ARIJIT PASAYAT, J.

( 1 ) LEAVE granted.

( 2 ) CHALLENGE in this appeal is to the judgment of a Division Bench of Punjab and Haryana high Court directing acquittal of the respondent who faced trial for alleged commission of offence punishable under section 302 of the Indian Penal Code, 1860 (in short 'ipc' ). Learned Additional Sessions judge, Gurdaspur found the accused guilty and directed his conviction.

( 3 ) ACCORDING to the prosecution case, which was registered on the statement made by jaswinder Singh, the maternal uncle of the accused on 6. 7. 1994 is that when he had gone to village Mann Sandwal to see his sister he had found the house locked form out side. He was informed by some neighbours that his sister Parkash Kaur and her husband Man Singh had shifted their residence to their farm house about a month earlier. He had then gone to the farm house, which was at a distance of 1-1/2 kilometers and on reaching there he found that the door of the Kotha of the tube well was locked from out side and foul smell was coming from the tube well. He returned to the village and after collecting some residents returned to the tube well. On reaching the tube well and breaking open the door of the Kotha, he found the dead bodies of his sister and brother in law lying inside with sharp edged injuries on the head and face. On the basis of the statement of jaswinder Singh formal FIR Exhibit PA/2 was recorded. Inspector Harjinder Singh PW. 5 the investigating Officer after recording the statement of Jaswinder Singh went to the spot, prepared inquest reports and forwarded the dead bodies for post-mortem. The accused was arrested in the case and during interrogation he made a disclosure statement exhibit PC that he had kept concealed a Kassi by the side of the canal minor and could get the same recovered. Subsequent there to he had led the police party to the specified place and got discovered the Kassi. Thereafter he had made a statement under Section 164 of the Code of Criminal Procedure, 1973 (in short "the Code') before the Judicial magistrate 1st Class, Batala admitting the fact that he had been responsible for killing his parents. On the completion of the investigation, a challan was put in the Court of the Illaqa Magistrate, who after going through the papers committed the case to the court of Session. The trial Court was of the view that prima facie case under Section 302 ipc was made out against the accused. It accordingly, framed the charge. When the accused pleaded not guilty to the charge, the prosecution was called up to examine its witnesses.

( 4 ) PRIMARILY prosecution relied on several factors to contend that the accused was guilty of the offence. They are (1) on extra judicial confession made by the writ petitioner; (2)judicial confession in terms of Section 164 of the Code made before the learned Judicial magistrate. The trial Court accepting the prosecution version observed that both the extra judicial confession in terms of Section 24 and 26 of the Indian Evidence Act, 1872 (in short 'the Act') as well as the judicial confession before the Magistrate under section 164 of the Code, clearly established the guilt of the accused. An appeal was preferred by the respondent herein questioning the correctness of the judgment of the trial Court. Primarily two stands were taken before the High Court. It was first submitted that no statement was given under section 164 of the Code as envisaged and also there was no extra judicial confession. The High court recorded a finding that PW. 3 before whom purportedly the extra judicial confession was made did not support the prosecution. Additionally, it was held that the requisite procedure which was to be observed for recording confession under Section 164 admissible in evidence was not followed. Further it was held that the charge is defective as the requirements of Section 218 of the code were not followed. Accordingly, acquittal was directed.

( 5 ) LEARNED counsel for the appellant St