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2008 DIGILAW 394 (UTT)

LAXMAN SINGH DHARMSHATRU v. STATE OF UTTARAKHAND

2008-08-29

J.C.S.RAWAT

body2008
JUDGMENT This criminal appeal has been preferred against the judgment and order dated 20.07.2007 passed by the then Sessions Judge, Pithoragarh in S.T. No. 55/2005, whereby the accused/appellant was convicted and sentenced to undergo R.I. for a period of five years and a fine of Rs. 10,000/- under Section 304 IPC. It was further directed that in default of payment of fine, the accused/appellant would further undergo imprisonment of one year. 2. Brief facts of the prosecution case are that on 27.09.2005 the first information report was submitted by Devendra Singh Pangati PW3 before the District Magistrate, Pithoragarh alleging therein that on 11.09.2005, his brother Pratiman Singh Pangati had gone to see the fair of “Nanda-Ashtami” in village Suring, but he did not return till night. In the morning of 12.09.2005, he has received information that his brother was lying dead under suspicious condition in village Suring. On the basis of the aforesaid report, a Chick FIR was prepared and necessary entries were made in the general diary. The police visited the spot and sent the dead body for postmortem. The Investigating Officer prepared the site plan and recorded the statement of the witnesses. After completing the investigation, the Investigating Officer submitted the chargesheet before the court. 3. After submission of chargesheet the accused/appellant was committed to the Court of Sessions for trial and the trial court framed charges against the accused person. The accused person denied charges levelled against him and claimed the trial. 4. The prosecution in order to support its case examined as many as eight witnesses. Navin Singh PW1 alongwith the deceased went to see the festival of “Nanda-Ashtami”. He is the witness to the effect that the deceased was lastly seen alive in the company of the accused/appellant in the late hours of 11.09.2005. Navin Singh PW1 is also the witness before whom the accused/appellant made an extra-judicial confession. Dr. Anil Kumar Garg PW2 is the Medical Officer, who conducted the postmortem on the dead body of the deceased. Devendra Singh Pangati PW3, brother of the deceased is the informant of the case. Laxman Singh Pangati PW4 is the witness in whose presence the recovery of one shoe, one black pant and one vallet of the deceased were made from the place of the incident. Constable Kishan Singh PW5 and S.I. Kundan Singh PW6 are the formal witnesses of the police. Laxman Singh Pangati PW4 is the witness in whose presence the recovery of one shoe, one black pant and one vallet of the deceased were made from the place of the incident. Constable Kishan Singh PW5 and S.I. Kundan Singh PW6 are the formal witnesses of the police. PW7 is the Judicial Magistrate before whom the statement of the accused/appellant was recorded under section 164 Cr.P.C. Pratap Singh Chauhan PW8 is the Investigating Officer of this case and after completing the investigation he submitted the chargesheet against the accused/appellant. 5. In the statement recorded u/s 313 Cr.P.C. the accused persons had denied the prosecution case and stated that he has been falsely implicated in this case. The accused/appellant has also adduced the evidence of Bhupal Singh DW1 in support of his defence. 6. The learned trial court after appraisal of the evidence on record, convicted and sentenced the accused/appellant as mentioned above. 7. I have heard Mrs. Pushpa Josh;i, learned counsel for the accused/appellant; Mr. Amit Bhatt, Addl. G.A. for the respondent/State and perused the evidence on record. 8. At the outset, it needs to be mentioned that it is not disputed that the deceased Pratiman Singh Pangti died on account of the injuries sustained by him on 11.09.2005 at about 9.00 or 9.30 p.m. at the spot as pointed out by the prosecution. The prosecution in support of its case adduced the evidence of Dr. Anil Kumar Garg PW2 who has stated in his evidence that he conducted the autopsy on the body of the deceased on 13.09.2005 at 5.15 p.m. and found the following injuries on the person of the deceased : 1. Lacerated wound right supra orbital region about 5 x 1 cm. 2. Fracture mandible (angle) lt. side. 3. Abrasion 10 cm. x 10 cm. present in left lower part of chest antero laterally. 4. Contusion (large) over Rt. side of face. 5. Abrasion present whole back of chest. Supra Scapular area is reared. Fracture right side clavicle. The doctor has opined that the cause of the death of the deceased was neurogenic shock due to ante mortem injuries. 9. Thus, it is established by the medical evidence that the deceased died on account of the injuries sustained by him on the time and date as alleged by the prosecution. The defence has not disputed the time and place of the death of the deceased. 9. Thus, it is established by the medical evidence that the deceased died on account of the injuries sustained by him on the time and date as alleged by the prosecution. The defence has not disputed the time and place of the death of the deceased. Defence has taken a case by way of suggestion that the deceased took liquor and he fell down from the rock and thereafter died due to such injuries sustained by him. 10. Now, I have to see as to whether the accused/appellant caused the injuries on the person of the deceased and thereafter thrown him from the rock as alleged by the prosecution. There is no direct evidence in this case and the case rests on the circumstantial evidence. The prosecution in support of its case relied upon three circumstances for showing the participation of the accused/appellant in the commission of the offence. 11. The first circumstance which has been relied by the prosecution against the accused/appellant was the last seen evidence of accused in the company of the deceased on the date of the incident. In support of its first circumstance, the prosecution has adduced the evidence of Navin Singh PW1 who has stated in his evidence that on 11th September, 2005, the accused/appellant, deceased Pratiman Singh Pangti, Ganesh Singh and he went to village Suring gaon to see the festival of Nanda-Ashtami. At about 5:00 to 5:30 p.m. all of them went to the houses of their relatives for taking meals. Firstly, they went in the house of Nain Singh Matolia in village Suringaon. Thereafter, they went to Sasural of the brother of the accused/appellant. He has further stated in his evidence that there was a scuffle in between Ganesh Singh and Kripal Singh. The deceased intervened in the said scuffle and the accused/appellant took favour of Kripal Singh in the said scuffle. Thereafter, all of them started to go to the house of one Pratap Singh. When they were on their way, Guddu @ Ganesh Singh started vomiting on the way. They left him there and went to the house of Pratap Singh but Pratap Singh was not available in his house so they returned from there. When they came near the place where they left Guddu @ Ganesha, they did not find him there. When they were on their way, Guddu @ Ganesh Singh started vomiting on the way. They left him there and went to the house of Pratap Singh but Pratap Singh was not available in his house so they returned from there. When they came near the place where they left Guddu @ Ganesha, they did not find him there. Thereafter, they made a thorough search of Guddu @ Ganesh Singh but they could not find him. As it was becoming late night, Navin Singh PW1 desired to return to his home. The accused/appellant Laxman Singh said to him that there was no hurry to him to go to home. On this, Navin Singh PW1 left the accused/appellant and the deceased Pratiman Singh Pangti