JUDGMENT : Sujit Narayan Prasad, J. Mr. Rakesh Kumar Sinha has been appointed as amicus in this case as would appear from the order dated 09th April, 2019. For ready reference, the said order is being reproduced as under: “Mrs. Niki Sinha, the learned A.P.P. appears on behalf of the State and submits that notices have been served upon the appellants. The learned A.P.P. shall file an affidavit. Nobody appears on behalf of the appellants, however, reports dated 19.03.2019 and 01.04.2019 have been received from the Secretary, Jharkhand High Court Legal Services Committee which transpire that both the appellants have desired for legal aid. In view of the aforesaid fact, Mr. Rakesh Kumar Sinha, the learned counsel is hereby appointed as Amicus in this case. The Registry is directed to serve a complete set of paper-book to Mr. Rakesh Kumar Sinha, the learned Amicus and the learned A.P.P, if already not supplied. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). Fee for learned Amicus shall be fixed on disposal of the appeal. Post the matter on 02.05.2019 under the heading “For Orders”. Let a copy of the order be given to the learned A.P.P. Let name of Mr. Rakesh Kumar Sinha, the learned Amicus appear in the cause-list.” 2. However, one order again has been passed by the co-ordinate Division Bench of this Court on 02nd May, 2019 by wherefrom it appears that Mr. P.P.N. Roy, learned senior counsel on instruction of Mrs. Pragati Prasad had stated that he appears for the appellant no. 1. But, today, in course of hearing, Mrs. Pragati Prasad, learned counsel has submitted that she is having no instructions in this regard. 3. This Court, therefore, after taking into consideration the order dated 09th April, 2019, by which Mr. Rakesh Kumar Sinha, learned counsel had been appointed as Amicus has proceeded to hear him on behalf of both the appellants. 4. With the consent of the parties, the matter has been heard on merits. 5. 3. This Court, therefore, after taking into consideration the order dated 09th April, 2019, by which Mr. Rakesh Kumar Sinha, learned counsel had been appointed as Amicus has proceeded to hear him on behalf of both the appellants. 4. With the consent of the parties, the matter has been heard on merits. 5. The instant appeal, under Section 374 (2) of the Code of Criminal Procedure, has been preferred against the judgment of conviction and order of sentence dated 20th July, 1994, passed by learned 5th Additional Sessions Judge, Hazaribagh, in Sessions Case No. 60 of 1991, whereby and whereunder, both the appellants have been convicted under Section 302 of the Penal Code, 1860 and directed to undergo imprisonment for life. 6. The prosecution story in brief as per the Fard Beyan of Beni Mahto which formed the basis of FIR is that on 26.09.1990 in the morning, the informant received information at his residence in Sarubera colony that his elder brother Madho Gope has been murdered in his residence in Arra 48 number colony upon which he went to the residence of his elder brother Madho Gope and found his said brother lying dead on the floor. The blood had come out from his nose, mouth and temporal. Madho Gope used to live alone. His neighbours told the informant that in the morning when they went to take tobacco from Madho Gope they found the outer door of his quarter opened and Madho Gope was lying dead in his pool of blood. Then they raised hulla upon which other neighbours also came there. 7. Mr. Rakesh Kumar Sinha, learned amicus has raised the following grounds in assailing the impugned judgment of conviction and sentence: (i) The judgment of conviction is based upon the extra judicial confession and the same has been said to be over-heard by P.W. 3 and 5. The said over-hearing has also been heard by P.W. 7 and P.W. 7 in his testimony has stated that the same has been confessed by the appellants by reducing the same in writing but according to the learned amicus, nothing has been made available on record said to have been recorded by reducing the same in writing by the appellants regarding commission of murder. But, the same having not been corroborated by any independent witness, the judgment of conviction cannot be said to be sustainable in the eyes of law, as such, requires interference; (ii) Due to non-examination of the investigating officer, serious prejudice has been caused to the appellant but without taking into consideration the aforesaid aspect of the matter, the learned trial court has convicted both the appellants in complete ignorance of the fact that the issue of extra judicial confession ought to have been corroborated by the investigating officer; (iii) It has been submitted that even the Gamchha and Chura said to have been recovered on the basis of the confession of a person, namely, Suresh Prasad @ Mochhu who said to have heard the conversation which was being made by the appellants, but has not been send for medical examination, as such, the