JUDGMENT : S. VAIDYANATHAN, N. ANAND VENKATESH, JJ. Prayer: Appeal is filed under Section 374(2) of the Code of Criminal Procedure to call for the records and set aside the order of conviction and sentence passed in S.C.No.4 of 2009 dated 31.102017 on the file of the learned District and Sessions Court (Communal Clash Cases Court), Madurai and allow this appeal and acquit the Appellants / Accused from the charge leveled against them. 1. The Appellants / A1 to A3 have filed this Criminal Appeal against the judgment of the learned District and Sessions Court (Communal Clash Cases Court), Madurai made in S.C.No.4 of 2009, dated 31.10.2017, convicting and sentencing the Appellants as follows: Sl.No. Rank of the Accused Offences for which convicted Sentence of imprisonment Fine amount 1. A1 Section 452 of IPC Seven Years Rigorous Imprisonment Rs.5,000/-in default to undergo one year Rigorous Imprisonment Section 302 of IPC Life Imprisonment Rs.10,000/-in default to undergo three years Rigorous Imprisonment Section 506(ii) of IPC Four Years Rigorous Imprisonment - 2. A2 Section 452 of IPC Seven Years Rigorous Imprisonment Rs.5,000/-in default to undergo one year Rigorous Imprisonment Section 302 of IPC Life Imprisonment Rs.10,000/-in default to undergo three years Rigorous Imprisonment Section 506(ii) of IPC Four Years Rigorous Imprisonment - 3. A3 Section 452 of IPC Seven Years Rigorous Imprisonment Rs.5,000/-in default to undergo one year Rigorous Imprisonment Section 302 of IPC Life Imprisonment Rs.10,000/-in default to undergo three years Rigorous Imprisonment Section 506(ii) of IPC Four Years Rigorous Imprisonment - 2. Initially, there were eight accused persons against whom the Trial was conducted before the Court below and the Trial Court had acquitted A4 to 8 from all charges. 3. The case of the prosecution: A6 to A8 were running a Browsing Centre and they are said to have hatched conspiracy 15 days prior to the date of occurrence to retaliate for the murder of their brother and to do away with the deceased, who was holding the post of the President of the Cable TV Operators. They are said to have engaged the services of A1 to A5 in order to commit this crime. 3.1. On 06.05.2009 at about 1:20pm, A1 to A3 are said to have entered into the Browsing Centre that was run by the deceased and they indiscriminately caused cut injuries with an Aruval and thereby caused the instantaneous death of the deceased. 4. 3.1. On 06.05.2009 at about 1:20pm, A1 to A3 are said to have entered into the Browsing Centre that was run by the deceased and they indiscriminately caused cut injuries with an Aruval and thereby caused the instantaneous death of the deceased. 4. Complaint and evidence collected in the course of investigation: The brother of the deceased, namely, P.W.1, who was shown as an eyewitness in this case, after witnessing the incident immediately arranged for an Ambulance and had taken the dead body of the deceased to the Government Hospital, Tenkasi and the deceased was declared to have been brought dead and the dead body was kept in the mortuary. He thereafter went to the Sub-Inspector of Police (P.W.28) and had given a complaint (Ex.P1) at about 2:15pm on 06.05.2009. The complaint was received and an FIR (Ex.P43) came to be registered in Crime No.271 of 2009 for an offence under Section 302 of IPC. The Express FIR was sent through a Head Constable (P.W.27) to the Judicial Magistrate Court and it reached the Court at about 3.30pm on the same date. 4.1. The investigation was taken over by the Inspector of Police (P.W.31) and he went to the Government Hospital, Tenkasi and conducted the inquest over the dead body of the deceased from 3:00pm to 4.45pm and prepared the inquest report (Ex.P34). He thereafter went to the scene of crime at about 5.15pm and and prepared an Observation Mahazar (Ex.P3) and also the Rough Sketch (Ex.P55) in the presence of the witness (P.W.17). He also collected the Material Objects from the scene of crime under Seizure Mahazar (Ex.P4 and Ex.P5). He thereafter recorded the statements of witnesses under Section 161(3) of Cr.P.C. 4.2. The Investigation Officer collected the dress worn by the deceased and the same was submitted before the Court with a requisition to send the same to the Forensic Laboratory. 4.3. On 08.05.2009, the Investigation Officer came to know that A1 to A3 had surrendered before the Judicial Magistrate No.3, Tirunelveli on 08.05.2009 and thereafter, he took steps to take A1 to A3 on Police custody and a letter was submitted before the Judicial Magistrate Court on 11.05.2009 and the Police custody was also granted on 14.05.2009 for a period of four days. While the accused persons were taken on Police custody, they voluntarily gave their confession in the presence of P.Ws.18 and 19 and based on their confession, the Material Objects (M.Os.1 to 3) were recovered under Seizure Mahazar Ex.Ps.12 to 14. The weapons that were seized were sent to the Court with a requisition to send the same to the Forensic Department. 