JUDGMENT Arup Kumar Goswami, J. 1. This criminal appeal is directed against the judgment dated 4.4.2003 passed by the learned Sessions Judge, Darrang at Mongaldoi in Sessions Case No. 103 (DM)/2000 convicting the Appellant under Section 302 IPC and sentencing him to suffer imprisonment for life and to pay fine of Rs.5000/-, in default, further rigorous imprisonment for one year. 2. One Mokbul Hussain had lodged an ejahar before the Officer in-Charge, Silbori Police outpost on 5.11.99 stating that some assailants had entered into the house of his elder brother's son Md. Azizul Hoque by opening the door at around 11.30 p.m. on 4.11.99 and killed him by cutting his throat with sharp knife while asleep. Accordingly, Silbori police outpost G.D. Entry No. 56 dated 5.11.99 was made at 6.30 a.m. and the same was forwarded to the Officer-In-charge, Dalgoan Police Station whereupon Dolgoan P.S. Case No. 231/99 under Section 302 I.P.C was registered. 3. The Investigating Officer investigated the offence and on completion of investigation and finding materials against the accused/Appellant, submitted charge sheet under Section 448/302 IPC. 4. The case was committed by the learned Judicial Magistrate, Ist. Class, Udalguri to the Court of Sessions Judge, Darrang whereupon Sessions Case No. 103 (DM)/2000 was registered under Section 302 IPC. Charge under Section 302 IPC was framed against the accused person and the same was explained to him. The accused pleaded not guilty and claimed to be tried. During the course of trial, the prosecution examined 7 witnesses whereas defence adduced no evidence. 5. Informant Mokbul Hussain was examined as P.W-1, wife of the deceased Azizul Hoque, namely, Musstt. Halima Khatun was examined as P.W-2, Musstt. Jubaida Khatun, mother of the deceased was examined as P.W-3, Md. Jahurul Hoque, the brother of the deceased was examined as P.W-4, P.W-5 Bhabani Pasad Khound is the Doctor who conducted the post mortem examination, P.W-6 Hatem Ali is a neighbor and co-villager of the deceased and P.W-7 is the Sub-Inspector of Police who had conducted and investigated the case and had laid the charge sheet. 6. Out of the aforesaid witnesses, P.W-1, P.W-3 and P.W-6 are not eye witnesses to the occurrence. P.W-2 is an eye witness to the occurrence and P.W-4 was declared a hostile witness by the prosecution. P.W-6 is a witness to a seizure list Exhibit-4 by which a curved dao about 1 1/2 ft. 6. Out of the aforesaid witnesses, P.W-1, P.W-3 and P.W-6 are not eye witnesses to the occurrence. P.W-2 is an eye witness to the occurrence and P.W-4 was declared a hostile witness by the prosecution. P.W-6 is a witness to a seizure list Exhibit-4 by which a curved dao about 1 1/2 ft. long with its handle was seized after the same was recovered on being led by the accused. P.W-7 also claims to have recorded the statement of the accused by which the accused claims to have confessed his murder and had also stated that he had kept the dao in a pond near his house. 7. The learned trial Court convicted the accused/Appellant basing on the testimony of P.W-2, the recovery of the dao as per the statement of the accused leading to its discovery and also holding that confession in the facts and circumstances of the case was admissible in evidence. 8. P.W-1 came to the place of occurrence almost immediately after the occurrence after P.W-4 had informed him about the incident. According to him, he did not name anybody in the ejahar as he did not suspect anybody. 9. P.W-2 had deposed that when she was sleeping with her husband and her baby son, she woke up when the baby cried out. She found that the accused had entered her house and had killed her husband by cutting his neck with dao. She deposed that she could recognize the accused when he flashed his torch light. In her cross-examination, she had stated that she had a quarrel with the wife of the accused at about 4 p.m. on the day of occurrence. It was also her assertion that she had told P.W-1 and others that the accused had killed her husband. 10. P.W-3 in her deposition stated that P.W-2 had told her as well as her eldest son P.W. 4 that Latif had killed her husband. It has come out in her evidence in cross examination that when P.W-1 had come, P.W-2 had not told him that the accused had killed the deceased. However, she further stated that she had informed P.W-1 about what P.W-2 had told her and that P.W-1 had gone to the police station after he was informed by her about the complicity of the accused in the murder. 11. However, she further stated that she had informed P.W-1 about what P.W-2 had told her and that P.W-1 had gone to the police station after he was informed by her about the complicity of the accused in the murder. 11. P.W-4, as was noted earlier, had been declared hostile and nothing rests on the testimony of P.W-4. 