Calcutta High Court
Dhiren Ghata And Ors. vs State Of West Bengal on 19 July, 2005
Equivalent citations: (2006)1CALLT475(HC), 2005(4)CHN456
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
JUDGMENT V.S. Sirpurkar, C.J.
1. The appellants challenge in this appeal the judgment by the Id. Additional Sessions Judge, Alipore convicting the accused for an offence under Section 364 read with Section 34 IPC and sentencing them to suffer rigorous imprisonment for seven years and also to pay a fine of Rs. 1,000/- each. Initially all the accused persons were also charged for the offence under Section 302 IPC. However, the Trial Court has not convicted them for an offence under Section 302 IPC though there is no clear order of their acquittal anywhere in the judgment. It is only to be presumed from the judgment that all the accused have been acquited of the offence under Section 302 IPC.
2. Shortly stated the prosecution case was that the accused persons used to run a distillery at a village called Buita (perhaps illegally) and one Sannyashi Singh used to work with them at a monthly salary of Rs. 150/-. That there was some dispute on account of the arrears of wages of Sannyashi Singh as he was not paid the same. He is therefore alleged to have broken some pitchers containing molasses and therefore on the day earlier to the fateful day at about 9.30 p.m., the accused persons had come in search of Sannyashi Singh and complained to his father-in-law Dudh Kumar Santra that his son-in-law Sannyashi had caused damage to their distillery and therefore, they wanted to take him with them and would not allow him to go to his house so long as he compensated the loss. The said Dudh Kumar did not allow Sannyashi to go along with them. At about 8 a.m. on the following day, the accused persons again came to the house of the complainant Dudh Kumar and represented that since the damage was already done, there was no point in any quarrel over the issue and further said that they would take Sannyashi with them for doing his work as usual. It is the case of the prosecution that Sannyashi thereafter never returned from his place of work and hence a search began whereupon Sannyashi was found lying dead near the said distillery. This was reported to Dudh Kumar who also went and saw his son-in-law lying dead and therefore, on the following morning then informed the incident to the police at Budge Budge Police Station which was registered as Case No. 26 dated 18.8.1980. The usual investigation was carried out and after recording the statements of the witnesses etc. the chargesheet came to be filed for the offence under Section 302 IPC read with Section 34 along with Section 364 read with Section 34 IPC.
3. The matter was committed to the Court of Sessions and before the Sessions Court, the defence was that of denial. The accused denied the very existence of the liquor distillery. They also denied that Sannyashi Singh ever worked with them or there was dispute between them and Sannyashi on account of any wages etc. Their case was that they were falsely implicated in this case due to party rivalry. At the stage of trial, the prosecution relied on the evidence of the persons who had seen the accused persons having visited Dudh Kumar on the previous night. Some witnesses were examined to suggest that deceased Sannyashi Singh had accompanied the accused persons. Some witnesses were also examined to suggest that the accused were actually seen in the afternoon at the said distillery and rest of the witnesses were examined to suggest that Sannyashi was found dead on 18.8.1980. Some police witnesses were also examined along with the doctor.
4. The ld. Sessions Judge came to the conclusion that though it was proved that Sannyashi was taken in the morning of the fateful day by the accused persons, there was nothing to suggest that they committed the murder. The learned Sessions Judge also held that the intention of the accused for taking Sannyashi Singh along with them was to punish him by torturing and have they 'deceitfully' took him along with them. The learned Sessions Judge acquitted the accused persons for offence under Section 302 IPC or at least, he did not record any conviction for that offence and convicted the accused for the offence under Section 364 read with Section 34 IPC. It is this conviction which is challenged before me.
5. At the outset, the contention of the ld. Counsel for the appellants was that there was no challenge to the acquittal under Section 302 IPC by the State and therefore, the only offence that could be considered by this Court was under Section 364 IPC. The ld. Counsel contended that there was no question of any abduction of Sannyashi Singh as he was a grown-up man and had accompanied the accused persons voluntarily on his own will. The further contention was that there was no deceit or force used by the accused persons to take Sannyashi along with them and therefore, there was no question of any offence of abduction. It was pointed out that abduction itself was not an offence unless and until the abduction was done with an idea to cause physical harm and deceit or force was practised by the accused for such an abduction. The Id. Counsel contended that since there was no deceit or force exercised by the accused, there would be no question of the accused for an offence under Section 364 IPC. I was thoroughly taken through the evidence of the witnesses.
