Confessional statements must be proved to be both voluntary and true to be admissible in evidence.

Islam, J. :- This appeal by the State of Assam is directed against an order of acquittal passed by the Sessions Judge, U.A.D., Jorhat in Sessions Case No. 40 (S-S)/67. There are five respondents in the case. Respondent No. 1 Lakhinath Duara and Respondent No. 2 Khora Chandra Duara had been charged under Sections 302/34 I.P.C. and these two respondents and the other three respondents, namely Phatik Chandra Duara, Gangadhar Duara and Hazari Duara had been charged under Sections 201/34 of the Penal Code. The accused has pleaded not guilty to the charges.

2. The prosecution case in brief is that Dambaru Gogoi, who is a resident of village Laraputagaon had some cultivable land at Maganapathar and on the date of occurrence, he had left his house at about 6 or 7 in the morning with two "dangaris" (bundles of paddy) and a "Biria" (carrying split bamboo) to bring paddy from Maganapathar across the river Darika; but he did not return home. His wife Musst. Kusum Gogoi made enquiries about him through her son Jagadhar and neighbour Abapu Gogoi; but Dambaru could not be found. Next day, the dead body of Dambaru was found lying at Maganapathar. It is alleged that there was some quarrel between the accused persons and the deceased over land and cattle and that on the day preceding the day of occurrence, accused Gangadhar and Lakhinath had threatened the deceased with death. Abapu Gogoi lodged an ejahar on 23-12-1966 at the Sibsagar Police Station and therein he stated that he suspected accused Gangadhar and Lakhinath to be the culprits.

3. The police registered a case under Section 302 Indian P.C. took up investigation and on 24-12-1966 arrested all the five accused persons, who are relations. Accused Khora and Hazari are sons of accused Phatik. Accused Gangadhar and Lakhinath are brothers and their father and accused Phatik are brothers. The prosecution further alleges that on 22-12-1966, accused Khora and Lakhinath made confessional statements and their statements were recorded under Section 164 Cr.P.C. by Magistrate Shri B. N. Gohain and accused Phatik also made a confessional statement on 26-12-1966. It is alleged that while returning from Maganapathar deceased Dambaru was drowned in the water of Darika river by accused I akhinath and Khora. It is further alleged that on the following night, while Premanath, brother of P.W. Anil, was sleeping in the pam house of accused Lakhinath at Maganapathar, he was roused by accused Gangadhar, Premanath work up and saw all the five accused persons there who told him that Dambaru had been killed by Khora and Lakhinath and that they wanted to conceal the dead body. It is also alleged that the accused persons after their arrest led the police to the place of occurrence and produced a gunny bag and two lathis. Fifteen witnesses were examined in the case.

4. The learned Public Prosecutor submits that the order of acquittal has been illegal and the evidence on record warranted conviction for the offences charged with.

5. Let us first examine the case under Section 302/34 Indian P.C. against accused Lakhinath and Khora. The factum of homicide is not in dispute. The dead body of Dambaru has been identified by P.W. 1 Abapu Gogoi. The medical evidence of P.W. 2 Dr. P. Duara, who held the post mortem examination on the dead body is as follows :

(1) Incised would 3 1/2" x 1/2" x bone deep on the right side of the head in parital and occypital regions.

(2) Incised would 4" x 1/2" x bone deep on the right side of the head in parital and occypital region and completely cutting down the occypital bone 2 1/2" in length. In the opinion of the doctor, the injuries were ante-mortem and the death was due to shock and haemorrhage due to the injuries described. His further opinion is that the injuries might be caused by a sharp weapon like a 'machidao' (shown in court).

6. The only question is whether accused Lakhinath and Khora committed the murder. In this case, the prosecution relies on the following pieces of