JUDGMENT U.B. Saha, J. 1. The instant appeal is directed against the judgment dated 18.03.2008 passed by the learned Addl. Sessions Judge (FTC), Lakhimpur, North Lakhimpur in Sessions Case No. 58(NL) of 2005, whereby and whereunder the learned Addl. Sessions Judge after considering the evidence on record convicted the appellants herein under Section 302/201 /34, IPC and sentenced them to suffer life imprisonment and to pay a fine of Rs. 2000/- each, i.d. to suffer RI for another six months for commission of offence under Section 302, IPC. Both the appellants were also sentenced to suffer RI for 3 years and to pay a fine of Rs. 1000/- each, i.d. to suffer another three months RI for commission of offence under Section 201, IPC. Both sentences passed for commission of offences under the aforesaid sections would run concurrently. Heard Mr. J.C. Barman, learned amicus curiae as well as Mr. K.A. Majumdar, learned Addl. P.P., Assam. 2. Prosecution case needed to be discussed for disposal of the instant appeal is as follows: That, on 15th March, 2003, PW 2, Sri Dilip Kakoti heard rumour that a dead body was found in the bank of river Singara and then he went there along with the Gao Bura (PW 7) and other people. After reaching there they found that a girl was killed and buried by some miscreants in the sandy banks of Singara River at the end of Lakhimigaon. Seeing the dead body he requested the local people to keep watch over the burial site and went to the Nowboichia Out Post and lodged the FIR (Exhibit 4) stating the aforesaid facts. On receipt of FIR, the aforesaid Out Post made a GD Entry being No. 232 dated 15-03.2003 and forwarded the same to the O/C North Lakhimpur for registering a case. Accordingly, on receipt of the said GD Entry along with FIR, a police case was registered being North Lakhimpur P.S. Case No. 232/2003 under Section 302/201/34, IPC. Thereafter, the police started investigation. The dead body was dug out from the place of burial and consequent thereto an inquest report was prepared in respect of the said dead body and it was sent to hospital for post mortem. 3. On the basis of the First Information lodged by PW 2, police started investigation and on completion, filed charge sheet under Section 302/201/34, IPC against the accused appellants herein. 4. 3. On the basis of the First Information lodged by PW 2, police started investigation and on completion, filed charge sheet under Section 302/201/34, IPC against the accused appellants herein. 4. The accused appellants were ultimately arrested and produced before the Court. On production, they were sent to judicial custody. Thereafter, the learned Judicial Magistrate, 2nd class, North Lakhimpur committed the case for trial before the learned Sessions Judge, Lakhimpur, North Lakhimpur, the offence being exclusively triable by the Court of Sessions. 5. On receipt of the case, the learned Sessions Judge transferred the same to the learned Addl. Sessions Judge, (FTC), Lakhimpur. North Lakhimpur for disposal after proper trial, who after hearing the Learned Counsel for the parties as well as the accused appellants, framed charges against them under Section 302/201/34, IPC, to which the accused appellants pleaded not guilty. 6. To bring home the guilt of the accused appellants, the prosecution examined as many as 13 witnesses including he official witnesses. 7. On completion of recording of evidences of the prosecution witnesses, the accused appellants were examined under Section 313, Cr PC and they denied the allegations and examined three witnesses in their defence. Out of the three witnesses, two were the accused appellants themselves. 8. Considering the materials on record, learned Addl. Sessions Judge recorded the order of conviction and sentenced them, as stated supra. Being aggrieved and dissatisfied with the judgment and order of conviction and sentence, the accused-appellants have approached this Court with the instant appeal. 9. Before the learned trial Court, the prosecution case was that accused appellant Debananda Bera, a Constable of Assam Rifles while was posted at Manipur developed an affair with a Manipuri girl and brought the victim girl along with him and kept her at different places at Lakhimpur. The accused appellant Gopal Bora being the friend of accused Debananda Bora was with him while the victim deceased was at Lakhimpur and on 14.03.2003 the said victim deceased girl was kept in the house of PW A/3, Smt. Nizara Saikia for the day and in the evening both the accused appellants brought the victim from the house of PW 3 and committed murder of the said victim deceased girl. The dead body was buried on the bank of river Singara near the village Karigaon. 10. The dead body was buried on the bank of river Singara near the village Karigaon. 10. The accused appellants through the defence witnesses tried to establish that the accused appellant Debananda had no relation with any Manipuri girl and he also did not bring her to Lakhimpur and did not keep her at different places as alleged by the prosecution. Further, he case of the defence before the trial Court was that the accused appellant Debananda Bora had relation with one girl of village Laluk but the parents of Debananda Bora did not agree to marry that girl and, therefore, he kept that girl in different places and on 14.03.2003, he kept the girl in the house of PW 3 and thereby in the evening she was sent to her parents house. After solemnization of the marriage of the elder brother of accused Debananda Bora, his parents also agreed and, therefore, their marriage was solemnized later on, with the girl with whom he had a relation. 