6. As against this, the learned Public Prosecutor very strongly urged that this was a case where in reality all the accused should have been found guilty of the offence under Section 302 IPC and it was amply proved that they had taken Sannyashi along with them and that was the last time when Sannyashi was seen alive. The ld. Public Prosecutor urged that on account of this, it was clear that the accused persons had to give explanation as to what happened to Sannyashi who was last seen alive in the company of the accused. He therefore says that though there was no appeal against the acquittal of the accused of the offence under Section 302 IPC, this Court would be justified in upholding the conviction under Section 364 IPC. Therefore, the ld. Public Prosecutor contended that the accused had deceitfully persuaded the said Sannyashi to accompany them and falsely representing that there was no intention to raise the old issues when in fact, they had intended to do away with Sannyashi. It is on the basis of these rival contentions that it has to be seen whether there is any justification for the conviction of the offence under Section 364 IPC.
7. There can be no question of reconsidering the verdict of the Court regarding the offence under Section 302 IPC which has remained unchallenged. The judgment of the Court is extremely unhappy in so far as the question of the liability of the accused for an offence under Section 302 IPC is concerned. There is no proper appreciation of evidence at all nor was there any attempt to find out the liability of the accused. The judgment is utterly confusing and shows absolutely no application of mind as to what offence was committed by the accused. It is as if the Court was taking advice from the Public Prosecutor and thereafter chose to convict the accused for offence under Section 364 IPC while acquitting them for offence under Section 302 IPC.
8. Here was a case where the doctor has opined in his evidence that he had found the lungs and the heart to be congested which was caused by throttling. Here was also a case where the deceased was found in the company of the accused in the afternoon and the deceased was not thereafter seen alive by anyone. It was therefore for the accused persons to explain as to what had happened to the deceased who was in their company and was not seen thereafter. No such effort was ever made by the Trial Judge and the judgment is sadly wanting on those points resulting in grave injustice. It is noteworthy that the ld. Judge had made no attempt to consider independently the evidence for the complicity of the accused for offence under Section 302 IPC. The judgment is so casual that even in the operative part, the Trial Court has not bothered to record the finding of acquittal for an offence under Section 302 IPC. The Court expresses deep dissatisfaction over the state of affairs. However, the Court is not in a position to accept the argument of the Public Prosecutor that the finding of acquittal should be re-examined by this Court. It is clear that once that acquittal had remained unchallenged and has not been appealed against by the State, that finding of acquittal cannot be interfered with or even considered in the appeal filed by the accused against the conviction for other offence. That is the proposition obtained from the reported judgment of the Supreme Court in (State of Andhra Pradesh v. Thadi Narayana). It will therefore be the task of the Court to find out as to whether at least the conviction for offence under Section 364 IPC has been rightly recorded.
9. Unfortunately even there the prosecution has to draw blank. The Sessions Judge unnecessarily allowed the repetition of evidence by allowing examination of witnesses who were merely repeating the story. The aspect of earlier day when Sannyashi was found in the house of his father-in-law, is repeated by unnecessary number of witnesses, P.W. 1 - Dudh Kumar Santra, P. W.2 - Hemlata Santra, his wife, P.W. 3 - Saraswati Singh, P.W. 4 - Lakshmi Kalshi, mother-in-law of P.W.1, P.W. 6 - Basudev Kalshi, P.W. 7 - Sabitri Kalshi, P.W. 8 -Gandhi Kalshi, P.W. 9 - Buddehswar Singh are all the witnesses who told the same story regarding there being a dispute between the accused persons and the deceased, further regarding the deceased returning from his place of work and the accused persons coming to the house of P.W.1 and asking him to hand over Sannyashi to them and again the visit of the accused persons on the next day stating that then everything was already over and there was no dispute left. It is not known as to what was the necessity for adding so many witnesses. Unfortunately, it seems that the Trial Judge had no control over the trial at all and he allowed the repetition of the evidence merrily without even bothering to control the proceedings. A Trial Judge cannot sit as an icon and cannot be a mute spectator. He has to control the trial, he has to avoid repetition of witnesses, he has to be vigilant and watchful that the proper evidence comes and the unnecessary repetition is avoided. Unfortunately, nothing of the sort took place in this trial. All that has come from the evidence of the witnesses is that the accused persons came to the house of P.W.1 at night. They wanted Sannyashi to go with them. However, Sannyashi was not allowed to go with them that night and next day again in the morning, the accused persons went to the house of P.W.1 and then Sannyashi accompanied them since the accused persons claimed that nothing could be done for the damage caused by Sannyashi and that he should resume his work. None of these witnesses has ever claimed that there was any force practised against Sannyashi or there was any deceit practised against him. Nobody has claimed that Sannyashi did not want to go or that he was made to go because of the false representation of the accused-persons or at least any force shown by them. On the other hand, all the witnesses have very clearly stated that the accused persons said that there was now nothing to be done and the loss caused should not now be retrieved and therefore Sannyashi should, as usual, work with them and therefore, Sannyashi went with the accused persons. If this is the state of affairs, it cannot be said that the important ingredient of the offence under Section 364 IPC was proved by the prosecution. Abduction by itself is not made punishable. The abduction if done using force or deceit with a particular motive of punishing or harming the person abducted, then alone it becomes an offence. Section 362 IPC defines 'abduction' and suggests that if a person is compelled to go from a place as a result of force or by deceitful means, then the said person is stated to be abducted. However that by itself is not an offence and the offence is to be found only in Section 364 IPC where it is proved that when any person is abducted in order that he may be murdered or may be so disposed of as to be put in danger of being murdered, then such person would be guilty of abducting in order to murder. Now when we see the judgment, such finding is sadly wanting. The Trial Court has simply written a finding that Sannyashi accompanied the accused persons from his house in the morning. There is no proper finding or any finding at all that any force was practised against him or that he was deceitfully induced to accompany them or that all this was done in order to either murder him or to endanger his life. The Trial Court has not even bothered to sift the evidence to find out as to whether such inference could be drawn that the accused persons had firstly practised force or had induced Sannyashi by deceitful means to accompany them and that they had the objective to commit murder of Sannyashi. Beyond stating that a particular witness has stated something, the Trial Court has not bothered to appreciate the evidence. Under such circumstances, it is very difficult to uphold the conviction for an offence under Section 364 IPC. Beyond saying that the accused took the deceased along with them and the deceased accompanied them in the morning, nothing has been stated by any of the witnesses named above.
