Judgment G.L. Gupta, J.-The above death reference and appeals have arisen out of the Judgment dated 30.7.1997 of the learned Sessions Judge, Jaipur District, Jaipur whereby he convicted and sentenced accused Darbara Singh and Bakshi Singh as follows : DARBARA SINGH Under Section 302 r/w Section 120-B, IPC Death sentence. Under Section 307 r/w Section 120-B, IPC S.I. for 10 years and a fine of Rs. 2,000/-, in default, 2 years S.I. Under Sections 394, 397, 398 r/w Section 120-B, IPC Ten years R.I. and a fine of Rs. 5,000-, in default, 2 years S.I. Under Sections 379 and 411, IPC No separate sentence awarded. BAKSHI SINGH Under Section 302 r/w Section 120-B, IPC Imprisonment for life and a fine of Rs. 5,000/-in default, 2 years S.I. Under Section 307 r/w Section 120-B, IPC Ten years SI and a fine of Rs. 2,000/-, in default, 2 years S.I. Under Section 394, 397, 401 r/w Section 120-B, IPC Ten years R.I. and a fine of Rs. 2,000/-, in default, 6 months R.I. Under Section 411, IPC One year’s R.I. and a fine of Rs. 500/-, in default, 6 months R.I. (2). The prosecution case can be summarised as follows. During the working hourse in the State Bank of Bikaner and Jaipur, Khari Gram, Gulabpura Branch robbery was committed on 4.1984. The intruders, who were 4 in number, entered into the bank premises, having fire arms in their hands and they forced the employees of the bank to part with the amount lying in the bank as also their wrist watches. The intruders after looking the bank while making their escape good fired a shot killing one person and injuring another outside the bank, They boarded a fiat car (No. RRZ 3155) parked outside the Bank which was of a customer. While leaving the place of occurrence, they noticed one person going towards the Mayur Mill, which was situated near the bank. They chased him and fired a shot at him causing his death instantaneously. Thereafter, they ran away. The persons killed outside the bank and the gate of Mayur Mill were Shri R.K. Choudhary and Shri J.K. Jain, and the person who suffered murderous assault was Shri J.C. Laddha. (3). The FIR of the occurrence Ex. They chased him and fired a shot at him causing his death instantaneously. Thereafter, they ran away. The persons killed outside the bank and the gate of Mayur Mill were Shri R.K. Choudhary and Shri J.K. Jain, and the person who suffered murderous assault was Shri J.C. Laddha. (3). The FIR of the occurrence Ex. P 11 was lodged by Shri G.C. Jain, Manager of the Bank (PW 5) at 9.30 P.M. at P.S. Gulabpura, on which, a case u/S. 379,302,394 and 397 IPC, was registered. During the course of investigation, the police inspected the site, prepared the inquest memo of the two deceased persons and interrogated various witnesses. Injured J.C. Laddha was taken to the hospital where his injuries were examined by Dr. D.K. Gupta. The post mortem examination of R.K. Choudhary and J.K. Jain was conducted by Dr. R.P. Kapoor who prepared the post mortem reports, Ex. P 21 and P 22. The police arrested 5 persons, including the two appellants. The other persons arrested were Kamikar Singh, Swaran Singh Billu and Guru Sewak Singh @ Babla. The police succeeded in recovering some articles at the instance of the persons arrested. In the identification parade held during investigation, (he witnesses identified the accused persons. During the course of investigation, accused Bakshi Singh, Sukhdeo Singh, Kamikar Singh and Darbara Singh desired to confess their guilt and therefore, they were produced before the Judicial Magistrate who recorded their confessional statements. After the completion of the investigation, the police submitted a challan against 5 persons, who were sent up for trial by the learned Magistrate vide order dated 5.85. (4). During the course of trial, accused Svvaran Singh and Guru Sewak Singh absconded and therefore, their trial could not proceed. Accused Kamikar Singh, though faced the trial upto the stage of final arguments in the case, yet on the date of Judgment he did not appear so the learned Sessions Judge treated him as having absconded, and did not pronounce Judgment so far as his case is concerned. (5). The following charges had been framed against the appellanls: Darbara Singh @) Gyani: Section 120-B, 394 read with Sec. 397 and 398,302/34,307/34,411 and 379 IPC, and 3/25, 3/26, 3/27 and 3/29 of the Indian Arms Act. Bakshi Singh: Section 120-B IPC, in the alternative 109 IPC and 401, IPC. (6). The prosecution examined as many as 46 witnesses. (5). The following charges had been framed against the appellanls: Darbara Singh @) Gyani: Section 120-B, 394 read with Sec. 397 and 398,302/34,307/34,411 and 379 IPC, and 3/25, 3/26, 3/27 and 3/29 of the Indian Arms Act. Bakshi Singh: Section 120-B IPC, in the alternative 109 IPC and 401, IPC. (6). The prosecution examined as many as 46 witnesses. Out of them, Gopal Das (PW 4), G.C Jain (PW 5), Om Prakash (PW 12), Navin