AMARESHWAR SAHAY,J. - (1.) 1. Four accused persons namely, Mahabir Rajak, Shashi Thakur, Subhash Bose @ Khepa Baba and Birju Bhuiyan were tried together for the charges under Sections 302/34 and 201/34 of the Indian Penal Code by the Additional Sessions Judge, Fast Track Court -V, Hazaribagh in Sessions Trial No. 218 of 2004. The charges against the accused persons were that they committed the murder of a boy Munna Kumar aged about six years with a common intention and disappeared the evidence with intention of screening from legal punishment. The trial court, after conclusion of the trial, by its judgment dated 23.3.2007, held that all the four accused persons with premeditated mind, sharing common intention, committed the murder of Munna Kumar aged about six years for offering sacrifice. The trial court found that the accused Mahabir Rajak gave the fatal blow to the deceased by means of a knife, whereas other accused persons caught hold of the victim's legs and hands and the accused Subhash Bose @ Khepa Baba performed sacred Puja with the blood of the deceased. The trial court convicted all the accused for committing the offence under Sections 302, 201/34 IPC. The accused Mahabir Rajak has been given capital punishment of death sentence for the offence under Section 302 IPC, whereas the rest of the accused namely Birju Bhuiyan, Shashi Thakur and Subhash Bose @ Khepa Baba have been sentenced to undergo R.I. for life and also to pay fine of Rs. 15,000/ - each, in default to undergo S.I. for two months each. For the offence under Section 201 IPC all the accused were sentenced to undergo R.I. for three years each and to pay fine of Rs. 2,000/ - each, in default to undergo S.I. for two months each. However, all the sentences were directed to be run concurrently. 2. Under the provisions of Section 366 Cr.P.C. the trial court has referred for confirmation of death sentence awarded to Mahabir Rajak, which has been registered as Death Reference No. 2/2007. 3. Against the judgment of conviction and sentence passed by the trial court, the accused Mahabir Rajak has filed appeal before this Court from jail, which has been registered as Cr. (Jail) Appeal No. 402/2007. Subsequently, the said accused Mahabir Rajak alongwith one another coconvicts Shashi Thakur again filed an. other appeal, through a counsel, which has been registered as Cr. Appeal (DB) No. 805/2007. The accused Subhash Bose @ Subhash Narayan Bose @ Khepa Saba has filed separate appeal, which has been registered as Cr. Appeal (DB) No. 463/ 2007. The convict Birju Bhuiyan did not prefer any appeal and, thereforo, he has been provided a lawyer by the High Court Legal Services Committee. Mr. Amrcndra Kumar appeared on behalf of Birju Bhuiyan and he has also filed Vakalatnama on behalf of accused Birju Bhuiyan. All the appeals have been heard together and they are being disposed of by this common judgment. 4. The background of the case is that a first information report was lodged on 9.12.2003, before Patratu/Bhurkunda Police Station by one Bijay Paswan against Birju Bhuiyan, Mahabir Rajak and Shambhu Rajak alleging therein that the father of Birju Bhuiyan, who was an employee of Central Coalfields Limited, died last year. Birju Bhuiyan, requested the informant to make "Pairvi" for withdrawal of the Provident Fund amount from the office of the C.C.L. The informant made "Pairvi", whereupon, a cheque of Rs. 2.5 lakhs was received in the Urimari Office of the C.C.L. Seeing the money, the neighbour of Birju Bhuiyan, namely Mahabir Rajak and his son Shambhu Rajak started instigating Birju Bhuiyan that the money may be misappropriated by Bijay Paswan and, they advised him not to get the work done through Bijay Pas wan and they offered themselves to get his work done. Later on, Birju Bhuiyan, Mahabir Rajak and Shambhu Rajak came to the house of the informant at 2.00 p.m. on 5.12.2003 and then by abusing his wife enquired about Bijay Paswan, who had gone out at that time. The accused persons thereafter demanded papers regarding Provident Fund of Birju's father and when it was not given to them then they left the place after extending threats. It has further been alleged that on the same day at 4.30 p.m. Birju Bhuiyan and Shambhu Rajak came to the house of the informant and enquired about him. His wife told them that Bijay had gone to the market. Thereafter, Birju Bhuiyan gave Rs. 2/ - to the son of the informant, namely, Munna Kumar, aged about 6 years and asked him go and purchase biscuit. The boy went out and the accused Shambhu followed him. Birju stayed there for about 10 minutes and kept the informant's wife busy in conversation and, thereafter, he also