JUDGMENT 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. 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 evidence, the statements of the accused were recorded under Section 313 of the Code of Criminal Procedure wherein the accused totally denied their involvement in the crime. 4. Placing reliance of the evidence of witnesses, more particularly P.Ws. The Court of its own has examined one Shri Pranab Hazarika as C.W.-1. On completion of the prosecution evidence, the statements of the accused were recorded under Section 313 of the Code of Criminal Procedure wherein the accused totally denied their involvement in the crime. 4. Placing reliance of the evidence of witnesses, more particularly P.Ws. 3, 4, 5, 7 and 8, including the information leading to discovery of the amount and the dead body and in absence of eye-witness, the learned trial Court has formulated two points for decision which is quoted hereunder: (i) Whether the accused charged in this case did commit robbery on 17.1.1992 at about 6 a.m. at Nambar Reserve Forest on Bidyadhar Choudhury and took away Rs. 80,000/- as alleged by prosecution? (ii) Whether the accused did cause death of said Bidyadhar Choudhury in course of committing robbery at Nambar Reserve Forest? 5. The learned trial Court while dealing with the points took an exception to the factum of FIR, contending that when the accused Monu Ali narrated the incident as indicated above and there was suspicion on the minds of the police relating to narration of the story by the accused, the police should not have registered the case on the basis of FIR lodged by the accused Monu Ali vide Ext. 8 and the police should have filed a fresh FIR from their side making Monu Ali and Kutubuddin as an accused in the case, more so, when the I.O. has made a general diary entry being No. 574 dated 17.1.1992 on receipt of information about the occurrence, which, however, has not been produced during the trial to ascertain the fact as stated in the general diary. The learned trial Court, therefore held the same to be a serious lapse on the part of the prosecution. 6. The learned trial Court, therefore held the same to be a serious lapse on the part of the prosecution. 6. The entire case in the commission of offence is based on the information leading to discovery and therefore, the learned trial Court has dealt with the question of information leading to discovery extensively alongwith the evidence on record holding that Section 27 of the Evidence Act is an exception to Sections 25 and 26 of the Act which provides that no confession made to a police officer shall be proved against a person accused of an offence, which however, if any facts discovered in consequence of information received from a person accused of an offence, in the custody of a police officer, that part of information, whether it amounts to confession or not, as relates distinctly to the fact thereby discovered, may be proved, but the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. 7. In the light of the aforesaid provisions the learned trial Court proceeded to deal with the question of information leading to discovery in consequence of which money was recovered by the I.O., Shri Hemkanta Pathak, P.W. 8 in presence of witnesses, more particularly P.W. 3, Shri Prafulla Bora; P.W. 4, Shri Santilal Jain; P.W. 5, Md. Kamruz Hannan Hazarika and P.W. 7, Shri Ganapat Rai Choudhury. The prosecution witnesses viz; P.W. 3, P.W. 4 and P.W. 5 have deposed that they had been called by P.W. 7 and P.W. 8 to the house of one Jeherul Hussain, the brother-in-law of accused Kutubuddin and in their presence accused Kutubuddin handed over an amount of Rs. 30,000/- which he had concealed inside his house. Similarly, Anr. amount was recovered from the house of accused Monu Ali which was handed over to police by his wife. But in case of leading to discovery, the law requires that the accused or any person who led the police officer to the place to recover something, the police officer must record his statement which is a sine qua non in order to prove the admissibility of evidence under Section 27 of the Evidence Act which is absent in the instant case and thus is hit by Section 27 of the Evidence Act. The learned trial Court has further held that in the seizure list vide Exts. The learned trial Court has further held that in the seizure list vide Exts. 3, 4 and 5, it has been stated that the accused has led the I/O to the place, from where money was recovered. But no statement of the accused has been recorded showing that he has led the police officer to the place from where money was recovered. As the recovery in consequence of any statement made by the accused has not been proved in accordance with law, the same would be hit by Section 27 of the Evidence Act. 8. Similarly, regarding killing of the deceased Bidyadhar Choudhury, P.W. 7 Shri Ganapat Rai Choudhury has stated that upon receipt of the information he came to Golaghat and met the accused Monu Ali at Golaghat P.S. who