4.4. The Investigation Officer thereafter surrendered the accused persons before the Court and they were sent back to the jail. He thereafter took steps to alter the FIR. 4.5. On 21.05.2009, A1 was produced before the Judicial Magistrate No.5, Tirunelveli, since he wanted to give voluntary confession under Section 164 of Cr.P.C. The confession was recorded before the concerned Court on the same day. Thereafter, he took steps to arrest the other accused persons and also recovered the Material Objects. 4.6 The Investigation Officer thereafter took steps to arrange for a Test Identification Parade by means of a requisition letter given to the Magistrate (Ex.P.49) and the Test Identification Parade was conducted by the learned Judicial Magistrate (P.W.30). The identification report was marked as Ex.P.53. 4.7. The Investigation Officer recorded the statements of the Postmortem Doctor (P.W.24), the Hand Writing Expert (P.W.23) and also the Forensic Expert (P.W.26) and collected the Postmortem report (Ex.P.36), Forensic Report (Ex.P.41) and the Serological Report (Ex.P.42). On completion of the recording of statements of all other witnesses under Section 161(3) of Cr.P.C., a Final Report was laid on 21.09.2009 before the Judicial Magistrate No.5, Tenkasi and the same was committed to the District and Sessions Court (Communal Clash Cases Court), Madurai and the same was taken on file in S.C.No.4 of 2009. 5. The Trial Court furnished a copy of the Final Report and all other documents relied upon, under Section 207 of Cr.P.C. to the accused persons and framed the following charges against the accused persons: Sl. No. Rank of the Accused Offences for which convicted 1. A1 - Murugan 120(b), 148, 307, 452, 302 and 506(ii) IPC 2. A2 – Thamburan @ Krishnan 120(b), 148, 307, 452, 302 and 506(ii) IPC 3. A3 - Ponnaiah 120(b), 148, 307, 452, 302 and 506(ii) IPC 4. A4 – Murugan @ Gundu Murugan 120(b), 148, 307, 302 r/w 149 and 506(ii) IPC 5. A5 – Muthukumar @ Prasanth 120(b), 148, 307, 302 r/w 149 and 506(ii) IPC 6. A2 – Thamburan @ Krishnan 120(b), 148, 307, 452, 302 and 506(ii) IPC 3. A3 - Ponnaiah 120(b), 148, 307, 452, 302 and 506(ii) IPC 4. A4 – Murugan @ Gundu Murugan 120(b), 148, 307, 302 r/w 149 and 506(ii) IPC 5. A5 – Muthukumar @ Prasanth 120(b), 148, 307, 302 r/w 149 and 506(ii) IPC 6. A6 – Kalaizhar @ Karunanithy @ Sankar 120(b), 148, 302 r/w 149 and 506(ii) IPC 7. A7 – Ravi @ Arumugam 120(b), 148 and 302 r/w 109 IPC 8. A8 – Sakthi Pandian 120(b), 148 and 302 r/w 109 IPC 6. The prosecution examined P.Ws.1 to 31, marked Ex.Ps.1 to 59 and exhibited M.Os.1 to 15. The Court below questioned the accused persons under Section 313(1)(b) of Cr.P.C., by putting all the incriminating materials that were collected against them, during the course of trial and the accused persons denied the same as false. 7. The Trial Court, after considering the facts and circumstances of the case, and after analyzing the oral and documentary evidence, came to a conclusion that the prosecution has proved the case beyond reasonable doubts as against A1 to A3 and proceeded to convict and sentence them in the manner stated supra. All other accused persons, namely, A4 to A8 were acquitted from all charges. Submissions: 8. Mr.G.Karuppasamy Pandian, learned counsel appearing on behalf of the Appellants 1 & 2 / A1 & A2 made the following submissions: * The case of the prosecution hinges upon the evidence of P.Ws.1 to 4, who were examined as eyewitnesses. Except, P.W.1, none of the other witnesses supported the case of the prosecution. * P.W.1, who is the brother of the deceased could not have been present in the scene of occurrence and a reading of the evidence of P.W.1 makes it clear that he could not have seen the incident and if actually he was present in the scene of occurrence, it would have been spoken by P.W.3, who was an employee working in the Browsing Centre. * P.W.3, who was examined as an eyewitness did not support the case of the prosecution and inspite of the same, she was not treated as a hostile witness and therefore, her evidence is to be taken as it is and the same is in favour of the accused persons * It is the categorical admission of P.W.1 that he knew the accused persons even before the incident, including their names and inspite of the same, it was not