The main legal point established in the judgment is that a confession recorded by administering oath is illegal and inadmissible in evidence. Additionally, the status of the members of the Village Defence Party as non-police personnel and the admissibility of confessions made to them were clarified.

S. Haque, J. :- The Appellant Akanman Bora appeals from Jail against the judgment and order of conviction dated 16-6-1983 under S. 302, I.P.C. in Sessions Case No. 72(NL) of 1981 of the Court of Shri P. K. Deb, Sessions Judge, Lakhimpur.

2. The prosecution case was that accused Akanman Bora committed murder of Fatik Bora on 22-5-1981. The motive for murder was stated to be his implication in a dacoity case at the house of Fatik Bora about 2 months prior to this occurrence. There was no dispute on the fact of death of Fatik Bora in the night of 22-5-1981 as a result of cut injuries over head and neck.

3. There was no direct evidence of the occurrence. Learned Sessions Judge wholly relied on the confession of the Accused to convict him. However, prosecution adduced evidence of extra-judicial confession before the Village Defence Party. The points for consideration are; (1) What would be the legal value of a confession recorded by administering oath to the maker and the fate of the trial which solely depends on such confession; (2) Whether a confession before the Village Defence Party is hit by S. 25 of the Evidence Act.

4. The procedure for recording a confession has been prescribed in S. 164 of the Criminal P.C. A magistrate competent to record confession should strictly comply with the provisions of this Section. A confession is a statement of a suspect/accused of his complicity in a crime, made by him in the course of investigation and recorded by a Magistrate in accordance with the provision of S. 164 of the Criminal P.C. Schedule Form known as 'Assam Schedule VIII to the Form No. 96' is prescribed as a model form for recording a confession under S. 164 of the Code of Criminal Procedure. The recording Officer should carefully read the contents of the paragraphs of the Form before he proceeds to comply with the instruction thereunder and to make the required entries at the appropriate places so as to make it clear on its face as to his satisfaction of recording the same on the voluntariness of the maker. The question is, what will be the effect if oath is administered to the maker before he makes the confessional statement.

5. Learned counsel Mrs. M. Hazarika for the appellant submits that administering oath to the maker of a confession makes the proceeding of such recording illegal and such confession carries no legal value for application against the maker. Learned Public Prosecutor Mr. A. R. Pal Mazumder submits that administering the oath before recording a confession, when the recording Officer is satisfied as to the voluntariness of the maker, will not make it invalid and in no way demolishes its evidenciary value.

6. An accused is at liberty to make any statement or complain verbally or in writing to the arresting authority or to the magistrate before whom he is produced for the purpose of remand. His statement in writing or verbal, as to his complicity in a crime, made to police is inadmissible in evidence; whereas such statment before a Magistrate is admissible in evidence. If such verbal statement as to his complicity in a crime makes (sic) before a Magistrate or expresses to make it, then it is mandatory to the Magistrate to record the same after duly observing all formalities prescribed under the provision of S. 164 of the Criminal P.C. and by following the instructions given in the Schedule Form referred to above. S. 4(2) of the Oath Act prescribes administering of oath to a witness. This Act nowhere prescribes administration of oath to an accused at any stage of investigation, inquiry or trial. Exception to this general rule is to be made applicable under the provision of S. 315 of the Criminal P.C. when the accused offers himself as a defence witness. At such stage he is characterised not as an accused but as a competent witness. Administering oath is barred in the recording of confessional statement by the clear provision of sub-s. (5) of S. 164 of the Criminal P.C. which runs as :-

"Any statement (other t