Chand (PW 13), Sheoji (PW 14), Om Prakash Jain (PW 20), Sua Lal (PW 29) and Bhanwar Lal (PW 44) are the employees of the bank where the robbery was committed. Out of them Madan Lal (PW 10), Navin Chand (PW 13) and Om Prakash Jain (PW2O) have been declared hostile, Gopal Das Pareek(PW 4), G.C. Jain (PW 5), Sheoji Lal(PW 14), Sua Lal(PW 29) and Bhanwar Lal(PW 44) state only this fact that the occurrence of robbery had taken place. They do not identify the appellants as the robbers/dacoits. O.P. Mathur (PW 2), Ishwar Lal (PW25) Pooran Singh (PW 26), Jagdish Chandra (PW 31) and Magni Ram (PW 34) were examined to depose about the occurrence which had taken place out side the bank and in front of the Mayur Mill. All of them, except O.P. Mathur, have turned hostile and have riot identified the appellants as the persons who had committed the offence. O.P. Mathur Identifies Darbara Singh as the person, who had taken part in the occurrence which took place out side the Mayur Mills. Dr. D.K. Gupta (PW 7), Dr. S.S. Karobia (PW 8) and Dr. R.P. Kapoor (PW 9) had examined the injuries of the injured and had performed the autopsy on the body of two deceased persons. Kailash Chand Meena (PW 1), Prabhu Singh (PW 3), Hazari Singh (PW 4), Madan Lal (PW 10), Hanuman Prasad (PW 11), Babu Lal (PW 16), Ganpat Singh (PW 17), Talib Hussain (PW 18) and Tej Singh (PW 43) were associated as Motbirs during the investigation. Sajjan Singh (PW 33) and Jankl Vallabh Joshi (PW 38) were he Magistrates who had conducted the identification parade of the accused persons and had recorded their confessional statements Ex.P.45 and Ex.P.59, Gangadhar (PW 15), Pooran Braham (PW 19). Sajjan Singh (PW 33) and Jankl Vallabh Joshi (PW 38) were he Magistrates who had conducted the identification parade of the accused persons and had recorded their confessional statements Ex.P.45 and Ex.P.59, Gangadhar (PW 15), Pooran Braham (PW 19). Girdhari Singh (PW 21), Bhanwar Lal (PW 22), Ram Bhajan (PW 23), Shankar Singh (PW 24), Narendra Mohan (PW 27), A.V. Joseph (PW 36), Badru Din (PW 37), Mangu Pun (PW 40) and Sobha Lal Kothari (PW 45) are the police officials, who had either registered the case or had taken part in the investigation or had kept or taken the Malkhana articles from one place to another. Topan Das (PW 30), Pratap Chand (PW 32), and Madan Lal Jain (PW 35) were examined to connect the accused persons on the basis of some circumstances. Abdul Razak (PW 4), Suraj Narain (PW 42) are the employees of the Finger Print Bureau. The police had associated them for taking chance prints at the spot. (7). Both the accused appellants in their statements under Section 313. Cr.P.C. denied the accusations. Accused Darbara Singh stated that he had already been shown to the witnesses at the police station before identification parade. For the confessional statement Ex.P.59, he stated that it was incorrect. According to him, he has been falsely implicated in the case. Accused Bakshi Singh stated that he did not give confessional statement EX.P.45 voluntarily and it was not correct statement. According to him, he has been falsely roped in the case. Both the accused have not led any oral evidence in defence. (8). We have heard the learned Counsel for the appellants and the learned Public Prosecutor and have gone through the record of the case. (9). The contentions of Shri Bajwa, learned Counsel for the appellants, may be summarised as follows: (A) The identification evidence against Darbara Singh in the statement of Shri O.P. Mathur should not be believed because; (i) ShriO.P. Mathur had not disclosed the description of the accused at the earliest opportunity or during the identification parade. (ii) Theidentification parade was not held soon after the occurrence or even soon after the accused was arrested. (iii) Five out of six witnesses, have failed to identify him in Court. He placed reliance on the cases of- Wakil Singh & Ors. (ii) Theidentification parade was not held soon after the occurrence or even soon after the accused was arrested. (iii) Five out of six witnesses, have failed to identify him in Court. He placed reliance on the cases of- Wakil Singh & Ors. v. State of Bihar (1981 SC 1392), Soni vs. State of Uttar Pradesh, (1982(3) SCC 3681); Subash and Shiv Shankar v. State of U.P. ( AIR 1987 SC 1222 ); State of Andhra Pradesh v. Dr. M.V. Ramana Reddy & Ors. (199 1(4) SCC 536) and Manzoor v. State of Uttar Pradesh ( 1982(2) SCC 72 ). (B) The concessional statement of Darbara Singh should not be acted upon for the following reasons: - (i) There is no note recorded by the Magistrate on the statement Ex. P. 59 that he was satisfied as to the voluntary nature of the confession. In this connection, he also pointed out that the application Ex. P. 57 does not bear the signatures of the accused. (ii) The legal Counselling wasnot provided to the accused before recording his confessional statement. (iii) It