there and returned to his house. During the cross examination, Navin Singh PW1 has further stated that all of them took liquor in three-four places. On the next date, it was discovered that the deceased had died due to fall from the rock. The learned counsel for the accused/appellant contended that the evidence of Navin Singh PW1 regarding leaving the accused/appellant in the company of the deceased is not credible and cogent. The learned Addl. G.A. supported the findings recorded by the trial court. Navin Singh PW1 has stated in his cross examination as under : ß?kVuk ds fnu ds ckn esjk c;ku djhc 27-9-95 dks “kk;n esjk c;ku fy;k FkkA equL;kjh Fkkus esa 27-9-05 dks esjk c;ku fy;k FkkA eq>s nkjksxk th us Mjk /kedk dj ;g dgk Fkk ;fn vfHk;qDr ugha feyrk rks rqe rhuksa dks vfHk;qDr cuk nsaxssAÞ 12. Thus, the above fact clearly reveals that the said witness was not interrogated on 27.09.2005 and he was threatened by the Investigating Officer if the accused would not be traced or the involvement of any person is not revealed by the investigation, he would implicate all the three persons including Navin Singh PW1 in this case. In the light of the above fact, the entire evidence has to be judged in this case. 13. The incident occurred on 11.09.2005. Navin Singh PW1 has categorically stated in his cross examination that the police reached at the spot on 12.09.2005 where the dead body was lying. The police also prepared the inquest report at the spot on 13.09.2005 and sent the dead body for post-mortem. The police inquired about the incident at the time of the panchnama. Navin Singh PW1 has categorically stated in his cross examination that the police reached at the spot on 12.09.2005 where the dead body was lying. The police also prepared the inquest report at the spot on 13.09.2005 and sent the dead body for post-mortem. The police inquired about the incident at the time of the panchnama. The prosecution evidence clearly reveals that Navin Singh PW1 was present at the time of panchnama. He has also admitted that the police had also inquired about the cause of the death. Navin Singh PW1 has not stated that he had left the deceased in the company of the accused/appellant on the date and time as stated in his evidence. It is revealed from the evidence that the complainant and Navin Singh PW1 were the resident of village Darkot. If such incident would have occurred and this fact was in the knowledge of Navin Singh PW1, he could have disclosed that he left the deceased and accused/appellant in the evening at village Suring on 11.09.2005. Bhopal Singh DW1 was also produced to show that the accused/appellant had left the place of occurrence and he came to his house alongwith Bhopal Singh DW1. If it was so, Navin Singh PW1 would have either lodged the report to the Patwari or he could have stated this fact to the police at the time of the inquiry or to the family members of the deceased. For the first time he brought this fact on 27.0-9.2005 after a lapse of 15 days. Thus, the evidence of Navin Singh PW1 is not credible and cogent. The conduct of Navin Singh PW1 also makes his evidence doubtful. 14. The second circumstance that has been relied against the accused/appellant by the prosecution is the extra judicial confession made by the accused/appellant to Navin Singh PW1 in the night of 11th September. Navin Singh PW1 has stated in his evidence that on 11.09.2005 at about 11:00 p.m. someone knocked his door and when he opened the door he found accused/appellant there. The accused/appellant entered into his house. When he asked the reason of coming to his house in the late night, the accused/appellant confessed before him that when he (Navin Singh PW1) left in the night, there was a quarrel in between accused/appellant and the deceased due to which the deceased sustained the head injuries and died at the spot. The accused/appellant entered into his house. When he asked the reason of coming to his house in the late night, the accused/appellant confessed before him that when he (Navin Singh PW1) left in the night, there was a quarrel in between accused/appellant and the deceased due to which the deceased sustained the head injuries and died at the spot. The accused/appellant had further stated to him not to disclose this fact to anybody otherwise he would kill him. The extra judicial confession which has been made by the accused/appellant to Navin Singh PW1 is extracted hereunder : ßblds ckn jkf= yxHkx 11 cts esjs njokts [kV[kVk;s rks eSaus vUnj ls vkokt nh dkSu gS rks ckgj ls dksbZ ugha cksyk fQj eSaus njoktk [kksyk rks ckgj vfHk;qDr y{e.k flag FkkA fQj og esjs vUnj vk x;kA eSaus iwNk fd rw bruh jkr esjs ?kj esa D;ksa vk;k rc blus cksyk fd rqEgkjs tkus ds ckn izR;qeu o esjs chp esa gkFkkikbZ gks x;hA ftlls e`rd izR;qeu ds flj esa pksV vk x;h fQj mlus dgk fd ogha ij mldh izR;qeu dh e`R;q gks x;hAÞ 15. Now, it is to be seen as to whether this extra judicial confession inspires confidence or not. When I went through the entire extra judicial confession as extracted above, I find that it did not disclose that the accused/appellant caused the injuries on the head of the deceased. He has only stated that the deceased sustained the head injuries in the said melee. Thus, there is no clearcut confession that the accused/appellant caused the head injuries to the deceased due to which he died at the spot. Apart from this, the said extra judicial confession was made on 11.09.2005. It was not disclosed to anybody either in the village or to the relatives of the deceased or to the police or to the Patwari. It has been admitted by Navin Singh PW1 in his cross-examination that he did not disclose it to anybody due to threats given to him by the accused/appellant. It is also admitted that he was present at the time of the inquest, though he was not a witness of the inquest. It is a settled position of law that extra judicial confession will have to be proved like any other facts. It is also admitted that he was present at the time of the inquest, though he was not a witness of the inquest. It is a settled position of law that extra judicial confession will have to be proved like any other facts. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. While appreciating the evidence, the court has to see the nature of the circumstances when the extra judicial confession has been made by the accused. It would depend on the nature of the circumstances, the time when the extra judicial confession was made and the credibility of the witnesses who speak to such extra judicial confession. Such a extra judicial confession can be relied upon and conviction can be founded thereon if the evidence about the extra judicial confession comes from the mouth of a witness who appears to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. The requirement of corroboration is a matter of prudence and not an invariable rule of law. In the light of the above proposition of law, the evidence of Navin Singh PW1 has to be judged. Navin Singh PW1 has stated in his cross examination that the police also took him under custody on 27.09.2005 and the police threatened to him if the real culprit is not apprehended in this case, the police would implicate them for the murder of the deceased. The statement of this witness was recorded on 27.09.2005 when the police had given him the said threat. The statement of this witness was recorded on 27.09.2005 when the police had given him the said threat. The extra judicial confession was recorded by the police after the threats had already been given to the Navin Singh PW1 when he was in the custody. Thus, it is very much in the evidence that the witness was bias on the date of recording of the statement u/s 161 Cr.P.C. when said extra judicial confession was recorded by the police. This fact may tend to indicate that he may have a motive of attributing the untruthful statement to the accused/appellant. Thus, the extra judicial confession made by the accused/appellant to the witness cannot be termed as credible and cogent. Apart from this, non-disclosure of this fact from 11.09.2005 to 27.09.2005 is also material which creates doubt about the credibility and reliability of evidence of Navin Singh PW1 with regard to extra judicial confession. If it was so he could have stated this fact to the family members of the deceased; villagers; patwari and other police persons at the time of inquest. Non-disclosure of this fact for a long period, belies the evidence of Navin Singh PW1. It is also improbable that the accused/appellant would reimpose confidence in such a person who does not belong to his viradhari. Thus, the learned trial court fell in error in relying upon the extra judicial confession made by the accused/appellant to Navin Singh PW1. 