JUDGEMENT Bhawani Singh, J.:- These appeals (Criminal Appeal 102 of 1988, Kasu Bhai and another v. State of Himachal Pradesh, and Criminal Appeal 244 of 1988, State of Himachal Pradesh v. Kasu Bhai and another arise out of the same judgment of Sessions Judge, Kangra dated February 26, 1988, therefore, they are being decided by a common judgment. 2. The prosecution case, briefly, is that the accused were posted in their respective Units in Yol Camp Dharamshala. Captain P.V. Durga Parsad (P.W. 12), who was posted at the same place, was living in the accommodation for officers alongwith his wife Smt. Arunadhatti (PW-31) and minor child P. Nikhil (2 1/2). Their official accommodation, in the barrack, was divided by card-board wall and Captain Joginder Singh (PW-21) was living on the other side of the accommodation of Captain P. V. Durga Parsad whose own accommodation consisted of four rooms in a row. His bed room was located at the place where the two residence of these officers were separated by the cardboard wal1. 3. The incident is of October 28, 1986 between 8.30 to 9.00 p.m. when Captain P. V. Durga Parsad (PW-12) was on duty as Duty Officer at the Divisional Head Quarter, Yol Camp from 2.00 p.m. to 8.30 a. m. and Smt. Arunadhatti (PW-31) and the minor son were alone in the quarter. Captain Joginder Singh (PW-21) and his family, after enjoying "Chitrahar" and then "Buniyad Serials", came to their bed room located on the other side of the bed room of Captain P.V. Durga Parsad at About 10.00 p.m. He heard growning sound of Smt. Arunadltatti (PW -31) saying "Haye Haye". Suspecting foul play, he took his torch and went to the Artillary station nearby and sent for one non-Commissioned Officer and four Jawans, but only two Jawans could be available at that time. All of them went to the residence of Captain P.V. Durga Parsad. There, they found no lights in the Verandah, so the light was switched on and he shouted for the couple, but there was no response, though there was full light inside and the Television was also on which they found after entering the residence from the entrance door of the second room from the extreme. He found Mrs. Arunadhatti (PW-31) lying naked with her hands tied on her back and one side of the face touching the floor. He found Mrs. Arunadhatti (PW-31) lying naked with her hands tied on her back and one side of the face touching the floor. There was blood on the floor underneath her body. They also found that Mrs. Arunadhatti was struggling to release her hands. They also noticed that a male child was lying motionless half underneath the "Charpai" towards the left side of the entrance door. Captain Joginder Singh (PW-21) directed Sentry to convey the message of this incident to the Military Hospital and Divisional Headquarter. Another Sentry was deputed to guard the spot. The Television was switched off and both the victims were shifted to the Military Hospital, but before this, Captain Joginder Singh had not only released the hands of Mrs. Arunadhatti but alsocovered her body with a coloured bed-sheet. Captain P. V. Durga Parsad (PW-12) was informed of the burglary telephonically at about 10.45 p.m. by the General Officer Commanding. He sought permission to leave the place of his duty from Major D. C. Tyagi and before leaving, conveyed his departure to Duty Clerk Havildar V. S. Thakur. 4. On this day, accused Kasu Bhai was appointed as a Duty Despatch Rider along with motor-cycle bearing registration No. BA No.84A 27233 P in the Divisional Headquarter in the office of Captain P. V. Durga Parsad. When no conveyance was available, Captain P.V. Durga Parsad asked for accused Kasu Bhais whereabouts and he was told by Guardman Jagdev Singh and Duty Clerk vijay Singh Thakur that accused Kasu Bhai had left for taking his dinner and had not returned. As a result of the non-availability of conveyance, Captain P.V. Durga Parsad went to his residence on foot. There, Captain Joginder Singh (PW-21) not only consoled him, but also informed him that both-wife and the child had been shifted to the hospital. Thereafter, Subedar Janak Raj Acharya (PW-5) was directed to go to Police Post, Yol where the incident was reported (Ext. PE) Head Constable Kashmir Singh, In charge Police Post, Yol, conveyed this information telephonically to S.I. Mohinder Singh (PW-36) and First Information Report (Ext. PE/1) was registered on 29-10-1986 at about 12-15 a.m. 5. S. I. Mohinder Singh (P. W. 36) reached the spot that had been protected throughout the night. Inquest report in respect of P. Nikhil was prepared (Ext. PA/1). The dead body was sent for postmortem examination to District Hospital, Dharamshala. PE/1) was registered on 29-10-1986 at about 12-15 a.m. 5. S. I. Mohinder Singh (P. W. 36) reached the spot that had been protected throughout the night. Inquest report in respect of P. Nikhil was prepared (Ext. PA/1). The dead body was sent for postmortem examination to District Hospital, Dharamshala. Place of incident was photographed and blood stained earth from the dining room, bed room was taken into possession in addition to blood stained torn piece of maxy and black coloured blood stained "Lehanga" in a torn condition. All these articles were sealed in four sealed parcels. Site plan was also prepared (Ext. PE/2). The accused were arrested on 31-10-1986 at about 7/35 p.m., although, they had already been joined in the investigation of the case with the permission of the Commanding Officer, 39 Mountain Brigade. At the time of their arrest, the accused had been directed to muffle their faces, since identification parade was to take place. The identification parade was held and Smt. Arunadhatti (PW-31) identified these accused. Accused Kasu Bhai also made confessional statement (Ext. PC /5) pursuant to his application of 14-11-1986 despatched by him through the Superintendent of Jail vide despatch No. 6531. Both the accused made disclosure statements in the presence of Om Parkash (PW-34) and Roshan Lal (PW-35) during interrogation. Accused Natwar Lal disclosed that he had kept concealed one golden bangle, one pair of silver "Jhanjar", one silver chain, two pens, a pair of tops, a golden ring behind a plank in the barrack, where he had been residing. He also disclosed that one camera and one gorkha cap had also been concealed by him in the bushes nearby the latrine and could get the same recovered. Accused Natwar Lal disclosed about Drat having been concealed in ceiling of the barrack on a wall and could get the same recovered. Accused Kasu Bhai disclosed that he had kept concealed blood stained coat belonging to him and T-shirt, pant, jacket stained with blood belonging to accused Natwar Lal after washing these clothes in his house