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2017 DIGILAW 634 (CAL)

KALYAN BANDOPADHYAY v. STATE OF WEST BENGAL

2017-07-21

JOYMALYA BAGCHI

body2017
JUDGMENT : Joymalya Bagchi, J. The petitioner has assailed the order framing charge against him under Sections 302/34 and under Section 201 of the Indian Penal Code. 2. The prosecution case, as alleged against the petitioner and other accused persons, is to the effect that on 16.11.2014 at or about 8 hours an anonymous telephonic information was received relating to disturbances at students' hostel (boy's) at Nilratan Sarkar Medical College and Hospital, Kolkata by the Duty Officer of Entally Police Station. On such intimation, police personnel rushed to the third floor corridor of the said hostel and found a male person aged about 30/35 years tied with the help of old and used nylon rope to the twin pillars on the right hand side of the staircase on the western corridor in front of the carrom room in an unconscious state. Bamboo sticks of different sizes, one wooden log and yellow coloured nylon rope were found scattered on the floor around the unconscious person. Some bloodstains were also found on the floor in front of the unconscious 2 person. One cut mark on the upper lip of the victim was noted and blood was found oozing from the said injury. The victim was taken to the Emergency Department of the hospital where the attending doctor declared him dead. Inquest and post mortem were held over the dead-body of the victim and the autopsy surgeon opined that the death was due to effects of ante mortem injuries, homicidal in nature. 3. Suo motu first information report was registered at Entally Police Station being Entally P.S. Case No. 544 dated 16.11.2014 under Sections 302/34 of the Indian Penal Code. In the evening of the selfsame day, one Mrinal Chakraborty, Assistant Superintendent (Non-medical) of the said hospital submitted letter to the Officer-in-charge, Entally Police Station stating that on verbal instruction from the institutional authority he would like to inform the police that a mobile thief had been caught by the students of the medical college and necessary steps may be taken in the matter. 4. In the course of investigation, the identity of the victim was revealed as one Korpan Sha @ Kurban of Village - Kaijuri, Fakirpara, District-Howrah. 4. In the course of investigation, the identity of the victim was revealed as one Korpan Sha @ Kurban of Village - Kaijuri, Fakirpara, District-Howrah. Eyewitness version of a large number of students of the hostel, canteen staff, mess personnel and others were recorded under Section 161 Cr.P.C. One Jasimuddin @ Jasim, a first year MBBS student of the college, Kartick Mondal @ Ganesh and Rabi Andia, two canteen staff members, were arrested. Subsequently, four more MBBS students were arrested. Jasimuddin @ Jasim made a confessional statement under Section 164 Cr.P.C. before the Judicial Magistrate. 5. Investigation further revealed that on 16.11.2014 around 6.30/7.00 A.M. victim Korpan Sha @ Kurban was caught red-handed by Jasimuddin on the third floor corridor of the Annex Building and a stolen mobile phone was recovered from him. Thereafter, the accused persons including the petitioner being the students of the said hostel and two canteen staff members brutally assaulted Korpan Sha @ Kurban with fists, blows, bamboo and wooden sticks on the corridor of the third 3 floor of the said building. Thereafter he was dragged to the western corridor of the third floor and tied to the twin pillars with nylon rope in front of the carrom room and again mercilessly assaulted by the accused persons. It also came to light that the victim Korpan Sha @ Kurban suffered from mental weakness due to a previous accident and used to sell snacks in the locality. In conclusion of investigation, charge-sheet was filed under Section 302/34 and Section 201 of the Indian Penal Code against the eleven accused persons including the petitioner. It is pertinent to note that in the course of investigation prayer for pre-arrest bail was allowed by a Division Bench of this Court, inter alia, relying on the confessional statement of the aforesaid Jasimuddin. Subsequently charges have been framed under Section 302/34 and Section 201 of the Indian Penal Code against the petitioner and other accused persons. Challenging such framing of charge, the petitioner is before this Court. 6. Learned senior counsel appearing for the petitioner argued that the statement of the co-accused Jasimuddin recorded under Section 164 of the Cr.P.C. is exonerative in nature. The co-accused has stated that the petitioner had requested others not to assault and had only queried the victim whether he had committed similar theft in the past. Thereafter the petitioner had left the place of occurrence. The co-accused has stated that the petitioner had requested others not to assault and had only queried the victim whether he had committed similar theft in the past. Thereafter the petitioner had left the place of occurrence. Relying on such statement it is submitted that the trial court erred in coming to a finding that the petitioner shared common intention with other co-accused persons to commit the crime. It has also been argued that mere threats held out to the witnesses not to disclose evidence does not constitute offence under Section 201 of the Indian Penal Code. 7. On the other hand, learned Counsel appearing for the State submits that there is ample evidence on record particularly the statements of Sayan Kumar Biswas and Abdul Hati which clearly shows that the petitioner was present at the time of assault on the victim and, in fact, had encouraged the assault by making queries as to whether the suspect had committed theft of mobile phones in the 4 past. Such conduct of the petitioner clearly establishes sharing of a common intention with other accused persons to commit murder of the victim. Learned counsel further submits that section 30 of the Evidence Act provides that an incriminating confession of a co-accused may be relied