S K ABDUL HANAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE three appellants have been convicted by the learned Sessions Judge of Mayurbhanj -Keonjhar under Sections 302, 201 and 404/511, I. P. C. Sk. Abdul Hanan (accused No. 1) and Naku Majhi (accused No. 2) were each sentenced to imprisonment for life under Section 302, I. P. C., to two years rigorous imprisonment under Section 404/511, I. P. C. the sentences to run consequently. Raibu Patna (accused No. 3) was sentenced to death under Section 302, I. P. C. and no separate sentence was passed under other sections. The learned Sessions Judge has made a reference under Section 374, Criminal Procedure Code for confirmation of the sentence of death.

(2.) THE prosecution case is that deceased Balbir Singh and P.W. 11 Jangir Singh were two brothers. They had come from Delhi and were giving on hire two diesel trucks. Truck O.R. C. 4174 stood in the name of the deceased and, Darsan Singh, one of the absconding persons, was the driver of that Truck. P.W. 10 Baburam was the driver of the other Truck P.N.E. 7478 which stood in the name of Jangir Singh. On April 22, 1961 Darshan Singh had already made three trips in Truck O.R.C. 4174 with P.W. 1 Madanlal, the cleaner of the truck. In the evening Darshan Singh left P.W. 1 at his residence as the latter had some injuries on his leg and asked him to take rest as he would go with the truck to have another trip. At about mid -night Darsan Singh returned with the truck in which the three accused persons and another coolie Baya Munda (who is absconding) were sitting. Darsan Singh told P.W. 1 that the owner had already left for Dhanbad in a car and they should go to Dhanbad with the truck as there was a proposal for the disposal of the truck. On that false representation P.W. 1 accompanied Darsan Singh with the three accused persons and Baya Munda.

(3.) ADMITTEDLY there is no eye -witness to the factum of murder. The learned Sessions Judge ought to have considered the case of each of the accused persons separately. So far as accused No 1 (Sk. Abdul Hanan) is concerned, we have his confessional statement (Ext. 9). He made the confession before Sri S. N. Mitra, Magistrate 1st Class, Barbil (P.W. 7). He was produced before P.W. 7 on May 12, 1961 when he was remanded to jail custody. He was again produced on May 15, 1961 when the confession was recorded. P.W. 7 in his evidence states that he gave due caution to the accused and remanded him to jail custody giving him at least three days' time for reflection. On May 15, 1961, he was again produced before him at 8 a.m. He gave him due warning and caution and further time for reflection till 10 a.m. in his Court where there was none else excepting himself and the Court peon. In his opinion the statement was voluntarily made. The confessional statement itself indicates that the Magistrate (P.W. 7) complied with the provisions of Section 164, Cr. P. Code. In the statement under Section 342, Criminal Procedure Code accused No. 1 was questioned as to whether he made the confessional statement (Ext. 9) before P.W. 7 and his answer was in the affirmative. There is therefore no doubt that the confession was voluntary.