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S.K. Abdul Hanan and ors. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1963CriLJ229
AppellantS.K. Abdul Hanan and ors.
RespondentState of Orissa
Cases ReferredPandurang v. State of Hyderabad
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....g.k. misra, j.1. the three appellants have been convicted by the learned sessions judge of mayurbhanj-keonjhar under sections 302, 201 and 404/511, i.p.c. sk. abdul hanan (accused no. 1) and naku majhi (accused no. 2) were each sentenced to imprisonment for life under section 302, i. p. c., to two years rigorous imprisonment under section 404/511, i.p.c. the sentences to run consequently. raibu patra (accused no. 3) was sentenced to death under section 302, i.p.c. and no separate sentence was passed under other sections. the learned sessions judge has made a reference under section 374, criminal procedure code for confirmation of the sentence of death.2. the prosecution case is that deceased balbir singh and p.w. 11 jangir singh were two brothers. they had come from delhi and were giving.....
Judgment:

G.K. Misra, J.

1. The three appellants have been convicted by the learned Sessions Judge of Mayurbhanj-Keonjhar under Sections 302, 201 and 404/511, I.P.C. Sk. Abdul Hanan (accused No. 1) and Naku Majhi (accused No. 2) were each sentenced to imprisonment for life under Section 302, I. P. C., to two years rigorous imprisonment under Section 404/511, I.P.C. the sentences to run consequently. Raibu Patra (accused No. 3) was sentenced to death under Section 302, I.P.C. and no separate sentence was passed under other sections. The learned Sessions Judge has made a reference under Section 374, Criminal Procedure Code for confirmation of the sentence of death.

2. The prosecution case is that deceased Balbir Singh and P.W. 11 Jangir Singh were two brothers. They had come from Delhi and were giving on hire two diesel trucks. Truck O.R.C. 4174 stood in the name of the deceased and Darsan Singh, one of the absconding persons, was the driver of that Truck. P.W. 10 Baburam was the driver of the other Truck P.N.E. 7478 which stood in the name of Jangir Singh. On April 22, 1961 Darshan Singh had already made three trips in Truck O.R.C. 4174 with P.W. 1 Madanlal, the cleaner of the truck. In the evening Darshan Singh left P.W. 1 at his residence as the latter had some injuries on his leg and asked him to take rest as he would go with the truck to have another trip. At about mid-night Darsan Singh returned with the truck in which the three accused persons and another coolie Baya Munda (who is absconding) were sitting. Darsan Singh told P.W. 1 that the owner had already left for Dhanbad in a car and they should go to Dhanbad with the truck as there was a proposal for the disposal of the truck. On that false representation P.W. 1 accompanied Darsan Singh with the three accused persons and Baya Munda.

At Dhanbad P.W. 1 remained in charge of the truck and the other persons were busy in making several purchases like shoes, camera and cycle parts, On April 26, 1961 all other persons left Dhanbad and only Darsan Singh and P.W. 1 remained behind. After persistent inquiry P.W. 1 was told by Darsan Singh that the owner might have gone to Chira-kunda which is about 20 to 25 miles from Dhanbad. So both of them went to Chirakunda in the truck. There Darsan Singh replied to P. W.'s query regarding the whereabouts or the owner that the owner was likely to have been murdered by the driver of the car or that the death might have taken place by accident. Darsan Singh further suggested that he would dispose of the truck for Rs. 8000/- out of which he would give Rs. 2000/- to P.W. 1 and the latter was not to worry as he would get a license for him and provide him with a suitable service.

The statements and conduct of Darsan Singh aroused strong suspicion in the mind of P.W. 1 who suspected some foul play. When Darsan Singh was busy in negotiation for the disposal of the truck with another Sikh gentleman, P.W. 1, drove the truck to Dhanbad and contacted the police at the police station for help. The police directed him to drop a letter -to the owner in order to know his whereabouts. While P.W. 1 was going to post the letter he found Darsan Singh who threatened to kill him if he would disclose his identity. Darsan Singh suggested to him that he should describe him as Kripal Singh which was a fictitious name. P.W. 1 sent two letters (Exts. 1 and 2, dated 26-4-1961) to Baburam (P.W. 10) the driver of the other truck. In the police station of Dhanbad P.W. 1 waited till May 5, 1961 when P.W. 10 arrived and with him he returned to Barbil. On May 6, 1961 he made a Station Diary (Ext. 26) at Barbil and the officer-in-charge (P.W. 25) drew up a F.I.R. on his own information (Ext. 27). Abdul Hanan (accused No. 1) was arrested on May 8, 1961 and he gave discovery of the place where Balbir Singh was killed and also of the Mooram stack where the head of the deceased had been concealed.

