BALDEO GOALA Vs. STATE OF ASSAM,

JUDGEMENT

(1.) THE two appellants, Baldeo Goala and Harduar Goala, have been convicted by the learned Sessions Judge, Dibrugarh and Lakhimpur district, Dibrugarh under Section 324 read with Section 34 as well as under Section 302 read with Section 34 of the I. P. C.; both of them have been sentenced to rigorous imprisonment for life, plus a fine for Rs. 500/ -, in default imprisonment for 3 months; it does not appear from the judgment of the learned Sessions Judge, whether a separate sentence under Section 324/34 was or was not awarded in view of the conviction under Section 302/34, I. P. C. It is not possible, however, to understand the judgment as imposing the sentence of imprisonment for life in respect of an offence under Section 324 I. P. C. as well:

(2.) THE prosecution case is briefly as follows: - On 20.3.1975 the deceased Sarowar Goala along with Sukur Goala (P.W. 8) and Punu Goala (P.W. 9) went in search of the missing calves belonging to the former. When they were returning home via Baluchapari, they saw Akalu, Patiram and Sahadeo, who are brothers and Mahadeo (all of them acquitted by the trial Court) as well as the two appellants -Baldeo and Harduar, (Mahdeo, Baldeo and Harduar are brothers). The connection between these two sets of brothers is not apparent; they lived in different places. Being afraid of them, P. Ws. 8 and 9 and the deceased went to a Baluchaari, to which place they were followed (in a boat) by all the above six persons. Appellant Baldeo asked the deceased, P. Ws. 8 and 9 as to why they fled, to which the deceased put a counter question as to why they were chased by them. The appellant Baldeo thereupon said 'maro' (kill). Appellant Baldeo, according to the ejahar given by P.W. 8 assaulted the deceased with spear and appellant Harduar dealt a spear blow on P.W. 8: others assaulted them with lathis. According to Sew Kumar (P.W. 7), Pws. 8 and 9 went to his place (charkhoria chapori) and requested shelter for the night saying that they would not be able to return home. P.W. 7 ascertained from P.W. 9 that the six accused (Baldeo and his two brothers along with Akalu and his two brothers) quarrelled with deceased, P.W. 8 and P.W. 9 and assaulted them. P.W. 7 was also told that Sarowar was injured at the ghat. He went and found Sarowar lying there with injuries; he was alive then. P.W. 7 took Sarwar, who was speechless, to his house and noticed he had injuries on his stomach. Sarowar died later that night in the house of P.W. 7.

(3.) THE ejahar in this case was given by P.W. 8 at the Dibrugarh Police Station at 3.30 P.M. on the following day i.e. 21.3.1975. Appellant Harduar was arrested on 31.3.1975; the exact time and place of his arrest is not clear since even the I. O. who arrested him has not been examined. Appellant Harduar seems to have been sent to the Court of S.D.M. (J), Dhemaji at 10.30 A.M. on 1.4.1975. After giving necessary caution and giving him only four hours time for reflection, during which period the appellant Harduar was kept in the custody of the peon of the Court, the learned Magistrate, L. Bardaloi (P.W. 1) recorded his confession. It appears from the answer to a question put to Harduar by P.W. 1 that he was at first in police custody, at Jorhat P. S. where he was arrested at 1 P.M. on 31.3.1975 and kept in the lock -up. It was from the lock -up of that P. S. that he was produced before P.W. 1 on the following day (Page 63 of the paper book); but there is some difficulty caused by the further record which P.W. 1 has made as part of the so -called confessional statement of appellant Harduar that he got his injuries treated at Jonai by the doctor at Jonai and since he was informed by another accused Sahadeo Goala (acquitted) that his name had also been reported to the police, he went to Jonai P. S. on 31.3.1975 and reported about the occurrence. It was then, he said that he was apprehended by Jonai Police and sent to Court. It is a pity that the O. C. was not examined; we are not even told why he was not examined. We only find that S. Sonowal (P.W. 10), the Assistant S. I. attached to fudge's Court, was examined as P.W. 10 for proving that he was acquainted with the handwriting of Shri Dimbeswar Bora, S. I. who, as it appears from the F. I. R. in this case, had been ordered to investigate the case by Shri Banamali Sen, O. C. Dibrugarh P. S. In these circumstances, it is not surprising that no question could be addresesd to or even information elicited from anyone concerning the Police Station, Jonai as to whether any entry had been made at the General Diary of the said P. S. about appellant Harduar going to the said P. S. The appellant, according to the so -called confessional statement recorded by P.W. 7 (1?) had appeared before the said P. S. on 31.3.1975. We thus do not even have the benefit of an assertion by the concerned Police Officer that the appellant Harduar did not have any injury on him when he was arrested.