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CASE NO.: Appeal (crl.)  688 of 2003

PETITIONER: Sidharth,  etc.  etc.                                            

RESPONDENT: State of Bihar                                                   

DATE OF JUDGMENT: 30/09/2005

BENCH: K.G. Balakrishnan & B.N. Srikrishna

JUDGMENT: J  U D G M E N T With CRIMINAL APPEAL NOS. 689 OF 2003 AND 736 OF 2003

K.G. BALAKRISHNAN, J.

All  the three appellants were found guilty by the Sessions Court  for various offences.     Appellant Arnit Das was found guilty of the  offence under Section 27 of the Arms Act as also for the offence under  Section 302 read with Section 120B IPC and sentenced to death.     Appellant Sidharth   was convicted for the offence under Section 302  read with Section 34 and Section 120B IPC and appellant Rohan  Prakash was convicted for the offence under Section 302 read with  Section 120B IPC.  The two appellants who were sentenced to undergo  imprisonment  for life,  filed  separate appeals before the High Court of  Patna and their conviction on all counts was confirmed.   In the appeal  preferred by Arnit Das, his conviction was confirmed but the sentence  of death imposed on him was commuted to life imprisonment.

       All these appellants were tried by the Sessions Court alleging  that they entered into a conspiracy on 4.9.1998 to do away with  one  Abhishek.   Deceased Abhishek, along with appellant Rohan Prakash,  and two others, namely, Shweta and Anvesh, used to attend tuition  classes at the residence of Prof. J.C. Banerjee from 5.00 p.m. to 6.00  p.m. and again from 7.00 p.m. to 8.00 p.m.  Another student by  name, Pallavi, used to get tuition from Prof. J.C. Banerjee from 6.00  p.m. to 7.00 p.m.    Appellant Sidharth told appellant Arnit Das that  appellant Rohan Prakash was in love with Pallavi but she was not  responding and instead she had expressed her love towards deceased  Abhishek and, therefore, he is to be killed.  According to the  prosecution, appellant Sidharth told appellant Arnit Das that all  arrangements had been  made to kill Abhishek and if appellant Arnit  Das kills him, he would be introduced to veteran criminals,  including  one Suraj Bhan.     Appellant Sidharth gave the description of  deceased Abhishek to appellant Arnit Das and on 4.9.1998, he  promised to provide a firearm to appellant Arnit Das.    On 5.9.1998 at  about 5.00 p.m, appellant Arnit Das came to the room of appellant  Sidharth where the latter provided him with a double barrel country- made pistol, and loaded two cartridges in the pistol in his presence.   Two extra cartridges were also given.    Appellant Arnit Das was  directed to go to the house of Prof. J.C. Banerjee and request the  deceased, Abhishek to come out of the tuition class.  He was told that  appellant Rohan Prakash would help him to identify Abhishek.    As  part of the conspiracy thus hatched by these three appellants, at about  7.15 p.m. on 5.9.1998, appellant Arnit Das went to the house of Prof.  J.C. Banerjee.     His wife Rekha Banerjee was in an adjoining room  and   appellant Arnit Das told her that he wanted to meet Abhishek.   Abhishek came out of the tuition class followed by appellant Rohan

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Prakash.  The further case of the prosecution is that appellant Arnit  Das took Abhishek ten to twelve steps away from the gate of the  house of Prof. Banerjee, caught hold of him and fired a shot at him  from a close range.  Appellant Arnit Das fired one more shot, but it did  not hit the deceased.   Appellant Rohan Prakash, who had, in the  meanwhile returned inside Prof. Banjeree’s house,  wanted to go to  the gate, but on hearing the shot, Mrs. Rekha Banerjee  caught hold of   his hand and advised him not to go out as she had heard the sound of  firing of a shot.  But appellant Rohan Prakash came out of the house  and saw Abhishek lying on the ground with bleeding injury.  He saw  the assailant making good his escape on a bicycle.  It is pertinent to  note here that the prosecution case was that though appellant Rohan  Prakash was one of the abettors   in this murder, he pretended to be  ignorant and after the incident, to mislead the police, he himself gave  the F.I .Statement.  Appellant Rohan Prakash   looked at injured,  Abhishek, and took him to the hospital in the car  which incidentally  belonged to  Dr. Neel Kamal,  father of Pallavi.     Abhishek,  was  taken to Shahi Clinic where he underwent a surgery but  died on the  next day.  Appellant Rohan Prakash stated in the FI Statement that  deceased Abhishek was being threatened  by some students of the  college and this had caused some tension to him.   

