JUDGMENT I.A. Ansari, J. 1. This is an unfortunate case in which the two minor children witnessed their father being killed mercilessly by giving blows with a dao. 2. This appeal is directed against the judgment and order, dated 9.9.1999, passed by the learned Sessions Judge, Golaghat, in Sessions Case No. 49/97, convicting the accused-appellant under Section 302 IPC and sentencing him to suffer imprisonment for life and also pay a fine of Rs. 5,000 and, in default, to suffer rigorous imprisonment for a further period of one year. 3. The case of the prosecution, as unfolded at the trial, may, in brief, be described as follows: On 18.3.1996 at about 3.30 P.M., while the deceased, Monglu Bhuyan, a accompanied by his two minor children, namely, Madan and Pradip, was going to the field, accused-appellant, Dipak Paharia, followed him and attacked with a dao from back side and killed him at the spot. The two minor children tried to remove the blood from the cut injuries of their father with a piece of cloth and, then, ran to their uncles' house k and reported the occurrence to their uncles, whereupon, their uncles, Mogha, Bhadra and others, came to the place of occurrence and found Monglu lying dead. Mogha went to Borpathar Police Station and lodged there a written FIR. Police visited the place of occurrence, seized the Dao, which was found lying near the dead body at the place of occurrence, held inquest over the dead body, arrested the accused and, c on being forwarded to the court, the accused made a judicial confession. On completion of the investigation, police laid charge sheet against the accused under Section 302 IPC. 4. During trial, when a charge, framed under Section 302 IPC, was explained to the accused, he pleaded not guilty thereto. Altogether 7 witnesses were examined by the prosecution, the accused was, then, examined under Section 313 Cr.P.C. and in his examination aforementioned, the accused denied that he had committed the offence alleged to have been committed by him, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. On conclusion of the trial, learned trial court, on finding the accused guilty of the charge framed under Section 302IPC, convicted him accordingly and passed sentence against him as hereinabove mentioned. 5. We have heard Mr. N. Sinha learned Amicus Curiae, and Mr. No evidence was, however, adduced by the defence. On conclusion of the trial, learned trial court, on finding the accused guilty of the charge framed under Section 302IPC, convicted him accordingly and passed sentence against him as hereinabove mentioned. 5. We have heard Mr. N. Sinha learned Amicus Curiae, and Mr. F.A. Laskar learned Additional Public Prosecutor. 6. In the present appeal, the case of the prosecution rests, inter alia, on the evidence of PW 5 (Madan), a minor son of the said deceased, and the judicial confession made by the accused. 7. We, first, consider the evidence of PW 5, the minor son of the deceased. According to his evidence, the accused is their co-villager and was a regular visitor to their house. As regard the occurrence, PW 5 has deposed that on the day of occurrence, his mother was at his maternal uncle's house and along with his father, he went to their field to fetch cattle home and, at the field, the accused came running with a dao and attacked his father with the blunt side of the dao over his knee-joint, his father fell down at the field and, then, the accused gave more blows over his back and neck. PW 5 also deposed that he cried out for help and, then, ran to the house of his uncle, Bhadra, and reported to him about the occurrence, whereupon Bhadra and other neighbours came to the place of occurrence. PW 4 has further deposed that his father died at the field. 8. PW 5 was a child witness aged about 8 years, the learned trial court, upon questioning the witness, asserted that this witness had achieved sufficient maturity of understanding and was capable of giving evidence. To this effect, a certificate was appended to the evidence of the witness by the learned trial court. Nothing transpires from the record nor is it indicated before us, at the time of hearing of this appeal, that PW 5 was not capable of giving evidence and/or that he was a tutored witness. 9. Keeping in view the above aspects of the matter, when we concentrate on the evidence of PW 5, we find that the evidence of this witness has remained, on all material particulars, completely unshaken. In fact, there has been no effective cross-examination of this witness. 9. Keeping in view the above aspects of the matter, when we concentrate on the evidence of PW 5, we find that the evidence of this witness has remained, on all material particulars, completely unshaken. In fact, there has been no effective cross-examination of this witness. Situated thus, we see no reason for not placing reliance on the testimony of this witness. 10. Lending support to the evidence of PW 5, his uncle, PW 2, Monglu has deposed that on the day of the occurrence, the wife of the accused was at her mother's house for the purpose of attending a marriage ceremony and on that day, the two minor children of the deceased, namely, Madan (PW 5) and Pradip, (who is not examined as a witness), came to his house and reported to him that accused Dipak Paharia had killed their father by attacking him with dao, whereupon he (PW 2) and his elder brother, Bhadra (who is also not examined as a witness), came to the place of occurrence and found their brother, Monglu, lying dead at e the village field with injuries on his body, whereupon he (PW 2) went to Borpathar PS. and lodged there a written FIR. We find that the evidence of PW 2 too remained, on material particulars, completely unshaken. 