JUDGMENT : SUJIT NARAYAN PRASAD, J. 1. The instant appeal has been preferred under Section 374(2) read with 389(1) of the Code of Criminal Procedure against the Judgment of conviction dated 29.11.2016 and Order of sentence dated 30.11.2016, passed by learned Additional Sessions Judge-I, Koderma, in Sessions Trial No. 19 of 2011, whereby, the appellant has been found guilty and convicted for the offences under Section 302/34 of the Indian Penal Code and upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life for the offence under Section 302 of the Indian Penal Code and fine of Rs.20,000/- and in default of payment of fine, further S.I. for one year. 2. The prosecution case was instituted on the basis of fardbeyan of informant Mostt. Chaity in which she has stated that she was maid servant of deceased S.K. Paul. On 27.02.2010 at about 4:00 a.m. she went to the house of the deceased S.K. Paul. At about 8:00 a.m. S.K. Paul, who was driver of Tower Wagon, left for duty. He returned from duty at about 4:00 p.m. and then again left for market at 5:00 p.m. He returned from market at around 6:30 p.m. He had brought meat from the market and told the informant to cook the meat. Thereafter, S.K. Paul was taking rest on folding-cot. At about 6.30 P.M. the informant came out from the kitchen with tea. She saw two persons were pressing S.K. Paul on the folding cot. She did not understood the mater and thought some friends might be putting colour due to Holi festival. She said them to have tea and then play Holi, then one of them came and thrown the tea and assaulted her with fist. Thereafter she saw the face of both persons and she identified them, one of them, was Upendra Paswan and the another one was Mohan Ghatwar (accused). Upendra Paswan kept her Master pressed and Mohan Ghatwar shot bullet in the stomach of her Master S.K. Paul and fled away from the house. She opened the back door and raised “hulla.” The people reached there and brought her Master to the Parwati Clinic Telaiya for treatment, where he died. It has been further alleged that as per her fardbeyan accused Mohan Singh Ghatwar and Upendra Paswan have committed the murder of S.K. Paul by shooting him. 3. She opened the back door and raised “hulla.” The people reached there and brought her Master to the Parwati Clinic Telaiya for treatment, where he died. It has been further alleged that as per her fardbeyan accused Mohan Singh Ghatwar and Upendra Paswan have committed the murder of S.K. Paul by shooting him. 3. On the basis of the aforesaid fardbeyan Koderma (T) P.S. Case No. 79 of 2010 dated 27.02.2010 under Section 302/34 I.P.C. and Section 27 of the Arms Act against the accused Upendra Paswan and Mohan Singh @ Mohan Singh Ghatwar was registered. 4. After investigation, police found the occurrence to be true and submitted charge-sheet on 18.11.2010 against the accused under sections 302 of the I.P.C. and Section 27 of the Arms Act. 5. The cognizance of the case was taken and the case was committed to the Court of Sessions on 18.11.2010. 6. On 21.07.2011, the charge under sections 302/34 I.P.C was framed against the accused, namely, Mohan Singh Ghatwar, to which he pleaded not guilty and claimed to be tried. 7. In order to prove its case, the prosecution has adduced 07 witnesses, namely, PW-1 Asim Kumar Devnath, PW-2 Mostt, Chaity - Informant, PW-3 Nageshwar Prasad, PW-4 Binay Kumar Tiwari, PW-5 S.C. Jha: Investigating Officer, PW-6 Rajeev Ranjan: Officer-in-charge cum investigating Officer and PW-7 Dr. Awadesh Kumar, Medical Officer. 8. The prosecution has also adduced fardbeyan of informant as Ext. 1, Formal F.I.R. as Ext. 2, confessional statement of accused/appellant as Ext. 3 and Post-mortem report as Ext.-4. 9. The statement of the accused was recorded under section 313 of the Cr.P.C. wherein he has denied the evidence against him. No evidence was adduced by the defence. Grounds on behalf of the Appellant 10. Mr. Avilash Kumar, learned counsel for the appellant, has taken the following grounds in assailing the impugned order of conviction: (i) The conviction is based upon the contrary principle of the charge is to be established beyond all reasonable doubt. (ii) The sole testimony upon which the appellant has been convicted is of informant who has been considered to be eye witness, i.e. PW-2 Mostt. (ii) The sole testimony upon which the appellant has been convicted is of informant who has been considered to be eye witness, i.e. PW-2 Mostt. Chaity, but her testimony cannot be said to be trustworthy in view of the fact that when the PW-1 has reached to the place of occurrence, the informant PW-2 was at the place of occurrence but she has not disclosed the name of the appellant or anybody causing