Huidrom Birjit Singh v. State of Manipur — 1996 DIGILAW 1 (GAU)

V. Dutta Gyani, J. — This appeal arises out of judgment dated 27.7.88, delivered by Sessions Judge, Manipur, in Sessions Trial No.49 of 1987, thereby convicting the appellants under section 302 and 392IPC and sentencing him to undergo imprisonment for life with four years RI. 2. Prosecution case stated in brief was that deceased Geetchandra was the < son of Nabachandra Singh (PW 32), a driver by profession, and Ibemchaobi Devi (PW 13), a nurse. The boy aged about six years, attended KG Classs of Don Bosco School. The school hours were 7 to 10 AM. On the fateful day 23.3.87 the boy, as usual returned home. His paternal aunt Premabati Devi (PW 3) served him meals and she left the house to wash clothes at the pond. After sometime when she did not see Geetchandra, at the house, she searched for him ' but in vain. There is a small pan shop near the house, say at a distance of 200 yards, it belongs to one Janaki Singh. There two other stalls, belonging to Shamsingh PW 9 and Dhiren Singh PW 22. As Shamsingh PW 9 had gone to take his meals his wife Dayabati and young daughter Momota P W 7 were looking after the shop. Momota PW 7 has testified that on that day while she was at the shop Geetchandra had come and purchased two pups (local pastry) for Rs.l/-, he was wearing a half pant but no shirt. According to Premabati PW 3 no one of the family had given any money to Geetchandra. It was accused Goroba Singh, who had given it to Geetchandra. So that they could allure and take him to place of their choice. Dhiren Singh (PW 22) had seen the boy coming to the shop of Shamsingh around 11.30 AM. Around 12.30 PM the dead body of Geetchandra was found lying dead with multiple injuries on his body, in a small room of a " building still incomplete, which belonged to one Haidrom Jayanta Kumar Singh. A pair of gold ear rings and a silver chain which the boy used to wear were found missing. 3. It was Hemanta Singh, the grand father of the child who lodged FIR, Ext.PI at Singjamei Police Station. A pair of gold ear rings and a silver chain which the boy used to wear were found missing. 3. It was Hemanta Singh, the grand father of the child who lodged FIR, Ext.PI at Singjamei Police Station. On the basis of this report, a case under section 302 IPC was registered and taken under investigation by Sub Inspector, Sanajaoba Singh, who prepared the spot map Ext. P8 and held inquest as per Ext. P4. The dead body was sent for post mortem examination which was conducted by PW 11. The missing articles were recovered from one Sanahanbi Devi, PW 20 (to whom they were sold) at the instance of accused Jagdish Singh. These ornaments were later indentified by the mother of the deceased. The accused were forwarded for recording of confessional statement. They were recorded by Judicial Magistrate, 1st Class, Shri Ukol Singh, PW 31 on 6.4.87. 4. On completion of investigation, the accused were charged and tried for the above offence. Accused Jagdish Singh pleaded guilty to the charge, he has also been examined as a defence witness, DW 1 by accused appellant Goroba Singh. Accused Jagdish Singh was convicted on his plea of guilty. The trial Court found accused Goroba Singh guilty of offence charged, convicted and sentenced him as noted above, hence this appeal by accused Goroba Singh. 5. Before proceeding further it would be pertinent to note, as has also been noted by the trial Court, that there is no eye witness to the occurrence. The prosecution case hinges on the - (i) confessional statement of the accused; (ii) recovery of incriminating articles at the instance of the accused. It may also be noted at this stage itself, that the confessional statement made by the appellant has been retracted. 6. Learned counsel appearing for the appellant has vehemently criticised the trial Court's judgment, basing conviction on retracted confession, and seeking corroborative support from such pieces of evidence which are inherently weak and infirm in nature. Learned Public Prosecutor, appearing for the respondent State, on the otherhand, maintained that there was nothing wrong in basing the order of conviction on confessional statement, though retracted and belatedly retracted, yet fully corroborated by the medical evidence, the promptly lodged FIR, and recovery of incriminating articles and the confessional statement of co-accused Jagdish Singh, examined as DW 1 by the appellant. 7. 7. In view of the rival contentions advanced by the learned counsel for the parties, it would not be out of place to recall to mind, certain basic principles enunciated by the Supreme Court on the point. That a confession, must be affirmatively proved to be true and voluntary, can itself form the basis of conviction, (See He.m Raj Devilal vs. State of Ajmer, AIR 1954 SC 462 ). A confessional statement should be read as a whole, it can not be split up. (See Hanumant vs. State of MP, AIR 1952 SC 509, Palvinder Kaur vs. State of Punjab, AIR 1952 SC 354 ). A retracted confession without being materially corroborated can not be acted upon (Subramaniam vs. State of Madras, AIR 1958 SC 66 ). Confession of a co-accused is not substantive evidence as defined under section 3 of the Evidence Act and no conviction can be based solely on such confession (Nathu vs. State of UP, AIR 1956 SC 56 ). The confession of a co-accused can only be taken into consideration but it is not substantive evidence in itself under section 30 of the Evidence Act (See Ramchandra & another vs. State of UP & another, AIR 1957 SC 381 ). It is well settled that the confession of a co-accused is not substantive evidence against other co-accused persons in the same trial but could only be used for lending reassurance if there be any other substantive evidence to be utilised or acted upon.