JUDGMENT : MANASH RANJAN PATHAK, J. 1. Heard Mr. Zahangir Hussain, learned Amicus Curiae for the accused appellant and Ms. Bornali Bhuyan, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. 2. This criminal appeal from jail by the accused appellant is against the judgment and order of conviction and sentence dated 30.01.2016 passed by the learned Additional Sessions Judge, Dibrugarh, in Sessions Case No. 82/2010, corresponding to G.R. No. 1112/2008, arising out of Lahowal Police Station Case No. 99/2008, wherein the learned Trial Judge convicted the appellant under Sections 302/448 IPC and sentenced him to undergo Rigorous Imprisonment for Life and to pay fine of Rs. 2,000/-under Section 302 IPC, in default of payment of fine, to undergo simple imprisonment for 6 (six) months and further to undergo Rigorous Imprisonment for 6 (six) months with fine of Rs. 500/-under Section 448 IPC, in default to undergo simple imprisonment for another 1 (one) month, where both the sentences to run concurrently, setting off the period of detention in custody of the accused appellant during investigation and trial of the said case. 3. The brief facts of the case is that on 17.06.2008 around 01:45 pm, the Officer-in-Charge of Dikom Outpost of Dibrugarh District received a phone call from one Jai Prakash Sahu, son of Jawahi Prasad Sahu that Ramesh Bhumij of Kuhiyar Bari Village had hacked a person by name Santosh and had also wounded 2-3 persons and that police personnel should come immediately. Said information was recorded as G.D. Entry No. 320 dated 17.06.2008 of Dikom Outpost and police personnel from the said Outpost left for the place of occurrence (Exhibit-5). 4. Before police from Dikom Outpost reached the place of occurrence, the injured victim Santosh Sahu was taken to the Assam Medical College and Hospital, Dibrugarh for his treatment. On reaching the place of occurrence at Dicom Sessa Village when police personnel entered into the house of Promila Sahu, she was found dead with multiple grievous injuries on her person. Immediately the concerned police officer informed the Executive Magistrate of Circle Office Chabua for holding Inquest on the person of the said deceased and for her post mortem examination. On reaching the place of occurrence at Dicom Sessa Village when police personnel entered into the house of Promila Sahu, she was found dead with multiple grievous injuries on her person. Immediately the concerned police officer informed the Executive Magistrate of Circle Office Chabua for holding Inquest on the person of the said deceased and for her post mortem examination. Accordingly, Inquest on the person of the deceased Promila Sahu was made on 17.06.2008 itself in presence of said Magistrate and other witnesses by preparing Inquest Report (Exhibit-6) and the dead body of said Promila Sahu was forwarded to the Assam Medical College and Hospital, Dibrugarh for her Post Mortem Examination. All these were initially done under said Dikom Outpost G.D.Entry No. 320 dated 17.06.2008. 5. At the place of occurrence around 02:30 pm on 17.06.2008 the concerned Police Officer of Dikom Outpost received a written ejahar dated 17.06.2008, lodged by one Sri Manik Chandra Sahu (PW-1) before the Officer-in-Charge of Dikom Outpost, district Dibrugarh, stating that the accused Ramesh Bhumij, resident of Dicom Sessa Village (Kuhiyar Bari), on that day, 17.06.2008 during the day hours around 12:45 all of a sudden entered in to the house of accused’s neighbour, namely, Pramila Sahu, wife of late Ram Narayan Sahu, who happens to be informant’s Mami(maternal aunt) and killed her by hacking with a dao.After some time when, Sri Santosh Sahu, son of late Manoranjan Sahu reached the house, the said accused also attacked him, hacked him with the daoand caused injuries in various parts of his body and said Santosh Sahu later succumbed to his injuries at the Assam Medical College and Hospital, Dibrugarh and that he could not ascertain the reason for the incident. By the said ejahar, the informant Sri Manik Chandra Sahu (PW-1) requested the authorities concerned to enquire in to the matter and to do the needful (Exhibit-1). 6. The authorities of Dikom Police Outpost in the meanwhile on 17.06.2008 got the information that the injured victim Santosh Sahu expired at Assam Medical College and Hospital, Dibrugarh due to injuries sustained by him. 7. On the night of 17.06.2008, the accused Ramesh Bhumiz with a daoappeared at Dikom Outpost and surrendered before police and he was arrested on 18.06.2018 in said Dikom Outpost G.D.Entry No. 320 dated 17.06.2008. 