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5. The learned Additional Sessions Judge convicted the appellant under Section 396, I.P.C. while acquitting them of the charge under Section 302/34, I.P.C. on the basis of the confessional statements, the evidence of identification in Court and the oral evidence of P.W. 16, whose assistance was taken, as alleged by the prosecution, by the culprits in locating the house of Lingaraj Panda.

6. Mr. A. Mohanty, the learned counsel for the appellants, has assailed the conviction of the appellants contending that the confessional statements were contrary to the mandatory requirement of law; there were serious lapses in the recording of the confessional statement. No step was taken for removing the police influence and practically no time was allowed for cool reflection. Identification after gross delay had no corroborative value. When witnesses had opportunity of seeing the accused prior to the date of identification prade, their identification was meaningless. Hence, the subsequent identification in Court was valueless, and reliance upon P.W. 16, an opium addict and a chance witness, was improper. Besides his evidence was in the nature of an accomplice.

7. On 16-5-78 appellant Bikal alias Bairagi was produced before the S.D. J.M. When the appellant expressed his desire to confess his guilt, the Magistrate followed the prescribed procedure and remanded him to judicial custody till next day. He was produced in Court on 17-5-78 around 12.10 p.m. He was kept in charge of a peon for 5 to 10 minutes, for cool reflection whereafter warnings were administered to him and his confessional statement was recorded. The appellant has alleged that he was arrested on 12-5-78 and was in police custody till be was produced before the Magistrate on 16-5-78. Appellant Gobinda was produced before the Magistrate on 22-5-78 and on his expressing a desire to confess, the Magistrate followed the prescribed procedure and remanded him to jail custody till next day. Around 11.40 a.m. of 23-5-78, he was produced before him. After he was kept in-charge of a peon for 5 to 10 minutes for cool reflection, his confessional statement was recorded. This appellant has alleged that he was taken to custody on 12-5-78. Both the appellants have alleged that they were tortured and the confessional statements, if any, were not voluntary. It is the evidence that the L.O. had occasion to question accused Bikal on 15-5-78. He was at the police station (see evidence of P.W. 19 of page 152). His version is that this appellant was renonstrating that he had committed any crime. He was arrested on 16-5-78 as deposed to by the Investigating Officer and immediately upon production before the Magistrate he expressed the desire to confess. The other appellant also immediately on his production before the Magistrate expressed desire to confess.

8. The conduct leaves a lurking doubt in our mind as to the voluntary character of the desire to confess. But more importantly the question for consideration is if steps were taken for removal of police influence the appellant on and if they were afforded time for cool reflection to decide for themselves if they would confess their guilt, think over the consequence of making the statement. It has, therefore, been laid down judicially that the accused should be separated from the police and should be kept in the magisterial custody and not in police custody and the police shall have no opportunity during the period of magisterial custody of influencing the accused. It is the duty of the Magistrate to satisfy himself that the accused was completely freed from any possible police influence. We get it from the evidence of the Investigating Officer that accused Bikal and Gobinda were lodged in Despalla sub-jail in segregation. As regards Gobinda, the deposition is as under:

"..... On that day I obtained orders from the S.D.J.M. Nayagarh for the confinement of the accused in Daspalla sub-jail in segregation. I took him to the Daspalla jail and produced in the jail. It is true that on the next day, i.e. 17-5-78 I brought him from Daspalla sub-jail to the Court of the S.D.J.M. Nayagarh and prayed, to the S.D.J.M. for recording his statement under Section 164, Cr.P.C. His confessional statement was recorded on 17-5-1978."

Hence, the fact that the Investigating Officer accompanied the accused to jail and again accompanied him and produced him before the Magistrate on 17th destroyed the purpose for which, under the law, an accused is remanded to judicial custody. The same procedure was followed as regards appellant Gobinda (vide paragraph 3 of his deposition). Hence, influence of police persisted till both of them were produced before the Magistrate for recording of their confessional statements. Each of the appellants, as deposed by the Magistrate (P.W. 15), was kept in-charge of the peon for 5 to 10 minutes whereafter the confessional statement was recorded. On the evidence stated above, it cannot be said that sufficient time was allowed to the accused to free them from possible police influence and having regard to the circumstances, the time of 5 to 10 minutes for reflection is not adequate and sufficient. It has been held by courts that time of few hours is not sufficient for a cool reflection. In Babu Singh v. State of Punjab, 1964 (1) Cri LJ 566 the time of one hour was held to be wholly insufficient. In Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217 : (1956 Cri LJ 421) though the accused had been remanded to judicial lockup, the Investigating Police had access thereto. It was held that the confession was not voluntary and having regard to the gap of 5 to 10 minutes from the time the police influence ceased and the recording of the confession, it can safely be said that there was trevesty of the various guidelines and warining administered from time to time. We, have therefore no hestitation to reject the confessional statements.