1977 Cri LJ 1206) this Court declared (paras 21 to 25 of AIR, Cri LJ): "There is no antithesis between Section 133 and illustration(b) to Section 114 of the Evidence Act, because the illustration only says that the Court 'may' presume a certain state of affairs. It does not seek to raise a conclusive and irrebuttable presumption. Reading the two together the position which emerges is that though an accomplice is a competent witness and though a conviction may lawfully rest upon his uncorroborated testimony, yet the Court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate the particular accused in the commission of the crime. It is hazardous, as a matter of prudence, to proceed upon the evidence of a self-confessed criminal, who, in so far as an approver is concerned, has to testify in terms of the pardon tendered to him. The risk involved in convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law was felt to be a matter of prudence has been elevated by judicial experience into a requirement or rule of law. The risk involved in convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law was felt to be a matter of prudence has been elevated by judicial experience into a requirement or rule of law. All the same, it is necessary to understand that what has hardened into a rule of law is not that the conviction is illegal if it proceeds upon the uncorroborated testimony of an accomplice but that the rule of corroboration must be present to the mind of the Judge and that corroboration may be dispensed with only if the peculiar circumstances of a case make if safe to dispense with it. In King v. Baskerville (1916 2 KB 658), the accused was convicted for committing gross acts of indecency with two boys who were treated as accomplices since they were freely consenting parties. Dealing with their evidence Lord Reading, the Lord Chief Justice of England, observed that though there was no doubt that the uncorroborated evidence of an accomplice was admissible in law it was for a long time a rule of practice at common law for the Judge to warn the Jury of the danger of convicting a person on the uncorroborated testimony of an accomplice. Therefore, though the Judge was entitled to point out to the Jury that it was within their legal province to convict upon the unconfirmed evidence of an accomplice, the rule of practice had become virtually equivalent to a rule of law and therefore in the absence of a proper warning by the Judge the conviction could not be permitted to stand. If after being properly cautioned by the Judge the Jury nevertheless convicted the prisoner, the Court would not quash the conviction merely upon the ground that the accomplice's testimony was uncorroborated. In Rameshwar v. State of Rajashthan ( 1952 SCR 377 ): ( AIR 1952 SC 54 :1952 Cri LJ 547), this Court observed that the branch of law relating to accomplice evidence was the same in India as in England and that it was difficult to better the lucid exposition of it given in Baskerville's case by the Lord Chief Justice of England. The only clarification made by this Court was that in cases tried by a Judge without the aid of a Jury it was necessary that the Judge should give some indication in his judgment that he had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considered it safe to convict without corroboration in the particular case. In Bhuboni Sahu V. The king, 76 Ind App 147: ( AIR 1949 PC 257 :1949 (50) Cri LJ 872, the Privy Council after noticing Section 133 and illustration (b) to Section 114 of the Evidence Act observed that whilst it is not illegal to act on the uncorroborated evidence of an accomplice, it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act on the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused; and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice. The rule of prudence was based on the interpretation of the phrase "corroborated in material particulars" in illustration (b). Delivering the judgment of the Judicial Committee, Sir John Beaumont observed that the danger of acting on accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence and the story may be true in all its details as to eight of them but untrue as to the other two whose names may have been introduced because they are enemies of the approver. The only real safeguard therefore against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates each accused. The only real safeguard therefore against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in some measure implicates each accused. This Court has in a series of cases expressed the same view as regards accomplice evidence. (See State of Bihar v. Basawan Singh, 1959 SCR 195 :( AIR 1958 SC 500 : 1958 Cri LJ 976); Hari Charan Kurmi v. State of