Varma, J.This is a reference u/s 374, Criminal P.C., by the Agency Sessions Judge of Koraput, in the case of one Kommoju Brahman, aged 35, Viswa Brahmin, by caste, a goldsmith by occupation, of village Sovai, Taluk Pottanghi, within the jurisdiction of Nandapur police station in Koraput, who has been convicted u/s 302, I.P.C., and sentenced to death for having killed a woman named Kali Moni, aged 20, who belonged to the Payako caste, at about 3 A.M. on 24th April 1939. There is also an appeal by the accused against his conviction and sentence.

Kali Moni was a kept woman of the accused. The accused and the deceased used to live in a verandah of Morchomalia Lokhon (P.W. 9), an uncle of the deceased woman.

2. The verandah was enclosed by a matting, and the accused and the deceased woman used to sleep therein. There they lived together for three years and a child was born to them about six months before the date of the occurrence. P.W. 9 and his wife Hiramani (P.W. 10) lived inside the house, and the door of their room communicated directly with the verandah in which the accused and the deceased slept. P.Ws. 9 and 10, the accused and the deceased, as well as their child went to sleep on the night of 23rd April 1939. Early in the morning at about 3 A.M., P.Ws. 9 and 10 were both awakened from sleep by hearing of the voice of the deceased--"Father ! I am dying." P.W. 9 lit a lamp, opened the door, and as he attempted to come put he found the accused standing with a bloodstained knife in his hand and the body of the deceased at his feet with a number of stab wounds from which blood was gushing out.

3. The accused threatened P.W. 9 to stab him also, whereupon P.W. 10 pulled him back into the room and the door of the room was shut. P.W. 9 raised an outcry from inside the room calling out loudly by names P.Ws. 11, 12, 13 and 14. Kichi Syamo and Pujari Raghunath (P.Ws. 11 and 12), whose houses are at a distance of 2 and 10 steps, respectively, from the house of P.W. 9, were the first to respond to the cries of P.W. 9. They came out of their houses and saw the accused proceeding towards the direction of Nandapur police station.

4. Then they came to the house of P.W. 9 and on announcing their arrival, P.W. 9 opened the door and came out with a light. These two witnesses saw the body of Kalimoni with a number of stab wounds from which blood was still flowing. To them P.W. 9 narrated what he had seen and heard. About this time P.Ws. 13 and 14, Hanthalo Syamo and Burudi Domburu also came up and they too saw the body with blood still running from the wound, and heard the account given by P.W. 9. Kala-pari Budhu (P.W. 8) the village Naik was then called, and together with the Naik all of them went to the Nandapur police station where they reached at about 7 A.M. or a little later next morning. When they reached the police station they found that the accused had preceded them and had given himself up to the police, having made a statement surrendering the knife.

5. What happened at the Nandapur police station before the witnesses and the Naik arrived there, may now be noted. Lokhono Dolai (P.W. 3), a constable, was in charge of the police station. The accused appeared before him at about 7 A.M. on 24th April 1939, and made a statement. The constable entered the statement in the station diary (Ex. C) and prepared a seizure list (Ex D) for the knife which was handed over to him by the accused in a blood stained condition, and for the khadi (country made cloth) which the accused was wearing and was deeply stained with blood. The constable sent a report to the Sub-Inspector who was then in camp with the Assistant Sub-Inspector.

6. The Assistant Sub-Inspector arrived at the thana at 2 P.M. which is at a distance of six miles from the village where the occurrence took place. He found the accused at the police station, and having perused the entry in the station diary, he registered a case u/s 302, Penal Code, and recorded the First Information Report. The Assistant Sub-Inspector recovered the blood stained cloth from the accused and then proceeded to the scene of occurrence where he arrived at 5 P. M. and held an inquest on the dead body that evening. The Inquest Report is Ex. F. He sent the dead body to the medical officer for post mortem examination and started the investigation. The Sub-Inspector of Police, Janardhan Patnaik (P.W. 7), reached village Sovai at 9 P. M. on 24th April.

7. He prepared a rough plan of the scene of the occurrence, which is Ex. G, and forwarded the accused from village Sovai to Pottangi on 25th April to obtain a remand order from the Magistrate there. He also submitted a requisition to the Taluk Magistrate at Jaypur to record the confession of the accused. The accused was produced before the Magistrate on 1st May 1939 to have his confession recorded, but the confession was actually recorded on 2nd May (Ex. A). After police investigation and inquiry by the committing Magistrate the accused was committed to the Court of Session where he stood his trial with the result already, mentioned.

