Ram Prosad Sinha vs State of West Bengal

Joymalya Bagchi, J.—The appeal is directed against judgment and order dated 31.05.2007 passed by learned Judge, 5th Special Court, Kolkata in Spl. Case No. 3 of 1997, convicting the appellant for commission of offence punishable under section 381 of the Indian Penal Code and directing him to suffer rigorous imprisonment for one year and pay fine of Rs. 1000/- in default to suffer rigorous imprisonment one month more.

The prosecution case as alleged against the appellant as follows:

"One unknown person came to the office of the Secretary of West Bengal Board of Secondary Education at Part Street, Kolkata, on 10.03.1997 at about 1.30 P.M. and left behind some papers on the office table of the Secretary of the Board. The papers left behind with an endorsement "collected from South 24 Parganas". Shri U.K. Basu, the then Secretary, West Bengal Board of Secondary Education (P.W. 21), on examination found that the said papers contained many questions on mathematics pertaining to the mathematics examination scheduled to be held by the Board on 11.03.1997. The said papers were verified and it was found that although it was not in the exact format of the question paper required for the examination it contained questions which the candidates were required to answer in the said examination. Mathematics examination was accordingly postponed and the matter was informed through media to the candidates and the people at large. Shri Basu, the Secretary, lodged a written information with the Commissioner of Police Calcutta, and requested him to take necessary action in the matter. On receipt of such information, Commissioner of Police, Calcutta directed registration of a criminal case. Accordingly, Park Street P.S. Case No. 116 dated 11.03.1997 under sections 120B/380/417 I.P.C. was registered for investigation against unknown persons. Investigation was taken over by Prasanta Kumar Moulik, Sub-Inspector of police attached to anti cheating section (P.W. 23). He examined the complainant (P.W. 21) raided various places and arrested as many as ten accused persons including the appellant. Accused Nishi Kanta Adhikari was arrested by Bangur police. On the basis of his information, co-accused Madan Mohan Debnath was arrested. Pursuant to the statement of Madan Mohan, appellant was arrested and it is alleged that Bangur police recovered one envelope containing four question papers of mathematics and another envelope containing four question papers of Geography of Madhyamik Examination held in 1997 by the Board from the residence of the appellant. In conclusion of investigation, charge-sheet was filed against the co-accused Madan Mohan Debnath and Nishi Kanta Adhikari under section 120B read with section 409 of the Indian Penal Code, against the appellant and Modan Mohan Debnath under section 419 of the I.P.C. read with section 34 of the I.P.C. against the Nishi Kanta Adhikary and Madan Mohan Debnath under section 414 of the Indian Penal Code and against the appellant under section 381 of the Indian Penal Code."

Charges were famed against appellant and Madan Mohan Debnath under section 419/34 IPC, against the appellant under section 381 IPC, against the appellant, Nishi Kanta Adhikari and Madan Mohan Debnath under section 120B read with section 409 IPC, against Nishi Kanta Adhikari and Madan Mohan Debnath under section 411/414 IPC. The appellant and other accused persons pleaded ''not guilty'' and claimed to be tried.

In the course of trial the prosecution examined as many as 23 witnesses and exhibited a number of documents. The defence of the appellant was one of innocence and false implications. The appellant however did not examine any witness on his own.

In conclusion of trial the Trial Judge by judgment and order dated 31.05.2007 convicted the appellant for commission of offence punishable under section 381 of the Indian Penal Code and sentenced him to suffer for rigorous imprisonment for one year and pay fine of Rs. 1000/- in default to suffer rigorous imprisonment one month more. By the self-same judgment and order accused Madan Mohan Debnath was found guilty for commission of offence punishable under section 419 of the Indian Penal Code and sentenced to pay fine of Rs. 10,000/- in default to suffer simple imprisonment for six months. The appellant was found not guilty for commission of offence punishable under section 419 of the Indian Penal Code. The appellant, accused Nishi Kanta Adhikari and Madan Mohan Debnath were acquitted of the charges under section 120B read with section 409 IPC. Accused Nishi Kanta Adhikari and Madan Mohan Debnath were acquitted of the charges under sections 414 and 411 of the Indian Penal Code.

