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2012 DIGILAW 252 (GAU)

White Ali (M. D. ) v. State of Assam

2012-02-23

A.C.UPADHYAY, ADARSH KUMAR GOEL

body2012
JUDGMENT A.C. Upadhyay, J. 1. This appeal is directed against the judgment and order dated 2.6.2005 passed by the 2nd Addl. Sessions Judge, Sivasagar in Sessions Case No. 75(S-C)/2003, whereby, the appellant was convicted under Section 302 and 326 IPC and sentenced to undergo Rigorous Imprisonment for life and also to pay a find of Rs. 2,000/- with default stipulation of three (3) months imprisonment, for commission of offence under Section 302 IPC and to undergo RI for two (2) years and to pay a fine of Rs. 500/- with default stipulation of one (1) month imprisonment, for commission of offence under Section 326 IPC. The prosecution story is that on 10.4.2002, Md. Noor Hussain lodged an Ejahar (Ext-1) at Moranhat Police Station, stating, inter alia, that on the same day at about 10 A.M. quarrel took place in between two brothers White Ali and Md. Raju Ali, in respect of some domestic disputes. The appellant gave blows with a Mechi Dao on Raju Ali and his wife Mrs. Albina Begum, for which both of them sustained grievous injuries on their person. As a result of the injury sustained Albina Begum died at the place of occurrence and the injured Raju Ali (PW-10) was shifted to hospital, for treatment of his injuries. 2. On receipt of the Ejahar aforesaid, the Officer-in-Charge of Maranhat Police Station registered a case and launched investigation. In the course of the investigation, the Investigating Officer carried out the inquest on the dead body of the deceased Albina Begum and also prepared the inquest report. The injured Raju Ali (PW-10), was taken to Assam Medical College Hospital, Dibrugarh for treatment. The Investigating Officer also recorded the statement of the witness under Section 164 Cr.P.C. On the date of occurrence, the accused appeared at the Police Station with a Mechi Dao, which was used by him in committing the crime. The Investigating Officer seized the Mechi Dao vide exhibit-4, and arrested the accused. On the next day, i.e. 11.4.2002, the accused was forwarded to the Court with a prayer for recording his confessional statement under Section 164 of Code of Criminal Procedure, 1973. The then learned Sub-Divisional Judicial Magistrate, Charaideo at Sonari Mr. Mazed Ali, PW-16 recorded the confessional statement of the accused-appellant vide Ext.8. 3. On the next day, i.e. 11.4.2002, the accused was forwarded to the Court with a prayer for recording his confessional statement under Section 164 of Code of Criminal Procedure, 1973. The then learned Sub-Divisional Judicial Magistrate, Charaideo at Sonari Mr. Mazed Ali, PW-16 recorded the confessional statement of the accused-appellant vide Ext.8. 3. On completion of the investigation, the Investigating Officer, submitted charge sheet against the accused appellant, alleging commission of offence under Section 302/326 IPC. During the trial, the prosecution examined as many as 16 witnesses including the Medical Officer, who had carried out the autopsy on the dead body of the deceased Albina Begum. The prosecution also examined the Medical Officer, who had examined the injured Raju Ali (PW-10). The statement of the Sub-Divisional Magistrate, PW-16 was also recorded to prove the confessional statement made by the accused-appellant. 4. On conclusion of the trial, the learned Sessions Judge recorded the statement of the accused in terms of the provision of Section 313 CrPC. The accused in his defence statement under section 313 Cr.P.C., retracted the confessional statement made by him and categorically stated that when he was going towards the river to take bath, he saw his brother Raju Ali and sister-in-law Albina Begum, who were lying in injured condition. A Mechi Dao was also lying at a distance of about 5 feet. The accused appellant denied to have gone to the Police Station with a Dao in his hand. He stated that he had gone to the Police Station with a Sabol (an instrument for digging earth), a Gamucha (towel). He also denied the seizure of any Dao from him by the Police. The accused in his statement under Section 313 CrPC also stated that he had gone to the Police Station after having seen the dead body of his sister-in-law Albina Begum, in order to inform the Police, where he was detained in the lock up by the police. Further, the accused-appellant also took the stand that he was produced before the Magistrate at about 1.30 P.M. in the Court, for the purpose of recording his confessional statement and his statement was recorded immediately on his production and he was not given any time for reflection. The accused further clarified in his statement that he made the confessional statement as tutored by police. 5. The accused further clarified in his statement that he made the confessional statement as tutored by police. 5. On conclusion of the trial, the learned Sessions Judge convicted the appellant as aforesaid giving rise to this appeal. 6. In order to appreciate the argument advanced by the learned counsel for the appellant as well as the learned Public Prosecutor, we would like to discuss herein below the core of the prosecution evidence. 7. From the evidence on record, we find that except the injured PW-10, none of the witnesses had seen the actual assault on the deceased Albina Begum. PW-10 is the brother of the accused of but he was declared hostile by the prosecution, as he disowned his own statement recorded under Section 164 CrPC and this statement recorded under Section 161 CrPC before the Investigating Officer. 