Calcutta High Court
Sanatan Alias Sona Layek vs State on 13 June, 2005
Equivalent citations: 2006CRILJ1025, 2006 CRI. L. J. 1025, 2006 (2) AJHAR (NOC) 440 (CAL), 2006 (3) ABR (NOC) 427 (CAL), (2006) 3 EASTCRIC 171, (2006) 2 ALLCRILR 760
JUDGMENT G.C. De, J.
1. This appeal by the convict Sanatan alias Sona Layek is directed against the judgment and order of conviction and sentence dated 5-6-1998 passed by the learned Additional Sessions Judge, 5th Court, Midnapore in S.T. Case No. XLIX/ July/97 arising out of G.R. Case No. 1967/ 88. By the said judgment the convict was found guilty under Section 396 of I.P.C. convicted him thereunder and was sentenced to suffer imprisonment for life and also to pay a fine of Rs. 2000/- i.d. to undergo R.I. for six months. By the said judgment other three accused persons, namely 1) Anil Patra alias Methra, 2) Diban alias Manu Mandi and Zebra Ari alias Gour Bera were found not guilty to the charge under Section 396 of I.P.C. and accordingly all of them were acquitted under Section 235(2), Cr. P.C.
2. Prosecution case in brief is that four persons, namely, Ramkrishna Ponda, Ratikanta Adhikary, Bimal Das and Rampada Sau while returning to their village home at Pasang from Radhamohanpur Railway Station within District Midnapore they were intercepted by a gang of dacoits, were assaulted, robbed of the belonging, tied up and kept detained and Bimal Das was forced to take a group of the dacoits to his house. In the house of Bimal Das the dacoits took away the ornaments and other valuables. Thereafter on hearing hue and cry from the house of Bimal Das the villagers assembled and also went to the place where the other three villagers were kept detained by the dacoits. There they found Ramkrishna, Ratikanta and Rampada Sau in injured condition and they shifted the injured persons to Pasang Primary Health Centre where Rampada Sau was declared dead by the Medical Officer. However, Ramkrishna and Ratikanta were treated.
3. Meanwhile the elder brother of Bimal Das lodged a written complaint (Badal Das P.W. 1) to the local P.S. on the basis of which formal F.I.R. was drawn and Debra P.S. Case No. 2 dated 5-12-1988 was started at 8.15 hours. The case was investigated by police in course of which stolen articles were recovered from different places and few of the accused persons were arrested. They were placed in the T.I. Parade where Bimal Das identified the convict Sanatan alias Sona Layek and Dilip (since absconded).
4. On completion of the investigation police submitted charge-sheet and the case was committed to the Court of Session.
5. Charge under Section 396 of I.P.C. was framed against four available accused persons on 16-9-1997. On 15-1-1998 another charge under Sections 396 and 412, I.P.C. was also framed against accused-Arun Routh.
6. The accused persons pleaded not guilty to the charge for which altogether thirty two witnesses were examined by the prosecution.
7. After considering the evidence adduced by the witnesses the learned Sessions Judge came to the finding that charge under Section 396 of the I.P.C. was proved against the accused-Sanatan and accordingly he was found guilty thereunder and convicted and sentenced him in the manner indicated hereinabove.
8. At the very outset it is to be mentioned that though the appeal was filed by the convict Sanatan from the jail, ultimately Mr. Debasish Roy, learned Counsel appeared on behalf of the convict. Mr. Biplab Mitra, learned Counsel appeared on behalf of State.
9. In course of hearing of this appeal Mr. Debasish Roy argued at length pointing out that the prosecution failed to connect the convict Sanatan with the charge under Section 396, I.P.C. for which he is liable to be acquitted.
10. On the other hand, Mr. Mitra, learned Counsel appearing on behalf of the State scanned the evidence on record and contended that charge under Section 396, I.P.C. was proved against the convict for which the appeal is liable to be dismissed.
