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2008 DIGILAW 458 (CAL)

Palash Roy v. STATE OF WEST BENGAL

2008-04-30

G.C.GUPTA, KISHORE KUMAR PRASAD

body2008
JUDGMENT:- GIRISH CHANDRA GUPTA, J. (1) THIS appeal is directed against a judgment dated 29th May, 2003, passed by the learned Additional Sessions Judge, Fast Track Court II, Krishnagar, Nadia, arising out of Sessions Case No. 70 (4) of 2002 convicting the appellant under section 302 of the Indian Penal Code and an order dated 30th May, 2003, by which the appellant was sentenced to suffer rigorous imprisonment for life as also to pay a fine of Rs. 3000/-; in default to suffer rigorous imprisonment for a further period of six months for the offence punishable under section 302 of the Indian Penal Code. The prosecution case, in brief, is as follows: (2) ATUL Roy and his wife Smt. Anima Roy had two sons. The accused Palash Roy is their younger son. Atul Roy was suffering from ulcer in his leg. His wife, Smt. Anima Roy, was suffering from cardiac disease. In order to meet the expenses of treatment, Atul Roy wanted to sell his dwelling house. His younger son, Palash Roy, was opposed to this idea. This had become a source of continuous contention between the father and the son. On 14th December, 2001, at about 8 A.M. there was a dispute between the father and the son. There was no other family member in the room where they were quarreling. The son, Palash Roy, assaulted the father with a hammer. He thereafter slited his throat and also assaulted him with a piece of bamboo. As a result he died. Palash Roy was charged under section 302 of the IPC for committing murder of his father, Atul Roy. The learned Trial Judge has found him guilty. The convict has now come up in appeal. (3) BEFORE we consider the submissions of Mr. Thakurdas Roy Choudhury, the learned counsel, appearing in support of the appeal, and Mrs. Shilpi Sengupta, appearing for the State, we would like to scan the evidence on the record. (4) AT 9.15 hours on 14th December, 2001, the appellant reached Karimpur Police Station and made a statement disclosing that he had killed his father and that the body of his father was lying in his room. The information furnished by him was recorded in a G. D. Entry bearing No. 471 dated 14th December, 2001, which was marked Exhibit 8. The information furnished by him was recorded in a G. D. Entry bearing No. 471 dated 14th December, 2001, which was marked Exhibit 8. A translated version of the aforesaid G. D. Entry reads as follows : "in the side-mentioned time Palash Roy, S/o. Late Atul Roy of village -Tingachha under Karimpur P.S. in the district of Nadia appeared in the P.S. and told me, "sir, I have killed my father in his room today at 8 Oclock in the morning. At first I stroke him with the help of a hammer and thereafter I cut his throat, with the help of a banti. My father lay on his room at that time. His deadbody is still lying kept in his room. I have killed my father because we have no other landed property except the dwelling house, but my father wanted to sell that to meet the expenses of his treatment. I wanted to offer him money to buy his medicines and forbade him to sell the dwelling house. Because I along with my ill-mother not anywhere to go. But my father did not pay heed to that. Today in the morning I quarreled with him in regard of this. Therefore, I have murdered him. " I recorded the incident in the diary and seized the under-mentioned articles from the accused Palash Roy in presence of witnesses. 1) One elastic affixed checked pyjamas on which mark of blood is exist. 2) One black and white striped blue gangee. The abivementioned articles are taken as alamat from the arrested accused Palash Roy and the accused Palash Roy is made sat in the P.S. Sd/-Murali Mohan Das A.S.I. " the said Muralimohan Das (P.W. 8) deposed in Court as follows: "on 14.12.2001, I was attached to Karimpur P.S.I was on duty on that date at 9.15 A.M. In course of my duty on that date, I recorded one G.D. Entry being G. D. No. 471. I have brought the said G. D. Entry today. The said G.D. Entry was written by me as per instruction of Palash Roy. This is the said G.D. Entry which is marked as Ext. 8 (after objection). After making the said G.D. Entry, the articles were seized at Karimpur P. S. from the possession of Palash Roy at 9.15 A.M. on 14.12.2001. The said G.D. Entry was written by me as per instruction of Palash Roy. This is the said G.D. Entry which is marked as Ext. 8 (after objection). After making the said G.D. Entry, the articles were seized at Karimpur P. S. from the possession of Palash Roy at 