Sri Joytolal Kemprai and Another vs State of Assam

N. Ibotombi Singh, J.—Four accused, Chinmoy Langthasa, Lakhi Kanta Singh Khemon Singh Thousen and Joytolal Kemprai, were prosecuted for an offence punishable u/s 302 / 34, Penal Code, for having committed murder of Puma Bahadur Sarki on 29.9.79, before the Deputy Commissioner, N.C. Mills, Haflong, State of Assam. The Four accused were found guilty for the offence u/s 324 / 34, Penal Code and they were convicted as such. except accused Chinmoy Langthasa, the other three accused were sentenced to suffer rigorous imprisonment for two years and a fine of Rs. 1.000/- each, and in default of payment of fine, to suffer further six months simple imprisonment. Accused Chinmoy Langthasa having regard to his age and educational career, was allowed to go on probation for a period of two years, on Execution of bond of Rs. 2,000/- with one surety of the like amountand in the meantime to keep peace and be of good behaviour during the period. Accused Lakhi Kanta preferred an appeal being Criminal Appeal No. 33 (J) of 1982 and the other two accused Khemon Singh Thousen and Joytolal Kamprai,preferred a joint appeal being Criminal Appeal No. 26 of 1982 against the conviction and sentence aforesaid.

The prosecution case may be stated briefly as follows. 22.9.79, at about 7 P.M. Lok Bahaour Thapa and deceased Purna Bahadur Sarki were proceeding towards their houses at Natun Basti. When they reached the Railway colony near a held; one person came from behind and started quarreling with deceased. They reached near a Puja Pandel celebrated in that year, when accused Lakhi Kanta Singh brought the other three accused. The four accused assaulted both of them. The decreased defended himself with the help of the umbrella which had with him. The witness, who sustained injury on his body ran towards the shop of one Nepali and waited there about 15 minutes. The deceased did not turn up and then left for home. Meanwhile, Priyatosh Das, who was the driver Railway, Haflong found a person lying on the ground the railway field in the evening of 29.9.79, He reported (Sic) to the Police on duly in the Puja Mandap in the railway (Sic) The police came and took the injured in a Police truck, ears that the injured succumbed to the injuries. The police (Sic) investigation by registering, case for the offence under 302, Penal Code, On a report by S.I. Diptendra made on 1.10.79, investigation was taken up. Inquest was the dead body and thereafter, post mortem examination (Sic) by the Medical officer. Dr. S.K. Sarkar on 30.9.79 course of the investigation, the police also seised one umbrella produced by the accused Lakhi Kant Singh. All the four accused gave confessions before the Magirstrate Sh A.K. Malakar. Confessions of accused Lakhi Kanta. Khemon Singh Thousen and Chinmoy Langthasa were recorded on 10.10.79 and they are Exhibits 6, 7 and 8 respectively. Confession of accused Joytolal Kemprai Ext. 9, was recorded on 11.10.79. Identification parade was conducted on 22.10.79 before the Magistrate S.C. Longmailal, P.W. 11, in which P.W. 2, Lok Bahadur Thape, identified only one accused Lakhi Kanta Singh but he failed to identify the, other three accused. Investigating officer examined a number of witnesses and submitted charge sheet against the four accused to stand their trial u/s 302 / 34, Penal Code. The learned Deputy Commissioner found the accused guilty of the offence Under Sections 324 / 34 I.P.C. and awarded sentence as aforesaid on the three accused except accused Chinmoy Largthasa.

The conviction of the four accused rested on the following evidence, viz (i) of P.W. 2, Lok Bahadur Thapa, who claimed to be the eye, witness of the occurrence, (ii) Identification of the accused Lakhi Kanta Singh,(iii) Recovery of umbrella as produced by Lakhi Kanta,(iv) Judicial confessions, Exts. 6, 7, 8, and 9.

There is no doubt that the deceased died from the injuries sustained on 29.9.79. The Medical officer who held autopsy on the dead body found the following injuries, viz. (i) one incised and penetrating wound 21 1/2 above and lateral to the right sterno clavicular joint transversely placed length 1/2", breadth 1/2", at the middle, tapering to the pointed ends anteriorly and posteriorly; depth 11" directed backwards and downwards involving the vessels of the right side neck and other soft tissues at the site of the injury, In his opinion, the injuries were antimortem and the injured died of scyncope (shock and haemmorrhage), as a result of the injuries sustained on the body.

The only point for determination is as to whether the accused are authors of the crime. It is not necessary to discuss evidence of other witnesses examined on behalf of the prosecution. The evidence of P.W. 2 on which reliance was placed by the prosecution, suffers from serious infirmity and cannot be relied on. After be and deceased were assaulted by the culprits, he ran to the shop of Deo Bahadur Pradhan(P.W. 16) who ran a panshop. He purchased a packet of cigarettes and met also there one Pijus Das P.W. 2 admitted that he did not narrate to P.W. 16 Deo Bahadur Pradhan, and Pjjus, Das, who has not been examined as in witness, about the occurrence, P.W. 16, Deo Bahadur Pradhan, comitted that P.W. 2 did not,tell him anything about the occused. Though P.W. 2 sustained bleeding injuries, P.W. 16 had (Sic) Spoken a word about any injury, on the body of P.W. 2. It surprising. When his companion had not returned after they were attacked by some culprits, he would, not report to any body that and that he went back home. The oral testimony of P.W. 2 (Sic) regard to the occurrence, cannot as such be relied on at all.

In regard to identification evidence of P.W. 2 cannot also accepted. The night of occurrence was dark. He could recognise only accused Lakhi Kanta but not the other accused. He did not know the name of the accused Lakhi Kanta from before occurrence and came to know his name from the prosecution But the witness had seen accused Lakhi Kanta at the police station after about a week of the occurrence, when the officer in Charge, Hahlong police station, called him at the police station. The identification in the test identification parade conduted by P.W. 11 S.C. Longmailai is as such of no value at all. witness identified the accused, Lakhi Kanta in the the Court. for the first time.

As regards the recovery of the umbrella, there is no Evidence to show that it was recovered at the instance of the accused Lakhi Kanta within the meaning of Section 27 of the Evidence Act. That apart, there is, no identification mark in the umbrella, as admitted by P.W. 2 Lok. Bahadur Thapa in Crossexamination. None of the injuries could be caused by the umbrella. The recovery of the umbrella, from the possession of the accoused Lakhi Kanta even if accepted, does not assist the prosecution in the least.

Dealing with the confessions of the accused, all the confessions Exhibits 6, 7, 8 and 9 are inadmissible in evidence. The Magistrate A.K. Malakar, P.W. 19, who recorded the confessions admitted in crass-examination that, he recorded the statements of all four accused persons solemn affirmation. Confessions Statement in the of accused cannot be taken on solemn affirmation all the accused retracted the confessions in the course of the (Sic). There is no independent evidence to corroborate the retrac(Sic) confession even. As a rule of law and prudence, retracted confession is to be corroborated by independent evidence to sust (Sic) to conviction of the accused on retracted confession. There is no independent evidence to corroborate these retracted confession even if they are to held to be admissible. The confessions, therefore, cannot be acted upon and no conviction can be sustained on, these confessions. The conviction of the four accused persons are acquired of the offence u/s 324 / 34 Penal Code.

In the result the two appeals are allowed. The conviction and sentences are set aside. Accused on bail need not surrender to the ball bounds. Accused Lakhi Singh, who is in jail shall be set at liberty forth with, unless he is required in connection with other cases.