and could get them recovered. Memo (Ext. PO) was prepared in this regard in the presence of witnesses (PWs. Om Parkash and Roshan Lal) and signed by the accused also. The accused took the Police to the places of concealments along with Major P. S. Ghatraj (PW-13) and Major P. P. Venugopalan (PW-20) and got the articles recovered. Memo (Ext. PO) was prepared in this regard in the presence of witnesses (PWs. Om Parkash and Roshan Lal) and signed by the accused also. The accused took the Police to the places of concealments along with Major P. S. Ghatraj (PW-13) and Major P. P. Venugopalan (PW-20) and got the articles recovered. The articles were put in separate parcels and they were duly sealed. The seal, after use, was handed over to Major Ghatraj. Darat (Ext. P-5) Khaka of which is Ext. PH/3, bore Unit No. 84 C 38923 L. After making recoveries and taking into possession a few other relevant articles in the case, the same were deposited in the Malkhana of the Police Station.6. Attempts were made at the Military Hospital Yol to know the mental condition of Mrs. Arunadhatti as to whether she was in a fit condition to make the statement, but till November 4, 1986 Dr. Lt. Col. N. N. Konwar (PW-11) had opined that she was not in a fit condition to make any statement to the Police. On 6-11-1986, Dr. J. P. Ganguli (PW-32) made an endorsement (Ext. PG/5) on application (Ext. PG) that Smt. Arunadhatti was fit to make a statement and accordingly, the statement was recorded. 7. Application (Ext. PM, dated 24-12-1986) was moved before the Chief Judicial Magistrate, Kangra with the request that the articles, recovered during the course of investigation, belonging to Smt. Arunadhatti, be got identified by her. The application was allowed on 27-12-1986 and these articles were identified by Smt. Arunadhatti to be hers. By application of 11-11-1986 (Ext. PE/6), the Chief Judicial Magistrate, Kangra was requested to hold the identification parade of the accused by Smt. Arunadhatti. It was allowed and in the identification parade, the accused were identified by Smt. Arunadhatti. 8. Garrison Engineer, M. E. S. Yol was requested (Ext. PE / 7) to prepare the site plan of the place of occurrence and the same were accordingly prepared (Ext. PK and Ext. PK/1). Blood stained clothes, blood stains and blood stained Drat were sent to the Chemical Examiner, Patiala whose report was also received (Ext. PE/9). 9. After collecting necessary evidence in the case, the accused were challaned and charged for the commission of offences under Section 302/34, 307/34 and 460 of the Indian Penal Code. 10. Both the accused have denied the prosecution case and have pleaded false implications. PE/9). 9. After collecting necessary evidence in the case, the accused were challaned and charged for the commission of offences under Section 302/34, 307/34 and 460 of the Indian Penal Code. 10. Both the accused have denied the prosecution case and have pleaded false implications. Accused Kasu Bhai has explained in his statement under Section 313, Criminal Procedure Code that he was not posted as Despatch Rider along with the motor cycle on the relevant day and time at the Divisional Headquarter where Captain P. V. Durga Parsad (PW-12) was discharging his duties as Duty Officer from 2-00 p.m. to 8-00 p.m. The accused has admitted having made the statement (Ext. PC/5) and appended his signatures on every page thereof, but states that it was recorded on his first appearance in the Court of Chief Judicial Magistrate, Kangra and no time to think over the matter was given to him. He also says that the Officers at the Unit got annoyed with him for his refusal to do domestic work as a result thereof, a false case has been foisted on him. Relating to witnesses other than Officers, his explanation is that they had formed a group at the behast of Col. B. S. Neelkanthappa to depose against him. 11. The explanation of accused Natwar Lal is that he has been implicated by Officers of Assam Regiment and Army Medical Corps, namely, Major Ghatraj (PW-13) and Col. P.P. Venugopal (PW-20). The witnesses, according to him, have deposed against him in order to favour Captain P. V. Durga Parsad (PW-12). Besides, these witnesses have not only been pressurised by the higher officers, but also have inimical relations with him. He has disowned not only the disclosure statement but also the property recovered in pursuance thereof. 12. As already noticed here-in-above, both the accused have denied the prosecution case against them. During the course of trial, the prosecution examined as many as 36 witnesses. Besides, two witnesses were examined as Court witnesses, while one witness was produced in defence. The trial ended in the conviction of the accused under Section 460 read with Section 34 of the Indian Penal Code and they were sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- each. Besides, two witnesses were examined as Court witnesses, while one witness was produced in defence. The trial ended in the conviction of the accused under Section 460 read with Section 34 of the Indian Penal Code and they were sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- each. Against this conviction, the accused have filed the present appeal praying for their acquittal while the State has preferred the appeal for their conviction under Sections 302/307 read with Section 34, Indian Penal Code as well. 13. The question which is indisputable in the present case is the taking place of the incident wherein minor P. Nikhil was killed by strangulation and Smt. Arunadhatti (PW-31) was subjected to inhuman and grievous assault. Perusal of inqeust report (Ext. PA/1), post-mortem report (Ext. PA), First Information Report lodged by Subedar Janak Raj Acharya (PW-5) at about 11.00 p.m. on 28-10-1986 recorded in Daily Diary No. 19 (Ext. PE) and then transmitted to Police Station, Dharamshala which forms the basis of first Information Report (Ext. PE/ 1) and the statements of various prosecution witnesses establish it beyond doubt that the death of minor P. Nikhil was homicidal. Similarly, there is no doubt relating to the injuries sustained by Smt. Arunadhatti (PW31) and one of the injuries has been described as grievous. It is also noticeable that minor P. Nikhil was strangulated by means of a cloth found tied around his neck by Captain Joginder Singh (PW-21). According to the Doctor, the child died of strangulation. In view of the matter, the crutial question to be examined and settled is to find out the assailants responsible for the same. Obviously, this requires serious analysis of the statements of witnesses examined in the case and in order to undertake this exercise, we turn to material aspects of the evidence given by the witnesses before conclusions are drawn. 