It transpired on investigation that the three accused persons with the two absconding persons (Darsan Singh and Baya Munda) murdered deceased Balbir Singh in Barbank jungle in furtherance of their common intention. They left the truck on the road in the jungle and Raibu Patra (accused No. 3) murdered the deceased with an axe. The deceased fell down dead and thereafter his head was severed from the body with Darsan Singh's sword near the neck. The body was dragged and thrown away by the two absconding accused persons. The clothes of the deceased were burnt and his head was brought near the road covered it in torn bags and concealed under Moorum heap. The deceased had a bunch of currency notes in his chest pocket with which the assailants made several purchases at Dhanbad. P.W. 1 was taken in the truck to Dhanbad immediately after the murder.

3. The defence in essence does not admit the guilt. Each of the accused persons in his statement under Sec-tion 342, Criminal Procedure Code indicates to have some knowledge of the factum of murder and concealment of the severed head. But none of them is prepared to admit that he had anything to do with the crime. It is significant to note that in the memorandum of appeal despatched from Keonjhar Jail on March 10, 1962, all the appellant admit that they accompanied absconding accused Darsan Singh in truck O.R.C. 4174 to Barbank jungle and deceased Balbir Singh was on the truck. They further said that Darsan Singh and Baya Munda had committed the crime and that they were roped in falsely as they were on the truck.

4. Admittedly there is no eye-witness to the factum of murder. The learned Sessions Judge ought to have considered the case of each of the accused persons separately. So far as accused No 1 (Sk. Abdul Hanan) is concerned, we have his confessional statement (Ext. 9). He made the confession before Sri S. N. Mitra, Magistrate 1st Class, Barbil (P.W. 7). He was produced before P.W. 7 on May 12, 1961 when he was remanded to jail custody. He was again produced on May 15, 1961 when the confession was recorded. P.W. 7 in his evidence states that he gave due caution to the accused and remanded him to jail custody giving him at least three days time for reflection. On May 15, 1961, he was again produced before him at 8 a.m. He gave him due warning and caution and further time for reflection till 10 a.m. in his Court where there was none else excepting himself and the Court peon. In his opinion the statement was voluntarily made. The confessional statement itself indicates that the Magistrate (P.W. 7) complied with the provisions of Section 164, Cr. P. Code. In the statement under Section 342, Cr. P. C. accused No. l was questioned as to whether he made the confessional statement (Ext. 9) before P.W. 7 and his answer was in the affirmative. There is therefore no doubt that the confession was voluntary.

5. The confession has now been retracted, In other words, when the accused person does not admit that he is guilty, the confession in law must be taken to have been retracted, though the making of the confession itself is admitted in his statement under Section 342, Cr. P. C. As to the value of the retracted confession as against the confessing accused the position of law is well settled. There is no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated. But as a matter of prudence and caution it has now been crystallised into a rule of law that a retracted confession cannot be made solely the basis of a conviction unless the same is corroborated. It does not, however, necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated, Nor is it essential that corroboration must come from facts or circumstances discovered after the confession was made. It is sufficient that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession. The corroboration in the case of an accomplice or approver must be in material particulars. But in the case of retracted confession of an accused it is only necessary to find out whether the retraction of the earlier statement which was the result of remorse, repentance and contrition, was voluntary and true and it is with that object alone that corroboration was sought for. The standards of corroboration in the two are quite different. In the case of the person confessing who has resiled from his statement, general corroboration is sufficient while an accomplice's evidence should be corroborated in material particulars. In addition the court must feel that the reason) given for the retraction in the case of a confession are un-true. : 1958CriLJ238 , Subramania Goundan v. State of Madras. The rule does not require that each and every circumstance must be separately and independently corroborated. The rule will be meaningless inasmuch as the evidence itself would afford sufficient basis for conviction and it would be unnecessary to call the confession in aid.