7. On the night of 17.06.2008, the accused Ramesh Bhumiz with a daoappeared at Dikom Outpost and surrendered before police and he was arrested on 18.06.2018 in said Dikom Outpost G.D.Entry No. 320 dated 17.06.2008. In presence of witnesses, one MesiDao, length of about 2’.3” feet with handle (Material Exhibit-1) was seized from the accused on the night of 17.06.2008 itself at Dikom Outpost in said Dikom Outpost G.D.Entry No. 320 dated 17.06.2008 vide Seizure List (Exhibit-2). 8. On receipt of said FIR on 17.06.2008, the authorities of Dikom Police Outpost forwarded the said FIR to the Lahowal Police Station for registering a case under Section 448/302 IPC. Accordingly, on receipt of said FIR on 18.06.2008, it was registered as Lahowal Police Station Case No. 99/2008 under Sections 448/ 302 IPC and the case was entrusted to the Sub-Inspector of Police the concerned Officer-in-Charge of Dikom Outpost to investigate the matter. 9. On receipt of information from the authorities of A.M.C.H. regarding the death of injured victim Santosh Sahu, Borbari Outpost G. D. Entry No. 464 dated 18.06.2008 was made and inquest on the person of the said deceased Santosh Sahu was made on 18.06.2008 by police from said Borbari Outpost in presence of Magistrate and other witnesses at A.M.C.H. itself by preparing Inquest Report (Exhibit-8) and the dead body of said Santosh Sahu was forwarded to the Assam Medical College and Hospital, Dibrugarh for his Post Mortem Examination in said Borbari Outpost G. D. Entry No. 464 dated 18.06.2008. 10. Police visited the place of occurrence, drawn the sketch map (Exhibit-7), recorded the statements of the witnesses under Section 161 CrPC. On obtaining the post-mortem reports of both the deceased and on completion of the investigation, the I/O of the case, finding prima facie materials against the accused, submitted the charge sheet in said Lahowal Police Station Case No. 99/2008 on 30.11.2008 vide Charge Sheet No. 161 dated 30.11.2008 (Exhibit-9), with Post Mortem Examination Reports of deceased persons Santosh Sahu (Exhibit-3) and Promila Sahu (Exhibit-4). 11. From the date of his arrest on 18.06.2008, on completion of statutory period of ninety days, the accused was released on bail by the learned Chief Judicial Magistrate on 18.09.2008 at Rs. 10.000/-in G.R. Case No. 1112/2008 arising out of said Lahowal P.S. Case No. 99/2008. 11. From the date of his arrest on 18.06.2008, on completion of statutory period of ninety days, the accused was released on bail by the learned Chief Judicial Magistrate on 18.09.2008 at Rs. 10.000/-in G.R. Case No. 1112/2008 arising out of said Lahowal P.S. Case No. 99/2008. Later, the accused appellant was again taken into custody on 28.01.2016 before delivering the impugned Judgment on 30.01.2016. 12. As Section 302 IPC is exclusively triable by the Court of Session, the learned Chief Judicial Magistrate, Dibrugarh, on 09.06.2010 committed the said G.R. Case No. 1112/2008 to the Court of learned Sessions Judge, Dibrugarh. 13. On receipt of the records of the said G.R. Case, the same was registered as Sessions Case No. 82/2010 before the Court of learned Sessions Judge, Dibrugarh and by order dated 17.06.2010, the learned Sessions Judge, Dibrugarh transferred the said Sessions Case No. 82/2010 to the Court of learned Additional Sessions Judge, FTC, Dibrugarh, for its disposal. 14. On 15.07.2020 charges under Sections 448/320 IPC were framed against the accused, which were read over and explained to him, to which the accused pleaded not guilty and claimed to be tried and accordingly, trial of the case began. 15. To prove the guilt of the accused, the prosecution examined 8 (eight) witnesses and they were cross-examined by the defence. Prosecution also exhibited the FIR, Charge Sheet, Inquest Reports and Post Mortem Reports of the deceased persons, Sketch Map and the Seizure List and Material Exhibit, etc. of the case. 16. The learned Trial Judge recorded the statement of the accused under Section 313 CrPC after the closure of evidence of the prosecution witnesses. However, the defence did not adduce any evidence except cross examining the prosecution witnesses. 