(See Param Hans Yadav vs. State of Bihar & others, AIR 1987 SC 955 ). The confession of a co-accused can be used to lend assurance to other available evidence, only to fortify the Judge in believing, what he would otherwise not believe without the aid of the confession. In Kashmira Singh vs. State of MP, AIR 1952 SC 159 , the Supreme Court pointed out that it would be dangerous to use the testimony of an accused to corroborate another. A co-accused is naturally an accomplice and the evidentiary value of a confession intended to be used against a co-accused stands on a lower level than accomplice evidence (Haji Abdulla vs. State of Maharashtra, AIR 1968 SC 832 ). It is a weak link against e maker and more so against a co-accused. It would be wrong to think that a confession is ren iered involuntarily merely because it has been retracted. It is a weak link against e maker and more so against a co-accused. It would be wrong to think that a confession is ren iered involuntarily merely because it has been retracted. With the above ptefatorial note, I now take up the confession made by the appellant as recorded by PW 31. The accused were produced before the Chief Judicial Magistrate, Imphal on 2.4.87 who directed the jail authority to keep the accused separate as they were to record their confessional statements. The IO made a prayer to PW 31 for recording of confessional statements of the accused. As has been noted by the trial Court at the time of making this prayer the accused were not produced before the Magistrate. The Magistrate directed the jail authority to produce the accused on 6.4.87 for recording their statement. They were accordingly produced. According to PW 31, the Judicial Magistrate who recorded the confessional statements of the accused, he had given, 3 hours time each for reflection to the accused. First the statement of Jagdish Singh was recorded and thereafter the statement of accused-appellant Goroba Singh was recorded by PW 31. It was argued by the learned counsel appearing for the appellant that allotting time for reflection was just a mere formality. If three hours time as claimed by PW 31 was in fact given, the recording of statement could not have commenced earlier than 1.30 PM. Naturally considering the length of the statement of accused Jagdish Singh it must have taken atleast one and half hours to two hours in recording the statement. Again allowing 3 hours time for reflection to other accused Goroba Singh it would have far exceeded the Court hours and there is nothing on record to show that PW 31 was sitting beyond the Court hours to record the statement of the accused-appellant. Allowing time for reflection is not a matter of mere formality. Ext.P/63 the confessional statement of accused Jagdish Singh itself runs into 71/2 hand written fullscap pages while the statement of accused Goroba Singh runs into 6 1/2 hand written fullscap pages Ext. P/55. Apart from these hand written pages there are two cyclostyled proforma pages which are also required to be filled up. Ext.P/63 the confessional statement of accused Jagdish Singh itself runs into 71/2 hand written fullscap pages while the statement of accused Goroba Singh runs into 6 1/2 hand written fullscap pages Ext. P/55. Apart from these hand written pages there are two cyclostyled proforma pages which are also required to be filled up. Taking it for a while that the Magistrate did not do any other work except recording the confessional statements of those two accused having allowed them 3 hours time each, the learned counsel for the appellant argued that unless the Magistrate was out to achieve a physical feat, the recording of such statement during Court hours, is almost an impossibility and PW 31 in his evidence has admitted it. To quote his own words "When I have completed recording of the statement of accused Goroba Singh it was about 3.30 PM of that day". The witness PW 31 has testified that it was on 3.4.87 that the IO made an application for recording of confessional statement of the accused. He fixed 6.4.87 for the purpose and the accused were produced around 12 AM. Now, within 31/2 hours and as quoted above the recording of the statement was completed by 3.30 PM thus the total time taken by the Magistrate for recording of confessional statement of both the accuseds was 31/2 hours. Where is the scope for providing 6 hours time for reflection According to the witness, three hours time he allowed. So, he could not have completed accused Jagdish whose statement was recorded first, that is to say, that the Magistrate PW 31 started recording the statement of Jagdish Singh around 3 PM. Considering the length of the statement even if it were to be merely copied yet it would have taken atleast 11/2 hours. In the circumstance, the claim as advanced by the witness is too tall to be accepted. There is yet another question why did he not insist for production of the accused on 3rd itself so > to. ascertain from them whether they really intended to make a confessional statement under section 164 CrPC. Recording of confessional statement can not be a stage managed affair. There is yet another question why did he not insist for production of the accused on 3rd itself so > to. ascertain from them whether they really intended to make a confessional statement under section 164 CrPC. Recording of confessional statement can not be a stage managed affair. The Supreme Court in one if its very recent judgment while