JUDGMENT A.S.NAIDU, J. (1) THIS, Criminal Appeal is filed challenging the order of conviction and sentence passed by learned Addl. Sessions Judge, Balasore convicting the appellant under Sections 302/201, IPC and sentencing him to undergo rigorous imprisonment for life under Section 302, IPC and rigorous imprisonment for two years under Section 201, IPC with a direction that both the sentences shall run concurrently, in S. T. Case No. 3/143 of 1995. (2) THE prosecution version, as unfolded during trial, is as follows :- Sapan Kumar Sahu, a boy aged about fourteen years was working in a hotel at Chandipur in the district of Balasore. He had a habit of playing with his friends in the evening after completion of the hotel work. On 10-4-1995 as usual, he went to play along with the accused behind the P.W.D. Inspection Bungalow on the sea-shore. Sapan did not return to hotel till 9 p.m. P.W.I, the proprietor of the hotel after searching for him could not know his whereabouts and informed the said fact to his uncle (Badabappa). On the next day early morning at about 3 O'clock the aunt of Sapan went in search of him to the sea-shore, Behind the Inspection Bungalow near the stone embankment, she found the pant, torn banyan and napkin of Sapan. She came and informed the said fact to the informant (P.W. 1) and thereafter number of people along with the Ward Member (P.W. 7) went in search of Sapan, but in vain. THEreafter, P.W. 1 reported the matter by filing, an FIR before OIC, Chandipur Police Station on 3-6-1997. On the basis of the FIR, the OIC, Chandipur Police Station initiated the investigation. In the meantime, the informant, P.W. 1 came to know that on the fateful day Sapan was playing with the accused. On suspicion, he along with others and the police party went to the house of accused in the mid night and arrested him. He confessed before the police and the Executive Magistrate that he had killed Sapan. On receipt of this information, the police party and the Executive Magistrate and other Witnesses went to the place where the deceased had concealed the dead body. THE accused pointed out the place where he had concealed the dead body of Sapan and the police recovered the dead body, Prepared spot map, made inquest and sent the same for post-mortem examination. THE accused pointed out the place where he had concealed the dead body of Sapan and the police recovered the dead body, Prepared spot map, made inquest and sent the same for post-mortem examination. After completion of investigation, the Investigating Officer (P.W. 17) submitted charge- sheet against the accused in the Court of learned S.D.J.M., Balasore. After perusal of the records and on being satisfied that prima facie materials are available, learned S.DJ.M. took cognizance of the offence and committed the case to the Court of Session. As the accused pleaded innocence, trial was held. (3) TO substantiate the accusations, prosecution got examined as many as 17 witnesses and exhibited more than 16 documents, apart from material objects. In course of trial, the prosecution sought to introduce a case that the accused committed sodomy on Sapan and when the latter threatened to disclose the fact before others, he throttled him to death and concealed the dead body beneath the sand on the sea-shore. (4) OUT of the prosecution witnesses, P.W. 1 is the owner of the hotel when Sapan was working, P.Ws. 2 to 10 are independent witnesses, P. Ws. 11 to 13 are Medical Officers, who conducted post-mortem examination and also examined the accused, P.Ws. 14 and 15 are constables, who carried the dead body of the deceased to the District Headquarters Hospital, Balasore for post-mortem examination. P.W. 16 is the Scientific Officer and P.W. 17 is the Investigating Officer. According to P.W. 1, the deceased is a young boy of 14 years and was working in his hotel. On the unfortunate day, as usual after completion of the work, he went to the sea-shore to play with his friends. He did not return till 7.00 p.m. Apprehending some mischief, he searched for him, but could not trace his whereabouts. Then he intimated the family members of the boy. It is further stated that a village boy told him that he had seen Sapan along with the accused in the evening on the date of occurrence. According to the said witness, on the basis of such information, they went to the place where the accused was sleeping, but then, on seeing them, the accused ran away. After a thorough search, as he could not trace out Sapan, he filed art FIR, Ext. 1. P.W.2 is the aunt of Sapan. According to the said witness, on the basis of such information, they went to the place where the accused was sleeping, but then, on seeing them, the accused ran away. After a