11. However, in view of the fact that PW 5, nowhere, specifically named PW 5 as a person to whom PW 5 had narrated the occurrence, should f we keep the evidence of PW 2 as to what PW 5 reported to him wholly excluded from the purview of our consideration as hearsay. In the case of Bisheswar Baori @ Khetrapal v. State of Assam reported in 2002 (3) GLT 395, a Division Bench of this Court held as follows: 46. It needs to be carefully noted that while dealing with a piece of evidence, which is regarded as hearsay, the courts must bear in mind that there is a difference between factum of an information and truthfulness/veracity of such information. In a given case, if the object is to merely establish that a statement was made, it may not be hearsay, but if the object is to prove that what was stated was true, then, it may become hearsay. In a given case, if the object is to merely establish that a statement was made, it may not be hearsay, but if the object is to prove that what was stated was true, then, it may become hearsay. Thus, when "X", an eye witness of an occurrence of murder, comes to a police station and reports the occurrence to a police officer, the evidence given by the police officer, at the trial, that he was given such an information is not hearsay if the object is merely to prove that such a report was, indeed, received by the police officer, but if the object is to prove that what was reported to the police officer was true, then, the police officer's evidence as to what he was reported by "X" would be hearsay unless 'X' appears as a witness at the trial and deposes not only that he had so reported the occurrence to the police officer, but also that what he had reported was true as he had witnessed the occurrence himself. Reference may be made to : 1983 Cri. LJ. 127 (SC) in this regard. 12. Thus, the evidence given by PW 2 that PW 5 reported to them that the accused-appellant had killed their father by attacking him with a dao may not be hearsay if the court has to determine as to whether PW 2 had heard such utterances of PW 5 and/or had been so reported by PW 5 or not ; but if the court is required to determine as to whether what PW 2 heard was true or not, then, the evidence given by PW 2 will be hearsay and must be held so inasmuch as PW 2 has no personal knowledge if the accused had really hacked Monglu to death, for, in Order to prove that the information so received by PW 2 was correct, PW 2 depended on the evidence of PW 5, who has, nowhere, specifically named PW 2 as a person to whom he (PW 5) had reported the occurrence. 13. 13. What logically follows from the above discussion is that though the evidence of PW 2 does not prove as to whether the accused had killed Monglu, the fact remains that his evidence, unquestionably, proves that immediately after the occurrence, PW 5 did come running to the house of his uncles and reported to them that the accused had killed their father and, on rushing to the place of occurrence and reaching there, PW 2 did find PW 2's father, Monglu, lying dead with cut injuries on his body and the FIR promptly lodged, in this regard, by PW 2 did mention the name of the accused-appellant as the assailant of Monglu. 14. What further logically follows from the above discussion is that the unscathed evidence of PW 5 that he witnessed his father being hacked by the accused-appellant coupled with the fact that PW 5 did promptly report, as the evidence on record discloses, the name of the accused-appellant as assailant of his father, the fact that the father of PW 5 was found lying dead with injuries on his body and also the fact that the promptly lodged FIR by PW 2 named the accused-appellant as the sole assailant of the said deceased go to show, and eloquently speak, that it was the accused-appellant, who had assaulted Monglu with a dao causing injuries on his person, which resulted into his death. 15. Close on the heels of the evidence of PW 5 and PW 2 is the evidence of PW 4 (Bahagi), who was declared hostile and cross-examined by the prosecution. The law with regard to the appreciation of the evidence of hostile witness is well settled. Such a witness' evidence cannot be totally brushed aside; rather, such a witness' evidence, to the extent that the same supports the prosecution's case or supports the evidence on record, can be safely relied upon. 16. On a microscopic scrutiny of the evidence of PW 4, we notice that her evidence is that she is a neighbour of the deceased and on the day of occurrence, when she was sitting at her house, she saw deceased, Monglu, going towards the field and, then, she heard Monglu's son Madan (PW 5) and another child crying, "My father has been cut, Dipak has cut". It is in the evidence of PW 5 that Monglu died at the field and she had seen his dead body lying at the field. By this witness's cross-examination, the defence elicited that she had not stated before the police that she had heard Monglu's son crying, "My father has been cut, Dipak has cut". Be that as it may, even if the evidence of PW 4 given to the effect that she had heard Monglu's son crying as claimed by her is not taken into account as reliable, the fact still remains that her evidence too lends sufficient support to the evidence of PW 5 that his father, Monglu, went to the field and there he was killed. 