G. C. DE, J. ( 1 ) THIS appeal is directed against the judgement and order of eviction dated 14. 8. 96 and sentence dated 19. 8. 96 in Sessions Case No. 40 of 1995 (Sessions Trial No. 5 of 96) passed by learned Sessions Judge at Purulia. By the said judgement the learned Sessions Judge found the accused Haren deoghoria guilty of offence punishable under section 302 of the Indian Penal code and convicted the accused thereunder and sentenced him to suffer rigorous imprisonment for life and also to pay a fine of Rs. 2,000/- i. d. to suffer further rigorous imprisonment for six months. ( 2 ) PROSECUTION case in brief is that on getting an information about the injury caused to a person police party went to the field in village Bela Bandaha within p. S. Burrabazar, District Purulia at about 1. 05 p. m. of 11. 12. 93 and recorded the statement of one Amar Deoghoria to the effect that he was assaulted by one haren Deoghoria by means of knife and banti (vegetable cutting instrument ). The statement was reduced into writing by the Investigating Officer on which the victim put his L. T. I, and it was sent to the police station for starting a case on the basis of which Bela Bandaha P. S. Case No. 91/93 dated 11. 12. 93 was started under section 326/307 of the IPC. Police took up the case for investigation and in course of investigation seized the blood-stained weapons, examined witnesses and on completion of investigation submitted chargesheet on 10. 5. 94 under section 302 of IPC. ( 3 ) BE it mentioned here that initially on the prayer of the Investigating officer on 12. 12. 93 section 304 of the IPC was added when the death news of the victim was collected. ( 4 ) THE case was committed to the Court of Sessions where charge under section 302 of IPC was framed against the accused Haren Deoghoria who pleaded not guilty to the charge on 16. 3. 96. However, the learned Sessions Judge did not accept the plea and proceeded with the trial in course of which fifteen witnesses including the Investigating Officer were examined. However, no defence witness was produced. 3. 96. However, the learned Sessions Judge did not accept the plea and proceeded with the trial in course of which fifteen witnesses including the Investigating Officer were examined. However, no defence witness was produced. ( 5 ) THE defence case as can be ascertained from the trend of cross-examination and the answers given by the accused in course of examination under section 313 Cr. PC is that it was the outcome of a fight between the victim and the accused. However, a suggestion was also given to the witnesses that the case was falsely started as the victim died on the spot before arrival of the police. ( 6 ) THE learned Sessions Judge after scanning of the evidence adduced by the witnesses and also relying on the statements made by the accused under section 164 Cr. PC came to the conclusion that the case against the accused was proved and accordingly he gave his verdict in the manner indicated hereinabove. ( 7 ) THE convict however filed a jail appeal before this Court and by an order of this Court Mr. R. R. Biswas, learned Counsel of this Court was appointed from the State Panel to represent the appellant. ( 8 ) MR. Biswas, learned Counsel appearing on behalf of the appellant scanning the evidence adduced by vital witnesses, namely, PW. 1 Nemai Gope, PW. 3 aditya Gope, PW. 6 Mathur Garai and the Investigating Officer S. I. B. R. Dutta (PW. 13) contended that a false case was started due to manoeuvring of the investigating agency, inasmuch as it cannot be expected that an injured person with amputated right wrist was allowed to remain in the field for the purpose of recording his statement without sending him immediately to any hospital for treatment. Mr. R. R. Biswas also points out the discrepancy in the evidence adduced by the witnesses as regards the recovery of the weapons. So main argument of Mr. Biswas centred round the point that the victim was not alive at the time of recording his statement which was treated as FIR. It is also argued that the prosecution did not give any explanation as regards the injury that was appearing in the person of the accused. So main argument of Mr. Biswas centred round the point that the victim was not alive at the time of recording his statement which was treated as FIR. It is also argued that the prosecution did not give any explanation as regards the injury that was appearing in the person of the accused. Moreover, the prosecution story of scuffling or free fight between the victim and the accused if believed it can safely be concluded that the instant case comes within the purview of section 304 (II) of IPC instead of section 302 of IPC. In this connection Mr. Biswas placed reliance on the judgements of the Apex Court in Ramesh V. Thakre vs. State of Maharashtra, reported in AIR 1995 SC 1453 and Balaur singh vs. State of Punjab, reported in AIR 1995 SC 1956 . So Mr. Biswas contended that either the accused convict is to be found not guilty and to be acquitted, or at best he can be convicted under section 304 (II) of the IPC. ( 9 ) IN reply Mr. Biplab Mitra, learned Counsel appearing for the State was fair enough to concede that the prosecution was unable to give any explanation as regards the injury inflicted on the accused. He also contended that the Trial court undoubtedly committed an error in placing reliance on the alleged confessional statement made by the accused before the learned Magistrate under section 164 Cr. PC. Mr. Mitra further contended that recovery of weapons coupled with the story of assault of the victim, and the case made out in the evidence as regards free fight between the accused and the victim are sufficient to indicate that the case is to be considered in the light of the discussion made by the Apex Court in the above cited decisions. ( 10 ) AT the very outset it is to be mentioned that FIR was recorded at about 3. 30 p. m. of 11. 12. 