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2014 Supreme(Gau) 759
IN THE HIGH COURT OF GAUHATI
C.R. Sarma and Prasanta Kumar Saikia, JJ.
Bhasan Ch. Sarkar and Ors. – Appellant
Vs.
State of Assam – Respondent
Crl. A. No. 135 of 2014
Decided On: 14.11.2014
Advocate Appeared
For Appellant/Petitioner/Plaintiff: A.L. Mandal
For Respondents/Defendant: S. Jahan, Addl. PP
Headnote:
Criminal Trial - Indian Penal Code, 1860 – Sections 302/201 - Criminal Trial - Kidnapped and Murder - Convicted - Benefit of doubt - Causing disappearance of evidence of offence, or giving false information to screen offender - Appeal against conviction - Accused (A-1), (A-2), (A-3), and others came to house of victim girl, who was said to have an affair with A-1, kidnapped her from her own house - Though a vigorous search was made to trace her out, however, such effort yielded no result - Therefore, an FIR to that effect was lodged before I/C Bhuragaon Petrol Post - FIR informant father of victim, suspected that accused persons aforementioned having kidnapped his daughter might have subjected her to rape and thereafter they might have killed her too - Held, Court have already found that the prosecution could not at all prove that appellants had kidnapped victim girl on night in question. Such fact coupled with the fact that prosecution could not prove that the appellants had killed victim girl or having killed, they had thrown her dead body into river Brahmaputra make it inescapable for court to accept claim of the appellants that prosecution could not make out charges leveled against accused persons - All these speaks loud and clear that learned trial Court ought to have acquitted appellants of offence U/s. 302/201 IPC on giving them at least benefit of doubt - Since that was not done, judgment under challenge becomes unsustainable in law and is therefore, liable to be quashed and set aside - Prosecution case or for that matter Judgment under challenge was attacked on some other grounds too - Since prosecution case is already found unsustainable for reasons aforesaid, we have found hardly any necessity to consider those alleged infirmities in prosecution case - Appeal is allowed.
Prasanta Kumar Saikia, J.
1. This appeal is directed against the judgment dated 18.03.2014, passed by the learned Sessions Judge, Morigaon in Sessions Case No. 94 of 2009, convicting the accused/appellants of offence U/s. 302/201 IPC and sentencing them to suffer imprisonment for life and to pay a fine of Rs. 10,000/- each, in default, R.I. for another period of 1 (one) year for the offence U/s. 302 IPC and to suffer R.I. for 3 years and to pay a fine of Rs. 5000/- each, in default, R.I. for a further period of 6 months for the offence U/s. 201 IPC. It may be stated that by the aforesaid judgment, some other persons, namely, 1) Jagabandhu Sarkar, 2) Sri Nagen Ch. Sarkar, 3) Sri Brindaban Ch. Mandal and 4) Sri Puma Ch. Mandal, who were tried along with the convicted accused persons were acquitted of offence U/s. 302/201 IPC.
2. Being aggrieved by and dissatisfied with the judgment dated 18.03.2014, appellants, namely, 1) Sri Bhasan Ch. Sarkar, 2) Sri Nigam Ch. Sarkar and 3) Sri Amar Ch. Sarkar, (who would be referred hereinafter to as A-1, A-2 and A-3 respectively) had preferred this appeal citing several infirmities in the judgment under challenge.
3. We have heard Mr. A.L. Mandal, learned counsel for the appellants and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam, appearing for the State respondents.
4. The facts projected by the prosecution in Sessions Case No. 94 of 2009, in brief, are that on the night of 01.04.2005 at about 11 P.M. accused Bhashan Sarkar (A-1), Jagbandhu Sarkar, Nigam Sarkar (A-2), Amar Sarkar (A-3), Brindaban Mandal, Nagen Sarkar, Punya Mandal and others came to the house of the victim girl, who was said to have an affair with A-1, kidnapped her from her own house. Though a vigorous search was made to trace her out, however, such effort yielded no result.
5. Therefore, an FIR to that effect was lodged on 13.04.2005 before the I/C Bhuragaon Petrol Post. (In short, P.P.). It has also been stated that in the FIR, the informant Sri Phatik Ch. Mandal, father of the victim, suspected that accused persons aforementioned having kidnapped his daughter might have subjected her to rape and thereafter they might have killed her too.
6. On receipt of the FIR, I/C, Bhuragaon P.P., made a G.D. Entry vide G.D. Entry No. 274 dated 13.04.2005 and forwarded the same to the O/C. Laharighat Police Station for registering a case and for doing further needful. On receipt of the FIR, Officer-in- charge, Laharighat Police Station registered a case vide Laharighat P.S. Case No. 21/2005 U/s. 366/34 IPC and ordered investigation.
7. During investigation, the Police Officer who was entrusted with the investigation visited the place of occurrence, arrested the accused persons and examined the witnesses. As the investigation progressed, the I.O. seized the letters reportedly written by A-1 to the victim girl and sent the same to the Forensic Expert for examination and for his opinion thereon about the person who wrote such letters.
8. However, before he could complete the investigation, he was transferred and as such, he handed over the case diary to the O/C. Laharighat Police Station. According to him, one Sri Shidananda Bora (S/I), submitted charge sheet U/s. 364/302/34 IPC against as many as 7(seven) accused persons including the appellants herein and forwarded them to the court to face trial.
9. The learned Magistrate before whom the charge sheet was so laid, committed the case to the Court of sessions since the offences U/s. 302/364IPC are exclusively triable by the Court of sessions. On receipt of the case on commitment and on hearing the learned counsel for the parties, the learned Sessions Judge, Morigaon framed charges under Section 364/302/201/34 IPC against the accused persons and the charges, so framed, on being read over and explained to them, accused persons pleaded not guilty and claimed to be tried.
10. During trial, prosecution has examined as many as 20 witnesses including the I/O of the case. The statements of
