Jiten Engti And 3 Ors vs The State Of Assam And Anr

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GAHC010046282018

2026:GAU-AS:7211
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./74/2018
JITEN ENGTI AND 3 ORS
R/O VILL. PAKLANGSO, P.O. BOKAJAN, DIST. KARBI ANGLONG, ASSAM.
2: CHANDRA RONGPHAR
R/O VILL. PAKLANGSO
P.O. BOKAJAN
DIST. KARBI ANGLONG
ASSAM.
3: JAYSING ENGTI
R/O VILL. PAKLANGSO
P.O. BOKAJAN
DIST. KARBI ANGLONG
ASSAM.
4: BIDYASING TISSO
R/O VILL. PAKLANGSO
P.O. BOKAJAN
DIST. KARBI ANGLONG
ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY PP. ASSAM.
2:LONGKI TAMUNG
R/O VILL. PAKLANGCHO
P.S. BOKAJAN
DIST. KARBI ANGLON
Advocate for the appellant Nos.1 & 4 : Mr. T. Kalita, Adv.
Advocate for the appellant Nos.2 & 3 : Mr. G. Rahul, Adv.

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Advocate for the respondents : Ms. B. Bhuyan, Sr. Adv. & Addl. P.P., Assam,


:::BEFORE:::
HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA

Date of hearing : 25/05/2026
Date of Judgment : 25/05/2026

JUDGMENT & ORDER (ORAL)

(M. Zothankhuma, J)
1. Heard Mr. G. Rahul, learned counsel for the appellant nos. 2 & 3, i.e.,
Chandra Rongphar and Jaysing Engti and Mr. T. Kalita, learned counsel for the
appellant nos.1 & 4, i.e., Jiten Engti and Bidyasing Tisso. Also heard Ms. B.
Bhuyan, learned Senior Counsel and Additional Public Prosecutor, Assam
assisted by Ms. R. Das, learned counsel.
2. The appellants have put to challenge the impugned Judgment dated
19/01/2018, passed by the learned Sessions Judge, Karbi Anglong at Diphu, in
Sessions Case No.9/1993, by which the appellant Nos.2, 3 and 4, i.e., Chandra
Rongphar, Jaysing Engti and Bidyasing Tisso respectively have been convicted
under Sections 302/34 IPC, on the charge of having killed one person.
3. The appellants’ counsel submits that initially the 4 appellants had been

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convicted. However, as the appellant no. 1 was found to be a juvenile, he was
sent to the Juvenile Justice Board during the pendency of the present appeal,
vide order dated 11/12/2019 passed in I.A.(Crl.) No.377/2019.
4. The appellants’ counsel submits that the only reason for convicting the
appellants under Sections 302/34 IPC by the learned Trial Court, is on the basis
of the confessional statements made under Section 164 Cr.P.C by the appellant
nos.1 (juvenile), 2 and 3. He also submits that the conviction of the appellant
no.4 had also been made only on the basis of the confessional statements. He
submits that while the appellant no.4 did not make any confessional statement,
appellant no.4 has been convicted on the basis of the confessional statements
made by the appellants nos.2 and 3, inasmuch as, he was named as a co-
perpetrator of the crime. The appellants counsel submits that the confessional
statements made by the appellants under Section 164 Cr.PC, cannot be said to
have been properly recorded in terms of the judgment of the Hon’ble Supreme
Court in the case of Rabindra Kumar Pal Alias Dara Singh Vs. Republic of
India, reported in (2011) 2 SCC 490 and the decision of a Coordinate Bench
of this Court in the case of Khagen Buragohain Vs. State of Assam,
reported in (2014) 4 GLR 277 . As such, the confessional statements made by
the appellants could not have been used for convicting the appellant nos. 2 to 4
in this case. He accordingly submits that the appellants should be acquitted of
the charges framed against them and they should be released from judicial
custody immediately.
5. Ms. B. Bhuyan, the learned Addl. PP, on the other hand, submits that
all the procedures required for recording the statement of an accused under