mentioned in the complaint (Ex.P.1). Therefore, the Test Identification Parade that is said to have been conducted in the present case has absolutely no meaning, since P.W.1 knows these accused persons even at the time when he gave the complaint. * P.W.1, who is the brother of the deceased has improved his case at every stage and if really he did not know the names of the accused persons, he could not have given the graphic details of the overt act that was committed by each of the accused persons with their names. * The evidence of P.W.1 is not completely reliable and therefore, it was necessary for the prosecution to corroborate the evidence of P.W.1 and the same was not done in the present case. * If A1 had already given a confession statement to the Police, there was no requirement for A1 to go before the Judicial Magistrate and give a confession. This so-called confession was subsequently retracted by A1. * The confession that was recorded under Section 164 of Cr.P.C., did not satisfy the mandatory requirements and the Court did not satisfy itself that A1 had voluntarily made the confession and no time was given for him to reflect upon the consequence of such confession. In order to substantiate this submission, the learned counsel relied upon a judgment of the Hon'ble Supreme Court in the case of Chandran vs. The State of Tamil Nadu, reported in (1978) 4 SCC 90 . * The so-called confession that was made before the Police was marked in toto by the Court below and even in the confession, there was no mention regarding the place at which the weapon was kept. Therefore, the entire confession becomes inadmissible. In order to substantiate this submission, learned counsel relied upon the judgment of this Court in Kattu Raja vs. State, reported in 2013-1-L.W.(Crl.) 633. Therefore, the entire confession becomes inadmissible. In order to substantiate this submission, learned counsel relied upon the judgment of this Court in Kattu Raja vs. State, reported in 2013-1-L.W.(Crl.) 633. * The Defacto Complainant in this case, namely, P.W.1 has stated in the course of examination that after the occurrence, the Police had immediately enquired him and taken his statement and thereafter, he went to the Government Hospital and he was again examined by the Police. None of these statements were marked before the Court and the complaint that came into existence on the date of occurrence at 2:15pm was the only document that was marked and therefore, the earliest version regarding the incident has been suppressed by the prosecution. * The Court below had relied upon the evidence of P.W.1 and the confession statement made before the Judicial Magistrate under Section 164 of Cr.P.C. and also the fact that the Appellants have surrendered before the Judicial Magistrate and therefore, has come to an erroneous conclusion that the prosecution has made out the case beyond reasonable doubts. 9. Mr.P.T.Ramesh Raja, learned counsel appearing for the 3rd Appellant / A3 submitted that he is adopting the arguments of the learned counsel, who appeared for the Appellants 1 & 2 / A1 & A2. That apart, he made the following submissions: * P.W.1 could not have seen the incident, since he himself accepts in the course of examination that the first time he saw the deceased, when he was lying in a pool of blood in the Browsing Centre and only the persons, who were working in the Centre, were present in the scene and there was no other outsider available. * The description that has been given by P.W.1 with regard to the shop goes completely against the Rough Sketch (Ex.P.55), which was prepared by the Investigation Officer and that itself shows that he was not even aware of the topography of the Browsing Centre. * It was the specific case of the prosecution that P.W.1 had taken the deceased in the Ambulance and P.W.1 had specifically stated about the presence of bloodstains in his dress and his dress was not taken for the forensic analysis and this would have clearly proved the presence of P.W.1 in the scene of occurrence. * It was the specific case of the prosecution that P.W.1 had taken the deceased in the Ambulance and P.W.1 had specifically stated about the presence of bloodstains in his dress and his dress was not taken for the forensic analysis and this would have clearly proved the presence of P.W.1 in the scene of occurrence. * The prosecution has not established the case beyond reasonable doubts and the Court below went wrong in convicting the Appellants and the same requires inference of this Court. 