C.R. Sarma, J.— The judgment and order, dated 21.12.2006, passed by the learned Sessions Judge (F.T.C.), Bongaigaon, in Sessions case No. 7(B)/2000, is in challenge in this appeal. By the impugned judgment and order, the learned Sessions Judge convicted the appellants aforesaid under section 302/201/34IPC and sentenced them to suffer imprisonment for life and pay fine of Rs. 2,000/- each, in default suffer rigorous imprisonment for another period of six months for their conviction under section 302 IPC and also suffer rigorous imprisonment for 3 years and pay fine of Rs. 1,000/- each, in default suffer rigorous imprisonment for another period of 3 months for their conviction under section 201 IPC. Aggrieved by the said conviction and sentence, the convicted persons have come up with this appeal. 2. The prosecution case, in brief, is that Shri Dhajen Ch. Barman (appellant) and Shri Robilal Soren (since deceased) used to work in the house of the informant namely Shri Birandra Narzary (PW5) as his domestic assistants and the appellant Sri Surjya Sutradhar used to work in the house of Shri Dharmeswar Narzary. In the evening of 22.12.1998, the appellants and the deceased aforesaid, after completing their work, left towards the river. Though the appellants had returned home, the whereabout of the deceased was not known. Out of suspicion, the appellants were apprehended and on being asked by the informant, they confessed, in presence of the villagers, that they had killed the deceased and buried his dead body in the riverbed. Shri Birendra Narzary, lodged an FIR (Exhibit 5) with the Officer-in-Charge, Bijni Police Station. The said FIR was registered as Bijni PS. Case No. 121/1998 under section 302/201/34 IPC. 3. During the course of investigation, Police visited the house of the informant, took the accused persons, who were detained in the house of the informant, into custody, recorded the statements of the witnesses, prepared a sketch map of the place of occurrence. On being interrogated by Police, the appellants confessed that they had committed murder of the deceased and concealed the dead body at the Bhetagaon cremation ground by burying the same. According to the Investigating Officer, both the accused persons led the Police to the Pakhajani River, where the dead body was buried and, in presence of the Magistrate and the Medical Officer, the dead body was recovered from a pit, after digging the same with a spade.
According to the Investigating Officer, both the accused persons led the Police to the Pakhajani River, where the dead body was buried and, in presence of the Magistrate and the Medical Officer, the dead body was recovered from a pit, after digging the same with a spade. Upon recovery of the dead body, inquest was done by the Executive Magistrate namely Sri Monoj Kumar Sikaria, in presence of the Investigating Officer and the post mortem examination, in respect of the dead body, was done by Dr. Jotish Kr. Kalita on the spot. On being led by the accused persons on 27.12.1998, Police recovered the spade, which was used by the accused persons for burying the dead body. The said spade was seized vide Exhibit 1 in presence of witnesses. Both the accused persons were forwarded to the learned Sub-Divisional Judicial Magistrate, Bijni, for recording their confessional statement and accordingly, the learned Sub-Divisional Judicial Magistrate, Bijni, recorded their confessional statement. At the close of the investigation, Police submitted charge sheet under sections 302/201/34, IPC against the accused persons. The offence being exclus ively triable by the Court of Sessions, the learned Sub-Divisional Judicial Magistrate, Bijni, committed the case to the Court of Sessions at Bongaigaon. Accordingly, the learned Sessions Judge, Bongaigaon, framed charges under section 302/201/34 IPC. The charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. 4. In order to prove their case, the prose cution examined as many as seven witnesses including Sri. L.C. Nath (P. W.3), the learned Sub-Divisional Judicial Magistrate, who recorded the confessional statement, on 28.12.1998 of the accused persons and the Investigating Officer. Other witnesses were non-official witnesses. At the close of the evidence for the prosecution, the accused persons were examined, under section 313 Cr.P.C. They denied the allegations levelled against them and declined to adduce defence evidence. They categorically stated that they did not make any confessional statement and that they did not kill the deceased. 5. Considering the evidence, on record, the learned Sessions Judge convicted and sentenced the appellants as indicated above. 6.