9.15 A.M. on 14.12.2001. I seized one blood-stained payjama with elastic fitted and one blue/black and white colour ganji from the possession of accused Palash Roy as per seizure list. This is the carbon copy of the seizure list. I prepared the seizure list. This seizure list also bears my signature. The said seizure list is marked as Exbt. 9." (5) THE bloodstained wearing apparels were seized by the police then and there from the possession of the appellant. The seizure list prepared at 9.15 hours on 14th December, 2001, has been marked Exhibit 9. (6) BASED on the information furnished by the appellant, Tapas Kumar Ghosh, Sub-Inspector, P.W. 11, started investigation. He visited the place of occurance at 10.20 hours on 14th December, 2001 and held inquest under section 174 of the Code of Criminal Procedure in the presence of witnesses. The inquest report has been marked as Exhibit 3/3 which contains the following information elicited during the preliminary investigation from witnesses present at the inquest. "it is disclosed from the preliminary investigation that the abovementioned deceased Atul Roy had been suffering from incurable ulcer in the left leg since a long time and he decided to sell his dwelling house to meet the expenses of his treatment one month back. But his youngest son forbade him to do so. There was quarrel between him and his youngest son regularly in regard of this. There was quarrel between them today also at 8 a..m. in the morning. Atuls wife lay on the room beside as she had been ill also. She could hear nothing but a rattling sound. After sometime she went there and found Atul lying in that position. She believes that her youngest son has killed her husband. " (7) P.W. 11 seized from the place of occurrence a bloodstained piece of bamboo about 3ft. in length, a bloodstained hammer attached with a wooden handle and a bloodstained sharp weapon attached with a wooden platform commonly used in the kitchen in the state and known as bonti. The seizure list has been marked Exhibit 1. " (7) P.W. 11 seized from the place of occurrence a bloodstained piece of bamboo about 3ft. in length, a bloodstained hammer attached with a wooden handle and a bloodstained sharp weapon attached with a wooden platform commonly used in the kitchen in the state and known as bonti. The seizure list has been marked Exhibit 1. P.W. 11 also received a written complaint from the widow of the deceased, Atul Roy, which has been marked Exhibit 2. P.W. 11 examined the witness under section 161 of the Code of Criminal Procedure, and sent the body of the deceased, Atul Roy, for postmortem examination. On 15th December, 2001, the appellant was forwarded to the Court at 5. 35 A.M. in the morning with a prayer for recording his statement under section 164 of the Code of Criminal Procedure. (8) SMT. Malalti Karmakar, P.W. 10, learned Judicial Magistrate, recorded the statement of the appellant under section 164 of the Code of Criminal procedure on 15th December, 2001. According to the evidence of P.W.10, when the appellant had been produced before her she directed that the appellant should be kept in segregation till 18th December, 2001. On 18th December, 2001, the appellant was once again produced before the P.W. 10, when he made a confessional statement under section 164 of the Code of Criminal Procedure which has been marked Exhibit 6. A translated version of the confessional statement made by the appellant is reproduced hereinbelow in its entirety:-Karimpur P.S. Case No. 15301 dt. 14.12.01 u/s 302 of IPC. SC 70 (4) 02 "confessional statement of the accused Palash Roy, S/o. Late Atul Roy of Tingachha, P.O. Nandanpur, P.S. Karimpur, Dist. Nadia is being recorded u/s 164 of Cr PC by me on 18.12.01 in my chamber. The accused is produced before me and identified by Constable No. 553 Satya Ranjan Sil and Constable No. 1349 Tapan Chowbe of the Court of Krishnagar. No police person or outsider is present now (at the time of recording confessional statement of the accd.). 1. Question:-I am a Magistrate, not a police person. Do you understand? Ans.-Yes.2. Question:-You are not compelled to make any confessional statement before me and if you make so that may be used against you as evidence in future. And you may be considered guilty as per your statement and you may be sentenced to jail or caused fine. 1. Question:-I am a Magistrate, not a police person. Do you understand? Ans.-Yes.2. Question:-You are not compelled to make any confessional statement before me and if you make so that may be used against you as evidence in future. And you may be considered guilty as per your statement and you may be sentenced to jail or caused fine. Do you want to make confessional statement before me considering all of these? ans.