       Based on the First Information Report given by appellant Rohan  Prakash, a case was registered, the inquest report prepared and the  ’Fardebeyan’ recorded.    The police could not get any clue regarding  the murder and they suspected the involvement of appellant Arnit Das.   On 13.9.1998, PW 21, the Investigating Officer raided the house of  appellant Arnit Das.  On interrogation by the police, appellant Arnit  Das made a clean breast of the entire incident to the police.   He   showed the wearing apparels worn by him at the time of the incident  and the cycle he had used to escape from the scene of occurrence.   The pants, shirt and the cycle were taken into custody.  Appellant Arnit  Das was arrested and he was produced before the Chief Judicial  Magistrate on the next day.  PW 21, the Investigating Officer gave an  application before the Chief Judicial Magistrate stating that appellant  Arnit Das wanted to make a confession before the Magistrate.   The  Chief Judicial Magistrate directed PW7 Deepak Kumar Singh, the  Judicial Magistrate to record the confession of  appellant Arnit Das.   PW-7 recorded the statement and on the basis of the information  furnished by appellant Arnit Das,   the  other appellants were  arrested  and after completion of the Investigation,  the final report was filed  before the court.

       Before the Sessions Court, 21 witnesses were examined.  The  main evidence relied on by the prosecution was the confession made  by appellant Arnit Das before PW 7 Judicial Magistrate, as also his  extra-judicial confession made to PW 8 Arko Pratim Bannerjee.  The  prosecution also relied on the F.I. Statement given by appellant Rohan  Prakash to show his involvement in the conspiracy and the attempt  made by him to mislead the police and to prevent the police from  tracing out the real culprits.  To prove the motive, the prosecution  relied on the evidence of some of the prosecution witnesses, mainly  the evidence of the father of the deceased, Dr. Ajit Singh, and the   evidence of one hostile witness.

       Appellant  Sidharth  had set up a plea of alibi and stated that at  the relevant point of time, he was receiving tuition from DW 2 Mohan  Prasad and examined witnesses  to prove the alibi.  Appellant Rohan  Prakash completely denied any part in the conspiracy and alleged that  he was falsely implicated by the father of the deceased.   Though  appellant Arnit Das  had given a statement at the time of questioning  under Section 313 Cr.PC that he had not made any confession before  the Magistrate, he filed an application stating that he was severely  tortured by the police  and was taken to the Magistrate for his  confession, and alleged that the police had prepared the confession.  

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The Sessions Court accepted the prosecution version and convicted the  appellants accordingly.    

It may be noticed at this juncture that appellant Arnit Das when  produced before the Chief Judicial Magistrate stated that he was below  16 years of age; therefore, he was entitled to the benefit of the  Juvenile Justice Act, 1986.    As per Section 2(h) of the Juvenile Justice  Act, 1986,   ’Juvenile’ is defined  as "a person who has not attained the  age of 16 years."   According to appellant Arnit Das,  he had not  attained the age of 16 years as on the date of occurrence.  This  question was considered by the Juvenile Court and appellant Arnit Das  gave oral and documentary evidence before the Juvenile Court.  The  Juvenile Court came to the conclusion that appellant Arnit Das was  above 16 years of age as on the date of the occurrence and therefore  not entitled to the benefit of the Juvenile Justice Act, 1986.     Appellant Arnit Das preferred an appeal against the order passed by  the Juvenile Court before the Sessions Judge, Patna.  The Sessions  Judge, Patna dismissed the appeal and the appellant thereafter filed  a  Criminal Revision before the High Court of Patna.  The High Court  held  that the appellant was  above  16  years  of  age as on the date of  occurrence, i.e.,  on 5.9.1998, and therefore  not entitled to invoke the  provisions of  Juvenile Justice Act, 1986.  The appellant thereafter  preferred  a Special Leave to Appeal (Criminal) No. 729 of 2000   (Criminal Appeal no. 496 of 2000)  which was considered and this  Court came to the following finding:-

       "So far as the finding regarding the age of the appellant is  concerned, it is based on appreciation of evidence arrived  at after taking into consideration of the material available  on record and valid reasons have been assigned for it.  The  finding arrived by the learned A.C.J.M. has been  maintained by the Sessions Court in Appeal and the High  Court in Revision.  We find no case having been made  out   for interfering therewith. "

The appellant thereafter filed a Review Petition and it was  contended that the finding of the two Judge Bench of this Court was in  conflict with the view taken by this Court in Umesh Chandra Vs.  State of Rajasthan 1982(2) SCC  202 wherein it was held that the  relevant date for consideration of the age to determine the  applicability of the Juvenile Justice Act is the date of occurrence and  this view was in conflict with the earlier decision where the crucial date  for determining the question whether the accused was a juvenile or  not was the date on which he was brought before the competent  authority.  In view of this conflict of opinion, the matter was referred  to a bench of five judges and the bench dismissed the review petition  filed by appellant Arnit Das.