dealing with the question of recording of confessional statement under section 164 CrPC in Sivappa vs. State of Karnataka, AIR 1995 SC 980 , has observed that from the plain language of section 164 C.PC and rules and guidelines framed by the High Cour regarding the recording to confessional statements of an accused under section 164 GrPC it is manifest that the said provision emphasise an inquiry by the Magistrate to ascertain the voluntary nature of the confession. This inquiry appear to be the most significant and an important part of the duty of the Magistrate recording the confessional statement of an accused under section 164 CrPC. The failure of the Magistrate to put such question from which ascertain the voluntary nature of the confession detracts so materially from the evidentiary value of the confession of an accused that it would not be safe to act upon the same. Full and adequate compliance not merely in form but in essence with the provisions of section 164 CrPC and the rules framed by the High Court is imperative and its non-compliance goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt or any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of an accused. In case the Magistrate discovers on such enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is asked to make his statement and should assure himself that during the time of reflection, he is completely out of police influence. In case the Magistrate discovers on such enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is asked to make his statement and should assure himself that during the time of reflection, he is completely out of police influence. An accused should particularly be asked the reason why he wants to make a statement which would surely go against his self interest in course of the trial, even if he contrives subsequently o retract the confession. Besides administering the caution, warning specifically provides for in the first part of sub-section (2) of section 164 namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complicity in the offence at the trial, that is to follow, he should also, in plain language, be assured of protection from any sort of apprehended torture or pressure from such extraneous against as the police or the like in case he declines to make a statement and be given the assurance that even if he declined to make the confession, he shall not be remanded to police custody. The Magistrate who is entrusted with the duty of recording confession of an accused coming from police custody or jail custody must appreciate his function in that behalf as one of a judicial officer and he must apply his judicial mind to ascertain and satisfy his conscience that the statement the accused makes is not on account of any extraneous influence on him. That indeed is the essence of a 'voluntary' statement within the meaning of the provisions of section 164 CrPC and the rules framed by the High Court for guidance of the subordinate Courts. Moreover, the Magistrate must not only be satisfied as to the voluntary character of the statement, he should also make and leave such material on the record in proof of the compliance with the imperative requirements of the statutory provisions, as would satisfy the Court that sits in judgment in the case, that the confessional statement was made by the accused voluntarily and the statutory provisions were strictly followed. It is only with regard to the time given to the acucsed for reflection before making a confessional statement, there are several other infirmities and lapses on the part of the Magistrate, PW 31 who has in his evidence admitted : "I do not know if the accused Goroba was in police custody for about 10 days before he was remanded in judicial custody, I did not check the body of the accused Goroba if there was any mark of violence before I had recorded the statement of the accused. I did not enquire to the accused if he was tortured by the police when he was kept in police custody, as it was not my duty to ascertain so." Compare this indifferent attitude with above observations made by the Supreme Court. Is there any sincerity of approach? Whether the recording Magistrate has shown that concern expected by him? The answer is inevitably 'No'. How the learned trial Judge has dealt with this aspect of the matter. There is what the learned Judge-has to say in paragraph 34 of the impugned judgment. "In this case, the learned Chief Judicial Magistrate, Imphal before whom the accused Goroba Singh and Jagdish Chandra Singh were produced on 2.4.87, made a direction to the jail authority for keeping the two accused in segregation as they were required for recording of their confessional statements. It may be ascertained from the order sheets of the committing Magistrate, i.e. Court of Chief Judicial Magistrate, Imphal for remanding the accused and this is not denied by the defence counsel. Then when a prayer was made by the Officer-in-charge of Singjamei Police Station before the Judicial Magistrate 1st Class, Imphal, Shri U. Kok Singh (PW 31) for recording confessional statement of the two accused, it is true that the two accused were not produced. But in the prayer the Officer-in-charge of Singjamei Police Station has clearly mentioned the two accused were then in judicial custody in segregation being remanded by the Court of Chief Judicial Magistrate, Imphal on 2.4.87. This fact is not denied by the learned counsel for the accused. Then the learned Magistrate Shri U. Kok Singh (PW 31) directed the authorities of Central Jail, Imphal to produce the two accused on 6.4.87 at 10.30 AM for recording confessional