11. On examination of the evidence, learned Trial Court found that the entire prosecution case is based on circumstantial evidence and the extra judicial confession of the accused person before PW 2, Sri Dilip Kakoti PW 3, Smt. Nizara Saikia and confessional statement (exhibit 14-15) recorded by PW 13, Sri Dharmakanta Mili, the Circle Officer in presence of Sri Prafulla Saikia, Lath Mondal, Nowboicha Sri Dalip Kakoty and Kamal Borah, Lath Goanburah. 12. Mr. Barman, learned amicus curiae, while assailing the impugned judgment would contend that the extra-judicial confession itself on the face of it is a very weak piece of evidence and more so, when the said alleged confession was made in presence of the police after his arrest, cannot be proved against the accused persons for their conviction. It would be evident from the evidence of PW 1 wherein it is stated that while he was accompanying the police on the way to Police Station, accused Gopal Borah on query of the police stated that he had killed the girl. Thus, the said confessional statement cannot be the basis for conviction as the same is against the principle laid down in Section 24 of the Indian Evidence Act. Thus, the said confessional statement cannot be the basis for conviction as the same is against the principle laid down in Section 24 of the Indian Evidence Act. He also submits that admittedly none of the prosecution witnesses could identify the victim deceased girl and not only that the weapon that was allegedly used for cutting the throat of the victim deceased had not been sent for serological test to proof that the same was used in the commission of the alleged murder. He also contended that mere recovery of a dead body by the prosecution witnesses with the help of the police does not ipso facto connect the present appellants with the offence. He also contended that the prosecution also failed to prove the motive on the part of the accused appellants for committing the alleged offence of murder. 13. Mr. Majumdar, learned Addl. PP. while supporting the impugned judgment whereby the order of conviction and sentence was passed by the learned Addl. Sessions Judge and resisting the submission of Mr. Barman would contend that extra judicial confession always need not require to be corroborated by any other independent witnesses subject to the same is trustworthy and reliable. 14. He further contended that it is always not possible to prove the motive as the same is relating to the mental action of a person at a particular moment. He further submits that from the evidence of PW 3, Smt. Nizara Saikia, it is established that the victim deceased girl was last seen with the accused appellants. 15. For proper appreciation of the argument advanced by the Learned Counsel for the parties and to examine the correctness of the impugned judgment and order, it would be proper for us to discuss the evidence of the prosecution witnesses upon which the reliance was placed by the learned trial Court. In the present case, there is no eye witness of the murder of the alleged victim girl. The entire prosecution us based on circumstantial evidence and alleged last seen together. 16. In the present case, there is no eye witness of the murder of the alleged victim girl. The entire prosecution us based on circumstantial evidence and alleged last seen together. 16. PW 1, Sri Kamala Bora in his evidence stated that while he was attending a 'burha biya' (marriage performed at an old age) in their village in the house of Manimai Chutia, accused Gopal Bora was also there and as asked by the police, accused Gopal confessed that he killed the girl and when he was asked how he killed the victim, he told that he first raped the girl and killed her by tying a chuni to her neck. He also stated that from the police station they went to the house of PW 13, Dharmakata Mill, Circle Officer, who recorded the statement of accused appellants, Debananda Bora and Gopal Bora. He also stated that he is the witness of the seizure of Scooter (Exhibit-1) from the house of PW 1, Sri Kamala Bora. 17. PW 2, the informant, Sri Dilip Kakati, in his evidence stated that he heard from the villagers that a dead body was recovered and also went there to see the dead body and after arriving at the place where the dead body was recovered found the Gao Bura, Duti Ram Bora (PW 7) and some other persons and keeping them there went to the police station and lodged the FIR. He also stated that on being shown by him the police went to the house of Gopal Bora and on the road they met with one Babul Bora and asked him about the whereabouts of accused Gopal Bora and from him they came to know that accused Gopal Bora was in the house of one Manimai Chutia attending 'burha biya' and on reaching the house of Manimai Chutia they found accused Gopal Bora from where he was taken away by the police to the police station and thereafter to the residence of the PW 13, and in presence of the police, he confessed that accused appellant Debananda Bora brought a Manipuri girl and he committed the murder of the said girl and both to them buried the dead body. He also stated that ultimately he could know the name of the victim as Alina. He also stated that ultimately he could know the name of the victim as Alina. He further stated in his evidence that they went to the house of accused Gopal Bora and seized one Khukuri and Spade produced by Gopal which was used by him for cutting the throat of the victim and from the house of Gopal both the accused were brought to the place of occurrence and as shown by accused Gopal Bora, dead body was recovered after digging the sand. 18. PW 4, Rupa Bora and PW 5, Rina Bora are hear say and seizure witnesses. 