12. P.W-5 had found the following injuries on the deceased: A cut throat injury rectangular in shape measuring 10 cm x 5 cm up to laryngeal depth injuring trachea and larynx completely and major vesselsm nerves and muscles. According to him, the cause of death was due to haemorrhage and shock as a result of injuries sustained. 13. P.W-6 in his statement had stated that though the accused gave a dao to police, he had not seen from where the accused had produced the dao. According to him, he saw a dao in the hand of police and the dao was seized in the village road. In cross examination, he had stated that he was not informed about the name of the accused though he was present at the place of occurrence till morning. 14. P.W-7 had stated that the accused confessed before him that he had killed the deceased with a dao and thereafter, produced the dao on 7.11.99 from under water of a tank near his house. It is his assertion that he had recorded the statement of the accused which was proved as Exhibit -5. 15. In his statement under Section 313 Cr.P.C, the accused had stated that he had not produced any dao and further he stated that he had not made any statement or confession before the P.W-7. He had also stated that there was a quarrel in the evening between his wife and P.W-2 and he had rebuked P.W-2. He had further stated that he had informed the deceased about the said incident and on that grudge, the case has been filed against him. 16. We have heard Shri M.H. Choudhury, learned Counsel for the Appellant and Shri Z. Kamar, the learned Public Prosecutor, Assam. 17. Having broadly analysed the materials on record, let us now examine whether Exhibit -5 is admissible in evidence and as to whether the same as well as the Exhibit-4 can be acted upon for the purpose of implicating the Appellant in the crime in question. 18. 17. Having broadly analysed the materials on record, let us now examine whether Exhibit -5 is admissible in evidence and as to whether the same as well as the Exhibit-4 can be acted upon for the purpose of implicating the Appellant in the crime in question. 18. It would appear that the accused was arrested on 7.11.99 from his residence at around 7.10 A.M. and thereafter he was taken to the police station at around 8.15 A.M. The confessional statement of the accused was recorded around 10.30 A.M. Exhibit-4 seizure list does not indicate wherefrom the dao was recovered. Though there were 4 witnesses to the said seizure list, only one out of the said 4 witnesses, namely, P.W-6, was examined, who in categorical terms had indicated that he had not seen wherefrom the accused had produced the dao. It is also in his evidence that the dao was seized in the village road and he had signed the seizure list there. The broad feature of the evidence of P.W-6 is that he had not seen the recovery being made at the instance of the accused. It would appear that the signature of the accused was taken on the seizure list, Exhibit 4. Significant is to note that Exhibit-5, the confessional statement, is not signed by the accused. 19. The policy underlying Sections 25 and 26 of the Indian Evidence Act, 1872, for short, the Act is to make it a substantive rule of law that confession whenever and wherever made to the police or while in the custody of the police to any person whosoever, unless made in the immediate presence of a Magistrate shall be presumed to have been obtained under the circumstances mentioned in Section 24 and therefore, inadmissible, except so far as provided by Section 27 of the Act. 20. In the celebrated decision of Pulukuri Kottaya v. Emperor, reported in AIR 1947 PC 57, the scope and ambit of Section 27 of the Evidence Act had been stated and the relevant portion of the same is extracted herein below: It is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant. 21. At one time it was held that the expression "fact discovered" in Section 27 is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact. However, it is fairly settled now that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this. 22. The Apex Court in Anter Singh v. State of Rajasthan reported in (2004) 10 SCC 657 , summed up various requirements of Section 27 as follows: (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (4) The person giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible. 23. In Aloke Nath Dutta v. State of West Bengal, reported in (2007) 12 SCC 230 the Apex Court at paragraph 53, has laid down that law does not envisage taking on record the entire confession by marking it an exhibit incorporating both the admissible and inadmissible part thereof together. It was reiterated that only that part of confession is admissible, which would be leading to the recovery of dead body and/or recovery of articles. The Apex Court pointed out in the context of the facts of that case that the confession proceeded to state even the mode and manner of committing alleged murder and that it should not have been so done as it may influence the mind of the Court. 