JUDGMENT : 1. Appellant challenges the order of conviction u/s 302, I.P.C. and sentence of imprisonment for life imposed on him by learned Addl. Sessions Judge, Titilagarh in Sessions Case No. 4/5 of 1996, arising out of G.R. Case No. 190 of 1995 of the Court of S.D.J.M., Titilagarh. 2. Fact leading to the trial is that: On 11.09.1995 at about 8.00 P.M., the occurrence took place in which accused Prasanna was seen dealing two 'Merha' (lathi like wood) blows to Trigarta Bagarty (hereinafter referred to as 'the deceased'). P.W.5-Tikeram Kharsel and P.W.7 Durlava Kharsel saw the aforesaid incident. After dealing the aforesaid blows, accused ran away from the spot and at the instance of P.Ws.5 and 7, who shouted that Lalkumar Behera (P.W.4) and Baleswar Kharsel (P.W.11) caught hold of the accused and ultimately he was handed over to the police. Markanda Bagarty (P.W.2) reached at the spot immediately after the occurrence and together with other witnesses, he saw that the deceased was lying dead in front of the cow-shed of P.W.7 with bleeding injuries on the head. P.W.2 with P.W.11 went to the Police Outpost in the occurrence village i.e. Tikrapada and reported the matter to the A.S.I, of Police (P.W.13), who was in-charge of the Outpost. Ext.3 is that F.I.R. P.W.13 sent the F.I.R. to Saintala Police Station and at the same time took up the preliminary investigation of the case. After receipt of the F.I.R. in the Police Station, Bipin Bihari Patnaik, S.I. of Police (P.W.4) proceeded to the occurrence village and took up the investigation. In course of the investigation, he arrested the accused and at his instance, seized the weapon of offence, i.e. Merha, which was marked as M.O.IV in course of the trial. Ext.4 is that seizure list. After holding the inquest, the dead body was sent for post mortem examination and Dr. Binayak Behera (P.W. 12) conducted the post mortem examination and proved the post mortem report, Ext. 12 in course of the trial. After being arrested, the accused was forwarded to the judicial custody on 13.09.1995 and P.W.14 also prayed before the Magistrate to record the confessional statement of the accused. Mr. R.C. Chinara (P.W.15), learned Judl. Magistrate First Class, Titilagarh was in charge of the Court of S.D.J.M., Titilagarh. On 13.09.1995, he received the prayer of the Investigating Officer together with the accused for recording his confessional statement. Mr. R.C. Chinara (P.W.15), learned Judl. Magistrate First Class, Titilagarh was in charge of the Court of S.D.J.M., Titilagarh. On 13.09.1995, he received the prayer of the Investigating Officer together with the accused for recording his confessional statement. Learned Magistrate without recording the confessional statement, sent the accused to the judicial custody for cool reflection. On 16.09.1995, the accused was again produced as per remand order. Learned Magistrate again remanded him to the jail custody till 20.09.1995 and on the latter date when the accused was produced, then he recorded the confessional statement. Ext.16. On 26.09.1995, learned Magistrate recorded the statement of the witnesses i.e. P.Ws. 5 and 7 u/s 164, Code of Criminal Procedure vide Exts.7 and 8. Charge-sheet having been filed by the accused, learned S.D.J.M. committed the case to the Court of Session and learned Addl. Sessions Judge took up the trial on framing the charge against the accused for the offence u/s 302 I.P.C. inasmuch as, accused denied to the charge and claimed for trial. 3. To prove the charge u/s 302, I.P.C. against the accused, prosecution relied on the evidence of fifteen witnesses and the documents marked, Exts.1 to 16 and also the material objects marked M.Os. I to IX. Amongst the material objects as noted above, M.O.IV is the weapon of offence. 4. In course of trial, P.Ws. 4 and 5 in their examination-in-chief did not support the prosecution as eye-witnesses to the occurrence though each of them stated that they saw the accused running away and he was being chased and that the deceased was lying dead in front of the cow-shed of P.W.7. In that context, the previous statement of P.Ws. 5 and 7 u/s 164, Code of Criminal Procedure was confronted to them, though P.W. 5 admitted to have made the statement, Ext. 7, but in course of cross-examination it was suggested by the defence that Magistrate recorded his statement in presence of the A.S.I, of Police, Tikrapada who was then outside the Court room. P.W. 7, on the other hand, made statement in the trial Court stating that his version in the examination-in-chief before the trial Court was out of fear of the Sarpanch, though he was an eye-witnesses to the occurrence and that such fact was stated by him correctly and truthfully in his statement. Ext.8 recorded by the Magistrate. 