11. After a due consideration of the evidence on record and the submissions made by the learned Counsel of both sides it appears that the entire operation of dacoity continued from 18.20 hours of 4-12-1988 to 00-45 hours of 5-12-1988 i.e. for about six hours. It also appears that initially four persons Rampada Sau (deceased), Ramkrishna Ponda (P.W. 2), Ratikanta Adhikary (P.W. 3), Bimal Kr. Das (P.W. 7) got down from train at Radhamohanpur Railway Station and thereafter they proceeded to their village home at Pasang and on the road a group of miscreants, 17/18 in number stopped those persons and snatched their personal belongings. The miscreants also tied up P.W. 2 and P.W. 3 and assaulted Rampada (deceased) as he tried to resist. The miscreants also tied Bimal Das (P.W. 7) and ultimately it was settled that Bimal Das would take the miscreants to his house and hand over different articles as he failed to pay Rs. 4000/- at the spot. It appears that 5/6 persons from the miscreants took P.W. 7 Bimal Das to his residence and thereafter committed theft in respect of different ornaments and articles. P.W. 7 gave vivid description of the action taken by the miscreants. It is also indicated that after 20 minutes of the departure of the miscreants from the spot the inmates of the house of Bimal Das raised alarm when the villagers assembled and went to the place where other three persons namely, Rampada, Ramkrishna and Ratikanta were detained as informed by Bimal Das (P.W. 7). It was found that Rampada Sau was unconscious and Ramkrishna and Ratikanta sustained bleeding injuries. All were sent to the local Primary Health Centre where Rampada was declared dead and others were admitted for treatment.
12. So P.W. 7 is a vital witness on the point of stopping four persons on the way by the miscreants and also proceeding of a group of miscreants to his house for the purpose of dacoity. It is established from the evidence of P.W. 7 that the persons who assembled on the way and the group which proceeded to the residence of Bimal Das assembled there for the common intention of dacoity. The evidence on record proves that dacoity had taken place and few of the stolen articles were recovered from different persons. It is also proved that in course of such dacoity the miscreants killed Rampada Sau. The post-mortem report of Rampada Sau proves that Rampada Sau died as a result of assault. P.W. 2, P.W. 3 and P.W. 7 also proved that they were assaulted by the miscreants in course of such dacoity. So it is proved beyond reasonable doubt that dacoity with murder was committed by a group of miscreants. In this connection the purpose of assembly of miscreants is also clarified by P.W. 5, Nakul Ojha who prior to the arrival of P.W. 2, P.W. 3, P.W. 7 and the deceased-Rampada Sau had arrived at the spot and he was allowed to go. So after careful consideration of the materials on record we are satisfied that the trial Court rightly came to the conclusion that it was a case punishable under Section 396 of the I.P.C.
13. The learned Counsel for the appellant tried to separate the group which committed the dacoity in the house of Bimal Das (P.W. 7) from the group which assaulted P.W. 2, P.W. 3, P.W. 7 and Rampada Sau (deceased) at a separate location in the village pathway, thirty minutes walking distance from the house of P.W. 7. But from the evidence of P.W. 7 it is sufficiently clarified that the persons who took him to his residence from the village pathway were amongst the miscreants who started assaulting them for the purpose of dacoity. Moreover, the force inflicted by them on Bimal Das as regards handing over the articles from his residence after a discussion with the miscreants is sufficient to indicate that few of these miscreants went to the house of Bimal Das and the rest remained in the village pathway. P.W. 7 as well as his wife Jaya Das (P.W. 10) claimed that number of the miscreants invaded their house was five/six. Of course the P.W. 10 claimed that face of the miscreants were covered by black cloth. She also failed to identify the miscreants. But P.W. 7 saw the miscreants in the group assembled near the village pathway where he with three others was stopped and thereafter arrangement was made for handing over the articles from the house and ultimately few of the miscreants followed him to his residence. So Bimal Das (P.W. 1) had sufficient time to see the miscreants and actually after apprehension of few of the miscreants he identified the appellant-Sanatan and Dilip (since absconded). We do not find any reason to disbelieve the evidence of P.W. 7 on the point of identification of convict Sanatan. So it is sufficiently proved that Sanatan was one of the dacoits who assembled in the village pathway and took Bimal Das (P.W. 7) to his residence for the purpose of dacoity. We are satisfied that prosecution was able to prove that Sanatan actually had committed dacoity in the house of Bimal Das.
14. It is already discussed above that the group of dacoits not only committed dacoity but killed one person. It is established that Sanatan was a member of the group of miscreants. He is equally liable for the murder even if it is indicated that he did not take active part in assaulting the victim. The provision of Section 396, I.P.C. indicates that there must be two requirements :
I) The dacoity must be the joint act of the persons concerned.
II) Murder must have been committed in the course of the commission of the dacoity.
15. In this connection we may mention the decisions of the Apex Court in Kalika Tiwari v. State of Bihar 1997 Cri LJ 2531 and in State of Uttar Pradesh v. Bhoora (1998 Cri LJ 478) in which it was Indicated that all the participants in a particular crime of dacoity with murder are to be construed equally liable under Section 396 of the I.P.C.