They categorically stated that they did not make any confessional statement and that they did not kill the deceased. 5. Considering the evidence, on record, the learned Sessions Judge convicted and sentenced the appellants as indicated above. 6. The prosecution case is based on the circumstantial evidence, that the appellants and the deceased went together towards the river, that though the appellants had returned home, the deceased never returned, that the dead body of the deceased and the spade, used by the accused persons for burying the dead body, were recovered by the Police, at the instance of the appellants, that the accused persons had made extra judicial confession before the villagers and judicial confessional statement before the learned Sub-Divisional Judicial Magistrate. Admittedly there is no direct evidence against the appellants. 7. Mr. T. J. Mahanta, learned Amicus Curiae, appearing for the appellants, has submitted that there is no substantive and reliable evidence regarding the involvement of the appellants. The learned amicus curiae, referring to the evidence, on record, has submitted that the informant i.e. PW5 stated that the accused persons were apprehended and kept detained, after tying in his house till the arrival of the Police and that the accused, namely Dhajen Barman, had confessed his guilt before him, in presence of the villagers. It is submitted that there is nothing, on record, to show that the other appellant namely Surjya Sutradhar made any extra judicial confession and that none of the villagers, before whom the appellant Sri Dhajen Barman had made the alleged extrajudicial confession, have been examined and as such it is submitted that there is no corroboration in the evidence of PW5 to believe that the said appellant had made confession. The learned Amicus Curiae has also submitted that there is major discrepancies and contradictions in the ocular evidence, given by the prosecution witnesses, more particularly PW1, PW4, PW5, PW6 and PW7 (I.O.), with regard to the leading to discovery and recovery of the dead body.
The learned Amicus Curiae has also submitted that there is major discrepancies and contradictions in the ocular evidence, given by the prosecution witnesses, more particularly PW1, PW4, PW5, PW6 and PW7 (I.O.), with regard to the leading to discovery and recovery of the dead body. The learned Amicus Curiae, referring to the confessional statement, has submitted that, considering the period spent by the appellants, in the custody of the Police, the reflection time of four hours, given to them, on the date of their production i.e. 28.12.1998 after keeping the appellants in the custody of the Office Peon, after explaining them the consequence of making confessional statement, was not sufficient to inspire confidence to believe that the confession was voluntary. Referring to the evidence, given by the learned Judicial Magistrate, in his cross-examination, that the accused persons were produced before him on 28.12.1998 from judicial custody, the learned counsel has submitted that the said statement is not correct. The learned Amicus Curiae has also submitted that the prosecution failed to establish that the appellants had made extrajudicial confession, that they led the Police to the discovery of the dead body of the deceased as well as the incriminating weapon i.e. the spade and also that the appellants had made confessional statement truly and voluntarily. In view of the above, the learned Amicus Curiae has submitted that the impugned conviction and sentence cannot be maintained and that the same is liable to be set aside, acquitting the appellants. 8. Refuting the argument advanced by the learned Amicus Curiae, Mr. D. Das, learned Additional Public Prosecutor has submitted that the circumstantial evidence, surfaced from the evidence on record, coupled with the confessional statements of the accused persons and the recovery of the dead body and the incriminating weapon, at the instance of the accused persons, lead to the only conclusion that the appellants had caused the death of the deceased and as such the learned Sessions Judge committed no error by convicting and sentencing the appellant, as indicated above. 9.
9. Having heard the learned Counsel for the parties and carefully perusing the evidence, on record, we find that the prosecution case is based on the extra judicial confession, alleged to be made by the accused persons, recovery of the dead body as well as the spade, used in burying the dead body, on being led by the appellants and the judicial confessional statement, made by the accused. The appellants in their statements, made under section 313 Cr.P.C., categorically denied their involvement with the alleged crime and clearly stated that they neither lead to the discovery of the dead body, nor made any confessional statement. 10. It is settled position of law that a confessional statement, if found to be corroborated by circumstantial evidence and true and voluntarily made, subsequent retraction, that too at a belated stage, would not make the confession unreliable. 11. In order to appreciate the arguments advanced on behalf of both the parties, we feel it appropriate to, briefly, scrutinize the evidence, on record. 12. From the evidence of Mr. Birendra Narzary (PW5), who lodged the FIR, it is found that the appellant Dhajen Barman and the deceased Robilal Soren and Surjya Sutradhar, on the fateful day, went out together, but the deceased did not return home. He further stated that, on the next morning, it was known from the employer of Surjya Sutradhar that, on the previous night Shri Dhajen Barman had killed the deceased. According to this witness, who used to stay at Dhaligaon, in connection with his service, on being informed by the members of his family, rushed home and found that the villagers had apprehended the appellants and kept them tied in his courtyard. He further stated that, on being asked by him, the appellant, Shri Dhajen Barman, in presence of others, confessed that, on the previous evening, he, along with Shri Surjya Sutradhar had killed the deceased by strangulation and drowning him in the river water and thereafter buried the dead body, on the bank of the river. PW5 further stated that, Surjya Sutradhar also, on being asked, stated that Sri Dhajen had killed Robilal Soren and thereafter buried the dead body. This witness further stated, that on being informed by him, Police had arrived and took the appellants to Police Station.