left the place. Further case of the prosecution is that when the informant returned home around 6.30 p.m., he did not find his son Munna, then he enquired from his wife about him, whereupon, his wife Sulekha Devi narrated the entire story to her husband and also told him that in spite of her efforts she could not find her son. Thereafter, the informant went out in search of his son and went to the houses of Birju Bhuiyan, Shambhu Rajak and Mahabir Rajak, but they were not found in their houses. Next day, the announcement was made on a loudspeaker about the missing boy. When the news spread in the village about the missing of boy, all those persons, who were known to the informant, came to meet but the aforesaid three accused persons did not come to make any enquiry from the informant. On 9.12.2003 in the morning the informant heard hulla that a dead body of a boy was lying near the Nakari river. The informant rushed to the said place alongwith some other persons and found the dead body of his son lying there. He found that the neck and hands of his son were cut with sharp cutting weapon. Thereafter, he reported the matter to the police. The police went to the river bank and found the dead body of the child Munna having several injuries on his person, made inquest and seized blood stained soil in presence of the witnesses and thereafter started investigation. In course of investigation, one of the accused Birju Bhuiyan confessed his guilt by making statement before the Magistrate, which was recorded under Section 164 Cr.P.C. After the investigation was completed, the charge -sheet was submitted against the accused persons under Sections 302, 201/ 34 of the Indian Penal Code. The case was committed to the Court of Sessions and, thereafter, the accused persons were put on trial. 5. In order to establish the charges, altogether 12 prosecution witnesses were examined on behalf of the prosecution. One Shailender Kumar Singh, who was a Technician of Forensic Science Laboratory, was also examined as Court witness. Out of 12 prosecution witnesses, PW -1 Arun Kumar Singh and PW -2 Lalan Singh have been declared hostile. PW -3 Devendra Singh and PW -4 Kumar Janardan Lal Gupta are the formal witnesses and they are on the point of seizure. PW -5 Chandradeo Paswan is the father -in -law of the informant. PW -6 Shailendra Kumar Singh and PW -10 Smt. Sulekha Devi are the material witnesses, whereas PW -7 Amitabh Ganguly is the Doctor, who held the post mortem examination, whereas PW -8 Arjun Singh and PW -9 Jageshwar Paswan are on inquest. PW -11 Daya Ram is the Judicial Magistrate, who recorded the statement of the accused Birju Bhuiyan under Section 164 Cr.P.C. and PW -12 Jamir Asgar is the Investigating Officer of the case. 6. Admittedly, there is no eye -witness to the occurrence and the entire case is based on the circumstantial evidence. The accused Shambhu Rajak was not put on trial and the informant Birju Bhuiyan was not examined by the prosecution. 7. The learned trial court, on the basis of the evidence, adduced by the prosecution both oral and documentary, convicted and sentenced the appellants as already stated hereinabove. 8. We have heard Mr. Anil Kumar, Mr. Kalyan Roy and Mr. Amrendra Kumar learned counsel on behalf of all the convicts/appellants as well as Mr. V.S. Sahay, learned APP on behalf of the State in all the appeals. 9. The learned counsel appearing for the appellants challenging the conviction and sentence passed by the trial court, have submitted the prosecution has heavily relied on the confessional statements of Birju Bhuiyan recorded under Section 164 Cr.P.C. on 15.12.2003, i.e. Ext. -4 but, in fact, the said confession of Birju Bhuiyan could not have been taken into consideration in view of the fact that before recording such alleged confession, oath was administered to the said Birju Bhuiyan, which was not permissible under Section 4(2) of the Oath Act, 1969. Recording of the said confession is illegal and thereby such confession became inadmissible and, therefore, conviction and sentence passed by the trial court based on such confession is bad in law. In support of such contention reliance has been placed of a judgment of Madhya Pradesh High Court in the case of Ram Singh vs. State of Uttaranchal, reported in 2008 (2) Crimes 417" and of Gauhati High Court in the case of" Tetubar Deka Raja vs. The State of Assam, reported in 1998(2) Crimes 230". 