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Gauhati High Court · body

2012 DIGILAW 1170 (GAU)

Sankar Pal v. State of Tripura

2012-10-01

S.C.DAS

body2012
JUDGMENT S.C. Das, J. 1. The appellants, named above, along with 6(six) others namely, Bimal Baidya, Babul Debnath, Laxman alias Sanjib Majumder, Swapan Mallik, Shyamal Bhowmik and Sadhan Bhowmik were charged together for commission of offence punishable under Sections 365, 120-B of I.P.C. and Sections 27(2) and 25(1-B)(a) of the Arms Act by learned Additional Sessions Judge, Belonia, South Tripura in Case No. ST. 52(ST/B) of 2004 and on conclusion of trial, learned Additional Sessions Judge found the accused-appellants guilty of committing offence punishable under Sections 365 and 120-B of I.P.C. and sentenced them to suffer R.I. for 1 (one) year under Section 120-B and further to suffer RI for 4(four) years and to pay a fine of Rs. 5,000/- (Rupees five thousands) each, in default of payment to suffer SI for 6(six) months under Section 365 of IRC and directed that the sentences shall run concurrently. The other accused persons, named above, who were charged with the appellants, were acquitted. The appellants being dissatisfied with the judgment & order of conviction and sentence preferred the present appeal under Section 374 of Cr. P.C. Heard learned counsel, Mr. P.K. Biswas, assisted by learned counsel, Mr. P. Majumder for the appellants and learned Additional Public Prosecutor, Mr. A. Ghosh for the State respondents. 2. Fact of the case may be summarized thus:- Chandraday Debbarma (PW. 16), the Headmaster of Sonartilla High School under Belonia Sub-division, after attending school on 15.07.2000, a Saturday at about 2.40/2.45 P.M., was returning to his rented house at Baikhora with a rickshaw and on the way, with a Maruti vehicle, some miscreants kidnapped him from the road near brick kiln and taken him to some unknown destination. Haran Ch. Biswas (PW. 5) a colleague teacher of Sri Debbarma was also proceeding in same direction with bicycle and from a distance about 100/150 meters he witnessed the occurrence and immediately, he went to the Officer-in-Charge, Baikhora Police Station and submitted F.I.R. in writing, based on which Santirbazar PS Case No. 45/2000 under Section 365 of I.P.C. was registered and an investigation was taken up. Sub-Inspector Dipak Das (PW. 18) of Santirbazar PS was entrusted with the charge of investigation and based on a requisition, sent by S.I. Dipak Das to the Baikhora PS, SI. Pinaki Majumder (PW. Sub-Inspector Dipak Das (PW. 18) of Santirbazar PS was entrusted with the charge of investigation and based on a requisition, sent by S.I. Dipak Das to the Baikhora PS, SI. Pinaki Majumder (PW. 17) recovered Candraday Debbarma from the house of one Chandan Debnath of West Muhuripur and also arrested the accused-appellant, Biswajit Debnath. Thereafter, on completion of investigation, charge sheet was submitted against all the accused persons for commission of offence punishable under Sections 365, 120-B of I.P.C. and Section 25(1B) (a) and 27 of the Arms Act. Cognizance was taken on the basis of the Police report and thereafter, on commitment of the case to the Court of learned Additional Sessions Judge, charges were framed under the aforesaid sections against all the accused persons together to which they pleaded not guilty and claimed to be tried. 3. In course of trial, prosecution examined 18 witnesses. Out of them PW. 16 is the alleged abducted person, the victim but he was declared hostile by the prosecution. PW. 5 is the informant, who has witnessed the occurrence from a little distance and he simply stated about the occurrence of alleged abduction and there is nothing more incriminating against the accused persons. PWs. 1, 2 and 3 are the residents of that locality from where PW. 16 was abducted and out of them, PW. 1 was declared hostile and there is nothing at all in their statements. PW. 4 is the rickshaw puller. According to the prosecution, the alleged victim was riding with his rickshaw but he was declared hostile by the prosecution and there is nothing incriminating in his evidence. PWs. 6 and 7 were also declared hostile and there is nothing incriminating in their statements. PW. 8, Chandan Debnath is a very important witness and according to the prosecution, the alleged victim Chandraday Debbarma was kept confined in his house after abduction whereas he was not made an accused and nor even the approver. He was listed as a prosecution witness but declared hostile by the prosecution, at the time of his examination before Court and he stated that the story was completely false and that the alleged victim was not recovered from his