PW5 further stated that, Surjya Sutradhar also, on being asked, stated that Sri Dhajen had killed Robilal Soren and thereafter buried the dead body. This witness further stated, that on being informed by him, Police had arrived and took the appellants to Police Station. Though this witness stated that the said appellants had made extra judicial confession before him and the villagers, no other person, before whom the extra judicial confession was made, has been examined. There was no difficulty for the prosecution to examine some of the villagers, before whom the alleged confession was made. Failure to examine such vital witness, raises doubt about the veracity of the evidence of PW5, which lacks corroboration. The defence challenged the said statement, regarding extrajudicial confession, by putting suggestions that they did not make any confession before him. Of course, P W5 denied the said suggestion. It is not a case that, the judicial confession was made before P W5 only. The other persons, in whose presence the confession was made, should have been examined. Non-exami nation of such vital witness raises doubt about the veracity of PWS's evidence. Therefore, for want of corroboration, we do not find it safe to accept the evidence of PW5, regarding extrajudicial confession. 13. In support of the prosecution version that the spade, which was used by the appellants in burying the dead body of the deceased, the prosecution examined only one witness i.e. PW2. Sri Shdhir Ch. Das, deposing as PW2 stated that, on being asked by the Police, he visited the house of Jiten Barman, wherefrom Police had recovered and seized a spade. He exhibited the spade as Exhibit 2 and his signature as Exhibit 2(2). This witness further stated, in his cross-examination, that Police had taken his signature on a blank paper. The evidence of this witness, that Police had taken his signature, on the blank paper, raises doubt as to whether the seizure was made after the list was prepared in his presence. 14. Shri Atul Konwar, the Investigating Officer, deposing as PW7, stated that, on 27.12.1998, the accused persons led him to the place, where they had kept the spade and that the same was seized vide seizure list (Exhibit 2).
14. Shri Atul Konwar, the Investigating Officer, deposing as PW7, stated that, on 27.12.1998, the accused persons led him to the place, where they had kept the spade and that the same was seized vide seizure list (Exhibit 2). Though the Investigating Officer stated that he had seized the spade, in presence of the witnesses, he failed to disclose the names of the persons, in whose presence the spade was seized. Sri Sudhir Ch. Das (PW2), who was a witness to the seizure did not state that the appellants had led the Police to the discovery of the said spade or that the spade was recovered, on being produced by the appell ants. What PW2 stated was that Police had seized a spade from the house of Jiten Barman. Therefore, we find no corroboration, in the evidence of the Investigating Officer, to believe that the spade was seized, on being led and produced by the appellants. That apart, as the spade was seized from the house of Jiten Barman, Sri Barman was a vital witness to the said seizure, but the prosecution failed to examine such a material witness. This lapse also raises doubt about the veracity of the prosecution version. 15. Now we take up the matter regarding discovery of the dead body, on being led by the Police. In this regard, the Investigating Officer, deposing as PW7, stated that the appellants had led him to the place, where they had buried the dead body of the deceased and that the dead body of the deceased was dug out in presence of an Executive Magistrate and a Medical Officer. He further stated that the inquest of the dead body was made by the learned Executive Magistrate and that the post mortem of the same was conducted by Dr. Jyotish Kalita, on the spot. Neither the Executive Magistrate, in presence of whom, the dead body was recovered and the inquest was done, nor the said Medical Officer, who conducted the post mortem examination, has been examined in this case. However, in support of the prosecution version regarding leading to discovery of the dead body, the prosecution has examined four witnesses i.e. PWI, PW4, PW5 and PW6. 16. Mr.
However, in support of the prosecution version regarding leading to discovery of the dead body, the prosecution has examined four witnesses i.e. PWI, PW4, PW5 and PW6. 16. Mr. Poresh Ghosh, deposing as PW1, stated that the appellants were taken by Police to the place, where from the dead body was recovered and that the appellants had dug out a dead body, which was identified to be of the deceased. From the said evidence of P W1, it appears that the dead body was dug out by the appellants, from the place of occurrence. 17. Shri Naikie Soren (PW4), stated that the Police had shown the place, where the dead body was kept buried. He further stated that, on being asked by Police, he had dug the pit with a spade and recovered the dead body of the deceased. This witness does not corroborate the evidence of PW1 that the dead body was dug by the appellants or at their instance. 18. Contradicting the evidence of PW4, Shri Birendra Narzary, deposing as PW5, stated that the accused person had shown the place, where they had kept the dead body and that on being directed by the Police, Sri Dhajen had dug out the dead body. A careful reading of the evidence of PW1 and PW5 reveal that the dead body of the deceased was dug out by the appellants, but PW4 contradicted the evidence of PW1 and PW5, by saying that the dead body was dug outbyhim(PW4). 19. PW6, Sri Boi Soren, who was the elder brother of the deceased, stated that the appellants had shown the place where they had kept the dead body and that they had confessed that they had buried the dead body after killing the deceased. This extra judicial confession regarding killing of the deceased, being made, in custody of the Police, is hit by section 26 of the Evidence Act. In his cross-examination, contradicting his evidence, this witness further stated that he did not know as to who had dug the pit and wherefrom the dead body was brought out. The failure of this witness to state as to who had dug out the dead body raises doubt about his presence in the said place. 20.