10. Per contra, Mr.S.Chandrasekar, the learned Additional Public Prosecutor appearing on behalf of the State made the following submissions: * The prosecution heavily relied upon the evidence of P.W.1, who is the brother of the deceased and who was the eyewitness to the incident and the evidence of P.W.1 is unimpeachable and it clearly explains the manner in which the entire incident had taken place and there is nothing to discredit the evidence of P.W.1. * The motive for the crime has been clearly spoken by P.Ws.5 and 9 and their evidence establishes the case of the prosecution with regard to the motive behind the attack. * The Appellants had surrendered before the Judicial Magistrate on 08.05.2009 and they were taken on Police custody and based on their confession, which was made in the presence of P.Ws.18 and 19, the Material Objects were seized and therefore, the recovery in this case also further strengthens the case of the prosecution. * The confession given by A1 before the Judicial Magistrate, who recorded the same under Section 164 of Cr.P.C. further corroborates the case of the prosecution and the minor discrepancy that has been pointed out by the learned counsel for the Appellants does not take away the evidentiary value of 164 statement that was marked as Ex.P.48. * The Trial Court has assessed the oral and documentary evidence and has come to the correct conclusion that the prosecution has proved the case beyond reasonable doubts against A1 to A3 and there is absolutely no ground to interfere with the said judgment and this Criminal Appeal is liable to be dismissed. Discussion: 11. This Court has carefully considered the submissions made on either side and also carefully assessed the oral and documentary evidence. 12. In this case, the prosecution had relied upon the evidence of P.Ws.1 to 4, who were cited as eyewitnesses. Discussion: 11. This Court has carefully considered the submissions made on either side and also carefully assessed the oral and documentary evidence. 12. In this case, the prosecution had relied upon the evidence of P.Ws.1 to 4, who were cited as eyewitnesses. Except P.W.1, none of the other witnesses supported the case of the prosecution. Therefore, it becomes necessary for this Court to closely analyze the evidence of P.W.1 and satisfy itself as to whether P.W.1 had actually seen the occurrence. If the evidence of P.W.1 inspires the confidence of this Court, it may not even be necessary to look for corroboration. 13. P.W.1 has stated in his Chief Examination as follows: “TAMIL” 14. It is clear from the above evidence that P.W.1 knows the Appellants even before the incident and he was able to give the correct details of the specific overt act for each of the Appellants with their names. Curiously, P.W.1 does not mention any of the names either in the complaint or in the statement given before the Investigation Officer. 15. This finding gets confirmed by the specific statement made by P.W.1 in his cross examination as follows: “TAMIL” 16. The next issue that has to be ascertained is, as to whether P.W.1 had actually seen the occurrence. At this juncture, it will be relevant to extract the evidence of P.W.3, who was working in the Browsing Centre of the deceased, which reads as follows: “TAMIL” 17. The evidence of P.W.3 shows that there was no one else, who was present in the Browsing Centre during the incident. It is important to note that this witness has not been treated to be a hostile witness by the prosecution. Therefore, the evidence given by P.W.3 will have to be necessarily taken into consideration in toto. P.W.3 does not talk about the presence of P.W.1 in the scene of occurrence. With this background, it is important to analyze as to what P.W.1 says about the incident in the cross cross examination. 18. The relevant portion in the evidence is extracted hereunder: “TAMIL” 19. A careful reading of the above statement made by P.W.1 during the course of examination, creates a lot of doubts as to whether P.W.1 could have seen the incident. If really P.W.1 had seen this incident and he already knows the accused persons, he would have definitely named the accused persons in the complaint. A careful reading of the above statement made by P.W.1 during the course of examination, creates a lot of doubts as to whether P.W.1 could have seen the incident. If really P.W.1 had seen this incident and he already knows the accused persons, he would have definitely named the accused persons in the complaint. His presence would have been spoken at least by P.W.3. That apart, P.W.1 specifically states that when he took the deceased to the Hospital from the scene of occurrence, his dress was also stained with the blood of the deceased. However, the dress was not recovered and sent for forensic analysis. At least, this would have ensured that P.W.1 was actually present in the scene of occurrence. 