19. PW 9, Dr. R.K. Phukan, who performed the post mortem, stated that there was cut throat wound which is gaped and extends from lower part of the ankle of the right side of the angle. At the center of the wound depth was up to cervical vertebrae and according to him the death was due to shock and as a result of the cut throat wound described in the post mortem report (Exhibit-11). 20. PW 8, Sri Kulen Gohain Borua, land lord of the accused Debananda Bora in his statement state? that original house of Debananda was at Nasbaicha who was living in his house with a woman of tribal community whom he had identified as his wife and on being summoned by the police Debananda vacated his house. He also stated that he made a statement before the learned Addl. Sessions Judge which was recorded under Section 164, Cr PC. 21. PW 13, Dharmakanta Mili the Circle Officer who recorded the confessional statement of the accused persons in his evidence, stated that he had recorded the confessions statement as per the direction of the District Magistrate, Lakhimpur and he has also prepared the Sketch map of different locations as laid down by the accused Debananda Bora and Gopal Bora. 22. The accused appellants examined themselves as DW 1 and DW2 and also examined the wife of Debananda Bora namely Smt. Maya Boa as DW3, who stated that he had love affairs with Debananda and they eloped in the year 2003 in the month of February to marry each other. 23. 22. The accused appellants examined themselves as DW 1 and DW2 and also examined the wife of Debananda Bora namely Smt. Maya Boa as DW3, who stated that he had love affairs with Debananda and they eloped in the year 2003 in the month of February to marry each other. 23. DW3, Maya Bora the wife of Debananda Bora in her evidence stated that she stayed in the house of PW 8, Sri Kulen Gohain Barua for 20 to 22 days and also stayed in the Asha Hotel at Lakhimpur for one night. 24. As we stated that there was no eye witness of the alleged incident of murder except to the recovery of the dead body of the deceased victim girl and the weapon alleged to have been used in the alleged incident of murder, the prosecution tried to establish its case against the accused/appellant mainly on the basis of extra judicial confession before the PW 2 and PW 3, while they were taken into custody by the police and the circumstantial evidence from which the only hypothesis that can be drawn is that it is only the accused (appellants who committed the alleged offence of murder of the victim deceased girl and except that no other hypothesis can be drawn. 25. Now we have to examine the evidence adduced by the prosecution to see whether the circumstances available establish the only hypothesis of guilt of the accused appellants and no other hypothesis is possible. There are series of decisions wherein the Apex Court held that no one should be convicted merely on the basis of suspicion, whatever strong it may be. It is not necessary to discuss all those decisions but we would be benefited if some of those are discussed, which are as follows In Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 , wherein the Apex Court observed inter alia,: It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In Padala Veera Reddy v. State of A.P., (1989) Supp. (2) SCC 706 the Apex Court again held that, when a case rests upon circumstantial evidence, the following tests must be satisfied : (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In Sharad Birdhichand Sardo v. State of Maharashtra, (1984) 4 SCC 116 , the Apex Court discussed regarding the duty of the prosecution and held that the onus was on the prosecution to prove that the chain is complete and falsity or un-tenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are : (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or 'should and not 'may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. In the case of State of U.P. v. Ashok Ktlmar Srivastava, (1992) 2 SCC 86 , the Apex Court further noted that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted (emphasis supplied). It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. 26. The aforesaid propositions as laid down by the Apex Court, have subsequently been considered in Bodhraj v. State of J&K, (2002) 8 SCC 45 , Bharat v. State of M.P., (2003) 3 SCC 106 , Deepok Chandrakant Patil v. State of Maharashtra, (2006) 10 SCC 151 and State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 . 27. In State of Haryana v. Jagbir Singh and another, (2003) 11 SCC 261 , their lordships while considering the extra-judicial confession allegedly made by the respondent accused therein in paragraph 20 noted as follows :-- 20. Great emphasis was laid by the Learned Counsel for the State on the evidence on PW 4, the Additional CJM that the accused had admitted that the signature was his. This statement is of no assistance. Great emphasis was laid by the Learned Counsel for the State on the evidence on PW 4, the Additional CJM that the accused had admitted that the signature was his. This statement is of no assistance. The witness has admitted that the statement was made before him by the accused in the presence of the police officials. The second circumstance is the alleged extra-judicial confession before PW 10. The High Court has analysed the evidence in great detail. It is on record that the accused Jagbir was being taken to various places and at different points of time he was being pressurized to make a statement. Though the accused was claimed to have made the statement in the presence of a large number of persons, a combined reading of the evidence shows that nobody else speaks about the so-called extra-judicial confession, not even those who have been examined as PWs. Though PW 10 said that there were many persons who had heard it, no other person has stated about it. The statements of PWs 7 and logo to show that the accused was being interrogated by PWs and other villagers