5. P.W. 7, on the other hand, made statement in the trial Court stating that his version in the examination-in-chief before the trial Court was out of fear of the Sarpanch, though he was an eye-witnesses to the occurrence and that such fact was stated by him correctly and truthfully in his statement. Ext.8 recorded by the Magistrate. 5. P.W.4 resiled from the prosecution by stating that he did not catch held of the accused together with P.W.11. On the other hand, P.W.11 deposed that he together with P.W.4 caught hold of the accused. Be that as it may, both of them are post-occurrence witnesses to the occurrence of assault. Similarly, P.W. 1 is a post-occurrence witness, who saw the dead body of the deceased lying with bleeding injuries. He was witness to the inquest and proved the inquest report, Ext.1, so also seizure of the blood-stained and sample earth and a pair of Chappal seized under seizure list, Ext.2. He also stated that police seized one Merha (M.O.IV) from his bullock cart, which had been kept there by the accused. As noted earlier, P.W. No. 2 is the father of the deceased. He is also a post occurrence witness. He proved the F.I.R., Ext.3, P.W.3, another co-villager is also a post-occurrence witness. He stated that on hearing the hue and cry, he came out and found the deceased lying dead in front of the cow-shed of P.W. 7 and he also went to the place, where the accused had been detained by P.Ws. 4 and 11. Thereafter, he took the accused from their custody and produced before the A.S.I, in the police outpost. He is also a witness to the seizure of M.O.IV under seizure list, Ext.4. This witness stated that accused dealt-blows to the deceased by that Merha and led the police for its recovery and seizure. He is also a witness to the seizure under seizure list, Exts.1, 5 and 6. P.W. 6 is also a post-occurrence witness and saw the deceased lying dead at the spot. He became a witness to the recovery of M.O.IV at the instance of the accused as per the seizure list, Ext.4 P.W. 8 is similarly a post-occurrence witness and also a witness to the seizure of the wearing apparels of the accused under seizure list, Ext. 5 and also wearing apparels of the deceased under seizure list, Ext.6. He became a witness to the recovery of M.O.IV at the instance of the accused as per the seizure list, Ext.4 P.W. 8 is similarly a post-occurrence witness and also a witness to the seizure of the wearing apparels of the accused under seizure list, Ext. 5 and also wearing apparels of the deceased under seizure list, Ext.6. P.W. 9 was the Police Constable, who escorted the dead body and identified it before P.W.12 for post mortem examination. As noted earlier, P.W. 12 is the Doctor, who conducted autopsy on the dead body of the deceased and he deposed about the homicidal death of the deceased and a Merha being the possible weapon of offence, He proved the post mortem report, Ext. 12. 6. Accused did not adduce any evidence in support of the plea of denial nor in rebuttal to the evidence adduced by the prosecution. 7. On consideration of the evidence on record and the argument of the parties, learned Addl. Sessions Judge held that evidence of P.W. 12 sufficiently proves homicidal death of the deceased and M.O.IV being the weapon of offence, in view of the opinion report of the Doctor, Ext.15. He further held that notwithstanding the conduct of P.Ws.5 and 7 making a departure from the prosecution case in course of their examination-in-chief, their evidence to the extent of supporting the prosecution regarding the homicidal death of the deceased i.e. death due to assault can be accepted. In that respect, learned Addl. Sessions Judge relied on the ratio n the case of Karuppanna Thevar and Others Vs. The State of Tamil Nadu, On further analysis of their evidence read with their statement u/s 164, Code of Criminal Procedure Exts. 7 and 8 and the subsequent version before the Court that they had made such statement before the Magistrate, learned Addl. Sessions Judge accepted the prosecution version as against the accused as the author of the injuries, which resulted homicidal death of the deceased. Learned Addl. Sessions Judge recorded that to add to the aforesaid proved case confession of the accused, Ext. 16 and the recovery of Merha (M.O.IV) u/s 27 of the Evidence Act are credible enough in support of the charge. Regarding voluntariness of the confession, Ext.16 recorded by P.W.15, he accepted the version of the prosecution. Learned Addl. Sessions Judge recorded that to add to the aforesaid proved case confession of the accused, Ext. 16 and the recovery of Merha (M.O.IV) u/s 27 of the Evidence Act are credible enough in support of the charge. Regarding voluntariness of the confession, Ext.16 recorded by P.W.15, he accepted the version of the prosecution. He found corroboration to the aforesaid confession from the other evidence (as noted above) as corroborative and complementary. Accordingly, learned Addl. Sessions Judge recorded conviction and sentenced the Appellant. 8. While arguing before us, learned Counsel for the Appellant submits that though there is no doubt on the homicidal death of the deceased in view of the evidence of P.W.12 and the post mortem report, Ext. 12, but such evidence by itself does not prove accusation against the accused. He argues that when P.Ws. 5 and 7, in course of their examination-in-chief, did not allege anything against the accused and when P.W.4 does not support the prosecution about the conduct of the accused is running away from the spot and caught hold of by him together with P.W.11 and when the seizure of M.O.IV is not in accordance with Section 27 of the Evidence Act, therefore, the finding recorded by the trial Court by way of accepting all such evidence is illegal and non-sustainable. He further argues that in the above context, confession of the accused, Ext. 16 is not admissible because accused has retracted and apart from that learned Magistrate did not reflect in Ext. 16 that he cautioned the accused that if he makes confessional statement then that may be used as evidence against him. According to him, requirement of Section 164(2), Code of Criminal Procedure having been breached in course of recording the confessional statement, therefore, that document cannot be relied upon. In support of that contention, he relies on the case of Jayasingh Madakami v. State 1986 C.L.R. 9 and Bhanu Dei and Joginath Pradhan v. The State 1985 C.L.R. 224; Dhuleswar Behera v. The State 1982 C.L.R. 62 and Kehar Singh and Others Vs. State (Delhi Administration). Accordingly, learned Counsel for the Appellant argues to set aside the order of conviction and to grant acquittal to the Appellant. 9. Learned Standing Counsel, on the other hand, argues supporting the findings recorded by the trial Court. He argues that evidence of P.Ws. State (Delhi Administration). Accordingly, learned Counsel for the Appellant argues to set aside the order of conviction and to grant acquittal to the Appellant. 9. Learned Standing Counsel, on the other hand, argues supporting the findings recorded by the trial Court. He argues that evidence of P.Ws. 5 and 7 are still trust worthy so as to prove the occurrence as eye-witnesses. Evidence of P.W. No. 4 in no way takes away the evidentiary value of P.W. 11 relating to detaining the accused and later on being produced before the police. He also argues that evidence of the witnesses including the Investigating Officer and the seizure list, Ext.4 clearly makes out a case of recovery of weapon of offence u/s 27 of the Evidence Act. He also argues very strongly to rely on Ext. 16, the confessional statement and in that context relies on the case of State Vs. Mitu, ; Shanti and Another Vs. The State, (Full Bench) and Shankaria v. State of Rajashtan AIR 1978 S.C. 1248 . His ultimate argument is to maintain the order of conviction and to dismiss the Criminal Appeal. 10. On perusal of the inquest report, Ext.1, the post mortem report, Ext.12 together with the opinion report, Ext.15 and the evidence of P.W.12, we noticed, no inconsistency or contradiction relating to the injuries, which the deceased had sustained. P.W. 12 stated in his evidence that at the time of post mortem examination, he found one lacerated wound of 2" ? 1" at the backside of the head, i.e., 2" back to the highest point of pinna right ear, lying horizontally causing fracture of bone measuring 2" ? 1". He also noticed one circular lacerated wound over the right eyebrow, which was upto skin-deep. On dissection, he found laceration of the brain and the membrane was ruptured. Both the internal injuries correspond to the head injury. P.W. 12 clearly opined that the injuries were ante mortem in nature caused by hard and blunt weapon like Merha. The head injury is sufficient in ordinary course of nature to cause the death and death of the deceased was due to laceration of the brain and profuse bleeding from the wound site. In course of cross-examination, there was no challenge to the aforesaid opinion of the Doctor on the injuries as well as the consequence thereof. The head injury is sufficient in ordinary course of nature to cause the death and death of the deceased was due to laceration of the brain and profuse bleeding from the wound site. In course of cross-examination, there was no challenge to the aforesaid opinion of the Doctor on the injuries as well as the consequence thereof. Being conscious of that, learned Counsel for the Appellant does not dispute to the finding recorded by the trial Court about homicidal death of the deceased. We also see no reason to differ from the opinion of the P.W.12 or the finding recorded by the learned Addl. Sessions Judge on the homicidal death of the deceased. 