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2015 DIGILAW 680 (CAL)

Ashok Roy v. State of West Bengal

2015-08-12

RAJIV SHARMA, SHIVAKANT PRASAD

body2015
JUDGMENT : Shivakant Prasad, J. This is an appeal under Section 374 (2) of the Code of Criminal Procedure challenging the Order dated 27.10.2006 passed by the Additional Sessions Judge, Fast Track 3rd Court, Siliguri is Sessions Trial No. 59 of 2004 corresponding to Sessions Case No. 31(1) 2003 arising out of Phansidewa Police Station Case No. 24 of 2003 dated 17.2.2003 G.R. No. 169 of 2003 under Section 364A, 302, 201 Indian Penal Code, convicting the appellant and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rupees 2000/- in default to suffer simple imprisonment for further six months for committing offence under Section 364A/302/201 of Indian Penal Code. The prosecution case in brief is that on 16.2.2003 the de facto complainant Nemai Roy of Chaupukhuria (Kestopur), under Police Station Phansidewa while he was busy in shifting his household articles to the rented premises of one Manu Hossain at Behar More house from his native place, his minor son Munna Roy @ Guddu aged about 6 years was in his house at Kestopur. At about 4:30 P.M. his nephew namely Ashok Roy @ Bappa came to inform him that at about 11:00 A.M. when he was going with the son of the de facto complainant by his bicycle from Kestopur to Bagdogra, some unknown miscreants kidnapped the said son of the de facto complainant by Maruti Van and told that they would release his son if a ransom of Rs. 2,50,000/- was paid to them within 11:00 A.M. at Kharibari Bus stand. The de facto complainant was not satisfied with such statement of his nephew about kidnapping of his son in order to compel him to give a ransom. Accordingly, an FIR was lodged. After completion of investigation the I.O. submitted charge sheet under Sections 364A, 302 and 201 of Indian Penal Code. The case being committed to the Court of Sessions, the same was transferred to the Court of learned Additional Sessions Judge, Fast Tract 3rd Court, Siliguri who framed Charges under Sections 364A, 302 and 201 of Indian Penal Code to which appellant abjured his guilt and claimed to be tried. The prosecution examined as many as 19 witnesses and after closure of evidence, the appellant was examined under Section 313 of Criminal Procedure Code. The prosecution examined as many as 19 witnesses and after closure of evidence, the appellant was examined under Section 313 of Criminal Procedure Code. Defence case is a denial of the prosecution case which emerges from the cross-examination of the witnesses and the statement of the appellant recorded under Section 313 Cr.P.C. The appellant has assailed the judgment of conviction and sentence on the grounds inter alia that the learned Trial Judge did not appreciate that extrajudicial confession as alleged to be made by the appellant is not admissible in Law and that there are contradictory oral testimony of the prosecution witnesses No. 1, 10 and 14 regarding the place of recovery of the dead body and P.W.-13 Mannu Hossain who deposed that the dead body was recovered by the police. It is contended that the prosecution has failed to prove the act of kidnapping by the appellant and learned Judge has failed to consider that the appellant on the relevant day was present in the house at Kestopur. The evidence of P.W.- 5 Smt. Anju Roy ought to have been considered although she was declared hostile witness by the prosecution. It is further contended on behalf of the defence that the kidnapping is not established against the appellant though the prosecution tried to establish the same on the basis of extra-judicial confession and the learned Court failed to appreciate the real position of law and as such, the conviction is an instrument of suspect. It appears from the evidence of Nemai Roy, P.W.-1, that on being interrogated by the police, the appellant confessed that he had murdered Munna Roy, the son of P.W.-1 by drowning after clogging his mouth with cloth and kept the dead body concealed in the Jungle and on search of his person, one silver chain with locket of ‘Shiva’ of his son was recovered from the pocket of Ashok Roy which the police seized in his presence under Seizure List. It would also appear from the evidence of P.W.-1 that the oral testimony relating to confession by the appellant has not been challenged during cross-examination. Abhiram Singh, P.W.-4, narrated about the confession made by the appellant before him and others that he murdered Guddu in the river of ‘Tepu’ and kept the dead body concealed in the jungle. It would also appear from the evidence of P.W.