17. We may also point out that though the prosecution had examined PW 3 (Sambru) as an eye witness to the occurrence, he, eventually, turned hostile. The only piece of evidence, which could be elicited by the prosecution from this witness is that when the police came, he (PW 3) went to the place of occurrence and saw the said dead body. The fact that Monglu died at the village field is not, in fact, in dispute before us. 18. Coupled with the above, PW 1 (Dr. A.K. Borthakur), who had held post mortem over the dead body of Monglu, found as follows: 1. One incised wound of about 8" long on the back of the neck extending from one side of the neck to other side cutting through skin, muscles, bones of cervical vertebra and other structures of the neck. The wound is covered with clotted blood. 2. About 3" long incised wound which is muscle deep over the back of chest on left side and covered with clotted blood. 3. About 1" long X muscle deep wound in the back on the left side covered with clotted blood. 4. Spinal cord completely severed in the cervical portion. 5. Oesophagus and Trachea are severed by the incised wound already described above. 6. There was no other injury in the body elsewhere other than described above. 7. All the injuries described are ante mortem. 19. 4. Spinal cord completely severed in the cervical portion. 5. Oesophagus and Trachea are severed by the incised wound already described above. 6. There was no other injury in the body elsewhere other than described above. 7. All the injuries described are ante mortem. 19. In the opinion of the PW 1, (doctor), the injuries were ante mortem in nature, the death was caused due to shock and haemorrhage resulting from the injuries sustained by the said deceased, the injuries on the neck were fatal and that the injuries could have been caused by a sharp and heavy weapon. 20. Thus, when the evidence of the sole eye witness, namely, PW 5 is considered, in the light of the evidence of PW 1 (doctor), it transpires that the evidence of PW 5 that his father was hacked to death by a dao at the hands of the accused, Dipak Paharia, is well proved. 21. Now, turning to the judicial confession, we find that PW 7 (A.N. Ghosh), who recorded the judicial confession, has deposed that when the accused was produced before him, he explained to the accused the implications of making of judicial confession and allowed him time for reflection till 2 p.m. and kept him, during the period of reflection, in his court's chamber in the custody of a peon. PW 7 has also deposed that at 2 P.M., when the accused was, again, asked by him (PW 7), the accused volunteered to make confession and, accordingly, the confessional statement of the accused was recorded. 22. The learned trial court relied on the confessional statement as voluntary and true. Let us, now, determine if the confessional statement could have been treated as voluntary and true. 23. It is rudiment that when a confession, judicial or extra-judicial, is proved to have been made by an accused, the court can not readily rely upon such a confession unless the court is satisfied that the confession is not only voluntary, but true too. If the confession appears to the court to be involuntarily made, that is, if the confession appears to have been caused by inducement, threat or promise, as envisaged by Section 24 of the Evidence Act, then, the question of entering into the determination of the question of truthfulness of the confession does not arise at all. If the confession appears to the court to be involuntarily made, that is, if the confession appears to have been caused by inducement, threat or promise, as envisaged by Section 24 of the Evidence Act, then, the question of entering into the determination of the question of truthfulness of the confession does not arise at all. In other words, if a confession appears to the court to be involuntary, the court need not undertake the exercise of determining whether the confession is true, for, even if the confession is true, but involuntary, such a confession cannot be relied upon and has to be kept excluded by the court from the purview of its consideration, while determining the guilt or otherwise of the accused. Reference may be made, in this regard, to Shankaria v. State of Rajasthan : AIR 1978 SC1248. It also needs to be borne in mind that whether a confession is voluntary or not is essentially a question of fact. 24. Keeping in view the position of law as indicated hereinabove, when we turn to the evidence of PW 1, what becomes glaringly noticeable is that notwithstanding the fact the PW 7 has deposed to the effect that the confession made by the accused was voluntary, a careful scrutiny of ext. 5, which is the form on which the judicial confession has been recorded by the PW 7, when read with the oral evidence of JW 7, shows that PW 7 made no real endeavour to find out as to what kind of treatment the accused had received, while he was in the custody of the police. PW 7 also made no endeavour to find a out as to why the accused had come forward to make the confession. What also cannot be ignored is that PW 7 gave no assurance to the accused that even if the accused chose not to make the confession, he would not be handed over to the police. The Magistrate has, thus, made no real effort to satisfy his judicial conscience that the confession, offered to be made by the accused was voluntary and not on account of any extraneous