       Despite these findings entered into by the Court against the  appellant regarding the applicability of the Juvenile Justice Act, 1986,  the learned Counsel for the appellant contended that the appellant is  entitled to the benefit of the Juvenile Justice (Court  & Protection of  Children) Act, 2000 (hereinafter being referred to as "Juvenile Justice  Act, 2000") which came into force on 30th December, 2000.  The  learned Senior Counsel Shri Sanyal made a fervent plea before us that  the appellant was a "juvenile"  as per the definition of Juvenile Justice  Act, 2000 and thus entitled to the benevolent provisions of Section 20  of that Act.  It was contended that no sentence of imprisonment for  life could have been passed against this appellant.  Learned Counsel  for the State, on the other hand,  pointed out that appellant Arnit Das  is not entitled to the benefit of the Juvenile Justice Act, 2000 as he had  already completed 16 years as on the commencement of the Act.  So  he could not be held to be a "Juvenile" within the meaning of Section  2(k) of the Juvenile Justice Act, 2000.

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       The learned Counsel for this appellant urged before us that the  documents produced by the appellant before the Juvenile Court were  not properly considered and there was a serious error in the finding of  the Chief Judicial Magistrate regarding the determination of the age of  this appellant.  Appellant Arnit Das challenged the finding of the Chief  Judicial Magistrate,  but he could not succeed and at this stage the  appellant cannot challenge that finding as the decision has become  conclusive and final and the Juvenile Justice Act 2000 also cannot be  applied as he would not be a "juvenile" as defined under that Act.

       As noticed earlier, the main evidence adduced by the prosecution  is the confession made by  appellant Arnit Das before PW 7 Judicial  Magistrate as also the extra-judicial confession made by him before  PW 8 Arko Pratim Bannerjee.  The question before us is whether the  confession made by appellant Arnit Das could be made use of  against  the other two appellants  as a substantive evidence and what is the  evidentiary value of that confession  in view of Section 30 of the  Evidence Act.  The learned Counsel appearing for the State of Bihar  submitted that the confession made by appellant Arnit Das, to a great  extent,  was admissible under Sections 10 and 30  of the Evidence Act.   It was argued that there was a  prima facie evidence of conspiracy  against all the appellants, and as appellants Sidharth and Rohan  Prakash were participants in this conspiracy,  the confession made by  appellant Arnit Das could be made use of against the other two  appellants as well.

Before going into this question, it is to be considered whether  the confession made by  appellant Arnit Das is genuine and voluntary  or whether it was caused by any inducement, threat or promise.  The  learned counsel for the appellants strongly urged before us that the  judicial confession made by  appellant Arnit Das is tainted with so  many legal infirmities.  Firstly, it was contended  that the confession  has already been retracted by appellant Arnit Das; therefore, it is not  admissible.  It was argued that  appellant Arnit Das was severely  beaten up and the  alleged confession is not voluntary in nature and  that the police extracted the confession and got it prepared  with the  connivance of the Magistrate.  The learned Counsel for the appellants   contended that the learned Magistrate failed to comply with the  mandatory guidelines issued by the High Court of Patna for recording  the confession statement under Section 164 Cr. PC.  It was argued  that the Magistrate failed to give sufficient time for reflection and the  accused was produced virtually from the police custody and he had   been under the supervening influence of the police and was not having  free mind to give any statement before the Magistrate.  In view of the  serious contentions raised by learned Counsel  for the appellants  against this judicial confession, we have considered these items of  evidence with meticulous detail and given our thoughtful consideration  as to whether the confession made by appellant Arnit Das is vitiated  by any legal infirmities.

       The  confession  of  the  accused  Arnit  Das  was  recorded  by  PW 7.  PW 7 complied with all the requisite formalities contemplated  under Section 164 of the Code of Criminal Procedure.  The accused  when produced before PW 7 had no complaint that he was tortured by  the police.  When he was produced before the Chief Judicial Magistrate  for the purpose of remand, then also he had no complaint of any  torture by the police.  PW 7 put series of questions to accused Arnit  Das to find out whether he was making a voluntary confession.   Learned Counsel for the appellant contended that the Magistrate had  not put any questions to find out the mental condition of the accused.   This plea is not correct as the Magistrate had specifically ascertained   from the appellant  whether he was making a voluntary statement.   Appellant,  Arnit Das was told by the Magistrate that he was not bound  to make any statement and that in case he makes a statement, it  would be used against him.  PW 7 had recorded in the proceedings