assault by the bullet as per the narration made by her in the F.I.R. or in the testimony. (iii) In the case of sole eye witness, the conviction can only be said to be based if the testimony of sole eye witness is trustworthy. But herein, the testimony of PW-2 cannot be said to be trustworthy, reason being that she has not disclosed the name of anyone including the appellant who has assaulted by bullet as has been deposed by her in her testimony while in the testimony she has disclosed the name of the appellant along with one Upendra. Further, PW-1 version is that after commission of the crime, the PW-2 had given a call to PW-1 and he was the first person to reach the place of occurrence but very surprisingly, the name of the appellant has not been disclosed by PW-2 to PW-1 and while in the F.I.R. she has disclosed the name of the appellant which is nothing but an afterthought and so as she has supported the version which has given in the F.I.R. Hence, in such a contradictory statement, the testimony of PW-2 cannot be said to be trustworthy. But the learned court without appreciating the aforesaid fact, since has convicted the appellant, the judgment of conviction is bad in the eyes of law. (iv) The testimony of PW-2 can also be said to be not trustworthy since her testimony was no substantiated by the other prosecution witnesses. (v) The testimony if PW-2 also cannot be said to be trustworthy since from the testimony of the Investigating Officer, i.e. PW-6, wherein he has deposed that there was sign of blood or blood stain at the place of occurrence but it was not in sufficient quantity for taking the sample for its examination. 11. (v) The testimony if PW-2 also cannot be said to be trustworthy since from the testimony of the Investigating Officer, i.e. PW-6, wherein he has deposed that there was sign of blood or blood stain at the place of occurrence but it was not in sufficient quantity for taking the sample for its examination. 11. Learned counsel for the appellant, based upon the aforesaid grounds, has submitted that the conviction since is based upon the sole testimony of PW-2 which as per the aforesaid ground, cannot be said to be trustworthy, hence, the judgment impugned is not sustainable in the eyes of law. Grounds on behalf of the State 12. Per contra, Mrs. Lily Sahay, learned Additional Public Prosecutor, appearing for the respondent State, has defended the impugned judgment of conviction on the following grounds: (i) It is incorrect on the part of the appellant to take the ground that the testimony of PW-2 is not trustworthy, rather, she is the sole eye witness who has witnessed the commission of crime, i.e. the gunshot injury given by the appellant in the abdomen of the deceased, the testimony of PW-2 has also been corroborated by the medical evidence and other witnesses. (ii) The learned court by taking into consideration the aforesaid fact since has convicted the appellant, hence, the judgment of conviction cannot be said to suffer from any impropriety. 13. Learned counsel for the State respondent, on the basis of the aforesaid grounds, has submitted that the impugned judgment suffers from no infirmity and needs no interference. Analysis 14. This Court has heard the learned counsel for the parties, gone across the finding recorded by the learned trial court in the impugned judgment, gone across the testimony of the prosecution witnesses including the postmortem report as available in the trial court records. 15. This Court now is to consider as to whether the judgment passed by the learned trial court can be said to be sustainable in the eyes of law. 16. This Court, in order to answer the aforesaid issue, deems it fit and proper to refer the testimony of the prosecution witnesses. PW-1 Asim Kumar Deonath - According to this witness the occurrence is of 27.02.2010. 16. This Court, in order to answer the aforesaid issue, deems it fit and proper to refer the testimony of the prosecution witnesses. PW-1 Asim Kumar Deonath - According to this witness the occurrence is of 27.02.2010. On that day he was on duty from 7.00 A.M to 5.30 P.M. He reached at his quarter at about 5.30 P.M. The deceased (S.K. Paul) was also a driver of maintenance van in his department (Railway). The quarter of the deceased was situated behind his quarter. He received telephonic message near about 6.30 P.M from in-charge of his department that someone has shot S.K. Paul. On this information, he reached at the quarter of S.K. Paul who was residing alone. Chaity Mosomat (PW-2) was his maid servant. Mostt. Chaity was present at the quarter of S.K. Paul. She was telling (Maar Diya, Goli Maar Diya. Jaan Bachaiye) shot, shot, please save the life, but she was not telling the