10. There is no doubt that one of the witnesses, P.W.16 - Smt. Anita Ghata, deposed that Sannyashi had accompanied the accused Dhiren, Ratikanta, Bhola and Balai and that in the afternoon she went to the field near 'Bhatikhana' for collecting leaves and the firewood and that she heard accused Dhiren Ghata addressing to Sannyashi as to who would pay for the loss caused by breaking of pots containing molasses and since Sannyashi did not give any reply, Dhiren had said that he would disfigure his face by beating. However, even this witness does not say that Sannyashi was brought against his will. We cannot forget that Sannyashi was a grown-up person. He was working along with the accused and though there was some strained relationship on account of his having broken the pots containing molasses, he ultimately did accompany the accused on his own. He was a major person and not a child. So there is absolutely no question of either force or deceit. It may be that when the accused persons went in the morning to the Sannyashi's house, they needed his help for the work. After all, it is a known fact that in such illegal activities like manufacturing illicit liquor, very few people are prepared to work as the helpers. Therefore a possibility cannot be ruled out that they genuinely needed the help of Sannyashi and therefore, persuaded Sannyashi to accompany them to the workplace. But that would not mean that they had committed an offence under Section 364 IPC merely because Sannyashi was ultimately found dead after he accompanied the accused. The incident of murder could have been developed on the spot also; but it cannot be said, in the absence of any evidence, that the accused had intended to murder Sannyashi or punish him. For that purpose, the State should have been vigilant and challenged the order of acquittal for an offence under Section 302 IPC. The State has not chosen to do that. Therefore, in my opinion, it cannot be said with certainty that the accused persons had planned the murder and therefore, deceitfully or forcibly took Sannyashi along with them.
11. It has already been pointed out that the investigation in this case was extremely slipshod. No attempt was made to show the illegal activities of the accused at 'Bhatikhana'. No evidence was collected as to whether the land at 'Bhatikhana' belonged to the accused persons and what was their nexus with that particular spot. No attempt was also made to find out properly the collecting evidence regarding the death of Sannyashi. Even the prosecuting agency remained silent by examining witness after witness to speak the same facts regarding the accused visiting P. W. 1's house at night and then again returning in the morning land going from there to 'Bhatikhana' along with the deceased. Unfortunately there is no question of an offence under Section 302 IPC which cannot be reopened and considered by this Court. All the significance of the evidence is lost. The Court expresses deep dissatisfaction over the apathy of the State in not appealing against the verdict of acquittal for Sannyashi's murder. That was the least that the Public Prosecutor could have done. Again very surprisingly it was the Public Prosecutor, according to the learned Trial Judge, who pressed for the conviction only under Section 364 IPC and not under Section 302 IPC. There was something wrong somewhere. It is surprising that the Court also left it to the Public Prosecutor to decide as to which offence should be pressed in service. The Court did not have to seek the advice of the Public Prosecutor. It had to decide itself. However all this has now become superfluous because of the apathy on the part of the State Government even to appeal against a verdict which was not a verdict in the eyes of law. Under the circumstances, the finding recorded by the Trial Court regarding the offence under Section 364 IPC. can also not be sustained because the essential ingredients under that Section had neither been proved by the prosecution much less beyond the reasonable doubt. Under the circumstances, the appeal succeeds. All the accused persons are directed to be acquitted. Their bail bonds shall be cancelled. Fine, if paid, be refunded.