14. Smt. Arunadhatti (PW-31) is the only eye-witness to this occurrence. She has given a detailed version in her statement in this case. She states that she lived in House No. 27-B Admn. area till 28th October, 1986. She was employed as a teacher in Sacred Heart School at Sidh-wari. 14. Smt. Arunadhatti (PW-31) is the only eye-witness to this occurrence. She has given a detailed version in her statement in this case. She states that she lived in House No. 27-B Admn. area till 28th October, 1986. She was employed as a teacher in Sacred Heart School at Sidh-wari. On the day of occurrence, her husband had his duty hours from 2-00 p.m. to 8-00 p.m. At about 7-15 p.m., two Army personnels-one Sardar and the other a Despatch Rider - came to collect the dinner of her husband. She knew both of them by face and designation. One hot-case along with other articles were handed over to that Sardar. Thereafter, she remained busy with her child master P. Nikhil aged 2 years and 5 months; gave it food and made it sleep, though, simultaneously, she continued enjoying the Television in the bed-room Around 8-30 p.m., she heard knock at the door and on enquiry, one of the persons stated that he had been sent by her husband for delivering an important message. While all the lights were on inside the rooms of her residence including the Television, she unbolted the entrance door, a civilian from outside pulled the door, entered the room and immediately caught her from throat and closed her mouth with his hand. During the time the door was pulled, opened and the entry of the civilian inside the room, who held her as above, she could see the face of the other man outside. He was Despatch Rider who had earlier accompanied the Sardar who had taken dinner of her husband. This Despatch Rider was in uniform. The civilian closed her mouth tightly when she started raising alarm for seeking help with the result that she could not raise alarm. This person continued saying "Where is the cash- where are the keys and jewellery". She failed to release herself despite all attempts. Because of gagging her mouth, she could not answer the queries relating to cash and ornaments. Then the person in uniform started gagging her mouth and the civilian started tearing her wearing apparels. They succeeded in holding both of her hands at the back tightly and continued harassing her all the time. They gave her beatings too and took her to the bed-room from the dining room where the child was sleeping at that time. Then the person in uniform started gagging her mouth and the civilian started tearing her wearing apparels. They succeeded in holding both of her hands at the back tightly and continued harassing her all the time. They gave her beatings too and took her to the bed-room from the dining room where the child was sleeping at that time. They made enquiries about the cash, ornaments and the keys and in the process, they tied both of her hands with cloth. She was wearing a sleevless maxy of olive green colour (lighter shade) with small white flowers and some lines in the form of checks and a black satton petty coat. She was also wearing half sleeve pullover (black swetter). Her hands were tied with a piece of her wearing apparels after tearing it. Similarly, her legs were also put together and tied. They put some cloth like thing in another cloth and then placed that cover on her mouth and tied it tightly so that her alarm could not be raised or be audible to anyone. She was then thrown flat on the ground. She pretended to be motionless by closing her eyes. These persons got the keys from the almirah and started searching the entire paraphernalia. 15. While these persons were searching for cash and ornaments etc. she heard a loud sound whereafter her child, who was sleeping, started crying very loudly and she saw the civilian pouncing upon the child, holding him by his neck and trying to strangulate him. He closed childs mouth and then tied his neck with one of her clothes lying on the bed and saw the child being strangulated. The child could not raise any voice nor did she hear his voice thereafter. During this time, the man in uniform continued searching for ornaments and after strangulating the child, the civilian took the other to the bed-room where the civilian was told by his companion that by killing the child, he had done a bad thing. Thereafter, she could only hear them continuing the search of ornaments placed in almirahs and boxes in the bed-room etc. The man in uniform saw her gazing towards the bed-room and he said that they were in trouble, since she had seen them, so they thought of killing her. They started coming to the room where she was lying flat. Thereafter, she could only hear them continuing the search of ornaments placed in almirahs and boxes in the bed-room etc. The man in uniform saw her gazing towards the bed-room and he said that they were in trouble, since she had seen them, so they thought of killing her. They started coming to the room where she was lying flat. A little later, the civilian came towards her with Dah and hit her on the head. She sustained the injuries on her forehead with the result that she became unconscious thereafter and regained consciousness on 5th of November, 1986 after she was admitted in the Intensive Care Unit Ward of the Military Hospital. Her statement was recorded by the civil Police on 6-11-1986 and she remained under treatment in the Intensive Care Unit till 5-11-1986. Thereafter, she was shifted to a family ward in the hospital till 8-11-1986. 16. She received summons from the Judge directing her to reach the District Jail at Dharamshala for identifying the culprits on November 12, 1986. She went them around 12.00 O Clock along with her husband. She was made to sit in the office of Superintendent of Jail for some time and then on the arrival of the Magistrate, who had gone inside the Jail, she who had accompanied her, went back at the asking of the Magistrate, thereafter the Magistrate asked her whether she could identify the culprits. She answered in the affirmative and then she went from one corner to the other of the row where those persons were standing, and told the Magistrate that she could point out those culprits. On his direction, she pointed out these culprits who were asked by the Magistrate to come forward from that row. Thereafter, she was again sent back to the office of Superintendent Jail and made to sit there for about 10 to 15 minutes approximately. Again, she was called by the Magistrate and found some persons standing in a row as earlier. She was again asked by the Magistrate to identify the culprits. She went from one corner to the other of that row and pointed out the culprits who had been made to stand at different places than the one they had been found earlier. She could identify those culprits even today. 