8. The nature of the injuries on the body of the deceased may be gathered from the evidence of P.W. 2, the Sub Assistant Surgeon who held the post mortem examination. He says that he discovered seven stab wounds on the chest, two stab wounds on the neck, and seven wounds on the left hand, forearm and arm, all, except one, caused by a sharp, cutting instrument such as the knife (Ex. I). In his opinion four of the seven stab wounds on the chest were quite fatal, death was due to shock and haemorrhage caused by the injuries and the victim could not have survived the injuries for more than an hour: The learned Judge has relied upon the confession of the accused and on the evidence of P.W. 9, the uncle of the deceased, P.W. 10, the wife of P.W. 9, and also on the evidence of P.Ws. 11 to 14 who had seen the accused going towards the Nandapur police station with a knife in hand.

9. The accused pleaded not guilty to the charge and at the trial retracted his confession before the Taluk Magistrate. Although he admitted his statement made before the constable at Nandapur police station, he said that he had made the statement in a confused state of mind. His defence is also to be gathered from the statements made by him u/s 342, Criminal P.C., in the Court of Session. those statements are as follows:

Q. You have Heard all the evidence against you. What have you to say 1

A. I admit the statement I made in the lower Court. Will I kill my own wife Before three months of the day of occurrence I had been working in outside villages. My father-in-law and mother-in-law tutored my wife to go and live as wife with Madhu Bisoi. She and I had no enmity. She used to go and live with Madhu Bisoi as his wife. On my return from the other villages she used not to talk to me. It is not I that killed her. Madhu Bisoi might have done so. On the Sunday night I and my wife and child all slept on the verandah of my father-in-laws house. I do not know if he called her or not. I do not know when he arrived at that place. May be she refused to go with him and so he stabbed her. When she cried out I woke up and saw Madhu Bisoi stabbing her. While I tried to obstruct him he injured my left hand. I snatched the knife from his hand and ran after him when he ran away. Because I saw blood on the body of my wife I was distraught and went to the police station and reported what had happened, that is that Madhu Bisoi had killed my wife. The constable asked if my wife was living or dead. I replied that I did not know. That is all I have to say.

Q. Is the knife your property

A. The knife (Ex. I) is my property. I do not know how it came into Madhus hand.

Q. Are the shirt and cloth (Exs. II and III) your property

A. Yes. The blood stains upon them are from the out on my wrist.

Q. What have you to say about the confession made to the Taluk Magistrate

A. I told the facts that I have told here to the Magistrate. I do not know how he has come to write down that I confessed to killing my wife. I did not confess to him that I had killed her.

Q. Have you any defence

A. I have no defence. All the villagers are speaking together against me.

10. Mr. S.N. Banerji, appearing on behalf of the accused, has urged that the statement made by the accused to the constable at the Nandapur police station (Ex. C) is inadmissible in evidence. I accept the contention. The statement amounted to a confession, and it having been made to a police officer, u/s 25, Evidence Act, it could not be used against the accused. Mr. Banerji then contends that the confession (Ex. A) made before the Taluk Magistrate is also not admissible in evidence for he says, it has not been recorded in the language of the accused and no attempt seems to have been made by the Magistrate to find out whether the confession was made voluntarily. I do not see any force in the first part of this contention, because Section 364, Criminal P.C., says that the whole of the examination of the accused

including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the Court or in English: and such record shall be shown or read to him, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands and he shall be at liberty to explain or add to his answers.

In this case the Magistrate who took down the confession of the accused, has been examined and to a Court question he answered:

It is impossible that I misunderstood what he confessed. I have used his own words. He spoke in Telugu which I speak.

A similar objection was raised in Deo Dutt v. Emperor AIR (1928) All 90. In that case the statements of the accused were recorded in the narrative form in English, and it was argued that those statements were inadmissible in law. Their Lordships of the Allahabad High Court overruled the objection and observed that any formal defects which might have been made in the recording of the confession was cured by the provisions of Section 533, Criminal P.C. The second part of the contention raised by Mr. Banerji is however a serious one. u/s 164(3) of the Code:

A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him, and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily.

