JUDGEMENT : Heard Mr. K. Sarma, learned counsel for the appellant. Also heard Mr. P. Borthakur, learned Addl. Public Prosecutor, appearing for the State respondent. 2. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) is filed by the accused/ appellant, against the judgment and order, dated 26.07.2012, passed in Sessions Case No. 80(A)/2007 by the learned Addl. Sessions Judge, F.T.C., Bongaigaon, convicting the accused/ appellant under Section 304 Part-II of the IPC and sentencing him to suffer rigorous imprisonment for 7 (seven) years and also to pay fine of Rs. 1,000/-, in default to undergo simple imprisonment for 1 (one) month. 3. The prosecution case, in brief, is that on 01.08.2006 at about 1:20 PM, the accused persons, namely, Aghon Ray and Bihu Ram Ray committed murder of Charu Bala Ray and Aswini Kumar Ray in their courtyard by using sharp cutting weapon. A written ejaharon the same day was filed at North Salmara Out Post and accordingly, G.D. Entry No. 8, dated 01.08.2006, was made and on being forwarded to the Officer-in-Charge, Abhayapuri P.S. registered the aforementioned case and launched investigation. 4. Before launching the investigation, the accused Bihu Ram Ray surrendered before the police. Police visited the place of occurrence, drew up a sketch map thereof, conducted the inquest on the dead bodies, prepared an inquest report, sent the deceased persons for post-mortem examination, seized the weapon of assault, examined witnesses and arrested both the FIR named accused persons. 5. Thereafter, on completion of investigation, a charge-sheet was laid against both the accused persons under Section 302 read with Section 34 of the IPC. Accordingly, the learned Addl. Sessions Judge, Bongaigaon, framed charges against both of them. The accused persons pleaded not guilty and claimed to be tried. On completion of trial, the accused appellant was held guilty under Section 304 Part-II of the IPC sentenced him as stated above whereas Aghon Ray was acquitted of the charge and set him at liberty. 6. Mr. K. Sarma, learned counsel appearing for the accused/appellant, submitted that the learned trial Court, without appreciating the evidence from proper perspective, has illegally convicted the appellant whereas based on the same set of evidence acquitted his brother/co-accused Aghon Ray. Mr. 6. Mr. K. Sarma, learned counsel appearing for the accused/appellant, submitted that the learned trial Court, without appreciating the evidence from proper perspective, has illegally convicted the appellant whereas based on the same set of evidence acquitted his brother/co-accused Aghon Ray. Mr. Sarma further submitted that there is apparently no direct or circumstantial legal evidence to hold the appellant guilty of the offence inasmuch as the alleged extra-judicial confession made before the police is inadmissible in law and alleged seizure of the weapon of offence one ‘khukuri’ without any evidence showing its use by the appellant is also not tenable in law. 7. Per contra, Mr. P. Borthakur, learned Addl. Public Prosecutor, submitted that the learned Trial Court, in its impugned judgment and order has rendered cogent reasons based on appreciation of evidence from proper perspective and, as such, no interference in appeal is called for. 8. It may be pointed out that Section 299 of the IPC defines culpable homicide and it consists of the doing of an act – (a) with the intention of causing death; (b) with the intention of causing such bodily injury as is likely to cause death; (c) with the knowledge that the act is likely to cause death. ‘Intent’ and ‘knowledge’ as the ingredients of Section 299 of the IPC postulate the existence of a positive mental attitude and this mental condition is the special mensrea necessary for the offence. Clause (b) of Section 299 of the IPC corresponds with clause ‘secondly’ and ‘thirdly’ of Section 300 of the IPC, which defines what is ‘murder’. Therefore, the relevant ingredient of the state of mind of the accused while committing the offence is to be gathered from available evidence and surrounding circumstances. 9. In view of the above factual requirements, let us appreciate the evidence on record. 10. P.W. 1, Dr. M. N. Saikia, the autopsy surgeon, who performed the postmortem examination on the dead bodies of Aswini Kr. Ray and Charu Bala Ray, on 01.08.2006, held the common opinion that their cause of death was due to haemorrhage and shock as a result of injuries sustained by them vide the postmortem reports, Exts. 1 and 2 respectively. The defence declined to cross-examine the witness and, as such, his evidence in examination-in-chief has remained undisputed. Ray and Charu Bala Ray, on 01.08.2006, held the common opinion that their cause of death was due to haemorrhage and shock as a result of injuries sustained by them vide the postmortem reports, Exts. 1 and 2 respectively. The defence declined to cross-examine the witness and, as such, his evidence in examination-in-chief has remained undisputed. In addition to his opinion, on perusal of the sketch map of the place of occurrence vide Ext.12 and the oral testimony of the prosecution witnesses, this Court has no hesitation to hold the view that the common cause of death of the said two elderly husband and wife was certainly the result of culpable homicidal act. 11. The next pertinent question is who caused the aforesaid fatal wounds on the persons of the deceased and what cause prompted to kill them. It may be stated that there was no eye witness to the alleged occurrence and, therefore, in this context, the circumstantial evidence, if any, has to be scrutinised. It may pertinently be pointed out that even a strong suspicion cannot take the place of proof to connect the accused with the crime in question. 