JUDGMENT A.C. Upadhyay, J. 1. The appellants abovenamed were put on trial for commission of offence under Section 302 IPC r/w 34 IPC, before the learned Sessions Judge, Dhemaji in Sessions Case No. 39(DH)/07. On conclusion of the trial, the learned Sessions Judge vide impugned judgment and order dated 29.8.08 convicted the accused/appellants under Section 302 IPC r/w Section 34 IPC and under Section 379 IPC r/w 34 IPC and sentenced each of them to undergo RI for life and to pay fine of Rs. 2000/-, in default, to undergo RI for 2 months for commission of offence under Section 302/34 IPC and further sentenced the accused/appellants to undergo RI for 2 years for commission of offence under Section 379 IPC r/w Section 34 IPC. The prosecution case centres around the homicidal death of Nabajyoti Bora, driver of vehicle bearing Registration No. AS-12-D-1777. 2. PW.1, N. Dutta, an employee of Joyrampur Soil Conservation Centre lodged an 'Ejahar' before the Bordoloni Police Out Post on 23.1.07, stating therein that at about 2:00 PM on 23.1.07, while he along with his associates Sri Mineswar Sonwal (PW.7) and Ratneswar were on duty, they noticed a dead body lying in the forest area. They also noticed injury marks on various parts of the dead body of the deceased. Accordingly suspecting it to be a case of homicide, PW.1 informed the police by filing FIR (Exht.1). On receipt of the FIR, the Officer-in-Charge of the Bordoloni Outpost made a G.D entry and forwarded the same to the Officer-in-Charge of Gogamukh Police Station, for registration of a case. Accordingly, a case was registered by the Officer-in-Charge of Gogamukh Police Station and investigation was launched. In the course of investigation, the dead body was identified to be one of Nabajyoti Bora, the driver of vehicle bearing Registration No. AS-12-D-1777, belonging to Bogeswar Kalita (PW.4). 3. During investigation, the aforesaid vehicle was recovered at Along, Arunachal Pradesh in the possession of the accused/appellants by the Officer-in-Charge, Along police. Having received the information of recovery of the vehicle in question, the Investigating Officer visited the Along Police Station and accordingly, seized the vehicle and also brought the accused persons, on arrest. The dead body of the deceased was sent for post-mortem examination after preparing the inquest. The Investigating Officer, on conclusion of the investigation submitted charge-sheet against the accused persons under Section 379/302/34 IPC. 4. The dead body of the deceased was sent for post-mortem examination after preparing the inquest. The Investigating Officer, on conclusion of the investigation submitted charge-sheet against the accused persons under Section 379/302/34 IPC. 4. During the course of trial, when the case was committed to the Court of Sessions, charges were framed against the accused/appellants under Section 379/302/34 IPC. On reading over and explaining the charges, aforenoted all the accused persons pleaded not guilty and claimed to be tried. 5. The prosecution examined as many as 13 (thirteen) witnesses including the Doctor and the Investigating Officer, during trial. On conclusion of the prosecution evidence, one witness, namely, Tarun Kr. Saikia, Inspector of Along Police Station was examined as Court Witness No. 1. 6. After conclusion of the prosecution evidence, the accused persons were examined under Section 313 CrPC. The accused persons took the plea of total denial in their statements recorded under Section 313 CrPC and declined to adduce any evidence in their defence. 7. On conclusion of the trial, the Trial Court convicted the accused appellants as aforesaid, giving rise to this appeal. 8. We have heard learned counsels appearing for the appellants and Mr. Z. Kamar, learned PP for the State respondent. 9. Learned counsels for the appellants submitted that there is no evidence to convict the appellants for commission of offence under Section 302 IPC. Learned counsels further submitted that in a case based on circumstantial evidence, the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that the crime was committed by the accused and none else. But in the instant case, even the basic fact that the accused and the deceased were last seen together, was not proved. Though the vehicle was found in the possession of the accused persons but such recovery of the vehicle cannot be a basis of conviction of the accused persons for commission of offence under Section 302 IPC. 10. Learned counsels for the appellants further pointed out that suspicion, however grave, cannot be substituted for proof and the circumstantial evidence, from which an inference of guilt is sought to be drawn, must be cogently and firmly established and the prosecution must prove the charge by leading cogent, believable and credible evidence. 