11. In the case before us it appears that the Magistrate before recording the confession questioned the accused in a manner to warn him that he was not bound to make any confession and that if he did so it could be used as evidence against him, but it does not appear from the record of the confession that the Magistrate questioned the accused to find out whether the statements were going to be made by the accused voluntarily as contemplated by Section 164. Neither the record of the confession nor the statements of the Magistrate made in Court disclose such a state of affairs. No doubt there is a memorandum recorded by the Magistrate to accompany the record of the confession. The memorandum says as follows:

In spite of two warnings in the absence of the police, he has made quite voluntarily the statement enclosed. I fully believe that his confession statement is quite voluntarily free from any influence.

Even in his evidence before the Court the Magistrate says:

I sent the police escort away and warned accused that he was not bound to make a statement and that if he made any statement it could be used against him....I am convinced that the state merit was purely voluntary and that no extraneous influences were brought to bear upon him to induce accused to make his statement.

12. The facts disclosed in the memorandum no doubt amount to a compliance with the provisions of Section 164; but the question is whether the Magistrate was entitled to take down the confessional statements before he had actually questioned the accused in the manner contemplated in the Section. On the explicit terms of Section 164, Criminal P.C., the confession Ex. A is inadmissible in evidence. In Bahawala v. Emperor AIR (1925) Lah 432 it was held that the provisions of Section 164(3), Criminal P.C., as amended, render it incumbent upon the Magistrate who is called upon to record a confession, to explain to the person who is to make it (a) that he is not bound to make a confession at all; and (b) that if he does so, it may be used as evidence against him; and, further (c) the Magistrate should record the confessions, only if upon examinasion of the person making it he has reason to believe that it will be made voluntarily. Thus, where in the Magistrates memoranda at the foot of the confessions these explanations were not complete, their Lordships held that the presumption u/s 80, Evidence Act, that the confession was duly taken did not arise, and the question whether the above mentioned defect was curable u/s 533 of the Code depended upon whether the required explanation, though not recorded, had as a matter of fact been made.

13. In the case before us, as I have already said, neither in the memorandum nor in the depositions of the Magistrate is there anything to show that questions were put by the Magistrate to the accused to find out if the statements were going to be made voluntarily.

In AIR 1936 253 (Privy Council) their Lordships of the Judicial Committee laid down that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all; other methods of performance being necessarily forbidden. In that case reliance was placed by the prosecution upon the evidence of a First Class Magistrate entitled to proceed u/s 164.

14. His evidence was that on the application of the police and on the orders of the District Magistrate he had proceeded to the scene of the occurrence and to the places material to the events connected with it. The object was said to be that the accused, including the appellant, might be given the opportunity of voluntarily and after a caution leading the way and showing to the Magistrate the places where incidents in the crime occurred. On arrival, the Magistrate said that he excluded the police, or sent them to stand apart at a distance, and then was led round by each man and the places were pointed out.

15. The appellant before their Lordships, according to the Magistrate, made a full confession, and the Magistrate said that he made rough notes of what he was told, and after dictating to a typist a memorandum from the rough notes, he destroyed the rough notes. He produced, and there was put in evidence, a memorandum, called a note, signed by him, containing the substance but not all of the matter to which he spoke orally. The note was signed by him and at the end, above the signature there were appended a certificate somewhat to the same effect as that prescribed in Section 164 and in particular stating that the Magistrate believed that the pointing out and the statements were voluntarily made. But it was not suggested that the Magistrate though he was manifestly acting under Part V of the Code either purported to follow or in fact followed the procedure of Sections 164 and 364.

16. Appellants denied the statement in the Sessions Court but the confession was accepted by the Additional Sessions Judge before whom the trial took place, and the appellants were convicted. Their Lordships, as I have stated, held that this confession was inadmissible and in connexion with the point raised with regard to Section 533 said:

In this case no question of the operation or scope of Section 533 arises and their Lordships desire to express no opinion on that matter.

In the present case also there is no indication either in the statement of the Magistrate or in Ex. A that questions were put to the accused to find out whether the statements were being made voluntarily. The question that now arises is whether without the confessional statements which are excluded, there are materials on record to bring the guilt home to the accused. In this connexion the evidence of P.W. 9 the uncle of the deceased, and of P.W. 10 is of importance. P.W. 9 says that on hearing the cry of the deceased he lit a lamp, opened the door and looked out.