thorough search, as he could not trace out Sapan, he filed art FIR, Ext. 1. P.W.2 is the aunt of Sapan. According to him, P.W. 1 intimated him the fact that her nephew Sapan was missing. On the next day morning, she went to the sea-shore along with her neighbour and found the wearing apparels of Sapan. P.W. 3 is another independent witness, who helped in search of missing Sapan. According to him, on 12-4- 1995 at about 10 a.m. the police brought the accused to the spot and asked him regarding the whereabouts of the missing boy and the accused showed the place where the dead body of Sapan had been concealed. Basing upon such information, the police recovered the dead body of the deceased. P.Ws. 5, 6 and 8 are the seizure witnesses before whom material objects were seized. P.W. 7 narrated the story of sodomy alleged to have been committed by the accused on Sapan, but then the said evidence is based on hear-say. He was present when the napkin belonging to the accused as well as a brick was seized. P.W. 9 is another witness in whose presence the accused led the police party to the spot where he had concealed the dead body. P.W. 10 is the police constable and P.Ws. 11 and 13 are the doctors who examined the accused and P.W. 12 is the doctor, who conducted autopsy. According to the doctor, the right hand of the deceased was disarticulated from the wrist, the rectum is prolapsed due to decomposition, there was a bruise on right shoulder which is ante-mortem in nature, there was an anti-morterm swelling on neck extending from the right sternomastoid to left sternomastoid With three inch width. On dissection, the doctor found that the thyroid bone had been fractured. He opined that the cause of death was asphyxia. P.Ws. 14, 15 and 16 are police personnel, who took part in the investigation P.W. 17 is the O.I.C. of Chandipur Police Station. The most important piece of evidence upon which the prosecution bases the entire case is the confessional statement (Ext. 15) made by the accused under Section 164, Cr. P.C. before the Magistrate. P.Ws. 14, 15 and 16 are police personnel, who took part in the investigation P.W. 17 is the O.I.C. of Chandipur Police Station. The most important piece of evidence upon which the prosecution bases the entire case is the confessional statement (Ext. 15) made by the accused under Section 164, Cr. P.C. before the Magistrate. Perusal of the said document reveals that the accused was produced before the Magistrate on 21-4-1995 and the learned J.M.F.C., Balasore after observing all paraphernalias recorded the confession Made by the accused. (5) THE next evidence upon which the prosecution bases its case is the statement made by the accused before the police disclosing the place where he had hidden the dead body. THE police recovered the dead body on being led by the accused in presence of witnesses. (6) ON an analysis of the aforesaid evidence and other evidence and circumstances, learned Addl. Sessions Judge came to the conclusion that the accused is the author of the crime and found him guilty. The order of conviction and sentence is assailed before this Court mainly on the following grounds : (i) There is no eye-witness to the occurrence and excepting the confession said to have been made by the accused before the learned J.M.F.C. (Ext. 15), there is no other cogent evidence connecting the accused with the alleged crime. (ii) The plea of last seen theory totally fails as no direct evidence has been adduced to the said effect. (iii) The detection of dead body on the basis of admission said to have been made by the accused before the police has neither been, recorded verbatim nor was signed by the accused and thus, in consonance with the provisions of Section 27 of the Evidence Act, the same cannot be accepted. According to Mr. Dhal, learned counsel for the appellant, the entire prosecution story is shrouded, with mystery and the prosecution has totally failed to substantiate that the accused was the author of the alleged crime and it is a fit case where the order of conviction and sentence needs to be varied. Mr. Patnaik, learned counsel for the State, on the other hand, supported the judgment an the reasons given by the learned Addl. Sessions Judge. Mr. Patnaik, learned counsel for the State, on the other hand, supported the judgment an the reasons given by the learned Addl. Sessions Judge. According to him, confession was recorded in consonance with law after observing all paraphernalia by the learned J.M.F.C. and on the basis of such confession alone, conviction can be sustained. So far, as recovery of dead body is concerned, it is submitted that in presence of several witnesses, the accused had led the police to the place where he had