16. The third circumstance that has been relied upon is the confessional statement recorded u/s 161 Cr.P.C. of the accused/appellant by the Judicial Magistrate PW7. I have gone through the entire statement recorded by the Judicial Magistrate PW7. 16. The third circumstance that has been relied upon is the confessional statement recorded u/s 161 Cr.P.C. of the accused/appellant by the Judicial Magistrate PW7. I have gone through the entire statement recorded by the Judicial Magistrate PW7. The same is quoted hereunder : ßc;ku vfHk;qDr vUrxZr /kkjk&164 n-iz-la- uke& y{e.k flag /keZ’kDrq iq= Jh [kq”kky flag mez 26 o’kZ] is”kk csjkstxkj] fuoklh njdksV] Fkkuk equL;kjh] fiFkkSjkx<+A vfHk;qDr us dFku fd;k fd fnukad 11 flrEcj 2005 dks uUnk v’Veh FkkA eSaus] izfreku] x.ks”k ikaxrh o uohu ikaxrh us “kjkc fi;k FkkA “kjkc geus lqfjax xkao esa fj”rsnkjksa ds ;gka tkdj fi;k FkkA blh rkjh[k dks “kke dks 7&8 cts ge pkjksa yksx “kjkc ihdj vk jgs FksA x.ks”k ikaxrh dks mYVh gksus yx x;k vkSj og u”ks esa ?kj pyk x;kA ge rhu jg x;s FksA ge rhuksa yksx fQj izrki flag ds ;gk¡ x;sA ogka ls vkus ds ckn uohu ikaxrh Hkh pyk x;kA eSa o izfreku jg x;s FksA ge nksuksa cgqr nk: ih;s FksA ge nksuksa esa rw&rw eSa&eSa gks x;kA ,d pksV mlus ekjh vkSj ,d pksV eSaus ekjh brus esa vpkud uhps pV~Vku esa izfreku fxj x;kA eq>s ekywe Hkh ugha pykA eSa Hkh fxj x;k FkkA eSa Hkh chp pV~Vku esa Qal x;k FkkA eSa fQj oSls gh ykSVrs iM+rs ?kj vk;kA eq>s lqcg gks”k vk;h FkhA tc ekywe gqvk fd izfreku ej x;kA ml jkr dks va/ksjk Fkk rFkk ckfj”k gks jgh FkhA eq>s ihBklhu vf/kdkjh }kjk y{e.k flag dks le>k fn;k gS fd og laLohÑr djus ds fy, vkc) ugha gS vkSj ;fn og ,slk djrk gS rks dksbZ laLohÑfr tks og djsxk mlds fo#) lk{; Hkh mi;ksx esa ykbZ tk ldrh gS vkSj eq>s fo”okl gS fd ;g laLohÑfr LosPNk esa dh x;h gSA ;g esjh mifLFkfr esa esjs }kjk Lo;a fy[kh x;h gSA vkSj y{e.k flag dks ;g i<+kdj lquk nh x;h gSA vkSj mlus mldk lgh gksuk Lohdkj fd;k gSA mlds }kjk fd;s x;s dFku dk iwjk vkSj lgh o`rkUr blesa gSA 01-10-2005 U;kf;d eftLVªsV izFke Js.kh MhMhgkV fiFkkSjkx<+ 17. It is the settled position of law that the Magistrate who is entrusted on the duty of recording the confession of an accused coming from the 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 accused has not given his statement 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 Cr.P.C. and the Rules framed by the High Court for the guidance of the subordinate courts. It is not only obligatory on the part of the Magistrate that 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 complied with. 18. While recording the statement u/s 164 Cr.P.C. when an accused is brought before the Magistrate and an application was moved by the Investigating Officer or the accused himself orally or by way of an application states to the Magistrate that he wants to confess the guilt, it is the bounden duty of the Magistrate first to grant him the judicial remand and record this fact in the ordersheet. If the accused insist upon recording his confession, the Magistrate should first take a precaution that he should ask the accused/appellant that he has appeared before the Judicial Magistrate. All the proceedings should be recorded in verbatim. The Magistrate first record that he has made the oral request for recording the confession and thereafter, he should proceed further. At the outset, the Magistrate should inform him that he is the Magistrate 1st Class and he has been brought before him for being sent to him to the judicial custody. When the accused/appellant understand this question, he should leave such material on record in proof of the above fact. At the outset, the Magistrate should inform him that he is the Magistrate 1st Class and he has been brought before him for being sent to him to the judicial custody. When the accused/appellant understand this question, he should leave such material on record in proof of the above fact. Thereafter, he should be informed that he has been committed to the judicial custody and he is not under any judicial obligation to make any confessional statement before him and he would be convicted solely on the basis of this confession. The learned Magistrate should try to emphasize that he is free from whatever defence he wants to take at the time of trial. Thereafter, the answer should be recorded by the Magistrate. Then, he probably should be asked if the police has given any threat, inducement or any other things and used force to confess the guilt, now he should forget about all these threats and inducement. The inducement given by the police would not be fulfilled by them and after recording his confession it will be read in evidence against him and he will be convicted solely on the basis of the confession. He should also be informed about the maximum sentence of the offence for which he is making the confession. The accused should also be asked as to why he is making the confession before the Magistrate. The Magistrate should also assure and tell the accused that he would not be remanded to the police lock up or custody if he did not make the confession. So, he should make his statement voluntarily. He should further be clarified that he is under the judicial custody and he should not bother now about the threats and allurements given by the police. The Magistrate should record and certify that he has cautioned the accused/appellant and he has been wanted that he would be convicted on his confession and he is not bound to make confession before him. Even if the accused insist to make the confession, the Magistrate immediately should send him to the jail for a period for reflection as the Magistrate deems fit and proper to decide whether or not he should make a confession. The Hon’ble Apex Court in the case of Sarwan Singh Rattan Singh vs. State of Punjab, AIR 1957 SC 637 has held in para 10 as under : “10. The Hon’ble Apex Court in the case of Sarwan Singh Rattan Singh vs. State of Punjab, AIR 1957 SC 637 has held in para 10 as under : “10. ..........Sarwan Singh was arrested on November 25th. His clothes were found bloodstained and he is alleged to have been inclined to help the prosecution by making the statement which led to the discovery of incriminating articles. All this happened on the 25th itself and yet, without any ostensible explanation or justification, Sarwan Singh was kept in police custody until November 30. That is one fact which is to be borne in mind in dealing with the voluntary character of his confession. What happened on November 30th is still more significant. On this day he was sent to the Magistrate to record his confessional statement. The evidence of the Magistrate Mr. Grover shows that the accused was produced before him at about 2.30 p.m. He was given about