17. Mr. Hussain, learned Amicus Curiae, has urged before us that the prosecution failed to prove the case against the accused appellant beyond all reasonable doubt as there was no ocular witness to the incident and, as such, he submitted that the accused appellant should be acquitted in the said Sessions Case No. 82/2010. 18. However, learned Additional Public Prosecutor, Ms. Mr. Hussain, learned Amicus Curiae, has urged before us that the prosecution failed to prove the case against the accused appellant beyond all reasonable doubt as there was no ocular witness to the incident and, as such, he submitted that the accused appellant should be acquitted in the said Sessions Case No. 82/2010. 18. However, learned Additional Public Prosecutor, Ms. Bhuyan, on the other hand, submitted that the prosecution on examining 8 (eight) witnesses and on proving the exhibits including the material exhibits and other evidence could prove the guilt of the accused beyond all reasonable doubt and, as such, the impugned judgment and order of conviction dated 30.01.2016 passed against the accused appellant should not be interfered with. 19. Let us discuss the prosecution witnesses in brief. 20. PW-3, Dr. Subha Jyoti Deka, the autopsy doctor, conducted the post-mortem examination of both the deceased Santosh Sahu and his aunt Promila Sahu on 18.06.2008. During the postmortem examinations on the person of the deceased Santosh Sahu, aged about 18 years, the said autopsy doctor found the following injuries: 1. Incised looking lacerated wound of 5 cm x 1 cm, over left frontal region of head 1 cm above left eyebrow and 4 cm from mid line obliquely present with haemorrhage and fracture reddish. 2. Left side of neck gland drain of 10 cm x 6 cm and 3 cm below left ear 7 cm midline, redis. 3. Abrasion of 7 cm x 4 cm, redis, no tip and left shoulder. 4. Abrasion over the left knee of 4 cm x 3 cm redis in colour. 5. Scalp: Hematoma over left fronto parietal region of 12 8 cm long. 6. Skull: Fissure fracture over left porto parietal region of 8 cm length. 7. Membrane: Extradural haemorrhage over left frontal region, bilateral subdural and sub arachnoids haemorrhage detected with mid line shift. 8. Brain: Congested. 9. Liver: Congested. 10. Kidneys: Congested. 21. During post-mortem examination, the said autopsy doctor, on the person of deceased Santosh Sahu, also found Fissure Fracture over left porto parietal region of 8 cm long, extradural haemorrhage over left frit region paltered subdural and sub arachnoids haemorrhage over left frontal region bilateral with mid line shift, brain liver kidneys congested. 22. 9. Liver: Congested. 10. Kidneys: Congested. 21. During post-mortem examination, the said autopsy doctor, on the person of deceased Santosh Sahu, also found Fissure Fracture over left porto parietal region of 8 cm long, extradural haemorrhage over left frit region paltered subdural and sub arachnoids haemorrhage over left frontal region bilateral with mid line shift, brain liver kidneys congested. 22. He opined that said Santosh Sahu’s death was due to coma as a result of head injury sustained by him as described and that all the injuries were ante mortem in nature that was caused by blunt force impact that are homicidal in nature and that the time since his death was approximately 18 to 24 hours at the time of examination. 23. With regard to the deceased Promila Sahu, aged about 55 years, said autopsy doctor PW3, from the post-mortem examination report, stated that she sustained the following injuries: (i) Chop wound of right forearm clean cut margin muscle bone 11 cm below elbow, reddish and attached posterior to a tag of skin. (ii) Incised wound clean cut margin 10 cm x 3 cm muscle depth and 13 cm below right tip of shoulder oblique present over the right arm reddish. (iii) Incised wound of 21 cm x 4 cm, horizontally placed over of black of chest 1 cm below 7 and 11 cm from right tip to the shoulder 10 cm from left tip of shoulder bone depth on the vertebra bone reddish. 24. He also found that said Promila Sahu sustained injuries on her Scalp-left side as decibel clean cut margin, hair bulb clean cut, Skull-left side neck on the outer table of skull of 4 cm present and he opined that her death was due to haemorrhage sock as a result of injuries sustained as described above, where all the injuries were ante mortem, homicidal in nature caused by sharp cutting heavy weapon. 