ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE JAYANT PATEL) As all the appeals arise from the common judgement and order of the learned Additional Sessions Judge, they are being considered simultaneously. All the appeals are directed against the judgement and order of the learned Additional Sessions Judge, whereby the accused appellants have been convicted for the offence under Section 302, 201, 120B read with 34 of IPC and the sentence has been imposed upon all the accused appellants for life-imprisonment for the offence under Section 302 of IPC with the fine of Rs.500/- and for three years imprisonment with the fine of Rs.500/- for the offence under Section 201 of IPC and the sentence is also imposed for six months imprisonment for the offence under Section 120B of IPC. As per the prosecution case, deceased Jitubhai @ Maheshbhai had some love affairs with one Alpa, daughter of Vallabhbhai Babubhai Patel and the threats were given to the mother of the deceased Kantaben to the effect that the deceased Jitubhai might not be permitted to meet Alpa. Since 28.7.1997, the deceased did not return to his home and, therefore, upon inquiry his mother found that he was with his friend Gatti @ Hemant and thereafter they had separated and since he was not found, the mother of the deceased had doubt that the brother of Alpa and the brother-in-law of Alpa might have arranged a conspiracy for killing the deceased and the deceased might have been murdered. Therefore, the complaint was filed by the mother of the deceased Kantaben with Aklav Police Station on 16.9.1997. The complaint was investigated and during the course of investigation one of the accused namely; Navinbhai @ Pako Dahyabhai Valand appellant in Criminal Appeal No.266 of 2001 (hereinafter referred to as A-1 for the sake of convenience), surrendered to the police by making his declaration for the conspiracy of killing the deceased Jitubhai. It appears that thereafter in further investigation, it was found that in the said conspiracy, Accused No.2 - appellant of Criminal Appeal No.261 of 2001 and Accused No.3 appellant of Criminal Appeal No.300 of 2001 (hereinafter referred to as A-2 and A-3 respectively for the sake of convenience) and the brother-in-law of A-3 Harishbhai (original accused No.4 A-4) was also involved. At various occasions the confessional statements were also recorded, including the one recorded before the learned Magistrate, which shall be referred to hereinafter. At various occasions the confessional statements were also recorded, including the one recorded before the learned Magistrate, which shall be referred to hereinafter. Thereafter, the charge-sheet was filed against all the accused A-1, A-2 and A-3 as well as Harish @ Harish Nagjibhai Patel. The prosecution, in support of its case, examined the witnesses as well as produced the documentary evidences. The learned Sessions Judge recorded the statements of all the accused under Section 313 of Cr.P.C.. However, the pertinent aspect is that pending the trial, as accused No.4 Harish Nagjibhai Patel had expired, the case was abated against him. A-1 also examined himself as defence witness and he stood by the story as was stated before the learned Magistrate in his statement under Section 164 of Cr.P.C. So far as A-2 and A-3 are concerned, they denied the evidence against them, but A-1 had led the evidence on oath under Section 315 of Cr.P.C. The learned Sessions Judge thereafter heard the matter and found that the prosecution has been able to prove the case beyond reasonable doubt against A-1, A-2 and A-3 and, therefore, convicted all the accused for the offence under Section 302, 201 and 120B read with Section 34 of IPC, and has imposed sentences as referred to hereinabove. It is under these circumstances, the present appeal before this Court. We may record that the office has reported that A-2 is absconding and in normal circumstances, we could have considered the matter otherwise, but it appears that the appeal of A-2 is arising from the common judgement and order. Therefore, we have found it proper to consider the merits of appeal of A-2 also as his matter could not be segregated. We have also, therefore, heard Mr.Goswami, learned Counsel appearing for A-2 in the respective appeal on merits. Therefore, the appeal of A-2 is considered simultaneously. We have heard Ms.Shilpa Shah, learned Counsel for A-1, Mr.Goswami, learned Counsel for A-2 and Mr.Kogje, learned Counsel for A-3, who are appellants in respective appeals. We have also heard Mr.K.P.Raval, learned APP for the State in all the appeals. Therefore, the appeal of A-2 is considered simultaneously. We have heard Ms.Shilpa Shah, learned Counsel for A-1, Mr.Goswami, learned Counsel for A-2 and Mr.Kogje, learned Counsel for A-3, who are appellants in respective appeals. We have also heard Mr.K.P.Raval, learned APP for the State in all the appeals. The evidence on record as led by the prosecution shows that the basis of the conviction by the learned Sessions Judge is the confessional statements of A-1 and evidence of A-1 before the Court under Section 315 of Cr.P.C. There is other corroborative evidence put forward by the prosecution for recovery of the dead body, the medical evidence for corroborating the confessional statement of A-1 to the extent that the death was caused