-Yes. I want to make confessional statement. Question:- Do you want to confess voluntarily ? Ans.-Yes. I want to confess voluntarily. Question:- What is you name ? Ans.- My name is Palash Roy. Question:- What is you fathers name ? Ans:-My fathers name is Late Atul Roy. Question:- What is your residential address ? ans:- Vill -Tingachha, P.O. Nandanpur, P.S. Karimpur, Dist.- Nadia. Question:- How old are you ? Ans.- 20 years. I have superficially examined the body of accused and found no mark of injury on his person. Question:- Where had you been in last night ? Ans:-I had been in Krishnagar jail last night. Question:- Why do you want to make confession ? ans.-I want to explain the actual incident as I am repentant. Question:-You have no fear of being kept in police custody if you do not make confession. Do you understand ? Ans.- Yes. Now say what you want to say. My father Atul Roy had relation with an woman. I along with my elder brother made understand my father sincerely in this regard. My father did not stay at home. He would stay at home occasionally. I assaulted my father with the help of a lathi regarding this matter 2 years ago. My father used to assault my mother severely. My father was attacked with ulcer in his leg. We said, "we are giving money, you make treated yourself. "My father said, "i will not take your money. I will throw you in the way by selling the dwelling house. "In the night of last Thursday I had quarreled and a scuffle with hands with my father, The next, day i.e. Friday in the morning at 8 A.M. I called my father for getting up from bed. After smoking a bidi my father again lay on bed. Then I struck on his head twice with the help of a hammer. Thereafter, I went to bathroom. After smoking a bidi my father again lay on bed. Then I struck on his head twice with the help of a hammer. Thereafter, I went to bathroom. Returning back after half an hour, I found sustained bleeding from his head. My father got up and sat on the bed. Having seen that I became senseless. When I regained my consciousness, I saw that my father was groaning by sitting. Getting up I cut my fathers throat with the help of a banti. Thereafter, I went to P. S. straightly and surrendered. The above-mentioned statement has been written as per my dictation. Having heard and being understood I gave my L.T.I.L.T.I. of Palash Roy sd/-Malati Karmakar 18.12.01 judicial Magistrate 2nd Court, Krishnagar, Nadia. I have explained to the accd. Palash Roy that he is not bound to make confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this was made voluntarily. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of statement made by him." Sd/- Malati Karmakar 18.12.01 judicial Magistrate 2nd Court, Krishnagar, Nadia. (9) P.W.12, Dr. Mondal, held the post-mortem examination. He found multiple sharp cuts and lacerated wounds all over the body; 3"x l" bone deep lacerated wound in the parietal region; 1"x" bone deep lacerated wound on ear (face), sharp cut wound (3) l"xl/2" bone deep into the forehead and on the front side of the neck there was a sharp cut wound 3"x l". According to the opinion of P.W.12, the autopsy surgeon, "the death was due to shock haemorrage as per mentioned injuries within head and neck antemortem and homicidal." The post-mortem report has been marked Exhibit 10. According to him, injuries found could have been inflicted by sharp cutting weapon as well as blunt weapon. (10) A written complaint, made over by the widow of the deceased to the investigating officer, P.W. 11, at the place of occurrence, which has been marked Exhibit 2, was scribed by the P.W. 2, Bidyut Sarkar. At the trial he became hostile. However, as regards the complaint lodged by Smt. Anima Roy, he deposed as follows: "this is the written complaint written by me. At the trial he became hostile. However, as regards the complaint lodged by Smt. Anima Roy, he deposed as follows: "this is the written complaint written by me. I wrote this written complaint as per instruction of Anima Roy. This is my signature appearing in the written complaint. Written complaint is marked as Ext. 2. " (11) THE complaint Anima Roy did not survive until the time when the trial was held. In her complaint she has repeated the allegation appearing from the inquest report, ext. 3, quoted above. Out of the twelve witnesses examined by the prosecution, six of them turned hostile, namely, P. Ws. 1, 2, 3, 4, 5 and 6. P.W. 7 was merely tendered, but the defence declined to