In his cross-examination, contradicting his evidence, this witness further stated that he did not know as to who had dug the pit and wherefrom the dead body was brought out. The failure of this witness to state as to who had dug out the dead body raises doubt about his presence in the said place. 20. The Investigating Officer (P W7), in his cross-examination, stated that the pit was dug by one Shri Neiki Soren i.e. PW4 and other persons present, but Shri Neiki Soren, deposing as PW4 clearly, stated that none, except him, had dug out the dead body. But according to PW1, the appellants had dug out the dead body, whereas PW5 in his cross-examination stated that the appellant Dhajen Barman had shown the Police the place where the dead body was buried and, on being directed by the Police, he (appellant) had, with a spade, dug out the dead body. All of the said witnesses i.e. PW1, PW4, PW5, PW6 and the Investigating Officer, PW7, claimed to be present at the time of recovery of the dead body and digging the pit. Therefore, there should not have been different versions on material point i.e. regarding the identity of the person, who dug out the dead body. As discussed above, according to PW1, the accused persons had dug out the dead body, according to P W4, he (PW4) had done the said job, according to PW5, the appellant Dhajen alone had dug the pit to discover the dead body and according to PW7, P W4 and other persons had dug the pit. PW6 who was the elder brother of the deceased stated that he was not aware as to who had dug out the dead body. As all those witnesses have claimed that the appellants had shown the place where the dead body was kept buried and led to the discovery, there should not have been such material contradiction in their evidence regarding process of discovery of the dead body. In our considered opinion, the said contra dictions are major contradictions, raising doubt about the veracity of their evidence. The above discussed contradictions raises doubt as to whether the said witnesses were actually present, at the time of recovery of the dead body, and if the appellants had led to the discovery.
In our considered opinion, the said contra dictions are major contradictions, raising doubt about the veracity of their evidence. The above discussed contradictions raises doubt as to whether the said witnesses were actually present, at the time of recovery of the dead body, and if the appellants had led to the discovery. That apart, the discovery of the dead body, even if on being led by the accused person, cannot be substantive evidence to hold that the accused persons had committed the alleged crime i.e. the death of the deceased. In the case of S.K. Yusuf Vs. State of West Bengal, (2011) 11 SCC 754 , the Supreme Court observed as follows: "34. The nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 of the Evidence At, 1872, is very limited. If an accused deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, and as a result of such disclosure, recovery of the weapon is made, no inference can be drawn against the accused, if there is no evidence connecting the weapon with the crime alleged to have been committed by the accused." In view of the above principle, in the absence of other corroborating evidence, the discovery of the dead body cannot be treated as substantive evidence to base the conviction. 21. With regard to the confessional statement, the prosecution version is that both the appellants had confessed before the Judicial Magistrate, on 28/12/2005 and as such the said confessional statements were sufficient to base the conviction. 22. There can be no dispute that confess ional statement recorded by a Judicial Officer, if found to be true and made voluntarily, can be the basis for conviction. To make the confession reliable, the procedure, prescribed by Section 164 Cr.P.C., is required to be strictly complied with and failure to do so negates the evidentiary value of confession. A Magistrate, should not record any confes sion unless, upon questioning the person making it, has the reason to believe that the same is true and made voluntarily. Section 164 (3) provides that if the person, appearing before the Magistrate, declines to make confession, the Magistrate should not authorise the detention of such person in Police custody.
A Magistrate, should not record any confes sion unless, upon questioning the person making it, has the reason to believe that the same is true and made voluntarily. Section 164 (3) provides that if the person, appearing before the Magistrate, declines to make confession, the Magistrate should not authorise the detention of such person in Police custody. As required by Section 164(4), the Magistrate, recording the confessional state ment, is required to make a memo at the foot of such record to the following effect: "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. 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 the statement made by him". In the case of Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, (2011) 2 SCC 490 , the Supreme Court referring to the case of Bhagwan Singh & Ors. Vs. State of M.P., (2003) 3 SCC 21 , State of Uttar Pradesh Vs. Singhara Singh & Ors., AIR 1964 SC 358 and Sivappa Vs. State of Karnataka, (1995) 2 SCC 76 extensively dealt with the procedure of recording confessional statement and the precaution to be taken by the recording officer. 23. In the case of Sivappa (supra), the Supreme Court observed that the accused should particularly be asked the reason as to why he wants to make a statement, which would surely go against him in course of the trial, even if he contrives subsequently to retract the confession.