chain said to have been complete for proving the complicity of the appellant could not be said to be proved; (iv) The conviction has been passed against the two accused persons, the appellants herein, but without the aid of Section 34 of the Penal Code, 1860, as such, the complicity of two accused cannot be said to have corroborated in absence of charge having not been framed under Section 34 of the Penal Code, 1860; (v) The questions so far as the confession having been made, has not been put to the accused persons in course of recording their statement under Section 313 of the Cr. P.C. 8. Submission has been made that since the conviction has been based upon the extra judicial confession, as such, putting no questions to that effect while recording the statement of the accused persons has cause serious prejudice and it is settled position of law that a question not put under Section 313 of Cr. P.C. cannot be used for convicting the accused person concerned showing the culpability of the commission of offence by him. 9. Mr. P.C. cannot be used for convicting the accused person concerned showing the culpability of the commission of offence by him. 9. Mr. Pankaj Kumar Mishra, learned APP while on the other hand has defended the impugned judgment by taking the ground that the learned trial court after taking into consideration the testimony of the prosecution witnesses who all along have corroborated about the confession so recorded of a person, namely, Suresh Prasad @ Mochhu who said to have heard the conversation which was being made by the appellants, basis upon which Gamchha and Chura has been recovered, the learned trial court has found the completion of chain in committing the murder of the deceased and hence, the conviction is based upon the said factual aspect which cannot be said to be improper. 10. Further, it has been submitted that merely because the investigating officer has not been examined, the entire prosecution will not be vitiated since the other witnesses have deposed in course of their examination/cross-examination supporting the prosecution version. 11. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned trial court in the impugned judgment and the testimony of the prosecution witnesses as available in the lower court record along with the documents which has been identified and marked as exhibits in course of trial. 12. The material available on record shows that the prosecution in order to establish the charges beyond all shadow of doubt has examined altogether 12 witnesses. It further transpires that it is a case where there is no eye witness to the occurrence and it has come in the testimony of P.W. 3 and 5 that they have over-heard the conversation made by the appellants regarding committing of murder of the deceased. 13. Further, it has come in the testimony of the P.W. 7 that the conversion about committing murder of the deceased by both the appellants have been confessed by them before the P.W. 7 having also been reduced in writing. Therefore, this court is now proceeding to examine the testimony of P.W. 3, 5 and 7 first, in order to deal with the issue as to whether the confession so made can be said to be extra judicial confession in the eyes of law basis upon which the judgment of conviction has been passed. 14. Therefore, this court is now proceeding to examine the testimony of P.W. 3, 5 and 7 first, in order to deal with the issue as to whether the confession so made can be said to be extra judicial confession in the eyes of law basis upon which the judgment of conviction has been passed. 14. It appears from the testimony of P.W. 3, namely, Baidyanath Mahto who has stated in testimony that after hearing about the commission of crime of murder, he along with other local people, has thought to ask from Suresh Pasad @ Mochu to enquire about the commission of crime because he used to sell liquor illegally. He has apprised to the P.W. 3 and other that on the date of occurrence at about 7-7 : 30 p.m., Suresh Kr. Roy and Chanderdeo Gope, the appellants herein, had gone to take liquor and at that time they were talking that one person is to be murdered. It has been stated that thereafter the appellants had been called upon the accused/appellant for the purpose of enquiry and they have been enquired and they have confessed that while they were in drunken stage had committed the murder of the deceased. 15. It has been stated that the narration of commission of murder has been apprised by both the appellants that how the murder has been committed. It has been stated thereafter that upon such confession, both the appellants have been handed over to the security officer, namely, Mani Bhushan Prasad, P.W. 2. Before him also, both the appellants have confessed the crime of committing murder of the deceased. This witness has been cross-examined and has corroborated what he has been stated in the examination-in-chief regarding the confession of commission of crime. 