PW 1 (Bilas Bindu Bajani) was posted as Assistant Secretary of the Strong Room of the Board of Secondary Education at the time of occurrence. He stated that question papers were kept in the Strong Room. He further stated that the appellant was a Group "D" employee at the Strong Room and was working there since 1994 on deputation. President of the Board conducts the Madhyamik examination. Deputy Secretary (Examination) was in charge of the strong room. Nirabindu Pal as Deputy Secretary (Examination) was in charge of the Strong room at that time. He stated that there was leakage of question papers of Mathematics. On 01.09.1997, Police seized documents relating to such leakage. Police also took account of Geography papers. As Geography examination was over, they could not give correct account of Geography question paper. He produced the relevant documents to the police in course of investigation. He proved his signature on seizure list. In cross-examination, he stated that the key of the Strong Room at the material time was with Nirabindo Pal and Jagadish Chowdhury, who was the Special Officer, Examination. He stated that apart from the appellant there were a number of Group D employees in the Strong room.

PW2 (Jagadish Chandra Chowdhury) was posted as Special Officer Confidential in the examination section of the West Bengal Board of Secondary Education. He stated that Nirabinda Pal was Special Deputy Secretary of Examination at the relevant point of time. Nirabinda Pal was in-charge of the Strong Room at the relevant time. He stated that the appellant was working in the Strong room. All the employees in the Strong room were faithful. In 1997, police from Lal Bazar came to the Strong room and verified the stock in Strong room. One packet containing five question papers - both English and Bengali versions - were found missing. In cross-examination, he stated that stock register was maintained in the Strong room. Secret documents where received were entered in the stock register and question papers when they were taken out were also entered in the stock.

PW3 (Ashis Kumar Banerjee) was the Assistant Grade in the Confidential Department, Strong Room, Board of Secondary Education. He stated that on 1.9.1997 police came to the Strong Room and verified the stock of the question papers. Sankar Nath Mukherjee was also present at the time of verification. One packet containing five question papers both Bengali and English version were found missing. In cross-examination he stated that he could not say the total number of question papers lying in the Strong Room.

P.W. 4 (Manju Roy) is the reader of Goenka College of Commerce and Business Administration. She stated that in 1997 she was the moderator of the Bengali and English versions of Mathematics questions paper along with Professor Dinabondhu Chatterjee. She stated that after moderation she handed over handwritten questions paper with suggestions for moderation to Nirabinda Pal in sealded cover. Over leakage of question papers in Mathematics, on 10.03.1997 she came to the office of the President of the Board. She was shown a handwritten paper with sums by PW 21 and asked to compare them with the question paper set for the examination. The question paper was supplied by Nirabindu Pal in a sealed packet. She marked the similar sums with pencil. There were some changes in Language and Geometry portion of Mathematics. In cross-examination, she stated that she did not remember the dates when she came to the office of the Board for moderation. She did not find the handwritten paper which she compared with the question paper in Court.

P.W. 5 (Shankar Nath Mukherjee) is the typist, Grade I Confidential Section, Board of Secondary Education. He stated that Nirabindu Pal was the special Deputy Secretary of the department. In the presence of the police Nirabindu Pal asked him and PW 3 (Asish Banerjee) to verify the questions papers in the strong room with the register. He stated that one sealed packet containing 5 questions papers of Mathematics, both Bengali and English versions were missing from the strong room. Police officers kept other packets of question paper of different denomination in almirah and sealed it. In cross-examination he stated that Deputy Secretary was in charge of the strong room. He maintained the stock register and the keys were kept with him.

P.W. 6 (Shyamal Chakraborty) the priest who performed the Sradh ceremony of the father of the appellant at the latter''s residence on 16th March, 1997. He stated that at the time of Sradh ceremony, police officers came to the house of the appellant and surrounded the house. They took the appellant inside the room. People who had assembled stated that some question papers have been recovered from the room of the appellant. P.W. 6 was called inside the room by the police personnel. He was shown an envelope of brown colour. The envelope was open when he saw it. The police officers brought out some question papers from inside the envelope and he saw the questions papers. He stated that the question papers which have been produced in Court were not the questions which were brought out from the envelope. He identified the envelope. He proved his signature on the questions papers, envelope and seizure list. In cross-examination, he stated that he had not seen the recovery of the question papers.

P.W. 7 (Prabir Kumar Sardar) stated that on 16th March, 1997 he had been to the house of the appellant and found that there was a police jeep and many persons. Sradh ceremony of the father of the appellant was going on. When he went inside the house, he found question papers in the hands of the two police officers. Police officers took his signature on the question papers and other papers which were in their hands. He identified the question papers of mathematics and geography along with the envelopes. He identified his signature on the seizure list as well as on the question papers.