10. It has further been submitted on behalf of the appellants that the alleged confessional statement of the co -accused Birju Bhuiyan cannot be taken into consideration for holding the other accused persons guilty, because the other coaccused persons were not given any opportunity to cross -examine the accused Birju Bhuiyan and, therefore, on his such alleged confessional statement, the conviction of the other co -accused is bad in law and liable to be set aside. Reliance in this regard has been placed in the case of "State of T.N. vs. J. Jayalalita, reported in (2000)5 SCC 440". It has further been submitted on behalf of the appellants that the so -called statement made by Birju Bhuiyan under Section 164 Cr.P.C. is not a substantive piece of evidence and at best it can be treated as a corroborating evidence and, therefore, the conviction passed on the said confessional statement of the co -accused Biriu Bhuiyan cannot be sustained. 11. Challenging the reliability of the statements of the P.Ws., it has been submitted that PW -5, who happens to be the father -in -law of the informant, his evidence is not reliable, since he received information regarding missing of Munna on 8.12.2003 and, thereafter, he visited the house of the informant Bijay Paswan. It is submitted that his evidence cannot be relied in view of the fact that he has stated that when he saw the dead body of Munna he found the neck of Munna was cut in three places whereas according to the post mortem report, only one incised wound was found on the neck of the deceased. It is submitted that the evidence of this witness is contradictory to the evidence of other PWs namely PW -6 and PW -10. It is also submitted that the evidence of PW -6 is hearsay since he has admitted in para -13 of his evidence that whatever he has stated was on the basis of the story narrated to him by the wife of Bijay namely Sulekha Devi. The evidence of PW -10 Sulekha Devi has been criticized on the ground that the same suffers from improvement, exaggeration and contradictions and, therefore, the same is unreliable. 12. With regard to the seizure of the blood stained paper from the possession of appellant Mahabir Rajak, it has been submitted on behalf of the appellant that the evidence of PW -3 and PW -4 suggest that no blood stained paper was recovered from the possession of Mahabir Rajak. The Investigating Officer, i.e. PW -12 in his evidence has stated that from the pocket of the shirt of the accused Mahabir one blood stained paper was recovered, which was seized. Whereas the seizure witnesses PW -3 and PW -4 have not supported the seizure of any blood stained paper from the accused Mahabir Rajak. It has also been submitted that the alleged blood stained paper, which was seized, was not kept in a sealed cover and, therefore, it cannot be said that the said paper, which was seized by the Investigating Officer was, in fact, sent for chemical examination to the expert. It has also been submitted that the F.S.L. report does not bear any certificate to show that the blood which was found was in fact human blood and the same was matching with the blood group of the deceased. 13. The law with regard to the circumstantial evidence is well established by series of decision of the Supreme Court wherein, it has been held that the cases in which there is no direct evidence or no eye witnesses to the occurrence and the case rests upon the circumstantial evidence, in that case, such circumstantial evidence must satisfy the following tests: - (i) the circumstances from which an inference of guilt is said to be drawn, must be cogently and fairly established; (ii) those circumstances should be of definite tendency unerringly binding towards guilt, of the case; (iii) the circumstances taken cumulatively should form a chain, so complete that there is no escape from the conclusion that within all human probabilities, the crime was committed by the accused and none else; and (iv) the circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. Reference in this regard may be made to a recent decision in the case of "Krishnan vs. State represented by Inspector of Police reported in 2008(2) Crimes 314(SC)." 14. It has been submitted on behalf of the appellants that in the case of circumstantial evidence, the motive plays an important role and in absence of any motive, the prosecution case becomes doubtful. ;, Elaborating his arguments, it is submitted that initially when the FIR was lodged, the motive alleged was that there was dispute with regard to withdrawal of Provident Fund Amount of the father of Birju Bhuiyan, but subsequently, the prosecution changed its story and after the arrest of the accused persons, a new case was made out that Mahabir Rajak was suffering from T.B. and Mahabir - Rajak, in order to get rid of the said disease, on the instructions of Khepa Baba, sacrificed the child Munna Kumar. It is submitted that the prosecution failed to establish that in fact Mahabir Rajak was suffering. from T.B. and that the papers which was seized from the possession of Mahabir Rajak, in fact contained human blood and if at all the paper containing the blood the same matched with the blood group of the deceased child. According to the learned counsel for the appellant, the Investigating Officer admitted that he did not make any enquiry as to whether the accused Mahabir was a patient of T.B. or not and therefore, the second motive could not be established by the prosecution. 