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2018 DIGILAW 665 (ORI)

Keda Behera v. State of Odisha

2018-07-17

K.R.MOHAPATRA, S.PANDA

body2018
JUDGMENT K.R. MOHAPATRA, J. - Appellants in this appeal, seek to assail the judgment and order of conviction and sentence dated 27.07.1999 passed by learned Sessions Judge, Sonepur in Sessions Case No.1/12 of 1999 (arising out of GR Case No.87 of 1998 of the Court of SDJM, Biramaharajpur) convicting the appellant No.1, namely, Keda Behera under Section 201, IPC and sentencing him to undergo RI for three years as well as convicting the appellant No.2, namely, Sashi Behera for committing offence under Sections 302 and 201, IPC and sentencing him to undergo imprisonment for life for committing offence under Section 302, IPC and to undergo RI for seven years for committing offence under Section 201, IPC. It was further directed that the sentences against the appellant No.2 shall run concurrently. 2. One Sripati Dalai (informant/PW 1) lodged information before the Birmaharajpur Police Station stating that at about 4.00 PM on 07.08.1998, he had gone to his paddy field to bring back the bullocks. At that time, he saw that body of a lady was floating in the well situated at his Mahulmal paddy field. Her legs and hands were tied. Thereafter, he came back and informed the villagers about the same. The villagers along with the appellant No.1 identified the dead body to be of Seema Behera, the elder daughter of Keda Behera (appellant No.1). The body was decomposed. Suspecting murder of Seema, PW-1 lodged the FIR ( Ext.4). On receipt of the FIR, Birmaharajpur P.S. Case No.63 (8) dated 17.08.1998 was registered under Sections 302/201, IPC against unknown person. Since the FIR disclosed a cognizable offence, the OIC, Birmaharajpur P.S. (PW 14) took up investigation. Upon receiving information, Investigating Officer (PW 14) visited the spot and examined the informant (PW 1). As it was night by then, he instructed Constable, Sri B.D.Sahu and Gramarakhi Sri Purna Chandra Haripal to guard the dead body. On the next morning, he again visited the spot; examined the witnesses present there; made inquest over the dead body in presence of the witnesses; prepared inquest report (Ext.6), and sent the dead body to District Headquarters Hospital, Sonepur preparing dead body challan (Ext.5) for postmortem. He also seized a rope and a stone lying near to the well of PW 1 vide seizure list Ext.7. He also seized a rope and a stone lying near to the well of PW 1 vide seizure list Ext.7. On the same day at 2.00 PM, the I.O. seized the wearing apparels of deceased Seema Behera vide seizure list Ext.8. On 04.09.1998, the I.O. received the postmortem report (Ext.1) and on the same day he arrested both the appellants and forwarded them to Court on 05.09.1998 and made a prayer to record the confessional statement of both the appellants. Accordingly, learned SDJM, Birmaharajpur (PW 13) recorded the confessional statements of appellants on 07.09.1998. The said confessional statements of appellants are marked as Exts. 2 and 3. On his transfer, PW 14 handed over the investigation to ASI, Rabindra Kumar Panda (PW 12) who did not examine any other witness. On completion of the investigation, he submitted charge-sheet under Sections 302/201/34, IPC against the appellants. Accordingly, the appellants faced trial. 3. In support of its case, prosecution examined as many as fourteen witnesses. Apart from the aforesaid witnesses, prosecution also relied upon PWs 2 to 6, who are the witnesses to a part of occurrence and PWs 7 to 10, who are the witnesses to the inquest. PW 11 is the Doctor, who conducted the post-mortem. The prosecution also relied upon the aforesaid documentary evidence as well as MOs, viz. Rope, stone, saree, blouse and saya of the deceased marked as MOs.I to V respectively. Although the confessional statements of the appellants were recorded under Section 164 Cr.P.C. by PW 13, they retracted from their confession during the trial and pleaded their innocence. 4. During trial, PWs. 2 to 10 did not support the case of the prosecution and were declared hostile. However, relying upon the materials on record including confessional statements ( Exts. 2 & 3), learned Trial Court convicted the appellant No.1 under Section 201, IPC and appellant No.2 under Sections 302 and 201 IPC and sentenced them as above. Be its stated here that, appellant No.1 is the father of the deceased and appellant No.2 is the brother of the deceased. The confessional statements of appellants reveal that on the ill-fated date, i.e. on 14.08.1998, which was the day of Janmastami, there was a quarrel between the appellant No.2 and the deceased and appellant No.2 assaulted the deceased. Subsequently, when appellant No.2 had been to Ulunda market for selling salt, deceased-Seema committed suicide by hanging herself. The confessional statements of appellants reveal that on the ill-fated date, i.e. on 14.08.1998, which was the day of Janmastami, there was a quarrel between the appellant No.2 and the deceased and appellant No.2 assaulted the deceased. Subsequently, when appellant No.2 had been to Ulunda market for selling salt, deceased-Seema committed suicide by hanging herself. Being frightened, both the appellants tied the dead body with a rope and dumped it in the well of PW 1 at Mahulmal paddy field. 