P.W. 8 (Jayashri Kanrar @ Majhi) was a candidate of the Madhyamik Examination for the year 1997. She was declared hostile.

P.W. 9 (Pithwis Kumar Basu) was the headmaster of Dr. Shyama Prosad Mukherjee Institution at the material point of time. He proved the admit card of Madan Mohan Debnath issued by the Board of Secondary Education as an external candidate for Madhyamik Examination in 1997 from the said school.

P.W. 10 (Narayan Chandra Bhattacharyya) was the Regional Officer of the West Bengal Board of Secondary Education. He proved the application of Madan Mohan Debnath for registration as external candidate for admission to test examination preparatory to MP(SE) for external candidate, 1997. He also proved the selected list of external candidates for Madhyamik examination and contained the name of Madan Mohan Debnath.

P.W. 11 (Bapi Pal) was the son of a primary teacher. He was a private tutor of the son of Nishi Kanta Adhikary. He stated that Nishi Kanta went to his house with a handwritten suggestion of Mathematics for Madhyamik Examination. He did not recollect the year of such examination. He saw the suggestion but did not receive it from Nishi Kanta. He did not demand any money for seeing the handwritten suggestion. He was declared hostile.

P.W. 12 (Dipak Banerjee) was a teacher of Rampur High School. Madan Mohan Debnath was also a teacher of the said school.

P.W. 13 (Bidyot Bose) was posted as Sub Inspector, Enforcement Branch of Calcutta police. He seized one admit card issued by the West Bengal Board of Secondary Education in favour of Madan Mohan Debnath.

P.W. 14 (Dr. Purnendu Sengupta) was the Principal of Bangabashi College in 1997. He gave reply (Ext. 15) to the queries put to him by Deputy Commissioner of Police, II Detective Department, Lal Bazar Calcutta.

P.W. 15 (Gour Chandra Sardar) was a clerk at Rampur High School. He has produced the documents which were seized in course of investigation showing that Madan Mohan Debnath was working as a teacher of the said school.

P.W. 16 (Tarapada Biswas) was a clerk working at Entally Academy. He produced documents for seizure by the police officers in course of investigation. He produced the fees books of the external candidates of Entally Academy. They received fees from the appellant and Madan Mohan Debnath as external candidate. Chanchal Bhattacharyya wrote the fees and he put his signature on receipt of fees. He proved the fees book as Ext. 18. He proved the External form distribution Register (Ext. 19) containing signatures of the appellant and Madan Mahan Debnath acknowledging receipt of such form. He also proved their signatures acknowledging receipt of registration certificate in the register (Ext. 20) maintained by the school. In cross-examination, he stated that he cannot say whether the candidates sat in the examination.

P.W. 17 (Subhas Chandra Sarkar) was the sub-inspector of police attached to Anti Cheating Section, Detective Department, Lal Bazar. He seized documents produced by Headmaster, Entally Academy relating to admission of the appellant and Madan Mohan Debnath for appearing as external candidates in Madhyamik examination, 1997.

P.W. 18 (Pradip Kumar Ray) was posted as Officer in Charge of Bhangar Police Station in 1997. He stated that on 13th March, 1997 he received a requisition from Officer in charge, Anti Cheating, Detective Department, Kolkata for arrest of Nishi Kanta Adhikari and others. On 15th March, 1997 on source information he and others arrested Nishi Kanta Adhikary. As per statement of Nishi Kanta Adhikary, Madan Mohan Debnath was arrested. Pursuant to statement of Madan Mohan Debnath, he went to the residence of the appellant. He stated that he recorded statement of the appellant and recovered four question papers of Geography of school final examination and four question papers of Mathematics from the kitchen along with other some documents. He stated that he seized those documents in presence of local witnesses. He returned to Behala police station where the officers of the Detective Department were called. He made over the accused and the documents to the Investigating Officer of the case. He proved the seizure list which was in his handwriting as Exhibit 5.

P.W. 19 (Avijit Sengupta) was posted at Jadavpur as D.S.P. (Town). He stated that upon instruction of superior authority, he raided in various portions of South 24 Parganas with an issue of leakage of question papers of Madhyamik Examination in 1997. During raid, they arrested the accused persons and recovered question papers as per identification of the other co-accused persons. Seizure list was prepared in his presence. He put his signature thereof. The signature is marked as Exhibit 5/3. In cross-examination he stated that there was no written instruction. He received verbal instruction in the matter.