16. P.W. 5, namely, Chukendar Mahto has stated as would appear from the statement made at paragraph-3 that the appellant namely, Suresh Kumar Roy and Chanderdeo Mahto have confessed about the commission of murder of the deceased. 17. P.W. 7, namely, Dashrath Mahto has also stated that he came to know on enquiry from Suresh Prasad @ Mochu who used to sell liquor that two persons, namely, Suresh Roy and Chanderdeo Mahto, the appellants herein, in the drunken state were talking about the commission of murder of a person. Thereafter, when the appellants have been called upon, they have confessed the crime. 18. Thereafter, when the appellants have been called upon, they have confessed the crime. 18. He has further stated that both the appellants have disclosed about keeping the Gamchha and Chhura in the bush nearby the place of occurrence. He has further stated that the police has recovered the blood stained Gamchha from the bush but the knife had not been recovered. 19. In the cross-examination he has stated as would appear from the testimony as recorded at paragraph-5 that both the appellants have confessed their guilt by reducing it in writing having been signed by them jointly. 20. P.W. 10 is the Kailash Prasad and has reiterated what has been stated by P.W. 3, 5 and 7 by disclosing about the confession so made by the appellants who have confessed to have committed murder of the deceased. 21. Dr. A. A. Faruqui has been examined as P.W. 11 who has conducted the autopsy of the body of the deceased and has found the following injuries. (i) Stab wound 1? × ½? pharynx cavity on right parotid region, maxillary artery was found cut. (ii) Abrasion 2? × linear on right side abdomen. 22. P.W. 11 has given its opinion about the cause of death, i.e., due to shock and haemorrhage due to above injuries. Time elapsed since death has been found to be 48 hours. 23. In this case, the investigating officer has not been examined. 24. The learned trial court on the basis of the fact that the disclosure so made before the P.W. 3, 5 and 7 has convicted the appellants. 25. The issue which has been raised on behalf of the appellants regarding not putting the question about extra-judicial confession while recording the statement of the appellants under Section 313 of the Cr. P.C. and serious prejudice has been caused due to non-examination of the investigating officer. Further, the blood stained Gamhha and Chhura having not been send for chemical examination and without aid of Section 34 of the Cr. P.C. complicity of commission of crime of murder by both the appellants has been proved. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 , wherein it has been laid down at paragraph-6 which reads as under: “6. P.C. complicity of commission of crime of murder by both the appellants has been proved. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 , wherein it has been laid down at paragraph-6 which reads as under: “6. It is settled position of law that extrajudicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extrajudicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [ AIR 1954 SC 322 : 1954 SCR 1098 : 1954 Cri LJ 910] this Court again in Maghar Singh v. State of Punjab [ (1975) 4 SCC 234 : 1975 SCC (Cri) 479 : AIR 1975 SC 1320 ] held that the evidence in the form of extrajudicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of M.P. [ (1985) 4 SCC 26 : 1985 SCC (Cri) 460 : AIR 1985 SC 1678 ] this Court cautioned that it is not open to the court trying the criminal case to start with a presumption that extrajudicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extrajudicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extrajudicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand v. State of H.P. [ (1991) 1 SCC 286 : 1991 SCC (Cri) 172 : AIR 1990 SC 2140 ] this Court held that an unambiguous extrajudicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged under Section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26. The court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinised. To the same effect is the judgment in Baldev Raj v. State of Haryana [1991 Supp (1) SCC 14 : 1991 SCC (Cri) 659 : AIR 1991 SC 37 ]. After referring to the judgment in Piara Singh v. State of Punjab [ (1977) 4 SCC 452 : 1977 SCC (Cri) 614 : AIR 1977 SC 2274 ] this Court in Madan Gopal Kakkad v. Naval Dubey [ (1992) 3 SCC 204 : 1992 SCC (Cri) 598 : JT (1992) 3 SC 270] held that the extrajudicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration.” 