Lalli Alias Chiranjib Bhowmick and Others vs State

N.C. Mukherji, J.

The prosecution case may briefly be stated as follows :-

Complainant Swapan Singh owned lorry bearing No. WMK 4315. On 21st June, 1978 that lorry proceeded to Gauhati with some goods. Its driver was Adya Singh and Khalashi was Ramchandra Rauth. The lorry was scheduled to come back to Calcutta on 27 6.78. Carrying 180 chests of tea of M/s. Assam Bengal Carriers Ltd. from Gauhati that lorry reached the petrol pump of one Gyan Singh near Dum Dum Airport in the night of 26 6.78. Along with the said lorry another lorry bearing No. WMK 4534 belonging to Amal Daw arrived. In that lorry, the driver was Prasanta Nath. Jayanta, younger brother of Amal along with his friend Amitava Mitra was in that lorry. Both the lorries arrived at the petrol pump at about 11.30 P.M. The driver of larry No. WMK 4534 decided to stay at the petrol pump. Jayanta and Amitava being eager to return to Calcutta bearded lorry No. WMK 4315 which left Gyan Singh''s petrol pump that night. Driver Adya Singh, khalasi Ramchandra, Amitava and Jayanta were in that lorry. The lorry proceeded towards Calcutta. It took the route via Birati. When the lorry arrived near Pubpara More on Madhusudan Banerji Road with P. S. Belgharia it was obstructed by 10/12 persons by placing a handcard on the road. The lorry had to stop. As soon as it was stopped 3/4 persons with revolvers in their hands got inside the lorry and compelled all the four passengers to come down. The persons who so obstructed the lorry were the accused against whom charge u/s 396/34 I.P.C has been framed. It is the prosecution version that after the driver and three others were brought down accused Lalli directed accused Ram Abatar to drive the lorry to the place to be shown by accused Barun Biswas and Manik Das Thereafter the lorry was diverted to a different route. After the disappearance of the lorry, the aforesaid accused persons caught hold of the passengers of the lorry and forced them to go on foot to a field at Adarshanagar. In that night Haradhan Das, a night guard attached to Nimta Paschimanchal Babasayi Samity, had been accused Lalli and others obstructing the lorry, diverting it and forcibly taking away the four passengers towards the field. Hiding himself behind a stack of bricks he noticed that. Thereafter, he followed the accused persons when the aforesaid persons were being taken away to the field. Going to that field Haradhan hid himself behind a bush and observed the incident. He found that the four persons were kept seated beside a pillar. They entreated the accused persons to let them go, but to no effect. A piece of cloth was wrapped on the eyes of each of these four persons. Thereafter the accused persons took them one by one in the jheel, drewned them and after that hit them on their heads with some hard and blunt substance. After killing them one by one the accused persons threw their dead bodies into a big hole already dug for that purpose Thereafter the dead bodies were all buried. Two bamboo poles were put on it. Some water hyacinth was brought and placed over that place. The accused persons left the place and took their bath in a jheel lying to the east of that place. Witness Haradhan Das came back to his place of work. Accused Ram Abatar with accused Barun Biswas and Manik Das drove that lorry to Chamrail in the district of Howrah. There in the godown of accused Habul Naskar 40 chests of tea were unloaded. Thereafter keeping that lorry at a place accused Barun and Ram Abatar proceeded towards their houses. While they were crossing Ariadaha area in the early morning of 27.6.78 they were challenged by witness Sk. Samsul Alam, a police officer of Belgharia PS who was then investigating a theft case. S. I. Alam had suspicion on accused Barum Biswas and he searched his person. From his possession he recovered a key and some challans and other papers, seized those articles and arrested accused Barun Biswas In the morning of 27.6 78 lorry No. WMK 4315 was further driven by accused Panna Shaw at a place near Makardah Road. The tea chests of that lorry were thereafter unloaded and loaded in two lorries, one belonging to Md. Nazir and the other to his brother. With the tea Chests those two lorries were driven by Ramjiban Keori and Ram Narayan Saroj The lorries while proceeding towards Calcutta had to stop as they arrived during ''no entry'' period. In that after noon some police personnel from Lalbazar had gone to that place and brought the aforesaid two lorries with the tea chests to Lalbazar. Seeing the lorry No. WMK 4315 not returning by 27. 6. 78 Swapan Singh, the owner, was anxious. He made searches for the lorry. He had been to the petrol pump of Gyan Singh and Barasat Check Post and from there as also from the driver of lorry No. WMK 4534 came to know that in the night of 26. 6. 78 his lorry had arrived at the petrol pump and crossed the check post at Barasat. Finding his lerry and his driver and khalashi missing Swapan Singh went to Belgharia P S. on 29 6 78 and lodged a written complaint. For want of jurisdiction that complaint was sent to Dum Dum Airport P. S. and on the basis of that complaint P. S. Case No 2 dated 1 7 78 was started. Inspector Acharya took up the Investigation of the case. He had been to the place of occurrence pursuant to a statement made by Barun Biswas and examined some witnesses. Subsequently, the investigation was taken up by CID. On the basis of the source information S. I. Birendra Nath Biswas arrested accused Ashoke Thakur from Mohesh colony, Serampore on the night between 18.8.78 and 19 8 78. He made some statement before S.I. Biswas and on the basis of his statement accused Ashoke Dutta and Pabitra Dutta were arrested from Jatindasnagar. In the night of 19.8.78 after arrest accused Ashoke Dutt Pabitra Dutta made some confession to the police stating that they would be able to show the place where four dead bodies would be found if they be taken to a field at Adarshanagar. On the basis of their statements, the friends and relatives of the missing persons were informed and told to be present at the DDI Office, Baranagar on the morning of 19 8.78. On that morning, accused persons led the police to a filed at Adarshanagar and pointed out a place from where four dead bodies were recovered. Some domes were engaged by the police and they dug up the place and brought out four dead bodies which were identified to be those of Adya Singh, Ramchandra Routh Amitava Mitra and Jayanto Daw by the relatives on seeing their wearing apparels. The dead bodies were sent id Barrackpore morgue for post mortent examination. After completion of investigation, chargesheet was submitted.