5. Learned Counsel for the appellants, contended that the confessional statements of the appellants under Section ‘164 Cr.P.C. were recorded under coercion. It was not an voluntary one. Learned Magistrate (PW 13) did not follow the procedure as enumerated under Rule 49 of General Rules and Circular Orders (GRCO) (Volume-1), Criminal). There is no eyewitness to the occurrence. PWs. 2 to 6, who claimed to be eyewitnesses to a part of the occurrence, do not support the case of the prosecution. PWs. 7 to 10, who alleged to be witnesses to the inquest also do not support the case of the prosecution. Except the confessional statements, no material is available on record to bring home the charge against the appellants. Neither the mother and sister-in-law (wife of appellant No.2) of the deceased nor the witnesses who allegedly guarded the dead body after it was recovered, were examined. The impugned judgment of conviction and sentence is based on surmises and conjectures. No reason has been assigned by the learned Trial Court to convict the appellant No.2 under Section 302 IPC. Further, no material is available on record, either direct or indirect, to establish that the appellant No.2 had committed murder of his sister, namely Seema Behera. Likewise, when the allegation against both the appellants are identical, there is no reason to convict the appellant no.2 under Section 302 IPC, when the appellant No.1 has been convicted under Section 201 IPC only. As such, he prayed for setting aside the impugned judgment. 6. Mr.S.S. Mohapatra, learned Additional Standing Counsel for the State supported the impugned judgment and contended that the confessional statements have been recorded following the procedure laid down under Rule 49 of GRCO (Volume-I, Criminal). As such, he prayed for setting aside the impugned judgment. 6. Mr.S.S. Mohapatra, learned Additional Standing Counsel for the State supported the impugned judgment and contended that the confessional statements have been recorded following the procedure laid down under Rule 49 of GRCO (Volume-I, Criminal). Although the witnesses do not support the case of the prosecution and retracted from their statements made before Police under Section 161 Cr.P.C., learned Trial Court has rightly convicted them relying upon the confessional statements recorded by PW 13. He further contended that the appellants being the family members of the deceased, had the special means of knowledge about the cause of death of the deceased and onus is on them to disclose the circumstances under which the death of Seema occurred. According to the confessional statements, the death of the deceased occurred on 14.08.1998. Neither the family members nor the appellants ever intimated the matter to the Police, which casts serious doubt on their conduct. The circumstances as well as the confessional statements made by the appellants under Section 164 Cr.P.C. are sufficient to bring home the charges against the appellants .As such, the impugned judgment of conviction and order of sentence needs no interference. 7. PW 11, the doctor who conducted the post-mortem examination, opined as under :- “1) There was a ligature mark on the neck. It was distinct and horizontal and was of the level of thyroid cartilage encircling the neck completely. It was visible as a brownish red groove with a size of ½.The skin was already pilled up. The sub-cutaneous tissue, the muscle mass beneath the ligature mark were stained deeply due to extravation of blood. The thyroid curtilage with the superior comu (both) was fractured, the rings of larynx were fractured and the carotid arteries were disrupted. The ligature mark was anti-mortem in nature.” (2) Both the hands were tied with ropes at the wrist crossing each other and were tied as such to the body around the abdomen and back. (3) There was no internal injury on the body of the deceased Seema Behera. The cause of the death of Seema Behera was due to asphyxia due to strangulation. Ext.1 is my report and Ext.1/1 was my signature therein.” In cross-examination, he also ruled out the possibility of suicide of the deceased. (3) There was no internal injury on the body of the deceased Seema Behera. The cause of the death of Seema Behera was due to asphyxia due to strangulation. Ext.1 is my report and Ext.1/1 was my signature therein.” In cross-examination, he also ruled out the possibility of suicide of the deceased. Thus, taking into consideration the opinion of PW 11 and in absence of any materials to the contrary, we are constrained to hold that the death of the deceased was homicidal. 