The main legal point established in the judgment is the requirement for admissibility of evidence under Section 27 of the Evidence Act and the lack of evidence connecting the accused with the alleged crime.

P.G. Agarwal, J.

1. Heard Mr. J.M. Choudhury, learned Senior Advocate appearing on behalf of the accused Appellant and Mr. B.S. Sinha, learned P.P.

2. This appeal is directed against the judgment and order date 28.3.2001 passed by the Sessons Judge, Morigaon in Sessions Case No. 28/99 (GR 535/97) whereby the accused Appellant was convicted Under Section 302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 1000/- in default further imprisonment for six months. Further, the accused Appellant was convicted Under Section 201 IPC and sentenced to imprisonment for seven years and to pay a fine of Rs. 1000/- in default further imprisonment for six months. Both the sentences were ordered to run concurrently.

3. The prosecution case in brief is that on 27.7.97, two young boys, namely-Rana Bora alias Upananda Bora and Ajoy Das who were engaged in the business of selling Pat and Muga fabrics went out from their house to Manaha area and as they did not return on 27.7.97, a missing entry was given and later on the dead bodies of the two young boys were recovered from Rouman till a and thereafter, FIR (Ext. 3) was filed naming as many as four accused persons. After usual investigation, police submitted charge sheet and the learned Sessions Judge, Morigaon framed charges against as many as seven accused persons for commission of offence Under Section 302/201 IPC. During trial, prosecution examined as many as 14 witnesses and the accused Appellant examined himself as D.W. 1 as provided Under Section 315 Code of Criminal Procedure. On conclusion of the trial, the learned Sessions Judge convicted and sentenced the accused Appellant as stated above. Hence, the present appeal.

4. So far the finding of the trial Court that the two young boys Rana Bora alias Upananda Bora and Ajoy Das met with the homicidal death, there is oral and medical evidence on record. As regards the death of Rana Bora, P.W. 1 Dr. Kalyan Kumar Bora found the following injuries on the person of Rana Bora-

Wound position and character:

1. Contusion over left side of face of size 2"x2"

2. Contusion over left side of chest of size 3"x2".

5. As regards the death of Ajoy Das, the doctor found the following injuries on the person of Ajoy Das-

Wound position and character

1. Incised wounds of Size 2"x1"x1" over right arm

2. Incised wounds over right lumber region of size 2"x1"x1/2".

3. Haemotoma over occipital region of size 1"x1".

6. In the opinion of the doctor, the death was due to shock and haemorrhage due to ante-mortem injuries and head injury.

7. Although the medical evidence was not challenged by way of cross examination and considering the evidence on record, we concur with the finding of the trial Court on that count.

8. In the present case, there is no direct testimony as regards the killing of the two young boys and there is no eye witness to the occurrence. The accused Appellant has been convicted solely on the basis of the evidence regarding recovery of the dead bodies Under Section 27 of the Evidence Act. There is evidence of as many as six witnesses, namely P.W. 2, P.W. 10, P.W. 11, P.W. 12, P.W. 13 and P.W. 14 regarding recovery of the dead bodies. The witnesses have stated that the accused Appellant Joyram Ingty led police to the place where from the two dead bodies were recovered.

9. Binit Kr. Saikia (P.W. 11) who was the Executive Magistrate was present at the time of recovery of the dead bodies at Roumari Beel. The factum of recovery as such is not disputed.

10. Learned Counsel for the Appellant has submitted that this is not a recovery Under Section 27 of the evidence Act. It is stated that no statement of the accused was recorded and no such statement was proved by the investigating police officer (P.W. 12). Learned P.P. merely submitted that no statement Under Section 27 of the Evidence Act was proved.

11. Mr. J.M. Choudhury, learned senior counsel for the Appellant has drawn our attention to a recent decision of this Court in the case of Pandav Koya