20. The evidence of P.W.1, who is the only eyewitness available in the present case, does not inspire the confidence of this Court. Therefore, it becomes necessary for this Court to look for corroboration. At this juncture, it is relevant to rely upon the judgment of this Court in Chinnadurai and others vs. State, [Crl.A.Nos.455 of 2011, etc. batch] decided on 12.02.2015 [in which one of us (Justice S.Vaidyanathan) was a party]. The relevant portions of the judgment is extracted hereunder: “11. Above all, in our considered view, the presence of P.W.1 at the place of occurrence itself is doubtful because of the above delay and also because he claims to have been present at the place of occurrence by chance, for which, there is absolutely no satisfactory explanation. 12. At this juncture, the learned counsel for the appellants would submit that when a solitary witness to the occurrence is only partly believable, prudence requires that there has to be corroboration in material particulars from independent sources. Learned counsel relied on the judgment of the Apex Court in VADIVELU THEVAR Vs. STATE OF MADRAS reported in AIR 1957 SC 614 , wherein, the Hon'ble Apex Court has held in paragraph 12 as follows:- ...... 11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. STATE OF MADRAS reported in AIR 1957 SC 614 , wherein, the Hon'ble Apex Court has held in paragraph 12 as follows:- ...... 11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that " no particular number of witnesses shall in any case be required for the proof of any fact." The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's I Law of Evidence -9th Edition, at pp. 1 100 and 1 101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s. 134 quoted above. The section enshrines the well recognized maxim that "Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 12. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if Courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver ; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution. 13 Applying the same, if we analyse the evidence of P.W.1, it is crystal clear that the Trial Court itself has disbelieved him in respect of the other accused who have been acquitted and thus, he is only partly believable. Admittedly, there is no other corroboration from any other source. Above all, his evidence does not fully inspire confidence of the Court. This Court has got every doubt about the presence of P.W.1 at the place of occurrence. As we have already pointed out, the FIR is a doubtful document in this case. The original information in this case has been suppressed. The evidence of P.W.1, thus, does not pass the test of close scrutiny. For all these reasons, we hold that the prosecution has failed to prove its case beyond reasonable doubts. Therefore, the appellants are entitled for acquittal.” 21. Even though the Test Identification Parade has been conducted in this case by the Judicial Magistrate (P.W.30), the very identification parade becomes meaningless, since P.W.1 has categorically admitted that he knows the accused persons even before the incident. Therefore, the identification parade report (Ex.P.53) cannot be taken to be a corroborative piece of evidence in this case. 22. Even though the Test Identification Parade has been conducted in this case by the Judicial Magistrate (P.W.30), the very identification parade becomes meaningless, since P.W.1 has categorically admitted that he knows the accused persons even before the incident. Therefore, the identification parade report (Ex.P.53) cannot be taken to be a corroborative piece of evidence in this case. 22. The next piece of evidence that is relied upon by the prosecution is the confession that is said to have been given by the 1st Appellant (A1) before the Judicial Magistrate (P.W.29). The 164 statement was marked as Ex.P.48. The statement recorded by the Judicial Magistrate is extracted hereunder: “TAMIL” 23. it is now a settled law that the 164 statement is not a substantial piece of evidence and it can only be used to contradict and / or corroborate a substantial evidence. The Trial Court has relied upon this confession given under Section 164 of Cr.P.C not only against A1, but also as against A2 and A3 on the ground that the confession of A1 is a relevant fact as against the co-accused A2 and A3. 