17. She was again asked by the Magistrate to identify the culprits. She went from one corner to the other of that row and pointed out the culprits who had been made to stand at different places than the one they had been found earlier. She could identify those culprits even today. 17. On being asked to point out the culprits, she stated that the accused wearing white shin was in civilian dress and was the person who entered her residence in the first instance. The other culprit who entered subsequently and was in uniform on that night, was the other accused wearing blue shift. The accused with white shirt was found Natwar Lal and the other in blue shirt Kasu Bhai. 18. On 27-12-1986, she was called to the Court to identify the ornaments. She was called inside the Court room where apart from the Judge, a Typist was sitting. The entrance door of the Court was closed. Her name and whereabouts were ascertained and then she was asked to go out of the Court. She was called again after some time and asked to identify the stolen ornaments out of the ornaments which had been laid on the table inside the Court room. That had been bolted from inside at that time. She identified her ornaments which were separated and put in a cloth-bag and sealed. She would identify those ornaments even today and were so identified again. She also identified her wearing apparels and the clothes worn by the culprits. She also identified the Gorkha hat and camera (Ext. P-16 and Ext. P-15). Relating to camera, she stated that it was loaded with film and some of the photographs of her family including herself had been taken and the camera belongs to her husband like the hat (Ext. P-16) where the name of her husband had been written, thus, distinguishing it from other similar hats used in the unit. She also identified clothes (Ext. P-1 to Ext. P-3) worn by her child on that day, She also identified Dah (Ext. P-5) that was used by the civilian culprit to hit her. 19. She further states that her house adjoins to the house of Captain Joginder Singh (PW-21) and they were separated by card board partition. Talking in the two residences was audible to each other. She has denied that articles (Ext. P-8 to Ext. P-5) that was used by the civilian culprit to hit her. 19. She further states that her house adjoins to the house of Captain Joginder Singh (PW-21) and they were separated by card board partition. Talking in the two residences was audible to each other. She has denied that articles (Ext. P-8 to Ext. P-14) were not stolen by the accused and she was colluded with the police which had procured these articles to fix liability on the accused by connecting these articles with her and then recovered from them. Similarly, she has denied that camera and hat (Ext. P-15 and Ext. P-16) were not stolen and they were procured by the Police to make recoveries in this case. She has also denied the suggestion that she was deposing falsely against the accused and that the accused had entered the residence in muffled faces. Her statement was recorded by the Police on November 6, 1986 when her husband and the Doctor attending on her were not present. She also admits that accused Kasu Bhai (Despatch Rider) used to visit her residence earlier to the incident in connection with official work. 20. Smt. Arunadhatti (PW-31), being the important witness and the victim of the crime, her statement has been extracted quite comprehensively to answer numerous questions in this case. The first question relating to the incident and killing of minor P. Nikhil and assaulting of Smt. Arunadhatti stands established as already noticed above, and we see no infirmity in her statement and the statements of other prosecution witnesses touching this question. However, the second question which deserves serious consideration, is whether the accused have been correctly identified in this case by her and by the other witnesses examined to establish this question. Our answer is in the affirmative. 21. Smt. Arunadhatti (PW-31) has stated that the accused Kasu Bhai was known to her and her husband Captain P. V. Durga Parsad earlier to the incident. 22. Captain P. V. Durga Parsad (PW-12) has also said that accused Kasu Bhai had been posted as conductor in one of the Army vehicles after his wife was employed in Sacred Heart School at Sidhwari where she used to go daily in the Army vehicle. The accused Kasu Bhai used to deliver messages/circulars at his residence, but it was wrong that he used to bring his dinner while on duty as Despatch Runner. 23. The accused Kasu Bhai used to deliver messages/circulars at his residence, but it was wrong that he used to bring his dinner while on duty as Despatch Runner. 23. It has thus been noticed that accused Kasu Bhai had not only been visiting the house of Smt. Arunadhatti, in addition to this, he remained with the co-accused for a sufficient long time inside the house while committing the crime. If we look to the duration of their stay in the well lighted house and then their long struggle with Smt. Arunadhatti, there remains no doubt about her identifying both the accused. This fact is further clear from her statement relating to the identification parade where both the accused were identified correctly in two exercises. The identification parade of the accused was conducted by Shri G. R. Sharma, Chief Judicial Magistrate, Kangra (DW-3), who has also proved the holding of identification parade and other connected steps taken by him in connection with the same. There is also identification of the stolen articles by Smt. Arunadhatti conducted by Shri J. N. Barowalia, Chief Judicial Magistrate, Kangra (PW-30). 