has made a confession before him in presence of Police Officer, that he has killed Bidyadhar Choudhury. This too, is hit by Sections 24, 25 and 26 of the Evidence Act and the learned trial Court under such circumstances had no other option but to acquit the accused persons, the legality whereof is under challenge before this Court in this revision since the State has not come up in Appeal as provided under the law. 9. Appearing on behalf of the Petitioner, the learned Sr. Counsel Shri G.N. Sahewalla assisted by Shri P. Bora, Advocate has submitted that the learned trial Court has disposed of the Sessions case cryptically without even discussing the evidence of the prosecution witnesses and the submissions made thereon. There are also several infirmities in the conclusions arrived at while interpreting Section 27 of the Evidence Act vis-a-vis leading to discovery of the amount recorded in the commission of crime. 10. The learned Sr. Counsel has further taken the Court to the evidences of PWs 3, 4, 5, 7 and 8 including the seizure lists vide Exts. 3, 4 and 5 which would conclusively prove that the accused Monu Ali in conspiracy with Kutubuddin committed the crime and therefore urged that to prevent the miscarriage of justice, the interference with the order of acquittal is required in the facts and circumstances of the case. 11. 3, 4 and 5 which would conclusively prove that the accused Monu Ali in conspiracy with Kutubuddin committed the crime and therefore urged that to prevent the miscarriage of justice, the interference with the order of acquittal is required in the facts and circumstances of the case. 11. Learned Counsel appearing for the opposite parties on the other hand supported the judgment of the trial Court and submitted that the Court would be slow in revising the judgment of acquittal which has gone in favour of the accused, more so, when there was irregularity in conducting the trial which has vitiated the entire proceedings. 12. In order to ascertain as to whether there is miscarriage of justice and/or failure of justice, we proposed to consider the evidences, more particularly, the evidences of P.W. 3, P.W. 4, P.W. 5, P.W. 6, P.W. 7 and P.W. 8 vis-a-vis the seizure lists vide Exts. 3, 4 and 5. The evidence of P.W. 3 as deposed reads as follows: Safiqul Hussain's house is near that of mine at Jorhat. One late night in 1992, police went to my house and woke me up and took me to my neighbour Safiqul Hussain's house. I do not remember who opened the door. In my presence the police demolished the oven and took out some money. I do not remember the amount of money that the police had recovered. I do not also remember if the arrested accused person was also with the police. In my presence the police prepared seizure lists and seized the money. Exts. 3, 4 and 5 are the seizure lists and Exts. 3(1), 4(1), 5(1) my signatures. In cross-examination the witness deposed, "I do not remember if I had signed the seizure lists after those had been prepared by the police. 13. The deposition of P.W. 4 are quoted hereunder- I do not remember the year of occurrence. Some 10 years ago I had been at Royal Road, Jorhat. I had stayed there for 4/5 years. I knew Jakir Ali who stayed there. Around 7.30 a.m. one day some 10 years ago police came and woke me up from sleep. A couple of men were also with the police. One accused under handcuff was also there with the police. The police took the accused to Kadir Ali's house. Later, the police recovered some money from the plinth of Kadir Ali's house. Around 7.30 a.m. one day some 10 years ago police came and woke me up from sleep. A couple of men were also with the police. One accused under handcuff was also there with the police. The police took the accused to Kadir Ali's house. Later, the police recovered some money from the plinth of Kadir Ali's house. The police seized the said money by a seizure list. Ext. 6 is the seizure list and Ext. 6(1) my signature. Cross-examination of P.W. 4 was declined. 14. The deposition of P.W. 5 relates to recovery of money amounting to Rs. 30,000/-. He has deposed that accused Kutubuddin dug out the plinth at the rear of the house and produced three bundles of 100 rupees notes that had been kept wrapped in polythene. The police counted the money in their presence. Ext. 6 is the seizure list and Ext. 6(2) is his signature. The suggestion put to him to the effect that the accused had not produced any money in his presence has been denied by P.W. 5. 15. P.W. 6 who is a police officer, attached at Joihat Police Station on the date of occurrence, has deposed that he accompanied P.W. 8 on 25.1.1992 and P.W. 8 took with him two accused persons. He alongwith P.W. 8 went to the accused person's brother-in-law's house at Royal Road, Jorhat. The rear plinth of the accused persons brother-in-law's house was dug out and Rs. 30,000/- was recovered from there. The money was in denomination of Rs. 100/- notes. The money was seized at that place. He signed the seizure list. Ext. 6 is the seizure list and Ext. 6(3) was his signature. In cross-examination he has deposed that the money had been hidden by an earthen pot. At that time some 4/5 had assembled there. 