The insufficiency of evidence and the strict interpretation of Sections 25 and 26 of the Evidence Act regarding the admissibility of extra-judicial confessions made in the presence of police influenced the court's decision.

Ajit Singh, J.

The appellants, namely, Mintu Hazda and Petras Besra @ Tala have been convicted under Section 302/34 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs. 2000/- each, with default stipulation.

2. The victim of the incident was Bhim Bahadur Adhikari, aged about 42 years. He was a resident of No. 4, Barigaon within the district of Udalguri, Assam.

3. According to the prosecution case, on 5/12/2012, at about 9 a.m, Bhim Bahadur Adhikari went out of his house to purchase articles from Udalguri Weekly Market. But when he did not return till evening, his two daughters searched for him and ultimately found him lying on a road near Khawrang river. They then asked him to return home but he refused and told them that he would come later. Even then he did not return. And, on the next morning, his dead body with injuries was found in the river by Ganesh Rajbhor (PW-4), who intimated the villagers about the dead body. Headman of the village - Gopinath Chetry (PW-5) - lodged the First Information Report Exhibit-1 at Udalguri Police Station about the discovery of dead body. He also stated in the First Information Report that some miscreants might have committed the murder of Bhim Bahadur by hacking his neck with a sharp edged weapon and thereafter dumped the dead body in the river. The First Information Report was registered against un-known persons. The Station Officer - Amar Jyoti Baruah (PW-11)- immediately rushed to the place of occurrence and recorded the statements of witnesses. He also sent the dead body of Bhim Bahadur for post-mortem examination.

4. Dr. Bhagirathi Dey (PW-7) conducted the post mortem examination on dead body of Bhim Bahadur. She found two cut injuries on the neck leading to trachea cartilage and vessels; one superficial cut injury on the left lower chest and one injury on the occipital region of head. She opined that the cause of death of Bhim Bahadur was due to homicidal injuries by heavy and sharp edged weapon leading to sudden respiratory collapse and brain injury. Her post mortem examination report is Exhibit 3.

5. After few days, the police arrested the appellants whereafter they made extra-judicial confessions at the Police Station before Kishor Sirpali (PW-1), Gopinath Chetry (PW-5), Tara Powrel (PW-6), Giriraj Mahanta (PW-8). The appellants also led to the discovery of dao from their house in the presence of their respective wives - Sangita Hazda (PW-9) and Bali Mardi (PW-10). The police after investigation submitted the charge sheet against the appellants for an offence under Section 302/34 of the Indian Penal Code.

6. During trial, the defence of the appellants was that they have been falsely implicated. The trial court, however, relying upon the evidence of witnesses Kishor Sirpali, Gopinath Chetry, Tara Powrel and Giriraj Mahanta, convicted and sentenced the appellants as aforesaid.

7. The trial court took into account the following circumstances in holding the appellants guilty:-

a. Bhim Bahadur was missing after departure to weekly market since the morning of 5/12/12,

b. Dead body of Bhim Bahadur was found in the river Khowrang with severe cut injuries on the neck,

c. First Information was lodged by Gopinath on 7/12/12,

d. Seizure of dao from the house of the appellants,

e. Extra-Judicial confession made by the appellants before Kishor Sirpali, Gopinath Chetry, Tara Powrel and Giriraj Mahanta in the presence of Investigating Officer,

f. Post mortem examination report confirming the death of Bhim Bahadur due to injuries caused by heavy sharp edged weapon,

g. Denial of appellants about their involvement in the crime under Section 313 of the Code of Criminal Procedure without offering any explanation how Bhim Bahadur actually died.

8. It is argued on behalf of the appellants that the chain of circumstances is not complete and the extra-judicial confessions made by them before Kishor Sirpali, Gopinath Chetry, Tara Powrel and Giriraj Mahanta are not admissible in evidenc