JAGATESWARI BARMANI Vs. THE STATE

JUDGEMENT

(1.) This appeal is directed against the judgment dated 17.12.82 passed by the learned Sessions Judge, Cooch Behar in Sessions Case No. 56 of 1981 whereby Jagateswari Barmani accused/appellant was convicted of offences under sections 302/34, I.P.C. and 302/120B, I.P.C. and sentenced to R.I. for life for the first mentioned offence. No separate sentence was passed for the offence under section 302/120B, I.P.C. The prosecution case as presented before the learned Sessions Judge stood as follows:-

(2.) The deceased Haleswar Barman an Octogenerian used to live at Andaram Fulbari, P.S. Tufanganj. That old man married asmany as four times. His first two wives died during his lifetime and children born out of these wives also died. Then he married one widow out of which wedlock two daughters Hameswari and Bidhubala were born. Whereas Hameswari was married to Amrit Bepari (P.W. 11) Bidhubala was married to the other accused Naresh. This third wife also died. Thereafter Haleswar married the accused Jagateswari at his age of 79 years. Haleswar was a well-to-do man owning asmany as 100 bighas of land. There were litigations in between Haleswar and the accused son-in-law Naresh. Being dis-satisfied Haleswar determined to sell away all his landed properties. He expressed his intention by displaying a signboard (ext. II) which was hung up in a remarkable place near his house. One day the accused Naresh met the other accused Jagateswari. Naresh made it clear to Jagateswari that neither of them would be able to get any piece of properties if the properties were sold away by Haleswar. Naresh therefore proposed that Haleswar should be murdered. It was also proposed that on the 5th Oct. '78 Jagateswari was to keep the entrance door of Haleswar's house open. Jagateswari in furtherance of such conspiracy kept open the entrance door at about 10.00 p.m. on the said night which was a Thursday. Naresh arrived at the house along with two other accused Pedra Rava and Khagen Rava. Thereafter Khagen held the hands of Haleswar. The legs of Haleswar were caught hold of by Naresh. The accused Pedra Rava then pressed hard the throat of Haleswar and strangulated Haleswar to death. All the persons thereafter dropped Haleswar down on the floor from his cot. Jagateswari was advised by Naresh to shout and cry about half an hour after their departure from that house and to report to the neighbours who might arrive, that Haleswar while caughing vigorously fell down from his cot and died. After the accused persons namely Naresh, Pedra Rava and Khagen Rava made good their escape that night, Jagateswari raised a hue and cry. Jagateswari and her husband used to live in the eastern most room of the house. The northern room of the house used to be occupied by Netai a disciple of Haleswar (P.W. 3). In the residual western room or the Haleswar's house one Narad (P.W. 4) used to live with his wife (P.W. 10) Anamoyee. All these inmates of the house of Haleswar entered into Haleswar's room that night by hearing cries of the appellant Jagateswari. As taught already by the other accused persons, Jagateswari gave out that the old man while caughing vigorously fell down from his cot and died instantaneously. The dead body of Haleswar was not burnt that night because of the fact that other relations of Haleswar had yet to be informed. Next morning some of the relations of Haleswar including Haleswar's brother Naleswar (P.W. 2) arrived at the house of Haleswar. Amrit Bepari (P.W. 11) who was the first son-in-law of Haleswar also visited the house towards dawn. Haleswar's dead body was then taken out side the room and was placed in the verandah. Haleswar's relations and his paramen found to their surprise that there were black bleeding marks in the throat. The throat was also found to be swelling. The matter was therefore informed to the police. Accordingly Naleswar (P W. 2) along with these two son-in-laws of Haleswar and Haleswar's nephew Naren (P.W. 5) went to Tufanganj P.S and lodged a report (ext. 2/1) on the basis, of which Tufanganj U.D. Case No. 39 dated 6.10.78 was registered at 10.45 hours. P.W. 16 S.I. Mr. Rakshit then took up investigation of the case. He hastened to the house of Haleswar on the same day and held inquest over the dead body which was lying on the court-yard of the house. He found several injuries on the person of the dead body of Haleswar including ecchymosis and swelling in neck. He sent the dead body to D.M.O. M.J.N. Hospital for postmortem examination. He seized one chowki having a height of 1 cubit from which Haleswar was alleged to have fallen on the previous night, He prepared a sketch map of P. O. (ext. 10), examined local witnesses and took accused Jagateswari to the Thana as the local people were up-in-arms against her. The postmortem report was than received by the 0. C. and immediately thereafter Tufanganj P.S. Case No. 23 dated 26.10.78 was started against all the said accused persons. In course of investigation the I.O. placed Jagateswari before the local Judicial Magistrate Sri Sukumar Chakraborty (P.W. 18), before whom Jagateswari was alleged to have made a judicial confession and that confession was recorded by Sri Chakraborty (ext. 12). After completion of investigation Mr. Rakshit (P.W. 16) submitted charge-sheet against the accused persons. Khagen subsequently absconded from the court bail. The three persons viz. Jagateswari, Naresh and Pedra Rava then faced their trial before the learned Sessions Judge, Cooch Behar. The learned Sessions Judge framed charges against them all under section 302/34, I.P.C. for committing murder of Haleswar and also under section 302/120B, I.P.C. for having conspired amongst themselves to put an end to the life of Haleswar. Before the learned Sessions Judge asmany as 18 P.Ws. including police officers and doctor were examined. The learned Sessions Judge found that there was no iota of clinching evidence against Naresh and Pedra Rava, He therefore acquitted these accused persons of the offences with which they, were charged. Accused Jagateswari was however found guitly and was sentenced as already indicated before. Being aggrieved thereby Jagateswari has filed this appeal. She is in jail.

(3.) Mr. Asis Kumar Sanyal, learned advocate appearing for the appellant Jagateswari has contended that the learned Sessions Judge ought not to have convicted his client on the basis of judicial confession (ext. 12) seeing that the confession was later on retracted by the accused at the trial. Mr. Sanyal has submitted that there is no other credible and reliable evidence on the record to justify that conviction. Mr. Sanyal has reminded us repeatedly that there was no eye witness to the alleged occurrence.