11. 10. Learned counsels for the appellants further pointed out that suspicion, however grave, cannot be substituted for proof and the circumstantial evidence, from which an inference of guilt is sought to be drawn, must be cogently and firmly established and the prosecution must prove the charge by leading cogent, believable and credible evidence. 11. Learned Public Prosecutor for the State/respondent on the other hand submitted that the recovery of the vehicle from the possession of the accused persons conclusively established that the accused/appellants were the author of the crime since they did not come forward to explain as to how they came into possession of the vehicle, which was in custody of the deceased at the relevant time, when he was alive. 12. In order to appreciate the submissions of the learned counsel appearing for the appellant as well as the learned Public Prosecutor for the State respondent, we would like to examine the prosecution evidence in details: 13. PW.4, Bogeswar Kalita is the owner of the vehicle bearing Registration No. AS-12-D-1777 and Nabajyoti Bora (deceased) was his driver engaged for driving the said vehicle. According to PW.4, on 21.1.07, he had sent the vehicle with the driver (deceased) to Tezpur for bringing medicine. In the evening, his driver informed him over phone that few persons have taken the vehicle forcibly to North Lakhimpur. Thereafter, PW.4 did not get any information regarding the vehicle as the driver did not come back with the vehicle till 22.1.07. Accordingly, PW.4 informed Mazbat police regarding missing of his car with the driver. On 25.1.07, PW.4 was informed by the Officer-in-Charge, Mazbat police station that a dead body was recovered by the Dhemaji police and it was kept in Dhemaji Civil Hospital. PW.4 immediately came to Dhemaji Civil Hospital and identified the dead body to be of his driver, Nabajyoti Bora, who was the driver of his vehicle at the relevant time. On 28.1.07, PW4 came to know that his vehicle was recovered at Arunachal Pradesh. On 29.1.07, PW4 came to Arunachal and found his vehicle in the Along Police Outpost. 14. Dr. Paramananda Deori, PW.9, who performed the post-mortem examination of the deceased found the following injuries on his person: External Examination : A young healthy and stout boy of about 25 years old with rigor mortis, whole body of thick black hair with protruded incisor teeth upper part jaw. 14. Dr. Paramananda Deori, PW.9, who performed the post-mortem examination of the deceased found the following injuries on his person: External Examination : A young healthy and stout boy of about 25 years old with rigor mortis, whole body of thick black hair with protruded incisor teeth upper part jaw. Multiple abrasions and bruises are notice over the forehead, left eye on both upper and lower orbit and left cheek and maxilla. A rounded to oval shaped bruises noticed over the forehead and its diameter is about 10 to 16 cm., colour is deep brown. Black eye developed on left eye. Conjunetrivcal congestion (haemorrhagic) on right eye and skcral bleeding also seen. Multiple abrasion over right yet, outer orbit of right side on both alac of nose and base of nose and on both lips margin, corner of mouth. Upper incessor teeth is exposed, both eyes are partially opened. An indistinct continuous ligature mark encircling the neck from front to back is seen above the oricoid cartilage, slight depressed over the front part. Abrasions and bruises are also seen on the front neck probably of nails and pad of finger. The head can be moved freely just above the thyroid cartiledge. Shoes and socks are seen wearing bilateral. Genital area- normal. The colour of bruises are brown, dry, parchment like. On dissection of the skull, a small haematoma is found over the left frontal lobe of ante mortem in nature. Cervical vertebrae is fractured at the level of 4th, 5th and 6th vertebrae. Other organs are found to be normal. Hyoid bone fractured with cervical vertebrae about the level of 4th, 5th and 6th vertebrae. In the opinion of the doctor, cause of death was sudden asphyxia due to throttling which led to airway obstruction. In cross-examination, PW.9, the Doctor has stated that the post-mortem examination of the dead body was carried on 24.1.07. 