Deo Krishna Prasad @ Laloo Vs The State of Jharkhand

D.G.R. Patnaik, J.@mdashArpan Mukherjee @ Jay, 11 years old school boy came home from school in the afternoon of 9.10.2001. At about 4.00 PM on the same day, he left home telling his mother that he was going to the house of his friend Sunil Das nearby and would return within ten minutes, but the boy did not return. About 5.30 PM his friend Sunil Das came to the house of Arpan asking Arpan''s mother regarding the whereabouts of Arpan. The mother replied that her son had gone to his (Sunil''s) house. Thereafter, Sunil Das went away. A few moments later, Arpan''s mother Sujata Mukherjee (PW8) found an envelope containing a letter lying on the ground near the gate of her house. She gave the letter to her husband, who had by then returned home from work. On reading the letter, father of the boy namely Sameer Kumar Mukherjee (PW9) realized that it was a threatening letter containing demand for ransom money and that his son Arpan has been kidnapped by some criminals. A demand for a sum of Rs. 2.00 lakhs was made in the letter and the same was ordered to be kept near the electric pole located near the house of one Madan Mohan Prasad by 8.00 PM. The letter also warned not to inform the police. The father of the boy Sameer Kumar Mukherjee along with his neighbouring residents namely Sanjay Kumar Mandal (PW4) and Rajesh Periwal (PW) went in search of Arpan to the house of Sunil Das, but Sunil Das was not available in his house. His father informed that Prakash Das and Amit Gupta (both friends of Sunil Das) had come to call Sunil Das and the three of them had gone together and have not returned home. Sameer Kumar Mukherjee and others thereafter proceeded to the house of Prakash Das, but he was also not found at his house. While returning, they saw Prakash Das, Amit Gupta and Rajesh Periwal entering into the house of the appellant Deo Krishna Prasad @ Laloo (appellant). When despite such, Arpan was not traced out, his father accompanied by Santosh Kumar Maheshwari (PW6), Hiramani Jha (PW7) and Dilip Periwal (PW5) went to the residence of the Superintendent of Police, Deoghar and on being informed that the police officer is out of Station, they came to the house of Dy. S.P. who directed them to go to the police station and lodge a complaint. Accordingly, a written report was lodged by Arpan''s father Sameer Kumar Mukherjee (PW9) at the Police Station along with the ransom letter received by him. Initially, no suspicion was raised against anybody. Sunil Das and Arpan were friends from the time when the two families lived in different portions of a rented house within the same mohalla and after Arpan''s father had constructed his own house, his family shifted to the new house. On returning home, the informant found several persons waiting at his house including one Jago Devi (PW2) who informed that she had seen Sunil Das dropping a letter at the gate of his house. The informant and others went again in search of Arpan and in course of his search, they were informed by one Suresh Ram (PW1) that he had seen Arpan and Sunil going together in the alley of Dr. Raman Kumar and that he had seen Prakash Das, Amit Gupta, Rajendra Thakur and Deo Krishna Prasad @ Laloo (appellant) waiting in the alley. When the informant proceeded to the house of Deo Krishna Prasad, he saw Rajendra Thakur and Amit Gupta from some distance and thereafter, all of them including Sunil Das hurriedly entered into the house of Deo Krishna Prasad. On this information, the informant proceeded to the house of Deo Krishna Prasad. However, no information regarding the whereabouts of Arpan could be obtained during the night and even till the next day and, therefore, in compliance of the demand contained in the ransom note, a sum of Rs. 2.00 lakhs kept in a bag was placed near the electric pole at about 8.00 PM. A watch was kept at a distance to see as to who would come to receive the bag, but when nobody arrived there, the informant along with the police returned. On the next morning i.e. on 11.10.2001 at about 6.30-7.00 AM Sunil Das and Deo Krishna Prasad were seen in the custody of the police proceeding along the alley of Dr. Raman Kumar. The informant and other witnesses followed them. They came to a dilapidated house located near the house of Deo Krishna Prasad. The lock on the gate of the house was broken open and on entering the house, the dead body of Arpan was found lying by the side of the wall and his slippers were also seen lying nearby and there were marks of injury on the neck of the dead body. After obtaining photographs of the dead body and after completing inquest, police forwarded the dead body for postmortem examination.

