Judgment : Per Virender Singh, C.J. 1. In all three accused faced the trial, namely, Babulal Mahto, Mahesh Sao and Jitan Mahto, appellant herein, for the charge of Section 302, 394, 411 and 120B IPC. Jitan Mahto and Babulal Mahto stand convicted for the charge under section 302, 394 and 120B IPC and sentenced to life imprisonment under section 302/120B IPC and to imprisonment for 10 years under section 394 IPC. Both the sentences have been ordered to run concurrently. However, Mahesh Sao has been held guilty under section 411 IPC only and sentenced to 3 years. He has not preferred any appeal. 2. Babulal Mahto preferred a separate appeal in this Court bearing Cr.Appeal (DB) No.1304/2004, which has been disposed of by this Court, vide order dated 28th November, 2011. Babulal Mahto, by that time, was released from jail after serving his sentence. 3. The present appeal has been filed by Jitan Mahto @ Pagla. We have given priority to the instant appeal as the Registry has indicated the custody period of the appellant as 19 years 11 months and 18 days. Vide our last order, we directed the State Counsel to place on record the latest status of the custody period of the appellant from the concerned Superintendent of Central Jail, Hazaribagh. Mr.Panjak Kumar, learned State Counsel, after getting the required information from the concerned quarters, states that the appellant was released from the jail on 15.11.2011 after serving his sentence including remission earned by him. 4. Be that as it may, the instant appeal after having been admitted has been heard on merits. 5. In short the case of prosecution as one finds from the fardbeyan (initial statement) of one Manish Kumar Sahu (P.W.3) recorded on 11-07-1994 at about 10.15 A.M is that informant along with his younger brother had gone to school at about 6.45 A.M on the day of occurrence and at that time his mother and servant Babulal were present in house. At about 10 A.M., the driver of informant namely Baijnath Ram came to school and informed the informant that his mother was killed, whereupon he reached at his house and saw the dead body of his mother lying on bed. At about 10 A.M., the driver of informant namely Baijnath Ram came to school and informed the informant that his mother was killed, whereupon he reached at his house and saw the dead body of his mother lying on bed. Informant also noticed two-three incised injuries on the neck of his mother, one black towel inserted in her mouth, one red towel smeared with blood belonging to his servant Baijnath lying on bed and two blood smeared daggers lying beside the dead body. Informant found that the almirah was open and his father's licenced revolver, ornaments, one black coloured bicycle and other articles were found missing. Informant's servant namely Babulal Mahato was found absent, hence he suspected the complicity of servants as well as his companions. 6. On the aforesaid allegations, formal FIR bearing 391/1994 u/s 302 and 394 of Indian Penal Code came to be registered in police station Dhanbad against Babulal Mahato, investigation of which was undertaken by police inspector Ashok Kumar P.W 12. During investigation police arrested appellant along with FIR named accused persons and others, who confessed their guilt before learned judicial Magistrate Mr. Pradeep Nath Tiwary P.W.15, who recorded their confessional statement in terms of section 164 Cr.P.C.. Police also recovered the looted one pair golden earrings and cash, which was concealed by appellant in a earthen pot in the courtyard of his house. These recovered articles were identified in TIP by the husband of deceased as his wife's ornaments. The completion of investigation resulted into filing of chalan against accused-appellant namely Jitan Mahato @ Pagla along with four other accused persons, in which accused appellant along with Babulal Mahato was charged for the offences punishable u/s u/s 302, 394, 411 and 120B of the IPC for which appellant (Jitan Mahato @ Pagala) stands convicted and sentenced to life imprisonment for the offence u/s 302/120B and to rigorous imprisonment for 10 years for offence u/s 394 IPC with rider that both the substantive sentences shall run concurrently vide impugned judgment of learned Additional Sessions Judge F.T.C IV Dhanbad. 7. The case of accused-appellant as one finds from his statement recorded under section 313 Cr.P.C. is of denial simplicitor. During cross-examination, it has been suggested to some the prosecution witnesses by learned defence counsel that accused has been falsely implicated, which was denied by the witnesses. 7. The case of accused-appellant as one finds from his statement recorded under section 313 Cr.P.C. is of denial simplicitor. During cross-examination, it has been suggested to some the prosecution witnesses by learned defence counsel that accused has been falsely implicated, which was denied by the witnesses. Further accused has not chosen to adduce any evidence in his defence. 8. Learned counsel for appellant pointed out the certain flaws in the case of prosecution viz; there is no eye witness to occurrence and the circumstances produced by prosecution does not definitely indicate the complicity of appellant; There being vital contradictions in the evidence of witnesses, which go to the root of prosecution case; hence appellant may be extended the benefit of doubt to disturb the conviction as already slapped upon him. 9. Per contra learned A.P.P submitted that there be sufficient evidence on record to prove the guilt of accused as accused-appellant himself confessed his guilt before Judicial Magistrate and narrated his active participation. Police also recovered looted articles of this case from the possession of appellant, which were identified by the husband of deceased. Hence the appeal is devoid of any merit and fit to be dismissed. 