15. PW.1 N. Dutta, was on duty of Soil Conservation of Forest office at Joyrampur. On 23.1.07, in the plantation area of the Joyrampur forest area, PW.1 noticed a dead body in the forest area. PW.1 immediately informed the police about the discovery of the dead body by filing the Exht.1 (FIR). The Investigating Officer (PW.11) deposed that on receiving the information from PW.1, he visited the place of occurrence and found the dead body of the deceased, which was identified to be of Nabajyoti Bora. PW.1 immediately informed the police about the discovery of the dead body by filing the Exht.1 (FIR). The Investigating Officer (PW.11) deposed that on receiving the information from PW.1, he visited the place of occurrence and found the dead body of the deceased, which was identified to be of Nabajyoti Bora. PW.8, the Executive Magistrate prepared the inquest report of the dead body vide Exht.10. The dead body was sent accordingly for postmortem examination. 16. From the evidence of PW.1, 4 and 9, it clearly transpires that the vehicle belonged to PW.4 and the deceased Nabajyoti Bora was his driver, who was driving the said vehicle at the relevant time. The unshaken testimony of PW.4 clearly reveals that the vehicle was taken away by some boys on 22.1.07 towards North Lakhimpur. Thus the vehicle and the driver were missing since 22.1.07. On the next date, i.e., on 23.1.07, the dead body of the deceased was found in the forest plantation area. The vehicle was not with the deceased. The evidence of the witnesses coupled with the evidence of Doctor, who carried out the post-mortem examination clearly reveals that the death of the deceased was homicidal. Thus, the circumstances leading to the death of the deceased clearly spell out that the boys, who took the vehicle towards North Lakhimpur side together with the driver may have caused the death of the deceased and dumped his dead body in the remote forest area of Joyrampur. 17. Sri Tarun Kr. Saikia, PW.11, the Officer-in-Charge of Along Police Station deposed that on 25.1.07 while he was in the police station he got the information that some boys from Assam were roaming suspiciously in a Maruti Car. On suspicion, PW.11 brought the Car along with the boys to the police station. PW.11 came to know from the accused that the vehicle in their possession was a stolen vehicle. PW.11 also recovered registration certificate of the vehicle from the accused persons. Accordingly, PW.11 registered a Non-FIR case being No.3/07 and made correspondences with the Gogamukh police and Dhemaji police. The Investigating Officer of this case seized the vehicle and brought the accused persons on arrest upon Production of Warrant issued by the Court. Apparently, the recovery of the vehicle from the accused persons is not in dispute. 18. Accordingly, PW.11 registered a Non-FIR case being No.3/07 and made correspondences with the Gogamukh police and Dhemaji police. The Investigating Officer of this case seized the vehicle and brought the accused persons on arrest upon Production of Warrant issued by the Court. Apparently, the recovery of the vehicle from the accused persons is not in dispute. 18. In their statements under Section 313 CrPC, all the accused persons above named did not deny the fact of recovery of the vehicle from their possession and bringing them on arrest to the police station. The accused persons took the stand that they were brought to the police station by Along police suspecting them to be extremists. Thus, prosecution could establish that the vehicle belonging to PW.4, which was driven by the deceased, was found in possession of the accused persons. 19. PW.8, Sri BK Das, the Executive Magistrate in his evidence deposed that when he along with Circle Inspector of Police visited the Jairampur soil conservator forest on 22.1.07 at about 1:00 PM, the accused/persons confessed before him that they had hired the stolen vehicle bearing Registration No.AS-12-D-1777 on 21.1.07, and arrived in the Joyrampur Soil Conservator of Forest office at about 8:00 PM. PW.8 further stated that the accused Saya Brahma and Rantu Boro stated to have strangulated the driver Nabajyoti Bora and after killing the driver dragged the dead body to the nearby forest area and left it there. Thereafter, they straightway went to Jonai and picked up one Kailash Basumatary and went to Along, Arunachal Pradesh for selling out the vehicle. According to PW. 8, the accused persons also showed him the place of occurrence and the location, where they have kept the dead body. PW.8 also prepared a report Exht.X on the basis on the basis of the confessional statement made by the accused persons. 20. PW.2, Jyotish Hazong deposed that PW.8 Executive Magistrate and police officers came to the place of occurrence along with the accused persons and they confessed before the Executive Magistrate that they have killed the driver and took away the vehicle. During cross-examination he has stated that at the time of making statement, the Executive Magistrate and the police officers were present. Police also seized a Gamosa vide Exht.3 in his presence. 21. During cross-examination he has stated that at the time of making statement, the Executive Magistrate and the police officers were present. Police also seized a Gamosa vide Exht.3 in his presence. 21. PW.3, Nripen Barman deposed that police officers and Executive Magistrate went to the place of occurrence along with 4 accused persons i.e. Sankar Barman @ Ranjit Barman, Rantu Boro @ Rahul Boro, Saya Basumatary @ Saya Brahma and Mangal Chandra Bahma @ Bishal. He also arrived there as the VDP secretary. Executive Magistrate took the statements of the accused persons. According to him, accused persons confessed before Executive Magistrate that they have brought the vehicle, killed the driver and took away the vehicle. He also stated that police seized a 'Gamosa' from the place of occurrence. 22. PW.5, Durga Upadhyay also deposed in the same line that police officers and Executive Magistrate went with the accused persons and the accused persons have confessed before them that they took the vehicle after killing the driver. During cross examination, PW.5 has stated that confessional statement before Executive Magistrate was recorded by a police officer and it was not recorded by Executive Magistrate. 23. PW.6, Bilato Barman also deposed in the same line that on 2nd February police went to the Soil Conservation Forest office, Joyrampuralong with 4 accused persons along with an Executive Magistrate. The accused persons have confessed that they killed the driver and took away the vehicle. PW.6 also stated during cross-examination that prior to 2nd February, he went to place of occurrence, when the dead body was recovered earlier. 24. Testimony of PW.7 is that he along with PW.4 and PW.6 saw a dead body at Joyrampur Soil Conservation Forest office on 23.1.07 and the information was lodged before the police by PW. 1. 25. Statements of PW.2, PW.3, PW.5 and PW.6 were also recorded by Judicial Magistrate under Section 164 CrPC, which have been proved as Exht.2, Exht.6 and Exht.9. These statements recorded under Section 164 CrPC show that PW.2, PW.3, PW.5 and PW.6 have also stated before the Judicial Magistrate regarding confessional statement made by the accused persons, before the Executive Magistrate. 26. PW.12 and PW.13 are the Judicial Magistrates, who have recorded statement u/s 164 CrPC which have been proved vide Exht.2, Exht.6, Exht.8 and Exht.9. 27. These statements recorded under Section 164 CrPC show that PW.2, PW.3, PW.5 and PW.6 have also stated before the Judicial Magistrate regarding confessional statement made by the accused persons, before the Executive Magistrate. 26. PW.12 and PW.13 are the Judicial Magistrates, who have recorded statement u/s 164 CrPC which have been proved vide Exht.2, Exht.6, Exht.8 and Exht.9. 27. PW.10, Tiren Dihingia, Officer-in-Charge of Bordoloni Outpost deposed that on the basis of an Ejahar lodged by one Niranjan Dutta on 23.1.07, a GD Entry was made and the same was sent to Gogamukh Police Station for registering a case and accordingly, the Gogamukh PS Case No. 15/07 under Section 302 IPC was registered. On 31.1.07, an information was received from the Police Station that the accused persons- Mangal Chandra Brahma, Rantu Boro, Kailash Basumatory, Sankar Barman and Saya Basumatory were detained by Along police along with a Maruti Car at Along. Accordingly, PW.10 went to the Along and seized the said vehicle vide Exht.12, seizure list. This witness was not cross examined. 