-1 that the oral testimony relating to confession by the appellant has not been challenged during cross-examination. Abhiram Singh, P.W.-4, narrated about the confession made by the appellant before him and others that he murdered Guddu in the river of ‘Tepu’ and kept the dead body concealed in the jungle. The cross-examination reveals that such a statement was made by Ashok to him and others in police lock-up. As per the statement of I.O. Biman Bose on being shown the place in the forest by the appellant himself, the dead body was recovered by him which was identified by the father of the deceased. S.I. Hiralal Roy interrogated accused Ashok Roy who has confessed that he murdered his cousin brother Munna and kept the dead body concealed in Rashomari forest. According to Sunil Roy, P.W.-8, when police repeatedly interrogated accused Ashok Roy, he could not keep his mental balance and confessed before him and others that he murdered his cousin Munna by drowning in ‘Tipu’ river. Manu Hossain, P.W.-13 also corroborated the fact of confession made by the accused Ashoke before police, his father, his uncle, Abhiram Singha and some other para people that he had killed his brother Guddu and concealed the dead body in the jungle and if he be taken to said place he would show the dead body. He has candidly stated on oath that the appellant had told before him that he had killed his brother by drowning in the river. It has been contended that the conviction cannot be recorded on the basis of extra-judicial confession. It would be profitable to consider the settled principle of law on the subject of extra-judicial confession that it is not an invariable rule that the Court should not accept the evidence of extra-judicial confession, if not actual words, but the substance thereof, were given. The Court should first examine if the extra-judicial confession made by the accused is voluntary and true and it is retracted, it is corroborated. It is equally a well settled principle of law that the value of evidence as to confession, just like any other evidence depends upon the veracity of the witness to whom it is made. Corroboration of extra-judicial confession in all cases is not a requirement of law. It is equally a well settled principle of law that the value of evidence as to confession, just like any other evidence depends upon the veracity of the witness to whom it is made. Corroboration of extra-judicial confession in all cases is not a requirement of law. Before acting on a non-judicial confession, two rules of caution are to be followed: (i) whether the evidence of confession is reliable; and (ii) whether it finds corroboration. Then again, the extra-judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed. Undoubtedly, extra-judicial confession is considered as a weak piece of evidence and it must be proved like any other fact. This may be a rule of law but it is law of prudence, otherwise there remain danger of fabricating extra judicial confession. It must be judged in the fact situation and would depend not only on the nature and circumstances but also the time when the confession is said to be made and the credibility of the witnesses who testified thereto. We find that appraising the totality of the evidence on record by judicial evaluation the learned Judge bearing in mind the decision reported in 2005 (7) SCC Crl. 714 and applying the principle laid therein that the benefit of doubt cannot be claimed on the basis of hypothetical proposition or imaginative doubt convicted the appellant for the offence punishable under Sections 364A/302/201 IPC. On giving an anxious consideration to the totality of the evidence on record, the facts situation leading to making of extra-judicial confession by the appellant before his father, his uncle and other witnesses and bearing in mind the clenched position of law as discussed above, we do not find any plausible ground to interfere with the order of conviction against the appellant. Ergo, we uphold the conviction of the appellant. Now, on the question of sentence, it appears that after giving an opportunity to the appellant of reflection in segregation, the learned Trial Judge awarded punishment with rigorous imprisonment for life and to pay a fine of Rupees 2000/- in default to suffer simple imprisonment for further six months for committing offence under Section 364A/302/201 of Indian Penal Code. Now, on the question of sentence, it appears that after giving an opportunity to the appellant of reflection in