6. In the light of the aforesaid principle it is necessary to give a gist of the confession of accused No. 1. The essence of the confession is that about a month before May, 15, 1961 Darsan Singh, the two other accused and the deceased went in a truck to Barbank jungle. While going in the truck accused No. 2 told him that they would murder the owner that day. The truck was kept on the road, He was left to guard the track and all others went inside the jungle. He was told that if any person would come then he would give information to them by blowing the horn of the truck. About 10 minutes after the party excepting himself went into the jungle, he hoard a sound 'Oh Father'. About 1 1/2 hours thereafter Darsan, the two other accused persons and Baya Munda came back without the owner. They had brought a human head inside a bag. Then they came away in the truck for a distance of about 1 1/2 miles and the human head was concealed in Moorum stack by Baya Munda and Raibu' Patra (accused No. 3). Thereafter they came back and called Madanlal (P.W. 1). All of them together came to Dhanbad in the truck, on Wednesday he and Raibu (accused No. 3) returned to Barbil.

Though in law general corroboration of the retracted confession of the accused is sufficient to stamp the confession as true, in this particular case the confession has been corroborated in material particulars not only with regard to the manner in which the crime was committed but with regard to the participation of the appellants in the crime itself. It is established from the evidence of P.W. 1 who appears to be an absolutely reliable and truthful wit-ness and whose evidence has not been assailed before us that Darsan Singh went in the truck to Garbank jungle for another trip after leaving him (P.W. 1) behind to take rest sometime in the evening and the truck returned back sometime in mid-night and in that truck all the accused persons with Baya Munda were sitting. That all of them went to Dhanbad soon after the murder in the truck in company is not disputed and is well established through the evidence of P.W. 1. The association of the appellants immediately subsequent to the murder is therefore well established. Accused No. 1 gave recovery of large number of articles belonging to deceased Balblr Singh inside the Barbank jungle. At his Instance also the severed head was recovered firm the Moorum stack. These facts are well established through the seizure witnesses.

Accused No. 1 in his statement under Section 342, Cr. P. Code admitted that he had shown the place from where the police recovered the articles. These facts establish his knowledge of the factum of murder as well as the factum of concealment. The medical evidence establishes that the head was severed clean from the body. The evidence of P.W. 2 (Surindranath Sharma) mechanic establishes that deceased Balbir Singh had some notes in his pocket. He states that on April 22, 1961 at about 7.30 p.m. Balbir came with a dynamo for repair. At that time he noticed that Balbir had a bunch of currency notes in his chest pocket. Out of that Balbir gave him Rs. 15/-. Accused No. 1 made certain purchases at Dhanbad. It is manifest that there was a motive for doing away deceased Balbir Singh who had some money in his pocket. All these facts establish that the prosecution evidence not only corroborates the confessional statement so far as the general trend of the prosecution story is concerned but also in material particulars -- both as to the factum of the crime and complicity of accused No. 1. There can therefore be no doubt that the confession (Ext. 9) is true. On the statement of accused No. 1 that he made the confessional statement Ext. 9 before the P.W, 7. it may not be necessary to require corroboration at all. But as I have already said, not only there is corroboration so far as the general trend of the prosecution story is concerned but also there is the corroboration of the material particulars of the confessional statement.

7. Mr. M. N. Das, for the appellants, however, very seriously contended that the statement even if accepted as a whole did not make out an offence and therefore it was not a confession. In AIR 1939 P. C. 47, Pekala Narayana Swami v. Emperor it was held that a confession must either admit in terms the offence, or at any rate substantiate all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession. A statement that contains self exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to have been confessed, A statement which when read as a whole is of an exculpatory character and in which the prisoner denies his guilt is not a confession and cannot be used in evidence to prove his guilt. This view was accepted by the Supreme Court -- (see : 1953CriLJ154 Palvinder Kaur v. State of Punjab, and : AIR1960SC409 , Om Prakash v. State of U. P.)

The question therefore arises as to what is the offence confessed in Ext. 9. The statement made clearly makes out an offence under Sections 302/34 and 201/34 I.P.C. In : 1955CriLJ857 , Rammaya v. State of Bombay, their Lordships held that it is the essence of Section 34, I.P.C. that the person must be physically present at the actual commission of the crime. He need not be present in the actual room; he can, for instance, stand guard by a gate outside ready to warn his companions about any approach of danger or wait in a car on a nearby road ready to facilitate their escape, but he must be physically present at the scene of the occurrence and must actually participate in the commission of the offence in some way or other at the time the crime is actually being committed. The antithesis is between the preliminary stages, the agreement, the preparation, the planning, which is covered by Section 109 and the stage of commission when the plans are put into effect and carried out; Section 34 is concerned with the latter. It is true there must be some sort of preliminary planning which may or may not be at the scene of the crime and which may have taken place long before hand, but there must be added to it the element of physical presence at the scene of occurrence coupled with actual participation, which of course, can be of a passive character such as standing by a door, provided that is done with the intention of assisting in furtherance of the common intention of them all and there is a readiness to play his part in the pre-arranged plan when the time comes for him to act. The emphasis in Section 34 is on the word 'done'. It is essential that the accused join in the actual doing of the act and not merely in planning its preparation. If the accused was not present he cannot be convicted with the aid of Section 34.