24. Holding of test identification parade is one of the important steps during the investigation of a criminal case. In Hasib v. State of Bihar (AIR 1972 SC 283 at p. 287) : (1972 Cri LJ 233 at p. 236), Dua, J. said that: "Now , identification parades are ordinarily held at the instance of the Investigating Officer for the purpose of enabling the witnesses to identify either the properties which are the subject-matter of alleged offence or the persons who are alleged to have been concerned in the offence. Such tests or parades belong to the investigation stage and they serve to provide the investigating authorities with material to assure themselves if the investigation is proceeding on right lines. It is accordingly desirable that the test parades are held at the earliest possible opportunity. Early opportunity to identify also tends to minimise the chances of the memory of the identifying witness fading away by reason of long lapse of time. It is accordingly desirable that the test parades are held at the earliest possible opportunity. Early opportunity to identify also tends to minimise the chances of the memory of the identifying witness fading away by reason of long lapse of time. But much more vital factor in determining the value of such identification parades is the effectiveness of the precautions taken by those responsible for holding them against the identifying witnesses having an opportunity of seeing the persons to be identified by them before they are paraded with the other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned." 25. In Halsburys Law of England (IV) Edn. Volume-II, para 363, the following passage is recorded : "It is undesirable that witness should be asked to identity a defendant for the first time in the dock at his trial; and as a general practice, it is preferable that he should have been placed previously on a parade with other persons, so that potential witness can be asked to pick him out." 26. The conduct of an identification parade belongs to the realm and is part of the investigation. The evidence of test identification is admissible under Section 9 of the Evidence Act. But, its value depends an the safeguards, appropriate to a fair test of identification depends on the promptitude in point of time with which the suspected persons are put up for test identification. If there is unexplained and unreasonable delay in putting up the accused persons for a test identification, the delay by itself detracts from the credibility of the test. The evidence of identification merely corroborates and strengthens the oral testimony in Court which alone is the primary and substantive evidence as to identity. In Hasibs case (supra), the Court said : "...... The purpose of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in court as to the identity of the accused who is a stranger to him as a general rule, requires corroboration in the form of an earlier identification proceeding .........." 27. The purpose of test identification is to test that evidence, the safe rule being that the sworn testimony of the witness in court as to the identity of the accused who is a stranger to him as a general rule, requires corroboration in the form of an earlier identification proceeding .........." 27. In Rameshwar Singh v. State of Jand K, AIR 1972 SC 102 at p. 104 : (1972 Cri LJ 15 at p.17), there is following observation : ".........It may be remembered that the substantive evidence of a witness is his evidence in court, but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the formers arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial......" 28. We have taken care to examine the test identification parades relating to the accused and the articles in this case by Smt. Arunadhatti. We are of the considered opinion that these identification parades have been conducted in accordance with law and procedure. The learned counsel for the accused failed to point out any flaw in the conduct of these identification parades. These identification parades were conducted soon after Smt. Arundhatti came out of the hospital and picked up the accused during two exercises of the identification parades. She also picked up the articles stolen from her house by the accused. 29. Then there is evidence in the form of confessional statement of accused Kasu Bhai recorded by Shri G. R. Sharma, Chief Judicial Magistrate, Kangra (Ext. PC/5). It was assailed by the ld. counsel for the accused on the ground that it was not correctly recorded and that it was not voluntary. 30. On the other hand, the submission of the ld. counsel for the State was that the confessional statement (Ext. PC / 5) made by accused Kasu Bhai is inculpatory and was made voluntarily and was recorded truthfully after taking proper steps under the law as well as those thought fit in the circumstances of the case. 31. There is no statutory definition of "confession". counsel for the State was that the confessional statement (Ext. PC / 5) made by accused Kasu Bhai is inculpatory and was made voluntarily and was recorded truthfully after taking proper steps under the law as well as those thought fit in the circumstances of the case. 31. There is no statutory definition of "confession". However, Courts in India adopted the definition as given in Article 22 of Stephens Digest of the Law of Evidence, according to which, a "confession" is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. This definition was discarded by the Judicial Committee in AIR 1939 PC 47 : ((1939) 40 Cri LJ 364) (Pakala Narayana Swami v. Emperor). Later, in Palvinder Kaur v. State of Punjab, AIR 1952 SC 354 : (1953 Cri LJ 154), the Court said : "Shortly put, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confusion, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to he confessed. If an admission of an accused is to be used against him, the whole of it should be tendered in evidence and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory part only." 32. Before confession is used against the accused, Court must be satisfied that it was voluntary and was true account of the statement given by the accused. Further, it must not have been procured as a result of inducement, threat or promise as is referred to in Section 24 of the Evidence Act. However, the mere bald assertion by the accused that he was threatened, tutored or that inducement was offered to him, cannot be accepted as true without anything more to substantiate it. (See AIR 1954 SC 462 : (1954 Cri LJ 1313) (Hem Raj Devi Lal v. The State of Ajmer). 33. Shri G. R. Sharma, Chief Judicial Magistrate, Kangra (PW-3), has stated that during the investigation of this case, he received application of accused Kasu Bhai (Ext. PC/ 3) through the Superintendent Jail vide despatch number 6531 of 14-11-1986 requesting for the recording of actual facts in connection with this case. 33. Shri G. R. Sharma, Chief Judicial Magistrate, Kangra (PW-3), has stated that during the investigation of this case, he received application of accused Kasu Bhai (Ext. PC/ 3) through the Superintendent Jail vide despatch number 6531 of 14-11-1986 requesting for the recording of actual facts in connection with this case. The Superintendent, District Jail, Dharamshala was asked to produce accused Kasu Bhai before him. On 17-11-1986 when the accused was produced before him, he was questioned by him at length in order to ascertain and satisfy himself whether the statement intended to be made by the accused was a voluntary act on his part. These questions and the statement of the accused were duly recorded (Ext. PC/4). After ascertaining that the accused was making the statement voluntarily and without any pressure, the recording of the statement was deferred for 2-00 p.m. and the accused was produced before him, and he again insisted that he was making the statement voluntarily. 