half-an-hour to think about the statement which he was going to make and soon thereafter the confessional statement was recorded. It is true that the Magistrate did put to the accused the questions prescribed by the circulars issued by the High Court of Punjab. Even so, when the learned Magistrate was asked why he did not give more time to the accused before his confessional statement was recorded, his reply was frank and honest. He said that the accused seemed to insist upon making a statement straightaway. The Police Sub-Inspector who had taken the accused to the Magistrate was apparently standing in the verandah outside in the Magistrate’s office. The doors of the office were closed but the fact still remains that the Sub-Inspector was standing outside. The evidence of the Magistrate also shows that, soon after the statement was finished, the Sub-Inspector went to the Magistrate’s room again. It would of course be necessary in every case to put the questions prescribed by the High Court circulars but the questions intended to be put under sub-section (3) of Section 164 should not be allowed to become a matter of a mere mechanical enquiry. No element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary. No element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary. Incidentally, we may invite the attention of the High Court of Punjab to the fact that the circulars issued by the High Court of Punjab in the matter of the procedure to be followed, and questions to be put to the accused, by Magistrates recording confessions under Section 164 may be revised and suitable amendments and additions sade in the said circulars in the light of similar circulars issued by the High Courts of Uttar Pradesh, Bombay and Madras. The whole object of putting questions to an accused person who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise having reference to the charge against the accused person as mentioned in Section 24 of the Indian Evidence Act. There can be no doubt that, when an accused person is produced before the Magistrate by the investigating officer, it is of utmost importance that the mind of the accused person should be completely freed from any possible influence of the police and the effective way of securing such freedom from fear to the accused person is to send him to jail custody and give him adequate time to consider whether he should make a confession at all. It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case. However, speaking generally, it would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded. In our opinion, in the circumstances of this case it is impossible to accept the view that enough time was given to the accused to think over the matter.......” 19. The Hon’ble Apex Court in the case of Shivappa Vs. State of Karnataka, AIR 1995 SC 980 has held in paras 6 and 8 as under : “6. In our opinion, in the circumstances of this case it is impossible to accept the view that enough time was given to the accused to think over the matter.......” 19. The Hon’ble Apex Court in the case of Shivappa Vs. State of Karnataka, AIR 1995 SC 980 has held in paras 6 and 8 as under : “6. From the plain language of Section 164 CrPC and the rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused under Section 164 CrPC, it is manifest that the said provisions emphasise on inquiry by the Magistrate to ascertain the voluntary nature of the confession. This inquiry appears 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 questions from which he could 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 of 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. 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 to retract the confession. 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 to retract the confession. 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 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 of 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 declined to make the confession, he shall not be remanded to police custody. 7. 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 the 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 complied with. 8. 8. From a perusal of the evidence PW17, Shri Shitappa, Additional Munsif Magistrate, we find that though he had administered the caution to the appellant that he was not bound to make a statement and that if he did make a statement that may be used against him as evidence but PW 17 did not disclose to the appellant that he was a Magistrate and that the confession was being recorded by him in that capacity nor made any enquiry to find out whether he had been influenced by anyone to make the confession. PW 17 stated during his deposition in court: “I have not stated to the accused that I am a Magistrate” and further admitted: “I have not asked the accused as to whether the police have induced them (Chithavani) to give the statement.” The Magistrate, PW 17 also admitted that “at the time of recording the statement of the accused no police or police officials were in the open court. I cannot tell as to whether the police or police officials were present in the vicinity of the court”. From the memorandum prepared by the Munsif Magistrate, PW 17 as also from his deposition recorded in court it is further revealed that the Magistrate did not lend any assurance to the appellant that he would not be sent back to the police custody in case he did not make the confessional statement. Circle Police Inspector Shivappa Shanwar, PW 25 admitted that the sub-jail, the office of the Circle Police Inspector and the police station are situated in the same premises. No contemporaneous record has been placed on the record to show that the appellant had actually been kept in the sub-jail, as ordered by the Magistrate on 21-7-1986 and that he was out of the zone of influence by the police keeping in view the location of the sub-jail and the police station. The prosecution did not lead any evidence to show that any jail authority actually produced the appellant on 22.7.1986 before the Magistrate. That apart, neither on 21.7.1986 nor on 22-7-1986 did the Munsif Magistrate, PW 17 question the appellant as to why he wanted to make the confession or as to what had prompted him to make the confession. The prosecution did not lead any evidence to show that any jail authority actually produced the appellant on 22.7.1986 before the Magistrate. That apart, neither on 21.7.1986 nor on 22-7-1986 did the Munsif Magistrate, PW 17 question the appellant as to why he wanted to make the confession or as to what had prompted him to make the confession. It appears to us quite obvious that the Munsif Magistrate, PW 17 did not make any serious attempt to ascertain the voluntary character of the confessional statement. The failure of the Magistrate to make a real endeavour to ascertain the voluntary character of the confession, impels us to hold that the evidence on the record does not establish that the confessional statement of the appellant recorded under Section 164 CrPC was voluntary. The cryptic manner of holding the enquiry to ascertain the voluntary nature of the confession has left much to be desired and has detracted materially from the evidentiary value of the confessional statement. It would, thus, neither be prudent nor safe to act upon the confessional statement of the appellant. Under these circumstances, the confessional; statement was required to be ruled out of consideration to determine the guilt of the appellant. Both the trial court and the High Court, which convicted the appellant only on the basis of the so called confessional statement of the appellant, fell in complete error in placing reliance upon that statement and convicting the appellant on the basis thereof. Since, the confessional statement of the appellant is the only piece of evidence relied upon by the prosecution to connect the appellant with the crime, his conviction cannot be sustained.” 