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paper that two hours’ time was given to accused Arnit Das for  reflection.  The learned Counsel for the appellant contended that it is  incorrect and that  the accused was not given any  time for reflection  and  straightaway produced before the Magistrate to give the  statement.  The defence  had adduced some evidence to show that the  entry made in the register of the remand home would prove that the  accused was not given enough time for reflection for making  the  confession before the Magistrate.  This evidence of PW7,  PW8 and  PW9 was discussed in detail by the Sessions Court and it was found  that the entries were not genuine and contained interpolations and the  evidence of these witnesses was not sufficient to prove that the  Magistrate had not given two hours time before the accused made the  confession.   

       The learned Counsel for the appellant  contended that even if  two hours time was given to the accused it was not sufficient.  He  further contended that  this Court in Sarwan Singh Rattan Singh Vs.  State of Punjab AIR 1957 SC 637  had observed  that accused  person  should at least be given 24 hours time to decide whether or  not he should make a confession.  It may be noted that in the very  same judgment it was stated that it would naturally be difficult to lay  down any hard and fast rule as to the time which should be allowed to  an accused person in any given case before recording his confession  under Section 164 Cr.P.C.

       It is true that accused Arnit Das had retracted the confession  made by him before PW7.  At one stage, he made a statement that he  had not given any confession at all before the Magistrate and it was all  cooked up by the police to support the prosecution.  The confession  made by accused Arnit Das is a detailed confession giving out so many  facts connecting him with accused Sidharth and Rohan Prakash.  He  has divulged all details regarding the conspiracy and the way in which  the murder had taken place.  The very nature of the confession given  by accused Arnit Das would show that it was voluntary in nature and  was not at the instance of the police.  In the confessional statement,  he stated that accused Sidharth,  himself and Rohan Prakash were  good friends and Rohan Prakash and Sidharth were boys  of rowdy  character and  that accused Sidharth used to visit his house with  country-made pistol and other fire arms.  On 1.9.1998, accused  Sidharth asked him to assault Abhishek, the deceased,  but he refused  to do so and on 4.9.1998, at about 5.00 p.m., he went to the house of  accused Sidharth.  Accused Rohan Prakash and  Lakshman, the  servant of accused Sidharth were present and they all gathered in a  room on the ground floor of the house of accused Sidharth,  and on  that day, accused Sidharth told him that Rohan Prakash was in love  with a girl named Pallavi,  but Pallavi liked Abhishek, the deceased,  and therefore, Abhishek is to be killed.  Accused Arnit Das was told  that he should kill Abhishek and  that all settings had been done to kill  him.  He was further told that if he killed  Abhishek, he would get him  acquainted with veteran criminals, including one Suraj Bhan.  Accused  Arnit Das  spent about  two to three hours in that room and  he was  instructed to go to the residence of Prof. J.C. Banerjee at 7.00 p.m. on  5.9.1998 as Abhishek would be getting tuitions  there.   Accused Arnit  Das was further told to    call him  out  of the class and  shoot him.   On 5.9.1998, accused Sidharth gave him a two bore country-made  pistol loaded with two cartridges and two extra cartridges were also  given.  Accused Arnit Das kept the country-made pistol in the right  side pocket of his jeans and covered the same by his T-Shirt.  Accused  Arnit Das left the house of Sidharth at about 6.00 p.m. on 5.9.1998  and reached the gate of  the house of Prof. J.C. Banerjee at about 6.30  p.m.  The house was shown to him by accused Sidharth.  Deceased  Abhishek had  come to the house of Prof. J.C. Banerjee alongwith  another boy.  The wife of Prof. J.C. Banerjee was sitting in the  verandah.  Accused Arnit Das in his confession further stated that he  was in two minds as to whether he should kill Abhishek or not.   At