Bihar (1964) 6 SCR 623 ):( AIR 1964 SC 1184 : 1964 (2) Cri LJ 344); Haroon Haji Abdulla v. State of Maharashra ( 1968 2 SCR 641 ): ( AIR 1968 SC 832 : 1968 Cri LJ 1017); and Ravinder Singh v. State of Haryana ( 1975 3 SCR 453 ) :( AIR 1975 SC 856 : 1975 Cri LJ 765). In Haricharan Gajendragadkar, C.J., speaking for a five-Judge Bench observed that the testimony of an accomplice is evidence under Section 3 of the Evidence Act and has to be dealt with as such. The evidence is of a tainted character and as such is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the requirement which has now become virtually a part of the law that it is corroborated in material particulars." To the same effect is the judgment in Balwant Kaur v. Unior Terriotory, Chandigarh [ 1988(1) SCC 1 ]:( AIR 1988 SC 139 : 1988 Cri LJ 398). 92. With regard to the manner by which extra judicial confession can be relied upon, reference is made to the judgment of the Apex Court in the Case of State of U.P. Vs. M.K. Anthony as reported in AIR 1985 SC 48 . Paragraph 15 of the aforessaid judgment is relevant for the issue in hand. The same is reproduced herein below:- "15. 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. See Jagta v. State of Haryana and State of Punjab v. Bhajan Singh and Ors. 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. See Jagta v. State of Haryana and State of Punjab v. Bhajan Singh and Ors. In Sahoo v. State of U.P., it was held that 'an extra-judicial confession may be an expression of conflict of emotion, a conscious effort to stifle the pricked conscience; an argument to find excuse or justification for his act; or a penitent or remorseful act of exaggeration of his part in the crime.' Before evidence in this behalf is accepted, it must be established by cogent evidence what were the exact words used by the accused. The Court proceeded to state that even if so much was established, prudence and justice demand that such evidence cannot be made the sole ground of conviction. It may be used only as a corroborative piece of evidence. In that case, the evidence was that after the commission of murder the accused was heard muttering to himself that he has finished the deceased. The High Court did not interfere with the conviction observing that the evidence of extra-judicial confession is corroborated by circumstantial evidence. However, in Pyrara Singh v. State of Punjab (1978) 1 SCR 661, this Court observed that the law does not require that evidence of an extra-judicial confession should in all cases be corroborated. It thus appears that extra-judicial confession appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. It thus appears that extra-judicial confession appears to have been treated as a weak piece of evidence but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about extra-judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is 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 convey that the accused is the perpetrator of the 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 of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trust-worthy and beyond reproach the same can be relied upon and a conviction can be founded thereon." 93. In the case of State of Punjab Vs. Gurdeep Singh as reported in AIR 1999 SC 3724 , wherein challenge was made to the judgment of High Court acquitting the appellants therein for lack of probative value of an extra judicial confession, the Apex Court held as follows in paragraphs 3, 4, 5, 6, 7, 8 and 9, which are quoted herein below: "3. Confession in common acceptation means and implies acknowledgment of guilts evidentiary value and its acceptability however shall have to be assessed by the court having due regard to the credibility of the witnesses. In the event however, the court is otherwise in a position having due regard to the attending circumstances believes the witness before whom the confession is made and is otherwise satisfied that the confession is in fact voluntary and without there being any doubt in regard thereto, an order of conviction can be founded on such evidence. 4. The observations of this Court in the case of State of Uttar Pradesh v. M.K. Anthony MANU/SC/0123/1984: 1985 CriLJ 493 seems to be rather apposite in this context. 5. 4. The observations of this Court in the case of State of Uttar Pradesh v. M.K. Anthony MANU/SC/0123/1984: 1985 CriLJ 493 seems to be rather apposite in this context. 5. In paragraph 15 of the Report, this Court observed as below: 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 confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is 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 convey that the accused is the perpetrator of the 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 be the basis of a conviction. In such a situation, to go in search of corroboration 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 a conviction can be founded thereon. 