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Section 164 Cr.PC had been followed by the Magistrate in terms of the judgment
of the Supreme Court in the case of Rabindra Kumar Pal (supra), except for
one condition, i.e, a police personnel was present in the courtroom at the time
of recording the confessional statements of the appellants. He also submits that
the extra-judicial confession made by the appellants before PWs.1 and 2, is to
the effect that they confessed to having killed the deceased. Thus, there was no
infirmity in the conviction of the appellants on the basis of the extra-judicial
confessions and the confessional statements made by the appellant nos.1, 2
and 3.
6. We have heard the learned counsels for the parties.
7. The learned Trial Court has convicted the appellants under Sections
302/34 IPC solely on the basis of the confessional statements made by the
appellant nos.1, 2 and 3 under Section 164 Cr.PC. Though the appellants have
made confessional statements under Section 164 Cr.PC, we find that the
recording Magistrate has clearly recorded the fact that the appellants were
brought by Sub-Inspector of Police Salil Ahmed and that the said police officer
was present at the time the confessional statements of the appellants were
recorded.
8. The above being said, we have also noticed that the learned recording
Magistrate, prior to recording the confessional statements of the appellant nos.
2 and 3 under Section 164 Cr.PC, had given them reflection time and had placed
them in charge of an armed police constable. The placing of the appellants with
the police constable during the time given for reflection by the recording

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Magistrate, will only be applicable to the appellant nos.2 and 3 and not to the
appellant no.1, who has been placed in charge of the peon of the recording
Magistrate.
9. It is an admitted fact that besides the confessional statements made
by the appellant nos.1, 2 and 3 and the alleged extra-judicial confessions made
by the appellants to the PW-1 and PW-2, there is no other evidence, direct or
otherwise against the appellants, pointing to the guilt of the appellants in the
killing of the deceased person.
10. The question that has to be decided is whether the confessional
statements made under Section 164 Cr.PC have been recorded, after following
all the safeguards required to be followed by the recording Magistrate.
11. In the case of Rabindra Kumar Pal (supra), the Hon’ble Supreme
Court has given a list of 11 principles to be followed, with regard to the
recording of a confessional statement under Section 164 Cr.PC. The Supreme
Court has further held that the provision of Section 164 Cr.PC must be complied
with not only in form, but in essence. Principle no.(ix) stated by the Hon’ble
Supreme Court with regard to recording of a confessional statement under
Section 164 Cr.PC, states that at the time of recording the statement of the
accused, no police or police official shall be present in the open Court. Para 64
of the judgment of the Supreme Court in the case of Rabindra Kumar Pal
(supra) is reproduced hereinbelow as follows:-
“ 64. The following principles emerge with regard to Section 164 CrPC:
(i) The provisions of Section 164 CrPC must be complied with not only in

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form, but in essence.
(ii) Before proceeding to record the confessional statement, a searching
enquiry must be made from the accused as to the custody from which he
was produced and the treatment he had been receiving in such custody in
order to ensure that there is no scope for doubt of any sort of extraneous
influence proceeding from a source interested in the prosecution.
(iii) A Magistrate should ask the accused as to why he wants to make a
statement which surely shall go against his interest in the trial.
(iv) The maker should be granted sufficient time for reflection.
(v) He should be assured of protection from any sort of apprehended
torture or pressure from the police in case he declines to make a
confessional statement.
(vi) A judicial confession not given voluntarily is unreliable, more so, when
such a confession is retracted, the conviction cannot be based on such
retracted judicial confession.
(vii) Non-compliance with Section 164 CrPC goes to the root of the
Magistrate's jurisdiction to record the confession and renders the
confession unworthy of credence.
(viii) During the time of reflection, the accused should be completely out
of police influence. The judicial officer, who is entrusted with the duty of
recording confession, must apply his judicial mind to ascertain and satisfy
his conscience that the statement of the accused is not on account of any
extraneous influence on him.
(ix) At the time of recording the statement of the accused, no police or
police official shall be present in the open court.
(x) Confession of a co-accused is a weak type of evidence.
(xi) Usually the court requires some corroboration from the confessional
statement before convicting the accused person on such a statement.”
12. In the present case, the confessional statements of the appellants have
been made in the presence of a police officer, who was present in the room
where the confession was being recorded. The above is accordingly hit by
principle no.(ix) framed by the Hon’ble Supreme Court. As such, the