name of the shooter. His statement was recorded by the police. S.K. Paul was brought to hospital by him where he died. Police came at the hospital and prepared inquest report on which he signed. In his cross-examination, he has admitted that the occurrence had not occurred in his presence. PW-2 Mostt. Chaity - According to this witness S.K. Paul was the driver of railway department. He was residing at Gajhandi Railway Colony. He was living alone. She was his maid servant. She used to cook for him. Her fardbeyan was recorded at Parwati Clinic at about 10.00 P.M. She deposed that the occurrence had occurred two years ago. S.K. Paul came at his house from duty at about 4.00 P.M and again went to market. He returned to his house from the market and brought meat with him and told her to cook meat. She was cooking meat in the kitchen and S.K. Paul was watching T.V. in his room. She went to him to serve tea then she saw Mohan and Upendra were pressing him on his bed (cot) and was demanding money from him. She thought both are friends of Paul Saheb. Thereafter, Upendra assaulted to her also, as a result of which, the tea which she had brought for S.K. Paul fell on the ground. Thereafter, Mohan took out a weapon and pointed to his abdomen. She protested but she was pushed by Mohan. She thought both are friends of Paul Saheb. Thereafter, Upendra assaulted to her also, as a result of which, the tea which she had brought for S.K. Paul fell on the ground. Thereafter, Mohan took out a weapon and pointed to his abdomen. She protested but she was pushed by Mohan. Mohan shot Paul at the point blank range. She started weeping. Then Paul told her to open the back door and raise alarm. Thereafter several people reached there. Paul was brought to Parwati Clinic for treatment but as soon as Paul reached at the bed of clinic, he died. Police came there and recorded her statement which she put her LTI. At the time of her examination accused was present in the court. Accused was identified by this witness. In her cross-examination she remained consistent and deposed that she has seen the occurrence. She further deposed that when she raised “hulla” after opening the back door, the people were gathered there. PW-3 Nageshwar Prasad - In his deposition this witness deposed that he knows Subrato Kumar Paul who was a driver in Railway Department. This witness received information that S.K. Paul has been murdered. On that information he reached at the quarter of S.K. Paul where he found the deceased crying in pain. The blood was oozing from his body. He brought him to hospital, but he could not say how S.K. Paul sustained injury on his body and police did not record his statement during investigation. Thereafter this witness has been declared hostile on the prayer of learned A.P.P. This witness has also been cross-examined by the learned A.P.P after declaring hostile. In his cross-examination this witness admits that when he reached at the place of occurrence, informant was present there and was weeping. In his cross-examination by the defence counsel he admits that he did not had any talk with the deceased. PW-4 Binay Kr. Tiwari - According to this witness he reached at the quarter of deceased after receiving the information about the gunshot injury to S.K. Paul in the evening. He saw gunshot injury in the abdomen of S.K. Paul. He along with other brought him to Parwati Clinic, where he died. He further deposed that when he reached at the quarter of S.K. Paul he saw maid servant of S.K. Paul, Mostt. Chaity was present there. He saw gunshot injury in the abdomen of S.K. Paul. He along with other brought him to Parwati Clinic, where he died. He further deposed that when he reached at the quarter of S.K. Paul he saw maid servant of S.K. Paul, Mostt. Chaity was present there. But what she was saying, he did not know. Police did not record his statement. Thereafter this witness has also been declared hostile on the prayer of the learned A.P.P. PW-5 S.C. Jha - He is the Investigating Officer. According to this witness, the occurrence had occurred on 27.02.2010. On that day he was posted as S.I. at Telaiya Police Station. He received the charge of investigation on that day. He further deposed that after receiving charge of investigation of this case he visited the place of occurrence and recorded statement of informant and witnesses, namely, Nageshwar Prasad, Binay Tiwari, Punit, S.K. Deonath, in which they have clearly supported the case of the prosecution and stated that when they reached at the place of occurrence Mostt. Chaity was saying that accused Upendra and Mohan had shot her Master S.K. Paul. Thereafter he handed over the charge of investigation to the then officer-in-charge Sri Rajeev