8. However, PW-9 who is a local witness stated to have heard that a person appeared before Moranhat Police Station, after hacking two people. PW-9 straightway came to the police station to find the accused White Ali detained in lock up of the Police Station. PW-11 Sailen Rajkowar aged about 79 years, is a Freedom Fighter, who happened to be in the Police Station, when accused Ali presented himself in the Police Station, with a Dao in his hand. According to PW-1, the police accordingly, seized the Dao and put the accused in the lock up. PW-11 also proved the seizure list exhibit-4, the Dao, which was seized from the possession of the accused appellant. Similarly, PW-12, who is a seizure witness, had a stationary shop in front of the Moranhat Police Station. PW-12 came to the Police Station, when the accused appeared with a 'Mechi Dao' in his hand. PW-12 also proved the seizure of Dao from the accused in the Police Station. 9. PW-8, Dr. Dilip Kumar Baruah, a Senior Medical and Health Officer at Sibsagar Civil Hospital carried out the post mortem examination of the deceased Albina Begum aged about 25 years and recorded the findings on the post mortem examination as below - (1) External appearance : Dead body of an adult female in fresh condition. Rigor mortis present. Whole body was stained with clotted blood. Wounds : i) Incised wound on scalp in its middle part. Longitudinal in direction. Size 6" X 1 and 1/2 X scalp unit. ii) Incised wound below right elbow joint. Rigor mortis present. Whole body was stained with clotted blood. Wounds : i) Incised wound on scalp in its middle part. Longitudinal in direction. Size 6" X 1 and 1/2 X scalp unit. ii) Incised wound below right elbow joint. Size 4" X 3" X 1 and 1/2 iii) Incised wound on right arm with cutting of right humorous bone. Size 4" X 2" X 4". All the wounds are ante mortem in nature. (2) Scalp injury described in would No. 1 skull. Fracture of right frontal and temporal bone. Brain injury of the frontal and temporal lobe of the brain with large hematoma. Large amount of clotted blood present inside the hematoma. (3) Thorax: All the organs healthy and heart empty on both sides. (4) Abdomen: All the organs healthy stomach contains half digested food particles. Opinion - The cause of death of the deceased in my opinion is due to coma as a result of sustaining the head injury by the deceased. Injury No. 1 is sufficient to cause the death of a person in ordinary course of nature. Injury No. III if immediate treatment is not given it may cause the death of a person. All the 3 injuries found on the dead body of the deceased Albina Begum may be caused by sharp weapon like the dao, marked as M Ext. 1. Ext.3 is my post mortem report. Ext.3(1) is my signature. Dr. Diganta Borgohain medically examined Raju Ali (PW-10) and found the following injuries on his person - 1) Cut injury over the left occipital area of his head, size 4 cm x 1 cm x scalp deep. 2) Lecerated wound over his left arm, size 4 cm x 2 cm x muscle deep. 3) Lacerated wound over his left wrist size 1 cm x 0.5 cm x skin deep. The injured was referred to plastic surgery Ward on 26.4.2004, by Dr. Utpal Bordoloi Asstt. Proff plastic surgery Deptt. 10. According to PW-8 all injuries sustained by the deceased were ante-mortem in nature and the cause of death was due to coma, as a result of injury sustained by the deceased, which was sufficient to cause death in ordinary course of nature. 11. Utpal Bordoloi Asstt. Proff plastic surgery Deptt. 10. According to PW-8 all injuries sustained by the deceased were ante-mortem in nature and the cause of death was due to coma, as a result of injury sustained by the deceased, which was sufficient to cause death in ordinary course of nature. 11. On careful scrutiny of the evidence of PW-16, Shri Mazed Ali, learned Sub Divisional Judicial Magistrate, (M) at Charaideo, Sonari, it appears that on 11.4.2002 the accused was produced before him by the Investigating Officer with a prayer for recording his confessional statement under Section 164 CrPC. According to PW-16, the accused was produced before him at about 10.30 A.M. in the morning for recording his confessional statement. Learned Magistrate decided to record the confessional statement of the accused and accordingly cautioned him by explaining the consequences of making the confessional statement. Thereafter, he placed the accused in his chamber till 3.30 p.m. for reflection. At 3.30 P.M., the accused was once again cautioned and explained the consequences of making the confessional statement. PW-16 had also put some searching question to the accused-appellant and after being satisfied that the accused is willing to make the confessional statement voluntarily he recorded the statement of the accused-appellant vide Ext-8. 12. PW-16 stated in his deposition as well gave his certificate in Ext-8 (confessional Statement) that the accused had justified before him, the killing of the deceased and the crime committed by him at the time of recording confessional statement. According to PW-16, that is the reason why he had certified the confessional statement of the accused to be voluntary. 