The defence is an absolute denial of the charges that have been framed against the accused persons. It is the defence case that all the accused persons have been falsely implicated on the statements of some persons belonging to the police camp. The learned Judge, on a scrutiny of the entire evidence on record, acquitted these persons, but convicted and sentenced nine appellants as stated above. Being aggrieved, these appeals have been filed.

Mr. Das, Mr. Roy and Mr. Dutt, learned Advocates appearing on behalf of the appellants, submit that in this case the prosecution relies on three items of evidence, Firstly on the uncorroborated testimoney of a single witness P. W. 26 - Haradhone Das who claims to have seen the occurrence. Secondly, on the evidence u/s 27 of the Evidence Act and thirdly, on the retracted confession of a co-accused. It is contended that the learned Judge ought not to have placed any reliance on the evidence of P. W. 26 as on a scrutiny of the evidence adduced by this witness, it will be clear that he did not see the occurrence and has been procured by the police about two months after the incident. The reasons offered by the learned Advocate for not accepting the testimoney of P.W. 26 will be discussed subsequently. With regard to the evidence on the point of recovery of dead bodies it has been submitted that the statements of the accused persons have not been proved in this case and as such the fact of recovery cannot go u/s 27 of the Evidence Act. Again, it has been contended that it is the evidence of the investigating officer that three accused persons made statements together. It has been contended that in such circumstances, the statements of the accused who was the first to state can only be admissible in evidence and the statements of the other accused should be rejected. This point will also be discussed at length subsequently. As regards the judicial comfession of Ram Abatar broadly it bas been pointed out that the confession is self-exculpatory and as such cannot implicate the other accused persons. It has also been pointed out that though a confession was made by Ram Abatar he has been acquitted. In such circumstances, such a confession cannot be used against other co accused. It has also been submitted that the learned Magistrate did not observe the required formalities of law and as such the confession ought not to have been admitted in evidence.