The confession examined clearly establihes that all the accused persons in furtherance of the common intention to commit murder of deceased Balbir Singh went into the jungle. Accused No. 1 was clearly told by Naku (accused No. 2) that the owner would be murdered that day (which means that night). With the full knowledge of the fact that Balbir was going to be murdered, accused No. 1 remained as guard at the truck following the direction that he would blow horn if any person would come there. He heard the sound 'Oh Father' and saw the party coming back from the jungle after a period of 1 1/2 hours with the head of the deceased Balbir who did not return with the party and thereafter the head was concealed in a Mooram stack at a distance of about 11/2 miles from the place where the truck was standing. The existence of the common intention must be gathered from the facts and circumstances of each case and accused No. 1 played a major part in the participation of the crime under Sections 302 and 201 I.P.C. There is therefore no substance in the contention that the confessional statement [Ext. 9) does not amount to a confession of any offence. The confessional statement, however, does not establish any offence under Section 404/511 I. P.C. and there is also lack of other materials on record. Accused No. 1 is therefore entitled to benefit of doubt so far as offence under Section 404/511 l.P.C. Is concerned. In the result accused No. 1 Sk. Abdul Hanan is liable to a conviction under Sections 302/34 and 201/34 l.P. C.

8. 1 will next take up the case of accused No. 3 Raibu Patra. His confessional statement in Ext. 25 made on June 17, 1961, before Shri B. K. Misra, Magistrate, First Class, Rourkela (P.W. 24). The learned Magistrate took all the precautions required under law to test that the confession was voluntary. Accused No. 3 was produced on June 16, 1961 before P.W. 24. After giving necessary caution P.W. 24 remanded him to jail custody for cool reflection. He was produced on the next day and was granted further two hours time for reflection. Though accused No. 2 and accused No. 3 were produced for confessional statements, accused No. 2 did not make any confession and accused No. 3 made the confession. He was questioned as to whether he made the confessional statement (Ext. 25) before P.W. 24 and his reply was that being assaulted he did not remember what he stated. No attempt was made on behalf of the accused to prove or substantiate the suggestion that he was assaulted by the police. In such circumstances it has been held that when the explanation for the retraction is false even a conviction can be based on the retracted confession itself (S) : 1957CriLJ481 , Balbir Singh v. State of Punjab and : 1958CriLJ238 . There is-therefore no doubt that the confession was voluntary. It is however necessary to examine if the confession was true as it has been retracted. As I have already said, the explanation for the retraction being false, the confession might itself be taken to be true. But in this particular case there is also not only the general corroboration but corroboration in material particulars.

The substance of the confession of the accused is that in the truck there were 4 coolies including himself. Deceased Balbir Singh was sitting near the driver. In the jungle the truck was halted at a particular place and there was no light. There was quarrel between Darsan Singh and Balbir Singh. Darsan Singh directed accused No. 3 to kill Balbir Singh with the axe, otherwise Darsan Singh would kill Raibu. In fear Raibu attacked Balbir Singh with an axe, Balbir Singh fell on the ground dead. Thereafter Baya Munda severed the head of Balbir Singh from his body with the help of the sword of Darsan Singh and both Baya Munda and Darsan Singh threw the body into a ditch. It is true that Ext. 25 does not contain as much details as Ext. 9, But Ext. 9 does not give that part of the story which occurred inside the jungle at the exact place of murder where accused No. 1 was not present.

Ext. 25 does not give all the details and the subsequent fact of concealment of the head of the deceased. It is unnecessary to repeat all the facts and circumstances which were detailed while discussing all the corroborative facts and circumstances detailed in the case of accused No. 1. The same evidence and circumstances corroborate the confession of accused No. 3. So far as this accused is concerned, the evidence of P.Ws. 19 and 20 (Kailash Das and Bidyadhar Das respectively) clearly establishes that soon after the murder, accused Nos. 2 and 3 went to Rourkela for work and worked there under false names by giving. false addresses of their residence also. This is a strongly-incriminating circumstance. Here also there is a reference to jungle as the place of murder. There is also the admission that all of them were in the truck with deceased Balbir Singh inside the jungle. The recovery of the severed head supports the confessional statement that the head was severed from the body.

