Lakshmi Narain, J.C.
1. The two accused Naosekpam Nimai Singh aged 21 years and Sagolsem Ibotombi Singh aged 18 years, have been committed for trial under Section 302, I. P. C. for committing murder of one Bokul Singh of their Basti on the night between 2/3 July 1952. They have pleaded not guilty to the charge and have produced no defence.
2. The prosecution suggests that there were ill-feelings between the deceased and some villagers including Paonam Kanhai Singh Nambor, on account of some new settlement of land and its cultivation by the deceased and that Kanhai Singh engaged the two accused for committing murder of Bokul Singh by promising to give them Rs. 300/-. It is said that he also provided the accused with two sticks and some clothes to put on that night. While the deceased was sleeping in the verandah of Gopal Singh P. W. along with his step sou Budha Singh, they attacked them with sticks. The boy Budha Singh fled away. Bokul Singh got some 6 injuries - 4 contused wounds and 2 bruises which caused his death soon after.
3. It is to be noted that the above story has been taken from the confessional statements of the accused which were retracted later on by them in the committing Magistrate's Court. It is only suggested otherwise by the statement of Budha Singh P. W. 2 alone that two unknown persons gave beating to the deceased with sticks during the night time when he was sleeping in the verandah and ran away as a result of which he died soon after.
4. It will do well to say here that the police had challaned Paonam Kanhai Singh Nambor also along with the present two accused. He has been discharged by the Committing Magistrate after enquiry.
5. The prosecution has produced 14 witnesses in all in this case. (The Judicial Commissioner after giving the summary of their evidence proceeded to state as follows).
6. It is thus seen from the above brief analysis of the prosecution evidence that there is little in it to connect the accused with the crime with which they stand charged, excepting their own retracted confessional statements and the deposition of the learned Magistrate who recorded them,
7. The main point for consideration in the case is whether the retracted confessions alone can be acted upon or not.
8. It is in evidence that both the accused were brought by the police together before the Magistrate for recording their confessional statements. The learned Magistrate also in his turn addressed them together and not separately by putting questions though some of them are noted separately. The record shows that only the 3 following questions were put to both the accused and their answers taken down and no more, viz:
(1) Are you going to make a confession?
(2) Why? Did somebody ask you to do so?
(3) How long have you been in police custody?
9. The Magistrate says that he satisfied himself by putting other questions that their Statements were voluntary. It is in evidence that both the accused were made to sit together in a corner of the court house for about 2 hours or so under the watch and guard of the court chaprassi. When they were brought again before the Magistrate, he again explained to them that they should make their statements voluntarily, though it was not recorded. The record does not show that the police was sent out of the court room though the learned Magistrate has stated it. The learned Magistrate has stated as follows,
I satisfied myself after putting questions to both the accused together that they would give their statements voluntarily;
That after the time of reflection I did not call the accused together but separately i.e. when the statement of one was recorded the other was not present, he was allowed to sit in the corner of my room. That corner of the room is about 4 yards from the dais. There is certainly possibility for the accused sitting in the corner of my court to hear the statement made by the other accused.
10. There is no manner of doubt, therefore, that these confessional statements have not been duly recorded. It is of great importance that every question put to the accused and every answer given by him should be recorded so that proper meaning should be deduced from them. It is not enough for the Magistrate to say that he dad put them questions and was satisfied that the accused would give their statements voluntarily. The learned Magistrate ought to have recorded each and every question put to the accused and their answers given by him and more specially go to prove the voluntary nature of it. Mere certificate of the Magistrate in absence of any record of questions and answers that he was satisfied that the confession was a voluntary one, is not conclusive and the confession may still be involuntary.
11. Both the accused had retracted from their confessional statements before the committing Magistrate at the time of their examination on the ground of police pressure and torture. In this Court Nimai Singh accused has. further added that he was also asked by the police to give that statement on a promise of release and so Ibotombi Singh has added that he was threatened to be killed by the police if he would not make that statement.
12. The prosecution has tried to bring some corroboration of these retracted confessions on the record by the recovery of the wooden stick (danda) Ex. p. 6 which is alleged to have been given to them by Kanhai Singh Namtaor. About its recovery there are only two witnesses, Chaoba Singh P. W. 9 and the investigating Officer P. W. 13. While Chaoba Singh a witness to the recovery, who has also signed the seizure list prepared at the spot, says that it was recovered from the house search of Kanhai Singh Nambor, the investigating Officer Shri Mani Singh S. I. says that the same was recovered from one Nilo Singh's Inkhol at the pointing out of Kanhai Singh Nambor. It is not possible to reconcile these two statements. The recovery of this so called stick Ex. P. 6, which is on the face of it fuel wood burnt at one end is, therefore, ruled out.
13. The ill feelings between the deceased and Kanhai Singh Nambor as alleged in the confessional statements, are also not proved. There are substantial discrepancies between the statements of witnesses produced on this point.
14. I don't believe the confessional statements of the two accused in this case to be genuine, voluntary and true. They are also not supported by any independent and material corroboration. There is no other evidence on the record to prove the guilt of these accused.
15. Out of three assessors who assisted in the trial of this case two are of opinion that the accused are guilty while the third one is of opinion that their guilt is doubtful. I disagree with the majority opinion.
16. The result is that both the accused Naosekpam Namai Singh and Sagolsem Ibotombi Singh are acquitted of the charge under Section 302 I. P. C. against them. They are to be set at liberty forthwith.