DIPAK SINGH Vs. STATE

JUDGEMENT

(1.) THIS appeal arises out of the judgment of conviction passed in Sessions trial Nos. 1 of December 1977 of the City Sessions Court at Calcutta. Two persons viz. Charangulia and Dipak Singh stood as accused in that case. For the purpose of the present appeal the facts as alleged by the prosecution may be shortly summarised as follows :-

(2.) ON 23rd August, 1976 at about 12-30 at dead of night the deceased Kashia was passing along Durga Charan Mitra street, Calcutta. Durga Charan Mitra street runs from West to East, linking rabindra Sarani to the western side and jatindra Mohan Avenue to the east. It is a narrow street less than five meters in width and on its way it projects small lanes on either side and Sonagachi Lane is one of such lanes proceeding towards north. On both sides of Durga Charan mitra Street there are different shops, hotels and residential houses. The whole area covered by Durga Charan Mitra street and Sonagachi Lane is usually known as red light area. The prosecution case is that when Kashia was moving along Durga Charan Mitra Street he was. all on a sudden sorrounded by 67 persons including Dipak (the present appellant) Haria Singh, Charangulia and some others. The surrounding persons. assaulted Kashia by fists and blows. Then they dragged him towards the crossing of Durga Charan Mitra street and Sonagachi Lane. On that crossing Dipak along with others struck Kashia with knife and aggers resulting in bleeding injuries. Thereafter the cuiprits resolved to drag Kashia to a safer place viz. inside the Sonagachi Lane. Actually they dragged him there and all the culprits went inside that lane along with kashia. Only Haria remained standing at the crossing. Soon after a rickshaw came over there and Haria managed to depute the Kickshaw puller inside that lane. Sometime thereafter that Rickshaw puller was seen carrying the unconscious and heavily injured Kashia and moving towards Jatindra Mohon Avenue. At about 1-30 a. m. on the same night the dead body of Kashia was found lying on the Avenue adjoining Durga Charan Mitra Street. Police party reached the spot at about 2 a. m. Thereafter the dead body of Kashia was sent for postmortem examination. The statements of the witnesses were recorded on the same night. Towards the morning at about 9. 30 a. m. the I. O. came to the spot with a police dog. Nothing however could be traced out. About one month thereafter Charangulia was arrested and about one year thereafter the police submitted charge-sheet against Charangulia and Dipak along with some others. Charangulia and Dipak stood their trial in the Court of Sessions before the city Sessions Court Judge in connection with trial No. 1 of 1977. In course of the trial both Charangulia and Dipak were found guilty of the offence under section 302/34 I. P. C. and were sentenced to life imprisonment. Charangulia, so we are told is now serving out the sentence. He has not joined the present appeal. The instant appeal has only been filed by Dipak. Dipak's defence is. that the occurrence as alleged by the prosecution did never take place at the crossing of Sonagachi Lane and Durga Charan Mitra street, that Dipak had nothing to do with the occurrence and that not being able to find out any clue to the murder, the police implicated him with the help of some tutored witnesses.

(3.) THE learned Advocate appearing for the appellant has assailed the prosecution case from start to finish characterising the same as absurd fantastic and got up. Let us now examine the prosecution case itself. There is no denying the fact that Kashia was murdered at the dead of night on 23. 8. 76. Kashia so it appears from the cross examination of P. W. 12, mritunjoy Das, was a drunkard. Nay, he wouid "some time over drink and would lie on the streets" The whole area as already indicated is a red-light area, thickly polulated by prostitutes, hotel-wallas and shop-keepers. Is Dipak a drunkard too? Was he a close associate of kashia? Did the quarrel break out between Dipak and Kashia over any moneitary affair or over women flesh? The record of the case is all silent regarding all these legitimate question with the result that we are completely cut off from the context or background of the case. The post-mortem report of the doctor (P. W. 19) proves to the hilt that there were as many as 14 injuries on the person of the deceased including nine deep incised wounds. This means and implies that Kashia was mercilessly beaten to death. The investigating Officer has not unfolded as to how and in what manner the quarrel between Dipak and kashia saw the light of the day. If Dipak would have murdered Kashia in the manner as alleged by the prosecution then in all probability of the matter we would have got a glimpse of their previous association and activities leading to the climax inside Sonagachi Lane, the prosecution case being thus shorn off its expected context sounds un-meaning and the same figures to us as somewhat vague and unintelligible. Again it would transpire from the record that as many as 7 eye-witnesses were examined in this case. All of them however, had to be declared hostile by the prosecution excepting P. W. 15 Hiralal and P. W. 18 Anil. Kumar Dey. Most of these witnesses it further appears are either hotelwallas themselves or are persons connected with the activities of the local hotels. The vicinity we may recall is inhabited by prostitutes as also by some ordinary residents. It is not very much clear why the I. O. picked and choose these hotel men exclusively as his P. Ws. The I. O. admitted in his cross-examination that the witnesses he examined were all connected with hotel affairs. P. W. 15 Hiralal gave out in his cross-examination that "police licence: is required to run a Hotel". It has been argued on behalf of the appellant that the witnesses selected by the I. O. were all fear striken, that they did not see the occurrence at all and that only when they came before the Court that they found themselves relieved and naturally they turned hostile to the prosecution.