20. The Hon’ble Apex Court in the case of Chandran Vs. State of Madras, AIR 1978 SC 1574 has held in para 29 as under : “.........To say that the accused was “in a position” or mood to give a voluntary statement, falls far short of vouching that upon questioning the accused, he (Magistrate) had “reason to believe that the confession is being voluntarily made”, which under Section 164 is a sine qua non for the exercise of jurisdiction to record the confession. But that Section does not make it obligatory for the Magistrate to append at the end of the record of the preliminary questioning, a certificate as to the anticipated voluntariness of the confession about to be recorded. But that Section does not make it obligatory for the Magistrate to append at the end of the record of the preliminary questioning, a certificate as to the anticipated voluntariness of the confession about to be recorded. But the law does peremptorily require that after recording the confession of the accused, the Magistrate must append at the foot of the record a memorandum certifying that he believes that the confession was voluntarily made. The reason for requiring compliance with this mandatory requirement at the close of the recording of the confession, appears to be that it is only after hearing the confession and observing the demeanour of the person making it, that the Magistrate is in the best position to append the requisite memorandum certifying the voluntariness of the confession made before him. If, the Magistrate recording a confession of an accused person produced before him in the course of police investigation, does not, on the face of the record, certify in clear, categorical terms his satisfaction or belief as to the voluntary nature of the confession recorded by him, nor testifies orally, as to such satisfaction or belief, the defect would be fatal to the admissibility and use of the confession against the accused at the trial.” 21. The Hon’ble Apex Court in the case of Babubhai Udesinh Parmar Vs. State of Gujrat reported in 2007 (1) SCC (Cri) p/702 has held in paras 15, 16, 17 & 18 as under : “15. Section 164 provides for safeguards for an accused. The provisions container therein are required to be strictly complied with. But, it does not envisage compliance with the statutory provisions in a routine or mechanical manner. 16. The court must give sufficient time to an accused to ponder over as to whether he would make confession or not. The appellant was produced from judicial custody but he had been in police custody for period of 16 days. The learned Magistrate should have taken note of the said fact. It would not be substantial compliance of law. What would serve the purpose of the provisions contained in Section 164 of the Code of Criminal Procedure are compliance with spirit of the provisions and not merely the letters of it. The learned Magistrate should have taken note of the said fact. It would not be substantial compliance of law. What would serve the purpose of the provisions contained in Section 164 of the Code of Criminal Procedure are compliance with spirit of the provisions and not merely the letters of it. What is necessary to be complied with, is strict compliance with the provisions of Section 164 of the Code of Criminal Procedure which would mean compliance with the statutory provisions in letter and spirit. We do not appreciate the manner in which the confession was recorded. He was produced at 11.15 a.m. The first confession was recorded in 15 minutes’ time which included the questions which were required to be put to the appellant by the learned Magistrate for arriving at its satisfaction that the confession was voluntary in nature, truthful and free from threat, coercion or undue influence. It is a matter of some concern that he started recording the confession of the appellant in the second case soon thereafter. Both the cases involved serious offences. They resulted in the extreme penalty. The learned Magistrate, therefore, should have allowed some more time to the appellant to make his statement. He should have satisfied himself as regards the voluntariness and truthfulness of the confession of the appellant. 17. In Devendra Parasad Tiwari v. State of U.P. 4 this Court opined (SCCp. 479, para 13) “It is also true that before a confessional statement made under Section 164 of the Code of Criminal Procedure can be acted upon, it must be shown to be voluntary and free from police influence and that the confessional statement made by the appellant in the instant case cannot be taken into account, as it suffers from serious infirmities in that (1) there is no contemporaneous record to show that the appellant was actually kept in jail as ordered on 6-9-1974 by Shri R.P. Singh, Judicial Magistrate, Gorakhpur, (2) Shri R.P. Singh who recorded the so-called confessional statement of the appellant did not question him as to why he was making the confession, and (3) there is also nothing in the statement of the said Magistrate to show that he told the appellant that he would not be remanded to the police lock-up even if he did not confess his guilt.” 18. In Parmananda Pegu v. State of Assam this Court opined: (SCC pp. In Parmananda Pegu v. State of Assam this Court opined: (SCC pp. 787-88, paras 17-19) “17[16.] The foremost amongst the factors that are sought to be relied upon by the prosecution is the retracted confession of the appellant recorded under Section 164 CrPC. The confession has been extracted supra in verbatim. Before acting on a confession made before a Judicial Magistrate in terms of Section 164, the court must be satisfied first that the procedural requirements laid down in sub-sections (2) to (4) are complied with. These are salutary safeguards to ensure that the confession is made voluntarily by the accused after being apprised of the implications of making such confession. Looking at the confessional statement (Ext.8) coupled with the evidence of PW 22, the then Additional Chief Judicial Magistrate, Dhemaji, we have no doubt in our mind that the procedural requirements have been fulfilled. Inter alia, PW 22 deposed that after cautioning the accused that the confessional statement, if made, will be used in evidence against them, he gave three hours time for reflection during which the accused were kept in a room attached to the court in the immediate presence of an office peon. PW 22 further stated that it appeared to him that the accused made the statement voluntarily. A memorandum as required by sub-section (4) was also recorded. Thus the first requirement for acting on a confession is satisfied but that is not the end of the matter. The court, called upon to consider the evidence against the accused, should still see whether there are any circumstances appearing from the record which may cast a doubt on the voluntary nature of the confession. The endeavour of the court should be to apply its mind to the question whether the accused was free from threat, duress or inducement at the time of making the confession. In doing so, the court should bear in mind, the principle enunciated in Pyare Lal Bhargava v. State of Rajasthan that under Section 24 of the Evidence Act, a stringent rule of proof as to the existence of threat, duress or inducement should not be applied and a prima facie opinion based on evidence and circumstances may be adopted as the standard laid down. To put it in other words, on the evidence and the circumstances in a particular case it may appear to the court that there was a threat, inducement or promise, though the said fact is not strictly proved’ (SCR p. 693). 