The two injuries stated to by the doctor S. C. Hazra P.W. 6 support the confession made that they would be possible with an axe and sword. The doctor's evidence Is that the cut injuries were sufficient to cause death in the ordinary course of nature. The corroborative evidence is further reinforced by the statement under Section 342 Cr. P.C. where he admitted that accused No. 1 Baya Munda concealed the head and he had knowledge of It. He admitted that Baya Munda, Darsan Singh and accused No. 1 went into the jungle to load timbers and after sometime Baya Munda and accused No. 1 returned with the head of Baibir and concealed it in the moorum stack. In the memorandum of appeal all the three accused persons clearly admitted that they accompanied Darsan Singh and Baya Munda in the truck to the jungle with Baibir Singh and Darsan Singh and Baya Munda committed the crime and they were merely in the truck. The confessional statement therefore is corroborated in material particulars. It is therefore not necessary to examine, so far as this accused is concerned, as to how far the retracted confession (Ext, 9) of accused No. 1 which implicated him (accused No. 3) can be used for the purpose of corroboration of the retracted confession (Ext. 25) of accused No. 3. There is no confession regarding the offence under Section 404/511 I. P.C. and the materials on record are not sufficient to implicate him as the charge under this section is confined to the disposal of the truck. Accused No. 3 Raibu Patra is therefore liable to coviction under Section 302 and S. 201/34 I. P. C.

9. Now I would examine the case of Naku Majhi (accused No. 2). The confessional statement (Ext. 25) does not give the name of Naku Majhi directly though it refers to four coolies including accused No. 3. As the name is not directly given Ext. 25 is ruled out of consideration wnile examining the case of accused No. 2 --Ext. 9 however refers to Naku Majhi who told accused No. 1 that they would murder the owner. He had been into the jungle with the persons who committed the murder. He is therefore directly implicated in the offence under Sections 302/34 and 201/34 I. P. C.. It is necessary at this stage to examine how far the retracted confession of a co-accused would be the basis of a conviction of the non-confessing accused. The learned Government Advocate relied upon : 1959CriLJ90 , Ram Prakash v. State of Punjab which lays down that the confession of a co-accused even if retracted can be basis of a conviction if it is corroborated in material particulars. The law is well settled that the retracted confession of a co-accused can be taken into consideration against a non-confessing accused under Section 30 of the Evidence Act. It has been laid down in a series of decisions of the Supreme Court that, the confession of an accused person is not an evidence in the ordinary sense of the term as defined in Section 3 of the Evidence Act. It cannot be made the foundation of the conviction but can only be used in support of other evidence. The proper way is first to marshal the evidence against the accused excluding the confession altogether from consideration and then to see whether, if it is believed a conviction can be safely based on it. If it is acceptable of belief independently of the confession then of course it is not necessary to call the confession in aid. But cases may arise where a Judge is not prepared to act on other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to other evidence and thus fortify himself In believing what without the aid of the confession he would not be prepared to accept -- vide : 1952CriLJ839 , Kashmira Singh v. State of Madhya Pradesh, : 1956CriLJ152 , Nathu v. State of Uttar Pradesh, : 1957CriLJ481 .

: 1959CriLJ90 does not lay down any proposition to the contrary. Therein their Lordships observed that the Court would not ordinarily act upon such a confession under Section 30 to convict a co-accused without strongest and, fullest corroboration in material particulars and the corroboration in the full sense implies corroboration not only as to the factum of crime but also the connection of the co-accused with that crime. If the strongest and fullest corroboration in material particulars is essential, a conviction can itself be laid on those independent evidence. In that particular case, as would appear from paragraph 4 of the report, the independent evidence was the recovery of the ornaments, as given by the accused himself, recovery of a blood-stained dagger from his belongings and his conduct after the murder. Those three pieces of evidence would by themselves be sufficient to warrant a conviction and the confession of Primarily lent assurance to such a conclusion. I am therefore not inclined to accept the argument that : 1959CriLJ90 has laid down the law contrary to the proposition ruled in the previous decisions.