34. The witness further states that after satisfying himself as to the voluntary nature of statement intended to be made by accused Kasu Bhai, he reduced the version given by him into black and white (Ext. PC). It was recorded by him in his own hand and bears his signatures. At the foot of it, certificate is also appended (Ext. PC). Every page of this statement contains the signatures of accused Kasu Bhai. After recording it, it was put into envelop under seal mark Jeysth Up-Nayayadhish. Before recording this statement, he had explained to accused Kasu Bhai that he was not bound to make a confessional statement and in case he did so, it may be used as evidence against him. 35. He had also received an application of accused Natwar Lal vide despatch No. 6532 dated 14-1-1986 through Superintendent of Jail expressing his desire to make a confessional statement. The proceedings in relation to this accused were recorded by him (Ext. PC / 7). He was sent to the Judicial Lock-up to re-consider whether he still wanted to make such a statement. He was produced on 29-111986 on which date he refused to give any such statement. He has denied the suggestion that accused Kasu Bhai had moved another application for the cancellation of his statement made on 14-11-1986. PC / 7). He was sent to the Judicial Lock-up to re-consider whether he still wanted to make such a statement. He was produced on 29-111986 on which date he refused to give any such statement. He has denied the suggestion that accused Kasu Bhai had moved another application for the cancellation of his statement made on 14-11-1986. He has denied the suggestion that he did not allow sufficient time to accused Kasu Bhai for thinking over whether he should or should not make the confessional statement after the consequences of making such statement were explained to the accused. 36. The manner of recording the statement of accused Kasu Bhai has been examined quite carefully. We see no infirmity in the recording thereof nor them is any satisfying evidence to accept the version that it was not a voluntary statement and the accused was not given sufficient time to think over the matter. We are of the opinion that the statement was given voluntarily and was recorded truthfully after ascertaining the wishes of the accused and apprising him of the consequences. There is no legal rule prescribing time to be given to the accused to think-over the matter. It depends upon the facts and circumstances of each case and is left to the Magistrate recording the same. In this case, as we have noticed, accused Kasu Bhai was questioned before the recording of statement which was postponed to 2.00 p.m., whether he intended to make statement voluntarily or he was under some kind of pressure. When the Magistrate found to his satisfaction that the accused wanted to give the statement voluntarily and in the absence of any pressure on him, he still postponed the matter to 2-00 p.m. when the statement was actually recorded. In these circumstances, it is difficult to say that the confessional statement of accused Kasu Bhai was not recorded in accordance with law and that it was not voluntarily given. Further, the accused was in Judicial custody when he had expressed his desire to give the confessional statement and continued to be so after this statement was recorded. 37. It was contended that the accused retracted this confession, therefore, it has got to be rejected. Further, the accused was in Judicial custody when he had expressed his desire to give the confessional statement and continued to be so after this statement was recorded. 37. It was contended that the accused retracted this confession, therefore, it has got to be rejected. We are not convinced by this submission for the reason that the accused had not retracted it at the earliest nor did he do so before the recording of his statement under Section 313, Criminal Procedure Code. There also, while answering question No. 90, accused Kasu Bhai has admitted having made this statement on the first appearance before Shri G. R. Sharma, Chief Judicial Magistrate (PW- 3) and has also admitted having appended his signatures on every page thereof. There is no justification to accept his further objection that he gave it at the saying of the Magistrate, who had not given him time to think over whether he should make a statement or not and that he was perplexed at that time, for the reason that this kind of defence is an afterthought. The accused was in Judicial Lock-up and his statement was being recorded at his request submitted through application transmitted to the Court by the Superintendent of Jail, Dharamshala. Before recording this statement, the matter was adjourned and before it was actually recorded, the Magistrate had satisfied himself as already noticed above. There is no statutory provision which requires the Magistrate to postpone the matter to a later date. What should be the interval, is left to the discretion of the Magistrate who is guided by the facts and circumstances of each case. Therefore, we proceed to reject this argument and hold that the confessional statement is not only admissible but is a good piece of evidence not only against accused Kasu Bhai, but also against accused Natwar Lal in addition to other evidence connecting him with the crime. 38. In these circumstances, we conclude, like the trial Court, that the confessional statement was correctly recorded which can be used against the accused notwithstanding its retraction by the accused in his statement under section 313, Criminal Procedure Code, which in our opinion, is an afterthought. 39. 38. In these circumstances, we conclude, like the trial Court, that the confessional statement was correctly recorded which can be used against the accused notwithstanding its retraction by the accused in his statement under section 313, Criminal Procedure Code, which in our opinion, is an afterthought. 39. We, now, take note of the other evidence pointing out the circumstances connecting both the accused in the case, especially when they have denied the commission of the offence and accused Kasu Bhai also denied his attachment with the Duty Officer in the Divisional Headquarter of 39 Mountain Division Yol Camp on the relevant date, time and place, by producing Major P.P. Rao, Officer Commanding of 258 Field Workshop, Yol(DW-1) in his defence. He has also tried to show that he was on duty not only on 28th but also on 29th October, 1986 and had been marked present in the Attendance Register. 