cross-examine him. (12) MR. Thakurdas Roy Chowdhury, the learned counsel, appearing in support of the appeal, submitted that (a) the written complaint lodged by Smt. Anima Roy cannot be treated as a statement under section 154 of the Cr PC, for investigation by that time had already been started; (b) the G. D. Entry marked Exhibit 8 should be treated as an FIR and (c) he drew our attention to the question No. 6 and the answer thereto given by the accused during his examination under section 313 of the Cr PC which reads as follows: "q. (6) P. W. 10 Judicial Magistrate Malati Karmakar has stated in her deposition that on 18.12.2001 last you explained the incident of killing of your father after confessing that you had murdered your father. She recorded that and you gave L.T.I, on that written statement. Would you like to say anything in this matter ? ans. Police assaulted me and ordered me to give statement to the Magistrate. For this I gave false statement to her. " (13) MR. Roy chowdhury submitted that the alleged confession which has been marked Exhibit 6 has been retracted and cannot be used against the accused. (14) BY way of an alternative submission, relying on the G. D. Entry, he submitted that there is clear proof of the fact that there was a heated altercation between the father and the son which resulted in sudden provocation which led the appellant to commit the crime. He, accordingly, submitted that this can at best be a case in which the accused could have been punished under section 304 Part I of the Indian Penal Code. He, accordingly, submitted that this can at best be a case in which the accused could have been punished under section 304 Part I of the Indian Penal Code. (15) MRS. Shilpi Sengupta, learned counsel, appearing for the State, submitted that this a clear case of cold blooded murder committed by the son. The motive of commission of the crime was that he wanted, by committing the crime, to prevent his father from selling the dwelling house. The offending weapons were seized from the place of occurrence and the bloodstained wearing apparels of the appellant were seized at the police station itself at 9.15 A.M. on the date of the incident. The confessional statement, recorded by the learned Judicial Magistrate after administering caution to the accused, is voluntary and conclusively proves that the accused is the murderer of his father. Court cannot deal with the accused leniently in a case like this. She submitted that there is no scope for any interference with the judgment and the order under challenge. She prayed for dismissal of the appeal. The question which arise for determination are as follows:- (a) Whether Exhibit 8 being G. D. Entry recorded by the police on the basis of the statement made by the accused can be treated as the FIR ? (b) Whether the written complaint lodged by Smt. Anima Roy may be treated as a statement made under section 154 Cr PC ? (c) What is the value to be attached to the confessional statement made before the learned Magistrate ? (d) Has the prosecution been able to prove its case beyond any reasonable doubt ? (e) Is there any scope for stepping down the crime from one under section 302 of the Indian Penal Code to section 304 of the Indian Penal Code? (16) WE shall answer the questions formulated above serially: (a) We already have set out Exhibit 8 the G. D. Entry in extenso. From the evidence discussed above, it appears that police was activated immediately after recording the G. D. Entry. All necessary details as to the crime were furnished to the Police. Therefore, there may not be any serious objection as to why the same cannot be used as an FIR. But the more fundamental question is can this FIR be used against the accused ? All necessary details as to the crime were furnished to the Police. Therefore, there may not be any serious objection as to why the same cannot be used as an FIR. But the more fundamental question is can this FIR be used against the accused ? The decided cases go to show that a confessional FIR cannot be used against the maker. Reference in this regard may be made to the judgment in the case of Faddi v. State of Madhya Pradesh reported in AIR 1964 SC 1850 . In paragraph 17 of the said report Their Lordships held that "a confessional first information report cannot be used against the maker when he be an accused." (17) HOWEVER, in the case of Aghnoo Nagesia v. State of Bihar reported in AIR 1966 SC 119 , in Paragraph 10 of the said report Their Lordships held as follows: "if the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under section 8 of the Evidence Act. If the