25. The evidence of PW-3 the concerned autopsy doctor reflects that the death of both the deceased Promila Sahu and Santosh Sahu were homicidal in nature. 26. PW-1, Manik Chandra Sahu, the informant of the case, is a hearsay witness and he was at his residence when the incident occurred. His house is near Dikom Outpost and along with police he reached the place of occurrence on the date of the incident. 26. PW-1, Manik Chandra Sahu, the informant of the case, is a hearsay witness and he was at his residence when the incident occurred. His house is near Dikom Outpost and along with police he reached the place of occurrence on the date of the incident. He deposed that he heard that the accused killed both the deceased. He stated that the accused surrendered before police station along with the daoand that the accused confessed before police in his presence that he had killed both the deceased with the dao and police seized the dao that was used in the commission of the said crime. PW-1 also deposed before the Court that he had seen severe cut injuries on the neck of the deceased Pramila Sahu as well as on her hand and that he heard that deceased Santosh Sahu received cut injuries on his head. During his cross-examination, said PW1 categorically stated that he did not witness the incident and had heard about the said incident from others as well as from the accused and both the deceased were his relative. 27. PW-2, Ram Chandra Sahu, is a seizure witness and in his examination in chief he deposed before the Court that police took his signature on the seizure list, he had not seen any weapon, proved the seizure list Exhibit-2 and his signature on it and he stated that he had put his signature on a blank paper. 28. PW-4, Sikandar Routia, deposed before the learned Trial Judge that he was working in the house of the deceased Promila Sahu and on the date of the incident at around 12/12:30 PM, when he saw the accused entering into the house of the deceased Promila Sahu from the back side of her house holding a dao in his hand, he ran out of fear from the said house and hid himself in the garden. He stated that the deceased Promila Sahu was alone in her bed room at that point of time and that he heard ha a (hue and cry) and later, he came to know that the accused had cut the deceased Promila and that he saw the injuries on the dead body of Promila, while he visited the police station. He stated that the deceased Promila Sahu was alone in her bed room at that point of time and that he heard ha a (hue and cry) and later, he came to know that the accused had cut the deceased Promila and that he saw the injuries on the dead body of Promila, while he visited the police station. During his cross-examination, PW-4 stated that he had a good relation with the wife of the accused and that the occurrence took place after he left the place. He stated that after the incident, he did not visit the place of occurrence and after a week he visited the police station, on being asked by police. During his cross, he also categorically stated that he had no personal knowledge about the occurrence and also denied the fact that he had any intimacy with the wife of the accused for which he has falsely implicated the accused. 29. PW-5, Herombor Das, is also hearsay witness, who was present at the house of the deceased and later came to know from the people of the village about the incident that the accused had killed both the deceased. In his cross-examination, the PW5 reiterated that he did not see the occurrence and heard that the accused committed the murder. 30. PW-6 Rajib Kumar Sahu is also a hearsay witness. He was away from the place of occurrence at the relevant time and came to know about the incident from his neighbours that Santosh Sahu died. Then he went to the hospital, saw injuries on the head of the deceased Santosh Sahu and that people of his village told him that Santosh Sahu was murdered in the house of other person. During his cross examination, said PW-6 reiterated that he did not see the occurrence, came to know about the death of Santosh Sahu and was not aware that another person had also died. During his re-examination, said PW-6 denied that he has deposed falsely to save the accused person. 