1. Preetam, the appellant herein and his brother Ishwar Lal were placed on trial before the Sessions Judge, Morena, for committing the murder of one Chhita on 15-6-1973 and removing ornaments from his person. The trial ended in an acquittal and aggrieved thereby the respondent-State preferred an appeal. The High Court dismissed the appeal so far as it related to Ishwar Lal but set aside the acquittal of the appellant and convicted and sentenced him under Sections 302 and 404 of the Indian Penal Code. The above order of reversal is under challenge in this appeal.

2. To prove its case the prosecution relied upon three eyewitnesses, the doctor who held the autopsy, a judicial confession of the appellant and some recoveries made pursuant to his statement. While accepting the evidence of the prosecution so far as it sought to prove that Chhita met with a homicidal death, the trial court rejected the entire evidence adduced by the prosecution to prove that the appellant was the author of the crimes. The High Court concurred with the finding of the trial court that the three eyewitnesses could not be relied upon but found the confession voluntary and true and as, according to it, the evidence relating to recovery corroborated the confession, reversed the order of acquittal relying upon the same.

3. Since the reasons given by the learned courts below for disbelieving the eyewitnesses are cogent and convincing we must leave their evidence out of our consideration. We, therefore, proceed to consider whether the High Court was justified in making the confession the basis for conviction of the appellant.

4. It appears from the record that the appellant was arrested on 17-6-1973 and on his production before the Magistrate on the following day was directed to be sent to police custody, as prayed for by the investigating officer. He remained in such custody till 22-6-1973 when he was sent to judicial custody under orders of the Magistrate. Thereafter he was produced before the Magistrate on 25-6-1973 for recording his confession. On his production, the Magistrate gave him two hours time to reflect and then recorded the confession. From the confessional statement (Exhibit P-11) we find that the Magistrate (PW 8) first disclosed his identity and told him that he was not bound to make any confession and if he did so, it might be used as evidence against him. After administering the above caution the Magistrate recorded the confession and then made the memorandum required under sub-section (4) of Section 164 CrPC. In our considered view, the confession so recorded is in utter disregard of the statutory provisions of sub-section (2) of Section 164 CrPC. Under the above sub-section the Magistrate is first required to explain to the accused that he was not bound to make a confession and that if he did so it might be used against him. Though this requirement has been complied with in the instant case, the other requirement which obligates the Magistrate to put questions to the accused to satisfy himself that the confession was voluntary so as to enable him to give the requisite certificate under sub-section (4), has not been fulfilled for the learned Magistrate did not ask any question whatsoever to ascertain whether the appellant was making the confession voluntarily. In view of such flagrant omission to comply with the mandatory requirement of Section 164(2) CrPC we must hold that the High Court was not at all justified in entertaining the confession as a piece of evidence, much less, a reliable one. Once the confession is left out of consideration - as it has got to be - the only other piece of evidence to connect the appellant with the alleged offences are the recoveries allegedly made pursuant to his statement. Even if we proceed on the assumption that the evidence led by the prosecution in this behalf is reliable, still, considering its nature, we are unable to hold that it can make the sole basis for conviction even for the offence under Section 404 IPC5. On the conclusions above, we allow this appeal, set aside the impugned order of the High Court and acquit the appellant of the charges levelled against him.
5. The appellant who is on bail is discharged from his bail bonds.