information is a non-confessional statement, it is admissible against the accused as an admission under section 21 of the Evidence Act and is relevant, see Faddiv. State of Madhya Pradesh, Cri. Appeal No. 210 of 1963, dated 24-1-1964: ( AIR 1964 SC 1850 ), explaining Nisar Aliv. State of U.P., (S) AIR 1957 SC 366 and Dal Singh v. King Emperor, 44 Ind. App 137: (AIR 1917 PC 25). But a confessional first information report to a police officer cannot be used against the accused in view of section 25 of the Evidence Act. " (18) THE case of Bheru Singh s/o Kalyn Singh v. State of Rajasthan. reported in 1994 (2) SCC 467 is nearer to the facts and circumstances of the present case. In that case Their Lordships discussed this point which we would like to set out in some detail: "17. Where the first information report is given by an accused himself to a police officer and amounts to a confessional statement, proof of the confession is prohibited by section 25 of the Evidence Act. No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by section 27 of the Evidence Act. No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by section 27 of the Evidence Act. The first information report recorded under section 154 Cr PC is not a substantive piece of evidence. It may be used to corroborate the informant under section 157 of the Evidence Act or to contradict him under section 145 of the Evidence Act in case the informant appears as a witness at the trial. Where the accused himself lodges the first information report, the fact of his giving the information to the police is admissible against him as evidence of his conduct under section 8 of the Evidence Act and to the extent it is non-confessional in nature, it would also be relevant under section 21 of the Evidence Act but the confessional part of the first information report by the accused to the police officer cannot be used at all against him in view of the ban of section 25 of the Evidence Act. 18. Keeping in view the aforesaid principles of law, we shall first peruse and consider the first information report as lodged by the appellant. The first information report reads thus: "just before 4-5 days earlier to the Panchayat election some people of village taunted me that a Rajput woman would be elected as panch in the election of this term. There is only one Rajput home in our village and I and my elder brother reside there. I suspected that something was wrong. On that very night I enquired this with my wife Kajodbai but she denied about any illegitimate relationship but I was not satisfied and I kept on asking. In the last night she confessed that she liked Bhojna Gujjar of Fazalpura and the illegitimate relationship developed with him. At this I was very much disturbed in the last night. Today when my wife was adjusting the stones of the wall of the house, I went there with sword and cut her head from the throat by giving a single blow of the sword. My children Raj Bahadur aged 2 years, Nand Kanwar aged 14 years, Hansa aged 7 years were playing there. I also killed them by sword. Then I found my 8 year old child Nathu who was standing near the tree of Reua. My children Raj Bahadur aged 2 years, Nand Kanwar aged 14 years, Hansa aged 7 years were playing there. I also killed them by sword. Then I found my 8 year old child Nathu who was standing near the tree of Reua. I ran towards him and also killed him by sword as soon as he reached near the house of Chhotu Maharaj. The 4-year old child Manraj cried out and ran towards the hand pump but I followed her and also killed her by the sword. My sister-in-law Ratan Kanwar came at that time and she tried to stop me but the devil was on my head; my wife deceived me and her children must also has been procured by others. I have killed all of them and now I submit my sword. " The police proceedings after the said first information report Ex. P-42 was recorded, read as follows: "bheru Singh S/o. Kalyan Singh caste Rajput r/o. Fazalpura has produced the sword with this information. This sword is stained with the blood. The half of its blood became dried. Some hair stained with blood are also attached with it. The handle of it is made of iron and the sword is 37 inches at length along with the handle of it and 11/4 inches is at width. On the finger nearest of the thumb of the left hand of Bheru Singh there are two inside bones and the fresh blood is melted on it. He is wearing the long sleeve shirt and white shirt. The spots of blood are also seen on it. On the basis of the above information the case was registered as number 40 dated June 3, 1988, section 302 IPC read with sections 