18[17.] Having thus reached a finding as to the voluntary nature of confession, the truth of the confession should then be tested by the court. The fact that the confession has been made voluntarily, free from threat and inducement, can be regarded as presumptive evidence of its truth. Still, there may be circumstances to indicate that the confession cannot be true wholly or partly in which case it loses much of its evidentiary value. 19[18.] In order to be assured of the truth of confession, this Court, in a series of decisions, has evolved a rule of prudence that the court should look to corroboration from other evidence. However, there need not be corroboration in respect of each and every material particular. Broadly, there should be corroboration so that the confession taken as a whole fits into the facts proved by other evidence. In substance, the court should have assurance from all angles that the retracted confession was, in fact, voluntary and it must have been true.” 22. The Hon’ble Apex Court in the case of Sidharth etc. Vs. State of Bihar reported in JT 2005 (12) S.C. p/310 has held in paras 12, 13 & 16 as under: “12. The confession of the accused Arnit Das was recorded by PW 7. PW 7 complied with all the requisite formalities contemplated under Section 164 of the Code of Criminal Procedure. The accused when produced before PW7 had no complaint that he was tortured by the police. When he was produced before the Chief Judicial Magistrate for the purpose of remand, then also he had no complaint of any torture by the police. PW 7 put a series of questions to the accused Arnit Das to find out whether he was making a voluntary confession. Learned counsel for the appellant contended that the Magistrate had not put any questions to find out the mental condition of the accused. This plea is not correct as the Magistrate had specifically ascertained from the appellant whether he was making a voluntary statement. Learned counsel for the appellant contended that the Magistrate had not put any questions to find out the mental condition of the accused. This plea is not correct as the Magistrate had specifically ascertained from the appellant whether he was making a voluntary statement. The appellant Arnit Das was told by the Magistrate that he was not bound to make any statement and that in case he makes a statement, it would be used against him. PW 7 had recorded in the proceedings paper that two hours’ time was given to the accused Arnit Das for reflection. The learned counsel for the appellant contended that it is incorrect that the accused was not given any time for reflection and straight away produced before the Magistrate to give the statement. The defence had adduced some evidence to show that the entry made in the register of the remand home would prove that the accused was not given enough time for reflection for making the confession before the Magistrate. This evidence of PW 7, PW 8 and PW 9 was discussed in detail by the Sessions Court and it was found that the entries were not genuine and contained interpolations and the evidence of these witnesses was not sufficient to prove that the Magistrate had not given two hours, time before the accused made the confession. 13. The learned counsel for the appellant contended that even if two hours, time was given to the accused it was not sufficient. He further contended that this Court in Sarwan Singh v. State of Punjab 2 had observed that the accused person should at least be given 24 hours’ time to decide whether or not he should make a confession. It may be noted that in the very same judgment it was stated that it would naturally be difficult to lay down any hard-and-fast rule as to the time which should be allowed to an accused person in any given case before recording his confession under Section 164 CrPC. 16. The confession made by the appellant Arnit Das is voluntary and is fully corroborated by the above items of evidence. The Sessions Judge was perfectly justified in relying on the confession made by the appellant Arnit Das.” 23. 16. The confession made by the appellant Arnit Das is voluntary and is fully corroborated by the above items of evidence. The Sessions Judge was perfectly justified in relying on the confession made by the appellant Arnit Das.” 23. When the accused appears before the Magistrate on the next date when he was summoned, the first and foremost duty of the Magistrate to remove his handcuff if he is on handcuff. The Magistrate should ensure that nobody remain in the court room either of the police official or any person so that the accused may have not fear of any police officials or other person who are connected with the case. Then again the Magistrate should start to proceed to make the inquiry in question and answer form. The Magistrate should put preliminary question again by indicating that he is the Magistrate 1st Class and thereafter he should inform the accused that he is not bound to make confessional statement of the offence and if the confession is made it should be read against him and on the basis of his confession he could be convicted. The Magistrate should also inform him about the maximum punishment of the offence charged against him in the case. Then the answer of the accused person should be recorded. Thereafter, the Magistrate again proceed to ask him as to whether he has any threat, inducement or any other things which has prompted him to make the confessional statement before him. It should be the endeavour of the Magistrate to remove the fear from the mind of the accused that there should not be any inducement and threat while recording the confessional statement. The object of putting the preliminary question by the Magistrate is to satisfy that the accused is making voluntary confessional statement. It should be the endeavour of the Magistrate to remove the fear from the mind of the accused that there should not be any inducement and threat while recording the confessional statement. The object of putting the preliminary question by the Magistrate is to satisfy that the accused is making voluntary confessional statement. When the Magistrate is fully satisfied that he is ready to make the voluntary confessional statement before him, the Magistrate record his satisfaction as contemplated under sub-section (2) of 164 Cr.P.C. and he would record that he is satisfied that the accused is making a voluntary statement, it is not obligatory on the part of the Magistrate; the Magistrate should not only be satisfied him of the voluntary character of the confessional statement he should also leave or record such material on record or on the memorandum of confession in proof of the compliance of the statutory provision as to satisfy the court that sits in appeal that this procedural aspect has been complied with and the confessional statement was made voluntarily without any clarification from the Magistrate. No form of question is prescribed u/s 164 (2) which the Magistrate recording the confession must satisfy himself that he believed that the confession was made voluntarily. The extent to which the Magistrate should question the person making the confession must largely depend on the particular faces of each case. There are cases which on the face of them attract the suspicion of a Magistrate and there are others which don’t attract suspicion at all. It is impossible to lay down any hard and fast rule on the subject. The Magistrate must in each case satisfy itself that the Magistrate honestly believes and took steps to ascertain that the confession was voluntary one. After his satisfaction, the Magistrate should