MOBARAK ALI Vs. EMPEROR

JUDGEMENT

(1.) Mobarak Ali and his son Subban Ali were placed on their trial before the Sessions Judge of Barisal on charges framed under Section 302, Indian Penal Code, for having caused the death of, one Azmat Ali. The Judge, agreeing with both the Assessors, convicted the accused of the offence charged and sentenced them to transportation for life. Against the conviction and sentence this appeal has been preferred by both the accused.

(2.) The case for the prosecution mainly rests on the confessions made by the Accused and as the learned Judge has himself said, apart from these there is practically no case Whatever We have, therefore, to consider first of all whether these confessions were voluntary or whether they were the result of any inducement or threat. The Assessors found the accused guilty and apparently they believed the confessions to be true, bat they gave no indication of their opinion on the Question whether the confessions were or were not voluntary.

(3.) The circumstances of the case are shortly these: the deceased was a nephew of the accused Mobarak Ali. He bad lost his father at an early age and was brought up by his uncle who bad got him married. They lived in the same Bari, deceased occupying the west Bhita and the accused the east Bhita, It appears that the deceased, when he came of age, claimed his father s share of the ancestral properties There was an arbitration and the arbitrators divided the properties between the uncle and the nephew in the proportion of 10 annas and 6 annas Mobarak agreed to the division and himself demarcated the lands but when the deceased went to plough the land that was allotted to him, Mobarak Ali is said to have opposed him. it is also alleged that the deceased complained of his uncles conduct to the landlord and that in consequence the landlord fined Mobarak Ali s sop Sobhan Rs. 25, It is also said that the day before the occurrence Mobarak All s cows had damaged the paddy crop of the deceased which had led to a quarrel between them. This was alleged as a possible motive for the crime in the first information lodged by the wife of the deceased on the 27th of July 1918, On the whole it may be taken as established that the uncle and the nephew were not on good terms. On the 25th of July the wife of the deceased, Rupsan Bibi, had gone on a visit to her father s house. She came back the next morning and found her husband pot in the house. from what she saw on her return her suspicions were roused and she informed, her father who came almost immediately, and there was a search in which the second accused Suban took part under the direction of his father. The dead body was found in a deserted Bhita a quarter of a mile from the house of tap accused and close to it was a Donga boat ha-longing to the deceased. There was a palm, fruit in the boat. Information was lodged in the Thana by the wife of the decease. The Police Sub Inspector came and the dead body was sent for post mortem examination. The cause of death could not, however, be ascertained owing to the fact that the body was in an advanced stage of decomposition.