4/25 Arms Act and the proceeding was initiated. " (19) FROM a careful perusal of this first information report we find that it discloses the motive for the murder and the manner in which the appellant committed the six murders. The appellant produced the bloodstained sword with which according to him he committed the murders. In our opinion the first information report Ex. P-42, however is not a wholly confessional statement, but only that part of it is admissible in evidence which does not amount to a confession and is not hit by the provisions of section 25 of the Evidence Act. In our opinion the first information report Ex. P-42, however is not a wholly confessional statement, but only that part of it is admissible in evidence which does not amount to a confession and is not hit by the provisions of section 25 of the Evidence Act. The relationship of the appellant with the deceased; the motive for commission of the crime and the presence of his sister-in-law PW 11 do not amount to the confession of committing any crime. Those statements are non-confessional in nature and can be used against the appellant as evidence under section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that the sword had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence. Thus, to the limited extent as we have noticed above and save to that extent only the other portion of the first information report Ex. P-42 must be excluded from evidence as the rest of the statement amounts to confession of committing the crime and is not admissible in evidence. " 19. Based on the judgment in the case of Bheru Singh (supra), we answer the first question in the affirmative and hold that the non-confessional part of the confessional first information report lodged by the accused may be used against him. (b) The evidence discussed above goes to show that the statement of Smt. Anima Roy, who died within two months after making the written complaint and could not be cited as a witness, cannot be treated as an FIR, for investigation had already been started and the bar of section 162 of the Cr PC is absolute. Reference in this regard may also be made to the judgment in the case of Somappa Vamanappa Madar and Shankarappa Ravanappa Kaddi v. State o/mysore reported in 1980 (1) SCC 479 wherein Their Lordships held as follows: "added to these infirmities the learned counsel appearing for the appellant, Mr. Jhavali, pointed out that the prosecution cannot rely on Ex. P-9 as fir as the statement of P. W. 5 was recorded at the police station at about 9 a.m. long after the investigation commenced. Jhavali, pointed out that the prosecution cannot rely on Ex. P-9 as fir as the statement of P. W. 5 was recorded at the police station at about 9 a.m. long after the investigation commenced. It is common ground that on receipt of information regarding the occurrence at about 8 p. m. P.W. 38 the police officer went to the scene, saw the injured, sent him to the hospital and arrested the accused and seized the clothes long before the statement was recorded from P.W. 5. The statement recorded from P.W. 5 will therefore be statement recorded during investigation and no reliance can be placed on it except as a statement recorded by the police investigation. " (20) THIS question is, therefore, answered in the negative. (C) In order to be binding on the accused, the prosecution is obliged to prove that the confessional statement, under section 164 of the Code of Criminal Procedure, made by the accused was voluntary and that the confession was recorded duly observing the safeguards provided for in section 164 of the Cr PC. Once this is proved to have been done, a confessional statement, even though retracted during examination under section 313 of the Cr PC, can be used against the accused person. Reference in this regard may be made to the judgment in the case of Sarwan Singh Rattan Singh v. State of Punjab reported in AIR 1957 SC 637 . At page 643 of the aforesaid judgment Their Lordships held as follows: "it is, however, true that Sarwan Singh has made a confession and in law it would be open to the Court to convict him on this confession itself though he has retracted his confession at a later stage. Nevertheless usually Courts require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case. " (21) IN the case of Ram Prakash v. The State of Punjab reported in AIR 1959 SC 1 , at paragraph 6 of the aforesaid judgment Their Lordships held as follows the Evidence Act nowhere provides that if the confession is retracted, it cannot be taken into consideration against the co-accused or the confessing accused. " (21) IN