13. PW-15, Investigating Officer, on receipt of ejahar from Noor Husain registered a case and launched investigation. In the course of investigation PW-15 visited the place of occurrence and interrogated the informant at the place of occurrence. He found Raju Ali (PW-10) with grievous injury on his person and also found Albina Begum lying dead. PW-15 sent injured Raju Ali to Moran Hospital, for treatment of his injuries. PW-15 also recorded the statement of the witnesses, who were present in the place of occurrence. On enquiry, during search, PW-15, could come to know that accused had left for police station to surrender. On his arrival at police station, PW-15, met the accused. He also interrogated accused. PW-15 also recorded the statement of the witnesses, who were present in the place of occurrence. On enquiry, during search, PW-15, could come to know that accused had left for police station to surrender. On his arrival at police station, PW-15, met the accused. He also interrogated accused. PW-15 also deposed that the accused had brought a 'Mechi Dao' (sharp cutting weapon) to the police station, which was seized by him in presence of the witness vide Ext-4. PW-15 also stated accused confessed the guilt before him at the time of producing the Mechi Dao and the statement of the accused was also recorded by him to that effect Thereafter, PW-15 forwarded the accused, for recording the confessional statement before the Court. 14. From the evidence of the prosecution witnesses vis-a-vis the defence stand discussed above, it would be apparent that except PW-1 and PW-10, there was no eye witness to the alleged occurrence. But they have been declared hostile by the prosecution and their earlier statement was put to them. PW-2 was also declared hostile, but she did not witness the occurrence. In cross by prosecution she has denied that PW-1, reported her that accused gave dao blows on the deceased and PW-10. But in examination-in-chief PW-2 admitted that hearing cries as 'Katileo, Katileo,' she saw Albina and Raju (PW-10) were hacked. PW-3, is the informant, PW-4, PW-5 and PW-6 are not witnessed to the occurrence. PW-6 has stated that Babati Ali (PW-1) had told him that accused hacked the deceased. But PW-1 in his chief did not state that he had reported the incident to PW-6, PW-5 stated that from his neighbours he came to know that accused hacked Albina, the deceased and in the same incident Raju (PW-10) also sustained injuries. But PW-5 has not disclosed the names of the neighbours. Prosecution has also not examined any neighbours of the accused and deceased. PW-7 is the witness of in quest. PW-9, 11, 12 are only the seizure witnesses of the Mechi Dao, PW-14 is the scribe. 15. PW-16 has stated that he gave certificate as to the voluntaries of the confessional statement, made by the accused Ext.8(7) is the certificate along with his signature. He has stated that on 11.4.2002 accused White Ali, was produced before him at 10.30 A.M. from Moranhat Police Station. 15. PW-16 has stated that he gave certificate as to the voluntaries of the confessional statement, made by the accused Ext.8(7) is the certificate along with his signature. He has stated that on 11.4.2002 accused White Ali, was produced before him at 10.30 A.M. from Moranhat Police Station. He cautioned the accused, explained the accused consequences of making the confessional statement and given time in his chamber under the supervision of the Peod Dhiren Das. At 3.30 P.M. accused was again produced before him, he was again cautioned. The accused expressed his willingness to make his confession. He put some searching question to the accused and satisfied from his replies that accused is willing to make the confession he recorded the confession. Ext.8(1) is the confessional statement. PW-16 was cross-examined at length; During cross he has denied that accused was not given sufficient time for reflection. He has denied that accused was produced before him on 11.4.2002 at 1.30 P.M. He has admitted that in the certificate he has mentioned that accused justified the killings hence he satisfied that his (accused) confession is voluntary. 16. In judging the voluntariness of confessional statement of an accused, justification given by him for the commission of offence is of course relevant. Because confessions are made by the accused only when he is prompted by his conscience to tell the truth. A deliberate and conscious confession of crime made by the offender is reliable piece of evidence. The confessions are made with full knowledge of the nature and consequences of the confession. 17. From the confessional statement Ext.8(1), we find that accused was arrested on 10.4.2002 and produced before the PW-16, for recording confession on 11.4.2002 at 10.30 A.M. In the confessional statement, Ext.8(1), the recording Magistrate has not recorded complaint regarding ill treatment or pressure. The certificate given by P.W.16 that the confessional statement was voluntarily made is incomplete. P.W.16 has given reasons for which he believed that confessional statement was voluntarily made. Further though from the evidence of I.O. we find that accused was forwarded to court from Moranhat RS. at 10 A.M. by bus. I.O. has stated that it takes one hour to the court from the RS. by bus. P.W.16 has given reasons for which he believed that confessional statement was voluntarily made. Further though from the evidence of I.O. we find that accused was forwarded to court from Moranhat RS. at 10 A.M. by bus. I.O. has stated that it takes one hour to the court from the RS. by bus. Except assessment and guess work, I.O. has not mentioned the distance from the police station to the Court, therefore, there is no reason to discard the authenticity of the Court record maintained by the Magistrate. The record of the Court speaks that the accused was produced before the P.W. 16 at 10.30 A.M., therefore there is no reason to disbelieve the statement of PW-16 regarding the time of production of the accused in his Court. 