2. On the basis of the charge sheet submitted by the investigating officer against Sunil Das, Amit Gupta, Prakash Das, Rajendra Thakur and Deo Krishna Prasad, cognizance for the offences under Sections 364/34, 302/34 and 201/34 IPC was taken by the learned court below against the accused persons including the appellant. Since the accused persons namely Sunil Das, Amit Gupta and Prakash Das were found to be juveniles, their cases were separated from the case of this appellant and another accused and they were forwarded to the Juvenile Court for trial. The remaining two accused persons Rajendra Thakur and Deo Krishna Prasad faced trial before the court of Sessions Judge, Deoghar and vide impugned judgment of conviction, the learned trial court convicted the present appellant Deo Krishna Prasad @ Laloo for all the aforesaid offences namely offences under Sections 364/34, 302/34 and 201/34 IPC and imposed sentence of life imprisonment for major offences. However, the accused Rajendra Thakur was acquitted from the charges in respect of the aforesaid offences on the basis of benefit of doubt. While convict Deo Krishna Prasad has preferred the present appeal, the informant has preferred revision application against the order of acquittal of co-accused Rajendra Thakur before this Court vide Cr. Revision No. 1043 of 2003. Even though both the cases arise out of the same impugned judgment of the trial court, both the cases will be disposed of by separate orders.

3. Appellant had denied the charges pleading not guilty and claiming that he has been falsely implicated in this case at the behest of the police officer merely on suspicion.

4. At the trial, as many as 14 witnesses were examined by the prosecution including the informant (PW9), his wife (PW8), doctors who had conducted autopsy on the dead body of the deceased (PW11, PW12 and PW14) and the investigating officer (PW13).

5. The trial court placing reliance on the testimony of the informant and his wife besides the testimony of PW1 and PW2 and also by considering the confessional statement of the accused Prakash Das and Sunil Das recorded u/s 164 CrPC (Ext. 5 and 5A), had recorded its findings that that the evidences on record indicate strong circumstantial evidence leading to the guilt of the present appellant for the offence of kidnapping the deceased and also for the offence of committing the victim''s murder and for disposing of the dead body of the deceased and accordingly, convicted the appellant for all the aforesaid offences and sentenced him to undergo R.I. for life. The Trial Court has noted clown the following pieces of circumstantial evidences,

i. that the co-accused Sunil Das was on visiting terms to the house of the informant since he was a friend of Arpan

ii. that the ransom note was dropped at the gate of the informant''s house by Sunil Das at the time of his visit to the house of the informant at about 5.30 PM on 9.10.2001.

iii. that on being inquired, father of Sunil Das revealed that Amit Gupta and Prakash Das had called upon Sunil Das at his house and all of them had left the house and had not returned till evening.

iv. that it was revealed in course of investigation that contents of the letter was in the handwriting of Prakash Das while the address on the envelope was written in the handwriting of Sunil Das and the identification of the handwriting could be made on the basis of the informant''s acquaintance with the handwriting of Sunil Das and Prakash Das.

v. that Sunil Das and Prakash Das had confessed before the police to have called Arpan and had later taken him to the house from where subsequently his dead body was discovered.

vi. that confessional statement of the two accused Sunil Das and Prakash Das gave sufficient information on the fact that the kidnapping of the minor boy was done in pursuance of a well hatched out plan which was conceived and planned by the present appellant Deo Krishna Prasad and the ransom note also was delivered at the house of the informant in accordance with the plan and later when despite the prohibitory warning contained in the ransom note, the police was informed, the victim was murdered lest he should disclose the fact of his kidnapping and demand of ransom to the police against the perpetrators of the crime.

vii. that the dead body of the deceased was recovered on the basis of the confessional statement made by the accused Sunil Das and the present appellant Deo Krishna Prasad.