17. He stepped out in the verandah and found the accused standing holding a knife which was blood stained with the woman lying at his feet. He was standing over her on her left hand. She had wounds on her chest and blood was flowing from them. He threatened to stab the witness if he remained there and so he went in and closed the door and started shouting. Upon his shouting P.Ws. 11 and 12 turned up and then he opened the door, and after he opened the door P.Ws. 13 and 14 also arrived. His wife P.W. 10 supports him in this statement. P.Ws. 11 and 12 saw the accused running away towards the Nandapur police station with the knife in hand, and they also saw that the accused was wearing the clothes (Exs. 2 and 3). P.Ws. 13 and 14 say that when they arrived at the house of P.W. 9, he told them that the deceased was stabbed by the appellant and they also heard P.Ws. 11 and 12 say that they had seen the accused going away with a knife in hand.

18. Nothing has been elicited in their examination which might lead one to believe that their statements are not correct. It is also in evidence that he handed over the knife to the police officer at Nandapur, and he does not deny the ownership of the knife. Then there is the evidence of the Sub-Assistant Surgeon who says that he examined the accused soon after the murder, found a cut injury on his left wrist, and that the accused explained to him that the injury had been caused by himself when he was stabbing the deceased and that he had placed his left hand on her chest while he stabbed her and had misjudged.

19. Mr. Banerji urges that this extra-judicial confession before the witness should not be taken against the accused, because it was not given in the Court of the committing Magistrate. I am not prepared to accept this contention inasmuch as there is nothing to indicate that the Sub-Assistant Surgeon could in any way be called a partisan witness, and no question seems to have been put in cross-examination about this man before the committing Magistrate. On the evidence disclosed on the record I have no doubt in my mind that the accused is responsible for causing the injuries upon the deceased as a result of which she died and that he is guilty u/s 302, I.P.C. His statement before the Sessions Court is too fantastic to be accepted and there is nothing to support it, and there is no evidence to show that Madhu Bisoi killed the woman.

20. Then the question is about the sentence. The appellant and the deceased lived as husband and wife for three years, and a child was born to them about six months before the date of the occurrence. They went to sleep as usual and, according to the witness, it was early in the morning before dawn that the occurrence took place. There is nothing to indicate that there was any premeditation on the part of the accused to commit the offence. His subsequent conduct in going to the thana with the blood stained knife shows that he was in a state of frenzy. As to what actually led him to commit the crime it is very difficult to say; but it is not difficult to imagine that something must have taken place at that hour of the night which caused him to fly into a rage, and he might at the time be remembering some incidents connected with Madhu Bisoi and the deceased whom he treated as his wife.

21. The majority of the prosecution witnesses curiously enough denied all knowledge of the person Madhu Bisoi; but P.W. 14 says that there is such a man in the village although he did not know anything about the relationship between the deceased and Madhu Bisoi. Under the circumstances I have no doubt in my mind that the accused killed his wife under some sudden provocation, and therefore the extreme penalty of law is not called for in this case. The ends of justice will be met if he is sentenced to the lesser sentence of transportation for life.

22. In the result I would discharge the reference and allow the appeal only to this extent that the sentence of death will be commuted to one of transportation for life.

Meredith, J.

I agree with the view taken by my learned brother. That the first information report is inadmissible cannot be questioned. It is a confession to the police and as such u/s 25, Evidence Act, it cannot be proved as against the accused. The principle in Superintendent and Remembrancer of Legal Affairs, Bengal v. Lalit Mohan Singha Roy AIR (1921) Cal 111 is not applicable in this case as there are no parts of the first information report which can be extracted from the rest and said to be relevant in themselves and admissible as not being incriminatory. The first information report in this case forms a single connected story.

23. No part of it has any meaning or significance except in relation to the whole. It would be quite wrong to extract fragments from it in which the accused does not make any self-incriminating statement, for, there are no such fragments which in themselves have any relevance or significance. In the case of the confession made to a Magistrate the position is not so clear, but I have no doubt that it is inadmissible, as it has not been duly recorded u/s 164, Criminal P.C., and the defect cannot be cured by Section 533 of that Code Section 164, Clause (3) is in the following terms:

A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and when he records any confession, he shall make a memorandum at the foot of such record to the following effect:

I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it, and admitted by him to be correct, and it contains a full and true account of the statement made by him.