26. In Vijay Shankar v. State of Haryana, (2015) 12 SCC 644 , wherein the Hon'ble Apex Court has laid down at paragraphs-17, 18 and 19 which read as under: “17. In Vijay Shankar v. State of Haryana, (2015) 12 SCC 644 , wherein the Hon'ble Apex Court has laid down at paragraphs-17, 18 and 19 which read as under: “17. Yet another circumstance relied upon by the prosecution is the extra-judicial confession allegedly made by the appellant to Budh Ram (PW 12). PW 12 has stated that he was a member of Gram Panchayat Dujana and on 19-3-1995, Vijay Shankar, the appellant came to his residence where Har Sarup Numberdar was also present. PW 12 stated that Vijay Shankar gave an extra-judicial confession of inflicting injuries to deceased Satish Kumar and requested PW 12 to save him. When PW 12 was only a member of Gram Panchayat and not a person of influence with the police, it is doubtful that the appellant Vijay Shankar had approached him making extra-judicial confession and requested him to save him. At this juncture, suggestion put to PW 10 during his cross-examination is relevant to be noted. In the cross-examination of PW 10, it was suggested to him that he has let out his shop to Budh Ram Gujjar, brother of Badlu, on the condition that Budh Ram Gujjar will depose in the case and therefore PW 12 cannot be said to be an independent witness. 18. Principles in respect of evidentiary value and reliability of extra-judicial confession have been summarised by this Court in Sahadevan v. State of T.N., (2012) 6 SCC 403 : (2012) 3 SCC (Cri) 146], which reads as under : (SCC pp. 412-13, para 16) “(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution. (ii) It should be made voluntarily and should be truthful. (iii) It should inspire confidence. (iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” 19. Extra-judicial confession is a weak piece of evidence and the courts are to view it with greater care and caution. (v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. (vi) Such statement essentially has to be proved like any other fact and in accordance with law.” 19. Extra-judicial confession is a weak piece of evidence and the courts are to view it with greater care and caution. For an extra-judicial confession to form the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. In the case on hand, extra-judicial confession allegedly made to PW 12 does not inspire confidence and cannot form the basis for the conviction.” 27. This Court is now proceeding to examine the ground basis upon which the impugned judgment has been said to suffer from infirmity. First ground is that no statement under Section 313 of Cr. P.C. has been recorded so far as the basis of conviction which is the confession so made by the appellants before the P.W. 3, 5 and 7 is concerned. 28. The position of law is well settled that the conviction cannot be based without putting specific questions under Section 313 of Cr. P.C. since the recording of statement under Section 313 of Cr. P.C. is the vital stage to provide opportunity to the accused to put his defence. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 . Paragraph-143, 144 and 145 of the said judgment read as under: “143. Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court viz. Circumstances 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code, 1973 they must be completely excluded from consideration because the appellant did not have any chance to explain them. Circumstances 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Criminal Procedure Code, 1973 they must be completely excluded from consideration because the appellant did not have any chance to explain them. This has been consistently held by this Court as far back as 1953 where in the case of Hate Singh Bhagat Singh v. State of Madhya Pradesh [1951 SCC 1060 : AIR 1953 SC 468 : 1953 Cri LJ 1933] this Court held that any circumstance in respect of which an accused was not examined under Section 342 of the Criminal Procedure Code cannot be used against him. Ever since this decision, there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 of the old Code (corresponding to Section 313 of the Criminal Procedure Code, 1973), the same cannot be used against him. In Shamu Balu Chaugule v. State of Maharashtra [ (1976) 1 SCC 438 : 1976 SCC (Cri) 56] this Court held thus : [SCC para 5, p. 440 : SCC (Cri) p. 58] “The fact that the appellant was said to be absconding, not having been put to him under Section 342, Criminal Procedure Code, could not be used against him.” 144. To the same effect is another decision of this Court in Harijan Megha Jesha v. State of Gujarat [1979 SCC (Cri) 652 : AIR 1979 SC 1566 : 1979 Cri LJ 1137] where the following observations were made : [SCC (Cri) p. 653, para 3] “In the first place, he stated that on the personal search of the appellant a chedi was found which was blood stained and according to the report of the serologist, it contained human blood. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant….” 145. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342, the prosecution cannot be permitted to rely on this statement in order to convict the appellant….” 145. It is not necessary for us to multiply authorities on this point as this question now stands concluded by several decisions of this Court. In this view of the matter, the circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code, 1973 have to be completely excluded from consideration.” 