28. PW.11, Investigating Officer of the case deposed that he had received an Ejahar lodged by Niranjan Dutta on 23.1.07 and after making G.D. Entry sent the same to Gogamukh police station for registering a case. The Officer-in-Charge of Gogamukh Police Station registered the Gogamukh Police Case No.15/07 under Section 302 IPC and entrusted PW.11 with the investigation. PW.11 visited the place of occurrence, brought the dead body of the deceased and sent it to Dhemaji Civil Hospital for postmortem examination. PW11 again went to place of occurrence on 2.2.07 along with the four accused persons and with the Executive Magistrate and recorded confessional statement of the accused persons. During cross-examination, PW.11 stated the accused Kailash Basumatory was not brought to the place of occurrence along with the other accused persons. 29. Scrutiny of the evidence of PW.2, PW.3, PW.5, PW.6, PW.8 and the Investigating Officer (PW.11), it transpires that on 2.2.07, PW.11 along with Circle Inspector of police and the Executive Magistrate (PW.8) went to Joyrampur Soil Conservation Forest along with the accused persons where the dead body was found and all the accused persons made confessional statement before the Executive Magistrate (PW.8). It is apparent that the Executive Magistrate did not record the confessional statement. It is apparent that the Executive Magistrate did not record the confessional statement. However, he had prepared a report regarding confessional statements of PW.2, PW.3, PW.5 and PW.6, who have categorically stated that the accused persons have made confession that they have killed the driver Nabajyoti Bora and took away the vehicle. It is apparent from the evidence of PW.11 that the accused persons were taken to police custody for 4 days, on 1.2.07 and thereafter on 2.2.07, PW.11 along with CI of Police and Executive Magistrate went to the place of occurrence along with the accused persons, where the accused persons alleged to have made confessional statement before the Executive Magistrate in presence of police officers including Investigating Officer and the other witnesses as well as PW.2, PW.3, PW.5 and PW.6. From the evidence of PW.2, PW.3, PW.6, PW.8 and PW.11, it is abundantly clear that the confessional statement was made by the accused persons before the Executive Magistrate and police officers, while they were in police custody. The following circumstances are stated to have been established beyond all reasonable doubt : i) That the vehicle bearing Registration No. AS-12-D/1777 belonged to PW.4 Bhugeswar Kalita. ii) The deceased Nabajit Borah was the driver of Bhugeswar Kalita (PW.4) and he was driving the said vehicle on 21.1.2007. iii) On 21.1.2007 the vehicle was taken away along with the driver by some persons. iv) From 22.1.2007, the vehicle along with driver Nabajit Borah was missing. v) On 23.1.2007, the dead body of Nabajit Borah was found lying at Joirampur Soil Conservation Forest. vi) The driver (Nabajit Borah) of the vehicle bearing Registration No. AS-12-D/1777 was killed by strangulation. vii) On 28.1.2007, the accused persons were found possessing the vehicle bearing Registration No. AS-12-D/1777 belonging to Bhugeswar Kalita (PW.4). The fact that the vehicle bearing Registration No. AS-12-D/1777 (Maruti Alto) was stolen and the same was found in possession of the accused persons. The accused persons in their examination under Section 313 CrPC did not admit the factum of the vehicle being found in their (accused persons) possession. Accused Kailash Basumatary gave an explanation that they were picked up by police as they did not have any Inner Line Permit. According to other 4 accused persons, they were picked up by CW.1, suspecting them to be extremists. Accused Kailash Basumatary gave an explanation that they were picked up by police as they did not have any Inner Line Permit. According to other 4 accused persons, they were picked up by CW.1, suspecting them to be extremists. The IO (C.W.1) in his cross examination stated to have recovered the vehicle and detained in the police station. There is no independent witness was examined, to prove recovery of the stolen vehicle from the possession of the accused appellants. 