93 on the basis of a written complaint on which the victim put his LTI (Ext-4) at about 1. 30 p. m. of the same day. From the said written complaint it is sufficiently clear that the victim was assaulted by the accused haren Deoghoria at about 12 noon by means of banti and subsequently Haren amputated the right hand from the wrist and also cut off finger of the right hand. 30 p. m. of the same day. From the said written complaint it is sufficiently clear that the victim was assaulted by the accused haren Deoghoria at about 12 noon by means of banti and subsequently Haren amputated the right hand from the wrist and also cut off finger of the right hand. So from the written complaint it is sufficiently clear that the victim sustained serious bleeding injury on his person not only on the hand but also on his leg. From Ext. 1 which is the seizure list prepared in presence of two local witnesses Nemai Gope (PW. 1) and Badal Kaibartya (PW. 2), it appears that on the same date at about 2. 05 p. m. the weapon of offence along with other items were seized from the paddy field. LTI of the victim appearing on the seizure list is sufficient to indicate that he was present at the time of seizure of the weapon. PW. 13 (I. O.) also claims so, and he also further added that thereafter the victim was sent to the hospital for treatment. ( 11 ) IT is to be noted that the case was initially started under section 326/307 ipc, and as the victim expired the I. O. made a prayer to the SDJM, for adding section 304 IPC on the following day i. e. on 12. 12. 93. So it is amply clear that at the initial stage the investigating agency was satisfied that it was an offence under section 304 IPC. However, chargesheet was submitted after about five months under section 302 IPC. ( 12 ) IT appears from the evidence on record that local residents of the village, namely, Nemai Gope PW. 1, PW. 2 Badal Kaibartya, PW. 3 Aditya Gope, PW. 4 shyamal Gope, PW. 5 Sankar Kaibartya and PW. 6 Mathur Garai are all named in the written complaint (Ext. 4 ). From the evidence of the six witnesses who arrived at the spot on hearing the news of fight between two persons is sufficient to indicate that the victim and the accused person were fighting. It is true that the victim in the written complaint claimed that he was attacked by the accused from behind. But it is a common behaviour that the person received fatal injury is supposed to give statement concealing the part played by him. It is true that the victim in the written complaint claimed that he was attacked by the accused from behind. But it is a common behaviour that the person received fatal injury is supposed to give statement concealing the part played by him. Be that as it may, the fact remains that not only the victim sustained injury but the accused also sustained injury in his finger. In examination under section 313 of the code of Criminal Procedure reply was also given that the cause of injury was the putting of injury by the accused. PW. 13 (I. O.) also noticed the injury on the person of the accused. It is also clarified that a knife along with a banti was recovered from the spot and it appears that handle of the knife was broken into two pieces. There is no clarification in the evidence as to how the accused had sustained injury. Nor there is any indication as to who was the owner of the knife. In this connection it is also to be noted from the evidence that the victim was the cousin brother of the accused. So, all these important points coupled with the story of fighting are sufficient to indicate that the accused did not attack the victim with the sole object of killing his cousin brother. ( 13 ) IN this connection it should be mentioned here that the accused while in judicial custody was sent for examination by a psychiatrist indicating that there were certain psychotic problem with the accused. But neither the prosecution highlighted this fact properly nor the Trial Court took into consideration the actual state of affair. His subsequent mental state and conduct are also clear from the plea of guilt as well as the statement made under section 164 of Cr. PC. ( 14 ) IT appears that the learned Sessions Judge placed full reliance on the statement recorded under section 164 Cr. PC that formed basis of conviction inspite of noting the fact that the certificate required under that section was not appended after recording of the confessional statement of the accused. ( 15 ) THERE is also no indication on the date of production of the accused before him, for the purpose of recording confessional statement, that the accused was explained that if no statement was made by him, would not be sent back to the police custody. ( 15 ) THERE is also no indication on the date of production of the accused before him, for the purpose of recording confessional statement, that the accused was explained that if no statement was made by him, would not be sent back to the police custody. Mr. Biswas on this score rightly made forceful argument placing reliance on few of the precedences. ( 16 ) IT is a settled principle of law that the statement recorded under section 164 of Cr. PC can never be used as substantive evidence of truth of the facts but it may be used for contradiction or corroboration of the person who made it. It is also a settled principle of law that the record should show what warning was given before recording the statement. The main principle is that the confessional statement must be proved to be voluntary. It is incumbent upon the Magistrate to take all possible steps and precaution to ascertain whether the confession was being made voluntarily, and such confession is to be recorded by strict observance of all formalities prescribed in section 164 of the Code. The law does peremptorily require that after recording the confession, the Magistrate must append at the foot of the record a certificate as to its voluntariness. ( 17 ) IT is only after hearing the confession and observing the demeanour that