TMI Blog2000 (8) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... on Bench of the High Court against the investigating officers. In the result, we allow the appeal filed by the State and dismiss the appeals filed by the convicted persons. While maintaining the conviction of the offence under Section 364/34 IPC and restoring the sentence passed by the trial court on the accused we also convict the six appellants/accused of the offence under Section 302 read with Section 34 of IPC and impose a sentence of imprisonment for life on each of them. The sentences under all counts will run concurrently. We direct the Sessions Judge, Calcutta City, to take immediate steps for putting the convicted persons back in jail for undergoing the remaining portions of the sentences imposed by this judgement. - CRL. A. 785 OF 1991 - - - Dated:- 29-8-2000 - R. P. Sethi And K. T. Thomas,JJ. JUDGMENT Thomas, J. A young businessman of Calcutta was abducted and killed. The kingpin of the abductors and some of his henchmen were later nabbed and were tried for the offences. The trial court convicted them under Section 364 read with Section 34 of the Indian Penal Code, but not for murder, and sentenced them each to rigorous imprisonment for 10 years. A D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho then asked him to accompany him. But Mahesh refused to do so. Then A-1 Omar forcibly took him to a rickshaw to be taken away from that site, but Mahesh managed to escape therefrom and ran away towards Giri Babu Lane. Mahesh reached the place where PW-5 (Mohd. Sayeed) was residing on Giri Babu Lane and sought asylum therein. He narrated to PW-5 all what had happened till then. He was allowed to sleep in that room, and concealed himself beneath the Chowki of that room. The time was about 2.30 A.M. when there was knocking at the door of PW-5 s room. He opened the door and found A-1 and other accused standing just outside. Four of the accused sneaked into the room and made a prowl for Mahesh and traced him out in that snoop. The victim was dragged out of the room. A-1 yelled at the victim: You escaped earlier. Now let me see how you would escape again. Hearing the commotion some of the neighbours woke up from sleep. PW-6 (Mohd. Idris) went out to see what happened and then saw some of the assailants (including the 7th accused in this case) forcibly dragging Mahesh towards the Central Avenue. In the course of such towing A-1 was showering lathi blows on Mahesh saying I will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... go from any place. In this case Mahesh was dragged away by the accused from two places, first at Chittaranjan Avenue and when he escaped from the grip of the abductors and perched himself in a hide out selected by him at Giri Babu Lane, from there also he was hauled out. Section 364 IPC says, whoever abducts any person in order that such person may be murdered or disposed of as to be put in danger of being murdered he commits the offence punishable under the Section. So the important task of the prosecution was to demonstrate that abduction of Mahesh was for murdering him. Even if the murder did not take place, the offence would be complete if the abduction was completed with the said objective. Conversely, if there was no such objective when the abduction was perpetrated, but later the abductors murdered the victim, Section 364 IPC would not be attracted, though in such a case the court may have to consider whether the offence of culpable homicide (amounting to or not amounting to murder) was committed. If the words attributed to the abductors can be believed we have no doubt that the abduction was done for the purpose of finishing him off. Knowing this position well, Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsistencies in the evidence to bolster up his contention on the above score. First is that PW-8 (Dr. Adhikari) who saw the dead body first estimated the age as 40, whereas Mahesh was only 29 according to his own kith and kin. Second is that Dr. Adhikari had noted that the penis of the dead body had undergone religious circumcision . The argument advanced by Sri P.S. Misra, learned senior counsel on the above material appeared, at the first blush, formidable. But on a closer scrutiny the said contention turned out to be very feeble. It must be pointed out that the doctor who conducted post-mortem examination (PW-30 Dr. Debabrata Choudhury) did not find any evidence of such circumcision on the dead body. That doctor is a specialist in Forensic Medicine and was a senior person. On the other hand, PW-28 (Dr. Adhikari) was only a stripling in the profession who had just completed his internship after his graduation. He said in his evidence that when he examined the patient he found the glands penis exposed; foreskin was rolled back; thus it appeared to be a case of early circumcision . We do not think that such a slipshod observation regarding such a vitally important identificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the autopsy surgeon (PW-30) were responsible for causing the death of the deceased Mahesh. No doubt it would have been of advantage to the court if the public prosecutor had put the said question to the doctor when he was examined. But mere omission to put that question is not enough for the court to reach a wrong conclusion. Though not an expert as PW-30, the Sessions Judge himself would have been an experienced judicial officer. Looking at the injuries he himself could have deduced whether those injuries were sufficient in the ordinary course of nature to cause death. No sensible man with some idea regarding the features of homicidal cases would come to a different conclusion from the injuries indicated above, the details of which have been stated by the doctor (PW-30) in his evidence. We have no doubt that homicidal death of Mahesh had happened on the same night of his abduction. Now we have to deal with another crucial issue. Having found that Mahesh was abducted by the accused in order to murder him and he was in fact really murdered very soon thereafter can the accused escape from the penal consequences of such murder. The trial court has stated on the said crucial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Forensic Sciences Laboratory and it was found stained with human blood (vide Ext.40 series). Sri Harsh Kumar Puri, learned counsel for the appellants in one of the appeals filed by the convicted persons, pointed out in his written submissions that the aforesaid circumstance (FSL test result on the shirt) was not put to the accused when they were questioned by the Sessions Judge under Section 313 of the Code of Criminal Procedure. When we scrutinised the records we noticed that no question was put to the accused on that score. Consequently we are disabled from using that feature on the shirt as a circumstance against the accused. Even barring that, the following circumstances have now been well set against the accused: (1) Mahesh was abducted around 2.30 A.M. by the abductors proclaiming that he would be finished off. (2) The abductors took Mahesh out of the sight of the witnesses. He was then wearing a bush shirt Ext.XV. (3) Within a couple of hours the murdered body of Mahesh was found in Islamia Hospital without a shirt. (4) The bush shirt which Mahesh was wearing at the time of abduction was concealed by A-1 Omar. The abductors have not given any explanation as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if accused would tell the court what else happened to Mahesh at least until he was in their custody. During arguments we put a question to learned senior counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy. Learned senior counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows: When any fact is especially within the knowledge of any person, the burden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 364/34 IPC and reduced the sentence to the period which the convict had already undergone. The Division Bench used unkind remarks against the investigating officer saying investigation of the case was perfunctory and suffered from serious lacuna and irregularity . Learned Judges of the Division Bench did not make any reference to any particular omission or lacuna in the investigation. Castigation of investigation unfortunately seems to be a regular practice when the trial courts acquit accused in criminal cases. In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constraints of the police officers in the present system, the ill-equipped m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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