18. We have gone through the decisions relied by the learned defence counsel regarding recording of confessional statement. The law regarding recording of confessional statement has been laid down by the Apex Court. To ensure that the confession made is voluntary and true a Magistrate, who records judicial confession under Section 164 CrPC is required to take all possible measure to make accused feel that he is completely free to make or not to make confession and that if he makes a confession, it may be used against him. On going through the confessional statement Ext.8(1), we find that the learned Magistrate put all the searching question to the accused which are in the Item No. 5 of the Form, Ext.8. PW-16 also asked the accused, why he wants to make the confession. Question put by PW-16 before recording the confession clearly show that specific questions were put to him, to rule out physical or mental pressure was put on him by the Investigating Agency. The accused was given assurance that he was not to make confessions out of fear and he would not be handed over to the police. 19. It would be pertinent to depict herein the questions which were put by PW-1, before recording the confession. 5. "I now carefully explain afresh to the accused :- (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. 5. "I now carefully explain afresh to the accused :- (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 and sign my name here under in taken that these matters have been fully explained and that he appear and that he appear to me understand them. The item in column No. 5 have been explained to the accused and he finally understand its import (10.30 a.m.) Repealed at 3.30 p.m. Ext 8(4) Sd/- Illegible Sd/- Illegible 11.42002 Ext.8(5) Sd/- Illegible 6. In order to ascertain whether the accused is prepared to make a statement of his own free will, he is next examined as follows - Q. 1 Do you know that I am a magistrate, and not a police officer? Ans : Yes, I know that. Q2 Do you know that you are not bound to confess ? Ans : I know that. Q3 Do you know that this confession may be used as evidence against you? Ans: Yes, I know that. Q. 4 Do you know that you need not have to confess out of fear from others? Ans: I am making confession on my own. Q.5 Do you know that you should not make false statement? Ans: I will not make false statement. Q.6 Do you know that even if you do not make a confession, you will not be handed over to police? Ans: I know that. Q. 7 Why do you want to make a confession? Ans: I did the killing. That is why I want to confess. Sd/-Md. White Ali 20. The accused appellant, after the above auction and warning given by P.W. 16, had made the following confessional statement before the Court: My brother Raju Ali has been living in my neighbour hood by raising a house separately. Around 10 am yesterday, I came home to take meal. I found Raju feeling the banana grove, jackfruit trees growing in my land. I asked him to do so. He then asked me to leave that plot of land. Around 10 am yesterday, I came home to take meal. I found Raju feeling the banana grove, jackfruit trees growing in my land. I asked him to do so. He then asked me to leave that plot of land. Altercation ensued between us. Thereafter, Raju and his wife came chasing me taking along dao and lathi. My sister-in-law Albina dealt lathi blow on my back. Raju sustained cut injury in his head. Thereafter I hacked Albina with the dao in my hand. Both of them fell there. Taking the dao, I appeared in the Moranhat P.S. 21. Mr. P. Bora, learned counsel appearing for the appellant pointed out that there was no eye witness to the occurrence and the only injured witness PW-10, who was the brother of the accused was declared hostile. Therefore, conviction of the accused entirely on the basis of retracted confessional statement, exhibit-8, is not legally sustainable. Learned counsel appearing for the appellant pointed out that the learned Magistrate, who recorded the confessional statement did not comply with the provision of Section 164 CrPC, as well as the direction of the Apex Court and the High Court relating to the recording of the confessional statement. Learned counsel pointed out that though the accused-appellant was produced before the Court at 10.30 A.M., but generally accused persons are produced before the Court at 1.30 P.M., therefore, the statement of the accused appellant, which was recorded at 3.30 P.M., clearly shows that the learned Magistrate did not give enough time to the accused-appellant, for reflection. Referring to the statement of the accused under Section 313 CrPC, learned counsel submitted that the appellant categorically retracted the confessional statement made by him before the learned Magistrate and also stated that such statement was made by him on the direction of the police. 22. Learned counsel for the appellant referred to the decision of the Hon'ble Supreme Court reported in (2004) 7 SCC 779 : Parmananda Pegu Vs. State of Assam, wherein the Apex Court made the following observation regarding retracted contention. 17. The foremost amongst the factors that are sought to be relied upon by the prosecution is the retracted confession of the appellant recorded under Section 164 CrPC. The confession has been extracted supra in verbatim. State of Assam, wherein the Apex Court made the following observation regarding retracted contention. 