31. PW-7, Biren Doley is a Havildar, deposed before the learned Trial Court that on 17.06.2008 he was serving at Dikom Outpost and on that day, S.I., Uma Rajkonwar, PW-8 seized one dao from the accused person and he had put his signature on the seizure list (Exhibit-2). He proved the said seizure list Exhibit-2 and his signature on it. 31. PW-7, Biren Doley is a Havildar, deposed before the learned Trial Court that on 17.06.2008 he was serving at Dikom Outpost and on that day, S.I., Uma Rajkonwar, PW-8 seized one dao from the accused person and he had put his signature on the seizure list (Exhibit-2). He proved the said seizure list Exhibit-2 and his signature on it. He also deposed that he saw one Mechidao (Material Ext.1) in the Court that was seized by Sub-Inspector, Uma Rajkonwar, PW-8 on 17.06.2008. In his cross-examination by the defence, said PW-7 stated that he had no knowledge about the occurrence and was not aware about the contents of the seizure list and that he had put his signature on the said seizure list as dictated by the S.I. Uma Rajkonwar, PW-8. 32. PW-8, Uma Rajkowar, the concerned Investigating Officer, filed the charge sheet in the case against the accused appellant. He deposed that while he was serving at Dikom Outpost under Lahowal Police Station, on being informed over telephone that the accused assaulted one Sri Santosh Sahu and two others at Kuhiarbari, he made a G.D. Entry vide No. 320 (Ext.5) dated 17.06.2008 at the Outpost; thereafter, he along with other police personnel went to the place of occurrence, visited the house of Promila Sahu, where the incident occurred and saw her lying in the front room with cut injuries on her neck, with grievous injuries on her right hand and different parts of her body. He deposed that finding said Promila Sahu in that condition, he called the Circle Officer, Chabua, for holding inquest and he recorded the statement of the witnesses. He stated that after completion of the inquest, he forwarded the dead body of Promila Sahu for postmortem examination. He further deposed that on the same day, i.e., 17.06.2008 at around 01:30 PM, the accused surrendered before police at Dikom Outpost along with the daothat he had used in committing the crime; he arrested the accused, recorded his statement and that the accused confessed before police that he had killed the deceased Promila and Santosh with the said dao that he had brought to the police station. He deposed that he recorded the statement of the said accused in presence of UBC 805 Biren Doley (PW-7), Munna Sahu and Ram Chandra Sahu (PW-2) and that he seized the said dao from the accused where Exhibit-2 is the seizure list and he proved his signature on it. PW-8 also deposed that he did not meet the injured Santosh Sahu as he was taken to hospital by the villagers and on his visit to the place of occurrence on 17.06.2008, PW-1 lodged the FIR of the case that was registered as Lahowal P.S. Case No. 99/2008 on 18.06.2008. During his cross-examination, PW-8 stated that he did not forward the said Mechidaofor the FSL examination and also denied the allegation that the accused did not surrender with the weapon dao, that was used by the accused for commission of the crime and he denied that he compelled the accused to bring a dao and to come to the police station. 33. The accused in his statement recorded under Section 313 CrPC, denied the accusations made against him by the prosecution witnesses and also denied that he did not enter the house of Promila Sahu with dao nor killed her and Santosh Sahu. He also denied that he assaulted them. He denied regarding his surrender before police nor produced the dao nor he made any confessional statement before police and that his signature was obtained forcefully by police regarding seizure of the Mechidao. He stated that he had been falsely implicated in the case. 34. It is seen that PW-1, PW-5 and PW-6 are reported witnesses. PW-2 is a seizure witness, who had given his signature on a blank paper. Similarly, PW-7, police personnel, who was present at Dikom Outpost on 17.06.2008 while the Investigating Officer of the case, PW-8 seized a dao from the accused person and said PW-7 gave his signature as a seizure witness to the same. But, in his cross, he stated that he did not have any knowledge about the occurrence, he was not aware about the writings in the seizure list and specified that as dictated by PW-8, S.I. of Police, the concerned Investigating Officer of the case, he had put his signature in the seizure list. 35. But, in his cross, he stated that he did not have any knowledge about the occurrence, he was not