15. On the other hand, learned APP, appearing on behalf of the State has submitted that circumstantial evidence, which has been adduced by the prosecution, clearly establishes that the appellants committed murder of the deceased child Munna Kumar. The motive for the said killing has also been established by the prosecution. According to the State Counsel, the prosecution established the fact beyond all reasonable doubts that the appellant Mahabir Rajak, Birju Bhuiyan, Shashi Thakur and Subhash Bose @ Subhash Narayan Bose @ Khepa with premeditated mind, sharing common intention of committing murder of Munna Kumar, killed the deceased for offering sacrifice. Appellant Mahabir Rajak cut the throat of the deceased by means of a knife. The other appellants were catching hold the victim and the appellant Subhash Bose (a) Khepa Baba collected the blood in a bowl (Katori) and thereafter, performed a sacred Puja with the blood of the deceased. 16. The confession of the accused Birju Bhuiyan made under Section 164 Cr.P.C. was brought on record and was marked as Exbt. -4. The statement of the accused Mahabir Rajak made before the Investigating Officer was brought on record and marked as Exhibit -7. The informant of the case Bijay Paswan has not been examined by the prosecution. Admittedly, there is no eye -witness to the occurrence and the whole case is based on circumstantial evidence. 17. Keeping in mind the well established law on circumstantial evidence, as has been noticed above, let us examine the evidence on record, both oral and documentary adduced by the prosecution during the trial in order to test the arguments advanced by the parties. 18. PW -1 Arun Kumar Singh has stated in his examination -in -chief that the occurrence took place 7 -8 months prior to his statement in Court and the case was with regard to murder of a child lie came to know about the same from the newspapers but the police did not interrogate him in course of investigation. When the prosecution declared him hostile, he was cross -examined by the prosecution. He denied to have stated before the police that on 9.12.2003 he had gone to the bank of the river and there, in his presence the dead body of the murdered child Munna was recovered. 19. PW -2 Lalan Singh, deposed that he knew nothing about the occurrence and police also did not interrogate him. He was also declared hostile by the prosecution. PW -3 Devendra Singh proved his signature on the seizure list, which was marked as Exbts. -I and I/a. He also proved the signature of Janardan Lal Gupta on the second seizure list, which was marked as Exbts. -2 and 2/a. He further stated that the police seized the blood stained earth in his presence from the place of occurrence. However, he denied that the police seized blood stained paper from the pocket of Mahabir Rajak. In cross -examination, he stated that the blood stained paper was not recovered in his presence rather he put his signature on the seizure list at the police station. 20. PW -4 Janardan Lal Gupta stated that on 10.12.2003 he went to Nakari River with the police and from there blood stained earth was seized from the river bank. 21. PW -5 Chandradeo Paswan, is the father -in -law of the informant Bijay Paswan i.e. the maternal grandfather (Nana) of the deceased Munna. He stated in his examination -in -chief that on 8.12.2003 he was informed by Bijay Paswan that Munna was missing then he came to Saunda Colliery and started enquiry and search of Munna. The dead body of Munna was found on 9.12.2003 near Nakari River and he identified the dead body. The neck of Munna was cut from three sides and there were injuries on his hands and on the abdomen also. He also stated that when he went to the police station alongwith his son and son -in -law, he saw Birju Bhuiyan at the police station, who was in a room and when Birju Bhuiyan saw Bijay Paswan (Informant) there then he requested him to get him released from custody and promised that he will disclose the entire story to him. Birju Bhuiyan told that Shashi Thakur had caught hold of the leg of Munna, whereas, Mukhdeo