29. It is evident from the ratio laid down by the Hon'ble Apex Court hereinabove that not putting the question under Section 313 of Cr. P.C., what incriminating has come against the appellants and if in absence thereof, the conviction is based, the same cannot be said to be justified. 30. This Court is now proceeding to examine as to whether the basis of conviction, i.e., confession made by the appellants before P.W. 3, 5 and 7 have at all been put to the appellants while recording his statement under Section 313 of Cr. P.C. or not? 31. The statement made under Section 313 of Cr. P.C. is on record and it is evident from its perusal that no such question has been put save and except the question to the effect that “have you heard the testimony” and second question has been put that “it has been stated in the testimony that on the night of 25/26 September, 1990 in the quarter no. 48 of Arra Colony Madho Gope has been murdered, what is to be said on this testimony?” For ready reference, both the questions are being reproduced as under: 32. Statement of Chandradeo Gope: ^^iz'u % vkius xokgh lquh\ mŸkj % th gka lquhA iz'u % xokgh esa dgk x;k gS fd fnukad 25@26 flracj] 1990 dh jkr esa vkjk dkyksuh ds dkVZj uacj 48 esa ek/kks xksi dh gR;k gks xbZ gSA bl ij vkidks D;k dguk gS\ mŸkj % bl laca/k esa eS dqN ugh tkurk gwWA^^ 33. Statement of Chandradeo Gope: ^^iz'u % vkius xokgh lquh\ mŸkj % th gka lquhA iz'u % xokgh esa dgk x;k gS fd fnukad 25@26 flracj] 1990 dh jkr esa vkjk dkyksuh ds dkVZj uacj 48 esa ek/kks xksi dh gR;k gks xbZ gSA bl ij vkidks D;k dguk gS\ mŸkj % bl laca/k esa eS dqN ugh tkurk gwWA^^ 33. Statement of Suresh Kumar Roy: ^^iz'u % vkius xokgh lquh\ mŸkj % th gka lquhA iz'u % xokgh esa dgk x;k gS fd fnukad 25@26 flracj] 1990 dh jkr esa vkjk dkyksuh ds dkVZj uacj 48 esa ek/kks xksi dh gR;k gks xbZ gSA bl ij vkidks D;k dguk gS\ mŸkj % bl fo"k; esa ge dqN ugh tkurs gSA^^ 34. It is, thus, evident that no question has been put before the accused/appellants about making confession before P.W. 3, 5 and 7, as such, serious prejudice has been caused to the appellants since they have not been provided with an opportunity to put their defence so far as the allegation made on the basis of confession so made before P.W. 3, 5 and 7. 35. The importance of putting question to that effect is much more important in view of the fact that the confession so made as has been disclosed by P.W. 7 and the same has been reduced in writing but no such document has been made available on record. Therefore, the ground as has been agitated regarding not putting question with respect to the confession so made before P.W. 3, 5 and 7, according to the considered view of this Court, caused serious prejudice to the appellants in view of the position of law as has been referred above. 36. The second ground has been taken that the investigating officer has not been examined in this case, as such, the issue of recovery of blood stained Gamchha in order to attract the provision of Section 27 of the Indian Evidence Act cannot be said to have proved since the Gamchha which has been said to be recovered having blood stained has not been send for chemical examination and why it has not been send for chemical examination, has not come on record since the investigating officer has not been examined. 37. 37. Further, so far as Chhura is concerned, as would be evident from the testimony of P.W. 7 that the Chhura has not been recovered from the place of occurrence as has been disclosed by the appellants before the P.W. 3, 5 and 7 and its non-availability at the place of occurrence also creats doubt about the prosecution story. 38. The argument has also been made that the two appellants have been found to be involved in the crime of murder but question is that without framing charge under Section 34 regarding common intention how two persons can be convicted under Section 302 of the Penal Code, 1860. 39. Before dealing with the issue, implication of Section 34 is required to be referred herein. It is the settled position of law that Section 34 of I.P.C. is a rule of evidence and does not create substantive offence. The intention can be inferred from the circumstances appearing from the proved facts of the case as also the meeting of minds of all accused persons to commit offence should be established. It is not necessary to prove or to show the overt act on the part of every accused. 40. The Hon'ble Apex Court in State of U.P. v. Atul Singh, (2009) 14 SCC 439 : AIR 2009 SC 2173 and in Bengai Mandal @ Begai Mandal v. State of Bihar, (2010) 2 SCC 91 : AIR 2010 SC 686 has held that common intention in most of the cases is to be inferred from the act and conduct of the accused and other relevant circumstances. 