upon against the accused, if corroborated, but the said provision shall have no application to an exculpatory part of the confession. Threats held out to witnesses not to make statement to police or anyone would include a 'Court', attracting the offence punishable under section 195-A of I.P.C. in addition to the charge framed under section 201 of I.P.C. 8. I have considered rival submissions of the parties in the light of the materials on record. Statements of the witnesses recorded in the course of investigation particularly that of Sayan Kumar Biswas and Abdul Hati show that on 16.11.2014 at around 6.30/7.00 A.M. the victim was apprehended by Jasimuddin and a stolen mobile phone was recovered from him. Thereafter, Jasimuddin dragged the victim to the verandah of the third floor of the hostel building where the accused persons assembled and started beating him indiscriminately. The petitioner who is also a student of the said medical college came to the spot and incited the other accused persons by posing a query to the victim whether he had stolen other mobile phones in the past. The petitioner who is also a student of the said medical college came to the spot and incited the other accused persons by posing a query to the victim whether he had stolen other mobile phones in the past. It is true that the accused Jasimuddin under section 164 Cr.P.C. stated that the petitioner requested other accused persons not to assault the victim when he made such query and had thereafter left the spot. However, there is nothing in the statements of the witnesses recorded in the course of investigation which corroborates such exculpatory conduct of the petitioner. On the other hand, the statements of the witnesses give a contrary picture that the petitioner was present at the place of assault and had queried the suspect whether he had committed similar offences in the past. It is trite law that confession of a co-accused cannot be used against another unless it is corroborated by independent witnesses. However, in the instant case the portion of the confessional statement of the co-accused which is sought to be relied upon by the 5 petitioner is not against the petitioner being exculpatory in nature. I am of the opinion that confessional statement of a co-accused cannot be relied upon by another accused to the extent it exculpates the latter as the prosecution would not get any opportunity to cross-examine its maker to improbabilise such statement. 9. Hence, the confessional statement of co-accused Jasimuddin to the extent it exonerates the petitioner cannot be relied upon by him under section 30 of the Evidence Act. More so, such exculpatory version is also not corroborated by the statements of witnesses or other materials on record. On the other hand, such statements and materials on record clearly portray an incriminating involvement of the petitioner in the alleged crime. It has been argued that the petitioner was not present at the place of assault on the western side of the corridor where the victim was tied to the twin pillars in front of the carrom room and assaulted. Uncontroverted statements of the witnesses reveal that both the incidents are not independent of one another but appear to be a continuation of the same transaction. Uncontroverted statements of the witnesses reveal that both the incidents are not independent of one another but appear to be a continuation of the same transaction. Petitioner was present in the course of assault in the verandah of the third floor of the hostel and incited the co-accused by making queries to the victim whether he had committed similar thefts in the past and thereafter the victim was dragged to the western portion of the corridor, tied to the pillars with a nylon rope and assaulted to death. The aforesaid facts give rise to strong suspicion of the involvement of the petitioner with the other accused persons in the assault of the victim to death on the accusation of committing theft of the mobile phones. Strong reliance was placed on the fact that relying on the statement of Jasimuddin the petitioner had been granted pre-arrest bail by this Court. It is relevant to note that while passing the said order it was categorically observed that the statements of other witnesses and/or their evidentiary value are to be judged during trial and the observations made in the said order of anticipatory bail shall not have any binding effect at the subsequent stage. In view of such observations, I am of the opinion that reference to the order of pre-arrest bail is of little consequence in the matter of 6 framing of charges against the petitioner on the basis of materials on record which give rise to a strong suspicion of commission of offence punishable under section 302/34 of I.P.C. 10. It also transpires from materials on record that the petitioner had sought to dissuade other witnesses not to make statements about the crime before police or anybody. Whether such act would constitute an offence under section 201 of I.P.C. or an offence under section 195-A of I.P.C. or at all are questions of fact which may be agitated in the course of trial but in view of the involvement of the petitioner in the alleged crime I find no reason to modify the charges framed on such score. 11. In light of the aforesaid discussion, I am not inclined to interfere with the impugned order framing charges against the petitioner. 11. In light of the aforesaid discussion, I am not inclined to interfere with the impugned order framing charges against the petitioner. I make it clear that observations made by me with regard to the merits of the case will not have any bearing in the course of the trial which needless to mention shall be decided independently on the basis of the evidence adduced without being swayed by any observation made in this order. 12. The revisional application is accordingly dismissed. 13. In view of dismissal of the main application, connected application being CRAN 1055 of 2017 is also dismissed. 14. Photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.