by strangulation with the help of rope and the medical evidence has supported the said evidence of the prosecution. So far as the recovery of the rope, there are contentions raised by the learned Counsel, which shall be appropriately considered at the later stage. It is this evidence, which has been made as the basis for conviction of A-1, A-2 and A-3 by the learned Sessions Judge. The first aspect, which deserves consideration is the status of A-1, whether as that of juvenile or otherwise. It may be recorded that A-1 has filed Criminal Misc. Application No.2983 of 2009 in Criminal Appeal No.266 of 2001 for directing the concerned police station to investigate and verify the age of A-1 and to submit the report and in alternative, it is prayed in the said application to direct the Sessions Court to conduct an inquiry or to record fresh evidence regarding the age of applicant to report to this Court. In the said application this Court vide order dated 16.3.2009 had directed the State to verify the genuineness of the birth-date, whether 13.11.1979, as per the certificate, or other date. The State was also directed to explain as to why the aforesaid factum of birth-date, if correct as 13.11.1979, was not brought to the notice of the trial Court at the relevant point of time. Pursuant to the said order, the report has been submitted by the District Superintendent of Police, Anand with the report of the Circle Police Inspector, Petlad, confirming the position that the birth-date of A-1 as 13.11.1979 and the same was accordingly registered in the relevant record of the Gram Panchayat on 15.11.1979. Pursuant to the said order, the report has been submitted by the District Superintendent of Police, Anand with the report of the Circle Police Inspector, Petlad, confirming the position that the birth-date of A-1 as 13.11.1979 and the same was accordingly registered in the relevant record of the Gram Panchayat on 15.11.1979. After production of the said report, this Court had also called for the original record and it is found that the correct birth-date of A-1 is 13.11.1979 as per the record of the Gram Panchayat i.e. the record to be maintained under the Births and Deaths Registration Act as well as the School Leaving Certification of A-1. Hence, it can be concluded that the correct birth-date of A-1 is 13.11.1979. If the status of A-1 is to be examined on the aspects of juvenile or otherwise, keeping in view the birth-date of 13.11.1979 and the date of incident of 28.7.1997, it is apparent that A-1 did not complete 18 years of age on the date of incident and, therefore, he was below 18 years of age. At this stage, reference to Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and more particularly after inserting the amendment w.e.f. 22.8.2006 would be relevant. Section 20 as amended after 22.8.2006 reads as under:- 20. Special provision in respect of pending cases.- Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued n that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence. [Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile. [Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile. Explanation.- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.] (Emphasis supplied) By virtue of amendment under Section 20 the effect of the amendment is given to all pending cases, including trial, revision, appeal or any other criminal proceedings and it has been further stated as per the explanation that as per the provision of this Act, this Act shall apply for all purposes at the material times when the alleged offence was committed. The pertinent aspect is that at the time of the incident, admittedly A-1 was above 16 years and, therefore, at the time of trial, he was not entitled to the benefit of the Act prevailing then, but thereafter the Act of 2000 with the amendment has been brought about, extending the benefits to the juvenile up to the age of 18 years. It deserves to be recorded that prior to the aforesaid amendment in Section 20, the aforesaid proviso and the explanation was unavailable. The Constitutional Bench of the Apex Court in the case of Pratap Singh v. State of Jkarkhand and Anr. , reported in (2005) 5 SCC, 551, had held that for determining the age of juvenile, the relevant date is the date of the offence and not the date when he is produced before the authority or in the Court. The Constitutional Bench of the Apex Court in the case of Pratap Singh v. State of Jkarkhand and Anr. , reported in (2005) 5 SCC, 551, had held that for determining the age of juvenile, the relevant date is the date of the offence and not the date when he is produced before the authority or in the Court. The Apex Court also made certain observations with regard to the Act of 2000 to the effect that it is an official piece of legislation and the same has been enacted in its present form in discharge of the obligation of our country to follow the United National Standard Minimum Rules for the Administration of Juvenile Justice, 1985 also known as Beijing Rules (the Rules) and the emphasis was given to the international treaties, covenants and conventions while considering the benefit to be extended by the Act of 2000. It is only after the observations were made by the Apex Court in the said decision, the Act of 2000 has been amended and the aforesaid proviso