8. The next question that crops up for consideration is whether the confession of the appellants made under Section 164 Cr.P.C. and recorded by learned SDJM, Birmaharajpur (P.W.13), was following due procedure of law. Section 164 Cr.P.C. provides procedure of recording of confessional statement of an accused by a Magistrate. In the light of Section 164 Cr.P.C., Rule 49 of GRCO (Volume-I, Criminal) sets out the procedure and precaution to be taken by a Magistrate while recording a confessional statement. The relevant portion of Rule 49 required for our discussion reads as follows : “49. (i) Time for reflection of confessing accused – The recording of the confession of an accused person immediately on his production by the Police should be avoided. Ordinarily, he should be allowed a few hours for reflection, free from the influence of the Police, before his statement is recorded. The Police should not be allowed to be present when a confession is recorded. (ii) Confession to be recorded in open Court – Confession should be recorded in open Court and during the Court hours except when unusual circumstances require a different procedure as, for instance, when an open record would be detrimental to the public interest or when the recording of the confession in open Court is rendered impracticable by reason of the fact that the Court is closed for two or more successive days on account of holidays. (iii) Precautions to be followed before recording confession – A Magistrate recording a confession should satisfy himself in every reasonable way that the confession is made voluntarily. It is not necessary actually to invite complaints of police ill-treatment, though of these, if spontaneously made, cognizance should be promptly taken of the same. (iii) Precautions to be followed before recording confession – A Magistrate recording a confession should satisfy himself in every reasonable way that the confession is made voluntarily. It is not necessary actually to invite complaints of police ill-treatment, though of these, if spontaneously made, cognizance should be promptly taken of the same. However, it should be made clear to the prisoner that the making or withholding of a statement is within his discretion any indication of use of improper pressure should be at once investigated. (iv) Certificate about the genuineness of the confession – The Magistrate should question a confessing prisoner with a view to ascertaining exact circumstances in which the confession was made and the connection of the Police with it, in other words the Court should record the confessions inasmuch detail as possible with a view to obtaining materials from which its genuineness can be judged and to testing whether it is freely made or is the outcome of suggestion. To the certificate required by Section 164 of the Criminal Procedure Code, the Magistrate should add a statement in his own hand, of the grounds on which he believes that the confession is genuine, of the precautions which he took to remove accused from the influence of the Police and of the time, if any given to him for reflection vide Form No.(M)2. (v) Warning to the confession accused – The Magistrate should formally warn the accused though not necessarily in set words, that anything said by him will be taken down and may therefore be used as evidence against him, even if he retracts the same.” In the case of Rabindra Kumar Pal @ Dara Singh – v – Republic of India, reported in (2011) 48 OCR (SC) 504, Hon’ble Supreme Court discussing leading case laws on recording of confessional statements of accused by the Magistrate and analyzing the provisions made under Section 164 Cr.P.C., came to hold as under :- “(29) The following principles emerge with regard to Section 164 Cr.P.C:- (i) The provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence. (ii) 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. (iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. (iv) The maker should be granted sufficient time for reflection. (v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement. (vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession. (vii) Non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrate’s jurisdiction to record the confession and renders the confession unworthy of credence. (viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him. (ix) At the time of recording the statement of the accused, no Police or Police official shall be present in the open Court. (x) Confession of a co-accused is a weak type of evidence. (xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement.” 9. Learned Counsel for the appellants vehemently contended that the appellants were not provided with sufficient time for their reflection. It is contended that they were given only ten minutes for their reflection. It is not at all sufficient to come out of influence of Police to give a voluntary confessional statement. In order to test the veracity of such submission, we examined the trial Court record. It appears from the case record that on 05.09.1998 the appellants were produced before the learned SDJM, Birmaharajpur in GR Case No.87/98 (which was subsequently committed to the Court of Sessions and the instant Sessions Case has been registered). In order to test the veracity of such submission, we examined the trial Court record. It appears from the case record that on 05.09.1998 the appellants were produced before the learned SDJM, Birmaharajpur in GR Case No.87/98 (which was subsequently committed to the Court of Sessions and the instant Sessions