JUDGMENT : Misra, J. - The Appellant has been convicted u/s 302, Indian Penal Code and sentenced to imprisonment for life. The accused and the deceased were co-villagers. The accused killed Majhi Munda, his wife Radhi and their child Debra in the night of 16-5-1964 with Tabla M.O.I. After committing the murder he aroused Gau Munda (p. w. I) from his sleep and informed him that he killed the deceased as Majhi Munda caused the death of his six grand children by sorcery within a period of one month and as Majhi Munda threatened to kill him. Both of them came to the house of the Gountia (p.w.2) with blood stained Tabla. He made an extra judicial confession before p. ws. 1, 2 and 3 that he killed the deceased. P. ws. 1 and 4 accompanied the accused to the Thana with the Tabla and a blood stained cloth worn by the accused. 2. The accused denied the charge. He admits to have made the extra judicial and judicial confessions before p. ws. 1, 2 and 3 and before the Magistrate (p.w.8) being tutored by p. ws. 1 and 4. 3. The learned Sessions Judge held that the death was homicidal and that the' retracted judicial and extra judicial confessions were voluntary and true. 4. There is ample evidence that Majhi Munda, his wife Radhi and their child Debra were found murdered in the house of Majhi Munda. The doctor (p.w.7) made the post mortem examination. He found a number of incised and lacerated wound of Majhi Munda and Radhi Mundani. The doctor was of opinion that the injuries were antemortem and homicidal in nature and some of the injuries were fatal and were the immediate cause of death. Debra Munda had two injuries both of which are lacerated. There is no incised injuries on him. Those injuries are: (1) One lacerated wound 3/4" X 1/2" x brain cavity deep just above left eye. (2) One lacerated wound 3/4" x 3/4" x brain cavity deep on the middle of forehead. The injuries were homicidal and ante-mortem and could be caused by blunt weapon. The doctor was of opinion that much force was not required to produce the injuries on the thin bones of a small child. (2) One lacerated wound 3/4" x 3/4" x brain cavity deep on the middle of forehead. The injuries were homicidal and ante-mortem and could be caused by blunt weapon. The doctor was of opinion that much force was not required to produce the injuries on the thin bones of a small child. The injuries of Debra Munda are possible by blunt side of the iron portion of M.O.I. It is not questioned before us that death of the deceased was homicidal. We are satisfied on the medical evidence that the deceased were murdered in that fateful night. 5. The question for consideration is whether the accused was responsible for the death. 6. In the Committing Court the accused admitted that he killed Majhi Munda and his wife. He did not admit to have killed the child. He admitted to have made the extra judicial confession before the Gountia (p.w.2) and others. He, however stated that he made the extra judicial confession on being tutored by p. ws.l and 4. He also admitted that the Tabla contained blood as he made the attack with the Tabla. He admits to have made the judicial confession before the Magistrate (p. w. on being tutored by some young boys of the village. Thus his statement in the Committing Court amounts to clear confession of the offence of murder of Majhi Munda and his wife by the Tabla. 7. u/s 287, Criminal Procedure Code, the examination of the accused, if any, recorded by or before the Committing Magistrate shall be tendered by the prosecutor and read as evidence. In this case the examination of the accused before the Committing Magistrate has been tendered and read as evidence. The section is clear that such a statement before the Committing Magistrate shall be read as evidence in other words it will be construed as a piece of evidence along with the other prosecution evidence in this case. The statement must, however, be read as a whole. If the other prosecution evidence established that, the confession made before the Committing Court is not true it can be ruled out. If on the other band, the other prosecution evidence does not militate against the truth of the confessional statement before the Committing Court, it can constitute the basis of a conviction. If the other prosecution evidence established that, the confession made before the Committing Court is not true it can be ruled out. If on the other band, the other prosecution evidence does not militate against the truth of the confessional statement before the Committing Court, it can constitute the basis of a conviction. It would be thus necessary to examine if there are any material on record to take away the effect of the statement of the accused made in the Committing Court. 