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confessional statements cannot be said to have been properly recorded and as
such, they are inadmissible as evidence. The same, thus, cannot be used as
evidence to convict the appellants in the absence of any other evidence.
Accordingly, the conviction of the appellants on the basis of the defective
confessional statements made in violation of the principles provided in
Rabindra Kumar Pal (supra) is liable to be set aside.
13. The above being said, the further question that has to be decided is
whether the appellants had made extra-judicial confessions to PWs-1 and 2,
who are the sons of the deceased.
14. In the case of Kushal Toppo Vs. State of Jharkhand, reported in
(2019) 13 SCC 676, the Supreme Court has held that an extra-judicial
confession is a weak piece of evidence and an accused cannot be convicted on
it’s basis, in the absence of other reliable evidence establishing the guilt of the
accused. An extra-judicial confession cannot be treated as a substantive piece of
evidence against the co-accused, holding that the proper judicial approach is to
use it only to strengthen the opinion formed by the Court after perusing other
evidence placed on record. An extra-judicial confession should not be relied
upon in the absence of corroborative evidence. In the case of State of Punjab
Vs. Kewal Krishan, reported in (2023) 13 SCC 695, the Supreme Court has
held that an extra-judicial confession is a very weak piece of evidence and a
conviction is not ordinarily to be recorded solely on it’s basis. In the case of
Nikhil Chandra Mondal Vs. State of West Bengal, reported in (2023) 6
SCC 605, the Supreme Court has held that where an extra-judicial confession is
surrounded by suspicious circumstances, it’s credibility becomes doubtful and it
loses its importance. It is well-settled that it is a rule of caution that a Court

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would generally look for independent reliable corroboration, before placing any
reliance upon an extra-judicial confession. It also held that there is no doubt
that conviction can be based on an extra-judicial confession, but in the very
nature of things, it is a weak piece of evidence.
15. In his evidence, PW-1 has stated as follows:-
“On S/A
I know the accused persons. They may same area.The deceased is my
father faitful day. Then Kathar had called my father to a meeting at his
place as priest. As he did not return from the meeting, he went to search
for him. No found him lying dead in a nearby field and had injury on both
eye & mouth. Then he informed Bokajan P.S. and filed ejahar. Ext 1 is
ejahar& 1 (2) is my signature. Police came & held inquest due the dead
body. Police tok charge of body & returned after completing formalities.
After 1 1/2 months accd persons came & confessed that they had killed
my father. Police examined me. Accd persons were Jealous of my father
as he was functioning as priest of the local community.
Accd had confessed at an house in morning Accd confessed in presence of
KitanToksi, PutaTissoo, Man Kathar, Key Engti& my brother and my wives.
It is not a fact that accd persons did not confess of their crime before us.”
16. The evidence of PW-2 is reproduced hereinbelow as follows:-
“On S/A
I know the accused persons. The deceased was my father. In Dec, 1989
Man Kathar came to the house of my father to call him to the meeting. My
father went to the meeting in the night alongwith Man Kathar to his place.
He did not came back to house. When we went to search for him, we
found him lying dead in a nearby field. His both eyes & mouth were
injured. We brought the body home and filed an ejahar in the Bokajan PS.
Ext-1 is the ejahar and 1 (1) is my signature. PahiTimung, my brother,
was also with me and he also put his signature an ejahar. Police came and
held inquest one dead body. Ext-2 is inquest report and 2 (1) is my

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signature. Police take charge of dead body and returned after completing
formalities. I came to know that accd persons killed my father out of
Jealously as he functioned as a priest to the community in our village. The
accd persons came to my house and confessed to have killed my father.

Distance between my father's house and the venue of meeting is 1
½ illegible I did not witness the killing. At the time of conquest an apart
from my wife my brother Pahi Timung and his wife were also present.
Confession was made after 1 ½ months. It is not a fact that accd persons
did not confess of this crime to me.”
17. As can be seen from the evidence of PWs-1 & 2, the extra-judicial
confessions had allegedly been made by the appellants in the presence of one
Kitan Toksi, Puta Tissoo, PW-1, PW-5, PW-8 and the wives of PW-1 and PW-2.
However, Kitan Toksi, Puta Tissoo and the wives of PW-1 and PW-2 have not
been made Prosecution witnesses and have not given any evidence, to the
effect that any confessional statement had been made by the appellants.
Similarly, PW-5 and PW-8 have also not corroborated the testimonies of PW-1
and PW-2, to the effect that extra-judicial confession had been made by the
appellants, confessing that they had killed the deceased. The learned Trial Court
had also observed that PW-1 and PW-2 had not told the police that the
appellants had come to their house and confessed that they had killed the
deceased. The learned Trial Court, thereafter, was of the view that there was a
doubt as to whether any extra-judicial confession had been made by appellants.
18. On considering the above facts, we also do not find any reason to
deviate from the observations and findings of the learned Trial Court, with
regard to the alleged extra-judicial confessions made by the appellants, as there
is no corroboration of the evidence of PW-1 and PW-2, who are the sons of the