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that time, accused Sidharth came to him and told him that the boy  who had come alongwith deceased Abhishek had returned and that he  should now go, call Abhishek out and kill him.  He was warned that  if  he did not kill him,  he (Arnit) would be killed.  Accused Arnit Das went  to the house of Prof. J.C. Banerjee and asked Mrs. Banerjee about  Abhishek.  Deceased Abhishek and accused Rohan Prakash came out  and accused Rohan Prakash pointed  towards Abhishek.   Accused  Arnit Das then  told Abhishek to come out for a minute as accused  Sidharth was calling him.  When Abhishek came out, he took him 10 to  12 steps away from the gate on the pretext of meeting Sidharth and  told him that he was having affairs with girls of Science College and  spoiling their career,  and saying so,  he caught hold of Abhishek but   Abhishek managed to   get himself released by a quick jerk and caught  hold of the  left hand of accused Arnit Das.   However,  using the right  hand, accused Arnit Das took out a country-made pistol from his  pocket and shot at him.    As Abhishek tried to run from there,  Arnit  Das   fired a second shot but it did not hit him.   Abhishek fell down  and accused Arnit Das ran towards his bicycle with the pistol and the  remaining cartridges and saw Sidharth standing at a distance.  He  heard accused Rohan Prakash shouting there.    He stated that after  the incident  he was very much afraid.  At about quarter past eight on  that day,  Sidharth came to his house and told him that he had done  the job well.  On the next day,  Lakshman came to his house and  told  that Sidharth ’bhaiyya’ had asked him to go out of Patna, but he  declined to do so  on the ground that the school was scheduled to re- open on 14.9.1998.  Lakshman also told that if accused Sidharth was  implicated, accused Arnit would be shot.  Arnit Das gave the country- made pistol and two cartridges to Lakshman.  At that time, his friend  Arko Pratim Banerjee was also present.  Taking the country-made  pistol and cartridges Lakshman went away.  On 13.9.1998, accused  Arnit Das was picked up by the police for interrogation and  he  disclosed the entire facts to police.

       The genuineness of the confession is to be decided on the basis  of the extensive evidence, which lends corroboration to the confession.   In the case of confession made by accused Arnit Das,  it is amply  corroborated by the following material evidence.

1.  The fact that deceased Abhishek died of  a firearm  injury is proved by the satisfactory evidence given by PW 3  Dr. Arvind Kr. Singh,  who conducted the post-mortem  examination.  He deposed that there was a firearm injury  on the body of deceased Abhishek and  that he must have  been shot at  from a close range, as there was blackening  and charring of the wound.  The medical evidence is in  consonance with the confession made by accused Arnit  Das.  The accused was arrested on 13.9.1998 and on the  very same day, the cycle  used  and the clothes allegedly  worn by him at the time of committing the murder,  were  recovered by the Investigating Officer.  

2.  The evidence of PW-5 is also relevant.    PW-5 BM  Shahi is a teacher residing in the vicinity   of the place of  incident.    He heard the sound of  two rounds of firing and  also  the voice saying   "Arnit ab bhago".      PW-6 is  another witness who saw  appellant  Sidharth running  away from the place of occurrence.    He too heard the  sound of firing.   

3.  Another important evidence which is consistent with  the confession made by appellant Arnit Das   is the  evidence of  Arko Pratim  Banerjee, who was examined as  PW-8.   PW-8 is a friend of  Arnit Das.   On 5.9.1998, that  is, on the date of the occurrence at about 7.30 P.M. he had  gone to the house of  appellant Arnit Das.   He found Arnit

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Das in a state of nervousness  and made enquiries.      Arnit Das told him that he had committed the murder of  Abhishek.   He told him  that he had  fired a shot at  Abhishek in front of the house of Prof. Banerjee.  Then  appellant Arnit Das  showed a double barrel pistol and two   cartridges and gave the cartridges to him and asked him to  return the same on the next day.        PW-8 could not  believe this and he returned to his house.   On the next  day he read the newspaper and  came to know that  Abhishek had been shot.     PW-8 got  frightened  and  went to the house of Arnit Das and returned the empty  cartridges  which he had received on the previous day.     PW-8 further deposed that  the parents of Arnit Das came  to know that Arnit Das had been concealing something.    In the evening,  PW-8  again went to the house of Arnit  Das and there he saw Lakshman, the servant of Sidharth.     PW-8 heard Lakshman  saying that   "Sidharth bhaiya had  advised Arnit Das to flee away to Bengal".     This witness  again went to the house of Arnit Das on 7.9.98.    Lakshman was present again and all the three went to the  terrace of the building.     Arnit Das handed          over a  double barrel pistol and empty cartridges to Lakshman.    Though PW-8 went to the house of Arnit  Das on 9.9.98,  he could not meet  him.     Police came to his house on  14.9.98 and took his statement  and later his evidence   was recorded by the Magistrate.   PW-8 was cross- examined by the counsel for appellants Sidharth and Arnit  Das,  but the evidence of this 17 years old boy could not  be shaken to any extent.   The unimpeachable evidence  of  PW-8 gives complete corroboration to what had been  stated by Arnit Das in his confessional statement.

4.   It is also important to  note that appellant Arnit Das  mentioned in his confession that he himself along with  accused Rohan Prakash and Sidharth assembled in a room  in the house of Sidharth.  He gave detailed description of  the room.   The investigating officer  later visited this room   and prepared the report and the description of that room  tallied with the description given by Arnit Das in his  confessional statement.

