P.G. AGARWAL, J.

(1.) Heard Mr. J. M. Choudhury, learned Senior Advocate appearing on behalf of the accused appellant and Mr. B. S. Sinha, learned P.P.

(2.) This appeal is directed against the judgment and order dated 28.3.2001 passed by the Sessions Judge, Morigaon in Sessions Case No. 28/99 (GR 535/97) whereby the accused appellant was convicted u/s 302 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 1000/- in default further imprisonment for six months. Further, the accused appellant was convicted u/s 201 IPC and sentenced to imprisonment for seven years and to pay a fine of Rs. 1000/- in default further imprisonment for six months. Both the sentences were ordered to run concurrently.

(3.) The prosecution case in brief is that on 27.7.97, two young boys, namely- Rana Bora alias Upananda Bora and Ajoy Das who were engaged in the business of selling Pat and Muga fabrics went out from their house to Manaha area and as they did not return on 27.7.97, a missing entry was given and later on the dead bodies of the two young boys were recovered from Rouman till a and thereafter, FIR (Ext. 3) was filed naming as many as four accused persons. After usual investigation, police submitted charge sheet and the learned Sessions Judge, Morigaon framed charges against as many as seven accused persons for commission of offence u/s 302/201 IPC. During trial, prosecution examined as many as 14 witnesses and the accused appellant examined himself as DW 1 as provided u/s 315 CrPC. On conclusion of the trial, the learned Sessions Judge convicted and sentenced the accused appellant as stated above. Hence, the present appeal.

(4.) So far the finding of the trial court that the two young boys Rana Bora alias Upananda Bora and Ajoy Das met with the homicidal death, there is oral and medical evidence on record. As regards the death of Rana Bora, PW 1 Dr. Kalyan Kumar Bora found the following injuries on the person of Rana Bora-

"Wound position and character: 1. Contusion over left side of face of size 2" x 2 " 2. Contusion over left side of ctest of size 3" x 2"."

(5.) As regards the death of Ajoy Das, the doctor found the following injuries on the person of Ajoy Das-

"Wound position and character 1. Incised wounds of Size 2" x 1" x 1" over right arm 2. Incised wounds over right lumber region of size 2" x 1"x ". 3. Haemotoma over occipital re,gion of size 1" x 1."

(6.) In the opinion of the doctor, the death was due to shock and haemorrhage due to ante-mortem injuries and head injury.

(7.) Although the medical evidence was not challenged by way of cross examination and considering the evidence on record, we concur with the finding of the trial court on that count.

(8.) In the present case, there is no direct testimony as regards the killing of the two young boys and there is no eye witness to the occurrence. The accused appellant has been convicted solely on the basis of the evidence regarding recovery of the deac bodies u/s 27 of the Evidence Act. There is evidence of as many as six witnesses namely PW 2, PW 10, PW 11, PW 12, PW.13 and PW 14 regarding recovery of the dead bodies. The witnesses have stated that the accused appellant Joyram Ingty led police to the place where from the two dead bodies were recovered.

(9.) Binit Kr. Saikia (PW 11) who was the Executive Magistrate was present at the time of recovery of the dead bodies at Roumari Beel. The factum of recovery as such is not disputed.

(10.) Learned counsel for the appellart has submitted that this is not a recovery u/s 27 of the evidence Act. It is stated that no statement of the accused was recorded and no such statement was proved by the investigating police officer (PW 12). Learned P.P. merely submitted that no statement u/s 27 of the Evidence Act was proved.

(11.) Mr. J.M. Choudhury, learned senior counsel for the appellant has drawn our attention to a recent decision of this court in the case of Pandav Koya Vs. State of Assam reported in 2006 (1) GLT 267 wherein this court held as follows :

"To attract Section 27 of the Act, the statement of the accused leading to discovery of the fact is required to be recorded and that too in first person singular. Unless the confession or statement through which the accused leads the police or Magistrate to the place where he concealed the dead body is reduced in writing, it is unsafe to believe and reply upon it. The exact statement of the accused person leading to information and discovery is needed to make it admissible in evidence under Section 27 of the. In the instant case, neither the record nor the testimony of the witnesses does reveal the such statement of the appellant who is in police custody confessing the murder of the deceased and information leading to discovery of the incriminating articles used in committing the came was ever recorded either by P. W. 6, the Magistrate or P.W. 8, the I.O. and hence the applicability of Section 27 of thecannot be brought in the case at hand."

