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2011 DIGILAW 132 (CAL)

Amir Kumar Das v. The State of West Bengal

2011-01-27

ASHIM KUMAR BANERJEE

body2011
JUDGMENT : ASHIM KUMAR BANERJEE. J: On July 8, 2001, two young boys, Gaya Das and Sanjoy Das, were seen together near Hati Bagan by PW-2, going by a bicycle. PW-1 saw them on the bank of the river Ganges in Battala Ghat. They were talking to each other using filthy language. There was heated exchange. Suddenly Gaya pushed Sanjoy. He fell down in water, cried for help. PW-1 asked Gaya to save him. When PW-1 went to save Sanjoy, he had already drowned. Gaya left the place with the cycle brought by Sanjoy. PW-1 initially tried to prevent him from being fled, however, because unsuccessful. The parents lodged a missing diary at Bastola Police Station on July 8, 2001. On the next day, his father came to know that Modhusudhan Paul had called Sanjoy. He was a dancer in a group run by Modhusudhan. The petitioner Amir Kumar Das, father of Sanjoy, lodged a complaint against Modhusudhan. Five months later, Amir came to know that Sanjoy was last seen together with Gaya in the locality. He then lodged a complaint with the Police. On December 13, 2001, Police arrested Gaya. According to Amir, Gaya made a confessional statement to the Police on August 23 2001. Gaya also stated that Guru Pada had witnessed the incident. On April 11, 2002, the Police could find out Gurupada and applied to the Magistrate for recording his statement under Section 164. Ultimately, on May 13, 2002, they had written to the 8th Metropolitan Magistrate regarding his statement. The Police charged Gaya under Section 302 Gaya pleaded innocence and faced trial. PW- 1 Gurupada, stated that he had witnessed the incident on July 8, 2001, as referred to above. PW-7 Kashinath deposed that he saw the victim and Gaya on the river bank. PW-7 Kashi Nath corroborated Guru Pada. PW-2 Raghu Nath deposed that he saw. He had seen Sanjoy in the company of Gaya at about 3/3:20 p.m on July 8 2001 at Hati Bagan. PW-5 Gautom deposed that PW-1 had stated to him about the incident. Fact remains, the dead body could not be found. The learned Judge, upon considering all evidences, acquitted Gaya after discharging him from all the charges leveled against him. The Learned Judge observed that prosecution failed to establish the charges leveled against him beyond all reasonable doubt. Mr. PW-5 Gautom deposed that PW-1 had stated to him about the incident. Fact remains, the dead body could not be found. The learned Judge, upon considering all evidences, acquitted Gaya after discharging him from all the charges leveled against him. The Learned Judge observed that prosecution failed to establish the charges leveled against him beyond all reasonable doubt. Mr. Arup Chatterjee, learned Advocate appearing for Amir, the father of the victim, contended that since there was ocular evidence by an independent witness Guru Pada and corroborated by another independent witness Kashi Nath, the learned Judge should have signed the conviction. Mr. Chatterjee further contended that when there was ocular evidence, the learned Judge should not have insisted on proof of death as it was redundant. In support of his contention Mr. Chatterjee relied on two decisions of the Apex Court in the case of Sanjoy Thakuran and another reported in 2007 Volume-II Supreme Court Cases (Criminal) Page No. 162 and the decision Keshav –Vs-State of Maharashtrya reported in 2009 Volume-I Supreme Court cases (Criminal) Page No. 184. Mr. Shukdeb Chatterjee, learned counsel appearing for the accused, while opposing the application, contended that there was no contemporaneous complaint lodged by Guru Pada. The Statement of Guru Pada was recorded by the learned Magistrate long after missing of Sanjoy. Hence, the learned Judged was right in rejecting such deposition. Mr. Chatterjee, further contended that it was material for the prosecution to prove the death. Sanjoy was still missing and his dead body could not be recovered. since, the death was not proved once question of convicting the accused under Section 302 did not arise. Ms. Krishna Ghosh, learned Counsel appearing for the State, supported Mr. Chatterjee and both of them prayed for dismissal of the application. Altogether the petitioner filed three complaints, the first one, a missing diary on July 5, 2001, the second one was under Section 302 implicating Madhusudan as according to him Sanjoy was associated with Madhusudan as they both belonged to a dance party and the third complaint was lodged after a long gap of five months implicating Gaya. Petitioner deposed that he had come to know about the incident only after five months. If we examine the other evidence we would find that PW-2, although a localite, did not inform anyone that he had seen Sanjoy and Gaya together at about 3/3.20 pm. On July 8, 2001. Petitioner deposed that he had come to know about the incident only after five months. If we examine the other evidence we would find that PW-2, although a localite, did not inform anyone that he had seen Sanjoy and Gaya together at about 3/3.20 pm. On July 8, 2001. It is not clear from his evidence as to when he did inform the Police or the unfortunate family. It was expected of him that he would inform the parents contemporaneously, If he had done so why no complaint was lodged against Gaya contemporaneously, is not known. Coming back to PW-9, he saw someone being drowned in the river. He did not inform the Police or the local people although he claimed that there were few people present at the ghat. Nobody came forward and informed the incident to the Police. Similarly, PW-7 who claimed to have corroborated PW-1 did not inform the Police about the incident. It is somewhat unusual particularly in North Calcutta that the people would see someone drowning in the river, would not try to save him or inform the incident to the Police. There is one more important factor which, in our view, must be highlighted. If we believe PW-1 and PW-7 we would find that they saw Gaya dashing Sanjoy and Sanjoy fell down in the river. That would not conclusively prove that Sanjoy died because of such drowning particularly when his dead body could not be recovered. In absence of the death being proved, no one could be convicted either under Section 302 or under Section 304, as the case may be. Mr. Chatterjee cited Sanjoy Thakran (Supra) to support the contention on “last seen together”. A I have already observed before, the death was not proved. So question of measuring the time gap would not apply. The “last seen together” theory is applied by measuring the time between the time when the victim was last seen alive in the company of the accused and the time when his dead body was recovered. In the instant case, the second time is not available. Hence, the theory cannot be applied. Mr. Chatterjee also cited the decision in the case of Kasab (Supra) where the theory of “last seen together” was discussed. The Apex Court observed that this circumstance becomes relevant “only when death takes shortly after the accused and the deceased were last seen together”. Hence, the theory cannot be applied. Mr. Chatterjee also cited the decision in the case of Kasab (Supra) where the theory of “last seen together” was discussed. The Apex Court observed that this circumstance becomes relevant “only when death takes shortly after the accused and the deceased were last seen together”. In the instant case, we do not know if or when the victim died. Hence, this case cannot be applied. The learned Judge rightly signed the judgment of acquittal which deserves no interference. The application fails and is hereby dismissed. Urgent Xerox certified copy will be given to the parties, if applied for.