as well as his father and other relatives. Interrogation continued for about 3 days when, allegedly Jagbir confessed his guilt. Though the first information report was lodged by PW 7 after knowing about the extra-judicial confession, there is no mention about this vital fact. In a given circumstance, omission to mention about the particular aspect may not- render the prosecution version suspicious. But when circumstances in the present case are taken in their entirety the alleged extrajudicial confession is not believable. In order to make any extra-judicial confession a reliable evidence it has to be shown that the same was voluntary. The factual scenario as presented by the prosecution goes to show that the alleged, extra-judicial confession cannot be termed to be voluntary even if it was said to have been made, as claimed. The High Court was right in discarding the alleged extra-judicial confession. (emphasis supplied) 28. From a careful reading of the impugned judgment of the learned Addl. Sessions Judge, it appears that while the learned Addl. The High Court was right in discarding the alleged extra-judicial confession. (emphasis supplied) 28. From a careful reading of the impugned judgment of the learned Addl. Sessions Judge, it appears that while the learned Addl. Sessions Judge convicted the accused appellants even did not try to ascertain regarding the identity of the deceased victim girl and not only that, while he believed the extra judicial confession before the PW 2 and PW 3, he did not consider the fact that at the relevant time the accused appellants were in the custody of police and such confession cannot be treated as extra judicial confession. There is no doubt that always extra- judicial confession need not be corroborated subject to the witness before whom the confession made is trustworthy. It further appears that the learned Judicial Magistrate who recorded the 164 statement of the witnesses was also not examined in the Court as a witness. Non examination of such a witness also creates doubt about the prosecution case. 29. The Apex Court also held that extra judicial confession on the face of it is a weak piece of evidence and when the Court is relying the extra judicial confession then the Court should be more cautious as in a criminal trial the degree of proof is stricter than what is required in a civil proceeding. In a criminal trial, however intriguing may be the facts and; circumstances of the case, the charges made against the accused must be proved beyond reasonable doubt and the requirement of proof cannot lie in the realm of surmises and conjectures. The extra judicial confession has to be appreciated considering the facts and circumstances of each case. In the instant case, though the PW 2 and PW 3 as well as PW 13 in their deposition stated that the accused appellants have confessed before them after they were detained by the police, according to us, such confession of the accused-appellants, in presence of police, is not admissible as evidence and cannot be the basis for conviction as the same is hit by Section 24 of the Indian Evidence Act. 30. 30. It also appears from the record that the alleged weapon Khukuri was though seized by the police from the house of the accused Gopal Bora but the same was not sent for chemical examination to prove that the same was used in the alleged incident of murder and it also appears that no such statement under Section 27 of the Evidence Act was recorded. 31. Now let us examine whether in a case of murder always motive need be proved or not. To find out what was the motive at the time of constituting the offence it has to be seen how the mind was acting at the relevant time. It is very difficult to assess the mental position of the person in a particular time. Motive need not be proved by the prosecution in each and every criminal case, but in case relating to circumstantial evidence, proof of motive is necessary while other evidences are absent. In the instant case, the prosecution failed to establish the motive behind the instant incident of murder, thus the same also creates a doubt regarding the participation of the accused appellants in the alleged incident of murder. 32. Upon going through the entire evidence we are of the considered opinion that the prosecution failed to prove the complete chain of the circumstances, rather the same was delinked from each other. By this time, it is settled that a person has a profound right not to be convicted in an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though the standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof is an exercise particular to each case. In the instant case, there was only the recovery of the deceased victim girl but the said girl way not even identified by any of the PWs including PW 3, Smt. Nizara Saikia, PW 8, Kulen Gohain Barua, the land lord who had allegedly seen the victim girl prior to the incident. Therefore, non-identification of the victim deceased girl also creates a doubt regarding the involvement of the present accused appellants. 33. Therefore, non-identification of the victim deceased girl also creates a doubt regarding the involvement of the present accused appellants. 33. As a result of our above discussion, the view taken by the learned trial Court cannot be sustained and consequently the appeal is allowed and the order passed by the learned trial Court dated 18.03.2008 in Sessions Case No. 58(NL) of 2005, is hereby set aside. 34. The appellants, who are in jail, be released forthwith, if not wanted in connection with any other case. We acknowledge the assistance rendered by Mr. J.C. Barman, learned amicus curiae and direct the State of Assam to pay him two days hearing fees @ Rs. 2030/- per day. Appeal allowed