16. P.W. 7 deposed that on being informed on 25.1.1992 by the Police Station, Golaghat he reached Golaghat in the following day wherein he saw the dead body of the deceased Bidyadhar Choudhury and the accused Monu Ali at the Police Station. On enquiry the accused told the story as reflected in the FIR and on seeing the blood in his person he has confessed that he has killed the deceased with a blade on being pressed in the neck by the other accused Kutubuddin. He was present when the money was recovered from accused Kutubuddin's house. On enquiry the accused told the story as reflected in the FIR and on seeing the blood in his person he has confessed that he has killed the deceased with a blade on being pressed in the neck by the other accused Kutubuddin. He was present when the money was recovered from accused Kutubuddin's house. Kutub produced Rs. 5,200/- from the backside of the house and said that he had taken that money by killing the Munim. By seizure list Ext. 5, the police seized the money. Ext. 5(2) is his signature. In cross the suggestions put to him have been denied. 17. The most vital witness is P.W. 8, the Investigating Officer, who has deposed that on being informed on 17.1.1992 that a fiat car had been found kept on the roadside at Nambar Forest and the hands and feet of the driver had been bound and there had been blood in the car, he made a GD. Entry No. 574 dated 17.1.1992 and left for the place of occurrence, where he had found police personnel from Sorupathar and on being asked the accused Monu Ali narrated the story as reflected in FIR Ext. 8. This witness has further deposed that the incident took place around 9 a.m. and that around 3:30 p.m., CRPF personnel took the driver out of the dicky and handed over the accused at the police check-gate. The police officer stationed there took Monu Ali to the place of occurrence. From there the driver came to the Rs. and lodged an ejahar. At the police station he seized the car and a torn Naga Shawl. That very day Monu Ali showed the Munim's dead body in the forest whereupon the inquest was made. When interrogated further Monu Ali said while coming with the money that day, he had met Kutubuddin in a bus. Being suspicious P.W. 8 arrested Monu Ali and Kutubuddin and on interrogation Monu Ali had said that he would produce the money looted after murdering the Munim. Accused Kutubuddin took them to Monu Ali's father-in-law. Monu Ali's mother-in-law Nurun Nessa produced Rs. 20,000/- and P.W. 8 had seized the same vide Ext. 3. Ext. 3(2) is his signature. That veiy day he seized Rs. 17,000/- from Monu Ali's wife Hasina Begum. Ext. 4 is the seizure list and Ext. 4(2) his signature. Ext. Accused Kutubuddin took them to Monu Ali's father-in-law. Monu Ali's mother-in-law Nurun Nessa produced Rs. 20,000/- and P.W. 8 had seized the same vide Ext. 3. Ext. 3(2) is his signature. That veiy day he seized Rs. 17,000/- from Monu Ali's wife Hasina Begum. Ext. 4 is the seizure list and Ext. 4(2) his signature. Ext. 4(3) and 4(4) are the signatures of accused Kutubuddin and Hasina Begum respectively. By Ext. 6 he seized Rs. 30,000/- from the accused Kutubuddin's brother-in-law Kadir Ali. The money had been kept at the rear of Kadir Ali's house. Ext. 6(4) is his signature. By seizure list Ext. 9 he seized the cover of the "prince" blade. In cross he has stated that he did not remember the date on which he had taken money from Nurun Nessa. While recovering the money, he did not ask them when the accused persons had given them that. He did not ask the accused persons as to whom the material Ext. 3 belonged. The other suggestions put to him have been denied. 18. P.W.-2 is the doctor, who held the autopsy on the dead body of the deceased Bidyadhar Choudhury and found the following injuries: An incised looking wound of about 3" long, obliquely placed in front of the neck. It extends from about 1" lateral to midline of left side going downwards upto about 2" lateral to middle line on right side. Clotted blood present in the wound. Trachea completely cut, right stemoleidomastoid is partially cut. Great vessels on right side are cut. In his opinion, the cause of death of the deceased is due to shock and hacmorrhage as a result of the injuries in the neck sustained by the deceased. In the cross, he has deposed that exact time of death cannot be ascertained. 19. The trial Court has issued summons to one Pranab Hazarika and examined him as CW-1 who has deposed that he took custody of Rs. 72,000/- on a authority made by the firm. He has further deposed that the police had recovered the money from the houses of accused Monu Ali and Kutub Ahmed. He had deposited the aforesaid amount of Rs. 72,000/- in the Court on the day of his deposition. 