On the basis of the above circumstantial evidence, the trial court arrived at the conclusion that the present appellant was the mastermind behind the entire drama of kidnapping of the victim boy for ransom and his subsequent murder was committed in accordance with the plan conceived by the present appellant and executed by all.

6. Shri B.M. Tripathy, Advocate who represents the present appellant, has assailed the impugned judgment of conviction and sentence on several grounds inter-alia,

a. that the trial court has committed serious error in placing reliance upon the purported confession of the co-accused Sunil Das and Prakash Das ignoring the fact that the alleged confessions are highly contradictory and inconsistent with each other particularly with reference to the alleged involvement of the present appellant in the crime.

b. that the trial court has committed error in placing reliance on the statement of the investigating officer that the dead body of the deceased was recovered on the basis of the alleged confession made by Sunil Das and the present appellant, whereas even as per evidence on record, it is not confirmed that any confessional statement of the present appellant was ever recorded.

c. that the trial court has further erred in failing to consider the vital omission in the F.I.R. regarding the claim of PW2 that she had seen Sunil dropping a letter at the gate of the informant''s house and the trial court has likewise erred in placing reliance on the alleged judicial confession made by Sunil Das and Prakash Das without considering the fact that such confessions were obtained under pressure of the police and without adherence to the mandatory procedure for recording confession.

d. that the trial court has also erred in failing to give due importance to the dates mentioned under the signatures of the witnesses in the inquest report and also the date mentioned in the written report of the informant which would categorically indicate that the inquest report and the written report, which have been produced and exhibited in this case, were in fact ante-dated.

e. that the trial court had failed to consider several contradictions and inconsistencies appearing in the evidences of the informant (PW9) and that of his wife (PW8).

7. Elaborating each of the grounds, Shri Trpathi explains that from the evidences adduced by the prosecution, it would transpire that the accused Sunil Das was the first person to be arrested and interrogated by the police and it is claimed that in course of interrogation, he had confessed his guilt before the police and had also informed the place from where the dead body of the deceased could be found. Further, there is no definite evidence brought forth by the prosecution, nor stated by the investigating officer as to the specific date and time when the present appellant was arrested. In fact, evidences on record is conspicuously silent as to when and from which place was the present appellant arrested, since no arrest memorandum was prepared by the police immediately on the arrest of the present appellant. Claiming that the failure to prepare the arrest memorandum was not only illegal on the part of the police, but it also leads to the inference that the failure was intended to suppress the fact that the present appellant was arrested much later to the arrest of Sunil Das, learned Counsel explains further that the this inference is based on the fact that the present appellant was not forwarded for recording his statement u/s 164 Cr. PC apparently because of the fact that the appellant had not made any confession whatsoever before the police, nor did he volunteer any statement before the Judicial Magistrate. Furthermore, both Sunil Das and the present appellant though claimed to have been arrested on 11.10.2001 itself, but they were forwarded to the court not within 24 hours, but two days later i.e. on 13.10.2001 and the investigating officer has not offered any explanation for the inordinate delay in forwarding both these accused persons to the court.

Learned Counsel explains further that strangely enough, though co-accused Prakash Das was also arrested almost at the same time on the same day, but while Sunil Das was forwarded to the court for recording his statement u/s 164 Cr. PC, Prakash Das was detained at the police station and recoding of his confessional statement was withheld. It was only after the statement of Sunil Das was recorded, the other co-accused Prakash Das was forwarded to the court on the next day for recording of his statement u/s 164 Cr. PC. Learned Counsel explains that the reason for not forwarding both the accused persons simultaneously is explained from the fact that in his confessional statement, the co-accused Sunil Das has though admitted his guilt, but he has not made any reference whatsoever to the present appellant. The accused Prakash Das was thereafter groomed and subjected to intimidation by the police to make statement as per their dictates and to ensure that he involves the name of the present appellant also. Sri Tripathy argues further that even the Judicial Magistrate (PW10) who had recorded the purported statement of the accused Prakash Das, had apparently acted in haste and has failed to comply with the mandatory procedure in the matter of recording of judicial confession. Learned Counsel explains that it took even less than 10 minutes for the Magistrate to record the statement of the accused from the time of his production made by the police and no reasonable time was offered to the said co-accused, nor was the accused assured that he was free and not under any duress to make any statement. Learned Counsel argues that the facts and circumstances indicate that the accused Prakash Das was under constant fear of the police and in absence of any adequate opportunity given to him for reconsideration and reflection, the statement given by him recorded as his confession, cannot be relied upon. Learned Counsel refers in this context to a judgment of the Supreme Court reported in (2007) 1 SCC 702 and also to the judgment of Orissa High Court reported in Govinda Pradhan and Another Vs. The State, .