40. Lieutenant P. Venugopal (CW-2) belongs to 258 Field Workshop to which accused Kasu Bhai belonged. It has been stated by this witness that at the relevant time he was Motor Transport Officer and as such it was his duty to attach vehicles along with the Jawan who could drive the Same. By letter of May 26, 1986 (Ext. C-1) from Lt. Col. Surinder Singh, sent through proper channel, Drivers Car Diary along with order of Sepoy Kewal Singh with Motor Cycle bearing Registration No. BA No. 84 A 27233 P (Ext. C-2) was prepared by him under his signatures, copy whereof was sent to the Divisional Headquarter. Sepoy Kewal Singh, along with the Motor Cycle referred to above, and its Drivers Car Diary, was cent and attached to discharge duties under the Duty Officer at the Divisional Headquarter, Division Company at Yol. On 23-10-1986, Sepoy Kewal Singh reported that he was unable to discharge his duties on account of ailment (sick report Ext. C-3). Accordingly, accused Kasu Bhai was substituted in place of Sepoy Kewal Singh vide Movement Order Ext. C-4 along with the same Motor Cycle and Drivers Car Diary (Ext. C-5) which had also been handed over to Sepoy Kewal Singh. The maintenance of this Motor Cycle and other vehicles were to continue under his charge even if they are attached with different companies of the same Unit. C-4 along with the same Motor Cycle and Drivers Car Diary (Ext. C-5) which had also been handed over to Sepoy Kewal Singh. The maintenance of this Motor Cycle and other vehicles were to continue under his charge even if they are attached with different companies of the same Unit. Even the petrol used to be issued by him as Motor Transport Officer and the accused had drawn eight litres of Petrol from petrol pump under his charge on 26-10-1986 against entry recorded in M. T. Loan Register after the accused had appended his signatures in token of its correctness (Ext. C-6). 41. Then, there is the statement of Guardman Jagdev Singh (PW-14), who has stated that he was posted as Duty Runner and Captain P. V. Durga Parsad (PW-12) was Duty Officer and Despatch Rider was accused Kasu Bhai and Havildar Clerk Vijay Kumar was a Duty Clerk. He and accused Kasu Bhai had been directed to deliver the Dak to the Officers at their respective residences within the Military area and he was also instructed to bring Captain P-V. Durga Parsads dinner on return from his residence. After delivering the Dak, both of them went to the residence of Captain P. V. Durga Parsad (PW-12) on Motor Cycle. He knocked at the door whereupon Mrs. Arunadhatti opened the same after enquiring about his whereabouts and satisfying herself. At that time accused Kasu Bhai was standing behind him in the verandah at the residence of Smt. Arunadhatti who handed over the hot-case to him along with a plate and thereafter both of them came back to the office on the Motor Cycle. They had returned to the duty room at 7.45 p.m. and there accused Kasu Bhai told him that he was going to take his dinner. He told the accused to inform the Duty Officer, whereupon the accused stated that previously too he used to leave for taking meal without seeking permission of the Duty Officer, as such, the accused went away without seeking permission. Thereafter, he as well as Duty Clerk Havildar V. S. Thakur slept in their respective beds and the bed of accused Kasu Bhai was also then in the room. At about 10.45 p.m. after the Duty Officer had left the room, he was awakened by Clerk Havildar V. S. Thakur, he found accused Kasu Bhai missing from his bed. Thereafter, he as well as Duty Clerk Havildar V. S. Thakur slept in their respective beds and the bed of accused Kasu Bhai was also then in the room. At about 10.45 p.m. after the Duty Officer had left the room, he was awakened by Clerk Havildar V. S. Thakur, he found accused Kasu Bhai missing from his bed. He returned at about 12.45 a.m. (mid-night). 42. This witness has been supported by Havildar Vijay Singh Thakur, Duty Clerk (PW-15). Sepoy Kamal Dass (PW-22) remained on duty from 8.00 p.m. to 11.00 p.m. in the Verandah of duty room inside the gate, while Sepoy Thanglun (PW-23) was on duty on the main gate from 8. 00 p.m. to 11.00 p.m. and thereafter Sepoy T. H. Rome Singh (PW 25) relieved Sepoy Thanglun (PW-23)at 11.00 p.m. These witnesses also say that the accused Kasu Bhai was discharging his duties as Despatch Rider under the Duty Officer in the Divisional Headquarter and it had been noticed that the bed of accused Kasu Bhai was also there along with Guardman Jagdev Singh (PW-14) and Havildar Vijay Singh Thakur (PW-15) 43. According to the evidence, both the accused were found missing from their respective Units during the course of occurrence and were seen talking to each other and using the aforesaid Motor Cycle. Besides, Resides, they were seen moving from Divisional Headquarter Duty Room premises by the witnesses of their Units. 44. Sepoy Kamal Dass (PW-22) followed by Somvar Dayamari (PW-24) were on duty in the Verandah of duty-room of Captain P.V. Durga Parsad (Duty Officer) from 8.00 p.m. to 11.00 p.m. and 11-00 p.m. to 2.00 p.m. Sepoy Thanglun (PW-23) was on duty on the main gate during this period, which used to be locked at 7.00 p.m. for security purposes. Sepoy Kamal Dass (PW-22) has said that the accused did not return during his duty hours and Sepoy Thanglun (PW-23) says that an employee came to him after about 10 to 15 minutes when he had left the gate premises and requested him that he would return at about 10.00 p.m. when the gate may be opened. At this time accused Kasu Bhai had come on the Motor Cycle along with another person in civil dress. The civilian was occupying the pillion seat and the Motor Cycle was parked outside the gate. At this time accused Kasu Bhai had come on the Motor Cycle along with another person in civil dress. The civilian was occupying the pillion seat and the Motor Cycle was parked outside the gate. At 10.45 p.m. Captain P. V. Durga Parsad (PW-12) came towards outer gate and after the gate was opened, he went to his residence on foot. During this time accused had not returned to his duty. 45. Sepoy Thanglun (PW-23) states that he was on duty at the main gate of his Duty Officer at 11.00 p.m. when he saw Motor Cycle of accused Kasu Bhai parked outside the gate. Accused Kasu Bhai came near the said Motor Cycle at about 11.30 p.m. and at that time he was wearing one Jersy, Pant of his uniform and sport shoes. At his asking, the gate as opened and the accused came inside the premises along with the Motor Cycle, but he went back in about five minutes along with the Motor Cycle. He also says that the accused waited for about ten minutes when a civilian wearing V-shape