30. In State of A.P. Vs. Gangula Satya Murthy, (1997) 1 SCC 272 , the Apex Court observed that confession made to a police officer is inadmissible under Section 25 of the Evidence Act and that ban is further stretched through Section 26 of the Evidence Act, to the confession made to any other person also, if the confessor was then in police custody. It reads as follows : It is true any confession made to a police officer is inadmissible under Section 25 of the Act and that ban is further stretched through Section 26 to the confession made to any other person also if the confessor was then in police custody. Such 'custody' need not necessarily be post-arrest custody. The word 'custody' used in Section 26 is to be understood in a pragmatic sense. If any accused is within the ken of surveillance of the police during which his movements are restricted then it can be regarded as custodial surveillance for the purpose of the section. If he makes any confession during that period to any person be he not a police officer, such confession would also be hedged within the banned contours outlined in Section 26 of the Evidence Act. 31. In view of the decision of the Supreme Court in the case of State of A.P. Vs. Gangula Satya Murthy (1997) 1 SCC 272 , any confession made by the accused in presence of the Investigating Officer, is not legally admissible evidence. 32. It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [See Anil Kumar Singh Vs. State of Bihar : (2003) 9 SCC 67 and Reddy Sampath Kumar Vs. State of A.P. 2005 Cri LJ 4131] 33. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused persons and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case courts should look for some corroboration. 34. However, in the present case, the accused appellants were never seen by any person, whosoever, together with the deceased. The owner of the vehicle stated in his evidence that he had received a call from the deceased regarding taking away of the vehicle by some persons. There is no direct evidence to hold that the accused appellants where the persons who took the vehicle together with the deceased. 35. The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is no positive evidence that the deceased and the accused were seen together. 36. It is, furthermore, well-known that motive by itself is not sufficient to prove the guilt. [See State of M.P. through CBI and Ors. Vs. Paltan Mallah & Ors. 2005 Cri LJ 918.] 37. In this case there is no positive evidence that the deceased and the accused were seen together. 36. It is, furthermore, well-known that motive by itself is not sufficient to prove the guilt. [See State of M.P. through CBI and Ors. Vs. Paltan Mallah & Ors. 2005 Cri LJ 918.] 37. When there is no eye witness to the occurrence, (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established;(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused and should not be explainable on any other hypothesis except that the accused is guilty;(iii) the circumstances should be of a conclusive nature;(iv) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with innocence of the accused on preponderance of probability. (Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116 ) 38. In the instant case, while it has been proved that the death of deceased is homicidal, but nobody witnessed the accused committing the crime. The facts established by the prosecution are not consistent with the hypothesis of the guilt of the accused. Hence, on this ground alone the appellants are entitled to the benefit of doubt resulting in his acquittal. 39. After giving thoughtful consideration on the entire gamut of facts and circumstances of the case, we are of the view that the prosecution could not establish beyond all reasonable doubt that it was the accused-appellants, who had stolen the vehicle and also killed Nabajit Bora, the deceased, as alleged. Hence, the appeals noted above are allowed and the impugned judgment and order dated 1st December, 2007, passed by the learned Sessions Judge Dhemaji, in Sessions Case No.39(DH)/2007, is set aside. Consequently, accused-appellants, namely, (i) Sri Rantu Boro @ Rahul Boro,(ii) Sri Kailash Basumatary @ Babul, (iii) Sri Sankar Barman @ Ranjit, (iv) Sri Mangal Ch. Brahma @ Suresh @ Bishal, (v) Sri Sanjaram Basumatary @ Saya, are acquitted and directed to be set at liberty forthwith, if not wanted in connection with any other case. Before parting with the record, we appreciate the valuable assistance rendered by Mrs., R. Borbora, Mr. S.S. Goswami and Ms. Kalyani Devi, Amicus Curiae, in the afore noted appeals and direct that they be paid a sum of Rs. Before parting with the record, we appreciate the valuable assistance rendered by Mrs., R. Borbora, Mr. S.S. Goswami and Ms. Kalyani Devi, Amicus Curiae, in the afore noted appeals and direct that they be paid a sum of Rs. 3,500/- (Rupees three thousand five hundred only) each, as remuneration by High Court legal Services Authority. Send back the L.C.R. together with a copy of this judgment.