Learned Counsel refers to the next ground of the alleged discovery of the dead body of the deceased on the alleged confession of the appellant and explains that according to the prosecution, Sunil Das and the present appellant had made disclosure in their respective confessional statements leading to the discovery of the dead body and, therefore, prosecution has sought to rely upon the alleged confession u/s 27 of the Indian Evidence Act. Learned Counsel explains that in view of the fact that accused Sunil Das was arrested first in point of time and was the person who had made the first disclosure about the place where the dead body would be found. As such, it has to be deemed that the police had gained information in respect of the discovery of the dead body from Sunil Das and therefore, it cannot be said that any new material or information was obtained from the present appellant leading to the discovery of the dead body. Learned Counsel adds further that the claim of the prosecution that both Sunil Das and the present appellant had made statement leading to the discovery of the dead body, cannot be admissible in evidence to fasten liability against any of the accused. Referring to a judgment of Delhi High Court reported in Chander Pal Vs. State, Shri Tripathy argues that it is well settled that where several accused are claimed to have made statement and that at the time of recovery, all the accused persons were present, the statements are not admissible as against any of the accused persons. Learned Counsel adds further that even otherwise, mere statement of the investigating officer that the accused persons had made confession on the basis of which the dead body was recovered and statement of the witnesses that the accused persons were present along with the police at the time of discovery of the dead body, is not sufficient to draw any inference against the accused. Learned Counsel explains that any general statement made by more than one accused persons cannot be recorded as leading to discovery within the meaning of Section 27 of the Evidence Act. Learned Counsel adds that it was incumbent upon the prosecution to bring on record the specific statement made by the particular accused leading to the discovery and it was incumbent upon the prosecution to prove by production of the written record containing so much of the statement of the accused which had lead to the discovery of the fact. Learned Counsel argues that in absence of the above vital evidence, conviction of the appellant cannot be sustained on the ground that the dead body of the deceased was recovered on the basis of the statement made by the appellant. Learned Counsel adds further that even though the informant (PW9) as well as PW4 and PW5 claim to have been present at the time of recovery of the dead body, but PW4 does not specify the manner of pointing out of the dead body by either of the accused, nor does he specify the presence of any accused at the time of alleged recovery, Significantly, though his statement was recorded by the police prior to the recovery of the dead body by the police on 9.10.2001 itself, but he was not examined later after recovery of the dead body. Likewise, PW5 also does not spell out that it was on pointing out of the present appellant that the dead body was recovered and though the informant (PW9) also claims to be present at the time of recovery of the dead body, but strangely enough, he is neither a witness to the inquest or to the seizure of the slippers of the deceased. Learned Counsel argues that the presence of the witnesses at the time of alleged recovery of the dead body is doubtful for another reason that the date appearing below the signature both on the inquest report and the seizure list, do not tally with the date and time claimed by the prosecution.