aware about the writings in the seizure list and specified that as dictated by PW-8, S.I. of Police, the concerned Investigating Officer of the case, he had put his signature in the seizure list. 35. Further, PW-4 though stated that he worked in the house of deceased Promila Sahu and was present in the house of said deceased on 17.06.2008 before the time of occurrence and that seeing the accused entering the house of the deceased Promila Sahu from back side of the house holding a daoin his hand, he out of fear went out of the said house and hid himself in the garden and during his cross-examination, he stated that the occurrence took place after he left the place. There is no corroboration that PW-4 used to stay in the house of said deceased Promila Sahu and that he was in the house of the said deceased on the date of occurrence. None of the prosecution witnesses stated about the presence of PW-4 in the house of the deceased Promila Sahu. The concerned Investigating Officer of the case, PW-8 also did not state about his presence in the house of the deceased Promila Sahu on the date of occurrence prior to the incident. 36. From the evidence of PW-8, the Investigating Officer of the case, it is seen that as per his version, the accused surrendered before police at Dikom Outpost along with the dao, the weapon of the offence that he had used during the commission of the crime and that on his appearance in the police Outpost, he arrested the said accused and recorded his statement at Dikom Police Outpost during which the accused confessed before police that he had killed Promila and Santosh with the said dao, which the accused had brought to the police station and that the statement of the accused was recorded in presence of PW-7, PW-2 and one Munna Sahu. 37. We have noticed that both, the PW-2 Ram Chandra Sahu in his deposition before the Trial Court that police took his signature in the seizure list and that he had given his signature on a blank paper. 37. We have noticed that both, the PW-2 Ram Chandra Sahu in his deposition before the Trial Court that police took his signature in the seizure list and that he had given his signature on a blank paper. PW-7 UBC 805 Biren Doley deposed that S.I. Uma Rajkonwar (PW-8) seized one dao from the accused person and that he had given his signature in the Seizure List (Exhibit-2) but in his cross he stated that he did not remember what was written in the said Seizure List and that he had given the signature in the in the said Seizure List as dictated by S.I. Uma Rajkonwar (PW-8). the third signatory to the Seizure List Munna Sahu was not examined by the prosecution. 38. The Hon’ble Supreme Court in the case of Modan Singh Vs. State of Rajasthan, (1978) 4 SCC 435 have held that — If the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version. But in the case in hand the Investigating Officer of the case himself stated that the accused of his own came to Dikom Outpost along with the dao and surrendered before police. But the Investigating Officer of the case did not send the said alleged weapon of offence to the FSL to ascertain whether said dao allegedly produced by the accused at Dikom Outpost was the weapon of offence or not. There is also no evidence that said dao contained any mark or presence of human blood or not. 39. From the deposition of the autopsy doctor, PW-3 as well as the Post Mortem Examination Reports of the deceased persons, it is seen that deceased Santosh Sahu’s death was due to coma as a result of head injury and that all the injuries were ante mortem and homicidal in nature caused by blunt force impact whereas the deceased Promila Sahu sustained injuries on her death was due to haemorrhage shock as a result of injuries sustained by her, where all the injuries were ante mortem and homicidal in nature caused by sharp cutting heavy weapon. No doubt, considering the injuries inflicted on the deceased persons, the crime is found to be heinous. 40. No doubt, considering the injuries inflicted on the deceased persons, the crime is found to be heinous. 