41. In Thoti Manohar v. State of Andhra Pradesh, (2012) 78 ACC 511 SC, the Hon'ble Apex Court has held that the previous meetings of minds with pre-arranged plan or prior concert is difficult to establish by way of direct evidence. It has to be inferred from the conduct of the accused and the circumstances. 42. It is evident that Section 34 stipulates about common intention in committing crime and only in that circumstances the complicity of the appellant who are more than one in number can be attributed while attracting the offence said to have been committed under Section 302 of the Penal Code, 1860. 42. It is evident that Section 34 stipulates about common intention in committing crime and only in that circumstances the complicity of the appellant who are more than one in number can be attributed while attracting the offence said to have been committed under Section 302 of the Penal Code, 1860. Therefore, without having framed the charge under Section 34, both the appellants have been convicted which also according to the considered view of this Court, is serious lapses on the part of the learned trial court. 43. The position of law is well settled that the conviction can only be based on the basis of charge proved beyond all shadow of doubt whether in case of direct evidence or circumstantial evidence. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in Rang Bahadur Singh v. State of U.P., (2000) 3 SCC 454 . Paragraph-22 of the said judgment reads as under: “22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime.” 44. In Sheila Sebastian v. R. Jawaharaj, (2018) 7 SCC 581 , wherein at paragraph-28 it has been laid down which reads as under: “28. In this case at hand, the imposter has not been found or investigated into by the officer concerned. Nothing has been spilled on the relationship between the imposter and Respondent 1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Nothing has been spilled on the relationship between the imposter and Respondent 1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the courts to ensure that suspicion does not take place of the legal proof. In this case, the trial court as well as the appellate court got carried away by the fact that accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e. PoA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability.” 45. This Court has examined the factual aspect of the given case on the basis of the law settled regarding proving of charge in case of circumstantial evidence but herein, the due confession so made by the appellants having not been put specific questions to that effect under Section 313 of Cr. P.C. and investigating officer has not been examined and blood stained Gamchha was recovered from the place of occurrence but not send for chemical examination and the recovery of Chura is not made, according to the considered view of this Court, cannot be said to have completion of chain showing the complicity of the appellants in commission of crime. 46. This Court having discussed the fact in entirety as above and after going through the judgment of conviction of the learned trial court wherefrom it is evident from the discussion made at paragraph-13 that the learned trial court although has discussed the settled position about disclosure of confession made before the security officer who is not a police officer but he has been considered to be person in authority, as such, the confession made before the security officer has been held to be inadmissible in law but the said inadmissibility has subsequently been considered to be admissible after considering the testimony of P.W. 3, 5, 7 and 10, which is the basis of conviction of the appellants. 47. 47. The aforesaid finding, according to the considered view of this Court, cannot be said to be just and proper reason being that the confession so made as has been said to have been recorded as per the testimony of P.W. 7 has not been brought on record. P.W. 3, 5, 7 and 10 have only disclosed that the confession has been made by these appellants but the learned trial court has failed to appreciate that no specific question has been put to the appellants while recording their statement under Section 313 of Cr. P.C. and the version having not been corroborated due to non-examination of the investigating officer, as such, the element of doubt is there and also doubt of complicity of the appellants in commission of offence is there but the learned trial court has failed to consider that aspect of the matter, therefore, the impugned judgment, according to the considered view of this Court, requires interference. 48. Accordingly, the instant appeal stands allowed. 49. The appellants are acquitted and discharged from criminal liability. 50. The Member Secretary, Jharkhand High Court Legal Services Committee is to reimburse the admissible fee in favour of Mr. Rakesh Kumar Sinha, learned amicus who has been appointed as amicus vide order dated 09th April, 2019. 51. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.