23. In the case of Sivappa (supra), the Supreme Court observed that the accused should particularly be asked the reason as to why he wants to make a statement, which would surely go against him in course of the trial, even if he contrives subsequently to retract the confession. Besides administering the caution, warning specifically provided for in the first part of sub-section (2) of Section 164 namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complicity in the offence at the trial, that is to follow, he should also, in plain language, be assured of protection from any sort of apprehended torture or pressure from such extraneous agents as the police or the like, in case he declines to make a statement and be given the assurance that, even if he declined to make the confession, he shall not be remanded to police custody. The Magistrate who is entrusted with the job of recording confessional statement has to perform the duty duly complying with the required provisions of law by ascertaining the voluntariness of the maker of the confession. As the confessional statement can be the basis of conviction, the Magistrate recording such confession, has a pious duty to perform. The record maintained by the Magistrate must be transparent enough to show that the confessional statement was made by the accused true and voluntarily and that the statutory provisions were strictly complied with. A confession not made voluntarily is unreliable, more so, when such confession is retracted. An accused person who spends two to three nights in Police custody, considering his mental condition, such person should be given an opportunity to have a good sleep and food and then coolly prepare himself to have appropriate decision with regard to making confession. Therefore, in such a case, instead of recording the confessional statement, on the very day of producing the accused from the Police custody, after keeping him about 2-3 days, in such custody, it is always safe and appropriate to remand him to judicial custody and record his confession thereafter. 24.
Therefore, in such a case, instead of recording the confessional statement, on the very day of producing the accused from the Police custody, after keeping him about 2-3 days, in such custody, it is always safe and appropriate to remand him to judicial custody and record his confession thereafter. 24. In the present case, as revealed from the confessional statements i.e. the Exhibits 3 and 4, it is found that the accused persons were produced before the learned Magistrate, on 28.12.1998, after arresting them, on 25.12.1998 by the Police and they were produced before the learned Magistrate, on 28.12.1998 at about 10 A.M. for recording their confession. The learned Magistrate explained as follows:- 1. That I am not an officer of Police but a Magistrate; 2. That he is not bound to make a confession; 3. That if he does not make a confession, it may be used in evidence against him; 4. That he should not say anything because others have told him to say it but is at liberty to say whatever he really desires to say; 5. That he should say nothing, which is untrue. Thereafter, the learned Magistrate kept the accused person in his office, in the custody of one peon till 3 P.M. and again informed the accused persons that he was a Judicial Magistrate and not a Police Officer, that they were not bound to confess, that they would not, again, be sent to Police Station, that if they make confession, the same would be used against them as evidence. In reply to the said informations, furnished to the accused persons, they answered that they had understood what the learned Magistrate had explained and that they would confess their guilt. Thereafter, the learned Magistrate proceeded to record the confessional state ment, on the very date of their production, after keeping them in Police custody for three days i.e. from 25.12.1998 to 28.12.1998. 25. The learned Magistrate also did not inform the accused persons, in plain and simple language, that even if they refused to make confessional statement, then also they would not be sent back to the Police custody again. What the learned Magistrate informed was "you will not be sent to Police Station again". The said information does not clearly indicate that even if the accused person refused to make confession then also, they would not be sent to Police custody.
What the learned Magistrate informed was "you will not be sent to Police Station again". The said information does not clearly indicate that even if the accused person refused to make confession then also, they would not be sent to Police custody. The information that they would not again be sent to Police Station, may also be interpreted in a way that if the accused persons make confessional statement, they would not be sent back to Police. Therefore, the said information furnished to the accused does not clearly indicate that the accused person would be protected even if they refused to make confession. In view of the above, in our considered opinion, no protection in the event of refusal to confess was assured to the said accused persons. 26. The fact remains that both the accused persons, at the time of making their statements, under section 313 Cr.P.C., denied to have made any confessional statement and thus they retracted the said confessional statement. Therefore, in view of the principle laid down in the case of Sivappa (supra), failure to ask the accused person the reason why they wanted to make confessional statement, which would surely go against them in the trial, even if they, contrives/retracts the same subsequently, indicates that the accused person made the confessional statements without knowing the consequence of making such statement and as such the same cannot be treated as voluntarily made statement. That apart, failure to inform the accused person, in plain and simple language, that even if they refused to make confessional statement, their interest would be protected by not sending them to the Police custody, also lead to the inference that the confessional statements were not voluntary and free from threat etc. 27. As provided by Section 164(4), Cr.P.C., the learned Magistrate, at the foot of the record, is required to give a certificate of his satisfaction about the voluntariness of the statements. The learned Magistrate after recording the confessional statement made the following statement: "Accused sustained no injury. No question of ill treatment has arisen. I am satisfied with the voluntary, true and fearless confession of the accused." 28. The fact that the accused neither sustained any injury nor raised any question of ill treatment, does not, per say, indicate that their confessional statements were true and voluntary.
