JUDGMENT C.R. Sarma, J. 1. The above-mentioned appeals are directed against the judgment and order, dated 23.12.2007, passed by the learned Additional District & Sessions Judge (FTC), Sonitpur, Tezpur. By the impugned judgment and order, the learned Sessions Judge, convicted the appellants aforesaid, under Section 302 read with Section 34 of Indian Penal Code (hereinafter called 'IPC') and sentenced each of them to suffer imprisonment for life and pay fine of Rs. 1,000/- each, in default, suffer rigorous imprisonment for another period of 2 (two) months. 2. Aggrieved by the said conviction and sentence, the appellants have preferred the said appeals separately. As both the appeals have arisen out of the same judgment and order, passed on same facts and evidence and as agreed to by the two learned Counsel, appearing for both the parties, we have heard both the parties together and propose to dispose of the same by tins common judgment and order. 3. The prosecution case, in brief, as may be required for disposal of these appeals, is that on 10.05.2004, a dead body of an unidentified male person was found lying by the side of the National Highway No. 52 at a place in village "Pasgaon". The said dead body, which was found, covered with blanket, bore marks of injury on head and face. Upon recovery of the said dead body, Shri Keshab Ch. Baruah, Assistant Sub-Inspector of Police, Salanibari Police Station, made GD entry being GD No. 209 and visited the place of occurrence. The said ASI, as informant, lodged FIR (Ext.-2) with the Officer-in-charge, Tezpur Police Station. Accordingly, a case was registered under Section 302 IPC. 4. During the course of investigation, Police found that the deceased and the appellant, namely, Ratan Singh, were the drivers of the truck, bearing registration No. NL01A/1733 and the appellant, namely, Raju Sarma, was the handyman of the said driver. They were coming in the said truck from Firozabad, carrying cookery items. The appellants, failing to persuade the deceased to agree to their proposal to sell the crockery items, they killed him inside the vehicle, while the deceased, who was the driver No. 1 of the said vehicle, was sleeping inside the vehicle and thereafter, threw out his dead body from the vehicle. Subsequently, due to puncture of the tyres of the said vehicle, the appellants fled, leaving the vehicle on the National Highway. 5. Subsequently, due to puncture of the tyres of the said vehicle, the appellants fled, leaving the vehicle on the National Highway. 5. During the course of investigation, Police took the vehicle in to custody, arrested the appellants, who lead the Police to the place, where they had thrown the dead body, made video recording of the statements, made by the appellants, in presence of Executive Magistrate and others, forwarded the dead body for postmortem examination and recorded the statement of the witnesses. The vehicle was released in favour of its owner. At the close of the investigation, Police submitted charge-sheet, under Section 302 /34 IPC against the appellants. 6. In order to prove their case, prosecution examined as many as 13 (thirteen) witnesses including the Medical Officer (PW-9), who performed the autopsy of the dead body and the Executive Magistrate (P W-10), in whose presence video recording of the confession, made by the appellants and the act of leading to the place of occurrence was made. 7. The Investigating Officers have been examined as PW-11, PW-12 and PW-13. At the close of the evidence for the prosecution, the accused persons were examined under Section 313 Cr.P.C. They denied the allegations, brought against them and declined to adduce defence evidence. 8. Considering the evidence, on record, the learned Sessions Judge, relying on the extra judicial confession, made by the appellants, the video recording of the statements made by the appellants, leading to the place of occurrence and the circumstantial evidence held the appellants guilty of committing murder of the deceased and accordingly, convicted and sentenced the appellants, as indicated above. 9. Mr. T.J. Mahanta, learned Amicus Curiae, appearing for the appellant Sri. Raju Sarma and Mr. D. Talukdar, learned Amicus Curiae, appearing for the appellant Sri. Ratan Singh, referring to the evidence, on record, has submitted that, except the extra judicial confession, alleged to be made by the appellants before the Police as well as others including the Executive Magistrate, during their custody in the Police, there is no substantive and reliable evidence regarding involvement of the appellants. The learned Amicus Curiae, appearing for the appellants, have strenuously argued that as the accused persons were in the custody of the Police, the extra judicial confession, alleged to be made by them, cannot be treated as evidence inasmuch as the same