10. The prosecution in order to bring home the charge examined altogether 16 witnesses in this case. P.W. 1, Abhishek Kr. Sahu (son of deceased) has stated about the post occurrence scene of P.O. P.W.2 Satish Kr. Shahu has proved his signature on inquest report as well as its preparation by police officer in his presence. P.W.3 Manish Kumar Sahu (informant) has described the post occurrence scene of P.O as well as missing of articles from his house as per FIR and proved his signature on fardbeyan as 1/1. P.W.4 Pravin Parkeria is witness of seizure list, which was prepared at P.O. in his presence. He has proved and exhibited seizure list as Ext-2. P.W.5 Bharat Mishra has stated only that he had seen dead body of Meena Sahu. P.W.6 Pramod Kr. Sahu is the husband of deceased, had identified 20 looted article recovered from accused persons as his own, in T.I.P during investigation, which were released in his favour on 30-08-1994. He has proved and exhibited seizure list as Ext-2. P.W.5 Bharat Mishra has stated only that he had seen dead body of Meena Sahu. P.W.6 Pramod Kr. Sahu is the husband of deceased, had identified 20 looted article recovered from accused persons as his own, in T.I.P during investigation, which were released in his favour on 30-08-1994. As per undertaking given by him at the time of release of the articles in his favour, he, at the time of adducing his evidence, brought golden ornaments, silver articles, cash, revolver, camera and bicycle, in trial court, and proved and exhibited the same, which have been marked as material exhibit-I, II, III, IV, V and VI respectively. P.W.7 Deep Chandeshwar is witness of inquest report, has proved his signature on it as exhibit 1/2. P.W.8 Ashish Jain has stated about post occurrence scene of P.O. P.W.9 Dr. Vinod Kumar, who conducted autopsy over dead body. He has proved P.M report as exhibit 3. P.W.10 Jai Ram Yadav, is the driver of informant, who, in presence of other neighbouring people had pushed the door of house of deceased to open it, having found no response from inside house after knocking the door. He has also stated about post occurrence scene of P.O. and also affirmed the fact that he had informed about occurrence to informant. P.W.11 Kashi Nath Agrawala is seizure list witness, which was prepared at P.O. for articles seized in his presence. P.W.12 Ashok Kumar (investigating officer) P.W.13 Satya Narain Sahu has identified the towel, shirt and trouser, which were recovered from P.O, as they belong to accused persons. P.W.14 Shashi Bhushan Kumhar is seizure list witness, which was prepared for recovery of camera and transistor in his presence. P.W.15 Pradeep Nath Tiwary Judicial Magistrate, who recorded statement of witnesses as well as confessional statement of accused persons including appellant Jitan Mahato @ Pagla. P.W.16 Bhubneshwar Ram is formal witness, has proved six seizure lists prepared by S.I Anil Kumar (deceased) for recovery of looted articles from accused persons, which have been marked as exhibit 2/2 to 2/7. 11. Medical Expert P.W.9 has found following anti-mortem injuries at the time of autopsy over dead body of deceased. (i) Incised wound 2¼” X ½” X muscle deep on the left side of neck at the lower boarder of jaw. 11. Medical Expert P.W.9 has found following anti-mortem injuries at the time of autopsy over dead body of deceased. (i) Incised wound 2¼” X ½” X muscle deep on the left side of neck at the lower boarder of jaw. (ii) Incised wound 1¼”X 1/3” X muscle deep trachea were partly cut in the wound. This wound was situated below 2” of injury no. 1. (iii) Stab wound 3/4"X 1/4"X1" on the left side of the lower part of the neck. In this wound blood vessels carotid artery and vein were found cut. (iv) Incised wound 1/2" X 1/6" into muscle deep at the left angle of lower Jaw. (v) Stab wound 1" X 1/1"X muscle deep on the inner side back at lower part of right forearm. (vi) Stab wound 3/4" X 1/4" X muscle deed on the back of right forearm. Doctor has opined that stab injuries on the neck were caused by sharp cutting and pointed weapon like ‘chhura’. According to P.M report (Ext-3) death was caused due to shock and hemorrhage as a result of above mentioned incised and stab injury caused by sharp cutting weapon. 12. From the factual evidence based on post occurrence scene of P.O coupled with medical evidence as per autopsy report we are of the considered opinion that prosecution has been able to prove the homicidal death of deceased. Prosecution has also been able to bring sufficient evidence viz; looting of articles, its recovery as well as its identification in TIP by the husband of deceased. Therefore, we are of the view that prosecution has also been able to prove the charge under section 394 IPC. 13. So far as evidence showing the complicity of accused appellant namely Jitan Mahato @ Pagala in this murder as well as loot is concerned, the confessional statement of other co-accused persons recorded by P.W. 15, the confessional statement of appellant Jitan Mahato recorded u/s 164 Cr.P.C by Judicial Magistrate (P.W. 15), evidence showing recovery of looted articles of this case from the possession of appellant Jitan Mahato, which were identified by the husband of deceased as his own, are the only important aspect to be discussed herein so we do not feel the necessity of entering into the detailed discussion with regard to each and every witness. 