17. The foremost amongst the factors that are sought to be relied upon by the prosecution is the retracted confession of the appellant recorded under Section 164 CrPC. The confession has been extracted supra in verbatim. Before acting on a confession made before a Judicial Magistrate in terms of Section 164, the Court must be satisfied first that the procedural requirements laid down in sub-sections (2) to (4) are complied with. These are salutary safeguards to ensure that the confession is made voluntarily by the accused after being apprised of the implications of making such confession. Looking at the confessional statement (Ext. 8) coupled with the evidence of PW 22, the then Additional Chief Judicial Magistrate, Dhemaji, we have no doubt in our mind that the procedural requirements have been fulfilled. Inter alia, PW 22 deposed that after cautioning the accused that the confessional statement, if made, will be used in evidence against them, he gave three hours' time for reflection during which the accused were kept in a room attached to the court in the immediate presence of an office peon. PW 22 further stated that it appeared to him that the accused made the statement voluntarily. A memorandum as required by sub-section (4) was also recorded. Thus the first requirement for acting on a confession is satisfied, but that is not the end of the matter. The court, called upon to consider the evidence against the accused, should still see whether there are any circumstances appearing from the record which may cast a doubt on the voluntary nature of the confession. The endeavour of the court should be to apply its mind to the question whether the accused was free from threat, duress or inducement at the time of making the confession. In doing so, the court should bear in mind, the principle enunciated in Pyare Lal Bhargava v. State of Rajasthan that under Section 24 of the Evidence Act, a stringent rule of proof as to the existence of threat, duress or inducement should not be applied and a prima facie opinion based on evidence and circumstances may be adopted as the standard laid down. To put it in other words, "on the evidence and the circumstances in a particular case it may appear to the court that there was a threat, inducement or promise, though the said fact is not strictly proved" 18. Having thus reached a finding as to the voluntary nature of a confession, the truth of the confession should then be tested by the court. The fact that the confession has been made voluntarily, free from threat and inducement, can be regarded as presumptive evidence of its truth. Still, there may be circumstances to indicate that the confession cannot be true wholly or partly in which case it loses much of its evidentiary value. 19. In order to be assured of the truth of confession, this Court, in a series of decisions, has evolved a rule of prudence that the court should look to corroboration from other evidence. However, there need not be corroboration in respect of each and every material particular. Broadly, there should be corroboration so that the confession taken as a whole fits into the facts proved by other evidence. In substance, the court should have assurance from all angles that the retracted confession was, in fact voluntary and it must have been true. 23. The law on the subject of retracted confession has been succinctly laid down by a three-Judge Bench of the Apex Court in Subramania Goundan Vs. State of Madras.1958 Cri LJ 238 which lays down : The next question is whether there is corroboration of the confession since it has been retracted. A confession of a crime by a person, who has perpetrated it, is usually the outcome of penitence and remorse and in normal circumstances is the best evidence against the maker. The question has very often arisen whether a retracted confession may form the basis of conviction if believed to be true and voluntarily made. For the purpose of arriving at this conclusion the court has to take into consideration not only the reasons given for making the confession or retracting it but the attending facts and circumstances surrounding the same. It may be remarked that there can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially. It may be remarked that there can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially. It was laid down in certain cases one such being Kesava Pillai, In ILR LIII Mad 160 that if the reasons given by an accused person for retracting a confession are on the face of them false, the confession may be acted upon as it stands and without any corroboration. But the view taken by this Court on more occasions than one is that as a matter of prudence and caution which has sanctified itself into a rule of law, retracted confession cannot be made solely the basis of conviction unless the same is corroborated. One of the latest cases being Balbir Singh v. State of Punjab, AIR 1957 SC 216 but it does not necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated, nor is it essential that the corroboration must come from facts and circumstances discovered after the confession was made. It would be sufficient, in our opinion, that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession. 