Chappal, white shirt and pant of olive green colour, appeared. The civilian asked accused Kasu Bhai to leave him at his quarter, but when the latter did not agree, the civilian started the Motor Cycle while the latter sat on the pillion seat. While going, accused Kasu Bhai told him that he would be coming back after wearing his full uniform and thereafter in about five minutes, the same vehicle came and the gate was opened and accused Kasu Bhai, who was in uniform entered the premises along with the Motor Cycle. He also states that his duty on that day continued till 2.00 a.m. 46. Accused Natwar Lal belonged to 258 Field Workshop Company. Witnesses like Dina Nath Yadav (PW-26), M. R. Adhikari (PW-27), Shri Ram Singh (PW-28) and N. N. Kalita (PW-29) say that the gate of the workshop used to be locked at 7.00 p.m. Dina Nath Yadav (PW-26) says that accused Kasu Bhai, who was known to him, came to meet co-accused Natwar Lal at about 7.45 p.m. and got the gate opened from him. P. K. Jeena (PW-23) who had relieved Dina Nath Yadav (PW-26) at 8.00 p.m., states that he allowed accused Kasu Bhai to go out at 8.10 or 8. P. K. Jeena (PW-23) who had relieved Dina Nath Yadav (PW-26) at 8.00 p.m., states that he allowed accused Kasu Bhai to go out at 8.10 or 8. 15 p.m. At this time, accused Kasu Bhai was in uniform and was putting on cardigan jacket and had his Army Motor Cycle. Further, M.R. Adhikari (PW-27) says that he saw both the accused talking to each other inside the room at about 8.00 pm. at the time of his arrival in the barrack after discharging his duties from 5.30 p.m. to 8.00 p.m. 47. Shri Ram Singh (PW-28), who succeeded Shri P. K. Jena (PW-33) at 10.00 p.m. to do his duty till 12.00 mid-night, states that at about 10. 15 or 10.20 p.m. a Military Motor Cycle came on the main motor road and he stopped it. Accused Natwar Lal was wearing a "Fauji" coat and a helmet and was driving it. On his enquiry, he gave his name and said that he was testing the Motor Cycle. Regarding the other person sitting on the pillion seat, he stated that it was Kasu Bhai on duty in the office of Duty Officer, Divisional Headquarter and had come to leave him at his Unit. Accused Natwar Lal handed over his coat and helmet to his companion Kasu Bhai and came to the gate which was opened by him. There, when it was pointed cut that the Central Officer Commanding was coming in a Jeep and he would be removed for not being in uniform, attempt was made to start the Motor Cycle but when it failed, the accused started it after rolling down hill. At that time accused Kasu Bhai was wearing a "Faujy" Jersy over a shirt while Natwar Lal was in civil dress. He knew both the accused since the time of his posting in the Unit in March, 1986. 48. Lance Naik N. N. Kalita (PW-29) states that he saw both the accused talking together after dinner subsequent to the Roll call at 6.00 p.m. Thereafter, during the night he noticed accused Natwar Lals bed lying vacant and then at later stage he found him coming late. On being asked, accused Natwar Lal told him that he was suffering from dysentery and had gone to ease himself. 49. On being asked, accused Natwar Lal told him that he was suffering from dysentery and had gone to ease himself. 49. Against these witnesses, the accused alleges that his relations with them were not cordinal so the statements of these witnesses are not credible. There is no substance in this kind of allegation, since this kind of complaint by the accused is against almost all the prosecution witnesses. Even against N. N. Kalita (PW-29) the theory of inimical relationship is devoid of substance. It is difficult to conclude that these witnesses of the prosecution would gang up against the accused and involve him in this kind of serious case. Thus far, it has been proved that accused Kasu Bhai was discharging his duty with Duty Officer in the Divisional Headquarter of 39 Mountain Division, Yol Camp at the relevant date and time. He along with Motor Cycle bearing Registration No. BA No. 84 A 27233 P (Ext. C-2) had succeeded Sepoy Kewal Singh. He had gone to the house of Captain P. V. Durga Parsad (PW-12) along with Guardman Jagdev Singh (PW-14) not only to deliver Dak to various officials in the area but was also there at the house of Mrs. Arunadhatti (PW-31) while hot-case was handed over to Guardman Jagdev Singh (PW-14) for Captain P. V. Durga Parsad by his wife Smt. Arunadhatti (PW-31). His posting with Duty Officer, Divisional Headquarter has been proved. Similarly, his association with co-accused Natwar Lal has been proved. Their movements and use of Motor Cycle has been established by the prosecution witnesses. 50. Though Major P. P. Rao (DW-1) states that both the accused had been marked present in the Attendance Register of the Jawans who remained in the barracks inside the workshop as a result of Roll call at 6.00 p.m. (routine) and 9.30 p.m. (special), he explains during his cross-examination that Jawans deputed with other Units or discharging essential duties, need not appear during these Roll calls. Similarly, a Despatch Rider, who had been detailed on duty with officer in the Divisional Headquarter, was also not required to be present in person. 51. We have also examined the recoveries made in this case in pursuance of the statement made by the accused in this case. Though it was vaguely asserted that the articles were planted and were got recovered. 51. We have also examined the recoveries made in this case in pursuance of the statement made by the accused in this case. Though it was vaguely asserted that the articles were planted and were got recovered. Statements were got recorded under pressure after the accused were subjected to physical torture. In our view, these allegations have no substance. The Investigating Officer has given a detailed account on this aspect of the matter in support of the statements given by the accused and consequential recoveries made in this case. Other witnesses to the statements and the recoveries art quite well placed and it cannot be said that they art not truthful and they acted at the behest of the Police. We see no reason on their part to involve the accused in this case. The trial Judge has rightly accepted this evidence in this case. 52. The conclusion that emerges from the aforesaid discussion is that there is no merit in the appeal by the accused and the same is dismissed. The appeal preferred by the State is also dismissed since we feel that in view of the evidence on the record of the case and the legal principles involved, the case falls squarely under Section 460 read with Section 34, Indian Penal Code and no case under Sections 302/307 read with Section 34, Indian Penal Code is made out. Appeal dismissed.