The learned Advocates for the appellants, with much emphasis, contend that it will be risky to rely on the uncorroborated testimony of a single witness namely. P. W. 26 who was examined by the police only on 8.10.78, the incident having taken place on 26 6 78. In this connection it has also been contended that though the witness narrated the incident to his mother and wife but none of them has been examined in this case. The two night guards who were with him on the night of the occurrence have also not been examined It is gathered from the evidence of the investigating officer that the two night guards left their services and were not available. It has not transpired in evidence that P.W. 26 stated to the investigating officer that he narrated the incident to his mother and wife If that be so, then there was absolutely no necessity for the investigating officer to examine mother and wife of P.W. 26. On behalf of the appellants, reliance has been placed on a decision, reported in State of Orissa Vs. Mr. Brahmananda Nanda, . In this case, the only eye witness to the occurrence did not disclose the name of the assailant for a day and a half after the incident and the exaplanation offered for nondisclosure was unbelievable. In the facts and circumstances of the case, it was held that "such non disclosure was a serious infirmity of the evidence of the witness and that the High Court was correct in rejecting it as untrustworthy and acquitting the accused." It is true that in this case also the only eye witness is P.W. 26 - Haradhone. P.W. 26 deposes that after seeing the entire incident he met the two night guards. He did not disclose the incident to them. After the incident he did not go to the police. He, however, admits that he narrated the incident to his mother and wife. On the following day, he narrated about the lorry hijacking incident to the Secretary, He forbade to tell the incident to anybody and not to bother about it. The Secretary further stated that as a nightguard his duty was to look after the security of the shops and not to bother about any other incident. One and a half months after the incident the police officer came to his house and interrogated him. He stated to him what he knew. As has been stated earlier, this witness though a simple and unsophisticated person and a vegetable dealer and a nightguard impressed us very much as a truthful witness. He was cross examined at length, but was not shaken a little. From a close scrutiny of his evidence we are of the opinion that it cannot be said that he is a tutored witness. He has given the minutest detail from the beginning to end in a most systematic, convincing and reliable manner and that being so, though he is the only eye witness we are not in a position to reject his evidence, as his evidence, gets fully corroborated by other items of evidence which we will discuss soon. On behalf of, the accused reliance has also been pleaced on another decision, reported in Habeeb Mohammad Vs. The State of Hyderabad, . It has been held "it is the bounden duty of the prosecution to examine a material witness, particularly when no allegation has been made that, if produced, he would not speak the truth. Not only does an adverse inference arise against the prosecution case from his non production as a witness in view of the illustration (g) to section 114 of the Evidence Act, but the circumstances of his being withheld from the Court casts a serious reflection on the fairness of the trial." The prosecution case is that P.W. 26 is the only eye witness. There was no other witness to the actual occurrence. It is true that on that night other two night guards were with him, but they were standing at a distance and they did not see any part of the incident. Even then, they ought to have been examined to prove that on that night they were doing duties as night guards with P. W. 26. The Explanation for non examination of these witnesses has been offered by the investigating officer. P W. 26 also slates that he does not know the whereabouts of these two night guards. Mr. Mukherji, the learned Public Prosecutor in this connection relies on a decision reported in Pal Singh and Others Vs. State of U.P., , In this case, it has been held that after the High Court had believed the eyewitness Nos. 1 and 2, and having found that their testimony was absolutely credit worthy and truthful, it cannot have rejected the prosecution case merely because some of the eye witnesses mentioned in the F.I.R. were not examined. In such cases, the question which has to be determined is not whether the absence of the examination of the independent witnesses would vitiate the prosecution case by itself but whether the evidence actually produced is reliable or not. Once the court given a finding of fact that the evidence led by the prosecution is reliable and trust worthy, the infirmities arising out of non-examination of witnesses will not be sufficient to put the prosecution out of Court". Mr. Mukherji, with much emphasis, submits that in the present case there is absolutely nothing for which the veracity of the evidence of P.W. 26 can be questioned. The learned trial court was satisfied that P.W. 26 is a truthful witness and Mr. Mukherji submits that this Court also should consider that P.W. 26 is a truthful witness and should not reject his evidence.

