A confession made by an accused after he is in police custody for some time cannot be rejected on that sole ground but it must be always viewed with suspicion and the Magistrate, therefore, has a duty to be careful to ascertain as to how long such a person has been under the influence of the police.

G. B. PATTANAIK, J.

( 1 ) THE petitioner has been convicted under S. 394, I. P. C. and has been sentenced to undergo rigorous imprisonment for four years by the learned Additional Sessions Judge, Sambalpur. Nine accused persons including the petitioner stood their trial under S. 395, I. P. C. on the allegation that they committed dacoity in the night of 18-11-79 in the house of one Prabhudayal Agarwala of village Banabira under Sohela Police Station before the learned Assistant Sessions Judge, Sambalpur and seven of them were acquitted of the charge under S. 395, I. P. C. , but the petitioner and one Dilip Kumar were convicted under S. 395, I. P. C. and were sentenced to undergo rigorous imprisonment for four years. On appeal, the Additional Sessions Judge acquitted accused Dilip Kumar and altered the conviction of the petitioner to one under S. 394, I. P. C. but maintained the sentence of rigorous imprisonment for four years.

( 2 ) THE prosecution alleged that on 18-11-79 at night there was a dacoity in the house of P. W. 9 during midnight while all the inmates of the house were asleep. Some 10 to 12 persons armed with deadly weapons and crackers came to the house and asked P. W. 9 to open the door, but when P. W. 9 refused to oblige them, the dacoits broke open the door and after assaulting the inmates of the house removed the cash and ornaments. Some of the inmates were injured. P. W. 9 called aloud for help of the villagers and before arrival of the villagers the dacoits left the house with the booty. P. W. 6 who is also an inmate of the house lodged the First Information Report at Sohela Police Station. The police registered a case under S. 395, I. P. C. and sent requisition for medical examination of the injured persons. The police then investigated into the offence, made some seizure and conducted a Test Identification Parade. Confessional statements of some of the accused persons were also recorded and on completion of investigation, the charge-sheet was filed against nine accused persons.

( 3 ) THE defence plea is one of denial.

( 4 ) IN support of the prosecution case 26 witnesses were examined on behalf of the prosecution and none for the defence. The trial Judge acquitted the seven accused persons but convicted accused Dilip Kumar on the basis of his identification in a Test Identification Parade and convicted the present petitioner on the basis of the judicial confession made by him before a Magistrate. On appeal the learned Additional Sessions Judge has held the Test Identification Parade to be inadmissible and accordingly acquitted accused Dilip Kumar but relying on the confessional statement of the petitioner, has, convicted the petitioner under S. 394, I. P. C. and hence the revision.

( 5 ) MR. Mishra, the learned counsel for the petitioner, contends that the confession (Ext. 4) which is the sole basis of conviction cannot be said to be voluntary, and, therefore, cannot form the basis of conviction, particularly when there is no other corroboration to the said confession and the confession has been retracted during that. According to Mr. Misra, the petitioner was produced before the Magistrate from the police custody on 4-2-80 at 1 p. m. and the Magistrate recorded the confessional statement also at 1 p. m. without giving any time to the petitioner for a cool reflection and in such circumstances, the confessional statement cannot assume the character of a voluntary one. Sub-sec. (2) of S. 164 of the Criminal P. C. casts an obligation on the Magistrate that the Magistrate shall not record any confession unless he has reason to believe that it is being made voluntarily and once it is held that the confession recorded by a Magistrate is not voluntary, the same cannot be utilised for any purpose. There cannot be any dispute over the proposition that before a confessional statement made under S. 164 can be acted upon, it must be shown to be voluntary. The two essential requirements of a valid confession are tha