40. The gruesome incident of double murder though occurred during day time and we found that people in the village were saying that the crime had been committed by the accused appellant Ramesh Bhumiz, but we did not find any direct evidence in that regard. To know the truth we perused the police case diary and found that three ocular witnesses of a family, Smti. Namita Uria, Sri Kiron Uria and Smti. Somari Uria, mother, son and daughter-in-law, respectively, who resided towards the back and near the house of the victim Promila Sahu, since few months, prior to the incident, during noon on the date of the incident on 17.06.2008 saw the victim Santosh Sahu entering the house of his aunt Promila Sahu calling her and at that point of time, the accused appellant came out of the house of Promila Sahu with a long Dao, attacked said Santosh Sahu, gave him Dao blow in the court yard adjacent to their house and Santosh Sahu was enquiring the accused as to why he was attacking him and said Santosh Sahu, out of fear ran towards the road in the front and the accused appellant chased him, gave him Dao blow and hacked him. After hacking Santosh Sahu, the accused suddenly left the place and he could not be found thereafter. The victim Santosh Sahu with his injuries though somehow walked back towards the house of Promila Sahu, but he fell down on his way. Those witnesses in their statements before police under Section 161 CrPC stated that whenever the front door of the house of Promila Sahu remains closed, said Santosh Sahu usually enters the house of his said aunt by the rear side of her house. They also stated that they did not see as to when the accused entered the house of Promila Sahu and though prior to the incident with Santosh Sahu they heard Promila Sahu saying Mago(an exclamation call), but they thought that it was rat she might have saw in her house. Said Sri Kiron Uria and Smti. Somari Uria, stated that they worked in the tea garden of Promila Sahu. 41. Said Sri Kiron Uria and Smti. Somari Uria, stated that they worked in the tea garden of Promila Sahu. 41. From the records of the case, we found that those three ocular witnesses of the family were made prosecution witnesses in the charge sheet of the case (Exhibit-9) and the Trial Court issued Summons to them as witnesses of the case to their residential address at Dighalia Gaon under Tengakhat Police Station. But the report was furnished that said Sri Kiron Uria died two years back due to heart ailment, his widow Smti. Somari Uria, after the death of her husband got married again and she left the said village with her husband and that Smti. Namita Uria (mother of Kiran Uria) left for her paternal home. In that regard, the Government Village Headman of Village Dighalia Village under Tengakhat Revenue Circle, District Dibrugarh gave a certificate on 26.07.2022 that was placed before the Trial Court and the prosecution could not produce those witnesses before the Trial Court for their examination. It is also seen that statements of those three ocular witnesses were not recorded before the Magistrate under Section 164 CrPC. 42. Section 25 of the Evidence Act stipulates that — confession made to the police officer shall not be proved against a person accused of any offence. 43. Section 26 of the Evidence Act provides that — Confession made by a person while the said person is in the custody of a Police Officer, unless it is made in the immediate presence of a Magistrate, shall not be proved as against such person, where the Magistrate concerned possess such power under the Code of Criminal Procedure, 1882 to act as such. 44. The Investigating Officer of the case PW-8 deposed before the Trial Court that after the accused appellant surrendered before police at Dikom Outpost with the Daoon the night of the incident on 17.06.2008, said I.O. arrested the said accused, recorded his statement in presence of UBC 805 Biren Doley (PW-7), Munna Sahu and Ram Chandra Sahu (PW-2), during which the accused confessed before police that he had killed the deceased Promila and Santosh with the said daothat he had brought to the police station and he seized the said Dao. Munna Sahu was not examined; PW-7 Biren Doley in his evidence did not state anything regarding such confession made by the accused before police and the witness Ram Chandra Sahu (PW-2) also did not depose before the Trial Court anything about such confession made by the accused before police. However, PW-8, Uma Rajkowar, Sub-Inspector of Police and I.O. of the case in his deposition stated the accused at Dikom Outpost before them made the said confession. These clearly reflects that the alleged confession made by the accused appellant at Dikom Outpost was before police. As such said confession