8. P.w.1 is the person, who was aroused from sleep by the accused soon after the murder and before whom he made the confession. Both of them went to the Gountia (p.w.2) with the blood stained Tabla. The accused made an extra judicial confession before p. ws. 1 to 3. The evidence of these three witnesses was placed before us at length. They are an witnesses of truth. Nothing has been suggested against them why they should falsely implicate the accused in the cousin of three ghastly murders. Their evidence does not militate against the statement of the accused in the Committing Court that he committed murder of Majhi Munda and his wife. The question put to p.w.2 in cross-examination was "it is not a fact that I sent for the accused through the chowkidar and coerced him to make a confessional statement". It is thus the positive suggestion of the defence in the Committing Court and in course of cross-exam inaction in sessions Court that the accused made an extra judicial confession before p. ws. 1 to 3, but it was the result of coercion. The accused has failed to establish the suggestion of coercion. P. ws. 1 to 3 denied any coercion on their part. In fact, there was no suggestion by the accused in his statement before the Committing Court that there was any coercion on the part of the Gountia or p. ws. 1 to 3. All that was stated was that p.w.1 tutored him to make the confession. On the aforesaid discussion we are satisfied that the extra judicial confession made before p. ws. 1 to- 3 was voluntary and that other prosecution evidence in this case establishes that the statement made in the Committing Court was true. 9. 1 to 3. All that was stated was that p.w.1 tutored him to make the confession. On the aforesaid discussion we are satisfied that the extra judicial confession made before p. ws. 1 to- 3 was voluntary and that other prosecution evidence in this case establishes that the statement made in the Committing Court was true. 9. It has, however, been contended that the Gountia (p.w.2) is a person in authority' and the confession so made to him or in his presence is hit by Section 24 of the evidence Act. That section lays down that a confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. The question is if the Gountia (p.w.2) is a person in authority'. In Lokanath Panda v. State 32 C.L.T. 402 a learned Single Judge of this Court examined its meaning and expressed the following view: The expression "person in authority" has not been defined. No illustration of the expression has been appended to the section. Generally speaking "person in authority" is one who is engaged in the apprehension, detention or prosecution of the accused, or one who is empowered to examine him. P.w.11 is not a person having anything to do with the apprehension, detention or prosecution of the accused. No statutory law or rule hag been placed before me to show that p.w.11, as the Gountia, has any such function. On the other hand, after the abolition of Gountia is possibly continuing as relic of the past. We endorse the correctness of the aforesaid view. P.w.2 himself that the Gountia system had been abolished by the time of occurrence. P.w.2 cannot be held to be a 'person in authority'. Section 24 has got some further elements. On the other hand, after the abolition of Gountia is possibly continuing as relic of the past. We endorse the correctness of the aforesaid view. P.w.2 himself that the Gountia system had been abolished by the time of occurrence. P.w.2 cannot be held to be a 'person in authority'. Section 24 has got some further elements. The inducement, threat or promise would be sufficient in the opinion of the Court to give the accused persons grounds which would appear to him reasonable for supposing that by making it he would be in advantage of any evil of a temporal nature in reference to the proceeding against him. In this case the defence has failed to place any materials in support of a case of threat, promise or inducement. In the circumstances, the further question whether the same would be sufficient in the opinion of the Court to influence the accused as prescribed in the section does not arise. The extra judicial confession is not hit by Section 24 of the Evidence Act (See Pyare Lal Bhargava Vs. State of Rajasthan, 10. The next question for consideration is whether the retracted extra judicial confession is true. It is therefore necessary to search corroboration both with regard to the corpus delicti and the complicity of the accused. The accused confessed that he killed the deceased in their house. The dead bodies of the deceased were lying in the house of Makhi Munda and they were recovered therefrom. He stated to have killed the deceased with the Tabla which he himself produced before the Gountia. The Tabla contained human blood as found on serological test. The medical evidence corroborates the extra judicial confession that the injuries could be caused by the Tabla M.O.I. Thus the recovery of the dead bodies from the place of occurrence and of the Tabla stained with human blood and the medical evidence corroborate the extra judicial confession in material particulars both with regard to the corpus delicti and the complicity of the accused though a genera corroboration would have been sufficient. The extra judicial confession gets full corroboration from the statement of the accused in the Committing Court which is to be read as evidence u/s 287 Criminal Procedure Code. 11. In his extra judicial confession before p. ws. The extra judicial confession gets full corroboration from the statement of the accused in the Committing Court which is to be read as evidence u/s 287 Criminal Procedure Code. 11. In his extra judicial confession before p. ws. 1 to 3 the accused stated that he killed the deceased as Majhi Munda killed his six grand children in course of one month by sorcery. The statement of p.w.2 that the six grand children of the accused died in course of one month prior to the date of occurrence supports, this part of the confessional statement. 