Reading the evidences of each of the witnesses, learned Counsel tries to demonstrate that the claim of the witnesses that they had seen the deceased in the company of Sunil Das and Prakash Das and that they had also seen Sunil Das and Prakash Das along with Amit Gupta entering into the house of the present appellant oh the date when the victim boy had gone missing, is not believable, firstly on account of inconsistency in the statement of the witnesses on these points and secondly, because of absence of reference to any of these claims of the witnesses in the F.I.R. Learned Counsel sums up his argument by stating that the circumstances on which the prosecution and the trial court had relied upon, namely, the purported confessional statement of the accused Prakash Das wherein he has referred to the present appellant as an active participant in the crime and recovery of the dead body on the basis of the alleged confession made by the appellant, arc wholly unreliable and do not lead to a conclusive inference of guilt against the appellant. Furthermore, prosecution has not adduced any evidence, nor has it suggested anywhere that the present appellant had any motive to commit murder of the deceased.

8. Learned Counsel for the State, on the other hand, while countering the grounds advanced by the appellant, submits that though, there is no direct evidence against the appellant in respect of the kidnapping and murder of the deceased, the confessional statement of the accused Prakash Das clearly points out that the present appellant was the mastermind behind the crime which was hatched out for the purpose of extorting money from the victim''s lather and the murder of the deceased was also in furtherance of the plan prepared by the present appellant. Learned Counsel adds that further confirmation of the guilt of the appellant is available from the confession made by this appellant before the police leading to the recovery of the dead body from the place which is situated almost opposite to the house of the appellant.

9. As mentioned above, the trial court had recorded its order of conviction against the appellant basing upon two main circumstances, namely, the evidence relating to the discovery of the dead body of the deceased on the basis of the purported confession made by the present appellant and secondly, the confessional statement of the co-accused Prakash Das wherein he has claimed that it was the present appellant who had conspired and hatched out a plan for kidnapping the victim boy for the purpose of extorting money and also for committing murder of the deceased in order to prevent their exposure.

The controversy raised by the appellant in respect of two circumstance invite two questions. Firstly, whether the confessional statement of the accused Prakash Das recorded u/s 164 Cr. PC is worth placing reliance and secondly, whether the evidence that the dead body of the deceased was recovered on the basis of the confessional statement made by the appellant, can be relied upon.

10. On reading the evidences on record, certain facts which are admitted by the defence may be stated. The first being the fact that the deceased Arpan was found missing from his house since the evening of 9.10.2001. This fact has amply been demonstrated by the evidence of his parents namely PW8 and PW9 respectively and also by other witnesses namely PW4, PW5 and PW6, who happen to be the neighbouring residents of the informant. The fact that the informant had received a ransom note demanding ransom money of Rs. 2.00 lakh in the evening of 9.10.2001, is also not disputed by the defence. The ransom note has been proved in evidence by the informant and PW8 has confirmed that she had found the letter enclosed in an envelope at the gate of her house and the evidence of PW2 also confirms that the letter was dropped at the gate by the accused Sunil Das. Likewise, the fact that the dead body of the deceased was recovered from a dilapidated house situated near the house of the present appellant, is not disputed by the defence and the same has been proved in evidence by several witnesses mentioned above. Similarly, the fact that he deceased had suffered homicidal death, is also confirmed by the inquest report which records that there were marks of injury on the neck of the deceased and also by the evidence of three doctors namely PW11, PW12 and PW14, who, as members of the medical Board, has conducted postmortem examination on the dead body of the deceased and had submitted their postmortem report (Ext.-6) with following observations:

1. The body was swollen and maggots were present over face and skull. There were blood clots around mouth and nose and eye balls were protruded and conjective was suffered. The tongue was swollen and was bitten by the teeth and protruded. There was dry tassel matter around anal orifice.

2. One haematoma 3"X 2" on the right side of parietal area of scalp and on further dissection there were blood clots beneath the said wound and there was depressed fracture of right parietal bone at the site of wound (anterior part just above the forehead).

3. One deffused haematoma 2"X 2" above left eye-brow. On further dissection there was blood clot beneath the wound.

4. Multiple echymosis bruises on the front of neck more prominent on the left side and on further dissection of neck the subcutaneous tissues and muscles of the neck were red and deeply congested. There was fracture of all the hyoid bone, laryinx, trachea and bronchee were congested and frothy blood inside the trachea.

On opening of skull-brain and maninges were congested specially right side.

On opening of chest--both lungs congested.