is hit by Sections 25 and 26 of the Evidence Act. The learned Amicus Curiae, appearing for the appellants, have strenuously argued that as the accused persons were in the custody of the Police, the extra judicial confession, alleged to be made by them, cannot be treated as evidence inasmuch as the same is hit by Sections 25 and 26 of the Evidence Act. It is submitted that though the statement was made before in presence of an Executive Magistrate also, fact remains that both the accused persons were already arrested and they were in the custody of the Police during the period, when they made the alleged confession. It is also submitted that the dead body was already found, lying near the National Highway and as such, there remained to be recovered on being led by the appellants. 10. In view of the above, on behalf of the appellants, it has submitted that the learned trial Judge committed error, in law, by accepting the extrajudicial confession, alleged to be made by the accused persons, while in custody of Police. Accordingly, it is submitted that the impugned conviction and sentence cannot stand the scrutiny of law and as such, the appellants are entitled to be acquitted and set at liberty forthwith. 11. Refuting the said argument, advanced by the learned Amicus Curiae, appearing for both the appellants, Mr. Z. Kamar, learned Public Prosecutor, Assam, taking us through the evidence on record, has submitted that it has been established that the deceased and the appellants were moving in the said truck and that the dead body of the deceased, after causing his death in the truck, was thrown from the vehicle and that, both the appellants, who were perpetrators of the said crime, were arrested. It is also submitted that both the appellants, after their arrest, made extra judicial confession, before the public as well as the learned Executive Magistrate and as such, the confession being made before the learned Executive Magistrate, the learned Sessions Judge committed no error by relying of the said confession. 12. It is also submitted that both the appellants, after their arrest, made extra judicial confession, before the public as well as the learned Executive Magistrate and as such, the confession being made before the learned Executive Magistrate, the learned Sessions Judge committed no error by relying of the said confession. 12. It is also submitted by the learned Public Prosecutor that the circumstantial evidence, that the deceased and the appellants were proceeding in the same truck, that the deceased died due to assault caused to him, that the dead body was found lying by the side of the National Highway, that the truck, driven by the deceased and the appellants, was also found abandoned on the National Highway, that both the appellants were arrested from near the place of occurrence, that they had made extra judicial confession narrating the entire events of committing the alleged crime, form a complete chain leading to the conclusion that none other than the appellants had caused the death of the deceased. In view of the above, the learned Public Prosecutor, has submitted that the learned Sessions Judge has rightly convicted and sentenced the appellants and as such the impugned conviction and the sentence do not need interference. 13. Having heard the learned Counsel, appearing for both the parties and considering the materials, on record, we find that there is no direct evidence, except the extra judicial confession, alleged to be made by the appellants. 14. Mr. Rebat Ch. Barua, ASI of Police, deposing as PW-1 has stated that, on 10.05.2004, he received an information from the Police control room that a dead body was lying near the National Highway No. 52 at Sarupatgaon and accordingly and that after making a GD entry, he proceeded to the said place and found the dead body, which was covered with a blanket. He noticed injuries on the face, head and eyes etc. of the deceased. According to him, the injuries were caused by pointed weapon. He prepared the inquest report (Ext. 1) and forwarded the dead body for post mortem examination. He noticed injuries on the face, head and eyes etc. of the deceased. According to him, the injuries were caused by pointed weapon. He prepared the inquest report (Ext. 1) and forwarded the dead body for post mortem examination. On 11.05.2004, he came to know from the In-charge of the Police Outpost i.e. PW-13, that a vehicle, bearing registration No. NL-01 A/1733, in respect of which the deceased was a driver, was taken into custody along with the appellants by the Police of Hawazan Police Station and accordingly, he had taken the said vehicle and the appellants into custody and handed over them to the In-charge of the Police Station. 