16. So after a due consideration of the law on the point and keeping in view the fact and circumstances of the present case, we come to a conclusion that accused-Sanatan was rightly found guilty under Section 396 of the I.P.C. and he was rightly convicted thereunder.
17. It appears from the judgment that immediately after finding guilt of the accused-Sanatan, the learned Sessions Judge without fixing any other date for hearing of the accused on the point of the sentence under Section 235(2), Cr. P.C. passed an order "convict Sanatan alias Sona Layak to be heard regarding sentence." No date or time was indicated in the said order. But from the judgment it appears that on the same date the learned Sessions Judge heard the convict and passed sentence. It is to be noted that under Section 396 of I.P.C. a convict is punishable with death or imprisonment for life or R.I. for a term which may extend to ten years, and shall also be liable to fine. So lessor alternative sentences are indicated in that section. It appears that the learned Sessions Judge did not impose lessor sentence out of the three. If the lessor sentence under Section 302 of the I.P.C. was inflicted, following the verdict of the three Judges Bench in Ram Deo Chauhan v. State, reported in 2001 Cri LJ 2902 (SC), no question could be raised on the point of sentence. But, when the Court opted to impose life sentence it was incumbent upon the Sessions Judge to clarify the provision of Section 235(2) of Cr. P.C. to the convict and thereafter to give him sufficient opportunity to be heard. It is to be kept in mind that provision of Section 235(2), Cr. P.C. is mandatory. Such obligation is not discharged by putting formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit the accused all the informations which will eventually bear on the question of sentence. Choice as regards alternative sentences has to be made after giving the accused an effective and real opportunity to place the antecedent; social and economic background, mitigating and extentuating circumstances etc. before the Court. Otherwise the Court's decision can be vulnerable.
18. Initially in Allauddin Mian v. State of Bihar, the view taken was that after finding the guilt of the accused another date was to be fixed for hearing the accused on the point of sentence. After amendment of Section 309 and introduction of third proviso to Sub-section (2) in that section a doubt was expressed as to whether an adjournment can be granted for hearing the accused on the point of sentence. The position was, however, clarified by Apex Court in Sevaka Perumal v. State of Tamil Nadu, . We deem it proper to reproduce the relevant portion of the judgment:
It is true ... that under Section 309(2) third proviso brought by Amendment Act, 1978 no adjournment should be granted for the purpose only of enabling the accused person to show cause against sentence to be imposed upon him. Under Section 235(2) when the accused has been given right to be heard on the question of sentence, it is a valuable right. To make the right meaningful the procedure adopted should be suitably moulded and the accused given an opportunity to adduce evidence on the nature of the sentence. The hearing may be on the same day if the parties are ready or be adjourned to a next date but once the Court after giving opportunity proposes to impose appropriate sentence, there is no need to adjourn the case any further thereon.
19. In State v. Sukhdeo Singh the Apex Court while dealing with the third proviso to Section 309(2), Cr. P.C. took the view that for the purpose of expeditious trial adjournment should not be entertained. But that does not preclude the Court from granting adjournment when interest of justice so demands.
20. After a due consideration of the materials on record, we find that the learned Sessions Judge while imposing higher sentence should have considered giving proper opportunity to the accused for effective hearing on the point of sentence, if necessary, after fixing another date eliciting to him the requirement of such hearing. It is a valuable right of the accused which cannot be denied for speedy trial. Similar view was taken by a Division Bench of this Court in Criminal Appeal No. 144 of 1996 (Raghunath Dey v. State) decided on 20-8-2003 (reported in 2003 Cri LJ 4592). It was also noted that for such a purpose a case may be remanded to the trial Court for the limited purpose of hearing the accused before sentencing him as required under the law. But since this case is very old and the accused is in jail custody for a long period, we do not like to send the case back on remand. We also take the view that if the minimum sentence as indicated in Section 396 of I.P.C. is imposed, it will meet the ends of justice especially when there is no indication of previous conviction of the accused or his direct participation in the murder. So in allowing the appeal in part we reduce the sentence of life imprisonment to R.I. for ten years and also to pay a fine of Rs. 2000/- i.d. to suffer further R.I. for six months. The period of detention undergone as under trial prisoner be set off from the substantive sentence under Section 428, Cr. P.C. The trial Court is directed to issue modified Jail Warrant accordingly.
Sanker Prasad Mitra, J.
21. I agree.