24. In (2006) 12 SCC 268 : Abubhai Udesinh Parmar Vs. State of Gujarat held that the court must give sufficient time to an accused to ponder over as to whether he would make confession or not. The Apex Court observed as follows : 16. The appellant was produced from judicial custody but he had been in police custody for a period of 16 days. The learned Magistrate should have taken note of the said fact. It would not be substantial compliance of law. What would serve the purpose of the provisions contained in Section 164 of the Code of Criminal Procedure are compliance with spirit of the provisions and not merely the letters of it. What is necessary to be complied with, is strict compliance with the provisions of Section 164 of the Code of Criminal Procedure, which would mean compliance with the statutory provisions in letter and spirit. We do not appreciate the manner in which the confession was recorded. What is necessary to be complied with, is strict compliance with the provisions of Section 164 of the Code of Criminal Procedure, which would mean compliance with the statutory provisions in letter and spirit. We do not appreciate the manner in which the confession was recorded. He was produced at 11.15 a.m. The first confession was recorded in 15 minutes' time which included the questions which were required to be put to the appellant by the learned Magistrate for arriving at its satisfaction that the confession was voluntary in nature, truthful and free from threat, coercion or undue influence. It is a matter of some concern that he started recording the confession of the appellant in the second case soon thereafter. Both the cases involved serious offences. They resulted in the extreme penalty. The learned Magistrate, therefore, should have allowed some more time to the appellant to make his statement. He should have satisfied himself as regards the voluntariness and truthfulness of the confession of the appellant. 25. In (2007) 12 SCC 230 ; Aloke Nath Dutta & Ors. Vs. State of West Bengal culled out the value of the confessional statement made by the accused in the following words. 113. The value of a retracted confession is now well known. The court must be satisfied that the confession at the first instance is true and voluntary. (See Subramania Goundan v. State of Madras AIR 1958 SC 66 : 1958 Cri LJ 238 and Pyare Lal Bhargava v. State of Rajasthan AIR 1963 SC 1094 : (1963) 2 Cri LJ 178) 114. Caution and prudence in accepting a retracted confession is an ordinary rule. (See Puran v. State of Punjab (I) AIR 1953 SC 459 :1953 Cri LJ 1925. Although if a retracted confession is found to be corroborative in material particulars, it may be the basis of conviction. (Balbir Singh v. State of Punjab AIR 1957 SC 216 : 1957 Cri LJ 481 115. We may notice that in 1950s and 1960s corroborative evidence in "material particulars" was the rule. (See Puran, Balbir Singh and Nand Kumar v. State of Rajasthan (1963) 2 Cri LJ 702 (SC). A distinctiveness was made in later years in favour of "general corroboration" or "broad corroboration". We may notice that in 1950s and 1960s corroborative evidence in "material particulars" was the rule. (See Puran, Balbir Singh and Nand Kumar v. State of Rajasthan (1963) 2 Cri LJ 702 (SC). A distinctiveness was made in later years in favour of "general corroboration" or "broad corroboration". (See for "General Corroboration" - State of Maharashtra v. Bharat Chaganlal Raghani (2001) 9 SCC 1 : 2002 SCC (Cri) 377; "General trend of Corroboration" - Jameel Ahmed v. State of Rajasthan (2003) 9 SCC 673 : 2003 SCC (Cri) 1853 and "Broad Corroboration" - Parmananda Pegu v. State of Assam (2004) 7 SCC 779 :2004 SCC (Cri) 2081) 116. Whatever be the terminology used, one rule is almost certain that no judgment of conviction shall be passed on an uncorroborated retracted confession. The court shall consider the materials on record objectively in regard to the reasons for retraction. It must arrive at a finding that the confession was truthful and voluntary. Merit of the confession being the voluntariness and truthfulness, the same, in no circumstances, should be compromised. We are not oblivious of some of the decisions of this Court which proceeded on the basis that conviction of an accused on the basis of a retracted confession is permissible but only if it is found that retraction made by the accused was wholly on a false premise. (See Balbir Singh) 117. There cannot, however, be any doubt or dispute that although retracted confession is admissible, the same should be looked at with some amount of suspicion - a stronger suspicion than that which is attached to the confession of an approver who leads evidence in the court. 26. In reply to the above contention Mr. Z. Kamar, learned P.P. submitted that even on the basis of confessional statement the accused could be convicted if the confessional statement is found to voluntary true and trustworthy. In support of his contention, the learned Public Prosecutor, relied on the decision reported in Shankaria Vs. State of Rajasthan, (1978) 4 SCC 19. Another circumstance, which militates to some extent against the contention canvassed on behalf of the appellant, is that the confession was not retracted at the earliest. It was made on June 14, 1974. The trial commenced on January 10, 1975 when the charges were framed and read over to the accused. State of Rajasthan, (1978) 4 SCC 19. Another circumstance, which militates to some extent against the contention canvassed on behalf of the appellant, is that the confession was not retracted at the earliest. It was made on June 14, 1974. The trial commenced on January 10, 1975 when the charges were framed and read over to the accused. This was the earliest opportunity at which he could retract the confession, particularly when he was defended by an experienced counsel. But he did not do so on this occasion, though he pleaded not guilty to the charges. 