15. The Medical Officer, who performed the postmortem examination, deposed as PW No. 9. He found the following injuries on the dead body of the deceased: Right eye ball is reflected. Lacerated injury over the forehead and frontal scalp. 4" x 2" x 1" in size. Bone deep. Echymjosis over the anterior chest 2" x 4" in size. Puncture wound over the chin 1" x 1" x 1/2" in size. There was swelling and deformity of left thigh. On internal examination:- There was fracture of 4 & 8 ribs. Both lungs were ruptured. Frontal lobe brain is lacerated. There was fracture of left femur and all these injuries is described in ante mortem in nature. The Medical Officer opined that the death was caused due to shock and hemorrhage. He also opined that the injuries might have been caused due to collusion with hard substance. 16. From the evidence of the Medical Officer, it is found that no civil person was there to identify the dead body, except Police personnel. The PW-1, who initially took up the investigation, in his cross-examination, stated that the dead body was identified, on 11.05.2005, by Shri Satish Kumar, after postmortem examination. 17. Shri Nandeswar Das (PW-11), who was the in-charge, of the Hawazan Police Station, stated that, on 10.05.2004, Mr. Mohan Patel, driver of the truck No. HR-55E/8418, informed him that the truck No. NL-01A/1733, along with the goods therein, though required to be taken to Jorhat by its two drivers and one handyman, was found along with the goods at Kolabari centre and that, from the neighbouring people, they came to know that the drivers and the handyman had gone to Bandardowa for repairing the tires. According to the PW-11, he proceeded to the said place, where the vehicle was parked and arrested the appellants and that, both the appellants had confessed that they had killed the other driver, namely, Brahma Prakash, i.e. the deceased. PW-11 stated that he took the vehicle and the appellants in to custody. 18. Shri Paresh Ch. Deka, an Assistant Sub Inspector of Police, deposing as PW-12, stated that the appellants disclosed the story as to how they had killed the deceased. He also stated that Mr. Amitav Rajkhowa (PW-10), Extra Assistant Commissioner, Sonitpur, was also present with them at the time of narrating the story of crime by the appellants. He, further, stated that they described the manner in which they had killed the deceased and removed the dead body from the vehicle etc. It is also stated by him that the video recording of the statement, made by the appellants, was done. In his cross-examination, this witness stated that handcuff was used while taking the said appellants. 19. From the evidence of PW-12, it is clearly found that both the appellants were taken into custody by using handcuff and that they made extra judicial confession in presence of the Extra. Assistant Commissioner (PW-10) and others, while in Police custody. Hence, it appears that the said statement was made in presence and custody of Police. 20. Mr. Amitava Rajkhowa, Extra Assistant Commissioner, deposing as PW-10, stated that, on 14.05.2004, he was requested by the Police of Tezpur Police Station to be present at the time of video recording of the statement of the appellants and accordingly, he visited the Tezpur Police Station. He stated that Police had taken the appellants in a truck to the place of occurrence and that, he also accompanied them. According to this witness, both the appellants had narrated the entire story as to how they had killed the deceased and thrown his dead body from the truck. 21. In his cross-examination, this witness further stated that before taking appellants to the place of occurrence, they were kept in the police lock-up. From the evidence of PW-10, also it is clearly found that, at the time of making the extrajudicial confession, both the appellants were in the custody of the Police. Fact remains that they were already arrested and detained in Police custody. From the evidence of PW-10, also it is clearly found that, at the time of making the extrajudicial confession, both the appellants were in the custody of the Police. Fact remains that they were already arrested and detained in Police custody. Therefore, it is clearly found that the alleged extrajudicial confession, which has been used as the basis of conviction, was made by the appellants to the Police as well as the Extra Assistant Commissioner (PW-10) and others during their custody in Police. Section 25 of the Evidence Act, provides that no confession made to a Police Officer, shall be proved as against a person accused of any offence. Section 26 of the Evidence Act prescribes no confession, made by any person whilst he is in custody of a Police Officer unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. 