JUDGMENT H.N. Sarma, J. 1. This criminal appeal arises out of the judgment and order dated 28.11.2001 passed by the learned Sessions Judge, Barpeta in Sessions Case No. 105/00 convicting the appellants along with another under Section 395, IPC and sentenced them to undergo rigorous imprisonment for 5 years with a fine of Rs. 5,000/-, in default, further rigorous imprisonment for 6 months. 2. I have heard Mr. Pallav Kakati, learned Counsel for the appellants and Mr. D. Das, learned Additional P.P., Assam for the respondent. 3. In brief, the prosecution case is that on the night of 11.1.1993 at about 11.00 p.m., the accused persons armed with weapons asked the informant to open the door and subsequently broke open the door entered into the house of the informant and tied him up and took away valuable articles worth more than Rs. 5 thousands including cash. There was also allegation that one of the appellants committed rape on the wife of the informant at the day of occurrence. The aforesaid information having been received, a general diary entry was made vide G.D. Entry No. 149 dated 12.1.1993 and subsequently Patacharkuchi P.S. Case No. 8/93 under Sections 395/376 was registered against the appellants on the information lodged by PW 1, the informant. 4. In the FIR it is also alleged that 3 accused persons namely, Raben Das, Paramesh Sarma and Dwipne Sarma were apprehended by the villagers on the night of occurrence and they were handed over to the police. After registration of the FIR, process of investigation was set into motion by the Investigating Officer. During the course of investigation, the I/O recorded the statement of witnesses under Section 161, CrPC and caused medical examination on the wife of the informant, seized articles and having found a prima facie case against the appellants and other accused person submitted charge-sheet against them. 5. The case being exclusively triable by the Court of Sessions, the learned SDJM, Bajali forwarded the same to the Court of learned Sessions Judge, Barpeta for necessary trial. 6. After commitment of the case, the aforesaid Session's case was registered and vide order dated 12.7.2000 charges under Sections 395/376 read with 34, IPC were framed against the accused persons and when the charges were read over and explained to the appellants, they pleaded not guilty and claimed to be tried. 7. 6. After commitment of the case, the aforesaid Session's case was registered and vide order dated 12.7.2000 charges under Sections 395/376 read with 34, IPC were framed against the accused persons and when the charges were read over and explained to the appellants, they pleaded not guilty and claimed to be tried. 7. During the course of hearing, prosecution examined as many as 8 witnesses in support of the prosecution case, including the Doctor and the Investigating Officer of the case, whereas the defence examined none. Defence of the accused persons as seen from the tenor of cross-examination of PW 3 as well as their reply to the statements made under Section 313, CrPC which is total denial. 8. Upon consideration of the evidence and materials on record that produced during the course of trial, the learned trial Judge convicted and sentenced the accused appellants in the manner aforesaid. 9. Challenging the impugned conviction, Mr. Kataki, learned Counsel for the appellants submitted that in the instant case prosecution has not been able to prove its case beyond all reasonable doubt. That apart, their having no eye-witness to the occurrence, the prosecution relied on the extra-judicial confession made by the accused persons, Raben Das, Paramesh Sarma and Dwipen Sarma. The said extra judicial confession not being voluntary and weak piece of evidence, the learned trial Judge committed illegality in convicting the accused appellants on the basis of such evidence. The learned Counsel further submits that the statement of prosecution witnesses are full of contradiction and material omissions and taking note of such facts into consideration, the impugned conviction and sentence cannot be sustained. 10. Mr. D. Das, learned Additional Public Prosecutor, however, submits that there was no illegality or irregularity in accepting the extra judicial confession of the accused persons and such an extra judicial confession can form the basis of conviction under the law. It is further contended that the PW 3 being the Gaonburah of the village is a person in authority as provided under Section 40 of the CrPC, before whom the accused made such statement and there is nothing to disbelief the statement of PW 3. It is further contended that the PW 3 being the Gaonburah of the village is a person in authority as provided under Section 40 of the CrPC, before whom the accused made such statement and there is nothing to disbelief the statement of PW 3. It is also contended that immediately after the occurrence, 3 accused appellants were caught on the spot itself and in such a situation, it can not be said that conviction and sentence passed by the learned trial Judge suffers from any illegality or irregularity. 