the case of Ram Prakash v. The State of Punjab reported in AIR 1959 SC 1 , at paragraph 6 of the aforesaid judgment Their Lordships held as follows the Evidence Act nowhere provides that if the confession is retracted, it cannot be taken into consideration against the co-accused or the confessing accused. Accordingly, the provisions of the Evidence Act do not prevent the Court from taking into consideration a retracted confession against the confessing accused and his co-accused. Not a single decision of any of the Courts in India was placed before us to show that a retracted confession was not admissible in evidence or that it was irrelevant as against a co-accused. An examination of the reported decisions of the various High Courts in India indicates that the preponderance of opinion is in favour of the view that although it may be taken into consideration against a co-accused by virtue of the provisions of section 30 of the Indian Evidence Act, its value was extremely weak and there could be no conviction without the fullest and strongest corroboration on material particulars. The corroboration in the full sense implies corroboration not only as to the factum of the crime but also as to the connection of the co-accused with that crime. In our opinion, there appears to be considerable justification for this view. The amount of credibility to be attached to a retracted confession, however, would depend upon the circumstances of each particular case. Although a retracted confession is admissible against a co-accused by virtue of section 30 of the Indian Evidence Act, as a matter of prudence and practice a Court would not ordinarily act upon it to convict a co-accused without corroboration. On this basis it is now to be seen whether the confession was voluntary and true. It will then be necessary to consider whether the confession has received full and strong corroboration in material particulars both as to the crime and the appellants connection with that crime. " (22) THEIR Lordships in the case before them held against the accused on the basis of the following corroboration which is in paragraph 12 at page 8 of the aforesaid judgment, "we have no hesitation in saying that the confession of Prem has been amply corroborated in both respects. " (22) THEIR Lordships in the case before them held against the accused on the basis of the following corroboration which is in paragraph 12 at page 8 of the aforesaid judgment, "we have no hesitation in saying that the confession of Prem has been amply corroborated in both respects. Recovery of the ornaments of the deceased at the instance of the appellant incriminated him to the fullest extent and lent the strongest corroboration to the confession of Prem from which it was apparent that no other person than the appellant could have murdered Nirmala Devi. " (23) IN the case of Bharat v. State of U.P. reported in 1971 (3) SCC 950 , Their Lordships laid down the law succinctly thus:- ". . . . . . . . . . . . Therefore it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought and that the earlier statement was true. " (24) CONSIDERING the evidence discussed above, we are inclined to hold the appellant voluntarily made the statement confessing his guilt out of repentance. He went back on it during his examination under section 313 Cr PC on the basis of advice and is clearly afterthought. Therefore the statement made by him before the learned Magistrate is true. The third question is accordingly answered. (d) From the evidence of P. W. 8 it appears that the appellant surrendered in Karimpur Police Station at 9.15 A.M. on 14th December, 2001, and made a statement which was recorded by the police which has been marked Exhibit 8. From the evidence of P.W. 8, it further appears that bloodstained wearing apparels of the accused were seized under a seizure list which has been marked Exhibit 9. In answer to Question No. 8 put to him during examination under section 313 of the Cr PC, the accused admitted the aforesaid fact. It would be appropriate to notice the question No. 8 and the answer thereto which is as follows: "q. (8) P.W. 8 Murali Mohan Das has stated in his deposition that he recovered a pyjamas and black and red colour ganjee soaked with blood from you on 14. 12. 2001 last and seized those. You signed on that seizure list. It would be appropriate to notice the question No. 8 and the answer thereto which is as follows: "q. (8) P.W. 8 Murali Mohan Das has stated in his deposition that he recovered a pyjamas and black and red colour ganjee soaked with blood from you on 14. 12. 