12. In his statement before the Committing Court the accused has admitted to have killed Majhi Munda and his wife but denied to have killed the child Debra Munda),. The medical evidence does not show any incised wound on the child. It appears reasonable to imagine that the child died as a result of the very stroke given to the mother with the blunt side of the weapon. The version of the accused is not untrue. 13. We accordingly hold that the extra judicial confession is voluntary and true and the conviction based thereon is well founded. 14. The accused also made the judicial confession before the Magistrate (p.w.8). Mr. A.B. Misra for the Appellant contended that the judicial confession (Ex. 11) is not voluntary and true. He attacked it as not being voluntary on the grounds that no question-was put to the Appellant as to why he was making confession, as to how long he was in police custody, whether he was tutored and tortured by the police and if any inducement, threat or promise were given to him. It -appears that the accused was produced in Court by a police Sub-Inspector at 1 P.M. of 21-5-1961. The Magistrate states that he gave him some caution and allowed him time till the next day for cool reflection and remanded him to jail custody. The accused was produced in Court again on 22nd of May, 1964: at about 10-30 A.M.. Without any further time being given for reflection his confessional statement was recorded straightaway. On a perusal of the confessional statement we cannot help without observing that the Magistrate discharged his duty in a slipshod and irresponsible manner. He only put two questions. Those are as follows: (1) You know, that you are not bound to make any statement. Without any further time being given for reflection his confessional statement was recorded straightaway. On a perusal of the confessional statement we cannot help without observing that the Magistrate discharged his duty in a slipshod and irresponsible manner. He only put two questions. Those are as follows: (1) You know, that you are not bound to make any statement. I am a Magistrate, whatever you say that might be used as an evidence against you. (2) What you are stating, you are voluntarily stating. It is unnecessary to recount as to what questions the Magistrate would normally put to ascertain if the accused is making a voluntary confession. The field has been covered by series of Supreme Court and Bench decisions of this Court. It is elementary that a Magistrate would put all possible questions with a genuine desire to know that the accused is making a voluntary statement as a result of repentance and contriteness and not as a result of inducement, threat or promise to make the confession irrelevant within the meaning of Section 21 of the Evidence Act. It is for this reason that the accused must be given sufficient time for reflection though no hard' and fast rule can be said down as to quantum of time for which he would be in jail custody. The minimum time for which accused is ordinarily remanded to jail custody should be at least for a period of 2-1 Hours for cool reflection. Caution is administered by the Magistrate before remanding the accused to jail custody to free his mind from external influences if any existing prior to his initial production before the Magistrate by the police. Again on production from jail custody further caution is administered and further time is given for cool reflection to reinforce the feeling in the mind of the accused that he is doubly assured that he cannot be penalised if he does not make a confession. The main objective of administering caution by a Magistrate and giving sufficient time for cool reflection is to wash out from the mind of the accused the evil effect of police pressure and influence if any. It is for this reason, no hard and fast rule can be laid down and each case must be Governed by its own fact and circumstance. It is for this reason, no hard and fast rule can be laid down and each case must be Governed by its own fact and circumstance. In this case the Magistrate-(p. w.) who recorded the confession, appears to be thoroughly inexperienced and did not discharge his function properly. As the conviction is well founded on the basis of the extra judicial confession, it is unnecessary in this case to further examine whether the judicial confession is voluntary and true despite some of the questions not being put by the Magistrate and the accused not being given time for reflection for more than 24 hours or for a second time. The judicial confession might be held voluntary in view of the admission of the accused in the Committing Court that he made the judicial confession by being tutor by some young men of his village wherein he does not allege police influence or pressure is however unnecessary to pursue this matter as the conviction is otherwise well founded. We cannot, however, part with the