Ranjan (PW-6) on the direction of S.P. Koderma on 14.03.2014. He further deposed that fardbeyan of informant and confessional statement of accused Mohan Singh were recorded by the then officer-in-charge Rajeev Ranjan. On his identification fardbeyan, formal F.I.R. and confessional statement have been marked as Ext. 1, 2 and 3 respectively. In his cross-examination he admits that he did not seize folding cot from the house of deceased and he could not record the statement of deceased's wife. He further admits that accused Mohan Singh was not arrested by him. PW-6 Rajeev Ranjan - According to this witness on 27.02.2010 he was posted as Officer in-Charge at Telaiya P.S. On that day, he recorded the statement of Mostt. Chaity at about 10.00 P.M at Parwati Clinic and handed over the charge of investigation to S.C. Jha, ASI and forwarded the F.I.R. to the Koderma Police station for institution of the case. He received the charge of investigation on 18.04.2010. Chaity at about 10.00 P.M at Parwati Clinic and handed over the charge of investigation to S.C. Jha, ASI and forwarded the F.I.R. to the Koderma Police station for institution of the case. He received the charge of investigation on 18.04.2010. During the course of investigation, accused Mohan Singh Ghatwar was arrested by him alongwith fire arms and ammunition for which a separate case, being Koderma (T) P.S. Case No. 119/10, under Sections 25(1)a/26 of Arms Act was registered against the accused Mohan Singh Ghatwar. Accused Mohan Ghatwar confessed his guilt and admitted that he had committed the murder of S.K. Paul and the pistol and used cartridge (Khokha) which were recovered from his possession were used to shot the deceased S.K. Paul. Thereafter his confessional statement was recorded by him. He also identified his writing and signature on the confessional statement which had already been marked as Ext.3. He received Post-mortem report and recorded the statement of witnesses Kajol Paul, Manju Paul and Santu Paul and on the basis of material collected during investigation, charge-sheet was submitted by him. In his cross-examination he admits that during the course of investigation the statement of deceased's wife, mother, son and daughter were recorded by him who were living at Dhanbad and deceased was living at Telaiya alone. He also admits that after recording the fardbeyan of informant he also visited on the spot on next day along with the then I.O. of this case. He further deposed that accused was apprehended on 28.05.2010 in another case and remanded in this case on 04.08.2010. He further admits that during the period of his investigation no proof was found regarding enmity between accused and informant. PW-7 Dr. Awadesh Kumar - According to this witness on 28.02.2010 he was posted at Sadar Hospital, Koderma as Medical Officer. On the said date at about 10.50 A.M. he conducted post-mortem examination of deceased S.K. Paul. On examination: He found rigor mortis present, hair black, eyes closed, mouth closed. External Injuries: A wound as hole like with black margin skin of about 3/4” radius on lower part of left side chest at level of last ribs. A wound as hole like of about 1 “radius on back of lower part of chest about 3” away on left side from backbone. On dissection: Chest and abdominal cavity were found full of blood clot. Lungs both pale. A wound as hole like of about 1 “radius on back of lower part of chest about 3” away on left side from backbone. On dissection: Chest and abdominal cavity were found full of blood clot. Lungs both pale. Heart both chambers empty. Liver pale. Spleen teared. Left kidney teared and right kidney pale. Urinary bladder empty. Stomach with digested food material. Intestine with gas. Opinion: Cause of death was shock and hemorrhage due to bullet injuries and time elapsed is 24 hours before the postmortem done. The P.M. report is in his pen and bears his signature which has already been exhibited as Ext.4 In his cross-examination, he admits that he has seen the bullet, the pistol and cartridge but he is unable to explain the difference amongst the same. He has not registered the fact regarding the distance from which the bullet was fired causing the injury which was found on the person of the injured. He has not found any bullet in the body of the injured. He had not found broken ribs. This is true that nature of injury has not been registered by him. This is not true that the report is a table work and he has not actually made any such examination of the person of the injured. 