and the explanations have been inserted in Section 20 by Amending Act of 33 of 2006, which has come into force on 22.8.2006. The explanation refers to all pending cases, including trial, revision, appeal or any other criminal proceedings in respect of a juvenile, in conflict with law, in any Court, and the said explanation further provides that the determination of the juvenility of such juvenile shall be in terms of Clause l of Section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act be applicable as if the said provisions have been in force for all purposes at the material times when the alleged offence was committed. Sub-section (4) was added in Section 1 to apply the Act to all cases involving detention, prosecution, penalty or sentence of imprisonment of juvenile in conflict with law. Sub-section (4) was added in Section 1 to apply the Act to all cases involving detention, prosecution, penalty or sentence of imprisonment of juvenile in conflict with law. The question came to be considered by the Division Bench of this Court in the case of Gaurav Pradip Verma v. State of Gujarat, reported in 2008(1) GLH, 724 and it was observed by the Division Bench of this Court at para 10.6 as under :- 10.6 In view of the discussion herein above and keeping in mind the amended Act and as per section 20 & (2)(l) of the Act, the age of juvenile is determined at 18 years and admittedly the present appellant was 16 years, 8 months and 12 days at the time of the incident and below the age of 18. As far as the determination of age is concerned, in normal circumstances, we would have referred the matter to trial court but as discussed above, the age of the appellant has already been determined by the Sessions Court and finding is given which reflects in the order below Exh.5. Therefore it would not be necessary to refer the matter to court below for ascertaining the age of appellant as the appellant was below of the age of 18 years at the time of the incident. It was further observed at para 10.7 as under:- 10.7 Now the question comes whether the appellant is entitled to the benefit of the Amended Act, especially section 2(l) and 20 of the Act. As per clause 2(l) of the amended Act, the age is determined at 18 years at the time of incident, which is made applicable to the pending appeal also inasmuch as the appeal is a continuous proceeding. Therefore we are of the opinion that the appellant is entitled to the benefits of amended Act. As observed earlier, if the facts of the present case qua A-1 is considered, evidence has come on record that he was less than 18 years and, therefore, no useful purpose would be served in remanding the matter for determination of the age of A-1. As observed earlier, if the facts of the present case qua A-1 is considered, evidence has come on record that he was less than 18 years and, therefore, no useful purpose would be served in remanding the matter for determination of the age of A-1. However, as the cases are inter-connected and other aspects and the evidence on record are inter-connected and is by the common judgement, wherein based on the evidence of confessional statements and the evidence of A-1, punishment has been imposed upon A-2 and A-3, reference to the confessional statement and the evidence of A-1 under Section 315 of Cr.P.C., may be relevant. Concentrating upon the aspects of confessional statements of A-1, it appears that when he surrendered to the police, A-1 declared in his hand-writing, the document of which is produced on record at Mark 77/2, that the conspiracy was hatched by him with one Ashok Harish and Mukesh. As per the said statement, Ashok and A-1 agreed for undertaking the work of killing the deceased against the consideration of Rs.20,000/-, out of which part payment was made and the same was divided between A-1 and Ashok and thereafter the deceased was called and he was made to drink liquor heavily and the incident is narrated in the manner that the hanging is made by him (A-1) with Harish, and Mukesh A-3 and Ashok caught hold of and the deceased is done away. Thereafter in the second statement before the police dated 17.9.1997, A-1 has stated the name of Yusuf A-2 having participated in the conspiracy and Ashok is not at all referred to. In the second statement, which is rather a confessional statement, the incident is narrated in the manner that Yusuf had strangulated with the rope and A-1 and Yusuf had done away the deceased. Thereafter, the testing was also made as to whether the deceased had expired or not by pouring his dead body into the pond and thereafter the dead body was thrown into well. The payment of Rs.6,000/- is received after the incident and not prior to the incident as stated in the earlier statement Mark 77/2. Thereafter, the testing was also made as to whether the deceased had expired or not by pouring his dead body into the pond and thereafter the dead body was thrown into well. The payment of Rs.6,000/- is received after the incident and not prior to the incident as stated in the earlier statement Mark 77/2. Thereafter in the letter dated 15.7.1998 addressed by A-1 to the learned Sessions Judge, A-1 has stated a different manner of causing death of the deceased inasmuch as he has stated that Mukesh and Harish were called and Yusuf had strangulated with the rope and A-1 did not