Heart right chamber full of blood--left chamber empty.

On opening of abdomen--stomach empty-liver spleen and kidneys were congested--intestine contained gases and fassel matters-urinary bladder empty

Time elapsed since death was within 48 hours.

The opinion of the doctors that death was caused by asphyxia as a result of throttling and as a result of internal head injury which could have been caused by hard and blunt substance, may lend corroboration to the confessional statement of the accused Prakash Das and Sunil Das regarding the manner in which the deceased was murdered.

11. On considering the point relating to the first question, it would appear from the evidence of the investigating officer (PW13) that it was accused Sunil Das who was first arrested and interrogated by the police and in course of his interrogation, Sunil Das had confessed to have induced the victim boy to come out of his house and later, he was taken to the house where subsequently, victim''s dead body was discovered and also about the manner in which deceased was done to death by strangulation and in the process, the deceased had given a teeth bite on the finger of the co-assailant Prakash Das. The confession also contains the statement as to the place from where the dead of the deceased could be found. These are the same statements which the accused Sunil Das had made before the Magistrate which was recorded u/s 164 Cr. PC. As regards the time of arrest of the present appellant, Shri Tripathy has rightly pointed out that the investigating officer has not specified the date and time of the arrest of the present appellant and that the investigating officer has not offered any explanation as to why he did not prepare the arrest memorandum specifying the date and time of the arrest and the reasons for the arrest of the appellant. The evidence of the investigating officer nevertheless suggests that the present appellant could have been arrested only after the arrest of accused Sunil Das. It also appears that unlike the co-accused Sunil Das, the present appellant was not forwarded for recording his confessional statement. This is sufficient to give inference that the present appellant had not made any confession, nor did he volunteer to make any confession. The above circumstances are also suggestive of the fact that even if the police officer had obtained information regarding the place from where the dead body of the deceased could be recovered, such information was revealed to him by the accused Sunil Das who was arrested first in point of time. It also appears that though, the investigating officer has admitted to have recorded the aforesaid purported confessional statements of the two accused persons subsequent to their arrest, but the prosecution has not adduced any such recorded statement in evidence at all. Even on reading the evidence of the witnesses namely, PW4, PW5, PW6 and PW9, it appears that none of them has specifically stated that either of the accused Sunil Das or the present appellant, had in fact pointed out to the place from where the dead body of the deceased was recovered, nor do they describe the manner of pointing out by either of the accused persons. In the case of State of Karnataka v. David Razaria and Anr. Reported in 2002(4) Crimes 296 SC, the Supreme Court had explained the manner of proof required to be adduced in respect of the statement of accused leading to recovery of any fact if such statement is to be sought to be used as admissible u/s 27 of the Indian Evidence Act. In the words of the Apex Court "the statement which is admissible u/s 27 is the one which is the information leading to discovery. Thus, what is admissible being the information, the same has to be proved and not the opinion formed on it by the police officer. In other words, the exact information given by the accused while in custody which led to recovery of the articles has to be proved. It is, therefore, necessary for the benefit of both the accused and prosecution that information given should be recorded and proved and if not so recorded, the exact information must be adduced through evidence. The basic idea embedded in Section 27 of the Evidence act is the doctrine of confirmation by subsequent events. The mere statement that the statement made by the accused led the police witnesses to the place where he had concealed the articles, is not indicative of the information given."

In the instant case, the prosecution has tried to bring forth the evidence through the mouth of the investigating officer that the accused had led the police and witnesses to the place from where the dead body was recovered. In absence of the recorded statement of the accused, and introduction of that part of the statement leading to recovery of the dead body, it cannot be said that the procedure for introducing the evidence u/s 27 of the Evidence Act has been complied with and neither can the said vague and general statement of the investigating officer or even of the witnesses, be used against the appellant.