24. The learned counsel for the Appellants submitted that A1 has retracted this confession, when he was questioned under Section 313 of Cr.P.C. The learned counsel submitted that the learned Judicial Magistrate did not follow the mandatory requirements under Section 164 of Cr.P.C. and did not give time to A1 to reflect upon the confession that was going to be given by him and he was not forewarned that the confession will be used against him. 25. In order to substantiate their submissions, the learned counsel had relied upon the judgment of the Hon'ble Supreme Court in the case of Chandran vs. The State of Tamil Nadu, reported in (1978) 4 SCC 90 . The relevant portion in the judgment is extracted hereunder: “30. First, we will examine the contentions canvassed on both sides in regard to the confessional statement, Ex.P-27. 31. A comparison of the memorandum, Ex. P-28, recorded by the Magistrate with the one prescribed by Section 164(3) will show that the former (Ex. P-28) suffers from two patent defects. Firstly, instead of certifying that he believed that this confession (Ex. P-27) was voluntarily made, the Magistrate has merely said: "I hope that this statement was made by him voluntarily". A comparison of the memorandum, Ex. P-28, recorded by the Magistrate with the one prescribed by Section 164(3) will show that the former (Ex. P-28) suffers from two patent defects. Firstly, instead of certifying that he believed that this confession (Ex. P-27) was voluntarily made, the Magistrate has merely said: "I hope that this statement was made by him voluntarily". Secondly, he omitted to certify that 'this confession was taken in his presence and hearing, and was read over to the person making it and it is admitted by. him to be correct, and it contains a full and true account of the statement made by him.' The latter was obviously a defect of form. In the case of the former, it was open to the prosecution to show that the use or the word 'hope' was merely due to an inadvertent error, although in substance and reality, the Magistrate was fully satisfied that the confession (Ex. P-27) was voluntarily made by the accused. The best informed person who could explain whether the use of the word "hope" in Ex. P-28, was inadvertent or deliberate, was the Magistrate who recorded it. Although the Magistrate was examined as a witness (P.W. 28) at the trial yet no attempt was made by the prosecution to establish from his word of mouth that the use of the word 'hope' by him was inadvertent or accidental. In the witness-box, also, the Magistrate did not go whole hog to vouch for the voluntariness of the confession. He did not go further than saying that on February 8, 1974, when he repeated the warning to the accused, the latter was found "in a position" to give a voluntary statement. To say that the accused was "in a position" or mood to give a voluntary statement, falls far short of vouching that upon questioning the accused, he (Magistrate) had "reason to believe that the confession is being voluntarily made"? which under Section l G4 is a sine qua non for the exercise of jurisdiction to record the confession. But that Section does not make it obligatory for the Magistrate to append at the end of the record the preliminary questioning, a certificate as to the anticipated voluntariness of the confession about to be recorded. which under Section l G4 is a sine qua non for the exercise of jurisdiction to record the confession. But that Section does not make it obligatory for the Magistrate to append at the end of the record the preliminary questioning, a certificate as to the anticipated voluntariness of the confession about to be recorded. But the law does peremptorily require that after recording the confession of the accused, the Magistrate must append at the foot of the record a memorandum certifying that he believed that the confession was voluntarily made. The reason for requiring compliance with this mandatory requirement at the close of the recording of the confession, appears to be that it is only after hearing the confession and observing the demeanour of the person making it, that the Magistrate is in the best position to append the requisite memorandum certifying the voluntariness of the confession made before him. If, the Magistrate recording a confession of all accused person produced before him in the course of police investigation does not, on the face of the record, certify in clear categorical terms his satisfaction or belief as to the voluntary nature of the confession recorded by him, nor testifies orally, as to such satisfaction or belief, the defect would be fatal to the admissibility and use of the confession against the accused at the trial. 