ABDUL ALIM Vs. STATE OF ASSAM

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 11.03.2004 as passed in Sessions Case No. 77 (J) /2000 by the learned Sessions Judge, Bongaigaon, convicting the appellant under Section 304 Part- II and sentencing him to suffer five years rigorous imprisonment and fine Rs. 500/-, in default of payment to undergo another period of rigorous imprisonment for three months.

(2.) THE prosecution case as gathered from the records is that on 25.04.1994 the appellant, namely, Abdul Alim had assaulted his younger brother Abdul Aziz having inflicted an injury by means of sharp weapon causing injuries. Another brother of the appellant namely, Haider Ali took the injured to the Chalontapara hospital and thereafter to Bongaigaon hospital. From Bongaigaon hospital the injured was taken to Goalpara Civil Hospital, where he succumbed to the injuries on 26.04.1994. After death, a First Information Report was lodged by the said brother of the appellant. During investigation, the police seized a knife as allegedly shown by the appellant in presence of witnesses. THE inquest was conducted on the dead body in the hospital and accordingly report was prepared in presence of the witnesses. THE police also produced the appellant for recording the confessional statement before the learned Judicial Magistrate during investigation. On completion of the investigation police submitted charge sheet against the appellant under Section 302 of IPC. Since the offence was exclusively triable by the Court of Sessions, the learned Judicial Magistrate at Abhayapuri committed the case for trial to that Court. On receipt of the case on commitment and duly registering the same in the Sessions Court the charge under Section 302 IPC was framed to which the appellant pleaded not guilty and claimed to be tried.

(3.) THE appellant was produced before the learned Judicial Magistrate 1st Class on 12.05.1994 for recording his confessional statement from police custody as stated by PW 9. Learned SDJM, Abhoyapuri recorded the confessional statement (Exbt. 3) on the same day. From the statement of the said Judicial Magistrate, PW 6, it appears that when the appellant-accused was produced before him, he asked whether he would make any confession admitting his offence. Response being affirmative, the PW6 explained to him implications of such confession and thereafter he allowed the appellant 'three hours time' for reflection in a Chamber under the case of his peon. After expiry of that three hours, PW 6 again explained to the appellant that he was not a police officer but a Magistrate and the appellant was not bound to make any confession and if he made any confession the same would be against him. Even thereafter, when the appellant showed his inclination to make his statement, the statement was recorded, which is Exbt.3. After recording the confessional statement the same was read over to the appellant and thereafter he put his thumb impression thereon and finally the Judicial Magistrate put his signature under the purported certificate. During cross-examination, the PW 6 categorically admitted that nowhere he mentioned the time for reflection. THE appellant stated in Assamese, verbatim translation (Exbt.3)., which runs as under: