JUDGMENT : 1. This appeal is directed against the judgment and order dated 7.08.2014, passed by the learned Sessions Judge, Bongaigaon in Sessions Case No.93(K)/2006, whereby the learned Sessions Judge convicted the appellants under Section 302/307/34 IPC and sentenced them to Rigorous Imprisonment for life and a fine of Rs.2,000/- each with default stipulation. 2. As per the prosecution case on 19.03.1992, when the victims Jisnu and Tapan Brahma along with their friends were coming back from the house of one Tuke Bahadur, one police personal belonging to 7th APBN opened fire upon them without any provocation. Both Jisnu Basumatary and Tapan Brahma sustained bullet injuries and Jishnu Basumatary succumbed to the injuries. Initially a GD entry was made on the basis of an information given by one Saheb Bahadur, in-charge of 7th APBN, to the effect, that two boys suspected to be involved in the previous day’s incident were shot by the police and both the injured were sent to hospital. In the meantime, A.R. Basumatary, father of the deceased, Jishnu, lodged the FIR, Exhibit- 3.On the basis of the said FIR (Ex 3), police registered Kokrajhar PS Case No.68/1992 under Sections 302/326/307/34 IPC. During investigation, police arrested both the accused/appellants and seized one ‘303’ rifle and 3 numbers of empty cases of ‘303’ cartridges from the appellant Narendra Nath, constable No.237, vide Exhibit-13, seizure list. One ‘303’ rifle with a baynot was seized from the accused/appellant Rabiram Bhuyan. PW-10, the Executive Magistrate, prepared the inquest report. The investigating officer recorded the statement of the witnesses and the dead body was sent for post-mortem examination. 3. PW-11 Dr. One ‘303’ rifle with a baynot was seized from the accused/appellant Rabiram Bhuyan. PW-10, the Executive Magistrate, prepared the inquest report. The investigating officer recorded the statement of the witnesses and the dead body was sent for post-mortem examination. 3. PW-11 Dr. Syed Mainul Hoque conducted the post-mortem examination on the body of the deceased and found the following injuries: (1) One charred entry wound of bullet at the middle of the left arm at the (illegible) posterior axillary line circular, 1 cm diameter present, one exit wound at the junction of the upper & middle part of left arm at the anterior axillary line circular margins everted & diameter 1.5 cm present, one charred area of injury over the left side of the chest extension from left side of middle part of sternum to left, quadrangular in shape, irregular margins & loss of skin & subcutaneous tissues sixed 4” × 5” exposing the muscles presents, one charred entry would present on lower & medial part of this area circular and 1 cm in diameter, one exit wound present just lower end of posterior fold of axilla margins everted, circular and diameter is 1.5 cm. One abrasion over the forehead of 1t. Side present 1” × ½” (ii)Walis ribs and cartilages : Wall blood stained Rib – 3rd fractured at the thrice inter coastal (illegible) spaxce medially other healthy. (iii)Pleura of Rt. Lung healthy, but that of left lung lacerated and blood present in the left pleural cavity. (iv) Left lung : Upper lobe lacerated at the medial surface lower part, lower lobe lacerated at the medial surface upper part. (v) Pericar (dium) : Lacerated (vi) Heart : Two lacerations present over the antero lateral surface of left ventricle, heart empty. The doctor opined, that the death was due to shock and haemorrhage following antemortem firearm injury. It was also elicited during cross-examination of the doctor, that the deceased was shot from a distance of within 1 feet. 4. (v) Pericar (dium) : Lacerated (vi) Heart : Two lacerations present over the antero lateral surface of left ventricle, heart empty. The doctor opined, that the death was due to shock and haemorrhage following antemortem firearm injury. It was also elicited during cross-examination of the doctor, that the deceased was shot from a distance of within 1 feet. 4. During investigation, both the accused persons expressed their willingness to make confession and the accused persons were produced before the Judicial Magistrate, PW-13, Golam Sarwar Sarkar, who initially cautioned both the accused persons as to the consequence of confession and having been satisfied about their voluntariness to make confession, they were given sufficient time for reflection and after reflection, the Judicial Magistrate again cautioned them and having been satisfied about the voluntariness of the accused persons to make confession, recorded their confession as per the provisions of law, which were proved as Exhibit- 4 & Exhibit-5. 5. Both the accused Narendra Nath and Rabiram Bhuyan stated in their confession as follows: Narendra Kr. Nath Seeing me, the five boys returned their vehicles. After halting one scooter, two boys armed with pistol, ran away. One boy got off from the motor cycle and ran away with pistol in hand. As soon as I saw pistol, I shot at the wheel of the vehicle to stop the vehicle. The bullet hit a boy and the boy fell down on the ground. About that time I fired another gunshot. That bullet hit the other boy and this boy also fell down on the ground. I opened fire from a distance of about 50 (fifty) yards. When the two boys fell down on the ground I went near them. Constable Rabiram Bhuyan came immediately and he fired a gunshot. I did not see any weapon with the two boys. The two boys were brought to hospital by our vehicle. I heard that one of the boys had died and that and that the other boy is alive. I know the two boys but I do not know their names. On 18.03.92, these two boys shot dead police personnel and took away three rifles, one steno-gun and ammunition from us. Rabiram Bhuyan Constable Narendra Nath could identify the boys to be the ones who had been involved in the incident that had taken place on the previous day. I know the two boys but I do not know their names. On 18.03.92, these two boys shot dead police personnel and took away three rifles, one steno-gun and ammunition from us. Rabiram Bhuyan Constable Narendra Nath could identify the boys to be the ones who had been involved in the incident that had taken place on the previous day. Narendra Nath called – “Bhuyan, Bhuyan.” I immediately went near Narendra Nath in a run. Aiming at the boys, Narendra Nath opened fire in the direction of the motor cycle. Then a boy got shot and he fell down from the motor cycle. Narendra Nath fired another gun shot. The other boy also fell down. About that time, the third boy took out pistol and aimed at us. As soon as he aimed the pistol at us, I opened fire aiming at him. But the bulled did not hit him and he fled away. 6. On completion of investigation police submitted charge-sheet against the accused/appellants under Sections 302/307/326/34 IPC and eventually both of them stood trial. 7. During the trial, both the appellants denied the charges. Prosecution examined 15 witnesses to bring home the charges and after completion of the prosecution evidence, the accused persons were examined under Section 313 Cr.P.C. During their examination under Section 313 Cr.P.C., both the appellants retracted from their confession and stated that they did not make the confession voluntarily and the Officer-in-charge of Kokrajhar PS compelled them to make the confessional statement. They further stated during examination under Section 313 Cr.P.C, that on 18.03.1992 some Bodo extremist killed two police personnel’s and on the day of occurrence, there was exchange of firing between Bodo extremist and police. 8. We have heard Mr. B.K. Mahajan, learned counsel assisted by Mr. N Mahajan and Mr. N.J. Das, learned counsel for the appellants and Mr. P.P. Baruah, learned Public Prosecutor assisted by Mr. M Phukan, learned Additional Public Prosecutor, Assam. 9. Though, both the accused persons retracted the confession during examination under section 313 Cr.P.C. and stated to have made the confession under threat by Officer-in-charge of the Kokrajhar Police station, such explanation of both the accused persons was hardly convincing for the simple reason, that both of them were police personnel. M Phukan, learned Additional Public Prosecutor, Assam. 9. Though, both the accused persons retracted the confession during examination under section 313 Cr.P.C. and stated to have made the confession under threat by Officer-in-charge of the Kokrajhar Police station, such explanation of both the accused persons was hardly convincing for the simple reason, that both of them were police personnel. Confessional statement was recorded on 27.03.1992 and the accused persons retracted the confession on 02.06.2014 i.e., after 22 years and there was no evidence to show that during these long 22 years they ever made any complain of threat or coercion, compelling them to confess. The Apex Court in Shankaria Vs. State of Rajasthan (1978) 3 SCC 435 : AIR 1978 (SC) 1248 , in case of belated retraction of confession, observed that where confession was retracted after lapse of several months, where prosecution evidence was closed and during examination under Section 313 Cr.P.C., it was held to be voluntary. This apart, PW-13, the Judicial Magistrate, who recorded the confessional statement, deposed, that both the accused persons made the confessional statement voluntarily and they were given sufficient time for reflection. PW-13 further deposed, that having been satisfied about the voluntariness, he recorded the confessional statement. There was no reason for the PW-13, the Judicial Magistrate to depose falsely. In the above facts and circumstances, we are of the considered opinion that the confession made by the appellants were voluntary and can be acted upon without any hesitation. 10. Both the appellants candidly stated in their confession that appellant Narendra Nath shot both the victims by his rifle. In order to justify his action, the appellant Narendra Nath stated that on 18.03.1992, those two boys shot dead police personnel and took away arms and that he shot from a distance of 50 yards when they tried to leave the place defying police signal. He further stated that at first he shot at the wheel of the bike to stop them. Whereas, during examination under Section 313 Cr.P.C. both of them stated that there was exchange of fire between police and Bodo extremist and police fired in the air. Evidently, only three bullets were fired, out of which, two bullets hit deceased Jishnu, inasmuch as two charred entry wound and two exit wounds were found on his body. The other bullet hit Tapan. Evidently, only three bullets were fired, out of which, two bullets hit deceased Jishnu, inasmuch as two charred entry wound and two exit wounds were found on his body. The other bullet hit Tapan. As per PM report, one charred entry wound was on the chest and the other was on the middle of the left arm. Thus, the explanation of firing from a distance of 50 yards was rendered false and concocted by the above unshaken medical evidence, which demonstrated that the deceased Jishnu was shot from a point blank distance of less than one feet. Thus, the story of firing at the wheel of the vehicle was also rendered totally unworthy of trust, inasmuch as, as per evidence brought on record, only three rounds of bullet were fired. Firing of only three bullets was also reinforced by the evidence of PW-11 and seizure list Exhibit-3, which shows that only three empty cases of cartridge were seized from Narendra Nath. The medical evidence stating that all the injuries were on the upper portion of the body including chest, also belies the story of firing at the wheel. The falsity of the explanation advanced by the appellants coupled with the medical evidence and confessional statement of the appellant, left no room for doubt, that the victim Jishnu was shot dead from point blank distance of less than one feet by appellant Narendra Nath. 11. PW-12 Dhruba Mazumdar stated that he and Gyanendra Mushahari were going by scooter and Jishnu and Tapan Brahma were on a motor cycle. As their scooter developed some mechanical problem, Tapan Brahma and Jishnu Basumatary moved a little ahead of the them and while they were busy with their scooter, they heard the sound of a gunshot and noticed that Tapan fell down. He further stated that Tapan and Jishnu were surrounded by battalion personnel and when they tried to flee, they heard the sound of another gun shot. The statement of this witness was recorded under Section 164 Cr.P.C., which was proved as Exhibit-8. In his previous statement recorded under Section 164 Cr.P.C. also he stated clearly that the police personal surrounded Tapan and Jishnu. The statement of this witness was recorded under Section 164 Cr.P.C., which was proved as Exhibit-8. In his previous statement recorded under Section 164 Cr.P.C. also he stated clearly that the police personal surrounded Tapan and Jishnu. Thus the consistent statement of Dhruba, who was present at the place of occurrence, that the police personnel surrounded Jishnu and Tapan and shot at them, lent support to the medical evidence, that the deceased was shot from point blank distance. 12. PW-2 Gyanendra Mushahari deposed that when he along with his friends Jisnu Basumatary, Dhruba Mazumdar and Tapan Brahma were coming back, the police personal asked them to stop. According to him, injured Tapan Brahma (PW-5) and deceased Jisnu Basumatary were on a motor cycle, and he was travelling in scooter with Dhruba Mazumdar (PW-12) and they were lagging a little behind. He also stated to have heard the sound of gun shots. 13. PW-3 Sonit Konwar, a police constable, who was present near the place of occurrence, stated, that Narendra Nath opened fire with his gun and the two boys who came by the motor cycle, got hit by bullet and fell down.PW-5 Tapan Brahma, who was accompanying the deceased and sustained bullet injuries deposed that he was riding his motor cycle and Jisnu Basumatary (deceaseds) was the pillion rider. According to him, police persons shot at him and receiving bullet injury he fell down and later on he came to know that Jishnu Basumatary was also shot dead by the police. 14. Thus, the confessional statement of both the appellants coupled with the oral testimony of PW-2, PW-3, PW-5 and PW-12 and the exhibit-13, seizure list which shows that three empty cartridges were seized from accused Narendra Nath, supported by the medical evidence, leaves no room for doubt that it was none but Narendra Nath, who shot at the victim Jishnu Basumatary and Tapan Brahma and death of Jishnu Basumatary was caused by bullet injury. Evidently, no arms and ammunition was recovered from the deceased. 15. According to medical evidence of PW-11, two charred entry wounds were found in the body of victim Jishnu, of which, one was on the chest and the other injury was on the arms. Evidently, no arms and ammunition was recovered from the deceased. 15. According to medical evidence of PW-11, two charred entry wounds were found in the body of victim Jishnu, of which, one was on the chest and the other injury was on the arms. Shooting a person on the chest, from point blank distance of less than 1 feet, speaks loud and clear, that the intention of the perpetrator of the assault was none other than to cause death. Therefore, all the above evidence proved beyond reasonable doubt that appellant Narendra Nath intentionally caused death of the victim Jishnu. 16. Apparently there was no reliable evidence indicating involvement of the appellant Rabiram Bhuyan, in perpetration of the offence. However, learned trial court convicted him with the aid of section 34 IPC. Though Rabiram Bhuyan stated in his confessional statement, that when the third boy took out pistol, he fired aiming the boy, but the bullet did not hit the boy as he ran away. The statement of the appellant Rabiram regarding the presence of a third boy along with Jishnu (deceased) and Tapan and appellant Rabiram Bhuyan firing at him appears to be far from truth, reason being that no empty cartridge was seized from Rabiram Bhuyan. This apart, PW-2, PW-5 and PW-12 categorically stated that two boys were on scooter and two boys i.e. deceased Jishnu and injured Tapan were on the motor cycle and there was no third boy with Jishnu and Tapan. Admittedly, both the injured Tapan Brahma and deceased Jishnu Basumatary were shot by the accused appellant Narendra Nath. Therefore, evidently, Rabiram Bhuyan arrived at the place of occurrence later, inasmuch as, Narendra Nath stated in his confessional statement that when the two boys fell down, on being shot by him, constable Rabiram Bhuyan came. Appellant Rabiram Bhuyan also stated in his confession, that on being called by Narendra Nath he came running, meaning thereby Rabiram was not with Narendra Nath when he shot at Jishnu and Tapan. Evidently, appellant Narendra Nath and Rabiram Bhuyan were not together and they were on different places and on being called by Narendra Nath, Rabiram Bhuyan came to the place of occurrence. Therefore, prior meeting of minds of both the appellants, or common intention to shoot the victims was totally absent. Evidently, appellant Narendra Nath and Rabiram Bhuyan were not together and they were on different places and on being called by Narendra Nath, Rabiram Bhuyan came to the place of occurrence. Therefore, prior meeting of minds of both the appellants, or common intention to shoot the victims was totally absent. In absence of such evidence, accused Rabiram Bhuyan could not be held to have shared any common intention with Narendra Nath to perpetrate the offences. 17. Thus, the evidence brought on record proved beyond reasonable doubt, that accused Narendra Nath shot the victim Jishnu Basumatary and Tapan Brahma causing injury to Tapan and death of Jishnu Basumatary with the sole intention to cause death and, as such, we are of the firm view that the conviction rendered and sentence imposed on the accused appellant Narendra Nath by the learned trial Court do not call for interference. Therefore, we do concur with the finding of the learned Sessions Judge so far the conviction and sentence of the accused Narendra Nath is concerned. So far the appellant Rabiram Bhuyan is concerned, we are unable to concur with the finding of the learned Sessions Judge holding him guilty under Section 302 IPC with the aid of section 34 IPC, inasmuch as, prosecution evidence is found grossly inadequate to indicate even remotely, that Rabiram Bhuyan shared any common intention with accused Narendra Nath to kill the victim Jishnu Basumatary. 18. We are therefore, in complete agreement with the finding of the learned trial Court so far the conviction and sentence of accused Narendra Nath is concerned and accordingly, the conviction and sentence of accused/appellant Narendra Nath is hereby upheld. So far the accused Rabiram Bhuyan is concerned, we are of considered opinion that charge against Rabiram Bhuyan was not proved beyond doubt, in absence of any evidence of common intention and as such, conviction and sentence of Rabiram Bhuyan is held not sustainable. Accordingly, the conviction and sentence of the appellant Rabiram Bhuyan is set-aside. 19. The appeal so far as the appellant Rabiram Bhuyan is concerned stands allowed and so far as the appellant Narendra Nath is concerned, stands dismissed. 20. The accused Rabiram Bhuyan be released immediately, if not required in any other case. 21. Send down the LCR.