32. In the instant case, the Magistrate has no where in tile record or the confession, certified his satisfaction or belief about the voluntariness of the confession. In the memorandum (Ex. P. 28) appended by him at the foot of the confession, he has merely expressed a "hope" that the confession was voluntarily made. Even in his oral evidence at the trial, the Magistrate (P.W. 28) did not vouch for the voluntariness or the confession. He did not say that the use of the word "hope" by him in the memorandum (Ex. P. 28) was due to some accidental slip or heedless error. P.W. 28 is a Sub-Divisional Magistrate and a member of the Judicial service. He is supposed to be a judicial officer of standing and experience. The memorandum, Ex. P. 28, is in English, and in the handwriting of the Magistrate. P. 28) was due to some accidental slip or heedless error. P.W. 28 is a Sub-Divisional Magistrate and a member of the Judicial service. He is supposed to be a judicial officer of standing and experience. The memorandum, Ex. P. 28, is in English, and in the handwriting of the Magistrate. It is, therefore, not possible to hold that the Magistrate was ignorant of the difference in the meaning of the words "hope" and "believe" and that he unwittingly chose the former, while in reality, he intended to express what was meant by the latter. There is every probability that the use of the word "hope", instead of "believe", in the memorandum, Ex. P. 28, by the Magistrate was deliberate, and not inadvertent. There is a marked difference in what is connoted by "hope" and "believe". "to hope" means "to want and expect"; "to look forward with expectation and desire". "Hope" is, a wishful feeling floating on nebulous foams projected into the unknown future. Deep hidden in "hope" dwells a lingering doubt, a speck of suspicion, that what is desired and expected may not turn out true. Not unoften, in the mind of the person hoping, there lurks subconscious fear that the "hope" may turn out a "dupe". In contrast with it, the term "believe", in that sense in which it is used in Section 164, has 'logical confidence' or 'rational conviction' as its essential element. It imports a very high degree of expectation wrought by reason, a satisfaction fast-rooted in terra firma, free from doubt as to the truth of the fact perceived and believed. 33. In the light of the above discussion, we are of opinion, that the Magistrate advisedly chose to use the word "hope" instead of 'believe', in the memorandum Ex. P-28, because he was not fully convinced that the confession, Ex. P-27, had been voluntarily made, the Magistrate's mind being troubled by suspicion and doubt as to the voluntariness of the confession. The retracted confession, Ex. P-27, therefore must be excluded from consideration. 34. We now turn to the remaining ten Circumstances. Out of them, (circumstances 9 and 10 could connect the appellant with some degree of certainty with the murder in question. But, as rightly pointed out by Mr. The retracted confession, Ex. P-27, therefore must be excluded from consideration. 34. We now turn to the remaining ten Circumstances. Out of them, (circumstances 9 and 10 could connect the appellant with some degree of certainty with the murder in question. But, as rightly pointed out by Mr. Altaf Ahmad, some vital factual components of these Circumstances which were pointers towards the guilt of the appellant on the capital charge, had not been established, and the learned Judges of the High Court were in error in assuming their existence.” 26. This judgment is considered to be a locus classicus insofar as the law under Section 164 of Cr.P.C. is concerned. It is clear from the above judgment that the Magistrate must first certify that he believed that the confession was voluntarily made by the accused persons. If the Magistrate recording the confession of an accused person produced before him by the Police, does not categorically certify his satisfaction or belief as to the voluntary nature of the confession recorded by him, the Hon'ble Supreme Court has held that it would be fatal to the admissibility and use of the confession against the accused during trial. In the present case, this mandatory requirement has not been satisfied by the learned Judicial Magistrate and the same is evident from Ex.P.48, which has been extracted supra. 27. The next evidence that is relied upon by the prosecution is the confession and recovery of weapons by the Investigation Officer, which was made in the presence of P.Ws.18 and 19. It is seen in this case that the entire confession (including the inculpatory statement) has been marked. The accused persons have stated in the confession statement (Ex.Ps.6 to 11) as follows: “TAMIL” Each accused person has stated in the same manner in the confession. 