Tarun Dutta & Anr vs The State Of West Bengal
2022 Latest Caselaw 4610 Cal

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                        IN THE HIGH COURT AT CALCUTTA
                       CRIMINAL APPELLATE JURISDICTION
                                APPELLATE SIDE


   PRESENT:
   THE HON'BLE JUSTICE SIDDHARTHA ROY CHOWDHURY


                               CRA 881 of 2013

                             Tarun Dutta & Anr.
                                      Vs.
                           The State of West Bengal


   For the Appellants             : None appear

   For the Respondent             : Mr. Sandip Chakraborty, Adv.

   Hearing concluded on           : 15th July, 2022

   Judgment on                    : 22nd July, 2022


Siddhartha Roy Chowdhury, J:-

    1. Challenge in this appeal is to the judgment and order of conviction

       passed by thee learned Additional Sessions Judge, Fast Track, 3rd

       Court, Basirhat in S.T. Case no. 43 (11) 2012 arising out of S.C. 7(7)

       2007 passed on 30th September, 2013 and 1st October, 2013

       respectively.

    2. Learned Counsel for the State submits that during pendency of

       appeal convict Tarun Dutta died and Smt. Laxmi Nath served out

       sentence, therefore the appeal has become infructuous. In support of

       his contention learned Counsel submits two reports, one from the

       Superintendent of Correctional Home and other one from local police

       station. The reports are taken on record.
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3. Hon'ble    Supreme     Court    in    K.S.   Panduranga      Vs.   State   of

  Karnataka reported in AIR 2003 SC 2164, (2013) 3 SCC 721 held :

             "22. From the aforesaid decision, the principles that can be
             culled out are (i) that the High Court cannot dismiss an appeal
             for non-prosecution simpliciter without examining the merits;
             (ii) that the court is not bound to adjourn the matter if both the
             Appellant or his counsel/lawyer are absent; (iii) that the court
             may, as a matter of prudence or indulgence, adjourn the
             matter but it is not bound to do so; (iv) that it can dispose of the
             appeal after perusing the record and judgment of the trial
             court; (v) that if the accused is in jail and cannot, on his own,
             come to court, it would be advisable to adjourn the case and fix
             another date to facilitate the appearance of the accused-
             Appellant if his lawyer is not present, and if the lawyer is
             absent and the court deems it appropriate to appoint a lawyer
             at the State expense to assist it, nothing in law would preclude
             the court from doing so; and (vi) that if the case is decided on
             merits in the absence of the Appellant, the higher court can
             remedy the situation.

             23. In Bapu Limbaju Kamble (supra), and Man Singh (supra),
             this Court has not laid down as a principle that it is absolutely
             impermissible on the part of the High Court to advert to merits
             in a criminal appeal in the absence of the counsel for the
             Appellant. We have already stated that the pronouncement in
             A.S. Mohammed Rafi (supra), dealt with a different situation
             altogether and, in fact, emphasis was on the professional
             ethics, counsel's duty, a lawyer's obligation to accept the brief
             and the role of the Bar Associations. The principle laid down in
             Sham Deo Pandey (supra), relying on Siddanna Apparao Patil
             (supra), was slightly modified in Bani Singh (supra). The two-
             Judge Bench in Mohd. Sukur Ali (supra), had not noticed the
             binding precedent in Bani Singh (supra)."
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   Therefore, I am not inclined to accept the submission of learned

   Advocate appearing for the State to dismiss the appeal that too

   against conviction being infructuous, that would further denude the

   right of the convict further.

4. In view of Section 394 of Cr.P.C. the appeal is abated as against

   convict Tarun Dutta who died on while serving out sentence as the

   report reveals. But I am inclined to consider the appeal on merit as

   filed by Smt. Laxmi Nath the other appellant.

5. Facts

of the case in short is that police was informed in writing about

unnatural death of Shilpi Nath, daughter of convict Laxmi Nath and

PW 1 Naba Kumar Nath, on 24th July, 2006, by Smt. Kanan Das,

maternal aunt of the victim and Hasnabad P.S. case no. 103 dated

24th July, 2006 was registered. Police took up investigation which

culminated into submission of charge sheet against Tarun Dutta and

Smt. Laxmi Nath under Sections 302/201 I.P.C.

6. Learned Trial Court framed charge against the accused persons under

Sections 302/201 I.P.C. on 13th November, 2009 and pleading

innocence they claimed to be tried.

7. During trial prosecution examined 9 witnesses including the doctor,

conducted the post mortem examination and the Investigating Officer,

and they did not have any direct knowledge about the incident.

8. Exhibit-4 is the post mortem report where from it is found that doctor

opined that asphyxia due to throttling was the cause of death,

homicidal in nature. During cross-examination the doctor stated that

he did not find any ligature mark on the neck.