Chamar caught hold of his hands and then Mahabir Rajak cut the neck of Munna and then Khepa Baba collected the blood in a bowl (Katori) and, thereafter, dipped a plain paper in that blood and, then pasted that paper on the chest of Mahabir and told to him that his disease is now cured. The police found the blood stained paper pasted on the chest of Mahabir and then the said blood stained paper was seized by the police. This PW -5 has further stated in his evidence that Bijay told him that he had gone to the Ashram of Khepa Baba where he was told by Baba that his son would be found within 24 hour's. This was stated by Khepa Baba on 8.12.2003 and, thereafter, the dead body of Munna was recovered on 9.12.2003. This witness further stated that Birju had told 8ijay in his presence that Shambhu Rajak had taken Munna to Khepa Baba and the Khepa Baba gave him a box in which Shambhu Rajak put Munna and locked the box. When the Officer -in -charge Jamil Asgar asked Birju Bhuiyan to show the place where Munna was kept and murdered then Birju Bhuiyan took him near Nakari River and from there the dead body of Munna was found. From that place this witness alongwith police and Birju went to the house of Mahabir Rajak and Shashi Thakur and from there both of them were arrested. This PW -5 identified the accused persons present in the dock. In cross -examination, this PW -5 stated that when he had gone to the police station on 9.12.2003 at 9 p.m., Bijay Paswan, Manoj Singh, Pappu Singh, Arjun Singh and Jageshwar Paswan were with him. At that time he saw Birju Bhuiyan at the police station but he did not see Khepa Saba there. In Para -15 he has stated that on 9th December, he did not see him in the police station rather he saw him there in the morning of 10.12.2003. 22. P.w. -6 is Shailendra Kumar Singh. He has stated that on 5.12.2003 he came to know that son Bijay was missing. Since Bijay was his friend and, therefore, he went to his house and there the wife of Bijay namely, Sulekha Devi told him that on that day in the morning Birju and Shambhu Rajak had come to her house and enquired about Sijay and then she told them that Bijay had gone to the market. She also told him that Shambhu Rajak and Birju Bhuiyan gave Rs. 2/ - to her son Munna and asked him to go and purchase biscuit. Thereafter, Shambhu Rajak and Birju Bhuiyan took Munna with them. In the evening her husband Bijay Paswan came and asked about Munna then she told him that Munna was missing. Thereafter, announcement regarding missing of Munna was made through a loudspeaker and then on 9.12.2003 this witness heard that dead body of Munna has been found from the bank of the river. This witness also went there and saw the dead body of Munna having injuries on his neck and his penis was crushed. Some injuries on the ankle and on the chest were also found. Thereafter, he went to the police station alongwith Bijay Paswan where Bijay Paswan gave his statement, which was recorded by the police. The signatures were identified by this witness, which was marked as Exbts. -2/b, 2/c and 2/d. This witness identified the accused Shambhu Rajak, Birju Bhuiyan, Mahabir Rajak and Khepa Baba in Court. In his cross -examination he has stated that whatever he st.ated was heard by him from the wife of Bijay Paswan. 23. PW -7 Amitabh Ganguly is a Doctor, who conducted the post mortem examination on the dead body of Munna Kumar. He found the following injuries on the persons of the deceased: - "(i) Body was decomposed and foul smelling, mouth partly open, eyes closed, whole body smeared with mud and ash blush discoloration over abdomen seen, rigormartis absent from upper to lower limb. External injuries as seen. -(i) Incised wound at the level of thyroid cartiledge around the neck wit of 1 inch and deep to the vital structures of neck. (ii) Incised wound over left exila 3 x 2 x deep to the vital structure. On dissection both carotid vessels and jugular vessels alongwith muscles and trachea were incised. (iii) Incised left auxiliary vessels as well as muscles. Both lungs were intact and pale, heart both chamber were empty. Stomach wall was normal and contained 3 auns rice and vegetables partly digested." According to the Doctor, the time elapsed since death was 48 -72 hours and the death was caused due to haemorrhage and sock due to the injuries over the neck and left auxila caused by sharp cutting weapons. The post mortem report was proved by this witness, which was marked as Ext. -3. 24. PW -8 Arjun Singh and PW -9 Jageshwar Paswan are the formal witnesses. 