12. Furthermore, even if the claim of the investigating officer that both the accused person namely, Sunil Das and the present appellant had made statements pointing out the place from where the dead body of the deceased would be found and that at the time of recovery of the dead body, both the accused person were present and the dead body was recovered in presence of other witnesses, such statements are not admissible as against either of the two accused persons. The oral statement of the witnesses without corroboration by any written record of any such statement contemporaneously made, even if admissible, is unsafe to rely upon because of the very nature of the evidence. Furthermore, if the evidence otherwise confessional in character is admissible u/s 27 of the Evidence Act, it is obligatory upon the investigating officer to state and record as to who gives information when he is dealing with more than one accused, or words were used by him so that the recovery pursuant to the information received may be connected to the accused giving information, so as to provide incriminating evidence against that person.

13. In view of the above deficiency in the evidence, it would not be safe to rely upon the testimony of the investigating officer that the dead body of the deceased was recovered on the basis of the information given by the present appellant.

14. As regards the confessional statement of the accused Prakash Das recorded by the Judicial Magistrate u/s 164 Cr. PC, it appears that the accused was arrested on 10.10.2001, while the accused Sunil Das was already in custody. It also appears that while accused Sunil Das was forwarded to the court on 12.10.2001 for recording his confessional statement by the Magistrate, the accused Prakash Das was not forwarded along with Sunil Das on the same day for recording his confessional statement by the Magistrate. Rather, he was forwarded on the next clay i.e. on 13.10.2001. The investigating officer does not offer any explanation for detaining the accused Prakash Das at the police station and for omitting to forward him to the Magistrate along with the accused Sunil Das. This failure on the part of the investigating officer assumes significance in the light of contradiction available in the purported confessional statement of the accused Sunil Das and Prakash Das. Whereas Sunil Das in his statement has not made any reference whatsoever to the present appellant, such reference appears to have been made by the accused Prakash Das in his purported confessional statement. Thus, out of the two, it is the statement of Prakash Das, which purports to create incriminatory evidence against the present appellant. It has now to be seen as to whether statements of the accused Prakash Das recorded by the Magistrate u/s 164 Cr. PC can be considered as reliable and inspiring confidence. It may be remembered that the accused Prakash Das was a minor and was detained in the police lock up for more than 48 hours. He was forwarded to the Magistrate for recording his confessional statement one day after the statement of the accused Sunil Das was recorded. An adverse inference against the prosecution can reasonably be drawn on account of the failure of the investigating officer to explain the reason for not forwarding the accused Prakash Das along with the accused Sunil Das. Inference can also be drawn that the accused Prakash Das was subjected to threats and intimidation to make statement according to the dictates of the police ensuring in the process that the name of the present appellant was also referred to by him in his statement before the Magistrate. As regards the manner of recording the statement of Prakash Das, it is the evidence of the Magistrate (PW10) who claims that the accused Sunil Das was forwarded to him on 12.10.2001 for recording his statement u/s 164 Cr. PC and that after giving the accused a warning as prescribed by law, he proceeded to record the statement of the said accused and after recording the same, he read over the statement to the accused who on finding the same to be true, had appended his signature thereon. The Magistrate adds that he had appended his signature to the recorded statement and had also endorsed his certificate as prescribed by law. The Magistrate admits further that the accused Prakash Das was produced before him on 13.10.2001 for recording his confessional statement and after adopting the same procedure, as was adopted by him earlier while recording the statement of the accused Sunil Das, he had recorded the statement of the licensed Prakash Das and explained the contents of the recordings to the accused who had appended his signature on his statement and below his signature, the Magistrate had also appended his signature and endorsed his certificate as prescribed by law. The Magistrate has admitted in course of his cross-examination that both the accused persons were produced before him by the police and that he did not send either of the accused to judicial custody or lock up before recording their statements. Instead, he had kept them in his own custody for about 25 minutes after sending away the police and thereafter, recorded the statement of the accused persons. Both the accused persons were promptly handed over to the police after the recording of their statement was over. From the above admission of the Magistrate, two facts are confirmed. Firstly, the statement of the accused Sunil Das was recorded on 12.10.2001 and that of the Prakash Das was recorded on 13.10.2001 and that both of them were produced before him by the police. It also indicates that neither of the accused persons were sent away to the lock up or judicial custody for enabling them to reflect and reconsider their intention to give confessional statement. Though, the Magistrate claims to have given time break of 25 minutes to the accused persons to reconsider and reflect their intention keeping them in his own custody, but considering the fact that the police had accompanied the accused to the Magistrate and back to the jail, the time given to the accused for reflection does not appear to be adequate enough.