2001 last and seized those. You signed on that seizure list. Would you like to say anything about this ? ans. The Pyjamas and ganjee were taken from me. I signed on that as I was told to do so. " (25) EXIHIBIT 8 goes to show that the appellant wanted to prevent his. father from selling the dwelling house. Therefore, his motive is established. Based on the information furnished by the accused and recorded in Exhibit 8, the police recovered the bloodstained offending weapons from the place of occurrence which were seized under a seizure list marked Exhibit 1. P.W. 12, Dr. Dey, the autopsy surgeon, deposed that the injuries inflicted upon the deceased could have been inflicted by sharp-cutting weapon as well as blunt weapons. Therefore, the relevance of the bloodstained weapons, which have been marked Material Exhibits I, II and HI recovered from the place of occurrence, has been established. (26) THE confessional statement of the appellant made before the learned Magistrate, marked Exhibit 6, has thus been amply corroborated. (27) WE are, in the circumstances, of the opinion that the prosecution has been able to prove its case beyond any reasonable doubt. The fourth question is accordingly answered. (e) It appears from the confessional statement under section 164 of the Code of Criminal Procedure being Exhibit 6 that the appellant had assaulted his father two years prior to the incident in question. It further appears that on the previous day, that is to say, on Thursday, the accused had assaulted his father. On Friday in the morning the deceased was awakened and thereafter, he was assaulted by a hammer. The appellant thereafter, went to the bathroom; came back after half an hour and found his father profusely bleeding. The appellant fainted by seeing the blood. Upon regaining consciousness he found his father groaning in pain. The appellant at that stage attacked his father once again with a sharp weapon and cut down his throat. This shows the hatred and cruelty with which he treated his father. The appellant fainted by seeing the blood. Upon regaining consciousness he found his father groaning in pain. The appellant at that stage attacked his father once again with a sharp weapon and cut down his throat. This shows the hatred and cruelty with which he treated his father. We are unable to see how can this be said to have been an act committed out of a sudden provocation as submitted by Mr. Roy Chowdhury. Mr. Roy Chowdhury wanted us to hold on the basis of Exhibit 8 that there was sudden provocation which led the appellant to commit this crime. We have read and re-read Exhibit 8. We are unable to bring the case within exception (1) engrafted to section 300 of the Indian Penal Code. The accused/appellant knew that his father was bent upon selling the dwelling house which belonged to him. He had unrestricted authority in law to do so. He was under no obligation to maintain the appellant who already was a grown up man as also an assaulting son for he had assaulted his father even in the past. Even assuming that there was any quarrel between the father and the son concerning the dwelling house which the father wanted to sell, we are inclined to hold that the appellant sought the provocation, if any, and, therefore, he is not entitled to the benefit of exception (1) to section 300 of the Indian Penal Code. It would be useful to notice exception (1) to section 300 which reads as follows: "exception 1.-When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception? is subject to the following provisos:-First- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. " (28) WE are, in the circumstances, unable to step down the conviction to section 304 of the Indian Penal Code from section 302 of the Indian Penal Code. The last question is accordingly answered. (29) ALL the questions have, thus, been dealt with. (30) FOR the reasons discussed above, there is no scope for any interference. The appeal is, as such, dismissed. The last question is accordingly answered. (29) ALL the questions have, thus, been dealt with. (30) FOR the reasons discussed above, there is no scope for any interference. The appeal is, as such, dismissed. The conviction and sentence passed by the learned Trial Court for the offence under section 302 of IPC are hereby affirmed. The appellant Palash Roy is in jail, therefore, he is directed to serve out the remaining sentence awarded by the learned Trial Judge. (31) THE criminal section of this Court is directed to send down the lower Court records and a copy of this judgment to the concerned learned Trial Court forthwith for information and necessary action. Appeal dismissed.