(1.) The questions that fall for the determination in these appeals are: (l) whether Jiten Das (the appellant in Criminal Appeal No. 173(J)/93) could be convicted on the basis of the Confession which he retracted and (2) whether Jogen Das, Gurucharan Das and Betharam Das (3 appellants in Criminal Appeal No. 147/ 93) could also be convicted on the basis of the disclosures made in the confession of Jiten Das.
(2.) The case for prosecution was as follows: At 8.45 a.m. on 20.8.88 Dambaru Hazarika of village Metera Gaon (PW. 1) lodged FIR (EXT. 1) at Sotea PS stating that at 6.30 p.m. of 18.8.88 his 14 years old son, Jayanta Hazarika, went with Debo Hazarika of his village to Sotea Centre for sewing cloth but did not return home; and that after vigorously searching for 3 days he found his deadbody from a road side drain at Gereki gaon. He stated that he suspected murder by some one. On this FIR Sotea PS registered case No. 68/88 under Section 302 IPC on 20.8.88. Initially none was shown as accused in the case. On that day the I/O (PW. 7) went to Gereki Gaon and found the dead body with: (1) mark of wound on left side of head (2) left ear missing, (3) mark of wound on back side of head, (4) skin of left hand peeled off, (5) abrassions of chest. He recorded them in the inquest report and sent the deceased for post mortem. On 21.8.88 the Doctor (PW.8) performed postmortem examination and noted in post mortem report that in his opinion the death was due to shock and haemorrhage resulting from head injury. Thereafter the I/O got some clue and arrested Jiten Das on 24.8.88 and arrested Jogen Das and Gurucharan Das on 25.8.88. He kept them in police custody for 3 days by obtaining order from the Magistrate. On 28.8.89 he produced them to Magistrate with report that Jiten Das was confessing the guilt. On that day the Magistrate remanded them to judicial custody. On the next day (29.8.88) Jiten Das was produced from judicial custody and the Magistrate recorded his confession. The confession (Ext. 3) was as follows :
(3.) On that day (29.8.88) the I/O arrested Betharam Das. Thereafter on that day the I/O seized one Releigh cycle; with a carrier by a seizure list (Ext.7) showing that "it was used in the occurrence and seized from the custody of accused Jogen Das and witnessed by-(l) Indreswar Saikia and (2) Nirmal Das. He also seized one aluminium pan used for boiling of water without a lid by a seizure list (Ext.8) noting that it was identified by accused Betharam Das in presence of witnesses-(l) Keshab Ch. Baruah, Head Constable and (2) Surya K. Bhuyan of village Bhuyan Gaon. He seized one brick bat measuring 4" by a seizure list (Ext.9) by noting that it was seized near the shop of Betharam Das on being shown by accused Jogen Das in presence of witnesses: (1) Keshab Ch. Barua, Head Constable (2) Jogen Das. On 29.8.88 he seized one old Hercules bicycle with a carrier by a seizure list (Ext. 10) noting that it was used by Jiten Das in the occurrence and seized in presence of witnesses: (1) Indreswar Saikia (2) Dharmeswar Das. On 30.8.88 he arrested Deba Hazarika, He examined some witnesses and submitted charge sheet under section 302/201 IPC against the 4 appellants and one Debo Hazarika. The Judicial Magistrate committed the case (GR Case No. 1308/88) to the Court of Sessions for trial.