11. At the same time, we only take note of the sequence in which the aforesaid finding has been recorded by the trial Court. It appears from the impugned Judgment that after recording the finding on assault and reliability of the witnesses in that respect, learned Addl. Sessions Judge discussed and accepted the evidence of P.W. 12 and the post mortem report to record the findings on homicidal death. There are several decisions of This Court observing that a Court of Session while deciding a murder case, it should first satisfy about the homicidal death before analyzing the evidence on record to find out if the accused persons have committed the crime. We point out the aforesaid lacunae in the impugned Judgment, so as to make the trial Court aware of the sequence and in future to take decisions accordingly. Be that as it may, as noted earlier, evidence on record proves beyond all reasonable doubt that deceased suffered homicidal death. 12. The next question, which is required to be decided, is if the accused inflicted the injuries, which resulted in homicidal death of the deceased. In that respect, prosecution relies on the direct evidence of P.Ws. 5 and 7 and the circumstantial evidence i.e. the discovery and seizure of M.O.IV u/s 27 of the Evidence Act, conduct of the accused running away and detained and the judicial confession made. Statements u/s 164(I), Code of Criminal Procedure of P.Ws. 5 and 7 were respectively marked as Exts. 7 and 8 and the confession of the accused before the Magistrate as Ext. 16. 13. Statements u/s 164(I), Code of Criminal Procedure of P.Ws. 5 and 7 were respectively marked as Exts. 7 and 8 and the confession of the accused before the Magistrate as Ext. 16. 13. In his evidence, P.W.5 stated that he saw the accused being chased by P.W. 7 and at that time he heard P.W. 7 telling that accused had assaulted the deceased. He ran behind that accused to a certain distance and returned and found in front of the cow-shed of P.W.7 that the deceased was lying dead with bleeding injury on his head. In his examination-in-chief, he did not state about the assault by the accused. At the first spell, while putting leading question, learned Prosecutor confronted the statement u/s 161, Code of Criminal Procedure. On the prayer of the prosecution he was recalled and then he was confronted with the statement, Ext. 7. Therein, he stated that: 15 days after the occurrence, I was examined by a Magistrate at Titilagarh, who recorded my statement. I narrated before the Magistrate regarding the incident. Ext. 7 is my statement before the Magistrate and Ext.7/1 is my signature. In course of the further cross-examination, he stated that he voluntarily made the statement before the Magistrate and in that respect, he was not influenced or persuaded by anybody. P.W.7, on the other hand, stated in his examination-in-chief that: ... after taking food, I came out of my house to wash my mouth. At that time I heard the noise outside my cowshed. So immediately I came out and then I saw the accused running away and I saw Trigarta Bagarty lying dead in front of my cow-shed on the village road and I saw profuse bleeding injury on the head of the deceased. Then I raised hullah telling that the accused after assaulting the deceased is running away. Then I was shocked and terrified and villagers gathered near the dead body. At the time of occurrence, I saw Tikeram Kharsel P.W.5 was also washing his mouth outside his house. He did not state therein to have seen the accused dealing the blows. Prosecution therefore was permitted to put leading question to him and to confront his earlier statement and during that phase, only the statement u/s 161, Code of Criminal Procedure was confronted. He did not state therein to have seen the accused dealing the blows. Prosecution therefore was permitted to put leading question to him and to confront his earlier statement and during that phase, only the statement u/s 161, Code of Criminal Procedure was confronted. P.W.7 was also recalled and then he was confronted with the statement recorded u/s 164(I), Code of Criminal Procedure. Therein he deposed that: The Magistrate recorded my statement regarding the incident and thereafter I signed on the statement. Ext.8 is my statement and Ext. 8/1 is my signature. Whatever I had seen regarding the occurrence, I stated before the Magistrate on that day." In course of further cross-examination by the accused, he stated that "In my last deposition before This Court on 11.7.1996, I had not stated the correct facts and had concealed the material facts of the case due to the threat given by the Sarpanch Benudhar Rajpalia. I had not intimated the Court or the police or the Associate P.P. regarding the threat given to me by the Sarpanch prior to my last deposition made before This Court. He answered to the further questions of the accused and that answer goes to show that the statement u/s 164, Code of Criminal Procedure was made voluntarily by him giving a true account of the total incident mentioned in Ext.8 and in that respect, he was not influenced or terrorized by the police or any other persons. Under such circumstances, we do not find any illegality committed by the trial Court relying on the acceptable part of the evidence from the depositions of the aforesaid two witnesses. 