NABA KUMAR DAS Vs. STATE OF ASSAM

JUDGEMENT

(1.) These two appeals are against the judgment dated 12-12-1997 of the learned Sessons Judge, Bongaigaon, in Sessions Case No. 20(BGN)/97 convicting the appellants under S. 376/34, 302/34 and 201/34, I.P.C. By the said judgment, the learned Sessions Judge imposed on each of the appellants the sentencs of imprisonment for life and fine of Rs. 25,000.00 in default to suffer further rigorous imprisonment for three years by each of them for the offence under Ss. 376/34, I.P.C., sentences of life imprisonment and fine of Rs. 25,000.00 in default to suffer further rigorous imprisonment for three years by each of them for the offence under S. 302/34, I.P.C. Considering the aforesaid sentences imposed for the offences under Ss. 376/34 and 302/34, I.P.C. the learned Sessions Judge did not impose any further sentence on the appellants for the offence under Ss. 201/34, I.P.c. The learned Sessions Judge further ordered that the sentences will run concurrently and half the fine, if realized, will be paid to the father of the victim girl as compensation.

(2.) The facts briefly are that on 3-1-1995 an FIR was lodged before the Officer-in-charge of Bongaigaon GR Police Station by one Shri Chiran Chandra Dutta stating that at about 10 a.m. of 2-1-1995 his daughter Ranjita Dutta aged about 14 years left home for Birjhora Girls' High School to collect from there her mark sheet of the last annual examination but she did not return home till evening and they enquired about her all around and later at 8.30 p.m. and FIR was lodged with the Bongaigaon Police Out Post and the search for the girl was continued all night but she was not found anywhere and at about 9 a.m. in the morning of 3-1-1995 the girl was found lying dead with injuries by a railway track near 144/7 Km. milestone between Bongaigaon and New Bongaigaon railway station. In the FIR it was further stated that sight of the body of the girl indicated that someone had raped her and later murdered her and left the body on the railway track to pass it as a train accident with the intention of causing disappearance of evidence. Bongaigaon GR Police Station Case No. 1/95 was registered under Ss. 376/34, 302/34 and 201/34, I.P.C. and the case was transferred to the Bongaigaon Police Station on 5-1-1995 and registered afresh as Bongaigaon Police Station Case No.1/95 and investigation started.On 9-1-1995, the appellant-Ambarish was arrested and produced before the learned Chief Judicial Magistrate, Bongaigaon, who remanded him to police custody. On 16-1-1995, the other appellants were arrested and produced before the learned Chief Judicial Magistrate and were remanded to police custody and were subsequently enlarged on bail. On 3-11-1996, Hitesh Chandra Roy was arrested. On 15-11-1996, Hitesh was produced from police custody and his statement was recorded under S. 164, Cr. P.C., by the Executive Magistrate and thereafter he was remanded again to the police custody. On 21-11-2001, Hitesh was again produced from police custody before the learned Chief Judicial Magistrate who recorded his second confessional statement under S. 164, Cr. P.C. On 5-2-1997, charge-sheet was filed against the accused persons. On 13-5-1997, Hitesh filed an application for granting him pardon stating therein that he will make full disclosure of the incident as an approver and the said application was heard and orders were passed by the learned Chief Judicial Magistrate granting pardon to Hitesh on the condition that he will have to make full disclosure of the commission of the offence and the statement of Hitesh was recorded by the learned Chief Judicial Magistrate. On 20-6-1997, learned Chief Judicial Magistrate passed orders committing the case to the learned Sessions Judge, Bongaigaon, for trial. By the said order dated 20-6-1997, the learned Chief Judicial Magistrate declared two accused persons, namely Binoy Roy alias Chatu and Prafulla Choudhury alias Fu as absconders and observed that the case against them was to proceed under the provisions of S. 299, Cr. P.C. By the said order dated 20-6-1997, the learned Chief Judicial Magistrate also rejected the prayer for bail moved on behalf of the appellants-Narottam Barman, Dalim Sinha and Naba Kumar Das who were on bail. On 2-7-1997, the learned Sessions Judge framed charges against the appellants under Ss. 376/34, 302/34 and 201/34, I.P.C. The appellants pleaded not guilty. At the trial as may as 20 witnesses were examined. The approver Hitesh was examined as P.W. 1. His statement recorded under S. 164, Cr. P.C. before the Executive Magistrate on 15-11-1996 was marked as Ext. 1, his statement recorded under S. 164, Cr. P.C., on 21-11-1996 by the learned Chief Judicial Magistrate was marked as Ext. 2 and his statement recorded under S. 306, Cr. P.C., was marked as Ext. 4. In his evidence before the Court as well as in Exts. 1, 2 and 4, the approver Hitesh narrated the incident which took place on 2-1-1995. He has stated that in the night of 2-1-1995 he and the appellants committed rape on Ranjita Dutta at the varanda of the Hindi High School, thereafter the accused-Prafulla strangulated her and the accused-Ambarish scratched her face and the accused-Prafulla gave her a blow on her buttock with a Kukri and thereafter they carried the dead body to the railway line and left it there. The learned Sessions Judge considered the evidence and held, inter alia, that the approver has not only unfolded the prosecution story but also proved it by his reliable and trustworthy evidence being materially corroborated by other true and reliable evidence and that he has no reason to disbelieve it. The learned Sessions Judge further held that the appellant and the approver in furtherance of their common intention committed rape on Ranjita Dutta, committed murder of the girl and caused disappearance of the dead body of the girl to shield themselves from legal punishment. The learned Sessions Judge held that the appellants are guilty of the offences punishable under Ss. 376/34, 302/34 and 201/34, I.P.C. and convicted them accordingly.