9. Rest of the prosecution witnesses including the father and sister of

the victim did not have any direct knowledge about the incident. They

were examined by the I.O. twice, first on 24th July, 2006 and then

after the autopsy report was submitted. All of them to their wisdom

thought it was a case of murder as they found mark of external injury

like scratches on the neck of the victim. The witnesses also told the

learned Trial Court about their notion that mother of the victim Laxmi

had illicit relation with Tarun Dutta. They had heard about such illicit

relationship.

10. Learned Trial Court could not rely upon the testimony of the autopsy

surgeon, as from the evidence it transpired that the door of the room

was bolted from within. In absence of any direct evidence this fact

that the room was bolted from within, made the charge under Section

302 I.P.C. doubtful. Learned Trial Court could not inspire himself to

caper to conclusion that Shilpi was murdered. So learned Trial Court

observed :-

"Now the other possibility that Shilpa has committed suicide."

11. Learned Trial Court observed that scratches on the neck were self

inflicted. Thereafter learned Trial Court made out a case, bereft of any

cogent evidence that the victim could not accept the relation of Laxmi,

her mother and Tarun, as parents are placed at a very higher pedestal

in our society. Since her mother had fallen from grace, the victim

decided to commit suicide.

12. Hence invoking the provision of Section 222 Cr.P.C. learned Trial

Court recorded an order of conviction under Section 306 of I.P.C.

13. The meaning of "minor offence" has not been defined or explained in

the Code of Criminal Procedure. But the thumb rule is both the major

and minor offences must be cognate offences and not such as are

totally constituted by different elements or in other words minor

offence must have some elements of the main offence. Section 306 of

the I.P.C. cannot be said to be a minor offence in relation to an

offence under Section 302 of the I.P.C. within the meaning of Section

222 of Cr.P.C. Basic element to constitute homicidal death and

suicidal death and abetment thereof are chalk and cheese.

14. This Court therefore, is left with no other option but to allow the

appeal for the simple reason that having acquitted the appellant of

the charge under Section 302/201 I.P.C. learned Trial Court could

not have recorded an order of conviction under Section 306 of I.P.C.

15. In this regard we can further rely upon the judgment of Hon'ble

Supreme Court pronounced in the case of Sangaraboina Sreenu

vs. State of Andhra Pradesh reported in (1997) 5 SCC 348 :

"2. This appeal must succeed for the simple reason that having acquitted the appellant of the charge under Section 302 IPC - which was the only charge framed against him - the High Court could not have convicted him of the offence under Section 306 IPC.

It is true that Section 222 Cr.PC entitles a Court to convict a person of an offence which is minor in comparison to the one for which he is tried but Section 306 IPC cannot be said to be a minor offence in relation to an offence under Section 302 IPC within the meaning of Section 222 Cr.PC for the two offences are of distinct and different categories. While the basic constituent of an offence under Section 302 IPC is homicidal

death those of Section 306 IPC are suicidal death and abetment thereof.

3. For the foregoing reason the appeal is allowed and the conviction of the appellant under Section 306 IPC is set aside. The appellant, who is on bail, is discharged from his bail bonds."

16. To constitute an offence under Section 306 of the I.P.C. there has to

have some kind of instigation from the side of accused persons that

would drive the victim to commit suicide. There is however, no such

evidence available on record.

17. Upon careful perusal of the impugned judgment I have not found any

ingredient that would constitute an offence within the meaning of

Section 107 of the I.P.C. and as a fall out there cannot be any

ingredient of offence within the meaning of Section 306 of the I.P.C.

18. Learned Trial Court dealt with the case with a closed mind without

following the basic rule of evidence which says unlike civil trial, in a

criminal trial, charges are to be proved beyond reasonable doubt.

Learned Trial Court adopted process of elimination and followed the

theory of preponderance of probability otherwise he would not have

written, "Now the other possibility is that Shilpa has committed

suicide."

19. In my humble opinion the impugned judgment is perverse and

should not be allowed to remain in force and should be set aside,

which I accordingly do.

20. Consequently the appeal succeeds. Convict Laxmi Nath is acquitted

under Sections 235 (1) of the Cr.P.C. Seized alamats if any be

destroyed.

21. I have already pointed out convict Tarun Dutta died in the

Correctional Home and the other convict Smt. Laxmi Nath served out

the sentence but appeal preferred by them against the order of

conviction could not be heard, though several attempts were made by

the Court, primarily because none appeared for the appellants,

including learned Counsel appointed to help the Court as amicus

curiae.

22. The convicts were in Correctional Home perhaps without any

knowledge of the proceeding, awaiting anxiously for the verdict in the

appeal to come and it turned out to be their waiting for Godot. In the

process one left the universe and other had to serve out sentence

without the appeal being heard.