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deceased.
19. In the case of Khagen Buragohain (supra) , a Coordinate Bench of
this Court had held that it is settled law that a statement cannot be said to be
properly recorded under Section 164 of the Code of Criminal Procedure, if a
police officer is present or allowed to be present at the time when the
confession is recorded.
20. In the case of State of Maharashtra Vs. Damu, reported in (2000)
6 SCC 269, the Supreme Court held that even otherwise, a Magistrate who
proposed to record the confession has to ensure that the confession is free from
police interference.
21. On considering the fact that the alleged confessions of the appellants
had been made in the presence of a police officer, in the room where the
confessions were being recorded, we hold that the said confessions cannot be
said to be voluntary and as such, cannot be relied as substantive admissible
evidence, for coming to a verdict of guilt against the appellants. Consequently,
we hold that the conviction of the appellants under Sections 302/34 IPC, only
on the basis of the defective confessional statements, which has not been
recorded by following all the principles required to be followed under Section
164 Cr.PC, cannot be allowed to be the basis for convicting the appellants,
without there being any other attending evidence which is absent in the present
case.
22. With regard to the conviction of the appellant No.4, which has been

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made on the basis of the confessional statement made by the appellant nos.2 &
3, we are of the view that as the defective confessional statements could not be
the basis for convicting the appellant nos.2 & 3, there is no question of using
the said confessional statements for convicting the appellant No.4. In this
regard, it would be profitable to refer to the judgment of the Coordinate Bench
of this Court in the case of Bogai Bouri Vs. State of Assam & Ors., reported
in 2017 (2) GLT 1, where it has been held that the provision of Section 30 of
the Evidence Act provides that when more persons than one are being jointly
tried for the same offence and a confession made by one such person implicates
himself and another, the Court may take into consideration such confession as
against any such other person, only after the Court first finds that a conviction
can be based on the basis of the evidence against the other person. When the
Trial Court is satisfied that the evidence can be relied upon for proving the
Prosecution case, then only can the confession made by the co-accused
implicating the accused, can be used to lend assurance to the other evidence
against the co-accused, who is implicated in the said confessional statement. In
this respect, the Coordinate Bench has relied upon the judgment of a
Constitution Bench of the Supreme Court in the case of Haricharan Kurmi Vs.
State of Bihar, reported in AIR 1964 SC 1184, where it has been held that
in a criminal case where the Prosecution relies upon the confession of one
accused person against another accused person, the proper approach to be
adopted is to first consider the other evidence against such an accused person.
If the said evidence appears to be satisfactory and the Court is inclined to hold
that the said evidence may sustain the charge framed against the said accused
person, the Court can then turn to the confession, to assure itself that the
conclusion which it is inclined to draw from the other evidence is right.

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23. In view of the decision of the coordinate bench in Bogai Bouri
(Supra) and the Supreme Court in the case of Haricharan Kurmi (Supra) ,
the conviction of the appellants under Sections 302/34 IPC is not sustainable, as
there is no other evidence besides the confessional statements of the appellant
nos.2 and 3, implicating the appellant no.4 as one of the perpetrators of the
crime.
24. For all the reasons stated above, we find the conviction of the
appellants under Sections 302/34 IPC to be unsustainable. We accordingly set
aside the impugned Judgment dated 19/01/2018, convicting the appellants
under Sections 302/34 IPC. Consequently, the respondent No.1 shall ensure that
the appellants are released from judicial custody immediately, provided they are
not wanted in any other case.
25. The appeal is accordingly allowed.
26. Send back the TCR.

JUDGE JUDGE
Comparing Assistant