segregation, the learned Trial Judge awarded punishment with rigorous imprisonment for life and to pay a fine of Rupees 2000/- in default to suffer simple imprisonment for further six months for committing offence under Section 364A/302/201 of Indian Penal Code. During pendency of this appeal, the appellant was adjudged a juvenile in conflict with law on the date of commission of the offence as per the report of the learned Additional Sessions Judge, 2nd Court, Siliguri, District- Darjeeling on enquiry pursuant to the direction of this Court passed in CRA 845 of 2006 vide Order dated 11.6.2013 and the appellant was accordingly released on bail on the basis of the report as to the juvenility with a finding that he suffered imprisonment for nine years. As regards sentence to be awarded this fact cannot be lost sight of that learned Trial Judge sentenced the convict Ashok Roy for his guilt punishable under Sections 364A/302/201 IPC and he was sentenced to suffer rigorous imprisonment of life and to pay Rs. 2000/-in default, to suffer further simple imprisonment for six months for being offence under Sections 364A/302/201 IPC at the time of trial. The appellant never raised any plea of his juvenility at the time of commission of offence during trial but before this Hon’ble Court, he for the first time took the plea of juvenility that he was a juvenile in conflict with law and by order of this Court, as we have discussed above that the direction was issued upon the learned Trial Court and the learned Trial Court after full enquiry held that he was a juvenile in conflict with law. On the basis of the report of the Additional Sessions Judge, the appellant was released on furnishing bail bond after being adjudged as a juvenile delinquent. It would appear from the record that he was released after nine years of his custody in the correctional home. A reference to a decision of Jitendra Singh alias Baboo Singh and Anr., Vs. State of U.P. decided on 10th July, 2013 would be profitable in order to understand the situation when the accused is adjudged as a juvenile delinquent on the date of commission of offence and the sentence to be awarded to a convict. A reference to a decision of Jitendra Singh alias Baboo Singh and Anr., Vs. State of U.P. decided on 10th July, 2013 would be profitable in order to understand the situation when the accused is adjudged as a juvenile delinquent on the date of commission of offence and the sentence to be awarded to a convict. As there is dichotomy of views, Hon'ble Apex Court referred to the following decisions at paragraph 28 to 40. “28. On the sentence to be awarded to a convict who was a juvenile when he committed the offence, there is a dichotomy of views. 29. In the first category of cases, the conviction of the juvenile was upheld but the sentence quashed. In Jayendra v. State of Uttar Pradesh, (1981) 4 SCC 149 the conviction of the appellant was confirmed though he was held to be a child as defined in Section 2(4) of the Uttar Pradesh Children Act, 1951. However, he was not sent to an ‘approved school’ since he was 23 years old by that time. His sentence was quashed and he was directed to be released forthwith. 30. Similarly, in Bhoop Ram v. State of U.P. (1989) 3 SCC 1 this Court followed Jayendra and while upholding the conviction of the appellant who was 28 years old by that time, the sentence awarded to him was quashed. 31. In Pradeep Kumar v. State of U.P., 1955 Supp (4) SCC 419 yet another case under the Uttar Pradesh Children Act, 1951 the conviction of the appellant was upheld but since he was 30 years old by that time, his sentence was set aside. 32. In Bhola Bhagat and other v. State of Bihar, (1997) 8 SCC 720 the conviction of the appellant was upheld by this Court but the sentence was quashed keeping in mind the provisions of the Bihar Children Act, 1970 read with the Bihar Children Act, 1982 and the Juvenile Act, 1986. 33. In Upendra Kumar v. State of Bihar, (2005) 3 SCC 592 this Court followed Bhola Bhagat and upheld the conviction of the appellant but quashed the sentence awarded to him. 34. In Gurpreet Singh v. State of Punjab, (2005) 12 SCC 615 one of the appellants was a juvenile within the meaning of that expression occurring in Section 2(h) of the Juvenile Justice Act, 1986. 