14. So far as the seizure u/s 27 of the Evidence Act vide seizure list, Ext.4 is concerned together with the relevant part of the evidence of P.W.3 and P.W.6, we do not find that a case of leading to discovery u/s 27 of the Evidence Act is made out. Reason for drawing such a conclusion is simple, inasmuch as, "when P.Ws. 5 and 7 were coming out of their house, they saw the accused dealing the blows to the deceased, they also state that after dealing such blows accused ran away towards the Jagannath temple side. P.W.4 and/or 11 did not say that when they caught hold of the accused he was carrying any weapon with him. 5 and 7 were coming out of their house, they saw the accused dealing the blows to the deceased, they also state that after dealing such blows accused ran away towards the Jagannath temple side. P.W.4 and/or 11 did not say that when they caught hold of the accused he was carrying any weapon with him. The spot wherefrom the Merha was recovered was seen near the spot of occurrence and the Merha was lying on the bullock cart of P.W.11. That bullock cart was on the village Danda." Under such circumstance, hardly the accused had got opportunity to conceal the weapon of offence. What he did is to throw the Merha while running away from the spot. Village Danda is a public place and accessible by all. M.O. IV was on the bullock cart and that was visible to all. Prosecution has not tendered any evidence to show that M.O.IV was kept on the bullock cart or beneath it in a concealed manner and that it could not have been traced easily without the help of accused. There is an old saying that "What is not covered cannot be discovered". Under such circumstances, a case of discovery u/s 27 of the Evidence Act is not made out. To that extent, the finding recorded by the learned Addl. Sessions Judge is unacceptable. 15. Accused made the confessional statement, Ext.16 and that has been proved by the Magistrate, P.W. 15. It appears from Ext. 16 that those questions were recorded in the printed form and question was specifically not put to caution the accused that if he makes confession then that may be used as evidence against him, though the question No. 5 indicates that accused was intimated that he was not bound to make a confession and if he makes a confession then his punishment may not be reduced. Capitalizing on the provision in Section 164(2), Code of Criminal Procedure Appellant argues that absence of cautioning the accused that "statement given by him may be used as evidence against him", renders the confessional statement defective and inadmissible and, therefore, the trial Court should not have banked on that confession. Capitalizing on the provision in Section 164(2), Code of Criminal Procedure Appellant argues that absence of cautioning the accused that "statement given by him may be used as evidence against him", renders the confessional statement defective and inadmissible and, therefore, the trial Court should not have banked on that confession. Before we discuss on his issue together with the citations relied on by the parties., it is appropriate to quote Sub-section (2) of Section 164, Code of Criminal Procedure which is the only relevant provision in the context of the criticism made by the Appellant. 164. Recording of confessions and statements-(1)xxx (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. In the above context, the case of Jaysingh (supra) relied on by the Appellant is of no relevance, inasmuch as, that was a case of exculpatory confession and other evidence on record were contradictory to the exculpatory statement. Appellant also relied on the case of Bhanu Dei (supra). The point under deliberation in this case was not under consideration in that case. Be that as it may, in the cited decision, confession was not accepted on the ground of non-providing sufficient time for reflection and the confessional statement made by the accused appearing to be improbable to the natural human conduct apart from being contradictory to the extra-judicial confession made before other witnesses. That ratio also does not help the Appellant in any manner. 16. In the case of Dhuleswar Behera (supra) a Division Bench of This Court recorded that: An accused can be convicted solely upon his own confession, even if retracted, if the Court believes it to be true and voluntary. But a conviction should not be based merely on the confession of a co-accused. A Court would not ordinarily act upon a retracted confession to convict a co-accused without the strongest and fullest corroboration as to the crime and the connection of the co-accused with it. But a conviction should not be based merely on the confession of a co-accused. A Court would not ordinarily act upon a retracted confession to convict a co-accused without the strongest and fullest corroboration as to the crime and the connection of the co-accused with it. The aforesaid ratio though generally applied relating to the acceptability of a validity recorded confession, yet it does not answer the point under consideration regarding requirement of law u/s 164(2), Code of Criminal Procedure. 