       The confession made by appellant Arnit Das is voluntary and is  fully corroborated by the above items of evidence.   The Sessions  Judge was perfectly justified in relying on the confession made by  appellant Arnit Das.  

The learned Counsel for the State extensively relied on Section  10 of the Evidence Act and contended that the confession made by  appellant Arnit Das fully implicates appellant Rohan Prakash and  Sidharth and as the charge of conspiracy made against all the three  accused persons is satisfactorily proved, the confession made by  appellant Arnit Das is admissible under Section 10 of the Evidence Act.   The learned Counsel for the appellant, on the other hand, contended  that the words used in Section 10 of the Evidence Act are not capable  of being widely construed.  He argued that the statements made in the  confessions related to the past acts done by the accused  and they  were made after the object of conspiracy had been accomplished. It  was argued that things said, done or written while the conspiracy was  afoot are relevant as evidence of the common intention once  reasonable ground has been shown to believe in its existence,  but it  would be a very different matter to hold that any narrative or  statement or confession made to a third party after the common  intention or conspiracy was no longer operating and had ceased to  exist,  is admissible against the other party.    Reliance was placed by  the appellant’s learned Counsel on the decision of the Privy Council in

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Mirza Akbar Vs. The King-Emperor 1940-41(45) C.W.N. 269 and  also the decision of this Court in Mohd. Khalid Vs. State of W.B.  (2002) 7 SCC 334.  The learned Counsel for the State on the other  hand, relied on the decision in Ammini & Ors. Vs. State of Kerala  (1998) 2 SCC 301 and also in State through Superintendent of  Police, CBI/SIT Vs. Nalini and Others(1999) 5 SCC 253.  The  confession made by appellant Arnit Das was made after the common  intention of the parties was no longer in existence.  There is some  force in the contention advanced by the learned Counsel for the  appellant; therefore, we do not propose to invoke Section 10 as  against appellants  Sidharth and  Rohan Prakash.

       The counsel for appellants Sidharth and Rohan Prakash  further  submitted that the confession made by Arnit Das shall not be used  against these two accused as the confession of a co-accused shall not  be the basis for a conviction.   It was submitted that the confession of  a co-accused is not an evidence and it cannot be taken into  consideration as against other accused persons.   It was submitted  that the confession made by a co-accused  cannot be sufficient to  convict  the other accused and the confession statement  can only  be  treated as a corroborative piece of evidence.  It was argued that in   the absence of other reliable  evidence against Sidharth and Rohan  Prakash, the confession made by Arnit Das shall not be used against  them.

       It is true that the confession made by a co-accused shall not be  the sole basis for a conviction.   This Court in Kashmira Singh vs.  The State of Madhya Pradesh   AIR 1952 SC 159 held  that the  confession of an accused person is not evidence in the ordinary sense  of the term as defined in Section  3.   It cannot be made the  foundation of a conviction and can only be used in support of other  evidence.   The proper way is, first, to marshall the evidence against  the accused excluding the confession altogether from consideration  and see whether, if it is believed, a conviction could safely be based on  it.   If it is capable of belief independently of the confession, then of  course it is not necessary to call the confession in aid.     But cases  may arise where the Judge is not prepared to act on the other  evidence as it stands,  even though, if believed, it would be sufficient  to sustain a conviction.    In such an event   the Judge may call in aid  the confession and use it to  lend assurance to the other evidence and  thus fortify himself in believing what without the aid of the confession  he would  not be prepared to accept.

       This  view  was  later followed in Haricharan Kurmi & Anr. vs.  State of Bihar AIR 1964 SC 1184.   The Constitution Bench held that  the confession of a co-accused person cannot be treated  as   substantive evidence and can be  pressed into service only when the  Court is inclined to accept other evidence and feels the necessity of  seeking for an assurance in support of its conclusion deducible from  the said evidence.

