SARKAR MARDI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal arises out of an order of conviction and sentence passed on 25-5-1989 by the learned Sessions Judge, Malda in Sessions Case No. 36/ 86 under Sections 302/34 and 201, I.P.C. The accused appellant was found guilty under Section 304 part 1, I.P.C. and was sentenced to suffer rigorous imprisonment for 7 years. He was further found guilty under Section 201, I.P.C. and was sentenced to suffer rigourous imprisonment for 3 years. Both sentences were to run concurrently.

(2.) The prosecution case in brief is that information was reached to the police station at Malda on 24-9-1984 that a dead body was found floating in a tank at Sayedpur village. Acting on this information the Officer-in-Charge, Malda Police Station along with force visited the village and found a dead body floating in a tank. The dead body was lifted from the tank. It was identified by Ganesh Mardi and others to be of Khanjoy Mardi. Police held the inquest over the dead body and sent the same for post mortem examination. On the basis of a verbal complaint given by Ganesh Mardi which was reduced into writing, police started Malda P.S. Case No. 10 dated 24th Sept. 1984 under Section 302/ 201, I.P.C. Police tried to arrest the accused persons but they were absconding. Subsequently accused Rabi Hembram and Sarkar Mardi were arrested and forwarded to the court respectively on 11-11-1984 and 12-11-1984. Accused Sarkar Mardi made a confessional statement before the court on 13-11-1984 which was recorded by a Judicial Magistrate, 2nd Court, Malda (P.W. 20). After completion of the investigation police submitted charge-sheet against both the accused under Sections 302/201/34, I.P.C. The learned Sub-Divisional Judicial Magistrate committed both the accused to the court of sessions to stand the trial. It transpires that accused Rabi Hembram jumped bail and issue of proclamation and attachment was of no avail. So the case against him was filed and the trial proceeded against accused Sarkar Mardi. He was charged under Sections 302/34 and 201, I.P.C. He pleaded not guilty. In the trial as many as 21 P.Ws. were examined out of which 6 P.Ws. were tendered by the prosecution for cross-examination. On the basis of the evidence on record the learned Sessions Judge has found the accused guilty under Section 304, Part 1, I.P.C. and S. 201, I.P.C. and convicted and sentenced him thereunder as stated above. Hence the appeal.

(3.) The learned counsel for the appellant has urged before us that the accused could not engage an Advocate to defend him at his own cost. So it was the duty of the State to provide all facilities for his defence. This was provided no doubt but not from the very beginning. As such it is contended by the learned counsel that the accused did not get State Legal Aid as provided by Art. 21 of the Constitution from the very beginning i.e. from the stage where he was brought before the learned Magistrate who recorded the confession. His second submission is that the confession is not a voluntary one and so the conviction of the accused solely based on such confession is not sustainable in law. His third contention is that the accused/appellant who belongs to the Santal community and who does not properly know the Bengali language was not helped by an interpreter to be engaged by the State.