Case has been registered). On that date, the Investing Officer made a prayer to record the confession of the appellants under Section 164 Cr.P.C. On query by learned Magistrate, the appellants expressed their desire of making confessional statement. In order to give sufficient time for their reflection and to come out of influence of Police, learned SDJM (PW 13) remanded them to judicial custody till 07.09.1998. On 07.09.1998, the appellants were again produced before the learned Magistrate. They were kept in Zima of Orderly of learned SDJM, namely, Sri K.K.Satpathy for further cool reflection of their mind. After about 10 minutes, appellant No. 2 was called to the Court where no Police official/people or Advocates were present. After questioning about his willingness and reason to make confessional statement and observing all the formalities and/or cautions as prescribed under Section 164 Cr.P.C. and Rule 49 of GRCO (Volume-I, Criminal), learned Magistrate recorded the confession under Section 164 Cr.P.C. In the same manner, statement of appellant No.1 was also recorded. After recording of their confession under Section 164 Cr.P.C., the appellants were remanded to judicial custody. On examination of Exts. 2 and 3, i.e. the confessional statements of the appellants 1 and 2 respectively, it appears that learned SDJM (PW- 13) had put good numbers of clear and pointed questions to the appellants and he had taken all precautions as enumerated under Section 164 Cr.P.C. Rule 49 of the GRCO (Volume-I, Criminal), as well as the guidelines set out in the decision in the case of Rabindra Kumar Pal @ Dara Singh (supra). In cross-examination, learned SDJM (PW 13), categorically deposed that the appellants did not confess before him to have killed the deceased. They only confessed that Seema Behera (the deceased) committed suicide. They also confessed before him (PW 13) that on the date of Janmastami in the morning on a trivial issue there was a quarrel between Seema and Sasthi (appellant No.2) during which Seema was assaulted by said Sasthi and in the evening, Seema committed suicide. They only confessed that Seema Behera (the deceased) committed suicide. They also confessed before him (PW 13) that on the date of Janmastami in the morning on a trivial issue there was a quarrel between Seema and Sasthi (appellant No.2) during which Seema was assaulted by said Sasthi and in the evening, Seema committed suicide. He also deposed that the appellants have made their confessional statements before him (PW 13) voluntarily. Apart from the above, it appears that the appellants in their statements under Section 313 Cr.P.C., also do not complain that their confessional statement under Section 164 Cr.P.C. was not voluntary. In the case of Shankaria v. State of Rajasthan, reported in AIR 1978 SC 1248 , the situation and circumstances of recording the confession under Section 164 Cr.P.C., were similar to a large extent. In that case, learned Magistrate had hardly given 20 minutes to the appellant for reflection before recording his confession after being produced from judicial custody and in the facts and circumstances of that case, it was held that the accused were given sufficient time for reflection. The facts and circumstances of Shankaria (supra) are reproduced hereunder for better appreciation. “23.... The appellant was arrested by Shri S.P. Rathore, Superintendent of Police on June 3, 1974 at Bhatinda. He was then taken to Ganganagar in Rajasthan in connection with the investigation of 15 crimes of a similar pattern committed in Ganganagar District. The appellant remained in police custody upto June 12, 1974 on which date in the afternoon, he was brought by the police to Raisingh Nagar, where Shri Sukhdarshan Kumar Bansal, Judicial Magistrate First Class, was then holding his Court. Under the orders of the Magistrate, the appellant was committed to the judicial lock-up at Raisingh Nagar in the evening of June 12, 1974. Thereafter, he remained there in the judicial lock-up for two days more. On June 13, 1974, Shri Kashi Ram, Superintendent of Police, submitted an application to the Magistrate, requesting him to record the confession of the accused. On that application, the Magistrate passed an order to the effect that the accused be sent for from the judicial lock-up on the following day at 7 a.m. for recording his confessional statement. In compliance with the Magistrate’s order, the appellant was brought from the judicial lock-up in the morning of June 14, 1974 and produced before the Magistrate. On that application, the Magistrate passed an order to the effect that the accused be sent for from the judicial lock-up on the following day at 7 a.m. for recording his confessional statement. In compliance with the Magistrate’s order, the appellant was brought from the judicial lock-up in the morning of June 14, 1974 and produced before the Magistrate. At 8.20 a.m., the Magistrate put some questions to the appellant by way of preliminary examination to ensure whether he wanted to make a confession voluntarily..... 