The main legal point established in the judgment is the inadmissibility of evidence under Section 27 of the Evidence Act in relation to the recovery of incriminating articles, leading to the dismissal of the revision petition and the uphold of the judgment of acquittal.

A. Hazarika, J.

1. Challenge in this revision petition is to the order of acquittal dated 12.5.2003, passed by the learned Sessions Judge, Golaghat in Sessions Case No. 78 of 2001 under Sections 397/ 302, IPC, whereby an amount of Rs. 72,000/- seized in connection with the case was confiscated to the exchequer of the Government having failed to establish the owner of the amount by the prosecution.

2. Background facts according to the prosecution in a nutshell are as follows:

On 17.1.1992, in the morning, the accused Monu Ali who was the driver of the Vehicle No. WP-02/A-0618 belonging to M/s. Khumsom Gattani of Jorhat, was directed to move to Guwahati alongwith the deceased Bidyadhar Choudhury, Munim of the said Gattani firm who had carried Rs. 80,000/- for depositing at their Guwahati Office. On the way to Guwahati the accused driver turned the vehicle towards Dimapur and arrived at Nambar Reserve Forest. The said vehicle was found near about 1 Km ahead of Garampani by some CRPF personnel and the accused Monu Ali was found tied in the dicky of the vehicle and his mouth tied with cellotape, which was communicated to the Police by the CRPF Personnel. On receipt of the aforesaid information, the police arrived at the place of occurrence and brought the accused Monu Ali to Golaghat Police Station from whom the police came to know that while the accused Monu Ali, alongwith Bidyadhar Choudhary, since deceased, were proceeding to Guwahati with an amount of Rs. 80,000/- for depositing the said amount at Guwahati Office of the aforesaid firm, few persons in Army dress stopped the vehicle near Numaligarh and forcibly turned the said vehicle towards Dimapur after entering into the vehicle, directing the accused driver to drive the vehicle according to their directions. The vehicle accordingly was on way to Dimapur and when the vehicle was crossing the Nambar Reserve Forest, the Army personnel who were in the vehicle tied the driver inside the dicky by gagging his mouth with cello-tape and killed Bidyadhar Choudhury and took away Rs. 80,000/- from him. The accused driver Monu Ali accordingly lodged an FIR to that effect before the Officer-in-Charge, Golaghat Police Station and on the basis of which a case was registered. The police thereafter informed M/s. Gattani Firm at Jorhat. On receipt of the aforesaid information one Shri Ganapat Rai Choudhury came to Golaghat and found the accused there in the police station. On conversation relating to the incident the said Ganapat Rai Choudhury had doubt in his mind in regard to the version of the accused Monu Ali and on query the accused confessed before him that he alongwith Anr. accused Kutubuddin @ Jabbar had killed Bidyadhar Choudhury and took away the money by dividing it among themselves. Thereafter the police arrested both the accused and at the instance of the other accused Kutubuddin an amount of Rs. 50,000/- was recovered and had also seized some other articles in connection with the case vide different seizure list. Thereafter, at the instance of the driver accused Monu Ali, the dead body of the said Bidyadhar Choudhury was recovered by the police inside the Nambar Forest Reserve Police held inquest on the body of the deceased and prepared inquest report. The dead body was sent to Golaghat Civil Hospital for autopsy and on completion of investigation the Investigating Officer (I.O. for short) submitted charge-sheet against both the accused persons under Sections 397/ 302, IPC.

The case being triable by the Court of Sessions, the learned Magistrate, Golaghat committed the case to the Court of learned Sections Judge, Golaghat for trial, where charges were framed under Sections 397/ 302, IPC. The charges being read over and explained to the accused, they pleaded not guilty and claimed to be tried.

3. During trial 8 (eight) witnesses were examined to prove the prosecution version. The Court of its own has examined one Shri Pranab Hazarika as C.W.-1. On completion of the prosecution ev