20. The accused was examined under Section 313 CrPC on June 14, 1975. It was on this day, during his examination, he, for the first time, retracted the confession. He denied even the factum of making this confessional statement (Ex. P-39) when the same was read over to him. In this connection, he stated: "I was not in senses at that time. 1 was severely beaten by the police and was forced to appear before the Magistrate. Thereafter, what had happened, I did not know because I had become unconscious. I was intoxicated with wine in the Rest House Raisinghnagar, before I was produced before the Magistrate. I was produced before the Magistrate in the state of intoxication". 21. This belated plea of beating by the Police, was not credible. No question was put to the investigating officers, S/Shri Kashi Prasad Srivastava (PW 16) and Bhanwar Lal (PW 18). in cross-examination to show that they had beaten, threatened or otherwise induced the accused to make the confession. 22. Equally unfounded is the plea that wine was administered to him (by the Police) in the Rest House before producing him before the Magistrate for recording the confession. Firstly, the accused was in the judicial lock-up for the preceding two days, from where he was brought under the orders of the Magistrate and produced at 7.15 a.m. Secondly, if the accused was then dead drunk, this fact could not have escaped the notice of the Judicial Magistrate. 23. The Magistrate, Shri Bansal was examined as PW 7. One of the questions put to him in cross-examination by the defence was: "Did you enquire from the accused as to how the Police had meted out good treatment to him? 23. The Magistrate, Shri Bansal was examined as PW 7. One of the questions put to him in cross-examination by the defence was: "Did you enquire from the accused as to how the Police had meted out good treatment to him? Shri Bansal replied: "The accused did not tell me that the Police had given him wine, meat and thus treated him well. He stated that good treatment was meted out to him". 24. The story propounded by the accused that at the time when he was produced before the Magistrate for recording his confession, he was so dead-drunk that he did not know what he was doing, was too fantastic to be believed. If the accused was then reeking of alcohol and unfit to make a statement - as he now wants to have it believed - the Magistrate would not have failed to note this fact. It is impossible to believe that the confessional statement was not made by the accused but was cooked up by the Judicial Magistrate himself. 27. Mr. Kamar, learned P.P. by referring to the cross examination of PW-16, submitted that the learned Magistrate in his deposition categorically stated that the accused was produced at 10.30 A.M. in the morning and his statement was recorded by him at 3.30 P.M.. He also denied the suggestion that the accused persons are generally produced before the Court from different Police Station at 1.30 P.M. and also denied that the accused appellant was produced before him on 11.4.2002 at 1.30 P.M. 28. As rightly pointed out by learned P.P. that there is no scope to disbelieve the detailed account of PW-16, a Judicial officer, who spoke from the record of the proceedings, and instead rely on the general practice of producing accused in a Court as emphasized by the learned counsel. When the Magistrate himself, in his deposition categorically stated the fact of production of the accused before him at 10.30 A.M. and recording his statement at 3.30 P.M., there is no reason to disbelieve such evidence on record. 29. In Bhagwan Singh Vs. State of M.P.. (2003) 3 SCC 21 the Hon'ble Apex Court held that the first precaution that a Judicial Magistrate is required to take is to prevent forcible extraction of confession by the prosecuting agency [See State of U.P. Vs. Singhara Singh, AIR 1964 SC 358 ]. 29. In Bhagwan Singh Vs. State of M.P.. (2003) 3 SCC 21 the Hon'ble Apex Court held that the first precaution that a Judicial Magistrate is required to take is to prevent forcible extraction of confession by the prosecuting agency [See State of U.P. Vs. Singhara Singh, AIR 1964 SC 358 ]. It has also held by the Apex Court in the case of Shivappa Vs. State of Karnataka : 1995 (2) SCC 76 that the provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. It has also been held that the Magistrate in particular should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. He should be granted sufficient time for reflection. He should also be assured of protection from any sort of apprehended torture or pressure from police in case he declines to make a confessional stat The Supreme Court in 'Shankaria Vs. State of Rajasthan' (1978) 3 SCC 435 noted the twin tests to be applied to evaluate a confession : 30. Whether the confession was perfectly voluntary; and if so, whether it is true and trustworthy. It has been further indicated that if the first test is not satisfied the question of applying the second test does not arise. The Court pointed out one broad method by which a confession can be evaluated. 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 case. If on such examination and comparison, the confession appears to be a probable 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. 