With regard to the evidence u/s 27 of the Evidence Ace the prosecution introduces a fact, namely, that after being arrested "Ashoke Thakur, Ashoke Dutta and Pabitra Dutta made some statements and they led the police officer to a field at Adarshanagar. It is the evidence of the I.O. that they stated that they would be able to locate a place where the dead bodies had been buried. The relations and friends of the four deceased persons were informed All were present at Adarshanagar field. The accused persons led the police party near a jheel. They felt earth with their feat and they pointed out a place. Some domes were already engaged by the investigating officer, The domes dug out that place, picked up two bamboo poles and then recovered four dead bodies. As has been stated earlier those dead bodies have been identified by the relations and friends. It has been contended on behalf of the appellants that this evidence u/s 27 is not admissible for various reasons. Firstly, the statements of the accused persons have not been recorded. Secondly, it is not known who made the first statement as it is the prosecution case that all the three accused persons made statements and on the basis of those statements recovery was made. It has also been contended that it is not known as to what actually the statements were. Reliance has been placed on a decision reported in 36 CWN 373 (Durlav Namasudra & Ors. Vs. Emperor). It has been held in this case that "when statements to the same effect, leading to the discovery of a fact, are made by a number of persons in the custody of a police officer, only so much of the statement of the first person making such a statement as relates distinctly to the fact discovered, is admissible in evidence against him, the statements of the other persons are not admissible at all." Reliance has also been placed on a decision reported in 50 CWN 88 (Abdul Kader & Ors. Vs. The King-Emperor). In this case, it has been held "where there is evidence that the statement was made first by one person then the information is admissible against that person alone, when there is evidence that the statement was made by several persons simultaneously then the information is admissible against all persons making the statement; unless such evidence as indicated above is forthcoming the information would not be admissible against any one." In the present case, it is the prosecution case that all the three accused persons made some statements, they led the police party to a field at Adarshanagar and pointed at a place from where the dead bodies were recovered. So, the prosecution case is that the statements were not made by the accused persons one after another, but the statements were made simultaneously and as a result of that simultaneous statement the discovery was made. The learned Public Prosecutor in this connection relies on a decision reported in Moti Lal Vs. The State, . It has been held "when the statement made by more than one accused leading to the discovery of fact such statement should be distinctly and separately recorded. There is no sufficient reason to hold that as fact cannot be said to be discovered in consequence of the information of more than one person accused of any offence. The information may be by one or by several persons but, if the information precedes the fact of discovery, the discovery must be attributed to the joint and several information by all and so much of the information as leads distinctly to the fact thereby discovered must be admitted in evidence u/s 27 against all such persons who gave that information." The learned Public Prosecutor also relies on a decision reported in Prakash Chand Vs. State (Delhi Administration), . In this case, it has been held that there is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible u/s 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a police officer in course of an investigation which is hit by Section 162, Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstances, simpliciter, that an accused person led a police officer and pointed out a place where the stolen article or weapon which might have been used in the commission of the offence were found hidden, would be admissible as conduct, u/s 8 of the evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of section 27 of the Evidence Act." Reference was also made to a decision reported in Mohmed Inayatullah Vs. The State of Maharashtra, . In this case, it has been held that the first condition necessary, for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only ''''so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded.'' In this case, it is seen that all four conditions have been fulfilled. In this case, it has been further noted that the expression fact discovered" includes not only the physical object produced but also the place from which it is produced and the knowledge of the accused as to this. In coming to this decision, their Lordships relied on AIR 1947 PC 67 (Pulukuri Kettaiya & Ors. v. The Emperor and Udai Bhan Vs. The State of Uttar Pradesh, Mr. Mukherjee also relies on a decision reported in 1977 Cr. LJ (NOC) 104 (Guj) (Memat Ramji & Ors. vs. The State of Gujrat). In this case, it has been held "the joint statement made by the accused persons is not per se inadmissible in evidence The Court must necessarily take into consideration the facts and circumstances of each case, the, subsequent conduct of the accused in the discovery of offending articles must necessarily guarantee the truth and information received from each of the accused persons.'''' Considering the legal position enunciated in the different decision referred to above and the evidence of the present case we are of the opinion that though the statements of the three accused persons have not been recorded by I.O. yet it transpires that in this case it has been proved that the three accused persons made some statements jointly and on the basis of their statements four dead bodies were recovered which were clearly and. most satisfactorily identified. Such evidence is, therefore, admissible in evidence u/s 27 of the Evidence Act. Again we note that even if it be held that the evidence is not admissible u/s 27 as we have indicated earlier it has been proved most satisfactorily that the police brought the three accused persons under arrest, the accused persons led the police to a certain place, pointed out a particular place and after digging that place four dead bodis were revovered which were identified by the relatives and friends. There is nothing to question this portion of evidence.

The prosecution next relies on the judicial confession of accused Ram Abatar. It is true that this confession has been retracted. True, the confession of a co-accused is not a strong piece of evidence against other accused. But, this is an item of evidence which can be taken into consideration along with other items of evidence Reliance has been placed on a decision reported in Nathu Vs. State of Uttar Pradesh, . In this case, it has been held that "confession of co accused are not evidence as defined in Section 3 and no conviction can be founded therein, but If there was other evidence on which conviction can be based, they can be referred to as lending assurance to that conclusion and for fortifying it." Criticism has been made with regard to the confession on the ground that it has not been proved that confession is voluntary. Recording of the confession has not been made legally. The confession is exculpatory and no sufficient time was given for reflection. We have gone through the confession carefully and we do not find that it is self exculpatory. We also do not agree with the learned Advocates for the appellants that sufficient time was not given for reflection. We also do dot find any illegality in the manner of recording the confession. So, this item of evidence should not be rejected outright.