24. After this preliminary examination, the Magistrate started recording of the confessional statement at 8.45 a.m. After the completion of the statement (Ex.P-27) (which we have extracted earlier) at its foot, the Magistrate made a memorandum, which rendered into English. 25. xx xx xx 26. Mr. S.K.Gambhir, appearing as amicus curiae, argued the case very thoroughly on behalf of the appellant. It is contended by him that the confession (Ex.P-27) was not voluntarily made but was ‘the result of police pressure, inducement and coercion. According to him, this inference is deducible from these circumstances. (1) No explanation is forthcoming as to why the accused was brought all the way from Ganganagar to Raisingh Nagar for getting the confession recorded there. Possibly, the police did not want to give the appellant an opportunity of having independent advice which could more easily be available in the district town of Ganganagar rather than at the Sub-Divisional town, Raisinghnagar. (2) The Judicial Lock-up, Raisingh Nagar, being contiguous to the Police Station is almost a part of it. The appellant therefore, even on the 12th, 13th and 14th of June 1974, during the time when he was an inmate of the Judicial-Lock-up, could not be said to be free from police surveillance and influence. (3) The Magistrate hardly gave 20 minutes to the appellant for reflection before recording his confession. It is maintained that according to the ruling of this Court, the Magistrate should have given at least 24 hours to, the appellant, to think and decide while in the judicial lock-up, as to whether or not he should make a confession...” After discussing the facts and circumstances of the case, the Hon’ble Supreme Court, while dealing with the sufficiency of time to be allowed for reflection of the accused making confessional statement, held as follows :- “36. This takes us to Point No. (3).The argument is that the Magistrate should have given at least 24 hours to be appellant after his preliminary examination, to think over the matter, in Jail, free from fear of the Police. 37.It is true that the interval between the preliminary examination of the appellant and the recording of his confessional statement was about 15 minutes. But there is no statutory provision in Section 164 Cr.P.C. or elsewhere, or even an executive direction issued by the High Court that there should be an interval of 24 hours or more between the preliminary questioning of the accused and the recording of his confession,. The condition precedent for recording a confession by the Magistrate in the course of Police investigation is provided in Section 164 (2) Cr.P.C. which mandates the Magistrate not to record any confession, unless upon questioning the accused person making it, he has reason to believe that it is being made voluntarily. 38. In the instant case, the Magistrate fully complied with the condition. He (Shri Bansal) has testified that before recording the confession he had fully satisfied himself that the accused wanted to make the confession voluntarily. 39. The large number of clear and pointed questions put by him to the appellant for this purpose and the answer by the latter have been extracted in full earlier. Their perusal shows that the Magistrate had cogent reasons to believe that the confession was being voluntarily made. 40. Although the interval between the preliminary questioning of the appellant and his confession was about 15 minutes, the appellant had no less than 38 hours at his disposal, whilst he was in judicial custody free from fear or influence of the Police, to think and decide whether or not to make a confession. As noticed already, the appellant was brought from Ganganagar to Raisingh Nagar on June 12, 1974 because on that day no Magistrate competent to record the confession of the appellant was available at Ganganagar. The appellant was admitted to the Judicial Lock-Up Raising Nagar under the orders of the Magistrate about or after 4 p.m. on that date. Thereafter, the appellant continuously remained in the Judicial Lock-up or judicial custody till his confession was recorded on June 12, 1974 from 8.45 a.m. onwards. The appellant was admitted to the Judicial Lock-Up Raising Nagar under the orders of the Magistrate about or after 4 p.m. on that date. Thereafter, the appellant continuously remained in the Judicial Lock-up or judicial custody till his confession was recorded on June 12, 1974 from 8.45 a.m. onwards. The Magistrate, Shri Bansal was aware that the appellant was continuously in judicial custody since the evening of June 12, for about 38 to 40 hours preceding the confession.... 