had been retracted by the accused first in the bail application, and when the charges were read over to him and lastly in his statement under Section 313, Cr.P.C. (iv) The confessional statement is exculpatory. (v) Noquestion regarding the confession was put to the accused in his statement under Section 313 Cr.P.C. He cited the cases of - Tulsi Singh v. State of Punjab ( 1996(6) SCC 63 ); Preetam v. State of M.P. ( 1996(10) SCC 432 ); Shivappa v. State of Karnataka (1995 SC 980); State of Madhya Pradesh v. Shobharam & Ors. ( AIR 1966 SC 1910 ); Khatri & Ors. v. State of Bihar & Ors. ( AIR 1981 SC 928 ); Smt. Nandini Satpathyv. P.L. Dani& Anr. ( AIR 1978 SC 1025 ) and State of Assam v. Rabindra Nath Guha (1982 CriLJ 216 (Gauhati High Court)); Union of India & Ors. v. J.S. Brar ( AIR 1993 SC 773 ); Kora Ghasi v. State of Orissa (1983 SC 360) and Palanisamy & Ors. v. State of Tamil Nadu ( AIR 1986 SC 593 ); Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh ( 1971 (1) SCC 864 ); Balwant Kaur v. Union Territory of Chandigarh ( AIR 1988 SC 139 ) and Wariyam Singh & Ors. v. State of Tamil Nadu ( AIR 1986 SC 593 ); Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh ( 1971 (1) SCC 864 ); Balwant Kaur v. Union Territory of Chandigarh ( AIR 1988 SC 139 ) and Wariyam Singh & Ors. v. State of U.P. ( 1995(6) SCC 458 ). (C) Theconfession of Bakshi Singh should not be acted upon as the Magistrate had not taken pre-cautions in recording. The confessional statement and the same stood retracted at the earliest when his bail application was moved and also when the charges were framed against him. (D) There is no direct evidence of the conspiracy against both the accused and therefore, they cannot be convicted u/Sec. 302 IPC with the aid of Section 120-B, IPC. At the most, Mr. Bajwa contended, both the accused had the common intention of committing robbery only and therefore, they cannot be held liable for the murder which was committed by other accused persons. (E) If the conviction of Darbara Singh is upheld, the sentence of death should not be confirmed as the case does not fall in the category of rarest of the rare case. (10). On the other hand, the learned Public Prosecutor fried to support the Judgment of the trial Court. Pointing out that both the Magistrate had taken all the pre-cautions in recording the confessional statements of the accused persons he canvassed that the confessional statements Fx.P.45 and Ex.P.59 can be safely acted upon. He pointed out that both the accused did not retract their confessional statements at the earliest opportunity. According to him, the averments made in the bail application, or denial of the charges when the plea is recorded, do not amount to retraction of the confession. He submitted that the conviction of both the accused can be upheld on their confessional statements alone. He has placed reliance on the cases of Shankariya v. State of Rajasthan (1978 SC 1248). He contended that on the ground of delay In identification parade from the date of occurrence, the evidence of identification parade should not be discarded as the same could be held only after the accused had been arrested. (11). We have bestowed our thoughtful consideration to the submissions made by the learned Counsel for the parties. (A) IDENTIFICATION EVIDENCE (12). He contended that on the ground of delay In identification parade from the date of occurrence, the evidence of identification parade should not be discarded as the same could be held only after the accused had been arrested. (11). We have bestowed our thoughtful consideration to the submissions made by the learned Counsel for the parties. (A) IDENTIFICATION EVIDENCE (12). Shri O.P. Mathur P.W. 2 deposes that he had seen the occurrence which had taken place out side the Mill Gate. He says that accused Darbara Singh was the person who had alighted from the car and had caught hold of Mr. Jain and at that time Mr. Jain was shot dead by another person sitting in the car. This witness had also identified accused Darbara Singh in the identification parade held by Mr. J.V. Joshi P.W. 38 on 30.6.84 when ten other persons had been mixed. Mr. Joshi deposes that he had taken all the precautions in holding the identification parade and had prepared the Memo Ex.P.8. He further says that Mr. Om Prakash Mathur had correctly identified the accused. (13). No authority, laying down the proposition that at the time of identification parade the witness must state the features of the assailant, has been cited by the learned Counsel for the appellants. In our opinion, there is no merit in this contention that the evidence of the identification given by Mr. Mathur in the Court can not be acted upon as he had not given out the special features of the assistant at the time of the identification parade. (14). There is nothing on record to believe that Mr. O.P, Mathur had not disclosed the features of the accused