25. PW -10 Sulekha Devi is the mother of the deceased. She has stated that on 5.12.2003 at about 4.00 P.M. Birju Bhuiyan and Shambhu Rajak came to her house on a bicycle and asked about her husband Bijay. When she replied that he had gone to the market, at this, they did not say anything. However, Birju Bhuiyan took out a currency note of Rs. 2 from his pocket and gave it to her son Munna Kumar and told him that "come with me I will purchase biscuits from the shop for you". Thereafter, Shambhu Rajak and Birju Bhuiyan both took Munna with them on a bicycle. At about 4.30 P.M. her husband came back and then she narrated those facts to her husband, then her husband went to the house of Birju Bhuiyan in search of her son Munna but neither Birju Bhuiyan nor Shambhu Rajak nor her son could be found there. Her husband started searching his son but he could not be traced out and, thereafter, announcement was made by a loudspeaker but the whereabouts of her son could not be found out. On 6th December, 2003 at 6.00 P.M. she alongwith her husband went to the police station to give information. Shambhu Rajak and Birju Bhuiyan were arrested on 7.11.2003 and at that time she was there at the police station. Meanwhile, the Officer -in -Charge received telephonic call from Khepa Baba, who asked the Officerin -charge to release the accused Shambhu Rajak and Birju Bhuiyan and, accordingly, the Officer -in -charge released them. After being released, Birju Bhuiyan came to her house on Monday, i.e. in the morning at 8.00 a.m. and told her to go to Khepa Baba to find out her son. At this, she went to the Ashram of Khepa Baba on 8.12.2003, which was located by the side of the Bhurkunda police station. On being asked, Khepa Baba told her that she had come late but her son would be found either dead or alive by tomorrow. On the next date, i.e. Tuesday, i.e. 9.12.2003, the dead body of her son Munna was found from the bank of Nakari River. The neck, right hand and penis of her son were cut and it appeared that Munna was sacrificed. His abdomen was also cut. She identified the accused Birju Bhuiyan, Mahabir Rajak, Shashi Thakur and Khepa Baba in the dock. In her cross -examination, this witness has stated that she did not state before the police that Khepa Baba made telephonic call to release the accused persons. She also stated in the crossexamination that she has never visited the Ashram of Khepa Baba and she did not state before the Police that Birju told her to go to Khepa Baba where her son would be found. 26. PW -11 Daya Ram is the Judicial Magistrate, who recorded the statement of Birju Bhuiyan under Section 164 Cr.P.C., which has been marked as Ext. -4. 27. PW -12 is the Investigating Officer. The Investigating Officer, in his evidence has stated that after he arrested Mahabir Rajak, he confessed his guilt before him and the confession was recorded in writing which was read over to him and then he put his thumb impression. The said confession has been marked as Ext. -7. He also stated that he seized a paper from the shirt's pocket of Mahabir Rajak, which was a blood stained paper. He also seized blood stained soil from the place of occurrence. After he arrested the accused Birju Bhuiyan, he also confessed his guilt, which was recorded under Section 164 Cr.P.C. by the Magistrate. The accused Shashi Thakur after his arrest also confessed his guilt. He further stated that investigation regarding Shambhu Rajak and Mukhdeo Ram continued. He further stated that accused Khepa Baba was a disabled person. He admitted that he had not seized any bowl (Katori). 28. The Court witness no. 1 Shailendra Kumar Sinha is a. Technician of Forensic Science Laboratory. In his evidence he has stated that he did not find blood on the seized soil but blood was found on the seized paper. His report was marked as Ext. -10. 29. As already noticed above, there is no eye witnesses to the occurrence, i.e. commission of murder of the deceased Munna Kumar by the appellants but from the evidence, which have been brought on record, the following circumstantial evidences emerges: - (i) On 5.12.2003, Birju Bhuiyan and Shambhu Rajak both came to the house of the informant in his absence, met with the informant's wife Sulekha Devi (PW -10) and asked from her about the informant Bijay Paswan. Coming to know about the fact that the informant Bijay Paswan was not present in his house, they gave Rs. 2/ - to his son Munna Kumar for purchasing biscuits and for this they took away Munna with them on their bicycle. Since, thereafter, Munna was not seeing. (ii) The informant Bijay Paswan went to the house of the accused Birju Bhuiyan in search of his son but Birju was not found in his house. (iii) On 8.12.2003 at about 8.00 p.m. Birju Bhuiyan came to the house of the informant and