41. xx xx xx 42. It will be seen that how much time for reflection should be allowed to an accused person before recording his confession, is a question which depends on the circumstances of each case. The object of giving such time for reflection to the accused, is to ensure that he is completely free from police influence. If immediately before the recording of the confession, the accused was in judicial custody beyond the reach, of the investigating police for some days, then such custody from its very nature, may itself be a factor dispelling fear or influence of the police from the mind of the accused. In such a case, it may not be necessary to send back the accused person for any prolonged period to jail or judicial lock-up.... Further, in the case of State of Orissa vs. Surujit Dei and another, reported in 1975 CLT 1144, one of the accused persons who volunteered to make confessional statement before the Magistrate, was initially produced before the Magistrate on 30.04.1971 and was remanded to judicial custody. Again she was produced before the Magistrate on 03.05.1971 and the Magistrate allowed half an hour time for further reflection and then her confessional statement was recorded under Section 164 Cr.P.C. by the Magistrate. This Court held the same to be sufficient time for reflection of the accused to make confession 10. Analysing and comparing the facts and ratio decided in the aforesaid two cases as well as the case at hand, we are of the opinion that the appellants in the instant case have been given sufficient time for their reflection and the confession was voluntary. 11. Analysing and comparing the facts and ratio decided in the aforesaid two cases as well as the case at hand, we are of the opinion that the appellants in the instant case have been given sufficient time for their reflection and the confession was voluntary. 11. As held in para-22 of Shankaria (supra), when in a capital case, the prosecution demands a conviction, preliminary on the basis of the confession of the accused recorded under Section 164 Cr.P.C., the Court must apply a double rest “ (1) whether the confession was perfectly voluntary ? If so, whether it is true and trustworthy ?”. Thus, applying the aforesaid principle, the next question, therefore, arises whether the confession was true and trustworthy. As we have already discussed, the confession of both the appellants is based on their confession only. Thus, the truthfulness and reliability of such confession attaches a great importance to their conviction. 12. Although the appellants in their confession have stated that the deceased had committed suicide, the Medical Officer (P.W. 11) ruled out the possibility of suicide. Further, we have already held that the death was homicidal in nature. Thus, there appears some doubt with regard to the truthfulness in the confession made by both the appellants as they come up with a distorted confession. At the same time , no materials is available on record to come to a definite conclusion that the appellant No.2 (who has been convicted under Section 302 IPC) has committed the murder of his sister. Added to it, both the appellants retracted from their confession in the statements made under Section 313 Cr.P.C. Learned Additional Standing Counsel vehemently urged that since the deceased was a family member of the appellants, her cause of death was within their special knowledge and burden lies on them to prove such facts under Section 106 of the Evidence Act. Since they (the appellants) have not discharged the burden of proof, adverse inference should be drawn against them. In our opinion, when both the appellants have made confession under Section 164 Cr.P.C., the rigors of Section 106 of the Evidence Act lose its significance. Moreover, the prosecution for the reasons best known to it, has not examined the mother and sister-in-law (wife of appellant No.2) in this case, who could have thrown some light. In our opinion, when both the appellants have made confession under Section 164 Cr.P.C., the rigors of Section 106 of the Evidence Act lose its significance. Moreover, the prosecution for the reasons best known to it, has not examined the mother and sister-in-law (wife of appellant No.2) in this case, who could have thrown some light. In view of the above, it is unsafe to record the conviction of the appellants on distorted confession. Further, in the case of Gobinda Chandra Chinera v. State of Orissa, reported in 2001 (II) OLR 447 , it is held as under :- “10. ... There is no dispute that the judicial confession said to have been made before the Magistrate has been retracted by the appellant in his examination under Section 313 Cr.P.C. Law is well settled that a conviction can be based only on judicial confession if it is found to be voluntary and true. But in case of retracted judicial confession as a matter of prudence the Courts ordinarily look for corroboration from other sources......” In the instant case, there is no corroboration in material particulars to the judicial confession made by the appellants. Corroboration assumes a great importance, when the accused retracts from the confession made. Learned trial Court has lost sight of this important aspect of the matter. In that view of the matter, we are of the considered opinion that the impugned judgment of conviction and sentence is not sustainable. Accordingly, the impugned judgment of conviction and sentence is set aside. 13. The appellant No.1 has been released on bail by this Court vide order dated 31.01.1999 in Misc. Case No.223 of 1999 and the appellant No.2 has been released by this Court on bail vide order dated 25.05.2000 passed in Misc. Case No.225 of 2000. Thus, their bail bond be cancelled and they be set at liberty forthwith. LCR be sent back immediately. Ordered accordingly.