22. In view of the provision, prescribed by Section 3 of the Cr. P.C., a reference to a Magistrate, unless the context otherwise requires, is to be construed as a reference to a Judicial Magistrate. Therefore, making of confessional statement, in presence of Extra Assistant Commissioner cannot be treated as a statement made in immediate presence of a Magistrate as required by Section 27 of the Evidence Act. Such extra judicial confession, even if made in presence of the Executive Magistrate, while in Police custody, is hit by Sections 25 and 26 of the Evidence Act and as such, the same cannot be used as legal evidence, against the appellants. 23. Except the alleged extra judicial confession aforesaid, there is no other evidence to show the involvement of the appellants. From the impugned judgment, it is found that the concerned vehicle was released in favour of its owner. The owner of the said vehicle has not been examined to substantiate that the deceased and appellants were moving in the same truck and that the deceased was in the company of the appellants till his death. 24. According to PW-11, one Mr. Mohan Patel, had informed him that the concerned vehicle was driven by two drivers and one handyman and that, the said truck was found lying without its drivers and the handyman. In our considered opinion, said Mohan Patel was a vital witness, but, for the reason best known to them, prosecution failed to examine the said witness. 25. Mohan Patel, had informed him that the concerned vehicle was driven by two drivers and one handyman and that, the said truck was found lying without its drivers and the handyman. In our considered opinion, said Mohan Patel was a vital witness, but, for the reason best known to them, prosecution failed to examine the said witness. 25. No witness has been examined to substantiate the said claim of the prosecution. Hence, it could not be established that the appellants and the deceased were in the same truck, till the death of the deceased. Therefore, the circumstances, surfacing from the evidence of the prosecution witnesses, do not indicate that the deceased was in the company of the appellants till the time of his death. 26. In view of the above, the circumstantial evidence, as revealed by the prosecution witnesses aforesaid, does not lead to the irresistible conclusion, in consistent with the innocence of the appellants, that, none other than, the appellants had caused the death of the deceased. 27. In view of the above, we are inclined to hold that the prosecution failed to establish the charge, brought against the appellants, beyond all reasonable doubt. Therefore, we do not find it safe to uphold and affirm the conviction and the sentence, awarded by the learned Sessions Judge. Accordingly, we find sufficient merit in this appeal. The appeal is allowed. The impugned conviction and the sentence are set aside. The appellants are acquitted and they be set at liberty forthwith, if not required any other case. 28. The death of the deceased was certainly a great loss to the dependent members of his family, if any. Therefore, the dependents are entitled to get adequate compensation under Section 357-A Cr. P.C. 29. For the sake of brevity, without repeating the discussions, made in the Criminal Appeal No. 93(J)/2005 (disposed of on 22.12.2011), with regard to the victim compensation, as provided by Section 357A Cr. P.C., we make the following directions: (1) As an interim relief, and without prejudice to the right of the dependants of the victim to claim higher amount, an amount of Rs. 50,000/- be deposited by the State Government with the District Legal Services Authority of Sonitpur District within a period of two months from this date. P.C., we make the following directions: (1) As an interim relief, and without prejudice to the right of the dependants of the victim to claim higher amount, an amount of Rs. 50,000/- be deposited by the State Government with the District Legal Services Authority of Sonitpur District within a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependant(s), who suffered loss and injury as a result of death of the deceased and also if such dependent(s) or legal representative(s) need any rehabilitation. (2) Upon such enquiry, if it is found that the dependent(s), if any, need rehabilitation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme to be prepared by the State Government. It is made clear that if the District Legal Services Authority, after due enquiry, arrives at the findings that there is no dependents) or that the dependent(s) of the deceased/victim does not require any rehabilitation, then the District Legal Services Authority, shall refund the said amount of Rs. 50,000/-, without delay, in favour of the State Government. 30. We record our appreciation for the services, rendered by Sri. T.J. Mahanta and Sri. D. Talukdar, as Amicus Curiae and direct that an amount of Rs. 5,000/- each be paid to them as their remuneration, by the State Legal Services Authority The LCR be returned. Appeal allowed