proceed to record the confession. While recording the confession it is also necessary that no suggested question should be put to the accused at the time of recording confession. It should be the endeavour of the Magistrate that he should not put such question which put the answer in the mouth of the accused. The Magistrate should simply ask what he has to say. Whatever the accused narrates, the Magistrate should record the verbatim in answer to that question. It should be the endeavour of the Magistrate that he should not put such question which put the answer in the mouth of the accused. The Magistrate should simply ask what he has to say. Whatever the accused narrates, the Magistrate should record the verbatim in answer to that question. When the accused stops, then the Magistrate should again ask whether he has to say anything more and if the accused again gives any statement that should be recorded in verbatim. If the accused stops giving his statement, then again the Magistrate should again put question whether you will like to say any more and if the accused stops giving his statement, thereafter the Magistrate should append his certificate as contemplated u/s (4) of 164 Cr.P.C. Generally it has been noticed that the Magistrate instead of giving the certificate at the end of the statement, they put their signature on the printed endorsed given on the left side of the forms. I do not approve this practice of the Magistrate while recording the statement of the accused u/s 164 Cr.P.C. The statement of the accused has to be recorded in accordance with the provision of Section 281 Cr.P.C., which provides as under: “281. Record of examination of accused. – (1) Whenever the accused is examined by the Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record. (2) Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the presiding Judge or Magistrate himself or where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in this behalf. (3) The record shall, if practicable, be in the language in which the accused is examined or, if that is not practicable, in the language of the Court. (3) The record shall, if practicable, be in the language in which the accused is examined or, if that is not practicable, in the language of the Court. (4) The record shall be shown or read to the accused, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers. (5) It shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused. (6) Nothing in this section shall be deemed to apply to the examination of an accused person in the course of a summary trial.” 24. Where a confession is recorded without the complying with the provision of sections 164 and 281 Cr.P.C., no presumption would arise under Section 80 of the Indian Evidence Act as to the genuineness of the document or as to the truth of the circumstance under which it was taken. The Magistrate should also obtain the signature on each and every page of the confessional statement of the accused. 25. The Hon’ble Apex Court in the case of Aloke Nath Dutta and other Vs. State of West Bengal reported in (2008) 2 SCC (Cri.) p/264 has discussed the evidentiary value of the confession and observed as under : “87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration. 89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based upon on the. 98. 89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based upon on the. 98. In this context, it will be useful to refer to the following passage from the decision of this Court in State (NCT of Delhi) Vs. Navjot Sandhu, (2005) 11 SCC p/600 (para 159). “This Court rejected the contention advanced on behalf of the State that the two provisions, namely, Article 20(3) and Section 161, did not operate at the anterior stages before the case came to the Court and the incriminating utterance of the accused, previously recorded, was attempted to be introduced. Nothing that the landmark decision in Miranda Vs. Arizona, 384 US 436 did extend the embargo to police investigating also, the Court observed that there was no warrant to truncate the constitutional protection underlying Article 20(3). It was held that even the investigation at the police level is embraced by Article 20(3) and this is what precisely Section 161(2) means.” 104. Section 164, however, makes the confession before a Magistrate admissible in evidence. The manner in which such confession is to be recorded by the Magistrate is provided under Section 164 of the Code of Criminal Procedure. The said provision, inter alia, seeks to protect an accused from making a confession, which may include a confession before a Magistrate, still as may be under influence, threat or promise from a person in authority. It takes into its embrace the right of an accused flowing from Article 20(3) of the Constitution of India as also Article 21 thereof. Although, Section 164 provides for safeguards, the same can not be said to be exhaustive in nature. The Magistrate putting the questions to an accused brought before him from police custody, should sometime, in our opinion, be more intrusive than what is required in law (See Babubhai Udesinh Parmar Vs. State of Gujarat (2006) 12, SCC p/268. 105. In a case where confession is made in the presence of a Magistrate conforming the requirements of Section 164, if it is retracted at a later stage, the court in our opinion, should probe deeper into the matter. State of Gujarat (2006) 12, SCC p/268. 105. In a case where confession is made in the presence of a Magistrate conforming the requirements of Section 164, if it is retracted at a later stage, the court in our opinion, should probe deeper into the matter. Despite procedural safeguards contained in the said provision, in our opinion, the learned Magistrate should satisfy himself whether the confession was of voluntary nature. It has to be appreciated that there can be times where despite such procedural safeguards, confessions are made for unknown reasons and in fact made out of fear of police. 106. Judicial confession must be recorded in strict compliance with the provisions of Section 164 of the Code of Criminal Procedure. While doing so, the court shall not go by the black letter of law as contained in the aforementioned provision; but must make further probe so as to satisfy itself that the confession is truly voluntary and had not been by reason of any inducement, threat or torture. 108. The Courts while applying the law must give due regard to its past experience. The past experience of the courts as also the decisions rendered by the superior courts should be taken as a wholesome guide. We must remind ourselves that despite the fact that procedural safeguards contained in Section 164 CrPC may be satisfied, the courts must look for truthfulness and voluntariness thereof. It must, however, be remembered that it may be retracted subsequently. The court must, thus, take adequate precaution. Affirmative indication of external pressure will render the retracted confession nugatory in effect. The court must, play a proactive role in unearthing objective evidence forming the backdrop of retraction and later the examination of such evidence of retraction. However, in cases where none exists, the court must give the benefit of doubt to the accused. Where there is no objective material available for verifying the conditions in which the confession was retracted, the spirit of Section 24 of the Evidence Act (irrelevance of confession cause by inducement) may be extended to retracted confession. Any inverse presumption must be drawn from absence of materials. 111. However, we are not unmindful of the fact that in this country, retractions are as plentiful as confessions. Any inverse presumption must be drawn from absence of materials. 