In the present case alia evidence of P.W. 1 clearly establishes the association of accused persons absconding after the crime. There is independent evidence that they went to Dhanbad and made certain purchases beyond their means probably with the help of the money taken from the pocket of the deceased. He had a motive for the murder. He also left the usual place of service at Barbil for Rourkela where he worked under a false name and false address regarding his 'residence. In his statement under Section 342 Cr. P.C. he admits that he had seen the murder though he did not participate in it. So on his own admission lie was in the company of the murderers at the time; of the murder. He, however, admits that accused No. 1 and Baya Munda concealed the head of the deceased. Su he was present at the time when the severed head was-concealed. In the memorandum of appeal he admits to have-gone into the jungle in the truck with other accused persons and the absconders and was present at the time of the murder and concealment of the head. The circumstantial and direct evidence from the record establishes that he was in the association of the murderers with the common intention of killing the deceased Baibir Singh and was also in their association while the head was concealed. The confessional statement of accused No. 1 lends assurance to-such a conclusion. He is therefore guilty under Sections 302/34 and 201/34 I. P.C. For reasons already given in the case of other accused persons, the offence under Section 404/511 I. P.C. is also not made against him.

10. Accused No. 1 Abdul Hanan and accused No. 2 Naku Majhi are therefore each convicted under Sections 302/34 and 201/34 I.P.C. and acquitted of the offence under Section 404/511 I. P.C. The sentence of imprisonment for life passed against them under Section 302/34 I. P.C. are maintained and no separate sentence is passes under Section 201/34 I.P.C. The sentence of two years' R.I. passed against them under Section 404/511 I. P.C. by the learned Sessions Judge are set aside.

So far as accused No. 3 Raibu Patra is concerned the sentence passed against him under Section 404/511 I. P.C. is also set aside and he is acquitted of the said offence. No separate sentence under Section 201/34 I. P.C. is also passed against him. But his sentence under Section 302 I.P.C. as passed by the learned Sessions Judge has given us considerable anxiety. I agree with the learned Sessions. Judge that this is a well calculated gruesome murder for gain and is one of the most heinous type. It is also a faithless act done against the master in whose truck these; accused persons used to work. On that basis, speaking for myself I was not able to make a distinction amongst the accused persons. I am unable to agree with the view of the learned Sessions Judge that the shade of criminality of these three accused persons is in any way different though the fatal blow was given by the accused No. 3. It is a dastardly conspiracy and heinous act. I am in agreement with the view of the learned Sessions Judge that Raibu Patra (accused No. 3) rightly deserves the death sentence.

On this point my learned brother takes a different view. Manifestly Darsan Singh, the absconding driver, is the arch villain and is the brain behind the conspiracy. In the confessional statement (Ext. 25) Raibu Patra states that it was under threat of death that he gave the axe blow. Though that by itself is no justification for such an act, the being a camp follower, my learned brother is of this view that an extreme penalty should not be imposed in such a case. : 1955CriLJ572 , Pandurang v. State of Hyderabad lays down that when there is a difference of opinion in the High Court on the question of sentence, the accused is entitled to benefit of doubt and the death penalty should not be imposed. In the circumstances, I do not propose to disagree with my learned brother. I therefore, reduce the sentence of death to one of imprisonment for life.

11. In the result the Death Reference is discharged and the Criminal Appeal is allowed in part as indicated above. The sentence of imprisonment for life imposed on 5k. Abdul Hanan (accused No, 1) and Naku Majhi (accused no. 2) are confirmed and the sentence of death imposed on Raibu Patra (accused No. 3) by the learned Session Judge is reduced to one of imprisonment for life under Section 302 I. P. c.

R.K. Das, J.

I agree that Sk. Abdul Hanan and Naku Majhi should de convicted under Sections 302/34 and 201/34 I.P.C. Raibu Patra under Sections 302 and 201/34, I.P.C, Regarding the sentence of Raibu Patra (accused No. 3) my Jearned brother has already given an indication of my view in the matter. I am of opinion that the case of Raibu Patra does not stand in any different footing from that of the other two accused persons so as to justify any discrimination in the matter of sentence. It also appears from the confessional statement of Raibu Patra that he was not a willing party to the crime and committed the act under the threat of Darsan Singh though no doubt that by itself would not justify the act committed by him. He should therefore receive the same sentence as is awarded to the other two appellants and there is no reason to impose the extreme penalty on him.


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