14. 14. First of all we want to discuss the evidentiary value of the maker of confessional statement (accused) against co-accused. In Haricharan Kurmi Vs State of Bihar reported in AIR 1964 S.C 1184 the constitution Bench of the Hon'ble Supreme court referred to section 3 of the Evidence Act and observed that confession of a co-accused is not evidence within the meaning of section 3 of the Evidence Act. It is neither a oral statement, which the court permits or requires to be made before it as per section 3 (1) nor does it fall in the category of evidence referred to section 3 (2) of the Evidence Act, which covers all documents produced for inspection of the court. Supreme Court observed that even then section 30 provides that a confession may be taken into consideration not only against its maker, but also against a co-accused. Thus though such a confession may not be evidence as strictly defined by section 3 of the Evidence Act, it is an element, which may be taken into consideration. 15. Section 30 of the Evidence Act speaks, “when more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and others of such persons is proved, the court may take into consideration such confession as against such other person as well as against person who makes such confession. 16. There are confessional statement of four co-accused persons recorded u/s 164 Cr.P.C on record but we can take into consideration the confessional statement of accused Babulal Mahato only on the strength of section 30 of Indian Evidence Act, which necessitates two mandatory requirements (i) maker of confessional statement and the co-accused must be tried jointly (ii) the confessing accused must tar himself and person or persons he implicates with one and the same brush. 17. We have perused the confessional statement of co-accused Babulal Mahato, recorded u/s 164 Cr.P.C by the Judicial Magistrate P.W.15 (Ext-6/4) and found that aforesaid both requirements as per section 30 of the Evidence Act are fulfilled as (i) both Babulal Mahato and appellant Jitan Mahato were tried jointly and (ii) Babulal confessed his guilt as well as the presence and participation of appellant Jitan Mahato @ Pagala in this crime, accordingly the confessional statement of Babulal Mahto can be taken into consideration in this case. 18. 18. Babual Mahto, in his confessional statement (Ext-6/4) has confessed his guilt as well as the presence and participation of appellant Jitan Mahato @ Pagala in this crime, which itself by its nature assures some sort of truthfulness as he himself disclosed inculpatory statement against him along with complicity of appellant. Further, Exhibit 6/8, which is confessional statement of appellant Jitan Mahato recorded u/s 164 Cr.P.C before Judicial magistrate, unveiled that appellant had confessed that at the time of murder of the deceased, he had caught hold of the legs of deceased. Thus we find that it not only corroborates the confessional statement of co-accused Babulal Mahto, but also leaves no doubt about the complicity of Jitan Mahato in this crime. 19. Exhibit 2/3 speaks about seizure list prepared for the recovery of one pair earrings and cash from the house of accused-appellant Jitan Mahato, which was concealed in a earthen pot in his courtyard while P.W.6 Pramod Kr. Sahu, who is husband of deceased, has affirmed on oath that at the time of T.I.P, he had identified 20 articles including earrings, which were looted away in this occurrence and recovered from accused persons including appellant during investigation. P.W.6, as per undertaking given at the time of release of said twenty articles in his favour, also brought the golden ornaments (including earrings), silver articles, cash, revolver, camera and bicycle, in trial court, and proved as material exhibit-I, II, III, IV, V and VI respectively. Further the order dated 30- 08-1994 passed by learned Magistrate also transpires that all the articles (20 items) were released in favour of the husband of deceased u/s 457 Cr.P.C and it also reveals that appellant Jitan Mahato neither claimed the articles recovered from his possession as his own nor did he raise any objection at the time of passing said order. 20. Thus the proof of recovery of looted article from the possession of accused-appellant Jitan mahato as well as its identification in TIP by the husband of deceased also leaves no doubt about the presence and participation of accused-appellant in this crime. 21. Viewed thus, appellant has no escape from the charge of Section 302 and 394 IPC, for which he already stands convicted and sentenced. We thus maintain his conviction and sentence as already recorded by the learned trial court. 22. 21. Viewed thus, appellant has no escape from the charge of Section 302 and 394 IPC, for which he already stands convicted and sentenced. We thus maintain his conviction and sentence as already recorded by the learned trial court. 22. The net result is that appeal on hand stands dismissed, being devoid of any merit in it. Before parting with the judgment, we want to leave a note of appreciation for Mr.P.A.S Pati for the assistance rendered to this Court as Amicus Curiae.