concealed the dead body beneath the sand on the sea-shore and at his instance, the same was dug out. Though the witnesses have been cross-examined at length, nothing could be elicited from them to disprove their statements made in examination-in-chief. So far as last seen theory is concerned, Mr. Patnaik submitted that some of the witnesses had knowledge about the fact that Sapan (deceased) left along with the accused in the evening on the fateful day and such evidence should not be discarded. It is stated that as the deceased was last seen with the accused, the accused should have come forward to explain as to what happened to the deceased. In absence of any cogent explanation, it would be presumed under law that the accused, who was last seen with the deceased, was the author of the crime. (7) HEARD learned counsel for the parties at length. Perused the evidence both oral and documentary meticulously. It is a case where there is no eye-witness to the occurrence and the entire prosecution case hinges on circumstantial evidence. In the FIR P.W. 1 (the informant) had informed the police with regard to the fact of missing of Sapan. The prosecution though at the trial stage developed the case that the accused had committed sodomy on the deceased and as he threatened to disclose the said fact, he throttled him to death, subsequently, the said story has been given a go-bye. In fact, learned Addl. Sessions Judge has also not accepted the said story. The medical evidence also does not support the story of committing sodomy. (8) SO far as the statement said to have been made under Section 27 of the Evidence Act by the accused disclosing the place where the dead body was hidden, this Court finds that neither any verbatim statement has been recorded nor the accused has signed on the said statement. (8) SO far as the statement said to have been made under Section 27 of the Evidence Act by the accused disclosing the place where the dead body was hidden, this Court finds that neither any verbatim statement has been recorded nor the accused has signed on the said statement. But then, enough evidence is available on record to reveal that the accused in presence of independent witnesses led the police officer to the spot where he had hidden the dead body under the sand. It further reveals that as per the statement of the accused, the dead body was recovered from underneath the sand. All the seizure witnesses have given cogent evidence and their statements could not be demolished in cross-examination. This Court, therefore, finds enough materials to come to a conclusion that at the instance of the accused and as led by him, the dead body was recovered. So far as the last seen theory is concerned, after going through the evidence, this Court is satisfied that there is no reliable evidence, which reveals that any of the witnesses, have in fact seen Sapan (deceased) going with the deceased (accused). The boy who claims to have seen Sapan along with the accused on the evening of the occurrence was not examined, thus leaving a void. (9) THE only other evidence which remains to be considered is the confessional statement made by the accused before the learned J.M.F.C. According to Mr. Dhal, learned J.M.F.C. has not kept in mind the settled position of law while recording the confessional statement and as such, the same cannot be accepted. Further, according to Mr. Dhal, as the learned J.M.F.C. has not been examined as a witness, the statement cannot be accepted. (10) IT is well settled that a confession if voluntarily and truthfully made, becomes an efficacious proof of guilt. Therefore, in a case where the prosecution demands conviction of an accused primarily on the basis of his confession recorded under Section 164, Cr. P.C. the Court must be satisfied about two factors, i.e., (i) Whether the confession was made voluntarily ? (ii) If so, whether it is true and trustworthy? Out of the aforesaid two tests, the first one is sine qua non for its admissibility in evidence. P.C. the Court must be satisfied about two factors, i.e., (i) Whether the confession was made voluntarily ? (ii) If so, whether it is true and trustworthy? Out of the aforesaid two tests, the first one is sine qua non for its admissibility in evidence. If the confession appears to the Court to have been caused by any inducement, threat, or promise as stipulated in Section 24 of Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test does not arise. If the first test is satisfied, the Court must, before acting upon confession reach the finding that, what is stated therein, is true and reliable. For judging the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid canon of universal application. Even so, one broad method