24. The Apex Court in Swamy Shraddananda alias Murali Monohar Mishra v. State of Karnataka, reported in (2007) 12 SCC 288 , held in paragraph 42 that the Court while analyzing the evidence and appreciating the same cannot take note of confession made before the police. 25. It would be appropriate to quote Exhibit 5 in its entirety for better appreciation of the confessional statement: My name and address are same as stated above. On being asked I say that I killed Aizul Hoque is true. As he has illicit relation with my wife. I killed Aizul Hoque by cutting throat with a Dao while he was sleeping in his room entering into his room by opening door. Thereafter I have kept the said Dao in a pond nearby my house. There was nobody with me in this incident and I can find out the said Dao. Note: Abdul Latif has confessed this murder in front of me. Along with this he said that he can show the said Dao by which he killed. Therefore I have gone and tried to rescue the said Dao with him. Now I have stated to No. 1Kacharibhetitop village along with my colleagues and the accused. 26. Note: Abdul Latif has confessed this murder in front of me. Along with this he said that he can show the said Dao by which he killed. Therefore I have gone and tried to rescue the said Dao with him. Now I have stated to No. 1Kacharibhetitop village along with my colleagues and the accused. 26. The entire confessional statement of the accused is exhibited as Exhibit-5. The portion depicting the manner and method of killing Azizul Hoque is clearly not admissible in evidence. What is admissible is his statement relating to keeping of the dao in the pond near his house. 27. Exhibit-4 seizure list does not indicate that it had been recovered from the pond near the house of the accused on being led by him. Only one seizure witness, examined as P.W-6, belies the prosecution case that the dao was recovered on being led by the accused, inasmuch as, his categorical statement was that he had seen the dao being seized in the village road and also he had not witnessed wherefrom the dao was produced. Though the P.W-7 had mentioned in his evidence that the accused had produced the dao from under water of a tank, for the reason aforesaid, we are not inclined to rely upon such testimony as the same does not inspire confidence in view of the antecedent facts and circumstances. 28. In view of the aforesaid, we are inclined to discard the prosecution case of discovery of dao on being led by the accused and on the basis of information given by him. 29. That leads us to the evidence of P.W-2 who claims to have been an eye witness to the occurrence. It is in her evidence that she had informed many people including P.W-1 that the accused had killed her husband. P.W-3, mother of the deceased, supported P.W-2 by saying that P.W-2 told her in the morning that she had recognized the accused and the said information was also conveyed by her to P.W-1, who then had gone to the police station to lodge ejahar. Significantly, P.W-1 did not allege complicity of the accused in the ejahar and on the contrary had said that some assailants had entered the house and had killed him by cutting his throat while asleep. Significantly, P.W-1 did not allege complicity of the accused in the ejahar and on the contrary had said that some assailants had entered the house and had killed him by cutting his throat while asleep. It is the categorical assertion of the P.W-2 that she had recognized the accused when he had flashed his torch light. If we believe P.W-2 and P.W- 3, non mentioning of the assailant's name in the ejahar by the P.W-1, may not have much significance. We may also take note of the fact that the own brother of the deceased had also been declared hostile. Therefore, in the facts and circumstances of the case, omission to state the name of the accused in the ejahar would not impeach the prosecution case. We find that the testimony of PW-2 and P.W-3 have remained unshaken during the cross examination. Minor contradiction between the evidence of P.W-2 with that of P.W-3 and P.W-1, in that she had also told P.W-1 that the accused was the assailant, is, considering the state in which the P.W-2 had found herself in the night, her husband having been killed with blood of her husband splashed all over and a baby by her side, cannot be given undue importance. It is also not brought on record by the defence as to why the P.W-2 would falsely implicate the accused. The fact that there was some sort of quarrel between P.W-2 and the wife of the accused on the day of occurrence, as deposed by P.W-2, had also been acknowledged by the accused in his statement under Section 313 Code of Criminal Procedure We find the evidence of P.W-2 and P.W-3 to be trustworthy. 30. We are satisfied that the prosecution has been able to prove the guilt of the accused beyond reasonable doubt and, therefore, we maintain the conviction and sentence as ordered by the learned trial Court. 31. In the result, the appeal is dismissed. 32. Send back the L.C.Rs. Appeal dismissed.