GENDRA BRAHMA Vs. STATE OF ASSAM,

JUDGEMENT

(1.) SIX accused were put on trial for offences punishable under Sections 120 -B, 302, 201 and 302/34, Penal Code, before the learned Sessions Judge, Goalpara, in Sessions Case No. 3(K)/74. The learned Sessions Judge convicted 4 accused, namely, Cendra, Brahma, appellant in Criminal Appeal No. 47(J) of 1975, Karendra Nath Brahma, appellant in Criminal Appeal No. 48(J) of 1975, Shri Magon Basumatary, appellant in Criminal Appeal No. 49(J) of 1975 and Shri Janaki Basumatary, appellant in Criminal Appeal No. 50(J) of 1975 for offence of murder of one Abhiram Barguari of village Singimari. punishable under Section 302 read with Section 34, Penal Code and sentenced each of them to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000 each, in default, to undergo further rigorous imprisonment of one year each. They were also convicted for offence punishable under Section 201, penal Code and sentenced each to rigorous imprisonment for two years and to pay a fine of Rs. 200, in default, to further rigorous imprisonment for two months. The substantive sentences were to run concurrently, but the default sentencing were to run consecutively. But the accused Lakhan Basumatary appellant in Criminal Appeal No. 51(J) of 1975 was convicted for the offence punishable under Sections 302 read with Section 109, Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000, in default, to undergo further rigorous imprisonment of one year. The accused Magon Basumatary was, however, acquitted of the charges under Sections 302/34 and 201, Penal Code. All the six accused were acquitted of the offence under Section 120 -B, Penal Code.

(2.) ALL the five accused who were convicted and sentenced as aforesaid preferred appeals separately. As the appeals arose out of a common judgement and order, they were heard together. As against accused Magan Basumatary and Janaki Basumatary, appellants in Criminal Appls. Nos. 49(J) of 1975 and 50(J) of 1975 respectively there was no other evidence to base their conviction except the confessional statements of the three accused implicating them to the alleged crime. On the first day of the hearing by a common judgement, we allowed their appeals and acquitted them. In the case of the above three appellants whose conviction was based on their retracted confessions, after hearing learned counsel of both the sides at length, we were also of the view that there was no evidence to warrant their conviction. We allowed their appeals also and acquitted them of all the offences with which they were charged, reserving our reasoned judgement. We now give reasons of our judgement.

(3.) THE facts of the case giving rise to these appeals may be stated as follows : - Abhiram Bargayari, deceased, of village Singimari within Gossaigaon Police Station, left his house on 10 -8 -71 at about 1/1? O'clock at noon for Garufela market to bring medicine. His house is about 1? miles from the market. He did not return home till late at night. In the next morning, his brother Kabiram Bargayari went out in search of the deceased. On the way, near Garufela river he found some blood marks, a Gamcha (towel) used by the deceased and a stick nearby. He went then to his brother -in -law's house P.W. 3, Subhas Narzari, told him that the deceased came to his house in the previous night at about 7/8 P.M. and that he left his house with Karendra Nath Brahma, accused. His brother -in -law gave the deceased a stick also. He returned home and called in Raiju (village public), after which he lodged a report written by one Hari Ram at his dictation with the Officer -in -Charge of the Gossaigaon Police Station on 11 -8 -71 at about 7 -30 P.M. The Police Station is about 6 kilometres north from the house. The Officer -in -Charge of the Police Station registered a case under Sections 302 and 201, Penal Code on the basis of the above report. P.W. 10, Arun Chandra Bora, who was incharge of the Police Station, took up the investigation of the case himself. He visited the spot on 12 -8 -71 and seized one Gamcha and some blood stained earth from nearby Garufela river. He discovered the dead body of the deceased in the south -east bank of Garufela river, held the inquest on the dead body and sent it to Dhubri for post -mortem examination. The Police arrested 6 accused persons named above of whom 3 made confessional statements on 13 -8 -71 before Shri O.M. Maheswari, Magistrate (Executive) of Kokrajhar. After completion of the investigation, he submitted charge -sheet against six accused under Sections 124 -B, 302 and 201, Penal Code. The committing Magistrate after preliminary enquiry committed them to the learned Sessions Judge to stand their trial for offences under Sections 120 -B, 302 and 201, Penal Code.