statements in connection with FIR Case No. 72(3)87 Singjamei Police Station by his order dated 3.4.87. This fact is not denied by the learned counsel for the accused. Then the learned Magistrate Shri U. Kok Singh (PW 31) directed the authorities of Central Jail, Imphal to produce the two accused on 6.4.87 at 10.30 AM for recording confessional statements in connection with FIR Case No. 72(3)87 Singjamei Police Station by his order dated 3.4.87. Thus, from 2.4.87 till the production of the accused for recording confessional statement on 6.4.87, the accused Goroba Singh alias Birjit Singh and Jagdish Chandra Singh were in segregation. This cannot be denied by the learned counsel appearing for the accused." I am afraid if the learned trial Judge has really gone through the record, where was the opportunity for the accused to deny any statement contained in the applications made by police to the Magistrate or the CJM at the earliest stage of investigation. Were these facts put to them in their statements recorded under section 313 CrPC ? Were those applications and orders were brought to their notice? The counsel appointed Amicus Curiae to defend the accused trial Court notes, did not deny the custody warrant issued by CJM remanding the accused to jail custody. How this helps the prosecution? And absolve the police of their duty of fair investigation? Inability or inexperience of the counsel provided by the State should not be allowed to come in the way of a fair trial. Assuming he did not deny or object, would it absolve the prosecution of its primary duty to affirmatively that a confessional statement was voluntarily made and recorded after following and complying with the in-built safeguards of section 164 CrPC in its true spirit? Let us now turn to the record, which the learned trial Judge has so implicitly relied upon merely because the defence counsel could not deny the same. The accused appellant was arrested on the date of incident itself, i.e. 23.3.87, around 2 PM as is evident from Ext.55, a heavily relied document and the cornerstone of the prosecution case. Let us now turn to the record, which the learned trial Judge has so implicitly relied upon merely because the defence counsel could not deny the same. The accused appellant was arrested on the date of incident itself, i.e. 23.3.87, around 2 PM as is evident from Ext.55, a heavily relied document and the cornerstone of the prosecution case. PW 31 has also testified to this date and time, but the IO, PW 32 has stated that the accused appellant was arrested along with two others at 8.30 PM on 23rd March be that time shown in the arrest memo be 8.30 PM the fact remains that it was on 23rd, that the accused were arrested at 2 PM, as claimed by the appellant and at 8.30 PM as stated by the IO, PW 32. There is an application dated 24.3.87 made by OC to CJM, praying for police remand of the accused for ten days till 3.4.87, which bears an endorsement in the marginal column - "Produce the accused tomorrow, i.e. 25.3.87 at 7.30 PM". The word 'morning' has been struck off. Another application dated 31.3.87, praying for another five days till 4.4.87. This application itself contains a statement to the effect that the accused were arrested on 23.3.87. On 2.4.87 another application was made to the CJM for remanding the accused to judicial custody. A similar application was also made to the JM, 1st Class on 2.4.87. On 3.4.87 the Magistrate passed the following order : "This is an application filed by the OC of Singjamei PS praying for allowing to record the confessional statements of the two accused persons namely Thounaojam Jagdish Singh and Huidrom Birjit alias Goroba Smgh under section 164 CrPC in connection with the FIRNo.72(3)87 of Singjamei PS under section 384/302 IPC, Register it as a Criminal Miscellaneous (CS) Case. The concerned jail authority is directed to cause production of the said above-named two accused persons before .this Court on 6.4.87 at 10.30 AM for recording their confessional statements under section 164 CrPC if they are in the judicial custody. Send a copy of this order to the Superintendent, Manipur Central Jail at Iraphal." It is significant to note that the learned Magistrate has not noted that the accused were produced before him. Passing judicial orders in marginal column itself on the application or petition made is a practice to be deprecated. Send a copy of this order to the Superintendent, Manipur Central Jail at Iraphal." It is significant to note that the learned Magistrate has not noted that the accused were produced before him. Passing judicial orders in marginal column itself on the application or petition made is a practice to be deprecated. The Magistrates including the Chief Judicial Magistrate must open an order sheet whenever an accused is produced and any judicial order: is passed. If the accused is not produced, it must be specifically noted. It is inconceivable that a police remand can be granted without the accused being produced before the Magistrate along with case diary. It is not a routine order. Section 54 CrPC enjoins that whenever a person arrested is produced on a charge or otherwise before the Magistrate, if he alleges or if the examination of his body will offer evidence which will disprove commission of any offence by him or establish the commission of such offences, the Magistrate shall if requested by the arrested person direct examination of the body of such person by a registered Medical Practitioner. If there are apparent marks of injury, a Magistrate cannot afford to be oblivious of such glaring facts. What made the learned Chief Judicial