6. Incidentally, this Court in the case of Narayan Singh v. State of M.P., MANU/SC/0086/1985 : 1985 CriLJ 1862 expressly observed that it is not open to any court to start with a presumption that an extra-judicial confession is a weak type of evidence. In paragraph 7 of the Report this Court observed: Apart from this there is the evidence of PWs 5 and 9 who state on oath that one of the accused admitted before them that he had murdered the deceased. The learned Sessions Judge has brushed aside their evidence by presuming that their statements constituting an extra-judicial confession is a very weak type of evidence. This is a wrong view of the law. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. The learned Sessions Judge has brushed aside their evidence by presuming that their statements constituting an extra-judicial confession is a very weak type of evidence. This is a wrong view of the law. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. In the instant case, after perusing the evidence of PWs 5 and 9 we are unable to find anything which could lead to the conclusion that these independent witnesses were not telling the truth. The evidence of these two witnesses (PWs 5 and 9) which lends support to the evidence of PW 11 was sufficient to warrant the conviction of the accused. The Sessions Judge has committed a grave error of law in analysing and appreciating the evidence of PWs 5 and 9 and brushing them aside on untenable grounds. 7. In Baldev Raj v. State of Haryana, MANU/SC/0010/1991 : 1990 CriLJ 2643 this Court further stated the law as below (Para 9): 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, we find that the confession has been properly accepted and acted upon by the courts below and there is no scope for any doubt regarding the complicity of the appellant in the crime. The confession of the appellant was voluntary. Keeping these principles in mind, we find that the confession has been properly accepted and acted upon by the courts below and there is no scope for any doubt regarding the complicity of the appellant in the crime. The confession of the appellant was voluntary. The testimony of PW 4 and PW 5 being responsible persons could not be doubted in the absence of any material to show that they had been motivated 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. We are, therefore, unable to find any infirmity in the confession which has been accepted and relied upon by the courts below. 8. While it is true that in Narayan Singh's case MANU/SC/0086/1985 : 1985 Cri LJ 1862 (supra)this Court expressly observed that it is not open to any court to start with a presumption that an extra-judicial confession is a weak type of evidence, a later decision of this Court in Kavita v. State of Tamilnadu MANU/SC/0436/1998:1998 CriLJ 3624 stated that in the very nature of things it is a weak piece of evidence. In para 4 of the Report this Court in Kavita case (supra) observed: 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. It is to be proved just like any other fact and the value thereof depends upon the veracity of 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 of the evidence having regard to the credibility of the witnesses. 9. 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 of the evidence having regard to the credibility of the witnesses. 9. Apparently there may seem to be some expression of divergence but on the totality of the situation, question of there being any difference of expression of opinion does not arise, since Kavita's case(supra) in no uncertain terms laid down that the evidentiary value of the extra-judicial confession depends upon the veracity of the witnesses to whom it is made and it is for the court to decide on the acceptability of the evidence having regard to the credibility of the witnesses." 94. Thus the proposition of law which emerges out of the aforesaid is that the evidently value of extra judicial confession depends upon the veracity of the witnesses to whom it is made. Secondly, it is for the Court to decide on the acceptability of the evidence having regard to the credibility of the witnesses. 