P.W. 20 (Indrajit Pal) was posted as Sub Inspector of Bhangar Police Station. He stated that he accompanied the officer in charge of the said police station to hold raid in various placed over the issue of leakage of question papers of Madhyamik Examination. They went to the house of the appellant and seizure list was prepared. He signed on the seizure list which was exhibited as Exhibit 5/4. He stated that they have not informed the local police station about the seizure. The same was done as per instruction of DSP (Town).

P.W. 21 (Ujjwal Kumar Basu) was the Secretary of the West Bengal Board of Secondary Education in 1997. He stated that Dr. Chittarajan Banerjee was the President of the Board and Nirabindu Pal was the Deputy Secretary of examination. Examination was conducted by the Deputy Secretary under the direction of the President of the Board. There is a strong room in the examination section wherein printed, packeted and sealed question papers are kept for distribution to different examination centres through respective custodians. The strong room is in the disposal of the Special Deputy Secretary (Examination). He proved the complaint lodged by him with Commissioner of Police dated 11th March, 1997 against unknown persons who left papers on his table. He saw the paper and found that the paper contained some mathematical sums. He apprised the President of the whole incident. Under his direction he contacted over telephone one of the moderators of the mathematics question paper. Professor Manju Roy reported to the President''s chamber in the evening under instructions from the President. Sealed packet of Mathematics question paper was brought out from the strong room by the Special Deputy Secretary. Professor Manju Roy, the moderator told him and others that the sums written on the papers left by the unknown persons are the same as those contained in the printed question papers. Under instruction of the President, Mathematics examination was cancelled.

P.W. 22 (Dr. Subrata Kumar Mondal) is the Senior Scientific Officer in the State Forensic Science Laboratory. He stated that he knew Subimal Ghosh who was Senior Scientific Officer in 1997. He proved the report of the scientific forensic laboratory signed by Subimal Ghosh as Exhibit 23.

P.W. 23 (Prasanta Kr. Moulik) was the Investigating Officer of the case. He stated that the appellant was arrested by Bangur police station. Bangur Police recovered one envelope containing four question papers of Mathematics, one envelope containing four question papers of Geography of Madhyamik examination from the appellant. He submitted charge sheet in the instant case.

Mr. Bhattacharyya, learned counsel appearing for the appellant submitted that there is no tangible evidence connecting the appellant with the alleged crime. Theft of Geography question paper from the strong room has not been established. He further submitted that seizure of the question papers from the possession of the appellant has not been proved. Evidence of P.W. 18 has not been corroborated by any other witness including the police witness. He accordingly prayed for acquittal of the appellant.

Mr. Chakraborty appearing as amicus curiae supported the submission of Mr. Bhattacharyya. He submitted that theft of question papers have not been proved. Recovery from the appellant is doubtful. Accordingly conviction of the appellant on the basis of scanty evidence on record ought to be set aside.

Mr. Banerjee, learned Additional Public Prosecutor submitted that there was leakage of mathematics question papers of Madhyamik examination, 1997. Papers were left behind in the chamber of P.W. 2, Secretary of the West Bengal Board of Secondary Education which contained sums pertaining to the Mathematics question paper. Moderator of Mathematics question paper (English and Bengali version) deposed that the sums in the said paper tallied with the question paper. Prosecution witnesses have deposed that one sealed packet containing five question papers of Mathematics examination(both English and Bengali version) were missing. Question papers of Mathematics and Geography were recovered from the appellant. Hence, the appeal ought to be dismissed.