at the time, his statement was recorded by the police. The Police statement of the witness has not been brought on record. Therefore, even if some thing was missing in the police statement, it can not be considered. It can not be said that the prosecution has deliberately with held the Investigating Officer who had interrogated Shri Mathur. Shri Narain Singh 1.0. had expired during the trial of the case. It is significant to point out that no question with regard to his statement under S. 161 CrPC has been asked to Shri Mathur when he was in the witness box. Shri Narain Singh 1.0. had expired during the trial of the case. It is significant to point out that no question with regard to his statement under S. 161 CrPC has been asked to Shri Mathur when he was in the witness box. Simply on the basis of the answer given by Shri Mathur that earlier no body had asked him about the features of the assailant, it can not be inferred that the witness wanted to say that even the investigating officer had not asked him any question in that regard. In our opinion the testimony of the witness can not be discarded on the alleged ground that he had not disclosed the features of the accused during the investigation of the case. (15). As to the contention of delay caused in the identification, it may be stated that the accused was arrested on 16.1984 and he was lodged in the jail and kept ‘Baparda’ throughout. The test identification parade was held on 30.6.84. It is obvious that the test identification parade was held within 15 days of the arrest of the accused and during that period the accused was in judicial custody. The fact that the accused was kept ‘Baparda’, is amply borne out by the facts stated on the confessional statement Ex.P.59 as also by the letter Ex. .58 which was written by the Judicial Magistrate to the jail authorities to keep the accused ‘Baparda. It is significant to point out that no question challenging the fact of keeping the accused ‘Baparda’ has been asked in the cross- examination of Mr. Joshi. That being so, on the fact recorded in the identification memo Ex.P.8 that the accused had told the Magistrate that the witnesses used to visit the police station, it can not be believed that Darbara Singh had already been shown to Shri Mathur before the identification parade. It is relevant to state that Mr. O.P. Mathur denies in categorical terms that the accused had been shown to him by the police before the identification parade was held. There could not be any cause for Mr. Mathur to depose falsely against the accused. It is also significant to point out that Mr. Mathur gives details on the basis of which he had identified the accused. He says that looking to the height, thin body, age, face and beard, he had identified the accused. There could not be any cause for Mr. Mathur to depose falsely against the accused. It is also significant to point out that Mr. Mathur gives details on the basis of which he had identified the accused. He says that looking to the height, thin body, age, face and beard, he had identified the accused. In our considered opinion, there is no cause to discard the testimony of Mr. O.P. Mathur on the basis of the contentions made by Shri Bajwa, (16). As to the authorities relied on by Mr. Bajwa, it may be stated that in the case of Wakil Singh (supra) the occurrence had taken place in the night. There was no other evidence except the evidence of one witness as to the identity. Since the evidence was not absolutely clear, their lordships did not think it proper to rely on the evidence of the witness who had identified the accused. In that case, it was on record that the witness had not given out any description of the dacoits whom he had alleged to have identified in the dacoity. It is in these circumstances their lordships held that it would be unsafe to convict the accused on the basis of identification of the one out of the three witnesses. In the instant case, it is true that the other witnesses have not been able to identify the accused, but that can not be a ground to reject the testimony of Mr. O.P, Mathur. It has to be kept in view that the other witnesses who have failed to identify the accused were examined to depose about the occurrence which had taken place inside the bank. P.W. 5 G.C. Jain, P.W. 17 Ganpat Singh and P.W. 20 Om Prakash have not claimed to have seen the occurrence which had taken place outside the Mill gate. That being so, the testimony of Mr. O.P. Mathur, who has identified Darbara Singh on the basis of the occurrence which had taken place out side the Mill Gate, can not be discarded. For the case of Soni vs. State of Uttar Pradesh (supra), it may be stated that there was delay of 42 days in the identification parade from the date of arrest of the appellant. Not only that the identification parade had been held after lapse of a long time of the occurrence. For the case of Soni vs. State of