24. These provisions are mandatory, as has been laid down by the Privy Council in AIR 1936 253 (Privy Council) . The Magistrate must act strictly in accordance with the provisions of Section 164, or not at all. One of the provisions just quoted says that no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily. Therefore, the Magistrate must ask the accused questions designed to ascertain and to satisfy himself whether the confession is being made voluntarily or not. It would, I think, be going too far to say that the questions must be in any special form, for Section 164 does not prescribe that; but clearly there must be some question or questions designed to reveal whether the statement is being made voluntarily. What happened in the present case was that the Magistrate, when the accused was produced before him, warned him that he was not bound to make a statement and that it might be used as evidence against him. He then put him back for 24 hours for cool reflection. When he was produced the second time he asked him one question preparatory to recording his confession and one question only. This question was:

Have you remembered the warning I gave you yesterday that you are not bound to make a statement and that it may be used as evidence against you

To which the accused answered "I have heard your present warning also. I am prepared to make a statement." In his certificate at the foot of the confession the Magistrate recorded:

The accused was produced before me on 1st May 1939 from the Sub-Jail, Jaypur. I have asked the police escort to go out of my Court hall and gave him warning that he is not bound to make a statement and that the said confession if any made may be used as evidence against him. I have given him time till today for 24 hours for cool reflection. Today, i.e. 2nd May 1939, he is again produced. I have again warned him as stated above. In spite of two warnings in the absence of the police, he has made quite voluntarily the statement enclosed. I fully believe that his confession statement is quite voluntarily, free from any influence.

25. That is the position so far as the Magistrates written record is concerned. When he was examined as a witness the Magistrate took the matter no further. He said:

The accused was produced before me on 1st May....I sent the police escort away and warned the accused that he was not bound to make a statement and that if he made a statement it could be used against him. I gave him 24 hours to reflect and recorded his statement the next day. At that time no police officer was present or within sight....I am convinced that the statement was purely voluntary and that no extraneous influences were brought to bear upon him to induce the accused to make his statement.

Clearly the Magistrate amply warned the accused, and so fully complied with the first part of Section 164, Clause (3); but he did not, in my opinion, comply with the mandatory provisions of the second part of that clause, and consequently he had not jurisdiction to say, that he was satisfied that the confession was voluntary. The only question asked was not a question regarding the voluntary character of the statement, but only a question with regard to the accuseds memory of the previous warning.

26. If fully answered, it could reveal no more than the fact that the accused remembered the warning mad 24 hours before, and as the same warning had just been made in identical terms it could not possibly take the matter any further or add in any way to the warning just given. In the circumstances it was a question which could reveal nothing, and was not in my view a question at all within the meaning of Section 164, Clause (3). To ask a question which can only test the accuseds memory is not a compliance with the provisions of this Section. The question or questions whatever the form, must be designed to show whether the accused is making the statement voluntarily. Such questions, for example, might be: "Are you making your statement as a result of any threat or inducement Are you making your statement entirely of your own free will, and not as a result of anything anyone has said to you What is your motive for making a statement which must incriminate you" These are only examples. Others might be thought of. As I have said, the law does not compel any particular questions or any particular form of questions. There must be some question, and some question the answer to which will indicate whether the confession is a voluntary one. Where there was no such question, the Magistrate has no jurisdiction to record a confession, and it will not do to point to some question which may have been asked but was directed to some other end.

27. All this follows from Section 164 itself, which says that in the absence of the question the Magistrate shall not record the confession. He has no jurisdiction to record as a Magistrate so as to bring into operation the provisions of Section 80, Evidence Act, and, secondly, he has no jurisdiction to record a statement that he has satisfied himself that the confession is voluntary. It has been laid down in Jiubodhan Bhuian v. Emperor AIR (1917) Pat 475 that if the Magistrate fails to question the accused in the proper manner he has no jurisdiction to say that he had satisfied himself that the confession was voluntary. With that view I entirely agree. Having regard to conditions in India, the Legislature has thought it proper to prescribe certain safeguards before a confession made to a Magistrate can be used against the person making it, and it is most important that these safeguards should not be whittled down.