told his wife Sulekha Devi to meet Khepa Baba to get her son. (iv) Sulekha Devi (PW -10) went to the Ashram of Khepa Baba for her son but there Khepa Baba told her that she had come late but, however, her son could be traced out either dead or alive by tomorrow. On the next day, i.e. on 9.12.2003, the dead body of the child Munna was found in the bank of Nakari River having several injuries on his person. His neck was found to be cut. (v) The informant Bijay. Paswan went to the police station on 9.12.2003 alongwith PW -5 Chandradeo Paswan and they saw Birju Bhuiyan in the police custody at that time. Seeing the informant, Birju Bhuiyan requested him to get him release and also assure that he, thereafter, will disclose everything. (vi) Birju narrated whole facts regarding the occurrence and said that Shashi Thakur had caught the legs of Munna, Mukhdeo Chamar caught his hands and then Mahabir Rajak cut his neck and Khepa Baba collected the blood in a Bowl (Katori). Thereafter, a plain paper was dipped in that blood by Khepa Baba and then he pasted that paper on the chest of Mahabir Rajak and told that his disease is now cured. (vii) After that the Officer -in -charge Md. Zamil Asgar (PW -12) asked Mahabir Rajak as to what was in his pocket and then Mahabir Rajak took off his shirt and then Investigating Officer found a blood stained paper pasted in his chest. This fact has been proved by the Chandradeo Paswan (PW -f)). (viii) On 1 0.12.2003, the accused Mahabir Rajak confessed before the Investigating Officer that he had killed the child Munna Kumar by cutting his neck on 8.12.2003. This fact has been stated by PW -12, i.e. the Investigating Officer Md. Jamil Asgar. (ix) The confessional statement of the accused Birju Bhuiyan was recorded under Section 164 Cr.P.C. on 15.12.2003 by the Judicial Magistrate, 1st Class, Hazaribagh (Ext. -7), in which he has confessed that the accused Mahabir Rajak killed the child Munna Kumar by PW -11 Daya Ram, i.e. the ,Judicial Magistrate. (x) The post mortem report of the deceased Munna Kumar revealed that the death was caused due to the injuries over the neck and on left auxila caused by sharp cutting weapon. 30. So far as the admissibility of the confessional statement of the appellant Birju Bhuiyan made under Section 164 Cr.P.C. is concerned, no doubt such statements made under Section 164 Cr.P.C. was recorded after administering oath to the said accused/appellant which was prohibited under the law. Section 164 Cr.P.C. deals with recording of confessional statement, envisages that any such confession shall be recorded in the manner provided under Section 281 Cr.P.C. 31. It is a well settled law that a judicial confession is admissible in evidence, if it is found to be truthful and voluntary. In the present case, it is not a case of the appellant that before recording the statement under Section 164 Cr.P.C., the said appellant was given any threat, inducement or promise so as to make such statement untrustworthy. The objection of the appellants on the admissibility of the statement of the accused Birju Bhuiyan made under Section 164 Cr.P.C. is only on the ground that the same was recorded on administering oath. It may be the said accused Birju Bhuiyan's statement under Section 164 Cr.P.C. should not have been recorded on oath since the same is prohibited but that, in our view, only because it was recorded after administering oath that itself will not make his statement inadmissible evidence if otherwise it is found to be truthful and voluntary. Therefore, we are inclined to rely on the confessional statement of Birju Bhuiyan made under Section 164 Cr.P.C. finding it to be voluntary and truthful. We are constrained to differ with the views expressed by Madhya Pradesh High Court and Gauhati High Court cited in this regard by the learned counsel for the appellants. 32. So far the arguments of the appellants regarding the oral evidence adduced by the prosecution is concerned, I find that no doubt, there are some contradictions in the evidence of the prosecution witnesses but, in my view, they do not, in any manner, affect the prosecution case since they are minor in nature and such minor contradictions are bound to occur. A man cannot be expected to reproduce in exact words, his earlier statement made few years back. It is also not possible for a human being to narrate the sequence of occurrence after one year just like a tape recorder or videography. Some variations are bound to occur. 