17. It appears from the testimony of the witnesses, particularly, PW-2-Mostt. Chaity, who has deposed that she was present in the house when the occurrence took place. She also tried to protest. She also raised alarm upon which several people gathered there. Deceased S.K. Paul was brought to Parwati Clinic for treatment but as soon as Paul reached at the bed of clinic, he died. Police came there and recorded her statement. She also identified the accused in court. 18. In her cross-examination also she remained consistent and deposed that she has seen the occurrence. She further deposed that when she raised “hulla”, after opening the back door, the people were gathered there. 19. The law is well settled that the judgment of conviction can be passed also on the basis of the testimony of sole witness but the testimony of said witness should be trustworthy as per the judgment rendered by Hon'ble Apex Court in the case of Bipin Kumar Mondal v. State of West Bengal, (2010) 12 SCC 91 paragraphs 30 to 34 of the said judgment are being referred hereunder as: “30. Shri Bagga has also submitted that there was sole testimony of Sujit Mondal, PW-1, and the rest i.e. depositions of PW-2 to PW-8, could be treated merely as hearsay. The same cannot be relied upon for conviction. 31. In Sunil Kumar v. State (Govt. of NCT of Delhi) this Court repelled a similar submission observing that: (SCC p. 371, Para 9) “9.........as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But, if there are doubts about the testimony the courts will insist on corroboration.” In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. 32. In Namdeo v. State of Maharashtra this Court reiterated the similar view observing that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. 33. In Kunju v. State of Tamil Nadu, a similar view has been reiterated placing reliance on various earlier judgments of this Court including Jagdish Prasad v. State of M.P. and Vadivelu Thevar v. State of Madras. 34. Thus, in view of the above, the bald contention made by Shri Bagga that no conviction can be recorded in case of a solitary eyewitness has no force and is negatived accordingly.” 20. 34. Thus, in view of the above, the bald contention made by Shri Bagga that no conviction can be recorded in case of a solitary eyewitness has no force and is negatived accordingly.” 20. Likewise, the Hon’ble Apex Court in the case of Kuriya and another vs. State of Rajasthan, (2012) 10 SCC 433 held as under: “ 33......The Court has stated the principle that, as a general rule, the Court can and may act on the testimony of a single eyewitness provided he is wholly reliable and base the conviction on the testimony of such sole eyewitness. There is no legal impediment in convicting a person on the sole testimony of a single witness.” 21. The Hon’ble Apex Court in the case of Kalu @ Amit vs. State of Haryana, (2012) 8 SCC 34 held as under: “11. We find no infirmity in the judgment of the High Court which has rightly affirmed the trial court’s view. It is true that the accused have managed to win over the complainant PW-4 Karambir Yadav, but the evidence of PW-5 Ram Chander Yadav bears out the prosecution case. It is well settled that conviction can be based on the evidence of a sole eyewitness if his evidence inspires confidence. This witness has meticulously narrated the incident and supported the prosecution case. We find him to be a reliable witness.” 22. It is pertinent to mention here that the Hon'ble Apex Court in catena of decision has held that conviction can be based upon the basis of testimony of the sole eyewitness if it inspires confidence. The Hon’ble Apex Court in case of Sheelam Ramesh v. State of A.P. (1999) 8 SCC 369 in Para-18 held as follows: “18. According to learned counsel for the accused appellants, though PW-3 has deposed that 10-15 persons were in the vicinity at the time of occurrence, no independent witness was examined by the prosecution. There is nothing on evidence to show that there was any other eyewitness to the occurrence. Having examined all the eyewitnesses even if other persons present nearby were not examined, the evidence of the eyewitnesses cannot be discarded. Courts are concerned with quality and not with quantity of evidence and in a criminal trial, conviction can be based on the sole evidence of a witness if it inspires confidence.” 23. Having examined all the eyewitnesses even if other persons present nearby were not examined, the evidence of the eyewitnesses cannot be discarded. Courts are concerned with quality and not with quantity of evidence and in a criminal trial, conviction can be based on the sole evidence of a witness if it inspires confidence.” 23. At this juncture this Court thinks fit to revisit the testimony of the witnesses particularly the sole eyewitness, in the backdrop of aforesaid legal proposition. 