111. However, we are not unmindful of the fact that in this country, retractions are as plentiful as confessions. In a case of retracted confession, the courts should evidently be a little slow in accepting the confession, although the accused may not be able to fully justify the reasons for his retraction. 112. It is interesting to note that in R. Vs. Thompson (1893) 2 QB p/12, Cave, J. Stated the law thus : “I would add that for my part I always suspect these confessions which are supposed to be the offspring of penitence and remorse and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner’s guilt is otherwise clear, and satisfactory, but when it is not clear and satisfactory, the prisoner is not infrequently alleged to have been seized with a confession – a desire which vanishes as soon as he appears in a court of justice.” 113. The value of a retracted confession is now well known. The court must be satisfied that the confession at the first instance is true and voluntary (See Pyare Lal Bhargava Vs. State of Rajasthan (1963) 2 Cri LJ p/178). 114. Caution and prudence in accepting a retracted confession is an ordinary rule. (See Puran Vs. State of Punjab (1), 1953 Cri LJ p/1925. Although if a retracted confession is found to be corroborative in material particulars, it may be the basis of conviction (Balbir Singh Vs. State of Punjab, 1957 Cri LJ p/481)./ 115. We may notice that in 1950s and 1960s corroborative evidence in “material particulars” was the rule. (See Puran (Supra), Balbir (Supra) and Nand Kumar Vs. State of Rajasthan (1963) 2 CriLJ p/702 (SC). A distinctiveness was made in later years in favour of “general corroboration” or “broad corroboration”. 116. Whatever be the terminology used, one rule is almost certain that no judgment of conviction shall be passed on an uncorroborated retracted confession. The court shall consider the materials on record objectively in regard to the reasons for retraction. It must arrive at a finding that the confession was truthful and voluntary. Merit of the confession being the voluntariness and truthfulness, the same, in no circumstances, should be compromised. The court shall consider the materials on record objectively in regard to the reasons for retraction. It must arrive at a finding that the confession was truthful and voluntary. Merit of the confession being the voluntariness and truthfulness, the same, in no circumstances, should be compromised. We are not oblivious of some of the decisions of this Court which proceeded on the basis that conviction of an accused on the basis of a retracted confession is permissible but only if it is found that retraction made by the accused was wholly on a false premise. (See Balbir Singh v. State of Punjab, AIR 1957 SC 216). 117. There cannot, however, be any doubt or dispute that although retracted confession is admissible, the some should be looked at with some amount of suspicion – a stronger suspicion than that which is attached to the confession of an approver who leads evidence in the court.” 26. The Magistrate has frankly admitted that he had not left any evidence on record that how he was satisfied that the accused was making a voluntary confession; there is no endorsement in any of the papers that he has written that time of reflection of 2 hrs or any time was given to him; there is no application of the Investigating Officer before him in which he requested to record the confessional statement of the accused; and he was not remembering as to whether the accused was remanded to the judicial custody or not at the time when he was produced before him and his statement was recorded. Though, he has stated in a Court question that his confessional statement was recorded after 1-1/2 hrs. of the judicial remand. He has admitted in his cross examination that there is no record on the ordersheet or either on the papers that he was granted judicial remand and thereafter he was ordered to be produced before him after 1-1/2 hrs. He has also explained the said omission by saying that accused was in the court so he did not feel necessary to record this fact in the ordersheet. Failure on the part of the Magistrate to make a real endeavour to ascertain the voluntary character of confessional statement impels me to hold that the evidence on record does not establish that the confessional statement recorded by the Magistrate was voluntarily. Failure on the part of the Magistrate to make a real endeavour to ascertain the voluntary character of confessional statement impels me to hold that the evidence on record does not establish that the confessional statement recorded by the Magistrate was voluntarily. The record of the Magistrate did not reveal that the Court has given sufficient time to accused to ponder over as to whether he would make the confession or not. Devendra Singh Pangati PW3 has admitted in his cross examination that the accused/appellant was in the police custody since 27.09.2005 and he was produced before the Magistrate on 01.10.2005 and the Magistrate recorded his confessional statement on the same day. Thus, it is admitted to the prosecution that the accused remained in police custody for a considerable period. There is also evidence on record that the police official/officers remained in the court campus till the accused was produced before the court. The police officials also remained there till the confessional statement of the accused was recorded before the court. When the accused was sent to jail, thereafter, the police officials left the premises of the court. The evidence or record of the Magistrate did not reveal that the police officials connected with the case were directed to be out of the court when the confessional statement was recorded. The Magistrate has frankly admitted that he did not inform the accused/appellant that he is the Magistrate 1st Class before whom the accused is giving the confessional statement. In this case the accused involved in serious offence and results in extreme penalty. The Magistrate should have granted the judicial remand and thereafter some more time should have been granted for the reflection. Navin Singh PW1 has stated in his cross examination that he was called at Munsari Thana where he was kept there under the police custody for 2 or 3 days. Thereafter, he was brought to Didihat and he was not allowed to meet any person. His statement was recorded at Munsari Thana on 27.09.2005. He was threatened that if the accused is not traced of the said case all the three persons would be implicated in this case. Thereafter, he was brought to Didihat and he was not allowed to meet any person. His statement was recorded at Munsari Thana on 27.09.2005. He was threatened that if the accused is not traced of the said case all the three persons would be implicated in this case. As I have pointed out earlier that the accused was also in the police custody, it cannot be ruled out that the accused/appellant would had been threatened and on the same pretext the hurried statement u/s 164 Cr.P.C. got recorded by the police. 27. In view of the foregoing discussions and on the basis of the aforesaid evidence, I am of view that the prosecution has not been able to establish the guilt beyond reasonable doubt against the accused/appellant. I find that the learned trial court has erred in convicting and sentencing the accused/appellant. The judgment and order dated 20.07.2007 passed by the Sessions Judge, Pithoragarh in S.T. No. 55 of 2005 is hereby set aside. The appeal is liable to be allowed and is herby allowed. The accused/appellant is in jail. He shall be released forthwith if not wanted in any other case. 28. Let the lower court record be sent back to the court concerned for compliance.