S.K. Agnihotri, J.

1. The instant appeal is directed against the conviction of the appellant/convict under provisions of Section 304 Part I IPC and sentencing to seven years rigorous imprisonment and a fine of Rs. 5,000/-. In default of payment of fine, the appellant/convict is to further undergo three months simple imprisonment.

2. The trial Court, on appreciation and consideration of evidences adduced by the parties and other circumstantial evidences, held that on 29.06.2014, around 2135 hours, the appellant/convict Prakash Subba assaulted the deceased Yogesh Subba on the neck with a Khukuri (M.O. IV) inflicting fatal injuries without premeditation and on sudden provocation, in heat of passion and fit of anger, which resulted into death of the deceased. It is further held that the appellant/convict was fully aware that hitting the deceased with such a weapon even without any motive or intention will cause death of a person and as such the deceased, who happened to be his son was killed by the appellant/convict, who had no intention to do it. Fatal injuries sustained by assault on the neck of the deceased were the cause of his death. Resultantly, the convict was held guilty under the aforestated provisions and sentenced accordingly.

3. Mr. Bhaskar Raj Pradhan, learned Senior Counsel appearing for the appellant/convict, would contend that the appellant has been held guilty without proving the case by the prosecution. The prosecution has failed to establish its case even by way of circumstantial evidence. The trial Court has proceeded to convict the appellant/convict relying upon inadmissible evidences. There was a lack of proper investigation as it was done on tampered records to establish the guilt of the appellant/convict. The appellant/convict was wrongly convicted under Section 304 Part I IPC. The entire judgment is based on such evidences, which are not admissible in the teeth of legal provisions under Sections 25, 26 and 27 and Section 60 of the Indian Evidence Act, 1872 read with Section 162 of the Code of Criminal Procedure, 1973.

4. Elaborating the above contentions, learned Senior Counsel would contend that the trial Court has mainly relied upon the statements of Krishna Prasad Ghimiray (PW-4) who witnessed the disclosure statement made by the appellant/convict to the police on 30.06.2014 at around 13:20 hours. Deepak Das (PW-5) was also a witness to the disclosure statement made by the appellant/convict and Karma Doma Bhutia (PW-19) was the Investigating Officer. It is further urged that the disclosure made by the appellant/convict before the police was held as 'extra judicial confession', contrary to the provisions of Sections 25 and 26 of the Evidence Act. In support of his contention, learned Senior Counsel relied on decisions of the Supreme Court in State (NCT of Delhi) vs. Navjot Sandhu alias Afsal Guru, (2005) 11 SCC 600 and Indra Dalai vs. State of Haryana (2015) 11 SCC 31.

5. It is next contended that relying on the said purported disclosure statement made on 30.06.2014, at 13:20 hrs. the prosecution has stated the fact that Khukuri was recovered in pursuance thereof, when the Investigating Officer had already showed the said Khukuri to Dr. O.T. Lepcha (PW-12) beforehand, as is evident from the Autopsy Report (Exhibit-18) conducted between 11.30 a.m. to 12.30 p.m. on the same day, much prior to recording of alleged disclosure statement (Exhibit-8). This fact is contrary to the well settled principles of law, as ex posited by the Supreme Court in Vijender Vs. State of Delhi, (1997) 6 SCC 171 and Indra Dalai (supra). Further, reliance on the statements of the disclosure statement witnesses is also hit by the provisions of Sections 25 and 26 of the Evidence Act and as such is inadmissible in evidence. Learned Senior Counsel further refers to and relies on the observations of the Supreme Court in Mohamed Inayatullah vs. The State of Maharashtra, (1976) 1 SCC 828, Suhnder Pal Jain vs. Delhi Administration, (