Uttar Pradesh (supra), it may be stated that there was delay of 42 days in the identification parade from the date of arrest of the appellant. Not only that the identification parade had been held after lapse of a long time of the occurrence. II is in these circumstances their lordships did not think it proper to place reliance on the identification evidence. In the instant case, the identification parade had been held within 15 days of the arrest of the accused and also in less than three months of the occurrence. So also in the case of Subhash and Shiv Shankar (supra) the identification parade had been held after the delay of four months and the witnesses had not given any description and therefore, the evidence of identification was not believed. The case of State of Andhra Pradesh vs. Dr. M.V. Ramana Reddy & Ors. (supra) had gone before the Supreme Court against the Judgment of acquittal. There was material on record that the police had shown the accused or their photographs to the witnesses. In these circumstances, the evidence was not believed. In the instant case, there are no such facts. In the case of Manzoor (supra) it was on record that the eye-witnesses had failed to mention the identifying features to the Investigating Officer. As already stated, this is not the situation in the case in hand. It is also significant to point out that in that case the occurrence had taken place in the night and there could not be any occasion for the home guards to be present at the place of occurrence as they were supposed to be on duly elsewhere. The Apex Court in the recent case State of Maharashtra v. Suresh (JT 1999(9) SC 513) has observed that the identification evidence should not be discarded on petty grounds. It is profitable to read the observations appearing at Para No. 32 hereunder: “If potholes were to be ferreted out from the proceedings of the Magistrate holding such parades possibly no Test Identification Parade is made from that angle atone and the result of the parade is treated as vitiated every Test Identification Parade would become unusable. We remind ourselves that identification parades are not primarily meant for the Court. They are meant for investigation purposes. We remind ourselves that identification parades are not primarily meant for the Court. They are meant for investigation purposes. The object of conducting test identification parade is two fold, First is to enable the witnesses to satisfy themselves that the prisoner whom them suspect is realty the one who was seen by them in connection with the commission of the crime. Second is to satisir the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. So the officer conducting the test identification parade should ensure that the said object of the parade is achieved. If he permits dilution of the modality to be followed in a parade, he should see to it that such relaxation would not impair the purpose for which the parade is held, (vide Budhsen vs. State of Uttar Pradesh ( 1970(2) SCC 128 ), Ram-nathan vs. State of Tamil Nadu ( 1978(3) SCC 86 ).” So also in the case of Ramnathan v. State of Tamil Nadu ( 1978(3) SCC 86 ) the Apex Court did not find it fatal that there was no evidence of the prosecution that the accused was kept ‘Baparda’. (17). On a careful consideration of the entire material on record, we are of the opinion that the evidence of identification given by P.W. 2 Mr. O.P. Mathur with regard to the occurrence which had taken place out side the gate of the Mill is worthy of credence. By his testimony, it is amply proved that the accused Darbara was the person who had alighted from the car, caught hold Mr. Jain and at that time one of the assailants sitting in the car had fired a shot at Mr. Jain killing him then and there. The trial Court has thus not erred in placing reliance on the identification evidence given by Shri O.P. Mathur. (B) CONFESSIONAL STATEMENT OF DARBARA SINGH (18). P.W. 38 Janki Vallabh Joshi deposes that on 28.6.84 the S.H.O. Gulabpura had put in the application Ex.P.57 before him that Darbara Singh accused wanted to confess his guilt, on which he issued the letter Ex,P.58 to the jail authorities and when the accused was produced before him he made him to understand that he was free to give the statement, and was not bound to confess the guilt. He further says that he had told the accused that the statement, which he would make could be read against him and after he was satisfied that the accused was making the statement voluntarily, he started recording the statement at 8.30 a.m. He deposes that he again asked the accused that he could re-consider as to whether he wanted to give statement voluntarily, and he handed over the accused to the jail authorities. He states that he was produced before him at 11.30 a.m., and as he was satisfied that the accused was making the statement voluntarily, he recorded the confessional statement Ex. P. 