28. From the above confession, it is seen that the accused persons have not even stated about the place at which they have concealed the weapon. 29. It will be relevant to rely upon the judgment of this Court in Kattu Raja vs. State, reported in 2013-1-L.W.(Crl.) 633. The relevant portions of the judgment is extracted hereunder: “11....It is well known that a confession made by the accused to the police during the course of investigation is irrelevant and the same is not admissible in evidence against the accused as envisaged in Section 25 of the Evidence Act. The relevant portions of the judgment is extracted hereunder: “11....It is well known that a confession made by the accused to the police during the course of investigation is irrelevant and the same is not admissible in evidence against the accused as envisaged in Section 25 of the Evidence Act. Section 27 of the Evidence Act is only a proviso to Section 25 of the Evidence Act. To what extent the said statement could be admitted in evidence as relevant was examined in detail by the Privy Council in Pulukuri Kottaya vs State of Emperor, AIR 1947 PC 87 . The said judgement finds reference in almost all Text Books on The Evidence Act. In the said judgement, the expression distinctly as employed in Section 27 of the Evidence Act was examined in detail and ultimately, it was held that the part of the statement which distinctly leads to the discovery of a fact alone is admissible. This, exception provided in Section 27 of the Evidence Act is very limited. But, in the instant case, unfortunately, the trial court has relied on the entire confession to come to the conclusion that the accused had illicit intimacy with the deceased. Subsequently, the deceased developed intimacy with the others which was opposed to by the accused and on the fateful day when the accused advanced sexual overtures, the deceased did not respond positively and, therefore, the accused had attacked the deceased with wooden log and caused her death. In order to prove the above facts, absolutely there is no evidence. But, the trial court has relied on the confession of the accused by quoting the same extensively forgetting for a moment that Section 25 of the Evidence Act is a bar. 12. Thus, the trial court has relied on the recovery of M.O.3 Wooden Log on the disclosure statement made by the accused. Section 27 of the Evidence Act states that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Here, it needs to be noticed that it is not every fact that is discovered out of such statement which makes such statement as admissible. Here, it needs to be noticed that it is not every fact that is discovered out of such statement which makes such statement as admissible. It is only the discovery of a relevant fact which makes the statement admissible in evidence. As has been held by the Privy Council in Pulukuri Kottaya vs Stae of Emperor's case [cited supra], the relevancy between the crime and the fact discovered should be proved through other evidence and not by the confession itself.....” 30. It is clear from the above judgment that the relevancy between the crime and the fact discovered should be proved through other evidence and not by the confession itself. From the above confession statement said to have been given by A1 to A3, the admissible portion of the confession does not even state at which place they have kept the weapon and what has been made admissible is also the inculpatory statement that was made by the accused persons, which is inadmissible under Section 25 of the Indian Evidence Act. 31. In the present case, it is found from the Serological Report that M.Os.1 and 2 did not have any bloodstains and insofar as M.O.3 is concerned, the blood group did not tally. Therefore, the discovery of the fact based on the confession also does not in any way help the prosecution. 32. In view of the above discussion, we are of the considered opinion that the prosecution has failed to prove the case beyond reasonable doubts. The evidence of P.W.1 has not been corroborated by other evidence that is available on record. Therefore, it will not be safe to convict the Appellants with the available evidence. This leads us to the irresistible conclusion that the judgment of the Trial Court requires interference. 33. In the result, the judgment dated 31.10.2017 made in S.C.No.4 of 2009 by the learned District and Sessions Judge (Communal Clash Cases Court), Madurai is hereby set aside and the Appellants are acquitted from all charges. Accordingly, this Criminal Appeal is allowed and the bail bonds executed by the Appellants shall stand cancelled and the fine amount, if any, paid by them shall be refunded to the Appellants.