(3.) Mr. A.K. Bhattacharjee, learned counsel for the appellant in Criminal Appeal No. 18/98, submitted that although S. 113 of the Indian Evidence Act, 1872, (for short "Evidence Act") states that an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an accomplice, illustration (b) of S. 114 of the Evidence Act states that an accomplice is unworthy of credit, unless he is corroborated in material particulars. He cited the decisions of the Privy Council and the Supreme Court with which we shall deal later to show that the rule of prudence incorporated in illustration (b) to S. 114 of the Evidence Act that the evidence of an accomplice is not trustworthy unless it is corroborated in material particulars has crystalled into rule of law. He explained referring to the decisions of the Supreme Court that Courts do not feel safe to convict an accused on the evidence of an approver unless such evidence satisfies the double test of reliability and corroboraton in material particulars. Mr. Bhattacharjee submitted that the learned Sessions Judge has convicted the appellant in this case on the testimony of the approver Hitesh (P.W. 1) but the evidence of the approver Hitesh was neither reliable nor corroborated in material particulars. He argued that there were discrepancies in the statements of the approver Hitesh recorded on 15-11-1996 (Ext. 1), 21-11-196 (Ext. 2), 13-5-1997 (Ext. 4) and his evidence before the Court. He took great pains to demonstrate before the Court as to how there were variations in the story given out by the approver Hitesh in Exts. 1, 2 and 4 and his evidence before the Court. According to him since there were contradictions in the version of the approver about the incident on the night of 2-1-1995 in his different statements given at different times in Exts. 1, 2 and 4 and in his evidence before the Court, his evidence is not reliable. He further argued that the approver Hitesh was arrested on 3-11-1996 and produced before learned Chief Judicial Magistrate on 4-11-1996 and thereafter remanded to the police custody from time to time after long 18 days and only thereafter his confessional statement (Ext. 2) was recorded by the learned Chief Judicial Magistrate on 21-11-1996. Thus the evidence of the approver Hitesh has to be viewed by the Court with suspicion. Mr. Bhattacharjee submitted that since serious offences under Ss.376/34, 302/34 and 201/34, I.P.C., are alleged to have been committed by the accused persons, the Court should not rely on the testimony of the approver for convicting the appellant without corroboration in material particulars. He submitted that the approver Hitesh has stated in his evidence that on the night of 2-1-1995 after the girl was raped by the accused persons, Prafulla strangulated the girl to death and taking out a razor from his pocket, Ambarish disfigured her face so that she could not be recognised and Prafulla stabbed her at the buttock with small Khukri, but the evidence of the Doctor (P.W. 18) instead of corroborating in material particulars the story given out by the approver Hitesh contradicted the story. He vehemently argued that Courts have held that corroboration of the evidence of the accomplice in material particulars would include some evidence other than that of the accomplice to show that each of the accused persons were involved in crime.But there is no corroboration whatsoever by any evidence, direct or circumstantial, showing the involvement of the appellant. He further submitted that the Chowkidar of the school where the occurrence is alleged to have taken place on the night of 2-1-1995 was a very material witness and was in fact cited as a witness in the charge-sheet and yet he was not examined. Mr. Bhattacharjee finally argued that the Investigating Officer instead of making full-fledged investigation to pin the real culprits who had committed the serious offences of rape and murder has relied on only the approver whose evidence was not sufficient to establish the case against the appellant.