12. In Sarad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622 , the five golden principles of circumstantial evidence on the basis of which conviction of the accused could be based were enumerated as follows:- 13. In the case in hand, P.W.2, Umesh Chandra Ray, who hails from the same locality of the deceased persons, stated that at the relevant time of the occurrence, he was at his home and when he stepped out hearing hue and cry outside, he heard from the neighbours that ‘someone’ killed the deceased persons. The evidence of P.W.3, Debogiri Ray, a co-villager, is also similar to the evidence of P.W.2, who stated that his father (Bolendra Chandra Ray) told him that ‘somebody’ killed Aswini and his wife Charubala. He is declared as a hostile witness. Likewise, P.W. 4, Monoj Kumar Sarma, a local resident, stated that he heard from one pedestrian that his neighbour Aswini was murdered and thereupon, he rushed to the deceased persons’ house, where he came to know from the police that the appellant Bihuram killed Aswini and his wife. He is declared as a hostile witness. Likewise, P.W. 4, Monoj Kumar Sarma, a local resident, stated that he heard from one pedestrian that his neighbour Aswini was murdered and thereupon, he rushed to the deceased persons’ house, where he came to know from the police that the appellant Bihuram killed Aswini and his wife. P.W.5, Padma Lochan Ray, another neighbour, stated that hearing hue and cry, he went to the house of deceased persons and came to know from the people who gathered there that the appellant killed the deceased Aswini and his wife. 14. The scribe of the F.I.R. vide Ext. 7, P.W.6 Lankeswar Ray stated that he wrote the FIR as per dictation of the in-Charge, North Salmara Police Out-post and he accompanied the informant (P.W.13), the sister-in-law of the appellant to the police station. P.W.7, Jayanta Kr. Ray, another co-villager, also stated to have come to know from one of his neighbours and the police that Bihuram had killed Aswini and his wife. P.W.8, Dilip Kr. Sarkar, another neighbour, stated to have heard that the appellant had killed Aswini and his wife. P.W.10, Sarat Chandra Ray, the son of the deceased persons and his wife P.W.11 Nilima Ray, stated that they did not witness who killed Aswini and his wife but heard later on from the co-villagers and police that the appellant had killed them. P.W.13, Bichitra Ray, the informant and daughter of the deceased persons, stated that on the day of occurrence, she was at her maternal aunt’s house at Sonakhuli, Bongaigaon and on arrival at home, she came to know from P.W.7 Jayanta Ray that her brother (appellant herein) caused to death of their parents inflicting cut injuries by means of a “khukuri”. 15. Thus, it is seen that none of the prosecution witnesses had witnessed the alleged occurrence and they relied on what the other ‘person(s)’ and the investigating police team disclosed. Their evidence being based on what has been reported by others, rather than what they had observed or experienced, is certainly intrinsically weak piece of evidence, which cannot be relied on under Section 60 of the Evidence Act to warrant an inference holding the accused guilty of the offence. 16. Their evidence being based on what has been reported by others, rather than what they had observed or experienced, is certainly intrinsically weak piece of evidence, which cannot be relied on under Section 60 of the Evidence Act to warrant an inference holding the accused guilty of the offence. 16. The evidence of P.W.9, Napur Deka, a Police constable, P.W.14 Azizur Rahman, an Wireless Operator and P.W.15, Mathura Barkakati, the then In-charge of Salmara O.P., reveal that the appellant on 01.08.2006 at around 2.15 PM, with a ‘khukuri’ in hand, appeared at the said Out Post and made an extrajudicial confession that he came after inflicting cut wounds to his parents. 17. It may be pointed out that Section 25 of the Evidence Act provides that such extra-judicial confession made to a Police Officer is inadmissible and cannot be proved against the accused appellant. As such, a confession made to a police officer under any circumstances being completely excluded from the purview of evidence against the accused. Consequently, the evidence of P.W.12, Ranu Borah Handique, Senior Scientist of F.S.L., Assam, who examined the seized ‘Khukuri’ allegedly produced by the appellant before the police and found giving positive test for human blood of Group ‘A’ also losses its evidentiary significance in the case. 18. Considered thus, this Court is of the opinion that in the absence of any cogent and convincing direct or circumstantial evidence, the accused appellant cannot legally be held guilty of the offence under Section 304, Part II of the IPC beyond all reasonable doubt. 