Magistrate to direct production of the accused at 7.30 PM? It is the duty of every Magistrate to show live concern for the rights of an accused, even at that initial most stage which he may for reasons of his poverty or illiteracy or being placed in a hostile circumstance, may not be able to assert. There is yet another glaring aspect of the matter which emerges on going through the record. The same Magistrate has drawn order sheets while recording statements of witnesses under section 164 CrPC and there are many of them recorded from L i to time. But surprisingly enough when it comes to recording of confessional statement of accused no such order sheet is drawn by the same Magistrate. It has been pointed out in several judgments that this recording of confessional statement should not be taken as task;, but a solemn duty and must be performed with all seriousness and sanctity. But surprisingly enough when it comes to recording of confessional statement of accused no such order sheet is drawn by the same Magistrate. It has been pointed out in several judgments that this recording of confessional statement should not be taken as task;, but a solemn duty and must be performed with all seriousness and sanctity. PW 31 who recorded the confessional statement has admitted in his evidence Ext.P/55 that on 3.4.87 when the IO made a request for recording of confessional statement of the appellant Goroba Singh he was not produced before him. He also pleaded ignorance about the fact that the accused had been in police custody for 10 days before being remanded to judicial custody. As regards treatment meted out to him by the police while he was in police custody the witness PW 31 has stated that he did not ascertain about the treatment as it was not his duty to do so. The learned trial Judge dealing with this aspect of the matter has merely confined himself to CJM's order dated 2.4.87 and completely overlooked the previous dates on which police remand were sought and granted in the manner noted above. The learned Judge seems to be impressed by the evidence that the accused were directed to be kept in segregation while in judicial custody suggesting thereby that they were separated, so as to enable them to ponder over the confessional statements, although it is not very clear from the record that even after being remanded to judicial custody the accused were in fact so segregated as to be free from influence of the police. Admittedly the confessional statement Ext.P/55 has not been recorded in the language it was made by the accused appellant. What we get is the translated version. Admittedly the confessional statement Ext.P/55 has not been recorded in the language it was made by the accused appellant. What we get is the translated version. Whether this translated version was again read over and explained to the maker of the statement, in so short a time between 12 AM when the accused were produced and completion of recording of statements by 3.30 PM allowing three hours time for reflection to the accused, on the recording Magistrate's own showing, going by his own statement barely half an hour's time was left with him, and during this half an hour recording of statements of two accused, running into as many as fifteen full-scape pages, and it was not direct recording in the language of the accused but on translation into English, where was the time left for recording such long statement? Let alone reading over and explaining the translated version to the accused before obtaining their signatures in acknowledgement of having made the same. According to PW 31, the statement of Jagdish was recorded first, he was given three hours time for reflection that means recording commenced around three. To complete the recording of his statement would itself have taken a couple of hours, and could not have been finished by 3.30, then how could the Magistrate thereafter complete recording of statement of appellant Goroba Singh, by 3.30 PM as claimed by him. It is a wholly unbelievable. It is not merely a question of lack of time or shortage of time granted for reflection, but the utter lack of concern for the procedural safeguards envisaged by section 164 CrPC, but the artificiality and the mechanical manner uninspring of confidence, to which the recording of statement is exposed, renders the same unreliable,- After all what is appreciation of evidence? The evidence has to be appreciated in a realistic manner having due regard to all surrounding facts and circumstances. Qualitative reliable and probable circumstance must be weighed and assessed in their proper perspective. In arriging at the conclusion about the guilt of the accused, the Court has to judge the evidence by the yardsticks of probabilities, its intrinsic worth, (see State of Punjab vs. Sarir Singh, AIR 1973 SC 2407 ), and it is here that confessional statement Ext.P/55 as recorded in its intrinsic worth, fails to inspire confidence. In arriging at the conclusion about the guilt of the accused, the Court has to judge the evidence by the yardsticks of probabilities, its intrinsic worth, (see State of Punjab vs. Sarir Singh, AIR 1973 SC 2407 ), and it is here that confessional statement Ext.P/55 as recorded in its intrinsic worth, fails to inspire confidence. Even according to the trial Court, corroboration of the confessional statement Ext.P/55 made by the appellant was necessary and this corroboration is sought from the evidence of recovery of incriminating articles at the instance of the accused and the confessional statement made by the co-accused Jagdish Singh. The recovery evidence consist of (1) recovery of a Manipur