72,000/- on a authority made by the firm. He has further deposed that the police had recovered the money from the houses of accused Monu Ali and Kutub Ahmed. He had deposited the aforesaid amount of Rs. 72,000/- in the Court on the day of his deposition. He further deposed that a part of this money had been recovered from accused Monu Ali's father in law's house, while the other part was recovered from Kutub Ahmed's house. In the cross he deposed that he did not sign in the seizure list. He did not know exactly how much money had been recovered from whose house. Other suggestions put to him have been denied. 20. The prosecution witness P.W. 8 had seized the amount on being confessed and led by the accused Kutubuddin vide Ext. 3, Ext. 4, Ext. 5 and Ext. 6 which contains money amounting to Rs. 20,000/-, Rs. 10,000/-, Rs. 7000/-, Rs. 5,200/- and Rs. 30,000/- respectively in presence of witnesses. But curiously enough there is no statement of the accused showing that he has led the police to the place from where the money was recovered which is not in accordance with Section 27of the Evidence Act, which is fatal to the prosecution case and cannot be held that there is admissible evidence leading to discovery of incriminating articles. 21. The seizure list does not disclose any admission made by the accused. Further, whatever statement pertaining to the leading to discovery of incriminating articles the accused did make, it was made before the police and therefore the entire evidence led by the prosecution witnesses in this regard are not admissible evidence and the accused cannot be held guilty under Sections 397/ 302, IPC in the facts and circumstances of the case. 22. Admittedly there was no eye-witness to the commission of crime. The occurrence took place on 17.1.1992 at about 9 a.m. as set up by the prosecution. The accused Monu Ali was rescued by the CRPF personnel from the dicky of the car at about 3:30 p.m. and he was brought to the police station on 17.1.1992 and he had filed the ejahar vide Ext. 8. He led the police to the place of occurrence where the dead body of the deceased was found and accordingly inquest was done and the body was sent to Civil Hospital for postmortem examination. The autopsy was conducted on 18.1.1992. 8. He led the police to the place of occurrence where the dead body of the deceased was found and accordingly inquest was done and the body was sent to Civil Hospital for postmortem examination. The autopsy was conducted on 18.1.1992. The police arrested both the accused accordingly and on 25.1.1992, the incriminating money were recovered by the police being led by the other accused Kutubuddin. There is nothing to show as to what happened between these dates. Ext. 3 (seizure list) reveals that the money amounting to Rs. 20,000/- was handed over to Smti. Nuran Nessa by Smt. Hasina Begum, the wife of the accused Monu Ali who is the daughter of Nuran Nessa. The witnesses signed the seizure memo at the instance of the police officer. Therefore this Court has no hesitation to hold that the evidence of the police officer is unreliable and no reliance can be placed on the evidence regarding recovery of amount on the testimony of the police officer. Moreover there is a missing link and the accused in their statement under Section 313 of the code denied the questions put to them. The only question left to be decided as to whether recovery of the incriminating article i.e. the alleged looted money from the house on the basis of confessional statement before the police can be the basis of conviction. The answer would be no as has been held by the learned Sessions Judge, Golaghat acquitting the Appellant. 23. In support of his submission Mr. Sahewalla, learned Sr. Counsel has cited the following decisions: (1) AIR 1945 Mad 202Public Prosecutor v. Pasala Venkata Reddi and Anr. (2) AIR 1947 P C 67 Pulukuri Kottaya and Ors. v. Emperor. (3) AIR 1962 SC 1788 K. Chinnaswamy Reddy v. State of Andhra Pradesh and Ors. (4) JT 2005 (7) SC 1 : (2005) 11 SCC 600 State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru. 24. The decisions cited by the learned Sr. Counsel appearing on behalf of the Petitioner have been considered. Ratio of those cases cited are not applicable due to the difference of facts and circumstances of the case at hand on the part of the accused with regard to leading to discovery of the dead body of the deceased as well as the looted money. 25. Counsel appearing on behalf of the Petitioner have been considered. Ratio of those cases cited are not applicable due to the difference of facts and circumstances of the case at hand on the part of the accused with regard to leading to discovery of the dead body of the deceased as well as the looted money. 25. In view of the discussion made above the Revision Petition is found to be devoid of merit and is accordingly dismissed by upholding the judgment of acquittal dated 12.5.2003 rendered by the learned Sessions Judge, Golaghat in Sessions Case No. 78/2001 under Sections 397/ 302, IPC. 26. The registry is directed to send down the records immediately Petition dismissed