59, which was read over to the accused who admitted the same to be correct. He says that the accused put his signatures G to H on all the pages of his statement. In his cross-examination, the witness says that he had recorded the statement of the accused in the Court and not in the chamber. He further says that at the time he recorded the statement, no-body was present in the Court room and he did not allow any one to enter the Court room. He also says that no police man was inside the Court room, nor visible out side the Court room. (19). The serious question to be considered is whether accused Darbara Singh had made the confessional statement voluntarily. (20). A reading of the statement Ex.P.59 shows that various questions had been put by the Magistrate to accused Darbara Singh to satisfy himself that the confession was being made voluntarily. Some of the questions and answers which are reproduced hereunder clearly indicate that the. Magistrate had taken all precautions before recording the statement of Darbara Singh and there was material before him to satisfy that the confession was being made voluntarily: Question No. 3 : What was the behaviour of the police with him? Answer: The behaviour of the police was very good and he was kept like a brother. Question No. 5 : If he was given physical torture or was shown as fear? Answer: No. Police did not frighten him and he was never beaten. He was kept in good condition. Question No. 6: Whether the police assured him that if he confessed his guilt, he would be excused and would be let off ? Answer: No it was not told. Answer: No. Police did not frighten him and he was never beaten. He was kept in good condition. Question No. 6: Whether the police assured him that if he confessed his guilt, he would be excused and would be let off ? Answer: No it was not told. Question No. 8 : Do he know that he was the Magistrate, and the confessional statement made by him can be read against him in evidence? Answer: He knew it. Last Warning : It was not compulsory for him to confess his guilt and if he confessed, it could be used against him. He could give statement as per his will. (21). After the aforesaid questions put by the Magistrate and the answers given by the accused and the warning given to him, it can not be said that the Magistrate could not be satisfied as to the statement being made voluntarily. All precautions were taken by the Magistrate to remove the influence of the police on the accused, and (hereafter his statement was recorded. (22). It is not [he requirement of law that there should be a note recorded by the Magistrate on the statement itself that he was satisfied as to the voluntary nature ot the statement. What has been laid down by the Apex Court in the cases relied on by Mr. Bajwa is that the Magistrate must satisfy himself that the confession was voluntary so as to enable him to give requisite certificate under sub-section (4) of Section 164 CrPC In the case of Tulsi Singh vs. State of Punjab (supra) it has nowhere been observed that there should be a certificate recorded by the Magistrate on the statement that the confession was being made voluntarily. In that case, there was no material which could show that the Magistrate had recorded the statement after giving due caution. The confession did not indicate the questions and the answers, which could satisfy the Magistrate that it was being made voluntarily. In this circumstance the confession was not acted upon. In that case, there was no material which could show that the Magistrate had recorded the statement after giving due caution. The confession did not indicate the questions and the answers, which could satisfy the Magistrate that it was being made voluntarily. In this circumstance the confession was not acted upon. So also in the case of Preetam vs. State of M.P. (supra) it was noticed by the Apex Court that though the Magistrate had explained the accused that he was not bound to make a confession, yet the other requirements of putting questions to satisfy himself that the confession was voluntary so as to enable him to give the requisite certificate under sub-section (4), had not been fulfilled. The Magistrate had not asked any question whatsoever to ascertain whether the appellant was making the confession voluntarily. It is in these circumstances the confession was not acted upon. In the case of Shivappa (supra) also the Magistrate had not made serious attempt to ascertain the voluntary character of confessional statement, and therefore, it was not acted upon. (23). In the instant case, as already stated the Magistrate had taken all necessary precautions and had recorded the confession of Darbara Singh after giving warning to him. Therefore there is no cause to refuse to act upon the confessional statement of Darbara Singh. THE ACCUSED HAD NOT SIGNED THE APPLICATION FOR MAKING CONFESSIONAL STATEMENT (24). Shri Bajwa, pointing