towel allegedly blood stained as per statement dated 24.3.87 Ext. P2 made by the accused Goroba Singh. The attesting witnesses are PW 3 Jagdish Singh and PW 14 Basant Singh. The recovery memo Ext.P/3 Basanta Singh has stated in his evidence that his signatures were obtained by the police on blank papers with one or two incomplete sentences written thereon. He has not been declared hostile by the prosecution thus leading the defence to believe that the statement made by the witness was acceptable to the prosecution. He has however supported the statement made by the accused to the police. Joy Singh PW 5 is a Government servant, a Draftsman who had gone to the police station, to enquire whether the accused were arrested. It was in the afternoon of 24th March 1987. On his own showing, he did not attend office that day as he was sick, yet he could go to police station to enquire about the arrest of the accused. Be that as it may, witness Basant Singh has a different story to tell, according to him "while we were inside the house, one police personnel came inside the house holding the said Khudei Arangba' (towel) and asked the accused if it was the towel", he answered in the affirmative. It is not as if took out the blood stained towel from some concealed nook or corner of the house or some trunk or box. The first question that should have been addressed is whether an accused would keep a blood stained towel hanging on a string ? So as to expose it to the view of other? It is so unnatural that it fails to inspire confidence. The first question that should have been addressed is whether an accused would keep a blood stained towel hanging on a string ? So as to expose it to the view of other? It is so unnatural that it fails to inspire confidence. Apart from the infirmities in evidence on the point, there is an improbability that an accused charged with murder, would keep a blood stained towel hanging in his house, when he had ample opportunity to do away with it. The other price of corroborative evidence relied upon by the learned trial Judge, is the confessional statement made by co-accused Jagdish. The principle enunciated by the Supreme Court on this point, have already been noted above in para 7 of this judgment. The Supreme Court in Paramhans Yadav vs. State of Bihar, AIR 1987 SC 955 has held : "9. It is well settled that the confession of a co-accused is not substantive evidence against other co-accused persons in the same trial. As this Court pointed out in Kashmira Singh vs. State of Madhya Pradesh ( 1952 SCR 526 : AIR 1952 SC 159 ) the confession of co-accused is not substantive evidence against the other 'accused persons at the trial but could only be used for lending reassurance if there by any other substantive evidence to be utilised or acted upon. 10. In Hari Charan vs. State of Bihar, (1964) 6 SCR 623 : AIR 1964 SC 1184 ), this Court observed (at pp 1188 and 1190 of AIR): "Thus the confession may be regarded as evidence in that generic sense because of the provisions of section 30, the fact remains that it is not evidence as defined by section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the Court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence." that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence." The confessional statement has been held to be weak link against the maker, and more so against the co-accused who is naturally an accomplice and the evidentiary value of confession intended to be against a co-accused stands on a lower level than accomplice's evidence (Haji Abdulla vs. State of Maharashtra, AIR 1968 SC 832 ). Corroborative evidence should be such as to. lend, it must connect or tend to connect accused with the crime charged, as has been laid down by the Supreme Court in Muluwa vs. State of Madhya Pradesh, AIR 1976 SC 989 , the evidence of an infirm witness does not become reliable merely because it has been ' corroborated by a number of witnesses of the same brand. In the instant case, the confessional statement by the appellant Goroba Singh has been found to be not inspiring of confidence. The recovery of incriminating articles is tainted and unreliable. The confessional statement made by the co-accused, cannot be made the basis of appellant's conviction. In this connection the approach of the trial Court needs to be noted. Accused Jagdish pleaded not guilty. It is significant to note that the accused were undefended as is evident from the order sheet dated 21.8.87 and 26.8.87. The local Bar Association was requested to submit names of counsel who could be appointed to defend the accused. On 26.8.87 the Secretary of the Bar Association orally submitted that the matter was under consideration.. On 2.9.87 Shri Kumar Singh was appointed as Amicus Curiae for accused Goroba Singh and the case was fixed for 7.9.87 for consideration of the charge. On 26.8.87 the Secretary of the Bar Association orally submitted that the matter was under consideration.. On 2.9.87 Shri Kumar Singh was appointed as Amicus Curiae for accused Goroba Singh and the case was fixed for 7.9.87 for consideration of the charge. On 7.9.87 Shri Mani Singh counsel for accused Jagdish Singh submitted that there was no material for framing charges. The Court accordingly framed charges. Both the accused pleaded not guilty to the charge on 7.9.87 and the case was fixed for examination of prosecution witnesses on 15.9.87. On 15.9.87 an application was moved by the accused Jagdish Singh for allowing him to plead guilty. As the clerks were on strike on 15.9.87 the Court fixed the case on next datei.e. 16.9.87 for recording plea of the accused and also