JOGENDRA NATH Vs. STATE OF ASSAM

JUDGEMENT

(1.) JOGENDRA Nath, Lila Nath, Kamala Kanta Nath, son of Sarulora and Kamala Nath son of Dutiram (appellants 1 to 4) have been convicted under Sections 302/34, I.P.C. and sentenced to imprisonment for life by the learned Sessions Judge, Darrang, Tezpur in the following circumstances. On 7.11.1971 at about 10/10.30 P.M. the appellants are alleged to have attacked Bireswar and Haren Das with sharp instruments and caused several injuries which resulted in the death of both of them. There was not only no eye witness to the occurrence but there is no other direct or even circumstantial evidence to connect the appellants with the crime except their retracted confessions.

(2.) THE dead bodies of the aforesaid Bireswar and Haren Das (also called Haria) were found on the side of a road near the daily bazar of village Bhalukekhowa. The brother of Bireswar the deceased Someswar Bora (P.W.1) gave an ejahar to the O.C. Tezpur Police Station on 8.11.1971 at 8 A.M., Bhalukekhowa, being about 8 miles from the said place of occurrence. P.W.1 had merely brought the fact of the said two dead bodies lying at the said place to the notice of the police; he could not say anything more.

(3.) THOUGH no motive has been mentioned in the ejahar it was stated at the trial by Hem Chandra Nath (P.W.6) that there was a litigation concerning a plot of land from about three years prior to the occurrence between Bhadreswar, father of the first appellant and himself, in which the deceased Bireswar had been helping Bhadreswar. According to P.W.6, on the night of occurrence, namely, 7.11.1971, at about 9 -30/10 P.M the two deceased persons came to his house and called him, but he did not come out; they went away after calling him for about three times. Next morning, on receipt of information, he went and found the dead bodies lying at the aforesaid place. None of the two Magistrates who recorded the confessional statements of the appellants spoke about them at the trial; one of the two Magistrates Md. Faizuddin Ahmed Chowdhury (P.W.8), who was alone examined as P. W. 8 at the trial, only spoke about the 'verification' which he made concerning the confessional statements made of the appellants. The evidence given by him in the Committing Court as well of the other Magistrate (in the Committing Court) who recorded the confession had been only tendered in evidence. So far as appellants 1 and 3 are concerned, it is seen that they had each of them been given only an hour's time for reflection. A longer time, about 3 to 3/2 hours, seems to have been given to the other two appellants for reflection; one is not even able to say how much time actually was given to them for reflection except that both of them had been sent away after the confession being recorded in less than about 4 hours' time, after they were produced before the Magistrate. The first appellant had stated to the Magistrate concerned that he was taken into police custody on 10.11.1971 and produced before Magistrate on 11.11.1971 and, on the prayer of the police, he was handed over back to police custody for 48 hours up to 13.11.1971 and then sent to judicial custody on 13 -11 -71; he had been produced before the Magistrate at 10 -30 A.M. on 11.11.1971 and was given an hour for reflection before his confession was recorded. The second appellant Lila Kanta Nath stated that he had been taken into police custody at 8 P. M. on 10.11.1971 at village Bhalukekhowa; he was arrested on 10.11.1971 and sent to the Magistrate at 11 A.M. on 11.11.1971; after his confession was recorded he was forwarded to the S.D.M.; thereafter, he was sent by the S.D.M. to police custody. Kamala Nath son of Sarulora (Appellant No.3) said that he was taken into police custody on 11.11.1971 at 9 A.M. at village Bhalukekhowa and taken to Tezpur P.S. at 4 P.M. on 11.11.1971, taken before the Magistrate at 11 A.M. on 12.11.1971 and given one hour's time for reflection before his confession was recorded. Kamala Nath, appellant No.4, said that he was taken into police custody at 2/4 P.M. at village Bhalukekhowa and taken to Tezpur P.S. at 4 p.m.; he was arrested on 10.11.1971 and then produced before Magistrate at 11 A.M. on 11.11.1971 for his confession being recorded; the Magistrate forwarded the accused to the S.D.M. at 2 -30 P.M., who sent him to police custody for 48 hours.