No question of ill treatment has arisen. I am satisfied with the voluntary, true and fearless confession of the accused." 28. The fact that the accused neither sustained any injury nor raised any question of ill treatment, does not, per say, indicate that their confessional statements were true and voluntary. The learned Magistrate is required to record the fact and circumstances as well as other materials, which led him to believe that the confession was voluntarily made. The record is silent about the manner in which the accused persons were kept in the Police custody and the treatment meted out to them, during the said custody. Therefore, we are not inclined to hold that the certificate given by the learned Magistrate was sufficient to believe that the confession was voluntarily made. 29. That apart, another glaring discrep ancy, in recording confessional statement has come to our notice. In the form used for recording, the confessional statement, the learned Magistrate recorded that the accused persons were arrested on 25.12.1998 and that they were produced before him on 26.12.1998 for taking into Police custody and thereafter they were again produced before the learned Magistrate on 28.12.1998 after completion of the Police remand. The learned Magistrate, deposing as PW3, in his in-chief examination stated that the accused were produced before him on 28.12.1998 and that he had given four hours time for reflection by keeping them in the custody of his peon. 30. On the other hand, in his cross, the learned Magistrate stated that the accused persons were produced before him on 25.12.1998 with a prayer for recording their confessional statement, but due to paucity of time, he could not record the confessional statement on that date and as such remanded them to judicial custody till 28.12.1998. The Exhibits 3 and 4, which are the forms of recording the confessional statement, does not indicate that the accused persons were remanded to judicial custody and or that they were produced from judicial custody on 28.12.1998. Though the learned Magistrate stated that the accused persons were produced before him from judicial custody, the exhibits 3 and 4 does not support the said contention. 31. We have also perused the order sheets of G.R. Case No. 192/98, which has given rise to the present Sessions case. The said record is silent about production of the accused persons on 25.12.1998.
31. We have also perused the order sheets of G.R. Case No. 192/98, which has given rise to the present Sessions case. The said record is silent about production of the accused persons on 25.12.1998. As per the case record, the accused persons were, for the first time, produced before the learned Magistrate on 26.12.1998. Therefore, the statement of the learned Magistrate, given on oath, is not supported by the records, maintained by him. It also appears that on 26.12.1998, the Investigating Officer had made a prayer for recording the confessional statement and also for allowing the accused persons in Police custody for two days. As revealed by order, dated 26.12.1998, aforesaid, the learned Magistrate recorded "accused are confessing. So the prayer of the I.O. is allowed. Accused are remanded to police custody for two-days". As the accused persons wanted to make confessional statement, we do not understand as to why the learned Magistrate again remanded the accused persons to Police custody for two days, instead of proceeding to record their statement as per law. The order dated 28.12.1998, reveak that the accused were produced before him, on 28.12.1998, after expiry of five days Police remand. The learned Magistrate recorded "they be remanded to JC till 8.1.1999, Further the I.O. prayed to (sic) recording the confessional statement of the accused persons under section 164 Cr.P.C. in the greater interest of the case as the accused persons confessed before the Police. Prayer is allowed. It is 11 A.M. now. Keep them in charge of my office peon Tilok Ch. Roy till 3 P.M. for reflection." Later on, the statements of the accused persons were recorded and they were remanded to custody. The said order dated 28/12/1998 reads as follows:- "Accused (1) Sri Dhajen Ch. Barman (2) Sri Surjya Sutradhar have been reproduced before the court by I/O of the case after expiry of 5 (five) days Police remand. They be remanded in JC till 8.1.1999. Further I/O prayed to recording the confessional statement of the accused persons under section 164 Cr.P.C. in the greater interest of the case as the accused persons confessed before the Police. Prayer is allowed. It is 11.00 A.M. now. Keep them in charge of my office peon Tilok Ch. Roy till 3 P.M. for reflection." 32.
Further I/O prayed to recording the confessional statement of the accused persons under section 164 Cr.P.C. in the greater interest of the case as the accused persons confessed before the Police. Prayer is allowed. It is 11.00 A.M. now. Keep them in charge of my office peon Tilok Ch. Roy till 3 P.M. for reflection." 32. The above cited order does not indicate that the learned Magistrate had cautioned the accused persons as per law about the consequence of making confession, by furnishing all the required information. As revealed by the order, dated 28.5.1998, what the Magistrate did was that, immediately after their production from the Police custody, the accused persons were kept in the custody of the office peon till 3 P.M. Admittedly, the statements were recorded at 3 P.M. The order dated 28.12.1998 i.e. record maintained by the learned Magistrate indicates that the confessional statements were recorded without cautioning the appellant, and without assuring protection, without putting any searching question and without giving sufficient time for reflection. 33. Exhibits 3 and 4 i.e. the confessional statements reveal that the learned Magistrate did not obtain signature of the accused persons on each and every pages. He took the signature of the accused persons at the bottom of the confessional statements made by the appellant. This lapse also raises doubt as to whether the particulars mentioned in the said form were explained to the accused person or not. 34. That apart, the evidence given by the learned Magistrate is contradictory to the statements made in Exhibits 3 and 4 aforesaid as well as order sheets dated 26.12.1998 and 28.12.1998. 35. According to the evidence, given by the learned Magistrate (PW), in his cross-examination, the accused were produced before him from judicial custody on 25.12.1998 and he kept them in judicial custody till 28.12.1998. But, according to the statements made in Exhibits 3 and 4 and the orders dated 26.12.1998 and 28.12.1998, the accused persons were directly produced from the Police custody and the confessions were recorded on the same day (28.12.1998) after giving four (4) hours time for reflection, by keeping the accused in the custody of the office peon. The order dated 28.12.1998 does not indicate that the learned Magistrate had explained the particulars and consequence of making confession.
The order dated 28.12.1998 does not indicate that the learned Magistrate had explained the particulars and consequence of making confession. In view of the above, we find it difficult to believe that the learned Magistrate had applied his mind to the procedure prescribed by section 164 Cr.P.C. with regard to the recording confessional statement and followed the procedure prescribed by law. 36. Therefore, the manner and conduct, in which the record was maintained by the learned Magistrate, does not inspire confidence to believe that the confessional statements were recorded after following due procedure of law. The said manner of recording the confessional statement and the maintenance of the record raises grave doubt with regard to the truth and voluntariness of the contention, Therefore, on this count, we find it most unsafe to rely on the confessional statement, which have been subsequently retracted by the appellants. Accused person should also be informed that he has a right to consult his Counsel and if he is not in a position to engage a Counsel, due to economic and social condition, he is entitled to legal assistance. But in the present case, no such opportunity was given. Therefore, the confession cannot be treated as voluntarily made. In our considered opinion, if an accused person is produced, directly from Police custody, after keeping him in such custody for about 2-3 or more days, considering the mental condition, anxiety and the agony, suffered by such person during his stay in the Police custody after putting searching questions, sufficient time should be given for reflection, after properly cautioning him about the consequence of making a confessional statement, the evidentiary value of the confession, the punishment he may receive for committing the alleged offence and also providing the assurance/protection in clear terms, that in the event of refusal to make confession, he would not be sent to Police custody again. In the case of Shri Adi Nath 1967 Crl. L. J. 125, it was observed that as a rule of prudence, an accused person should be atleast given 24 hours time to reflect.
In the case of Shri Adi Nath 1967 Crl. L. J. 125, it was observed that as a rule of prudence, an accused person should be atleast given 24 hours time to reflect. A Division Bench of this Court, in the case of Gendra Brahma and others versus the State of Assam, 1991 Crl.L.J. 413 referred to the decision of this Court in the case of Kathu Goala versus State of Assam, reported in 1981 Crl.L.J. 424, wherein it was observed that the warning set forth in section 164 of the Code are merely illustrative and not exhaustive and that the Magistrate recording confession must make inquisitorial enquiry and make adequate exercise to ascertain the impelling reason of the prisoner to confess his guilt. It was also observed that the Magistrate must find out the real motive behind making the confession and if he finds the reason to be well grounded and the prisoner has a real, genuine and impelling ground to make a clean breast to make the confession, he must proceed to record the confession, hi the case at hand, the learned Magistrate did not ask the reason as to why the accused persons wanted to make the confession despite knowing the legal consequence of making the confession. This lapse on the part of the learned Magistrate also raises doubt regarding the truthfulness and voluntariness of the confessional statement. 37. In the case of Gendra Brahma (supra), Hon'ble Mr. Justice K. Lahiri observed: "27. Is it fair, just and equal treatment not to inform the uninformed about the constitutional and statutory right? Is it meeting out justice? I say emphatically that the non-performance of the basic duties to inform the requisite safeguards and not to provide an indigent person with free legal aid at that stage is violative of the basic and fundamental norms of justice and no court of justice ought to act upon such confession." In the case of Sarwan Singh Rattan Singh Vs.