11. I have considered the submissions made by the rival parties which led me to scan the evidence of the prosecution witnesses. It is noteworthy that although the prosecution relied heavily on the extra judicial confession of the accused persons namely Raben Das, Paramesh Sarma and Dwipen Sarma but the exact words stated by them admitting their guilt, has not been stated by any of the witnesses. 12. Let us examine the statement of the witnesses relied upon by the prosecution to sustain the conviction. 13. PW 1, Suresh Ch. Sharma, the informant who deposed inter alia that on the night of occurrence when somebody knocked the door and asked to open the door, he refused to do so, the accused persons broke down the door entered inside. There were 3 accused persons and he came out to the courtyard, the accused persons dragged him outside and tied him up. He was assaulted and lights were switched off. His wife was also dragged outside and later on his wife untied him. On being raised hue and cry, people from the neighbour came and he knew that the people caught the accused Raben Das, Paramesh Sarma and Dwipne Sarma. He knew the accused persons earlier out of which Dwipen and Raben Das were his students. Apart from those 3 accused persons there was another person namely Matleb Ali. The accused took away one radio, watch, golden ornaments and cash of Rs. 1,500/-. He lodged the written FIR as Exht. 1 on the next morning wherein he put his signature vide Exht. 1(1). He heard that the I/O recovered a pistol, dagger from the accused persons. In cross, he stated that he did not know who wrote the ejahar, but he put his signature thereon. He further deposed that he personally did not recognize any of the dacoits/accused persons. 1 on the next morning wherein he put his signature vide Exht. 1(1). He heard that the I/O recovered a pistol, dagger from the accused persons. In cross, he stated that he did not know who wrote the ejahar, but he put his signature thereon. He further deposed that he personally did not recognize any of the dacoits/accused persons. He also stated that wherefrom accused persons were caught by the villagers, he did not know. They were assaulted after being caught, he heard so. But no articles were recovered from the accused persons. 14. PW 2, Smt. Sarala Sarma, the wife of the informant, examination-in-chief she stated inter alia that on the night of occurrence, while she was sleeping along with her husband and daughter, the dacoits asked to open the door and on being broke down the door entered inside, his husband came out and dacoits assaulted him and dragged him outside and tied him up. She was stopped inside and did not allow to go out. Accused persons went away with radio, watch, silver ornaments and one of the accused persons tried to commit illegal acts upon her and on being objected she was threatened with dagger. Hue and cry being raised by her husband, the villagers came out and one of the dacoits tried to escape was caught and he having disclosed all names of other accused persons, they were also caught. The accused persons were from their own village. Vide Exht. 2, police seized the stolen articles and wherein she put her signature as Exht. 2(1). She was then taken for medical examination and the doctor examined her. In cross, she stated that she could not recognize any of them and when accused persons were caught, she could only recognize them. She also could not recognize who drag her outside. She did not know where-from the villagers caught and brought the accused persons and they were also assaulted. Police did not return any of the article after recovery. 15. PW 3, Narayan Ch. Nath, the village Gaonbhura, has stated that he was informed about the occurrence by Hem Chandra, a co-villager. Then he went to the place of occurrence, he found the villagers came out and gathered in the house of the informant. One of the dacoit intercepted him in front of the house of the informant and did not allow him to go forward. Then he went to the place of occurrence, he found the villagers came out and gathered in the house of the informant. One of the dacoit intercepted him in front of the house of the informant and did not allow him to go forward. He came to the house of the informant, he found him in tied up condition. He further stated that PW 4. Hareswar Das show the accused Raben Das going towards the house of the informant and could recognize him. Then accused Raben Das was called out and who admitted about the commission of dacoity further stated that Paramesh Sarma and Dwipne Sarma were along with him. Paramesh Sarma and Dwipne Sarma were also called for and they also admitted their guilt. Next day of occurrence, it was reported to the Patacharkuchi police station and police came and the accused persons were handed over to the police. In cross, he stated that house of the informant is lesser than 1/2 k.m. away for his house. He was informed while the incident was going on. He further stated that he saw 3 dacoits in front of the house of the informant and he could not recognize them. He also stated that Hareswar, PW 4 told him that Raben Das was seen in the road in front of the house of the informant. Raben Das caught he was assaulted by the villagers after his confession. Paramesh Sarma and Dwipne Sarma were also threatened and assaulted. He denied the suggestion that Raben Das did not confess the guilt. 