Mr. Balai Ch. Roy, learned Advocate appearing on behalf of soma of he appellants, contends that the charge u/s 396/34 IPC against all the appellants is misconceived and the learned Judge was wrong to convict the appellants u/s 396/34 IPC. Mr. Roy submits that the prosecution case is that a lerry with tea chests was hijacked. Before the sorry was hijacked four persons were brought down from the lorry and they were killed by some of the appellants. The lorry hijacking affair and the murder of four persons are two completely different incidents and as such, it cannot be said that murder were committed in course of committing dacoity.(sic) If it is proved that some of the appellants hijacked the lorry fat the purpose of taking away the tea chests then they can be convicted u/s 395 IPC and u it is proved that some of the appellants killed loin persons then they can be convicted u/s 302 IPC. But by no stretch of imagination can all the appellants be convicted u/s 396/34 of the Indian Penal Code. Mr. Mukherji joins issue and contends that the entire thing was preplanned. There was mental formation on the part of all the appellants to hijack the lorry full of tea chests it was also their plan that for the purpose of smooth commission of dacoity without leaving any clue to the offence it would be necessary to kill all the occupants of the lorry whoever they were. In support of his contention, Mr. Mukherji first relies on a decision reported in Ramaswami Ayyangar and Others Vs. State of Tamil Nadu, in this case, it ha been held that Section 34 is to be read along with the proceeding Section 33 which makes it clear that the "act" spoken of in Section 34 includes a series of acts as a single act. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim or to otherwise facilitate the execution of the common design. Such a person also commits an "act" as such as his co participants actually committing the planned crime............The essence of Section 34 is simultaneous consensus of the minds of person participating in the criminal action to bring such a particular result. Such consensus can be developed at the spot and thereby intended by all of them. "Mr. Mukherji next relies on a decision reported in 33 Cr. LJ 722 (Monoranjan Bhattachariya and others vs. Emperor). This is a Full Bench decision of our Court. In this case certain persons who had committed dacoity were pursued in hot haste after the act of dacoity and being brought to bay, one of the decoits stabbed and murdered a man who was pursuing him. It was held that "the act of murder was not a separate transaction but an offence committed in committing the dacoity" within the meaning of Section 396, Penal Code. It was further held that the mere fact that the dacoits had dropped the booty before the murder took place did not make any difference to the applicability of Sec. 396, Penal Code." Mr. Mukherji next relies on a decision reported in 34 Cr. LJ 524 (Madhusingha Kaibarta and others vs. Emperor). This is a Special Bench decision of our Court and it has been held "where on a charge u/s 396, Penal Code, the jury find that the persons who had taken part in the offence are not shown to be five or more in number, the charge under Sec. 396 cannot be split up and treated as a charge under Sec. 302 together with a charge under Sec. 392. A charge under Sec. 302 is not a minor charge to a charge under Sec. 396.''"'' The next case relied on by Mr. Mukherji has been reported in AIR 1953 Ass. 45 (Akeila Sheikh and another vs. The State). In this case, it has been held ''under Sec. 396, Penal Code, it is not required that the murder should be committed by a certain individual or by one amongst the dacoits to the knowledge of the rest of persons involved in the dacoity, Mere commission of murder in the course of dacoity is enough to invoke the provisions of sec. 396, Penal Code, against all the persons who were conjointly committing the dacoity. Where during the commission of dacoity one of the dacoits started shooting at the owner of the house who was defending himself and thereby caused an injury to him which was likely to cause death or sufficient in the ordinary, course of nature to cause death and the house owner died subsequently." It was held "that ail the persons who had conjointly committed the offence of dacoity were liable u/s 396, Penal Code..............." If the prosecution case is to be believed, then from the fact that all the accused persons assembled together at a place where the truck loaded with tea chests appeared and that some of the accused persons put a handcart to stop the movement of the truck, that some of the accused persons compelled the four occupants of the truck to get down, that they were forcibly taken by some of the appellants towards a field, that being directed by one accused three of the accused boarded the truck and one of the accused drove the truck and that ultimately four persons were killed, it must be said that the entire transaction was one and that all the appellants had the common intention of committing dacoity and to kill the occupants of the truck in course of the commission of dacoity. We, therefore find no illegality in the charge under Sec. 396/34 I.P.C. On a careful scrutiny of the entire evidence on record, we have no hesitation to say that the learned Judge was right in convicting the appellants under Sec. 396/34 I.P.C and we also find that he was right in convicting all the appellants u/s 201/34 IP. C As has been noted earlier, Rules were issued for enhancement of sentence. The learned Judge has sentenced all the appellants to imprisonment for life u/s 396/34 I. P. C. Naturally the enhancement is for awarding death sentence. The learned Judge has given his reasons why he did not inflict sentence of death. We accept the reasonings offered by him and are not inclined to interfere with the order of sentence. In the result, all the appeals sre dismissed. The order of conviction and sentence passed by the learned Judge is hereby affirmed. The enhancement Rules are also discharged.

N.G. Chaudhuri, J.

I agree.