influence. The Magistrate has, thus, made no real effort to satisfy his judicial conscience that the confession, offered to be made by the accused was voluntary and not on account of any extraneous influence. The failure on the part of PW 7 to put such questions to the accused from which he could have ascertained if the confession offered to be made was voluntary makes it unsafe for the court, which sits on the judgment of the case, to act upon such confession. The putting of questions to an accused before recording c his confessional statement is not merely a formality, but a solemn duty of a Magistrate and it has to be discharged not as a mere formality, but as a solemn act. This appeal make us re-call the decision in Dhanajaya Reddy v. State of Karnataka reported in (2001) 4 SCC 9 , wherein the Apex Court held and observed, thus, "The function of the Magistrate in recording confession under Section 164 of the Code is a very solemn act which he is obliged to perform by taking due care to ensure that all the requirements of Section 164 are fully satisfied. The Magistrate recording such a statement should not adopt a casual approach." 24A. It has been, time and again, emphasised by this High Court that the questions printed in Form No. 84 (which is the prescribed form for recording of confessional statement under Section 164Cr.P.C.) is merely illustrative and not exhaustive in nature. What a Magistrate must, in the minimum, do to ascertain if the confession made is voluntary has ' been succinctly described in Shivappa v. State of Karnataka : 1992 (2) SCC 76, in the following words: Besides administering the caution, warning, specifically provided for in the first part of Sub-section (2) of Section 164, namely, that the accused is not bound 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 agents as the police or the like in case he declines to make a statement and be given the assurance that even if he declines to h make the confession, he shall not be remanded to the Police custody. (emphasis is supplied by us) 25. In the case at hand, though the learned trial court has observed that all necessary warnings were given to the accused, the learned trial court appears to have omitted to note that the Magistrate had made no real effort at all to find out as to what kind of treatment the accused had received, while he was in the custody of the police, or whether the accused had been threatened and/or offered any inducement by the police for making the confession. That apart, the Magistrate neither made any endeavour to determine the reason as to why the accused had come forward to make the confession nor was, there any assurance given to the accused that even if he chose not to make confession, as sought for, he would not be given back into the custody of the police. 26. Situated, thus, we find it wholly unsafe and hazardous to treat the judicial confession, in question, as voluntary. 27. In view of the fact that we hold that the judicial confession, in question, was not voluntary, we need not enter into the question as to whether the confession made was true or not inasmuch as the satisfaction of the court that the confession, in question, is voluntary is sine quo non for acceptance of the confession. 28. Notwithstanding, however, the fact that we treat the judicial confession as involuntary and exclude the same from the purview of our consideration, the evidence of the sole eye witness, namely, PW 5 which we have found to be wholly unshaken and entirely trustworthy, coupled with the other evidence on record, as already discussed above, leave no room for doubt that the prosecution had proved the guilt of the accused beyond all reasonable doubt. 29. What, thus, crystallizes from the above discussion is that the evidence of Madan (PW 5) as eye witness to the occurrence coupled with the evidence of his uncle, Monglu (PW 2), convincingly proved that it was the accused, who had assaulted Monglu and caused his death. This apart, the medical and other evidence on record, as indicated hereinabove, lend substantial strength and support to the evidence of the eye witness. 30. Considering, therefore, the matter in its entirety, we are firmly of the view that the evidence on record convincingly proved that it was the accused, who had caused the death of Monglu. 31. This apart, the medical and other evidence on record, as indicated hereinabove, lend substantial strength and support to the evidence of the eye witness. 30. Considering, therefore, the matter in its entirety, we are firmly of the view that the evidence on record convincingly proved that it was the accused, who had caused the death of Monglu. 31. What also follows from the above discussion, held, as a whole, is that the accused dealt as many as 3 (three) blows on the said deceased, the weapon used was a deadly weapon like dao and the assault was made on the vital parts of the body, such as, neck. All these factors, when taken together, leave no room for doubt that the accused intended to bring complete end to the life of his victim and the accused did succeed. Situated, thus, we find that the accused did commit the offence of murder punishable under Section 302 IPC. We, therefore, hold the conviction of the accused-appellant under Section 302 IPC as correct and well proved. We also see no ground to interfere with the sentence passed against the accused-appellant. 32. This criminal appeal has, therefore, no merit and is accordingly dismissed. Send back the LCR. Appeal dismissed