       Therefore,  it is necessary to assess the evidentiary value of the  confessional statement of Arnit Das in the light of other evidence  adduced in this case.    The complicity of the other two accused  persons is to be ascertained   from the other items of evidence.  Apart  from the confession, the complicity of  accused Sidharth is borne out   from the other independent evidence.    The evidence of PW-6 Rajeev  Ranjan clearly shows  that  accused Sidharth was present at the place  of occurrence.    PW-6 had seen him running away from there.  At the  time of  his evidence,  he deposed  that he  was in a perplexed   condition.    The counsel for the appellant  pointed out that this was  not stated by the said witness to the police.  But, nevertheless, the  evidence of PW-6  would show that  appellant Sidharth was present at  the place of occurrence and was escaping from there immediately after  the firearm was shot.    The evidence of PW-6 gets corroboration from

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the evidence of PW-18,  the father of deceased Abhishek.   PW-18  deposed that on 5.9.98, PW-6 informed him that while he was  returning  to his house after purchasing some goods from the market,  he heard  the sound of firing of two shots and he just stayed there for  a while after hearing the shots and saw Sidharth running from  eastern   side  towards  western  side of the park.  PW-6   enquired from  Sidharth what had happened but Sidharth ran away towards his house  without saying anything.   PW-18 also deposed  that PW-6 Rajeev  Ranjan told him that Sidharth was running in a very suspicious  manner.    On the contrary, this  appellant tried to prove that he was  not  present at the place of occurrence  and examined defence  witnesses, but the Sessions court disbelieved these witnesses for valid  reasons.  

The evidence of PW-8 Arko Pratim Banerjee also supports the  prosecution version.    He saw Lakshman in the house of appellant  Arnit Das and also heard Lakshman say  to Arnit Das that "Sidharth  bhaiya had advised him to flee away to Bengal."   The involvement of  appellant Sidharth in the crime is  satisfactorily proved by these items  of  evidence.  It may also be noticed that according to prosecution,  there was a conspiracy between appellant Arnit Das and  the two other  appellants.    In that view of the matter, the confession made by  co- accused Arnit Das could be made use of against  appellant Sidharth  under Section 30 of the Evidence Act.

       In  the confession made by appellant Arnit Das, he has explained  in detail the involvement of appellant Sidharth in the crime.  He stated  that on 1.9.1998, he was asked to assault Abhishek, but he refused to  do so and  again on 4.9.1998 he was called to the house of Sidharth  and told that though he had made attempts to assault Abhishek many  times, he escaped and Sidharth wanted Arnit Das to kill Abhishek.     Appellant  Sidharth told  him that if he killed Abhishek,  he would  make him acquainted with notorious criminals, including one Suraj  Bhan.  In the confession,  appellant Arnit Das explained as to how the  mission was to be carried out.  Description of Abhishek also was  mentioned.  Again, on 5.9.1998 he met Sidharth at his residence  where the latter gave him  a double bore country-made pistol and  loaded two cartridges in his presence and two extra cartridges were  also given.  Arnit Das further stated in his confession that he went to  the residence of Prof. J.C. Banerjee at about 6.30 p.m. and Sidharth  too came and told him to call Abhishek out and kill him.  Appellant  Arnit Das told in his confession that he called Abhishek out  of Prof.  Banerjee’s house and shot him with  the country made pistol and  at  that time saw Sidharth standing at a distance.  Arnit has further stated  that at quarter past eight on that day,   Sidharth came to his house  and told him that he had  accomplished the job.  On 7.9.1998   Sidharth   sent  his  servant   Lakshman to Arnit Das  to  tell him to   go  out  of  Patna,  and  that  if Sidharth was implicated,  he would  shoot him (Arnit).   Therefore, the confession made by appellant Arnit  Das clearly supports the other items of evidence against Sidharth and  his participation in the conspiracy and his role in the crime is fully  established.

       But as regards appellant Rohan Prakash, his conduct and  behaviour on the date of the occurrence were of highly suspicious  nature.  Appellant Rohan Prakash was present in the tuition class  along with deceased Abhishek.  Appellant Arnit Das came to the house  of Prof. Banerjee at about 7.00 p.m. on 5.9.1998 and met Mrs. Rekha  Banerjee and enquired about Abhishek.  At that time, appellant Rohan  Prakash and deceased Abhishek were attending the tuition classes.   Appellant Arnit Das introduced himself as a friend of Abhishek to Mrs.  Rekha Banerjee and requested to call him.  Abhishek came out  followed by Rohan Prakash.  Shortly thereafter, PW 11 Prof. Banerjee  heard the sound of firing.   When the sound of firing was heard,  appellant Rohan Prakash wanted to go out  in that direction.  Although