17. On the other hand, in the citations relied on by the learned Standing Counsel (which has already been noted in paragraph 10), This Court and the Supreme Court consistently have been pleased to propound that there is no compulsion of noting down the questions in question and answer form in proof of compliance of requirement as noted in Section 164(2), Code of Criminal Procedure but that requirement of law has to be complied with to make the confessional statement a lawful and acceptable one. When the Magistrate grant a certificate about due compliance and he deposes in that manner in Court and such evidence of the Magistrate is credible, then confessional statement of the accused can be acted upon as proof of the occurrence. At the same time, Hon'ble apex Court observes that the Court must apply a doubt test, viz, (i) whether the confession was perfectly voluntary and (ii) if so, whether it is true and trustworthy. In the case of Kehar Singh (supra) also, the apex Court held that: 117. On a consideration of the above decisions it is manifest that if the provisions of Section 164(2) which require that the Magistrate before recording confession shall explain to the person making confession that he is not bound to make a confession and if he does so it may be used as evidence against him and upon questioning the person if the Magistrate has reasons to believe that it is being made voluntarily then the confession will be recorded by the Magistrate. The compliance of the Sub-section (2) of Section 164 is therefore, mandatory and imperative and non-compliance of it renders the confession inadmissible in evidence. The compliance of the Sub-section (2) of Section 164 is therefore, mandatory and imperative and non-compliance of it renders the confession inadmissible in evidence. Section 463 (old Section 533) of the Code of Criminal Procedure provides that where the questions and answers regarding the confession have not been recorded evidence can be adduced to prove that in fact the requirements of Sub-section (2) of Section 164 read with Section 281 have been complied with. If the Court comes to a finding, that such a compliance had infact been made the mere omission to record the same in the proper form will not render it inadmissible evidence and the defect is cured u/s 463 (Section 533 of the old Criminal Procedure Code) but when there is non-compliance of the mandatory requirement of Section 164(2) Criminal Procedure Code and it comes out in evidence that no such explanation as envisaged in the aforesaid sub-section has been given to the accused by the Magistrate, this substantial defect cannot be cured u/s 463 Criminal Procedure Code. 18. The certificate portion granted by the Magistrate in Ext. 16 indicates that accused was cautioned by stating that he was not bound to make the confession and if he does so, then it may be used as an evidence against him and he also endorse the certificate that he believes that the confession was voluntarily made. Though that certificate is a printed one in the form used, yet question No. 5 and the evidence of P.W. 15 make it clear that not only the accused was granted sufficient time for cool reflection but also he was made aware that he was not bound to confess and if he makes confession then it may go against him. In spite of that, when the accused made the confession stating that the deceased loved his (the accused's) beloved Tapaswini and therefore he killed the deceased. This confession is therefore does not suffer from any defect or lacunae so as to render it inadmissible. That confession by itself proves the crime against the Appellant. Even independent of that evidence of the eye witness proves that accused dealt blows on the head of the deceased and because of that the deceased suffered homicidal death. This confession is therefore does not suffer from any defect or lacunae so as to render it inadmissible. That confession by itself proves the crime against the Appellant. Even independent of that evidence of the eye witness proves that accused dealt blows on the head of the deceased and because of that the deceased suffered homicidal death. Evidence of eye-witnesses and the confession of the accused validly recorded by the P.W. 15 stand corroborative to one another and such evidence prove the charge of murder against the Appellant beyond all reasonable doubt. Hence, we maintain the order of conviction and sentence and dismiss the Criminal Appeal of the Appellant. Final Result : Dismissed