31. In 'Paramananda Pegu V. State of Assam'- (2004) 7 SCC 779 the Court dealt with the expression 'corroboration of material particulars. 31. In 'Paramananda Pegu V. State of Assam'- (2004) 7 SCC 779 the Court dealt with the expression 'corroboration of material particulars. The said expression does not imply that there should be meticulous examination of the entire material particulars. It is enough that there is broad corroboration in conformity with the general trend of the confession. Having thus reached a finding as to the voluntary nature of a confession, the truth of the confession should then be tested by the court. The fact that the confession has been made voluntarily, free from threat and incumbent, can be regarded us presumptive evidence of its truth. Still, there may be circumstances to indicate that the confession cannot be true wholly or partly in which case it loses much of its evidentiary value. In order to be assured of the truth of confession, the Court, in a series of decisions, has evolved a rule of prudence that the court should look to corroboration from other evidence. However, there need not be corroboration in respect of each and every material particular. Broadly there should be corroboration so that the confession taken as a whole fits into the facts proved by other evidence, in substance, the court should have assurance from all angles that the retracted confession was, in fact, voluntary and it must have been true. 32. In this case, from the evidence of the Judicial Magistrate (PW-16) it appears that all such precaution as indicated above were taken before recording the judicial confession. The accused surrendered before the police with the weapon of assault immediately after the occurrence and on the very next day morning the accused was forwarded to the Court for recording confessional statement. There is no allegation of physical and mental torture by the police during police custody, in the statement of the accused under section 313 Cr.P.C. The reasons given by an accused appellant for retracting the confession are on the face of them false. 33. The law regarding principles on which the culpability of the accused is to be judged by circumstantial evidence has been well settled. In Sharad Birdhichand Sarda Vs. 33. The law regarding principles on which the culpability of the accused is to be judged by circumstantial evidence has been well settled. In Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622 , the Supreme Court on consideration of all its earlier judgments on the point has called out the following five principles relating to circumstantial evidence, very aptly described as the 'Panchasheel' of circumstantial evidence : 1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned, must or should and not 'may be' established. 2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. 3) The circumstances should be of a conclusive nature and tendency. 4) they should exclude every possible hypothesis except the one to be proved, and 5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 34. In Jaharlal Das Vs. State of Orissa, AIR 1991 SC 1388 , the Supreme Court has held as follows– It is well settled that the circumstantial evidence in order to sustain the conviction must satisfy three condition (1) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused (iii) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. 35. In the instant case, apart from the confessional statement, the following circumstances are against the accused which are as follows – 1) The deceased and injured were found lying with cut injury. The accused was seen at the scene of occurrence, which the accused admitted. 35. In the instant case, apart from the confessional statement, the following circumstances are against the accused which are as follows – 1) The deceased and injured were found lying with cut injury. The accused was seen at the scene of occurrence, which the accused admitted. 2) The Doctor found cut injuries on the dead body of Albina, the deceased and PW-10, Raju Ali, the injured. The star witness, own brother of the accused who was severely assaulted and injured together with the deceased turned hostile. 3) Dr. Dilip Kr. Baruah, P.W. 8, who carried out the Post Mortem examination of the deceased opined that the Mechi Dao, M.Ext. 1 seized by the police from the accused may cause the type of injuries sustained by the deceased. 4) The accused surrendered before the Police Station with a Mechi Dao. 5) Accused asserted in his statement under Section 313 Cr.P.C. that he had shouted by saying "katileo-katileo" at the place of occurrence. 6) The accused made his confessional statement under Section 164 Cr.P.C. before a Judicial Magistrate. 36. Even though the accused appellant subsequently, on conclusion of the trial, retracted the confession made by him, but in our opinion, the circumstantial evidence noted above, coupled with the confession made by him tell a tale, which is consistent with the prosecution case. In view of the above, we are of the firm view that the confessional statement was made by the accused appellant voluntarily, free from threat and inducement, which can be relied on. On a careful consideration of the entire materials on record, discussed above, we do not find sufficient materials to interfere with the findings of the learned 2nd Addl. Sessions Judge, Sivasagar, in Sessions Case No. 75(S-C)/2003. Consequently, the appeal filed by the appellant stands dismissed. Appeal dismissed.