case without making certain observation of certain defects which have come to our to notice. The Form for recording confessional statement u/s 164. Code of Criminal Procedure has been prescribed in Form No. (M)2. Old Form was No. (M) 81. In view of arguments being advanced in Court from time to time challenging the voluntary character of the confessional statement the old Form was amended. In col. 4 "further cautions, if any" were introduced to the following effect: The accused is then questioned to ascertain whether he has understood the warning and whether the confession is voluntary and is caused by inducement, threat or promise referred to Section 24 of the Indian Evidence Act. These cautions were introduced in the Form in order to enable the Magistrate to record the confession not in a mechanical manner but to remind him the correct position of law so that the accused would get the full benefit. It is regrettable to notice that despite the High Court introducing the new Form, the confessional statement has been recorded in the old Form No. (M) 84 (See page 98 of G.R. and Criminal, Vol. II, 2nd Edition, 196'2). 15. The 2nd feature which is worth noticing is that in the printed Form there is a col. to the effect: The accused is placed in charge of peon/armed police constable. II, 2nd Edition, 196'2). 15. The 2nd feature which is worth noticing is that in the printed Form there is a col. to the effect: The accused is placed in charge of peon/armed police constable. I have satisfied myself that there is no police officer in the Court or in any place whence the proceedings can be seen or heard except the above named "who has have not been concerned in the investigation of the crime or in the arrest or production of the accused. (The word 'peon' has been penned through and in the blank space the mark 'x' has been written). In the confessional statement (x. 11) the learned Magistrate has not cancelled the portion unnecessary. It is therefore not possible to know whether on production e accused was kept in charge of peon or the armed constable. Mr. Misra contends that the accused was kept in charge of armed constables. It is not necessary to go into the fact in this case whether he was kept in charge of the peon or the armed constables. Assuming that the accused was kept in charge of the armed constables the question is whether the confession would be inadmissible. Section 26 of the Evidence Act lays down that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate shall be proved as against such person. On the plain language of the section the confession does not become inadmissible as to was in the presence of Magistrate even though the accused was in the custody of the armed police constable. There may be cases where it would be risky for Magistrate to record the confession of an accused while keeping him in the charge of a peon inside the Court room. Instances are not rare where the accused assaulted the Magistrate in Court. If the accused is rowdy it would be dangerous to the life of the Magistrate, to record his confession while keeping him in charge of his peon. In such cases a Magistrate might choose to record the confession while the accused was kept in charge of it's armed police constables. If the accused is rowdy it would be dangerous to the life of the Magistrate, to record his confession while keeping him in charge of his peon. In such cases a Magistrate might choose to record the confession while the accused was kept in charge of it's armed police constables. It is for this reason, perhaps, in Form No (M)2 of the High Court has prescribed two alternatives of the accused being kept in charge of a peon or armed police constables. At the same time it might not be forgotten that in the presence of the armed constables the accused might not feel free to make a voluntary confession, particularly when the accused is illiterate and uncivilised there is every likelihood of his mind being influenced by police people. Justice M Credith made the following observations in Dikson Mali and Another Vs. Emperor, : I do not understand why the presence was I necessary while the confessions were being recorded of a peon or the armed police. This armed policeman may not have been concerned in the investigation of the crime, or the arrest or production of the accused, as the Magistrate states, but, one may look, how could the accused know that? The way they looked at it must have been that a policeman was reefiest. If no subordinate official unconnected with police was available, surely the Magistrate could have taken the slight risk of remaining alone for a short period with the person confessing. The observation is salutary and is to be normally followed. Ordinarily a Magistrate should not keep the accused in charge of the armed policeman unless for reasons to be recorded he is satisfied that there was risk and danger to the life. No hard and fast rule can however be laid down. It would depend on to facts and circumstances of each case. As far as possible the accused should be kept in charge of Magistrate's own staff... 16. The conviction is well founded on the retracted extra-judicial confession. The appeal fails and is dismissed. Final Result : Dismissed