for hearing on the question of sentence. On 16.9.87 the accused Jagdish Singh was found guilty under section 302IPC and sentenced to life imprisonment. Just within a short period of 8 days on 7th, the accused Jagdish Singh having pleaded not guilty to the charge, on the eighth day he filed an application praying for allowing him to plead guilty, the trial Court not only allowed him to plead guilty but also on the same date convicted and sentenced him under section 302 IPC. Now, adverting to section 229 CrPC it is the in discretion of the trial Court to convict the accused on his pleading of guilt. Even having pleaded guilty the accused can claim to be tried under section 230 CrPC.The Supreme Court has in the State of Maharashtra vs. Sukhdeo Singh, AIR 1992 SC 2100 , the murder case of General Vaid, has sounded a word of caution to the Courts while acting upon plea of guilt of an accused and the Court must approach with caution and circumspection to ensure that the plea is clear and unqualified and the admission offsets constitutes offence charged. In his instant case, resiling from the plea of not guilty the accused on the 8th day came out with an application that he wanted to plead guilt. It was enough for any Court to be put on guard to approach the case with caution and circumspection. In his instant case, resiling from the plea of not guilty the accused on the 8th day came out with an application that he wanted to plead guilt. It was enough for any Court to be put on guard to approach the case with caution and circumspection. Prudence dictated in such circumstance and sound exercise of judicial discretion demanded that the trial Court in spite of convicting the accused Jagdish on his plea of guilt to the charge to which he had already not pleaded guilty just a week before and refuting the charge claimed to be tried, the trial Court ought to have proceeded with the trial rather than acting on that qualified plea of guilt resiled from earlier plea of not guilty. An accused may not plead or refuse to plead and claim to be tried and even if he pleads, the trial Court may in its discretion not convict him and fix date for examination of the witnesses, as in fact had been done by the trial Court fixing a date for prosecution evidence on 15.9.87, it is simply shocking to find that the same Judge, on the date fixed for evidence of the prosecution witnesses, accepts the plea of guilt of an accused without a demur. If nothing else, ought to have made some enquiry giving the accused an opportunity to think over the matter fresh. But, flouting the bare and minimum caution and circumspection, the trial Court proceeded to convict the co-accused Jagdish in hot haste manner and subsequently makes use of his confessional statement to support and sustain conviction of the accused appellant Goroba Singh. It is this approach which is not in consonance with a fair trial. In a murder case which is cruel and revolting it becomes all the more necessary for the Court to scrutinise the evidence with more than ordinary care lest the shocking nature of the crime might induct instinctive reaction against a dispassionate judicial scrutiny of the evidence in law (see Arjun Marak vs. State of Bihar, 1994 Supp (2) SCC 372). Graver the crime, greater should be the standard of proof. In case of capital sentence awarded by a Court to the accused the appellate Court must adopt a very cautious approach to the case (see Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 ). Graver the crime, greater should be the standard of proof. In case of capital sentence awarded by a Court to the accused the appellate Court must adopt a very cautious approach to the case (see Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 ). Exceptions have been provided in sections 105 and 106 of the Evidence Act, which place a part of the burden of proof on the accused to prove facts which are within his knowledge. Section 1 13 A of the Evidence Act raises a presumption as to abetment of suicide by a married woman by her husband or his relatives. Similarly, section 114A raises presumption of absence of consent in a rape case. Several statutes also provide evidential burden on the accused. When the prosecution establishes the ingredients of the offence charged, the burden shifts on the accused to prove certain facts within his knowledge or exceptions to which he is entitled to. Based upon the language in the statute the burden of proof varies. However, the test or proof is not as heavy as that on the prosecution. Once the accused succeeds in showing, by preponderance of probabilities that there is reasonable doubt in his favour, the burden shifts again on the prosecution to prove the case against the accused beyond reasonable doubt (see PN Krishna Lai vs. Government of Kerala, 1995 Supp (2) SCC 187). In the instant case, the inherent improbabilities in the prosecution case have not at all been adverted by the learned trial Judge. The murder having taken place around 11 AM and the incident reported to the police just within minutes of its occurrence, and the police springs into action by 1.15 PM. The police reached on the spot seizing two pieces of broken bricks as per Ext.P/7 and the inquest report Ext.P/4 was ready by 1.20 PM, it is too much to expect of an accused to go out for selling the ear-rings and necklace in the same tension ridden locality. The police reached on the spot seizing two pieces of broken bricks as per Ext.P/7 and the inquest report Ext.P/4 was ready by 1.20 PM, it is too much to expect of an accused to go out for selling the ear-rings and necklace in the same tension ridden locality. PW 32 