95. Coming to the veracity of the witnesses before whom the extra judicial confession was made i.e. P.W. 2 Manni Singh and P.W.3 Sheo Nandan Singh the same has not been challenged before us. Therefore, the factum regarding the making of the extra judicial confession before the aforesaid two person has to be taken on its face value and the same cannot be negated on the ground that the extra judicial confession could not have been made before the aforesaid two persons. Coming to the second part of the test regarding the acceptability of the evidence in the light of the credibility of the witnesses, suffice to mention here that the factum of the extra judicial confession has not been denied by the counsel for the appellants. What has been disputed before us is the doubtful character of the extra judicial confession made by the accused persons before P.W. 2 and P.W. 3 on account of minor discrepancies in the version of the extra judicial confession made by them as a witness in the Court. This by itself is not a ground to discard the testimony of P.W. 2 and P.W. 3 before whom the extra judicial confession was made. This by itself is not a ground to discard the testimony of P.W. 2 and P.W. 3 before whom the extra judicial confession was made. Thus, the statement of the approver Dhani Ram stands corroborated from the extra judicial confession made by the accused persons before P.W. 2 and P.W. 3. 96. This brings us to the second question relating to the recovery of the weapons used in the commission of the crime as well as other materials used in the commission of the crime. Admittedly, all the recoveries were made by the Investigating Officer Rang Lal Pandey (P.W.9) who gave his statement in chief as well as examination in chief before the Court below. Upon careful examination of the statement of the Sub Inspector Rang Lal Pandey, no such suggestion as canvassed before this court appears to have been made. All the recovery of the weapons used in the crime have been made on the pointing out of the accused persons themselves. Thus the submissions made by the counsel for the appellants, in support of his challenge, regarding the doubtful character of the recoveries of the weapon used in the commission of crime as well as other materials, are without any substance. Further the recovery of the murder weapons as well as other materials have duly been marked as Exhibits which lend credence to their evidentiary value. 97. From the discussions made above, the statement of the approver Dhani Ram also stands fully corroborated with the weapons used in the commission of the crime and other materials. (I) All the witnesses of the facts are interested witnesses. 98. It is lastly contended by learned counsel for the appellants that it is a specific defence case that the Principal and the Manager of the inter college (P.W.2) have been extorting money out of the salary of the accused persons and the appellants had made complaint against them, which has led to their false implication in the present case. The veracity of this submission has already been dealt in the earlier part of this judgment and the same has been repelled for reasons already given. Consequently, the said submission is not required to be dealt with again. It was then urged that all the witnesses of fact are related witnesses inasmuch as P.W. 2 Manni Singh is the Manager of the inter college whereas P.W. 6 Chakrapani Srivastava is the Principal. Consequently, the said submission is not required to be dealt with again. It was then urged that all the witnesses of fact are related witnesses inasmuch as P.W. 2 Manni Singh is the Manager of the inter college whereas P.W. 6 Chakrapani Srivastava is the Principal. A perusal of the statement of P.W. 2 Manni Singh will go to show that P.W. 2 in his statement before the court below has clearly stated that he was the manager of the Intermediate College from 1965 to 1976. The relevant portion of the statement of P.W. 2 containing the above is extracted herein below:- **esjs xkWo esa iafMr tokgj yky usg: v[k.M bUVj dkyst gSA bl Ldwy esa 12goh d{kk rd i<+kbZ gksrh gSA eSa bl laLFkk dk lu~ 1965 ls lu~ 1976 rd eSustj FkkA Jh pdzikf.k JhokLro tks bl dkyst ds fizLiy lu~ 1966 ls gS fd fu;qfDr esjs gh tekus esa lu~ 1966 bZ0 esa gqbZ FkhA** 99. The incident has occurred in the year 1979 i.e. two years after the P.W.2 relinquished the post of Manager of the Intermediate College. Thus the submission of the counsel for the appellants that P.W.2 Manni Singh is related to P.W. 6. on account of the relationship of Manager and Principal of the Intermediate College is factually incorrect. Extending the aforesaid submission reference was made to the fact that P.W. 3 Sheo Nandan Singh is clearly under the P.W. 2 Manni Singh as is evident from his statement. Elaborating the same it was further contended that the statement of P.W. 3 under Section 161 Cr.P.C. was recorded at the house of P.W. 2 Manni Singh. There is also absence of specific details in the statement of P.W. 3 under Section 161 Cr.P.C. to which he has deposed in Court. A perusal of the statement of P.W. 3 as a whole does not lead to the inference as suggested by the counsel for the