16. PW 4, Hareswar Das, in his evidence stated inter alia that on the night of occurrence, he came out after hearing the hue and cry from the house of the informant and while he was going that side, one of the accused was running and on being asked he told that he was Raben Das coming from the house of the informant. He found 25/30 villagers gather before the house of the informant. On being informed about the running of Raben Das, he was called for who later on disclosed the names of Paramesh Sarma and Dwipne Sarma who were also called upon. The villagers interrogated Raben Das, Paramesh Sarma and Dwipne Sarma and, next day the 3 accused persons were taken into the custody. On being informed about the running of Raben Das, he was called for who later on disclosed the names of Paramesh Sarma and Dwipne Sarma who were also called upon. The villagers interrogated Raben Das, Paramesh Sarma and Dwipne Sarma and, next day the 3 accused persons were taken into the custody. In cross, he stated that when the commission of dacoits were going on he was not present but he came after hearing hue and cry. He further stated that he recognized the dacoits. He denied the suggestion of false evidence by naming Baben Das. 17. From the evidence of PW 5, Smt. Daibabala Sarma, the mother of the informant, nothing material could be obtained to help the prosecution story. 18. PW 6, Dinesh Sarma, the brother of the informant was also not an eye-witness of the occurrence, be came after hearing the hue and cry of the informant. He stated that door of his house was closed from outside. He could not come out. On raising noise, the villagers came and open the door. Later on the villagers caught hold up all the accused persons. On being interrogated by the villagers, they initially denied the guilt but later on had confessed their guilt. He also stated that the accused persons are the students of the informant. In cross, he stated that after 2 and 2-1/2 hours later and wherefrom the accused persons were brought he did not know. He also stated that the villagers roughly handled them. He stated that he had not seen the accused persons before the villagers brought them. 19. PW 7, the doctor, who found 3 injuries like abrasion with haematoma, swelling on the wrist joint and swelling on the person of Suresh Sarma caused by blunt weapon; which are of simply injury in nature received by the victims. He also examined the wife of the informant, Smt. Sarala Bala Devi but he found no injury or mark over her body and no sign of rape was found. 20. PW 8, the Investigating Officer, who conducted the investigation, stated that on 12.1.1993 he was informed that a dacoity took place in the house of the informant and lodged the information and GD Entry No. 149 and took over the charge of investigation and proceeded to the place of occurrence. At the place of occurrence, the informant lodged a written FIR and he examined witnesses. At the place of occurrence, the informant lodged a written FIR and he examined witnesses. He caused the victims for medical examination and seized articles. He also one toy pistol from the house of the accused Baben Das during search operation and also a piece of worn cloth from the house of the informant. Two other accused persons were also arrested namely Paramesh Sarma and Dwipne Sarma were also arrested on 16.1.1993 and they having expressed their willingness to confess their guilt they were sent for recording their statements. After completion of the investigation, he submitted charge-sheet against the accused persons. PW 8 was cross-examined but nothing has come out to support the case of the defence. 21. From the evidence of the prosecution witnesses as narrated above, it is found that there was no eye-witness of the occurrence. On examining the sequence of events of occurrence, as deposed by PW 3, the Gaonburah, the star prosecution witness that he was intimated about the commission of offence by one Hem Chandra. But Hem Chandra was not examined. Three dacoits intercepted him in front of the house of the informant and going there he found the informant in tied up condition. But PW 2 stated that she untied her husband immediately. From his evidence, it also comes out that the accused Raben Das was called out from his house on referring his name by PW 4. Although the accused Raben Das is stated to have confessed the guilt but the exact word or exact language expressed during confession of the guilt has not been stated. On the basis of his statement the other 2 accused persons were also called upon and they also stated to have confessed their guilt. From the evidence of PW 4, Hareswar Das, on the other hand, it is found that he went to the place of occurrence after hearing hue and cry, at that time he could saw the accused Raben Das was running. When he informed this fact before 25/30 villagers, the villagers have brought the accused Raben Das from his house. Thus, there is material discrepancies about the sight of accused Raben Das going running from the place of occurrence. When he informed this fact before 25/30 villagers, the villagers have brought the accused Raben Das from his house. Thus, there is material discrepancies about the sight of accused Raben Das going running from the place of occurrence. It is expected for an accused that after commission of an offence he will again go to the house of the informant again according to the natural human instinct, he must tried to fly away from the place of occurrence as early as possible, after commission of the offence. 