the IO, in his evidence stated that he rushed to spot along with police force soon after the registration of the case and when they reached the spot they found a big gathering, but naturally the question is, whether the murderer in face of .such a prevailing condition would roam about to sell the incriminating ornaments in the market which is against all human conduct. According to PW 20 Sunahani Devi to whom the ornaments were sold and PW 19 who was also present at the shop, it was just in the afternoon that the accused Jagdish was said to have come to the shop for selling the ornaments. As per the IO PW 32 whose evidence was recorded in piece meal on 19.2.88, 17.3.88,18.3.88 and 22.3.88, has stated that on seeing the deadbody and finding that the gold and silver ornaments were missing, he came to the conclusion that the victim boy was murdered by drug addicts. He, therefore, immediately proceeded to the Special Cell at Imphal Police Station. To quote in his own words- "The 3 names are 1. Thounaojam Jagdishchandra alias Jagdish, 2. Huidrom Goroba alias Birjit and 3. RK Sanatomba Singh. After that I and my police party' rushed again to the Singjamei Thongam Leikai. It was about 6.30 PM when we reached at Singjamei Thongam Leikai and we found many persons gathered there. 1 enquired about the three drug addicts and fortunately I found 3 persons and I arrested the 3 persons and rushed to the police station. When we reached Singjamei PS, I interrogated the 3 arrested persons who denied at first that they are drug addicts. After that we kept them in police custody. On the next day i.e. on 24.3.87 at about 6.30 AM, I interrogated the said 3 arrested persons. At 11 AM I took the statement of the convict Jagdish under section 27 of the Indian Evidence Act in presence of 2 witnesses namely Lourembam Ranjit Singh and Chingkham Monohar Singh. After that we kept them in police custody. On the next day i.e. on 24.3.87 at about 6.30 AM, I interrogated the said 3 arrested persons. At 11 AM I took the statement of the convict Jagdish under section 27 of the Indian Evidence Act in presence of 2 witnesses namely Lourembam Ranjit Singh and Chingkham Monohar Singh. The accused Jagdish stated that he could produce at his pointing the crime weapon i.e. a double edged dao and the pieces of his shirt which he kept concealed in his compound. Ext P/57 is the relevant statement of the accused Jagdishchandra and Ext P57/1 is my signature. Ext P 57/2 and P.57/3 are the signatures of Lourembam Ranjit Singh and Chingtham Monohar Singh respectively. After taking the statement of the accused Jagdish I again took the statement of accused Goroba in presence of 2 witnesses namely Nongmaithem Joy Singh of Singjamei Chanam Pukhri Mapan and Tounaojam Basant Singh Singjamei Thongam Leikai under section 27 of the IE Act. Ext. P/2 is the said statement of the accused Goroba and Ext P2/1 is the signature of N. Joy Singh and Ext P2/2 is the signature of Th. Basant Singh and Ext P2/3 is my initial. After taking the said statement we the police, 4 witnesses and 2 accused persons rushed to the respective residence of the 2 accused persons: There was a high tension in the locality where the occurrence took place." The question that naturally arises in face of this statement as to why the third suspect was given up by the police. The foundation of the whole prosecution case is the confessional statement which is already discussed above is uninspiring of confidence. The witness Basant Singh was at the police station right from the beginning. He was there at the time of preparation of the inquest report on 23rd as is evident from Ext P/4. It is significant to note that while Ext P/4 and Ext P/5 the seizure of bricks which mentions the time of preparation. This Basant Singh is also present at the time of recording of the statements of the accused under section 27 of the Evidence Act Ext P/2, but surprisingly enough, this document does not contain the time although the IO PW 32 has in evidence stated that it was at 6.00 in the morning. This Basant Singh is also present at the time of recording of the statements of the accused under section 27 of the Evidence Act Ext P/2, but surprisingly enough, this document does not contain the time although the IO PW 32 has in evidence stated that it was at 6.00 in the morning. What made the attesting witness Basant Singh and Joy Singh to be present at the police station? It is nobody's case that they were called to the police station to remain present. Basant Singh in his evidence has stated that when he came out of his house in the afternoon he found a large number of people having gathered on the footpath near the house of accused Goroba Singh and it was there that the documents were prepared. This omission to mention the time in Ext P/2 assumes importance in this context and the learned trial Judge has not adverted to this infirmities which militate against reliability of the evidence of recovery of blood-stained towel. The very fact that it was ' over hanging a string, is itself inductive of the inherent improbability of the story. Basant Singh has stated that it was a police man who brought the towel and show it to the accused asking him if it was the towel that he was wrapping? which is already discussed above in detail. The infirmities in evidence have gone unnoticed by the trial Court. In view of the foregoing discussion, this appeal deserves to be allowed, it is accordingly allowed. The conviction and sentence as imposed by the trial Court is liable to be set aside, it is accordingly set aside. The accused-appellant is on bail, his bail bond stands discharged.