appellants. Upon perusal of the statement of P.W. 3 Sheo Nandan Singh no such inference can be drawn as suggested by the appellants' counsel. The place of recording of the statement of P.W. 3 is wholly immaterial. Admittedly, the appellants had an opportunity to cross-examine P.W. 3 and they could have specifically cross-examine P.W. 3 regarding the absence of the alleged details in the statements under Section 161 Cr.P.C. by drawing a parallel between the two statements. The place of recording of the statement of P.W. 3 is wholly immaterial. Admittedly, the appellants had an opportunity to cross-examine P.W. 3 and they could have specifically cross-examine P.W. 3 regarding the absence of the alleged details in the statements under Section 161 Cr.P.C. by drawing a parallel between the two statements. But no such exercise appears to have been undertaken in the cross-examination. Even during the hearing of the present appeal, no attempt was made by specifically pointing out the details absent in the statement of P.W. 3 recorded under Section 161 Cr.P.C, for discarding the evidence of P.W. 3 on that score. Learned counsel for the appellant next contended that Nathu Singh is also known to P.W. 3 Sheo Nandan Singh. P.W. 4 Chunnubad Singh is the brother of Nathu Singh, whose son Bhola Singh appears to be the match mate of the deceased Brijesh Kumar. There is suspicion that the wife of Bhola Singh has relation with the deceased Brijesh Kumar and when being confronted she had committed suicide by consuming opium. The aforesaid facts find mentions in the statement in chief of P.W. 3. Sheo Nandan Singh which is at page 60 of the paper book. There is suspicion that the wife of Bhola Singh has relation with the deceased Brijesh Kumar and when being confronted she had committed suicide by consuming opium. The aforesaid facts find mentions in the statement in chief of P.W. 3. Sheo Nandan Singh which is at page 60 of the paper book. The relevant portions of statement of P.W. 3 is referred herein below:- cStukFk dkxzsl esjs xako ds gSA buds firk dk uke pUnu flag gSA jkek/khu flag pUnu flag ds HkkbZ FksA jkek/khu ds yM+ds uRFkw dks tkurk gWwA buds yM+ds Hkksyk dks ugh tkurkA uRFkw dk ?kj esjs ?kj ls 4 QykaZx nwj gS eSa fozts'k e`rd dks tkurk FkkA fozts'k dks Ldwy ij ns[kk FkkA ;g esjs xako es dHkh ugh x;k gSA ;g uRFkw ds ?kj ugh tkrk FkkA uRFkw dh ogw ej xbZ gS] foekjh es ejh Fkh] vQhe [kk dj ugh ejh FkhA ek?k 1979 es ugh 3 o"kZ igys ejh FkhA fdl ekg es ejh Fkh eS ugh tkurk mlds ifr dk uke ugh tkurkA bldh feV~Vh es eS ugh 'kjhd gqvk FkkA bls cq[kkj vk jgk Fkk] lUuikr gks x;k rks ej xbZA eSa Qqyokjh vk tk jgk FkkA ogWk,d oS| jgrs gSa mUgksaus crk;k FkkA mUgksus [kqn gh crk;k FkkA,sls gh cr dgko gks jgk Fkk mlh ds nkSjku mUgksaus crk;k FkkA oS| dk ?kj esjs xWko es gh gSA mudk uke y[ku yky gSA og nok djrs gSaA ogWk muds ogWk ejht ugh tkrs] ogh ejhtks ds ;gWk tkrs gSA og nok [kkuk [kksys gSaA eSa,sls gh muds ;gWk cSB x;k Fkk] muls dksbZ dke ugh FkkA oS| th us mudh mej ugh crk;k FkkA mlds ifr dk uke ugha llqj dk uke crk;k FkkA ;g xyr gS fd fozts'k buds ;gWk vk;k tk;k djrk Fkk vkSj mlds lkFk bl vkSjr dh onukeh gks jgh Fkh vkSj tc mls MkVk x;k rks og vQhe [kk dj ej xbZA Ldwy ls esjk xWko vk/kk QykZx if'pe gSA^^ 100. How the aforesaid facts could make P.W. 3. depose in the killing of the deceased, Brijesh Kumar against the accused person remains unexplained. Similarly, on the basis of the aforesaid facts P.W. 3 could not be classified as a partisan witness. How the aforesaid facts could make P.W. 3. depose in the killing of the deceased, Brijesh Kumar against the accused person remains unexplained. Similarly, on the basis of the aforesaid facts P.W. 3 could not be classified as a partisan witness. In fact in natural circumstance the evidence of P.W. 3 Sheo Nandan Singh could come as a defense witness if the facts stated above are taken to be true on their face value, as the same are affecting the prestige of P.W. 4 Chunnubad Singh. The submissions so raised boomerang against the accused persons themselves. It was then urged that Chunnubad Singh the daughter of Natthu Singh has supposedly given a ring to P.W. 4 Chunnubad Sigh stating that the same was found by him near banks of Yamuna river in 'Birju ki Tari' and has also stated that a coat and other items have been taken by different people. However, P.W. 4 Chunnubad Singh is not able to give the same of his niece. To answer the aforesaid submissions, it is necessary to refer to the statement of P.W. 4 Chunnubad Singh, which is at page 62 of the paper book:- **vkt ls djhcu 1&1@2 o"kZ iwoZ dh ckr gS esjh Hkrhth dYyh iq=h uRFkw flag xkSre xzke pUnokjk mezh 6&7 o"kZ us eq>s,d Nyyk fn;k FkkA eq>ls Nyyk nsrs le; ;g crk;k Fkk fd ;g NYyk mls tequk ds fdukjs feyk