ARJOON Vs. STATE

JUDGEMENT

(1.) BOTH the accused -appellants have been convicted under Section 302 read with Section 34 I. P. C. and sentenced to death. Accused Arjoon alias Polka Domba has been further convicted under Section 392 read with Section 397, I. P. C. but no separate sentence has been imposed.

(2.) THE prosecution case is that at about noon on 22nd January, 1962 Arjoon alias Polka Domb, accused No. 1 took the deceased Durjan, son of Purosattam Soura (P. W. 1) inside the jungle at a distance of about one mile from the village of the deceased. Accused No. 2 Urdhab was tending cows in that area. The boy did not return to the house till afternoon. The father made a search for the boy and learnt from different persons including Jagabandhan Lahara (P. W. 7) that the deceased was found in the company of accused -1 at about noon. Accused -1 denied all knowledge for sometime, but later on admitted that he had been to gather thorns in Sindiguda forest and found Urdhab (accused -2) and Kuna, a man of another village, going with the deceased and later heard a cry like "Margalo lo Ma". He led the villagers to the place where he heard the cry where the villagers found the dead body. The defence is one of complete denial.

(3.) BOTH the accused made judicial confession before a First Class Magistrate (P. W. 12). Exs. 8 and 9 are the confessional statements. They were produced before P. W. 12 on the 24th January, 1962. The Magistrate allowed them time till the next day for cool reflection and remanded them to jail custody. On the 25th January, 1962, they were produced before the Magistrate and the confessional statements were recorded. The Magistrate put all relevant questions under Section 164 (3) of the Criminal Procedure Code to satisfy himself that the confessions were voluntary and free. The accused stated under Section 342, Criminal Procedure Code that they did not make any confessional statements. It was held in Sk. Abdul Hanan v. State of Orissa, ILR (1962) Cut 516 : 1963 (2) Cri LJ 229) that when the explanation for the retraction was false, even a conviction could be based on the retracted confession itself. There was no suggestion of any inducement, threat or promise to the Magistrate (P. W. 12) or to the I. O. (P. W. 17). A mere bald assertion by the prisoner that he was threatened, tutored or that inducement was offered to him cannot be accepted as true without more. P. W. 12 stated that the confessions of both the accused were recorded one after another, and that both the accused were present in Court. It is not clear from this statement whether one accused was present while the confessional statement of the other accused was being recorded. Even assuming that both the accused were simultaneously present in Court and their confessional statements were being taken in presence of each other, nothing has been shown to us how this would affect the voluntary character of the confessions. P. W. 12 categorically asserts that he was satisfied that the confessions were voluntary. There is no substance in this contention.