The procedure laid down under the law for recording statement u/s 164 Cr. PC, is a statutory provision and it emphasizes necessity to comply with the procedure in letter and spirit and not in a routine and mechanical manner. Sufficient time has to be given to the accused to decide whether he was willing to make voluntary confession of his guilt. Satisfaction which the Magistrate has to arrive himself regarding the voluntariness and truthfulness of the confession of the accused, is not an idle formality to be observed in a mechanical manner. The fact that the accused persons were minors and the more important fact that the accused Prakash Das was held in police custody for more than two days from the date of his arrest, are such facts which do not rule out the possibility of the accused being pressurized, tortured or harassed by the police and also the possibility that there was indirect contact and surveillance over the movements of life accused. These possibilities should have been considered by the Magistrate, and bearing this fact in mind, adequate time should have been given to the accused persons for reflection. In the case of Preetam Vs. State of Madhya Pradesh, , the facts of the case had indicated that before recording the statement of the accused u/s 164 Cr. PC, the Magistrate gave two hours time to the accused to reflect prior to his production before the Magistrate by the police after the accused was put under police custody for considerable period. It was observed that the failure of the Magistrate to put questions to the accused to satisfy himself that the confession is made voluntarily so as to enable the Magistrate to give requisite certificate u/s 164(4) Cr. PC, was a flagrant violation of Section 164(2) Cr. PC. Mere endorsement of a certificate by the Magistrate would not therefore fulfill the requirement of Section 164(4) Cr. PC. The confessional statement (Ext.-5 and 5 A) of the accused persons as recorded by the Magistrate, does not indicate anywhere as to the time taken for recording the statement, but even if the claim of the Magistrate that he had given 25 minutes time to each of the accused to relied and reconsider, it does not appear to be satisfactory enough and it suggests that the mandatory procedure for recording the statement was not complied with in letter and spirit. Judicial confessions can no doubt form a basis for conviction, provided it is found to be truthful, deliberate and voluntary. The voluntary nature of confession depends upon whether there was any threat, inducement or promise and it is true as judged on the basis of the entire case of the prosecution.

Furthermore, it appears that though, both the accused persons namely Sunil Das and Prakash Das had made confessional statement of their guilt, but there is glaring inconsistency in their statements in relation to the reference made to the present appellant. On reading the purported confessional statement of both the accused persons, there appears consistency only to the extent as to the manner in which deceased was induced to come out from his house and was taken to the house from where his dead body was subsequently recovered and as to the manner in which the deceased was done to death. Reference of the involvement of the present appellant appears only in the purported confession of the accused Prakash Das, while the statement of the accused Sunil Das is totally silent regarding the involvement of the present appellant. It appears therefore that there is inconsistency between the case of the prosecution vis-a-vis purported confessional statement of the accused persons. The circumstance further indicate that placing reliance upon the purported confession of the accused Prakash Das, in absence of any corroborative evidence on the point of the involvement of the present appellant in the crime, would be hazardous and certainly not a piece of clinching evidence against the appellant.

15. The prosecution has not proved and established any of the two circumstances against the appellant. There is no other evidence appearing in the prosecution''s case which could link the present appellant with the alleged crime. The conviction of the appellant based entirely on the aforesaid circumstances, cannot therefore be sustained. Accordingly, the impugned judgment of conviction and sentence as passed by the learned trial court against the appellant is hereby set aside and this appeal is allowed. Appellant is acquitted from the charges for the offences under Sections 302/34, 364/34 and 201/34 IPC. Since the appellant (Deo Krishna Das @ Laloo) is in custody, he is directed to be released forthwith, if not wanted in connection with any other case.

D.K. Sinha, J.

16. I agree.