34. In Gurpreet Singh v. State of Punjab, (2005) 12 SCC 615 one of the appellants was a juvenile within the meaning of that expression occurring in Section 2(h) of the Juvenile Justice Act, 1986. This Court held that if the accused was a juvenile on the date of occurrence and continues to be so, then in that event he would have to be sentenced to a juvenile home. However, if on the date of sentence, the accused is no longer a juvenile, the sentence imposed on him would be liable to be set aside. In this context, reference was made to Bhoop Ram. 35. Finally in Vijay Singh v. State of Delhi, (2012) 8 SCC 763 the conviction of the appellant was upheld but the sentence was quashed since he was about 30 years old by that time. 36. The second category of cases includes Satish @ Dhanna v. State of Madhya Pradesh, (2009) 14 SCC 187 wherein the conviction of the appellant was upheld but the sentence awarded was modified to the period of detention already undergone. Similarly, in Dharambir v. State (NCT of Delhi), (2010) 5 SCC 344 the conviction of the appellant was sustained but since the convict had undergone two years and four months of incarceration, the sentence awarded to him was quashed. 37. The third category of cases includes Hari Ram v. State of Rajasthan, (2009) 13 SCC 211 wherein the appellant was held to be a juvenile on the date of commission of the offence. His appeal against his conviction was allowed and the entire case remitted to the Juvenile Justice Board for disposal in accordance with law. 38. In Daya Nand v. State of Haryana, (2011) 2 SCC 224 this Court followed Hari Ram and directed the appellant to be produced before the Juvenile Justice Board for passing appropriate orders in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. 39. The fourth category of cases includes Ashwani Kumar Sexena v. State of Madhya Pradesh, (2012) 9 SCC 750 in which the conviction of the appellant was upheld and the records were directed to be placed before the Juvenile Justice Board for awarding suitable punishment to the appellant. 40. 39. The fourth category of cases includes Ashwani Kumar Sexena v. State of Madhya Pradesh, (2012) 9 SCC 750 in which the conviction of the appellant was upheld and the records were directed to be placed before the Juvenile Justice Board for awarding suitable punishment to the appellant. 40. The sum and substance of the above discussion is that in one set of cases this Court has found the juvenile guilty of the crime alleged to have been committed by him but he has gone virtually unpunished since this Court quashed the sentence awarded to him. In another set of cases, this Court has taken the view, on the facts of the case that the juvenile is adequately punished for the offence committed by him by serving out some period in detention. In the third set of cases, this Court has remitted the entire case for consideration by the jurisdictional Juvenile Justice Board, both on the innocence or guilt of the juvenile as well as the sentence to be awarded if the juvenile is found guilty. In the fourth set of cases, this Court has examined the case on merits and after having found the juvenile guilty of the offence, remitted the matter to the jurisdictional Juvenile Justice Board on the award of sentence.” In a latest decision dated 7th August, 2015 the Hon'ble Supreme Court released a convicted person in prison for 10 years who was adjudged a juvenile in conflict with law in case of a reportable judgment in Ram Narain vs. State of U.P.(Criminal Misc. Petition No. 7526 Of 2015 in Special leave petition (Cri.) N. 1446 OF 2004). It has been held that the petitioner-applicant should get the benefit under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 since he was a juvenile on the date of commission of the offence relying on decisions in Uendra Pradhan v. State of Orisa 2015 (5) SCALE 634 wherein it was held that the accused can raise the plea of juvenility at any time and before any court as per the mandate of Section 7(a). In Ajay Kumar v State of M.P., (2010) 15 SCC 83 the Apex Court had released a person from jail as he was a juvenile at the time of commission of offence. In Ajay Kumar v State of M.P., (2010) 15 SCC 83 the Apex Court had released a person from jail as he was a juvenile at the time of commission of offence. The same view was followed in Hakim v. State, (2014) 13 SCC 427 , and Makhan Lal v. State of Bihar, (2011) 2 SCC 251 . In respectful consideration of the principles laid in the above cited decisions, we are of the view that the ratio of decisions are well nigh in the facts and circumstances of the instant case and considering that the appellant has undergone nine years of incarceration in jail, we direct that the appellant be released forthwith. Accordingly, the appeal is partly allowed. LCR be sent down to the learned Court below alongwith a copy of this Judgment. I agree.