33. From the evidence of the prosecution witnesses, which have already been discussed in details, the circumstantial evidence, which have been brought on record emanating from the evidence on record taken cumulatively, have a chain so complete which unerringly and unmistakably lead to only hypothesis i.e. guilt of the appellants regarding commission of murder of the deceased by sacrificing him. The circumstances referred to above are inconsistent with the innocence for no enemous against the appellants to implicate falsely in the case. 34. In view of the discussions and findings above, in our view, the learned Trial Court has not committed any illegality in coming to the conclusion that the guilt of the appellants was established beyond all reasonable doubt. Therefore, the conviction of the appellants for the charges, passed by the trial court is hereby affirmed. 35. Now, we have to consider as to whether the sentence of death awarded to the accused/appellant Mahabir Rajak by the Trial Court is to be affirmed or not? The leading cases in this regard are the cases of "Machhi Singh and Others vs. State of Punjab, reported in AIR 1983 SC 957" and of "Bachan Singh vs. State of Punjab, reported in AIR 1980 SC 898" as well as the judgment in the case of "Sushil Murmu vs. State of Jharkhand, reported in (2004)2 SCC 338". Life imprisonment is a Rule and the death sentence is an exception. In the case of "Sushil Murmu vs. State of Jharkhand" (supra) the Supreme Court has affirmed the sentence of death in the facts and circumstances of that case. In the aforesaid case, the Supreme Court has held as follows: - "Death sentence is ordinarily ruled out and can only be imposed for "special reasons", as provided in Section 354(3). There is another provision in the Code which also uses the significant expression "special reason". It is Section 361. Section 361 which is a new provision in the Code makes it mandatory for the court to record "special reasons" for not applying the provisions of Section 360. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever it is possible to do so and to state "special reasons" if it does not do so. In the context of Section 360, the "special reasons" contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country." In that case, the Supreme Court found that the accused used to sacrifice the children to appease deity in order to promote his fortune and in that course he was found carrying severed head in a gunny bag. In the past also he was found to sacrifice the children to appease the deity. In such circumstances, the Supreme Court held that a bare look at the fact situation of this case shows that the appellant was not possessed of the basic humanness and he completely lacks the psyche or mindset which can be amenable for any reformation. 36. In the present case, even according to the prosecution, the accused/ appellant Mahabir Rajak was a patient of T.B. and in order to be cured from the said disease he, at the instance of Khepa Baba @ Subhash Bose @ Subhash Narayan Bose, sacrificed the poor child Munna with the help of other appellants. But it has not come in the evidence that the accused/appellant Mahabir Rajak had history of sacrificing any child and, therefore, he had no such criminal antecedent. Poverty and illiteracy, which give birth to superstition is very common in the village of this State. Superstition is a belief which is not based on reason and knowledge. No doubt superstition cannot provide justification for any murder but it has to be considered as to in what manner and in what circumstances the offence has been committed. It is commonly known that the poor and illiterate villagers are exploited by such 'Babas' like one Khepa Baba in the present case and these poor villagers, at time, do fall in the trap of such 'Babas' in order to get rid of their sufferings. 37. Taking into account the whole background of the case and the circumstances in which the offence was committed, in our view, the present case does not come under the category of the rarest of the rare case in which it cannot be said that this court has no option but to affirm the sentence of death. 38. In view of the discussions and findings above, we are of the view that the punishment of sentence of death, awarded to the accused/appellant Mahabir Rajak deserves to be altered to the Rigorous Imprisonment for life. The death reference is answered accordingly. Consequently, by affirming the conviction and sentence passed against the appellants, Subhash Bose @ Subhash Narayan Bose @ Khepa Baba, Shashi Thakur and Birju Bhuiyan, their appeals are dismissed. The appeal filed by the appellant Mahabir Rajak is also dismissed by affirming his conviction under Section 302 IPC but the sentence of death penalty awarded to him by the Trial Court is altered to Rigorous Imprisonment for life. ;