the Magistrate is in the best position to append the requisite certificate. Accordingly, in sub-section (4) of section 164 of the Code, the language of memorandum is appended. It has been observed in many of the cases that the confession without memorandum is bad in law. Similarly, it is also viewed that general statement 'that all precautions were taken is too vague. Of course, in few other cases it was also viewed by the different High Courts that the defects or irregularities in recording the confessional statement are curable by section 463 of the Cr. PC. Though there are divergent views on this point, the principle generally adopted is that the provision under section 463 applies only when the confession is duly made i. e. made in accordance with law. ( 18 ) IN his examination under section 313 Cr. PC. Though there are divergent views on this point, the principle generally adopted is that the provision under section 463 applies only when the confession is duly made i. e. made in accordance with law. ( 18 ) IN his examination under section 313 Cr. PC the accused admitted that he made statement before the Magistrate, but the details of the statement before the Magistrate was not put to the accused for which no opportunity was given to him to explain whether non-compliance of the provision under section 164 had actually injured the accused in his defence on merit. So, after due consideration, we come to the conclusion that no reliance can be placed on the alleged confessional statement of the accused as a corroborative piece of evidence in this case. We also take the view that the non-compliance has practically injured the accused in his defence on the merits, for which it is not curable under section 463 of Criminal Procedure Code. ( 19 ) THE learned Sessions Judge practically misdirected himself in placing full reliance on the said confessional statement to convict the accused person under section 302 of IPC. We take the view that the conviction under section 302 of IPC on the basis of the said confessional statement cannot be upheld and accordingly, finding of the learned Sessions Judge on this score is liable to be set aside. But the fact remains that the victim died as a result of the injuries inflicted on him. The evidence on record also clarifies that the injuries received by the victim were at the hands of the accused person. But at the same time, it is also to be noted that those injuries were inflicted in course of free fight (marpit)between the accused and the victim as was reported by the children in the field Of course those children have not been examined in this case. ( 20 ) THE prosecution fully relied on the statements of PW. 3 and PW. 6 as regards the report of free fight between the accused and the victim in the field as was reported by the children grazing cattle in the field. This important fact along with the injuries sustained by the accused which has not been explained by the prosecution corroborates the story of free fight between the two. 3 and PW. 6 as regards the report of free fight between the accused and the victim in the field as was reported by the children grazing cattle in the field. This important fact along with the injuries sustained by the accused which has not been explained by the prosecution corroborates the story of free fight between the two. Moreover, the indication of chasing the victim by the accused further corroborates that the accused was proceeding to take revenge against the victim. So, all these important materials are sufficient to indicate that the injuries were sustained in course of free fight and the victim subsequently died in the hospital. It is also clear that the accused did not attack the victim with intention to commit murder. If such intention was there, the victim could not be survived for such a long period only. to lodge the complaint before the police and also to narrate the incident to the villagers. The long stay of injured victim at the place of occurrence in presence of police officer is sufficient to indicate that the injuries were inflicted not for the purpose of causing death. So, such case should not come under the purview of section 302 of IPC as it is rightly argued by Mr. Biswas. On the other hand, the materials on record are sufficient to indicate that it was a culpable homicide not amounting to murder, coming within the purview of section 304 (II) of IPC. We deem it proper to find guilt of the accused under the said provision of IPC and we are of the view that the accused is to be convicted and sentenced under section 304 (II) of IPC. ( 21 ) SINCE the accused was convicted and sentenced under section 302 of IPC by the learned Session Court, there is no necessity of hearing the accused once again on the point of sentence. Keeping in view the materials on record and the circumstances, we hold and conclude that the conviction of the accused under section 302 IPC and sentence inflicted thereunder by the learned Session Court are set aside and modified. The accused is found guilty under sectipn 304 (II) of ipc. He is convicted thereunder and is sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- in default, to suffer further rigorous imprisonment for one year. The accused is found guilty under sectipn 304 (II) of ipc. He is convicted thereunder and is sentenced to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/- in default, to suffer further rigorous imprisonment for one year. Period of detention undergone in course of investigation and trial is to be set off under section 428 of Cr. PC against the substantive sentence. If fine is realised, full amount is to be paid to the legal heir of the victim Amar Deoghoria. ( 22 ) WITH the above observations, this appeal is allowed in part. ( 23 ) LET a copy of this judgement be sent to the learned Sessions Court immediately for issuance of fine cheques and for modification of the jail warrant in accordance with the provision of law. Appeal allowed in part.