house and the accused persons were not arrested from his house. There is nothing at all in the statements of PWs. 9 and 10. PW. 11 is the police officer, who recorded the F.I.R. PWs. There is nothing at all in the statements of PWs. 9 and 10. PW. 11 is the police officer, who recorded the F.I.R. PWs. 12, 13 and 17 are the police personnel of Baikhora P.S. and out of them PW. 17 is the SI of Police and PWs. 12 and 13 were the constable of police of Baikhora P.S., who alleged to have recovered Chandraday Debbarma from the house of PW. 8 on the basis of a requisition received from the I.O. i.e. PW. 18. PW. 14 is a witness about the identity of the vehicle with which Chandraday alleged to have abducted. PW. 15 stated nothing and they are declared hostile. PW. 18 is the I.O. of the case who submitted charge sheet. Prosecution witnesses were cross-examined by the defence. After closure of the prosecution evidence the accused persons were examined under Section 313 of Cr. P.C. and thereafter, on call they declined to adduce any defence evidence. Defence case is bare denial of the prosecution case. 4. Learned counsel, Mr. Biswas has submitted that the impugned judgment, passed by learned Additional Sessions Judge, is a rare instance of a conviction and sentence without any legal evidence. None of the witnesses identified the accused-appellants yet: learned Additional Sessions Judge convicted and sentenced them. He has further submitted that no TI parade was held though PW. 4 is the rickshaw puller with which the alleged abducted person (PW. 16) was riding. He also submitted that PW. 8, Chandan Debnath, from whose house the alleged abducted person was recovered, according to the prosecution, was cited as a witness but he has stated that there was no such recovery from his house and that nobody was arrested from his house. He rather stated that he was taken to PS, beaten up mercilessly and thereafter, his signature was obtained on a paper. It has submitted that at the time of alleged search and seizure no independent respectable person were taken and only police personnel i.e. PWs. 12 and 13 were present, who also could not identify the accused-appellants and under such circumstances, the trial Judge would disbelieve the case as a whole. It has submitted that at the time of alleged search and seizure no independent respectable person were taken and only police personnel i.e. PWs. 12 and 13 were present, who also could not identify the accused-appellants and under such circumstances, the trial Judge would disbelieve the case as a whole. He has further submitted that where the abducted person himself could not identify the accused-persons and where his evidence is not supported by other witnesses and the abduction was declared by the prosecution, the trial Court ought to disbelieve the entire prosecution case and would acquit the accused appellants. 5. Learned Addl. P.P., Mr. Ghosh, has fairly submitted that the basic evidence on record is the evidence of PW. 16, the alleged abducted person but he could not identify the miscreants who alleged to have abducted him. He has also fairly submitted that regarding the recovery of PW. 16 there is only evidence of PWs. 12, 13 and 17, they all are police personnel and if they are believed the prosecution has a case otherwise, the prosecution has no case to support the order of conviction recorded by learned trial Judge. He has however admitted that the evidence on record is scanty and not at all convincing to support the judgment & order of conviction and sentence. 6. I have meticulously gone through the impugned judgment, passed by learned Additional Sessions Judge, Belonia and the evidence and materials on record. Since PW. 16 is the abducted person himself, let as first see what he has stated. In his deposition he stated that on 15.07.2000 at about 2.30 PM he was returning to his rented house at Baikhora from his school (Sonartilla High School) where he was working as a Headmaster. He was returning with a rickshaw. When he crossed the primary school, on the way, one Maruti vehicle with bottle green colour restrained him and 6/7 miscreants forcefully inducted him inside the Maruti vehicle and thereafter, covered his eyes with a piece of cloth and took him to some unknown place and kept him in a teak garden. On the next day, he was shifted to another location and was kept in a house. Thereafter, a dead hour of night, he was shifted to another house. On the next day at about 7/8 P.M. police recovered him from that house. On the next day, he was shifted to another location and was kept in a house. Thereafter, a dead hour of night, he was shifted to another house. On the next day at about 7/8 P.M. police recovered