22. PW 1, PW 2 though were subjected to the assault by dacoits could not recognize them although they were co- villagers. Not only that all the 3 accused persons were the students of the informant. This is yet another unexplained circumstance as to non-recognisation of the 3 accused persons by the informant who is not only a co-villager but also accused persons were his students. 23. As against the aforesaid infirm evidence of prosecution witnesses, if we examine the extra judicial confession which was the only circumstances relied on by the prosecution for conviction of the appellants, we find that there is no extra judicial confession on the part of the accused appellant Matleb who has been caught only on the basis of extra judicial confession made by the other 2 co-accused persons. 24. The extra-judicial confession, if voluntary can be relied upon by the Court along with other evidence in convicting an accused. The value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made. It is true that the Court requires the witness to give the actual words used by the accused as nearly as possible but it is not an invariable rule that the Court should not accept the evidence, if not the actual words but the substance were given (reference Baldev Raj v. State of Haryana reported in 1991 Supp (1) SCC 14). 25. In the instant case, even the substance of the confession has also not been stated by any of the witnesses. The said extra judicial confession stated to have been made by accused persons is a vague one. 25. In the instant case, even the substance of the confession has also not been stated by any of the witnesses. The said extra judicial confession stated to have been made by accused persons is a vague one. Evidence is on record that after calling upon the accused persons from their house, they were roughly handled by 25/30 villagers and they initially refused to confess but later on they confessed the guilt and in such circumstance, they made the alleged extra judicial confessional statement. 26. In the case of State of Rajasthan v. Raja Ram reported in (2003) 8 SCC 180 , the Apex Court dealing with the reliability and acceptability of extra judicial confession of an accused at para 18-19 held as follows : "18. Confessions may be divided into two classes i.e. judicial and extra judicial. Judicial confessions are those which are made before a Magistrate or a Court in the course of judicial proceedings. Extra judicial confession are those which are made by the party elsewhere than before a Magistrate or Court. Extra-judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extra-judicial confessions, two questions arise : (i) were they made voluntarily? and (ii) are they true? As the section enacts, a confession made by an accused persons is irrelevant in criminal proceedings, if the making of the confession appears to the Court to have been caused by any inducement, thereat or promise, (1) having reference to the charge against the accused persons, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person; or (b) it does not proceed from a person in authority; or (c) it is not sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession cannot was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24 . The law is clear that a confession cannot be used against an accused person unless the Court is avoid any evil, it is enough to exclude the confession. The words "appear to him" in the last part of the section refer to the mentality of the accused. 19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any Court to start with a resumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. It is not open to any Court to start with a resumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extrajudicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. 27. Applying the aforesaid ratio, if we scrutinize circumstances extra judicial confession relied by the prosecution in the case in hand, we find that the same could not have been relied to sustain the conviction and sentence imposed upon the accused appellants. The said circumstances of the alleged extra judicial confession being full of infirmities, as disclosed, it cannot be said to true and voluntary attracting the term "confession". No other circumstance has been put forward by the prosecution to connect the appellants into the offence. Consequently, the impugned conviction and sentence of the appellants cannot be sustained. 28. Accordingly, the appeal stand allowed. It is directed that the appellants herein be set at liberty forthwith. Since the accused appellants are on bail, they are discharged from the bail bond. 29. Send down the LCR. Appeal allowed