23. Hon'ble Justice P.N. Bhagwati in Hussainara Khatoon and Ors.

vs. Home Secretary, State of Bihar, Patna reported in AIR 1979

SC 1360 observed that :

"We think that even under our Constitution, though speedy trial is not specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Article 21 as interpreted by this Court in Maneka Gandhi v. Union of India. We have held in that case that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law and it is not enough to constitute compliance with the requirement of that Article that some semblance of a procedure should be prescribed by law, but

that the procedure should be 'reasonable, fair and just'. If a person is deprived of his liberty under ' a procedure which is not 'reasonable, fair or just', such deprivation would be violative of his fundamental right under Article 21 and he would be entitled to enforce such fundamental right and secure his release. Now obviously procedure prescribed by law for depriving a person of his liberty cannot be 'reasonable, fair or just' unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21."

24. Hon'ble Apex Court in State of Andhra Pradesh vs Challa

Ramkrishna Reddy reported in (2000) 5 SCC 712 held :

"22. Right to life is one of the basic human rights. It is guaranteed to every person by Article 21 of the Constitution and not even the State has the authority to violate that right. A prisoner, be he a convict or under trial or a detenu, does not cease to be a human being. Even when lodged in the jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights."

25. Access to justice is human right and in certain situations it may also

be considered to be a fundamental right as held by Hon'ble Supreme

Court in Tamilnad Mercantile Bank Shareholders Welfare Assn.

(2) vs. S.C. Sekar reported in (2009) 2 SCC 784 :

"46. We will, however, proceed on the assumption that no appeal was maintainable. An aggrieved person cannot be left without a remedy. Access to justice is a human right. In

certain situations it may also be considered to be a fundamental right."

26. In this particular case, despite efforts from the end of the Court the

appeal could not be heard and there is no denial to the fact that

fundamental right of the convicts in this appeal got denuded. We

may not cry over spilled milk but we should try to find out some

effective means to avert such situation in future.

27. Hon'ble Supreme Court in Writ Petition (Criminal) 312 of 1994,

Supreme Court Legal Services Committee vs. Union of India & Ors.

on 18th August, 1998, gave certain directions whereby the

Superintendent of Correctional Home has been saddled with the

responsibility to read out the judgment and explain the same to the

convict in the language as understood by him.

28. The convict shall have to be informed by the Superintendent of

Correctional Home about the availability of Legal Services and

convict shall have to be asked as to whether he is desirous of

exercising his constitutional right to have the service available under

the State Legal Services Act. The Superintendent of the Correctional

Home is to provide further at the cost of the State Exchequer

vakalatnama and other related papers so required to prefer appeal

before the High Court.

29. Now let us peep into the provision of Section 11 (2) (a) of the West

Bengal Correctional Services Act, that says :

"11. (1) The State Government may, for each of the central correctional home, district correctional home and special correctional home, appoint such number of Chief Welfare Officers and Welfare Officers as it may consider necessary.

The Chief Welfare Officer shall have the rank and status of the Superintendent of a district correctional home and the Welfare Officer shall have the rank and status of the Chief Controller of Correctional Services. The qualifications and the terms and conditions of services of the Chief Welfare Officers and the Welfare Officers shall be such as may be prescribed.

(2) It shall be the duty of the Welfare Officer-

a) To look after the correctional services and to see that the prisoners are not deprived of the amenities and privileges under this Act or under any other law for the time being in force;

b) xxxxxx

c) xxxxxx

d) xxxxxx

e) xxxxxx"

30. The statute when enjoins upon the welfare officer the duty to secure

the 'amenities' and 'privileges' of the person in carceration, which

pertains to right to life, the Correctional Home Services authority in

general and welfare officer in particular shall have the obligation to

ensure the rights of convicts to have access to justice in all possible

manner, it is one of the facets of right to life.

31. In view of the statutory mandate the Welfare Officer is directed to

keep information regarding the appeal preferred by the

convict/convicts with all required particulars such as number, Court

in seisin of the appeal etc. and to monitor the same. While doing so,

in appropriate cases the welfare officer is to bring the status of the lis

to the notice of the Chairman/Chairperson or Secretary, D.L.S.A. of

the District or Chairman of the S.D.L.S.C. of the Sub-Division as the

case may be, while visiting Correctional Home, who shall take up the

matter with the Member Secretary of the S.L.S.A., West Bengal and

Secretary, High Court Legal Services Committee, if the appeal is

pending before the Hon'ble High Court at Calcutta, who in turn may

take the call to ensure the protection of right of the convict and/or

appellant to have access to justice.

32. The Court cannot afford to have the crying shame where an appeal

preferred by convict, could not be heard till the convict walks out of

the Correctional Home, serving out the terms of sentence.

33. Inspector General of Correctional Services is required to sensitize the

welfare officers of the Correctional Homes regarding their obligation

to help out the convicts by monitoring the legal proceeding before the

Court of law, which would add value to the endeavour to protect

such right of the convicts to have access to justice.

34. Inspector General, Correctional Services West Bengal, Member

Secretary, S.L.S.A., West Bengal and Secretary, Calcutta High Court

Legal Services Committee may be informed accordingly by sending

copy of the judgment.

35. Department is directed to send a copy of this judgment to Smt.

Laxmi Nath at her last known address free of cost by speed post.

(Siddhartha Roy Chowdhury, J.)