The main legal point established in the judgment is the requirement of a voluntary confession and the need for a searching inquiry by the Magistrate to ensure its voluntary nature, as mandated by Section 164, Cr.P.C.

Judgement

A.H. SAIKIA, J. :- Heard Mr. J.M. Choudhury, learned Sr. Counsel assisted by Mr. S.K. Deuri and Mr. T. Boo, learned counsel appearing for the appellants in Criminal Appeal No. 10 (AP)/2005 and in Criminal Reference (Hill) No. 2/2007. Also heard Mr. B. Banerjee, learned P.P. representing the State of Arunachal Pradesh in both the cases.

2. The conviction of the appellants-respondents under Section 302/34, IPC and sentence to undergo rigorous imprisonment for life with a fine of Rs. 3000/- each and in default for payment of fine to undergo a further term of 3 months rigorous imprisonment so handed down by the learned Additional District and Sessions Judge, First Track Court Eastern Zone, Namsai, by his judgment and order dated 28-9-2005 in Session Case No. 01/94 have been challenged in the criminal appeal by the appellants-respondents being Criminal Appeal No. 10(AP) 2005/05. At the same time the impugned conviction and sentence have also been referred to this Court under Regulation 30 of the Assam Frontier (Administration of Justice) Regulation 1945 (1 of 1945) for confirmation of the Judgment and Order dated 28-9-2005 abovementioned by way of Criminal Reference (H) No. 2/07.

3. Since both the Criminal Appeal as well as the Criminal Reference above mentioned carry the common question of law structured on similar factual circumstances, both the matters are being taken up together for analogous hearing and the same are being disposed of by this common judgment and order.

4. The prosecution case in short compass needs to be narrated for proper adjudication of the issues in hand.

5. The investigation of the instant case was initiated on the basis of an information which was accepted as an FIR lodged by one K. Riba, Circle Officer, I/C Extra Assistant Commissioner, Lohit Valley : Hayuliang by his communication dated 21-7-93 informing that on account of clan clash one Sri Fayolum Koramai of Kromna village under CGM Circle was alleged to have been murdered on 14-7-93 at 1200 hrs. on suspension bridge over Tapri Stream jointly by three accused namely, both the appellants and one Lagya Chiba who died during the pendency of the trial, by using their local made guns fired from a closed range by amusing themselves.

6. The Police on completion of the investigation submitted charge-sheet against the accused appellants under Section 302/34, IPC read with Sections 25/27 of the Arms Act, 1959. During the trial the prosecution examined as many as 18 witnesses including P.W. 15, P.W. 17 and P.W. 18 C.N. Lungking, who conducted the Post-Mortem over the dead body, investigated the case as I.O. and recorded the confessional statement respectively. The appellants were examined under Section 313, Cr.P.C.

7. The learned Judge on consideration of the entire evidence on record including the confessional statements of the appellants so recorded by the P.W. 18 found both the appellants guilty of the offence fo commission of murder of the deceased and accordingly convicted and sentenced them as already indicated above. Hence this Criminal Appeal along with Criminal Reference.

8. It has been vehemently argued by Mr. Choudhury, the learned Sr. Counsel that the conviction and sentence basically based on the sole ground of the confessional statement so recorded by the learned Magistrate, the P.W. 18 but the same was in total contravention of the provision of law prescribed under Section 164, Cr.P.C. His main thrust is that the learned Magistrate failed to record such confessional statement in strict compliance of the provision of the above section. According to him, such non-compliance of the provision of law is apparent on the face of record itself. Drawing attention to the confessional statements which were not even exhibited as well as the deposition of P.W. 18, the learned Sr. Counsel has stated that no searching inquiry was made by the Magistrate from the accused persons as to why they wanted to make such statements which would surely go against their in