It is true that the appellant was working as a Group-D employee in the strong room of examination centre of West Bengal Board of Secondary Education at the relevant point of time. There is however no evidence on record that he had either control or custody over the strong room where the question papers were kept. It appears from the evidence on record that one Nirabendu Pal, Special Deputy Secretary, West Bengal Board of Secondary Education was in charge of the strong room and was in possession of the keys to the strong room along with Jagadish Chandra Chowdhury (P.W. 2). It has also come on record al employees who worked in the strong room was give access thereto under the supervision of Nirabandu Pal and was accountable to him. It is strange that Nirabendu Pal has not been examined in the instant case. There is absolutely no evidence on record to show that the appellant had dishonestly removed any question paper from the strong room of the examination centre. P.W. 5 in his deposition stated that in the presence of police the strong room was opened and after comparing the question papers with the stock register it was found that a sealed packet containing five question papers of mathematics in English and Bengali versions were missing. It is the evidence of prosecution witnesses that entries were made in the stock register with regard to receipt and despatch of all secret documents including question papers which was handled by Nirabendu Pal. It is strange that the Investigating Agency did not seize the stock register. No inventory of the stock of question papers in the strong room was prepared. There is no documentary evidence to corroborate the version of P.W. 5 that there was a shortfall of a packet of five question papers of mathematics in English and Bengali versions from the strong room at the time of search. Hence, the fact that there was a shortfall of a packet containing five question papers of Mathematics in Bengali and English versions from the strong room has not been established by production of contemporaneous stock register maintained in ordinary course of business. Prosecution relied on oral evidence of witnesses only in that regard. PW 2 had joint custody of the keys of the strong room with Nirabendu Pal (not examined). They appear to be primarily liable of such shortfall, if any, than the appellant in this case.

Next comes the alleged recovery of question papers from the possession of the appellant.

P.W. 18 was the officer-in-charge on Bangur Police Station. He deposed that pursuant to requisition received from officer-in-charge, Anti-cheating Section, Detective Department, Kolkata, he had arrested one Nishikanta Adhikari on 15.03.1997. Pursuant to his statement, Madan Mohan Debnath was arrested. Pursuant to the statement of Madan Mohan Debnath, raid was conducted on 16.03.1997 at the residence of the appellant. It is claimed by P.W. 18 that four question papers of geography and four question papers of mathematics for Madhyamik Examination of 1997 were seized from kitchen room of the appellant. Prosecution witnesses relating to such seizure are P.Ws. 6, 7,18,19 and 20. P.W. 6 was the priest who was performing Shradh ceremony of the father of the appellant at the residence of the appellant at the material time. He, in his deposition, does not speak of recovery of the question papers of geography and mathematics of Madhyamik Examination, 1997 from the possession of the appellant. He deposed that when he entered into the kitchen room he found that police were in possession of the two envelops containing question papers and that the police showed seizure of such question papers under a seizure list which was signed by him. Similar is the evidence of P.W. 7. Most interestingly PW 20, a member of the raiding party also does not support the evidence of P.W. 18 to the extent that the question papers were recovered from the possession of the appellant. PW 20 merely stated in his evidence that he was a member of the raiding party and had raided the house of the appellant. PW 20 merely stated that he had put his signature on the seizure list. P.W. 20 is significantly silent with regard to the interrogation of the appellant or recovery of the question papers from the kitchen room of the appellant pursuant to such interrogation, as claimed by P.W. 18. P.W. 19 was the Deputy Superintendent of Police (Town). It is his evidence that the aforesaid search and seizure was conducted under his supervision. He stated that the seizure list was prepared in his presence and he put his signature on the seizure list. He is also conspicuously silent with regard to the recovery of the question papers from the possession of the appellant pursuant to the latter''s interrogation. Moreover neither P.W. 19 nor P.W. 20 have identified the appellant in Court. P.Ws. 18 and 20 had also not acknowledged the presence of P.W. 19 at the time of search and seizure although P.W. 19 claimed that the seizure list was prepared in his presence and he had signed the same.

In the conspectus of the aforesaid evidence on record, it is difficult to rely on the sole version of P.W. 18 that question papers of geography and mathematics of Madhyamik Examination, 1997 were recovered from the kitchen room of the appellant upon his interrogation. This piece of evidence is not corroborated by any other witness including the police witnesses who claimed to be members of the raiding party. As discussed earlier, the evidence on record with regard to shortfall of question papers in the strong room is not supported by production of stock register maintained in the ordinary course of business. Hence, neither theft of question papers of Mathematics from the strong room of the Board nor the recovery of such question papers from the possession of the appellant has been proved beyond reasonable doubt.

Seizure of documents from Entally Academy does not prove beyond doubt that appellant appeared as an external candidate for Madhyamik Examination, 1997. No admit card issued by the Board in his name has been produced. This demolishes the prosecution case as to the motive of the appellant in the instant case.

In view of the aforesaid discussion, I am constrained to hold that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. Accordingly, I allow the appeal, acquit the appellant and set aside the judgment and order of conviction and sentence passed against him.

The appellant shall be discharged from his bail bonds after expiry of six months from date in terms of Section 437A of the Code of Criminal Procedure.

A copy of the judgment alongwith the Lower Court Records be sent down to the trial court forthwith.