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Mrs. Rekha Banerjee tried to  prevent him from going out,  he  managed to  extricate himself and went out  to the  place of  occurrence  and  later  gave  the  F.I. statement to the police.   The  F.I. statement given by appellant Rohan Prakash was in a way a  misleading one.  It is true that there was no necessity for appellant  Rohan Prakash  to come out of  the tuition class.  In the confession  statement made by appellant Arnit Das, he has mentioned that  appellant Rohan Prakash is one of the conspirators.   Apart from the  suspicious conduct of appellant Rohan Prakash on the date of the  incident, there is no other evidence against him.  Therefore, it is  difficult to hold that there is other independent evidence to find him  guilty of the  murder and as there is no independent evidence against  Rohan Prakash, the confession made by the co-accused Arnit Das  cannot be made as supporting evidence under Section 30 of the  Evidence Act.   In our view, the prosecution has not succeeded fully in  proving the guilt of appellant Rohan Prakash. The independent  evidence is not sufficient to prove that he had actively participated in  the conspiracy. The conduct exhibited by this appellant would cast  serious suspicion on him, but that by itself is not sufficient to find him  guilty of the offence under Section 302  read with Sections 34 and  120-B IPC.   In our view, appellant Rohan Prakash is entitled to get the  benefit of doubt.   Criminal Appeal   No. 736 of 2003 filed  by Rohan  Prakash is, therefore,  liable to be allowed.

Appellant Arnit Das made his confession before the Judicial  Magistrate and his confession is corroborated by other items of   evidence.  He had also made extra-judicial confession to PW-8 Arko  Pratim Banerjee.    The confession made by appellant Arnit Das was  not under any inducement, threat or promise and is voluntary in   nature.   Therefore,  it is perfectly admissible under the Evidence Act.    The conviction and sentence entered against  appellant Arnit Das on all  counts are not liable to be interfered with.  Criminal No.  689 of 2003  filed by appellant Arnit Das is liable to be dismissed.

Appellant Sidharth  has been proved to have actually  participated in the conspiracy.   There is independent evidence to  prove that he made all the arrangements pursuant to the criminal  conspiracy and induced appellant Arnit Das to commit the murder of  deceased Abhishek.    Sidharh was present at the scene of the  occurrence and that fact  is proved by the evidence of PW-6  corroborated by the evidence of PW-18.  It is proved that Sidharth  abetted the commission of the murder and as he  was present at the  scene of occurrence at the time of commission of the crime, Section  114 of the Indian Penal Code also would  apply.   Section 114 IPC  provides that "whenever any person, who is absent would be liable to  be punished as  an abettor, is present when the act or offence for  which he would be punishable in consequence of the abetment is  committed, he shall be deemed to have committed such act or  offence."  The independent evidence adduced against appellant  Sidharth is further corroborated by the confession made by appellant  Arnit Das.   The conviction of appellant Sidharth under Section 302  read with Section 120-B and 34 IPC is only to be confirmed.   Consequently, Criminal  Appeal No. 688 of 2003 is liable to be  dismissed.

Lastly, we may point out that in the present case, we have  noticed that the entire case diary maintained by the police was made  available to the accused.   Under Section 172 of the Criminal  Procedure Code, every police officer making an investigation  has to  record his proceedings in a diary setting forth the time at which the  information reached him, the time at which he began and closed his  investigation, the place or places visited by him and a statement of the  circumstances ascertained  through his investigation.     It is

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specifically provided in Sub-clause (3) of  Section 172 that neither the  accused nor his agents shall be entitled to call for such diaries nor  shall he or they  be entitled to see them merely because they are  referred to by the Court, but if they are used by the police officer who  made them to refresh his memory,  or if the Court uses  them for the  purpose of contradicting such police officer, the provisions of  section  161  of the Cr.P.C. or the provisions of section 145 of the Evidence Act  shall be complied with.   The Court is  empowered to call  for such  diaries  not to use it as evidence  but to use it as aid  to find out  anything that happened during the investigation of the crime.  These  provisions have been incorporated in the Code of Criminal Procedure to  achieve certain specific objectives.  The police officer who is  conducting the investigation may come across series of information  which cannot be divulged to the accused.    He is bound to record such  facts in the case diary.   But if  the entire case diary is made available  to the accused, it may cause serious  prejudice to others and even  affect  the safety  and security of those who may have given  statements to the police.    The   confidentiality   is always kept in the  matter of criminal investigation and it is not desirable to make  available   the entire case diary  to the accused.  In the instant case,  we have noticed that the entire case diary was given to the accused  and the investigating officer was extensively cross-examined on many  facts which were not very much relevant for the purpose of the case.   The  learned Sessions Judge  should have been careful in seeing  that  the trial of the case was conducted in accordance with the provisions  of the Cr. P.C.  

       In the result, we allow the Criminal Appeal No. 736/2003 filed by  appellant Rohan Prakash and he is directed to be set at liberty  forthwith if not required in any other case.  Criminal Appeal No.  688/2003 filed by appellant Sidharth and Criminal Appeal No.  689/2003 filed by appellant Arnit Das are dismissed.