participate at all, but one side of the rope was pulled by Harish and other side was pulled by Yusuf and Mukesh had held the leg of the deceased. In the third confessional statement dated 18.11.1998 Ex.104 made before the learned Magistrate, he has referred to the same manner of incident as stated in the letter-declaration dated 15.7.1998 Ex.78 given before the learned Sessions Judge. Reading of the aforesaid four confessional statements of A-1 goes to show that there is no consistency in such confessional statements, either on the aspects of conspiracy or on the aspects of role played by A-1, A-2 and A-3 and also of A-4 in causing death of the deceased Jitendra. It is true that the confessional statements before the learned Magistrate could not have been taken on oath and it could only be recorded by the learned Magistrate as the declaration made, but not on oath of A-1 and the same could be one of the non-observances of the procedure for recording of the statements. Therefore, it appears that even if the said aspect is kept aside and even if the matter is considered as if the statements made before the learned Magistrate were voluntary, then also it is required to be examined as to whether such statements are true and trustworthy or not. The reference may be made to the observations made by the Apex Court in its decision in the case of State (NCT of Delhi) v. Navjot Sandu alias Afsan Guru, reported in (2005) 11 SCC, 600 at paragraph 27 onwards, discussing the law on the aspects of confession. Therefore, it is required for the Court to consider as to whether the confession is true and trustworthy or not. Therefore, it is required for the Court to consider as to whether the confession is true and trustworthy or not. As observed earlier, there is neither consistency in the confessional statements on the aspect of conspiracy amongst all the accused, nor is there any consistency on the aspects of role played by each of the accused, including A-1 himself in the incident. Therefore, in view of the aforesaid four different confessional statements, we find that such confessional statements made before the learned Magistrate is not true and trustworthy. The aforesaid is coupled with the circumstances that the accused A-1 had given an application for retracting from the confession made by him, over which the learned Sessions Judge did not give any express opportunity to him for retraction. In view of the aforesaid observations, we find that as confessional statements not being true and trustworthy, it cannot be made as a valid basis for tracing guilt of the accused concerned, including A-1. Therefore, the learned Sessions Judge has committed error in this regard. It further appears that after recording of the statements of all the accused under Section 313 of the Cr. P.C., A-1 wanted him to be examined as the witness for defence and the learned Sessions Judge has permitted so under Section 315 of Cr.P.C. In the deposition of A-1 he has deposited in confirmity with the confessional statements made before the learned Magistrate dated 18.11.1998. Section 315(1) of Cr.P.C. Reads as under:- 315. Accused person to be competent witness.- (1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial; Provided that- (a) he shall not be called as a witness except on his own request in writing; (b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial. The aforesaid provisions show that what is required for availing the benefits as per the provisions as contained in the Section is; (1) that there must be a trial in the criminal Court; (2) person applying to be examined under the provisions of the said provisions would be necessarily an accused; (3) when the stage of invoking the provisions of the said Act has reached i.e. to say after conclusion of record of evidence of the prosecution followed by the explanations/submissions of the accused as required under Section 313 of Cr.P.C., is over; (4) the evidence as such accused may adduce will be on oath as a witness and lastly; (5) such evidence must be in disproving of the charges made against him or any person charged together with him at the trial. Therefore, if the evidence is given by accused after the examination under Section 313 of Cr. P.C., and under Section 315 of Cr.P.C., it is required to be considered in light of the aforesaid provisions of Section 315 of Cr.P.C. The pertinent aspect is that such evidence must be in disproving of the charges made against him or any person charged together with him at the same trial. Therefore, the nature of evidence cannot be for strengthening the case of the prosecution to prove guilt of any of the accused, but must be in disproving of the charges made against him. The evidence of A-1 as recorded by the learned Sessions Judge shows that the same is not in disproving of the charges made against him or in disproving of the charges made against any person together with him at the trial, but is to prove the guilt of A-1 himself and/or other co-accused namely; A-2 and/or A-3. Therefore, such evidence so far as it relates to not in disproving of the charges, could be said as beyond the scope of Section 315(1) of Cr.P.C., for the purpose of deciding the case before the learned Sessions Judge. Therefore, such evidence so far as it relates to not in disproving of the charges, could be said as