which may be useful in most cases for evaluating the evidence is that the Court should carefully examine the confession and compare it with the rest of the evidence in the' light of the surrounding circumstances and probabilities of the cases. If on such examination and comparison, the confession appears to be probable to the catalogue of events, and naturally fits in, with the rest of the evidence, and the surrounding circumstances, it may be taken to have satisfied the second test. Only because the learned J.M.F.C, who has recorded the statement of the accused has not been examined as a witness, the statement should not be thrown out. The Supreme Court in the case of Madi Ganga v. State of Orissa (1981) 2 SCC 224 : 1981 Cri LJ 628 deafly held that where Magistrate records a confession of the accused, after putting to him all necessary questions and appends a certificate with the confession document showing voluntary nature of the confession, the confessional statement is admissible in evidence and the Magistrate need not be further examined as a witness to confirm its reliability. (11) IN the case in hand, on perusal of the confessional statement, Ext. 15 recorded by the learned J.M.F.C. this Court finds that the Magistrate has taken due caution of all aspects and has put relevant questions to ascertain as to whether the accused was making the confession voluntarily or whether the same was made on being coerced by any outside agency. 15 recorded by the learned J.M.F.C. this Court finds that the Magistrate has taken due caution of all aspects and has put relevant questions to ascertain as to whether the accused was making the confession voluntarily or whether the same was made on being coerced by any outside agency. Only after being satisfied that there is no outside influence and the statement was made voluntarily and on being further satisfied that there was no coercion recorded the same. He has also appended necessary certificates to the said effect. Even otherwise, Section 80 of the Evidence Act makes the examination of the Magistrate unnecessary. The said Section authorizes the Court to presume that the document is genuine. Moreso, in the case in hand, as stated earlier, the Magistrate has appended the certificate that he was satisfied that the confession was made without any influence and was voluntary in nature. 16A. IN Ext. 15, the accused has clearly confessed that in view of previous enmity and as Sapan (deceased) Has assaulted him with a stone earlier, on getting an opportunity, he had murdered him on the date of occurrence. Added to that, this Court also finds that enough materials are there to indicate that the accused led the police as well as other witnesses to the place where the dead body was concealed beneath the sand in the seashore and at his instance the dead body was recovered. The aforesaid two circumstances are good enough to establish the involvement of the accused with the alleged crime. (12) AFTER going through the entire judgment, this Court also finds that the learned Addl. Sessions Judge has not committed any illegality or irregularity and the conclusions arrived at are cogent and based upon admissible evidence, which are reliable. The incident, as it appears, took place way back in the year 1995. The appellant is in custody for all these years, i.e. 14 years. Perusal of the confessional statement and other materials reveal that the incident occurred out of a children's quarrel. The deceased was only a boy of 15 years and the accused was also in the threshold of youth at the relevant time. After perusing the evidence, it appears that there was no intention of murder of Sapan, but then in course of punishing the deceased for his past conduct, the accused appears to have crossed the limit without knowing the consequence. After perusing the evidence, it appears that there was no intention of murder of Sapan, but then in course of punishing the deceased for his past conduct, the accused appears to have crossed the limit without knowing the consequence. It is more like a adolescent crime than a crime with the intention. Considering all these facts, this Court feels that the order of conviction under Section 302, IPC should be set aside and instead the accused should be convicted under Section 304, Part-II/201, IPC. (13) ACCORDINGLY, the appeal is allowed in part, the impugned judgment convicting the appellant under Sections 302/201, IPC is set aside and instead he is convicted for commission of offence under Section 304, Part-II/201, IPC and sentenced to undergo rigorous imprisonment for a period of fifteen years. It is needless to say that the period of imprisonment already undergone would be treated as set off. Order accordingly.