him from that house. Police also arrested two of his abductors from that house who were with him. He cannot say the names of the abductors and he did not tell the name of the abductors to the police. He was declared hostile by the prosecution and in course of cross examination by learned public prosecutor, his entire statement recorded under Section 161 of Cr. P.C. was referred to him to which he declined to have made such statement and it was marked as Exbt. 10 and proved by PW. 17. What emerges from the statement of PW. 16 is that he was abducted by the miscreants and was recovered from a house which he do not know and that he could not identify the accused persons. According to the prosecution, he was recovered from the house of PW. 8, Chandan Debnath and this story is supported by PWs. 12, 13 and 17, who are the police personnel of Baikhora PS. PWs. 12 and 13 also not wholly corroborated each other. However, the sum and substance what we get from their statements is that PW. 16 was recovered from the house of Chandan Debnath and the appellants were also arrested from that house and the fire arms was seized from the possession of accused Biswajit. According to PW. 8, he was arrested by the police and was mercilessly beaten. Subsequently, he was cited as witness. He denied the total prosecution story of recovery of revolver with two bullets as well as the arrest of the accused-appellants. The house of PW. 8, according to the prosecution, situated in a village but none of that village was examined supporting the prosecution case. 7. It is quite surprising that PW. 17 while proceeded to recover an abducted person was not accompanied with any independent respectable person of the locality though it is a mandatory provision as prescribed in Section 100 of Cr. P.C. In the absence of any evidence of independent witness, based on the depositions of only PWs. 7. It is quite surprising that PW. 17 while proceeded to recover an abducted person was not accompanied with any independent respectable person of the locality though it is a mandatory provision as prescribed in Section 100 of Cr. P.C. In the absence of any evidence of independent witness, based on the depositions of only PWs. 12, 13 and 17 who are police personnel, it was not proper for the learned Additional Sessions Judge to record an order of conviction and sentence of the accused persons for the commission of offence punishable under Sections 365 and 120-B of IPC. The hands sketch map prepared by PW. 17 has not been proved. Moreover, curiously, I find that PW. 17 recorded the statements of the witnesses including that of PW. 16 and prepared hands sketch map of the house wherefrom the alleged abducted person was recovered and the accused persons were arrested. PW. 17 was never entrusted with the charge of investigation. Simply on a requisition received from 1.0 of Santirbazar PS he recovered the abducted person, as alleged and arrested the accused persons with arms. While he was a police officer of another PS having not entrusted with the charge of investigation he has recorded the statements of witnesses prepared hands sketch map etc, (either not proved during trial) and such part of investigation was altogether beyond prescription of law. Immediately after arrest of the accused persons the investigating agency would arrange TI parade of the accused persons by the witnesses who had, according to the prosecution, seen the occurrence but no such step was taken. There is no legal evidence produced on record regarding the identity of the house of PW. 8 wherefrom the abducted person alleged to have recovered. No search list was prepared. The seizure list which has been prepared and proved as Exbt. P/2 only shows recovery of revolver but there is no mention that the alleged victim, PW. 16, was recovered from that house. Therefore, the investigation was half-hearted and totally perfunctory. There is no legal evidence to support the prosecution case. Under such circumstances of the evidence and materials on record, I have no hesitation to allow the appeal and to set aside the judgment & order of conviction and sentence of the accused-appellants and accordingly, I did so. The appellants are accordingly acquitted from the charge leveled against them. There sureties are discharged. Under such circumstances of the evidence and materials on record, I have no hesitation to allow the appeal and to set aside the judgment & order of conviction and sentence of the accused-appellants and accordingly, I did so. The appellants are accordingly acquitted from the charge leveled against them. There sureties are discharged. Send back the L.C. record along with the copy of this judgment. Appeal allowed.