Fkk] o`tw dh rjh esaA mlus ;g Hkh crk;k Fkk ogak dksV iSUV o twrs eksts ogh iM+s gSaA ** 101. The said submission again is misconceived. It neither creates any doubt on the credibility of the testimony of P.W. 4 nor does in any manner show that the P.W. 4 is an interested witness. Lastly, it was urged that P.W. 5 Chandra Kishore is a student of inter college seen by P.W. 3 whose principal is P.W.6 and the house of Nathu Singh is situated near his house. As such P.W. 6 is also an interested witness. The submissions so raised in far stretched, P.W. 5 Chandra Kishore is a young boy aged about 16 years. What motive could he has to give statement against the accused persons is shrouded in obscurity. Consequently, the submission made that P.W.5 is also an interested witnesses is wholly misconceived. 102. As such P.W. 6 is also an interested witness. The submissions so raised in far stretched, P.W. 5 Chandra Kishore is a young boy aged about 16 years. What motive could he has to give statement against the accused persons is shrouded in obscurity. Consequently, the submission made that P.W.5 is also an interested witnesses is wholly misconceived. 102. Although the submission made by the counsel for the appellants, in support of the proposition that all the witnesses are interested witnesses, prima facie appeared to be hypothetical and in view of the law laid down by the Apex Court in the case of Devendra Pal Singh V. State of NCT of Delhi and Another reported in 2002 (5) SCC 234 , there was no occasion to deal with the aforesaid argument. Para 53 and 54 of the judgment is extracted herein below for ready reference:- "53. Exaggerated devotion to the rule of benefit of doubt must not nurturefanciful doubts or lingering suspicions and thereby destroy social defence.Justice cannot be made sterile on the plea that it is better to let hundredguilty escape than punish an innocent. Letting guilty escape is not doingjustice according to law.(See Gurbachna Singh v. Stapal Singh and Ors.). Prosecution is not required to meet any and everyhypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava). 54. If a case is proved perfectly it is argued that it is artificial; if a casehas some flaws, inevitable because human beings are prone to err, it isargued that it is too imperfect. One wonders whether in the meticuloushypersensitivity to eliminate a rare innocent form being punished, manyguilty persons must be allowed to escape. Proof beyond reasonable doubtis a guideline, not a fetish. [See Inder Singh Anr. v. State (Delhi Admn.)]. Vague hunches cannot take placeof judicial evaluation. "A Judge does not preside over a criminal trial,merely to see that no innocent man is punished. A judge also presides tosee that a guilty man does not escape. Both are public duties."(Per Viscount Simon in Stirlant v. Director of Public Prosecution (1944 AC(PC) 315) quoted in State of U.P. v. Anil Singh)." But keeping in view that the appellants have been convicted under Section 302 I.P.C. the same have accordingly been dealt with. 103. A judge also presides tosee that a guilty man does not escape. Both are public duties."(Per Viscount Simon in Stirlant v. Director of Public Prosecution (1944 AC(PC) 315) quoted in State of U.P. v. Anil Singh)." But keeping in view that the appellants have been convicted under Section 302 I.P.C. the same have accordingly been dealt with. 103. Having dealt with the various submissions of the counsel for the appellants, the inevitable result is that the prosecution has succeeded in proving its case beyond reasonable doubt. The statement of the approver Dhani Ram recorded under Section 306(iv)(a)Cr.P.C, is not only admissible in evidence but also credible. The extra judicial confession made by the accused person before P.W. 4 Manni Singh and P.W. 3 Shiv Nandan Singh are not liable to the discarded. The recovery of the weapons used in the murder of the deceased Brijesh Kumar is not found to be faulty or inadmissible in evidence by virtue of Section 27 of the Indian Evidence Act. The Statement of the approver stands corroborated in material particulars with the extra judicial confession as well as the recovery of the murder weapons and other materials. 104. Consequently, in view of the discussions made herein above, the appeal is liable to be dismissed. The same is accordingly dismissed. The conviction of the accused appellant No.1 Ram Autar and the accused appellant No. 2 Ram Deen under Sections 302/34 and 201 IPC is maintained. Accused appellant No.1 Ram Autar and the accused appellant No. 2 Ram Deen are on bail. Their bail bonds are cancelled and the sureties are discharged. The appellant No. 1 Ram Autar and the appellant No. 2 Ram Deen shall be taken into custody to serve out the remaining sentence.