made by the accused appellant before police is inadmissible in evidence and the same cannot be proved against the accused appellant against any offence as provided under Section 25 of the Evidence Act. 45. From the said deposition of the PW-8, the Investigating Officer of the case before the Trial Court, noted above, it can be seen that after his surrender before police at Dikom Outpost with the Dao on the night of the incident on 17.06.2008, the concerned I.O. of the case, i.e., PW-8 arrested the accused appellant and then said PW-8 recorded the statement of the accused at Dikom Outpost in presence of UBC 805 Biren Doley (PW-7), Munna Sahu and Ram Chandra Sahu (PW-2) and during such recording of his statement, the said accused made the alleged confession. As stated above, Munna Sahu was not examined; PW-7 Biren Doley in his evidence did not state anything regarding such confession of the accused and the witness Ram Chandra Sahu (PW-2) also did not say anything with regard to such confession. This clearly reflects that the accused appellant, while in police custody at Dikom Outpost after his arrest, made the alleged confession. As such the said alleged confession made by the accused appellant while in police custody at Dikom Outpost, cannot be proved against him against any offence, being inadmissible in evidence as stipulated under Section 26 of the Evidence Act. It is also seen that the statement of the accused was not recorded by a Magistrate under Section 164 CrPC. 46. As such the said alleged confession made by the accused appellant while in police custody at Dikom Outpost, cannot be proved against him against any offence, being inadmissible in evidence as stipulated under Section 26 of the Evidence Act. It is also seen that the statement of the accused was not recorded by a Magistrate under Section 164 CrPC. 46. Though the death of both the deceased are homicidal in nature and ante mortem, caused by blunt force impact with regard to deceased Sontosh Sahu and caused by sharp cutting moderately heavy and horizontal weapon with regard to deceased Pramila Sahu, we found that there was no corroboration that the daoseized from the accused was the weapon of offence that was used in the commission of the crime involved in the case. 47. The confession made by the accused before police, that too while in police custody at Dikom Outpost after his arrest and not before the Magistrate are not admissible in evidence. From the above we found that the prosecution failed to establish the charges made against the accused appellant. 48. As the prosecution failed to prove the guilt of the accused beyond all reasonable doubt, by adducing clinching evidence regarding his involvement in the alleged crime in the case in hand, as noted above, resultantly we have no other option but to allow this appeal, quashing the judgment under challenge. 49. Accordingly, we set aside and quash the impugned judgment and sentence dated 30.01.2016 passed by learned Additional Sessions Judge, Dibrugarh, in Sessions Case No. 82/2010, corresponding to G.R. No. 1112/2008, arising out of Lahowal P.S. Case No. 99/2008. 50. Consequently, the accused/appellant namely, Ramesh Bhumij @ Borka Babu is acquitted of offence under Sections 302/448 IPC in the above noted case and we set him at liberty forthwith and is ordered to be released in the said case, if he is not required in any other case. 51. Registry shall forward a copy of the judgment and order to the Superintendent, Central Jail, Dibrugarh, forthwith, so as to communicate to the appellant. Registry shall return the records of Sessions Case No. 82/2010 to the Court of learned Additional Sessions Judge, Dibrugarh along with a copy of this judgment and order. 52. We appreciate the service rendered by Mr. Zahangir Hussain, learned Amicus Curie for the appellant and Ms. Registry shall return the records of Sessions Case No. 82/2010 to the Court of learned Additional Sessions Judge, Dibrugarh along with a copy of this judgment and order. 52. We appreciate the service rendered by Mr. Zahangir Hussain, learned Amicus Curie for the appellant and Ms. Barnali Bhuyan, learned Additional Public Prosecutor, Assam in adjudicating the matter. We direct the Gauhati High Court Legal Services Authority to pay remuneration of Rs. 7,500/- to Mr. Zahangir Hussain, learned Amicus Curiae for his assistance rendered to the Court on raising a bill by him.