I say emphatically that the non-performance of the basic duties to inform the requisite safeguards and not to provide an indigent person with free legal aid at that stage is violative of the basic and fundamental norms of justice and no court of justice ought to act upon such confession." In the case of Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637 , the Supreme Court, while dealing with the procedure of recording the confessional statement observed: "There can be no doubt that when an accused person is produced before a Magistrate by the Investigating Officer, it is of utmost importance that the mind of the accused person should be completely freed from any possible influence of the Police and the effective way of securing such freedom from fear to the accused person is to send him to jail custody and give him adequate time to consider whether he should make the confession at all. It would naturally be difficult to lay down any hard and fast rule as to the time, which should be allowed to an accused person in any given case. However, speaking generally, it would, we think, be reasonable to insist upon giving and accused person at least 24 hours to decide whether or not he should make confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded. In our opinion, in the circumstances of this case, it is impossible to hold the view that enough time was given to the accused to think over the matter." In the above referred case, the accused person was given about half an hour to think about the statement which he was going to make. In view of the above principle laid down by the Supreme Court, if an accused person is produced from Police custody for recording his confessional statement, he should be given at least 24 hours time, to think over the matter, by remanding to judicial custody. However, such time may be extended for any longer period depending on the facts and circums tances of the case and the mental state of the accused person. 38.
However, such time may be extended for any longer period depending on the facts and circums tances of the case and the mental state of the accused person. 38. Admittedly, in the case at hand, both the accused persons, who were poor, indigent labour, were arrested by the Police on 25.12.1998 and they were produced before the Court for recording their confessional statement on 28.12.1998 after keeping them in custody of peon for about more than three hours. Their statements were recorded on 28.12.1998 after giving them about four hours time, in the office room of the Court. 39. In our considered opinion, if an accused person is produced, directly from Police custody, after keeping him in such custody for about 2-3 or more days, considering the mental condition, anxiety and the agony, suffered by such person, during his stay in the Police custody, after putting searching questions, sufficient time should be given for reflection, after properly cautioning him about the consequence of making a confessional statement, the evidentiary value of the confession, the punishment he may receive for committing the alleged offence and also providing the assurance/protection in clear terms, that in the event of refusal to make confession, he would not be sent to Police custody again. 40. As the accused persons had to spend more than three days in Police custody, considering their suffering, mental condition, agony and tension etc., they should have been given time to have good sleep, relax freely and think over the matter coolly so as to decide whether they should make confession or not, after knowing the consequence of making confession, its evidentiary value and the protection to which he is entitled to, in the event of refusal to confess. Accused person should also be informed that he has a right to consult his Counsel and if he is not in a position to engage a Counsel, due to economic and social condition, he is entitled to legal assistance. But in the present case, no such opportunity was given. There fore, the confession cannot be treated as voluntarily made. 41.
Accused person should also be informed that he has a right to consult his Counsel and if he is not in a position to engage a Counsel, due to economic and social condition, he is entitled to legal assistance. But in the present case, no such opportunity was given. There fore, the confession cannot be treated as voluntarily made. 41. In view of the above, considering entire aspect of the matter, we have no hesitation in holding that four hours time, given to the accused persons, as stated by the learned Magistrate, in his evidence and as mentioned in Exhibit 3 and 4, was not sufficient so as to ensure voluntariness, on the part of the accused persons. Therefore, in view of the above discus sions, we do not find it safe to accept the said confessional statements as true and voluntary statement. Hence, the same cannot be accepted as substantive evidence against the appellants. If the said confessional statements are not accepted as evidence, then there remains no other evidence to bind the appellants with the alleged crime. 42. In view of what has been discussed above, we find that the prosecution has failed to prove the charges, brought against the appellants, beyond all reasonable doubt. Accordingly, we find sufficient merit in this appeal requiring interference with the impu gned conviction and sentence. 43. The appeal is allowed and the impugned conviction and sentences are set aside. Consequently, the appellants are acquitted. They be set at liberty forthwith, if not required in any other case. 44. Before we part with this judgment, we appreciate the assistance rendered by Mr. T. J. Mahanta, learned Amicus Curiae. We order that an amount of Rs. 5,000/- be paid to the learned Amicus Curiae as his remuneration. 45. For the sake of brevity, without repeating the discussions made in the Criminal Appeal No.93 (J) 72005 (disposed of on 22.12.2011), with regard to the victim compensation, as provided by Section 357 AI.P.C, we make the following directions: (1) As an interim relief, and without prejudice to the right of the dependants of the victim to claim higher amount, an amount of Rs. 50,000/- be deposited by the State Government with the District Legal Services Authority of Bongaigaon District within a period of two months from this date.
50,000/- be deposited by the State Government with the District Legal Services Authority of Bongaigaon District within a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependant(s), who suffered loss and injury as a result of death of the deceased and also if such depen dent(s) or legal representative(s) need any rehabilitation." (2) Upon such enquiry, if it is found that the dependent(s), if any, need rehabi litation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. It is made clear that if the District Legal Services Authority, after due enquiry, arrive at the findings that there is no dependent(s) or that the dependent(s) of the deceased/victim does not require any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs. 50,000/-, without delay, in favour of the; State Government. Let a copy of this judgment and order be furnished to the Chief Secretary to the Government of Assam, for doing the needfull. Return the LCR. _____________