28. In a case like this, Section 533, Criminal P.C., cannot be brought in to cure the defect. It is true that under that Section oral evidence can be taken to show that the defect was one of form only, and not of substance, and that though the Magistrates record does not show that he had fully complied with the provisions of Section 164, yet, in fact, he had actually done so. But that is all that Section 533 can do. By using its provisions a defect of form can be removed, but not a defect of substance. Where the Magistrate is able to say in Court that he had asked the necessary questions but had forgotten to record them, then Section 533 would be applicable; and Section 91, Evidence Act, will cause no difficulty since Section 533 expressly states that it shall not do so. But where the Magistrate does not or cannot supply the defect in the written form with oral evidence, Section 533 cannot help. That is the view taken in Farid v. Emperor AIR (1922) Lah 237 and Partap Singh v. Emperor AIR (1925) Lah 605 . These cases lay down that Section 533 can be used to cure defects of form but not of substance. The view taken in these cases seems to me to be correct. If no questions were actually asked, Section 533 will not help; but if the Magistrates evidence shows that the questions were asked, then that is merely a defect of form and Section 533 will cure it. Such a case is reported in Ramai Ho Vs. Emperor, where the real point was that the Court found that the accused had been questioned sufficiently, although not in proper form.

29. It might be said that even if the confession is not one properly recorded by the Magistrate u/s 164, it might still be proved, not under the provisions of Section 80, Evidence Act, not as a confession formally recorded by a Magistrate, but as a sort of extra-judicial confession made to a person whose position renders him worthy of credit. It might be argued with some plausibility (sic) that if a casual confession to an outsider made without any warning, such as the extra-judicial confession to the doctor in the present case, can be proved, then why cannot the confession to the Magistrate be equally proved Is not a Magistrate as worthy of credence as a doctor or as a chance bystander who hears an extra-judicial confession And if the provisions of Section 80, Evidence Act, are not applicable, why not the provisions of Sections 17, 21, 24 and 26

30. The answer to this is that the Privy Council in AIR 1936 253 (Privy Council) has considered this very question and has said "No." In view of that decision it must be held that, though an extra-judicial confession to any ordinary person (other than a police officer) can be proved, such a confession cannot be proved at all if made to a Magistrate, unless the provisions of Section 164, Criminal P.C., have been complied with; and it will not help, in view of that decision, for a Magistrate to say that he did not purport to act under the provisions of Section 164. A second objection was taken to the confession in the present case, namely that it was not recorded in Telugu, the language in which it was made. though the Magistrate stated that he spoke Telugu, he did not say that he could write the Telugu script. He was not asked in cross-examination if he could write Telugu, or why, if so, he did not record the confession in Telugu but in English. Assuming however that he could have recorded the confession in Telugu and that the provisions of Section 364(1), Criminal P.C., were not fully complied with, that is a defect which is clearly curable u/s 533, Criminal P.C., and it has been so held in Deo Dutt v. Emperor AIR (1928) All 90. The confession however is inadmissible by reason of the first objection, though not by reason of the second.

31. Excluding the first information report and the confession, I agree with my learned brother that there is ample evidence to prove the guilt of the accused. I see no reason why P.Ws. 9 and 10 should not be believed, and their evidence is inconsistent with the innocence of the accused. That P.Ws. 9 and 10 gave out their story at once is proved by P.Ws. 11 and 14. Then there is the evidence of P.Ws. 11 and 12 that the accused was seen running away with the blood-stained knife. This again is not the conduct of an innocent man. There is the evidence that he appeared at the police station and made over the blood-stained knife, which has been proved to be his own, and with his clothes covered with blood. though the first information report cannot be used, the evidence that he appeared at the thana covered with blood, made over his blood-stained knife, and did not lay any information accusing anyone else of the murder, is admissible.

32. Then there is the evidence that he retired for the night alone with the deceased and instantly after the murder he was found alone with her body. He is proved to have had the opportunity, and he has himself given the motive. Lastly, there is the extra-judicial confession made to the doctor in which he stated that he had caused an injury to his left hand, seen by the doctor, while committing the murder. He placed his left hand on the womans chest, he said, to hold her down, and one of his blows had been slightly misdirected and cut his own hand. No doubt this extrajudicial confession cannot carry the same weight as a confession duly recorded u/s 164, but it is admissible u/s 21, Evidence Act. There is no reason whatever why the doctor should make a false statement, and the evidence does serve to corroborate the circumstantial evidence in the case.