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2017 DIGILAW 252 (CAL)

Haru Roy v. State of West Bengal

2017-03-06

SANJIB BANERJEE, SIDDHARTHA CHATTOPADHYAY

body2017
JUDGMENT : Siddhartha Chattopadhyay, J. The appellant challenged the judgment and order of conviction dated 18.12.2012 and 19.12.2012 in S.C. No. 356 of 2010 passed by the learned Additional Sessions Judge (newly created) Cooch Behar. 2. According to the appellant, the learned Trial Court convicted him without appreciating the evidence and without adhering to the procedural laws. The appellant further submits that no charge was framed under Section 306 of I.P.C., yet punishment has been recorded against him under Section 306 of I.P.C. 3. Learned Counsel appearing on behalf of the prosecution has tried to establish other side of the matter, contending, inter alia, that the learned Trial Court unlawfully exercised its discretion under Section 4 of Probation of Offenders Act, 1958. According to him, in such a case, such discretion ought not to have been given. 4. On a perusal of the entire case records, we find that after examination of the accused persons under Section 313 Cr.P.C., the then learned Additional Sessions Judge framed an additional charge under Section 302 of I.P.C. It is perhaps needless to say that if any charge is added in course of a trial, it is the duty of the trial court to summon all the witnesses who are conversant with the facts pertaining to the additional charge to adduce evidence afresh only on that point. The accused ought then to be given an opportunity to cross-examine the witnesses before the trial court again examines the accused persons under Section 313 Cr.P.C. and passes its verdict on the merits. 5. In this case it appears to us that the learned trial court did not adhere to the direction of Section 215 of Cr.P.C., either in its letter or its spirit. Only two witnesses were summoned again; and, without giving any opportunity to the public prosecutor in charge, the learned trial court tendered P.W.s 1 and 2 for re-cross-examination. The defence declined to cross-examine them for obvious reasons. The learned trial court did not give other witnesses an opportunity to say something in regard to the addition of charge. 6. It appears from the evidence of the father of the victim that just before the date of alleged incident, the victim was severely assaulted by the accused persons and on the next day she suffered burn injuries. The learned trial court did not give other witnesses an opportunity to say something in regard to the addition of charge. 6. It appears from the evidence of the father of the victim that just before the date of alleged incident, the victim was severely assaulted by the accused persons and on the next day she suffered burn injuries. The dying declaration of the victim was marked as an exhibit and the said dying declaration recorded, "Ami gaye kerosene dhele agun diyachhi." Such dying declaration was alleged to be recorded by a medical officer, Dr Shyamal Chatterjee. He deposed as P.W. 11. In his evidence he proved the treatment sheet which was marked as Ext. 6. The signature appearing in the dying declaration does not tally with the signature appearing in the treatment sheet. That apart, the dying declaration recorded by such doctor, is not free from suspicion. It neither bears any seal of the concerned hospital nor the seal of the doctor himself. Not only that, the dying declaration consists of one sentence and there is a seven-inch gap between the signature of the doctor concerned and the L.T.I of the victim. Possibly, on the basis of such dying declaration, the learned trial court converted the offence to Section 306 of I.P.C. 7. The order of conviction also suffers from serious infirmities. The learned trial court extended the benefit under the Probation of Offenders Act to four accused persons, namely Lankeswar Roy, Naru Roy, Saraswati Roy and Jyotsna Roy, only on the ground that Lankeswar was an aged person and Naru Roy was the husband of Saraswati Roy and they have three children. Learned trial court has also mentioned in the order of conviction that Saraswati Roy is female and Jyotsna Roy is an aged female person. But age of Jyotsna Roy, as it appears from the examination of accused under Section 313 Cr.P.C., is 40 years and age of Saraswati Roy is just 35 years. So they cannot be treated as an aged female persons. It may be profitable to quote Section 4 of the Probation of Offenders Act: Section 4. But age of Jyotsna Roy, as it appears from the examination of accused under Section 313 Cr.P.C., is 40 years and age of Saraswati Roy is just 35 years. So they cannot be treated as an aged female persons. It may be profitable to quote Section 4 of the Probation of Offenders Act: Section 4. Power of Court to release certain offenders on probation of good conduct.- "(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the Court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (Emphasis supplied) (3) When an order under sub-section (1) is made, the Court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender." 8. It appears from the order of conviction that without getting any report from any probation officer, the learned trial court released four of the accused persons on bond. Section 4 (2) specifically speaks that before making any order under sub-section (1), the Court shall take into consideration the report, if any, of the probation officer concerned in relation to that case. It is crystal clear that the learned trial court has placed the cart before the horse. There is no finding regarding the character of the offenders and nature of the offence. While extending such benefit to the offenders, the trial court ought to have considered the general effect of the order on the society and what would be the reaction of the society if the convicts were released on probation. This aspect was totally lost sight of by the learned trial court. 9. Another alarming feature of the order of conviction is such that at the very outset, the judge opined "Considering the nature and character of the case, it appears to me it is not a fit case to consider under Section 360 of Cr.P.C." The subsequent direction of the Court was to release four of the accused persons on probation is contradictory to its own finding. What prompted the trial court to release the convicts on probation is still a mystery particularly in the absence of cogent reasons being recorded in such regard. The proper course would have been to suspend the sentence for some time to obtain a report from the probation officer regarding the fixed place of abode and regular occupation of the offenders and only thereafter undertake the exercise to consider their release on probation. 10. In such circumstances, we are of the view that neither the judgment nor the order of conviction is sustainable. This is a fit case for remanding the matter to the learned trial court with a direction to follow the principles of Section 215 of Cr.P.C. afresh in respect of the witnesses and thereafter to pass a fresh judgment without being influenced by any of the observations in the impugned judgment or those made by us. The persons who are on so called probation may remain on the same bail bond but they shall face the trial afresh. The accused who is in custody shall remain in the custody during the fresh trial. The persons who are on so called probation may remain on the same bail bond but they shall face the trial afresh. The accused who is in custody shall remain in the custody during the fresh trial. The learned trial court is further directed to dispose of this case within three months from the date of receipt of a copy of this order. The judgment and order of conviction are set aside. The criminal appeal is allowed to the above extent. 11. Let a copy of this order and L.C.R. be sent to the learned Court below for information and taking necessary action in accordance with law. 12. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. Siddhartha Chattopadhyay, J. - I agree. Appeal Allowed.