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6. The recovery of MOI, the axe, and the disclosure statement made by accused Rabindra to police and other witnesses while in custody indicate that the axe, MO I, had been kept hidden inside the straw of the thatch of his goat-shed PW 15, the Judicial Magistrate, First Class recorded the confession of accused Rabindra after time was given to him for cool reflection. He has recorded the confession that he had killed two of his younger brothers and one younger sister and had also assaulted his paternal uncle who was saved by luck. His confession was found by the learned Sessions Judge as voluntary and that was correctly recorded by PW 15 who had ascertained the details from accused Rabindra as per Ext. 23.

13. With regard to the case against appellant Rabindra, he has been convicted under Sections 307 and 302 read with Section 34, 3IPC and while he has been sentenced to imprisonment for life under Sec, 307/31,IPC. has been sentenced to death under Section 302/34, IPC. So far as his conviction under Section 307/34, IPC. i.e., attempting to commit murder of PW 7 is concerned, the depositions of PWs 1, 6 and 12 should be properly considered. Even though there are ample materials in the evidence for a finding that Rabindra had assaulted PW 7 with an axe, his conviction under Section 307/34, (PC cannot be sustained in the absence of medical evidence to come to a finding that there was an attempt to commit murder of PW 7 and It is Argued that at beat he can be convicted under Section 324.IPC and not under 6 Section 307/34,IPC. So far as his offence of assaulting the three children is concerned, prosecution relied upon the evidence of PW 1, the judicial confession of the accused himself and recovery of the blood-stained axe from his goat-shed. It is argued that while considering the prosecution case, the appreciation of evidence of FW 1 should be very much crucial as the prosecution entirely rests its case on the solitary evidence of this interested witness. According to Mr. Sahoo, law is well settled that the evidence oi a solitary witness must be absolutely reliable, cogent and trustworthy. He has argued with much emphasis that PW 1 is the solitaiy witness who deposed about the incident from beginning to end, i.e. from the entrance of her husband and cnildren inside the house tilt the children were killed PW 1 is not a witness of that category on the basis of whose solitary evidence Court can unhesitatingly find the accused person guilty. Since PW 1 is the mother of the deceased children, she was highly interested. The evidence of PW 1 has not been accepted by the learned trial Court to implicate accused Jemadei Pradnan and Upendra Piadhan in the alleged crime. The presence of PW 1 at the spot at the time of the occurrence is to be tested with great caution which is an important aspect. According to PW 1, the children were assaulted in the entrance room and she - saw the incident by means of lantern light. Though during the trial PW 1 stated the she was holding a lantern and there was another lantern also burning inside that room, the existence of two lanterns at the spot was very much doubtful as the police had seized only one PW 7 has stated that just when he was placing his youngest child Rajib on the cot in a leaning position, he was assaulted. In his statement PW 7 has further stated that at the relevant time his children were going to sleep on their cots inside the room. In view of such statement of PW 7 it is more probable that the victims must have been assaulted inside the bedroom and not in the entrance room. Besides the evidence of PW 1, prosecution has also relied on the judicial confession of accused Rabindra Pradhan. The manner in which the confessional statement of accused Rabindra has been recorded, much reliance should not be placed on that. The order-sheets of the learned SDJM, indicate that the accused was produced in Court on 31.3.1993 and the investigating officer prayed for recording his confessional statement under Section 164. Cr. P.C. Though the other three accused declined to confess, accused Rabindra. alone wanted to confess his guilt and he was sent to jail custody for his cool reflection. It was desirable that when an accused was given time for cool reflection, the learned Magistrate should have cautioned him about the consequences of his confession informing him that he was not bound to make any confession, so that before the accused decided to confess his guilt he would have thought over the matter and taken a decision during the period allowed to him for cool reflection whether he would confess or not. in the present case, on 31-8-1993 the learned Magistrate, Mr. Sahoo submits, did not caution him as above. The confessional statement Ext. 23 indicates that the most important caution after disclosing his identity that the accused was not bound to make confession and the confession if made would be utilised as evidence against him during the trial had been given to the accused after he confessed his guilt. In that view of the matter, it cannot be said that the recording of the confessional statement of the accused was proper and to be acted upon. In support of his contention, Mr. Sahoo has referred to a decision reported in AIR 1936 PC 253 (Nazir Ahmed v. King Emperor) which has dealt with recording of 164 statement of accused by Magistrate. It was held therein that where a power is given to do a certain thing in a certain wav the thing must be done in that way or not at ail, the other methods of performance being necessarily forbidden and the oral evidence of the Magistrate being not admissible. He has further referred to another decision reported in AIR 1977 SC 1579 (Paras 50 and 51 at page 1690) (Dagdu v. State of Maharashtra) and has specifically drawn the attention of the Court that there should be a strict and faithful compliance with Section 164, Cr PC and failure to observe the safeguards prescribed therein are in practice calculated to impair the evidentiary value of the confessional statement There is further reference to a case reported in 1995(1) Crimes 138 (Shivappa v. State of Karnataka) to the effect that in a case where statement under Section 164. Cr PC was recorded the Magistrate did not disclose to the accused that he was a Magistrate, no inquiry was made to find out whether the accused had been influenced by anyone, the Magistrate did not lend assurance to the accused that he would not be sent back to police custody in case he did not make confessional statement and the accused was not questioned as to why he wanted to make confession, the same could not be said to be voluntary and it was not prudent to act upon the said confessional statement.