24. The normal conduct of a person before whom a bullet injury is given and if any person comes at the place of occurrence the person who had witnessed the commission of crime, then such person, he or she, will first disclose the name of that person who has given the bullet injury. 25. Herein, the PW-1 was the first person who after calling upon by the PW-2 had reached to the place of occurrence but PW-1 had specifically deposed that when he had reached to the place of occurrence, PW-2 was at the place of occurrence but she did not disclose the name of anyone as to who had assaulted the deceased. However, in the testimony of PW-2, she disclosed the name of the appellant and Upendra Pal. 26. The Doctor, PW-7, has deposed in his cross-examination that he has not registered the fact regarding the distance from which the bullet was fired causing the injury which was found on the person of the injured. 27. It further appears from paragraph-6 of the cross-examination that the Doctor has specifically deposed that he has not found any bullet in the body of the injured. He further stated that he had not found broken ribs. 28. At paragraph-7 of the cross examination, he has also deposed that nature of injury has not been registered by him. 29. Further, it is specific case of PW-2 that bullet injury was given in the abdomen of the deceased in his house but no empty cartridges were found at the place of occurrence and blood trace was there but was not enough for taking sample for its examination. 30. The question is that when bullet injury has been given then the bullet either will be found at the place of occurrence or in the body of the deceased. 30. The question is that when bullet injury has been given then the bullet either will be found at the place of occurrence or in the body of the deceased. But the Doctor, who has conducted autopsy of the dead body, has not found any bullet inside the body. The I.O. has also no seized any empty cartridge from the place of occurrence. 31. This Court, in view of the aforesaid ground, is of the view that testimony of PW-2 cannot be said to be fully reliable as per the settled law that the conviction is to be based also on the basis of the testimony of sole witness but such witness is to be trustworthy and corroboration from other witnesses is also required but herein it is absent. 32. Herein, on critical appreciation of the testimony of witness, namely, PW-2-Mostt. Chaity based upon the grounds referred hereinabove, cannot be said to be trustworthy. 33. Herein, since this Court has come to the conclusion that the testimony of PW-2 is not trustworthy but the learned trial court without appreciating the aforesaid fact since has passed the judgment of conviction, therefore, this Court is of the view that the judgment of conviction cannot be said to be based upon the principle that the culpability as alleged to have been committed by the appellant has been proved beyond all reasonable doubt which is the basic principle for convicting a person by taking away the right to liberty as has been held by Hon'ble Apex Court in the case of Rang Bahadur Singh and Ors. v. State of U.P. (2000) 3 SCC 454 wherein at paragraph 22 it has been held which reads hereunder as: “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. 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.” 34. Further, in the case of Sheila Sebastian v. R. Jawaharaj and Anr. (2018) 7 SCC 581 the Hon'ble Apex Court has held at paragraph 28 which reads hereunder as: “28.........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.” 35. The learned trial court while passing the judgment has taken note of the confessional statement of the appellant but the law is well settled that there cannot be any conviction on the basis of the confession, reference in this regard be made to the judgment rendered by Hon'ble Apex Court in the case of Aghnoo Nagesia v. State of Bihar, (1966) 1 SCR 134 : AIR 1966 SC 119 wherein at paragraph 9 it has been held which is being quoted hereunder as: “9. Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found under the heading “Admissions.” Confession is a species of admission and is dealt with in Sections 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides: “No confession made to a police officer, shall be proved as against a person accused of an offence.” The terms of Section 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides: “No confession made to a police officer, shall be proved as against a person accused of an offence.” The terms of Section 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression “accused of any offence” covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by Section 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by Section 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by Sections 24, 25 and 26. It provides 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. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-section (2) and it specifically provides that nothing in it shall be deemed to affect the provisions of Section 27 of the Evidence Act. The words of Section 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under Section 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. The words of Section 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under Section 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by Section 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under Section 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by Section 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by Section 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them.” 36. Likewise, in the case of State of A.P. v. Gangula Satya Murthy, (1997) 1 SCC 272 , the Hon'ble Apex Court has held at paragraph 19 which reads hereunder as: “19. The other reasoning based on Section 26 of the Evidence Act is also fallacious. It is true any confession made to a police officer is inadmissible under Section 25 of the Act and that ban is further stretched through Section 26 to the confession made to any other person also if the confessor was then in police custody. Such ‘custody’ need not necessarily be post-arrest custody. The word ‘custody’ used in Section 26 is to be understood in a pragmatic sense. If any accused is within the ken of surveillance of the police during which his movements are restricted then it can be regarded as custodial surveillance for the purpose of the section. If he makes any confession during that period to any person be he not a police officer, such confession would also be hedged within the banned contours outlined in Section 26 of the Evidence Act.” 37. If he makes any confession during that period to any person be he not a police officer, such confession would also be hedged within the banned contours outlined in Section 26 of the Evidence Act.” 37. In the case of Geejaganda Somaiah v. State of Karnataka, (2007) 9 SCC 315 the Hon'ble Apex Court has observed at paragraph 21 which reads hereunder as: “21. Section 25 of the Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Sections 25 to 26 of the Evidence Act, there is an exception carved out by Section 27 of the Evidence Act providing 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. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.” 38. Here, it is not a case that anything was recovered leading to the confession and, hence, this case is not under the fold of the exception of the Evidence Act so as to apply the provision of Section 27 of the Evidence Act but the learned trial court has not appreciated the aforesaid legal aspect. Conclusion 39. This Court, having discussed the aforesaid fact and coming to the order impugned, has found that the learned trial court has considered the testimony of PW-2 as testimony of trustworthy witness but while coming to such conclusion, the contradiction with the testimony of PW-1 and PW-7 has not been taken note of. 40. Conclusion 39. This Court, having discussed the aforesaid fact and coming to the order impugned, has found that the learned trial court has considered the testimony of PW-2 as testimony of trustworthy witness but while coming to such conclusion, the contradiction with the testimony of PW-1 and PW-7 has not been taken note of. 40. This Court, based upon the aforesaid factual aspect and legal position, is of the view that prosecution is not able to prove the charge beyond all reasonable doubts and the judgment impugned needs to be interfered with. 41. For the foregoing reasons, the impugned Judgment of conviction dated 29.11.2016 and Order of sentence dated 30.11.2016, passed by learned Additional Sessions Judge-I, Koderma, in Sessions Trial No. 19 of 2011, convicting and sentencing the appellant, namely, Mohan Singh @ Mohan Singh Ghatwar, for the offence under Section 302 of the Indian Penal Code, are hereby, quashed and set aside. 42. Since this Court has come to the conclusion that the prosecution is not able to prove the charge beyond all reasonable doubts, the appellant is given the benefit of doubt and he is acquitted of the charge. The appellant, namely, Mohan Singh @ Mohan Singh Ghatwar, is still in custody undergoing the sentence. He is directed to be released and set at liberty forthwith, if his detention is not required in any other case. 43. This appeal is accordingly, allowed. The appellant is discharged from criminal liability. 44. Let the Trial Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment. I agree - PRADEEP KUMAR SRIVASTAVA, J.