beyond the scope of Section 315(1) of Cr.P.C., for the purpose of deciding the case before the learned Sessions Judge. It is an admitted position that the learned Sessions Judge has not considered the said aspects and if this Court is to examine the said aspects, the deposition of A-1 under Section 315, so far as it relates to involvement of A-1 himself and other co-accused namely; A-2 and A-3, since is not in disproving of the charges, cannot be considered since the same would be outside the scope of Section 315(1) of Cr.P.C. If the confessional statements of A-1 is found as, as observed earlier, non-trustworthy and if the deposition of A-1 under Section 315 is excluded, since the same is not in disproving of the charges made against him or other co-accused, the whole premise or the basis of the case of the prosecution would fall to ground and the very substratum of the case of the prosecution would be lost. The reason being that the whole case of the prosecution is based on circumstantial evidence and the basis of the prosecution is the confessional statements of A-1, which itself is found as non-trustworthy by this Court as referred to hereinabove. The second basis, if any, could be the deposition of A-1 under Section 315, but as observed hereinabove, since the same is not in disproving of the charges and, therefore, beyond scope of Section 315(1) of Cr.P.C., and, therefore, excluded, the effect would be that the second basis of the case of the prosecution would also not available. The pertinent aspect is that A-1 was initially cited as the witness by the prosecution and thereafter has been dropped as the witness by the prosecution. Therefore, even otherwise also for proving the case, the prosecution could not legitimately rely upon the evidence of A-1, whatever may be the legal value to be attached to the same. We have gone through the other evidence as that of recovery of the dead body of the medical evidence, which proves to the extent of the death having caused, may be by way of strangulation. The recovery of rope is doubtful inasmuch as it has come on record that at the time when the dead body was recovered rope was already lying. The recovery of rope is doubtful inasmuch as it has come on record that at the time when the dead body was recovered rope was already lying. Further the place from where the rope was recovered is such an open place that anybody had the access to it. No blood stain of the deceased or any other specific evidence is found for connecting link directly to the death caused of the deceased. Under these circumstances, if the matter is examined on the aspects of chain to be considered based on circumstantial evidence, the same would not at all be complete and on the contrary, as observed earlier, the very substratum of the case of the prosecution is lost and, therefore, the conviction recorded for the guilt of the accused cannot be maintained. The reference may also be made to the decision of the Apex Court in the case of Bishnu Prasad Sinha and Anr v. State of Assam, reported in (2007) 11 SCC, 467, wherein the Apex Court had an occasion to consider the evidentiary value of a confessional statement against co-accused to be treated as corroborative evidence or otherwise. In the said decision, the Apex Court had extracted its earlier view in the case of Sidharth and Ors. v. State of Bihar, reported in (2005) 12 SCC, 545 and it observed that while considering the confessional statement to be used against co-accused the proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands, even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. If the facts of the present case are examined in light of the aforesaid observations, and if the confession is excluded and the deposition under Section 315 is also excluded, since it is not for disproving of the charges against A-1 and other co-accused, there is no other evidence available to record an inescapable conclusion that the chain of the circumstances is complete and the guilt can be attributed to A-2 or A-3. Therefore, in view of these facts, confessional statements also would be uncalled for. The aforesaid position is coupled with the circumstances that A-1 would be entitled to the benefit of Act of 2000 as since he was on the relevant date below age of 18 years and, therefore, if the juvenile Court was to try A-1, the proceedings of the trial before the Sessions Court qua A-1, including the deposition recorded under Section 315 could be said as not before the competent Court and the same may result into excluding the evidence of A-1 in the present case for recording the final conclusion. If such aspect is considered, there would be absolutely no evidence available of A-1 before the learned Sessions Court for maintaining the conviction recorded by the learned Sessions Judge. In view of the aforesaid observations and discussions, we find that the conviction recorded by the learned Sessions Judge against all the accused cannot be maintained and deserves to be set aside. Hence, the judgement and order of the learned Sessions Judge in Sessions Case No.288 of 1997 for convicting A-1, A-2 and A-3 is set aside. In the result, the accused-appellants herein would be set at liberty forthwith unless their presence is required for any other purpose known to law. The appeals are allowed accordingly.