(12.) We have noted that the decision in Pandav Koya is in contra with the earlier decision of this court in the case of Alphus Munda and Ors. Vs. State of Assam, reported in 1996 (3) GLT 568 wherein this court held as follows :

"There is no contemporaneously prepared record of the information. 1 am aware that Section 27 of the Evidence Act does not provide for writing the information given by the accused, it can be verbal and can also be proved against the accused but even that verbal information given by the accused has not been stared by the I.O. in his evidence must less proved in accordance with the strict requirement of Section 27 of the Evidence Act. The submission made must therefore be rejected and is accordingly rejected."

(13.) We find that the decision in Alphus Munda was given by the Division Bench and the said decision was not brought to the notice of the subsequent Division Bench in Pandav Koya (supra) and thus, we have two contra decisions by the Division Bench of coordinate jurisdiction. The matter was required to be resolved by the bigger Bench in a proper case.

(14.) So far the present case is concerned, we propose to dispose of the matter on the basis of the materials available on record.

(15.) As stated above, there is no documentary evidence as regards the recovery u/s 27 of the Evidence Act, i.e., there is no written statement of the accused. So far the investigating police officer (PW12) is concerned, the statement of the I.O. is that the accused Joyram Ingty told him that the dead bodies were buried at the Rouman Beel and he will be able to show them. The link is missing. There is no statement by the accused as to how he got that information or knowledge.

(16.) The statement of the accused as regards the recovery of the dead body as deposed by him reads as follows:

"About four years ago Police arrested and took: me to Jagiroad P.S. they beat me up and accused me of killing men and keeping there buried. They asked me to show the dead bodies. When I said that I had not killed any one and had not buried any dead body, the police beat me up once again. One night seven days after my arrest, the police get me dressed up in police uniform and having blindfolded me, took me towards Roumari Beel, returned from there and kept me at Morigaon P.S. the next day they again blindfolded and took me to a direction. Upon arrived, they united my eyes and recognized that place at Roumari Beel. The police had 10 or 12 spots dug there. At one spot police had found two dead bodies. I did not show the police any spot. I did not know whose dead bodies were those and who had killed and buried them."

(17.) The fact that this witness Joyram was in police uniform at the time: of recovery of the dead bodies has been deposed to by PW 2 Mrinal Kumar Saikia.

(18.) In the case of recovery of article or thing at the instance of a person, there can be three basis- (1) Either the person has kept the thing himself. (2) That he had seen others keeping the thing or article. (3) He has been informed or heard about the same.

(19.) In order to fasten criminal liability, the prosecution must show that the recovery was under the first instance, ii.e. the accused was involved in keeping of the article or thing and he has knowledgp about the same. Supporting the decision in Pulukuri Kottaya Vs. Emperor, AIR 1947 PC 67 [LQ/PC/1947/6] , State of Rajasthan Vs. Bhup Singh (1997) 10 SCC 675 [LQ/SC/1997/37] and the decision in Abter Singh Vs. State of Rajasthan, AIR 2004 SC 2865, the Apex Court has summed up the above proposition of law u/s 27 of the Evidence Act in the following words : "The various requirements of the: Section can be summed up as follows : (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been iin consequence of some information received from the accused and not by accuseds own act. (4) The persons giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."

(20.) In the present case, we find that except the recovery of the dead bodies, there is absolutely no other evidence connecting the accused with the alleged crime and in Pulukuri Kottaya (supra), the Apex Court observed as follows:

"It can seldom happen that information leading to the discovery of a fact forms the foundation of the prosecution case. It is one link in the chain of proof and the other links must be forged in manner allowed by law."

(21.) In the present case, we do not find any other link. The trial court held that the statement made by the accused admitting his guilt in presence of police had the effect of corroboration. The law is well settled by the Apex Court in the case of Nagechia Vs. State of Bihar, AIR 1966 SC 779 wherein it was held that confession part will be barred and will not be admissible in evidence u/s 25 of the Evidence Act.

(22.) In view of the above, we hold that the prosecution has not been able to bring home the charge as required under the law and the accused appellant is entitled to acquittal.

(23.) In the result, the appeal is allowed The order of conviction and sentence is set aside. The accused appellant is acquitted and he is set at liberty and he shall be released from the jail custody forthwith, if not wanted in connection with any other case.

(24.) Send down the records.