19. Accordingly, the appeal stands allowed and the impugned judgment and order is set aside. The accused appellant is set at liberty. (1) The circumstances from which the conclusion of guilt is to be drawn should be fully 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. (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. 13. In the case in hand, P.W.2, Umesh Chandra Ray, who hails from the same locality of the deceased persons, stated that at the relevant time of the occurrence, he was at his home and when he stepped out hearing hue and cry outside, he heard from the neighbours that ‘someone’ killed the deceased persons. The evidence of P.W.3, Debogiri Ray, a co-villager, is also similar to the evidence of P.W.2, who stated that his father (Bolendra Chandra Ray) told him that ‘somebody’ killed Aswini and his wife Charubala. He is declared as a hostile witness. Likewise, P.W. 4, Monoj Kumar Sarma, a local resident, stated that he heard from one pedestrian that his neighbour Aswini was murdered and thereupon, he rushed to the deceased persons’ house, where he came to know from the police that the appellant Bihuram killed Aswini and his wife. P.W.5, Padma Lochan Ray, another neighbour, stated that hearing hue and cry, he went to the house of deceased persons and came to know from the people who gathered there that the appellant killed the deceased Aswini and his wife. 14. The scribe of the F.I.R. vide Ext. 7, P.W.6 Lankeswar Ray stated that he wrote the FIR as per dictation of the in-Charge, North Salmara Police Out-post and he accompanied the informant (P.W.13), the sister-in-law of the appellant to the police station. P.W.7, Jayanta Kr. Ray, another co-villager, also stated to have come to know from one of his neighbours and the police that Bihuram had killed Aswini and his wife. P.W.8, Dilip Kr. Sarkar, another neighbour, stated to have heard that the appellant had killed Aswini and his wife. P.W.7, Jayanta Kr. Ray, another co-villager, also stated to have come to know from one of his neighbours and the police that Bihuram had killed Aswini and his wife. P.W.8, Dilip Kr. Sarkar, another neighbour, stated to have heard that the appellant had killed Aswini and his wife. P.W.10, Sarat Chandra Ray, the son of the deceased persons and his wife P.W.11 Nilima Ray, stated that they did not witness who killed Aswini and his wife but heard later on from the co-villagers and police that the appellant had killed them. P.W.13, Bichitra Ray, the informant and daughter of the deceased persons, stated that on the day of occurrence, she was at her maternal aunt’s house at Sonakhuli, Bongaigaon and on arrival at home, she came to know from P.W.7 Jayanta Ray that her brother (appellant herein) caused to death of their parents inflicting cut injuries by means of a “khukuri”. 15. Thus, it is seen that none of the prosecution witnesses had witnessed the alleged occurrence and they relied on what the other ‘person(s)’ and the investigating police team disclosed. Their evidence being based on what has been reported by others, rather than what they had observed or experienced, is certainly intrinsically weak piece of evidence, which cannot be relied on under Section 60 of the Evidence Act to warrant an inference holding the accused guilty of the offence. 16. The evidence of P.W.9, Napur Deka, a Police constable, P.W.14 Azizur Rahman, an Wireless Operator and P.W.15, Mathura Barkakati, the then Incharge of Salmara O.P., reveal that the appellant on 01.08.2006 at around 2.15 PM, with a ‘khukuri’ in hand, appeared at the said Out Post and made an extrajudicial confession that he came after inflicting cut wounds to his parents. 17. It may be pointed out that Section 25 of the Evidence Act provides that such extra-judicial confession made to a Police Officer is inadmissible and cannot be proved against the accused appellant. As such, a confession made to a police officer under any circumstances being completely excluded from the purview of evidence against the accused. Consequently, the evidence of P.W.12, Ranu Borah Handique, Senior Scientist of F.S.L., Assam, who examined the seized ‘Khukuri’ allegedly produced by the appellant before the police and found giving positive test for human blood of Group ‘A’ also losses its evidentiary significance in the case. 18. Consequently, the evidence of P.W.12, Ranu Borah Handique, Senior Scientist of F.S.L., Assam, who examined the seized ‘Khukuri’ allegedly produced by the appellant before the police and found giving positive test for human blood of Group ‘A’ also losses its evidentiary significance in the case. 18. Considered thus, this Court is of the opinion that in the absence of any cogent and convincing direct or circumstantial evidence, the accused appellant cannot legally be held guilty of the offence under Section 304, Part II of the IPC beyond all reasonable doubt. 19. Accordingly, the appeal stands allowed and the impugned judgment and order is set aside. The accused appellant is set at liberty. Return the LCR. Appeal stands disposed of.