Chattisgarh High Court

Sukhdeo Majumdar vs State Of Chhattisgarh on 31 March, 2022

                                                                        AFR

          HIGH COURT OF CHHATTISGARH, BILASPUR

                   Criminal Appeal No.419 of 2009

                Judgment Reserved on :       15.3.2022
                Judgment Delivered on :      31.3.2022

   Sukhdeo Majumdar, son of Sasodhar Majumdar, about 47 years,
   occupation Government Service, Pradhan Arakshak No.41, resident of
   Kumharpara, Charama, Police Station Charama, District Kanker,
   Chhattisgarh
                                                        ---- Appellant
                             versus
   State of Chhattisgarh through Police Station Pakhanjur, District
   Kanker, Chhattisgarh
                                                     --- Respondent


                   Criminal Appeal No.426 of 2009
   G.K. Arya (Gopi Kishan Arya), son of Maniram Arya, aged about 35
   years, occupation Government Service, Sub-Inspector (Police
   Department), Presently suspended, resident of G-12, Police Colony,
   Near C.T.J.W., P.S. Patharri, District Kanker, Chhattisgarh
                                                               ---- Appellant
                                versus
   State of Chhattisgarh through S.H.O., P.S. Pakhanjur, District Kanker,
   Chhattisgarh
                                                            --- Respondent


                                  and

                   Acquittal Appeal No.100 of 2009
   State of Chhattisgarh through the S.H.O., P.S. Pakhanjur, District
   Kanker, Chhattisgarh
                                                       ---- Appellant
                              versus
1. G.K. Arya (Gopi Kishan Arya), son of Maniram Arya, aged about 35
   years, occupation Government Service, Sub-Inspector (Police
   Department), Presently suspended, R/o G.12, Police Colony, Near
   C.T.J.W., Patharri, P.S. and District Kanker, Chhattisgarh

2. Sukhdeo Majumdar, son of Sashodhar Majumdar, aged about 47
   years, occupation Government Service, Head Constable No.41,
   Presently suspended, R/o Kumharpara, Charama, P.S. Charama,
   District Kanker, Chhattisgarh
                                                            --- Respondents
                                                    2




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For Respective Appellants/ : Shri Prafull N. Bharat, Senior Advocate with accused persons Shri Anil S. Pandey and Shri D.N. Prajapati, Advocates For State : Shri Kashif Shakeel, Dy. Advocate General

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Hon'ble Shri Justice Arvind Singh Chandel

C.A.V. JUDGMENT

1. Since all the appeals arise out of a common judgment, they are

heard and decided together.

2. Criminal Appeals No.419 of 2009 and 426 of 2009 have been

preferred by accused persons Sukhdeo Majumdar and Gopi Kishan

Arya (G.K. Arya), respectively against the judgment dated 1.6.2009

passed by the Special Judge under the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act (henceforth 'the

Act'), Kanker in Special Case No.36 of 2008, whereby the Learned

Special Judge has convicted both the accused persons for the

offence punishable under Section 348 of the Indian Penal Code

and sentenced each of them with rigorous imprisonment for 3 years

and fine of Rs.1,000 with default stipulation. By the said judgment

dated 1.6.2009, the Special Judge has acquitted both the accused

persons of the charge framed under Section 306 of the Indian

Penal Code and also acquitted accused Sukhdeo Majumdar of the

charge framed under Section 3(1)(x) of the Act. Being aggrieved

by the said acquittal, the State has preferred Acquittal Appeal

No.100 of 2009 against the accused persons.

3. The case, in short, is that at the relevant time, accused Gopi Kishan

Arya (G.K. Arya) and Sukhdeo Majumdar were posted as Sub-

Inspector and Head Constable, respectively at Police Station

Pakhanjur. Name of deceased is Dileram Bada. He was a

member of the Scheduled Tribes. On 8.4.2007, one Gautam

Vishwas teased the daughter-in-law of deceased Dileram Bada.

Therefore, a village meeting was called in which Gautam Vishwas

was slapped by one Samir. On 10.4.2007, father of Gautam

Vishwas made a report of missing of Gautam Vishwas upon which

a case being Case No.3 of 2007 was registered and this case was

inquired into by accused Sukhdeo Majumdar. Further case is that

considering Dileram Bada, his son Sunil Bada (PW10) and their

relatives to be suspected persons of the missing case, they were

brought to Police Station Pakhanjur during the period from

19.4.2007 to 25.4.2007. Initially, on 19.4.2007, Dileram Bada, his

son Sunil Bada (PW10) and one Nandu alias Nandkishore (PW12)

were brought to Police Station Pakhanjur and they were inquired

about the missing person and they were also beaten. On

21.4.2007, Shiv Prasad (PW13) and Kanshiram (PW9) went to

Police Station Pakhanjur. They were also retained and interrogated

there. On 24.4.2007, against Sunil Bada (PW10), a case under

Section 109 of the Code of Criminal Procedure was filed before the

Court of S.D.M., Pakhanjur. Further case is that between

19.4.2007 and 25.4.2007, Dileram Bada and his relatives were

illegally detained in the police station and in the name of inquiry

regarding the missing case all these persons were beaten in the

police station. Due to their physical and mental torture, Dileram

Bada committed suicide by hanging himself in a latrin situated in

the premises of Police Station Pakhanjur on 25.4.2007 at 7:15 p.m.

Morgue (Ex.P3) was registered. Inquiry was conducted by S.D.O.

(Police) U.N. Shukla (PW1). On the basis of the inquiry report, First

Information Report (Ex.P2) was registered. During the course of

investigation, post mortem examination over dead body of Dileram

Bada was conducted by a team of 3 doctors. Post mortem report is

Ex.P7 in which it is opined that cause of the death is asphyxia due

to hanging and the nature of the death is suicidal. Statements of

witnesses were recorded under Section 161 Cr.P.C. On

completion of the investigation, a charge-sheet was filed against

both the accused persons. The Trial Court framed charges against

them under Sections 348 and 306 of the Indian Penal Code.

Additionally, a charge under Section 3(1)(x) of the Act was framed

against accused Sukhdeo Majumdar.

4. To rope in the accused persons, the prosecution examined as

many as 14 witnesses. In examination under Section 313 Cr.P.C.,

the accused persons denied the guilt and pleaded innocence. No

witness was examined in their defence.

5. On completion of the trial, vide the impugned judgment dated

1.6.2009, both the accused persons have been acquitted of the

charge under Section 306 of the Indian Penal Code and accused

Sukhdeo Majumdar has been acquitted of the charge under Section

3(1)(x) of the Act also. However, both the accused persons have

been convicted and sentenced for the offence under Section 348 of

the Indian Penal Code. Hence, the respective appeals by the

accused persons and the State.

6. Learned Senior Advocate appearing for the Appellants/accused

persons submitted that without there being any sufficient and

clinching evidence on record, the Trial Court has erroneously

convicted the accused persons. The prosecution has totally failed

to prove that deceased Dileram Bada was wrongfully confined by

the accused persons. From the admissions made by the

prosecution witnesses, it is well established that though deceased

Dileram Bada was brought to Police Station Pakhanjur for inquiry in

connection with missing person Gautam Vishwas, Dileram Bada

and his relatives were free to move anywhere. Therefore, the

finding of the Trial Court that Dileram Bada was wrongfully confined

is not in accordance with the evidence available on record.

7. Learned Counsel appearing for the State opposed the arguments

advanced on behalf of the accused persons. As regards acquittal

of both the accused persons of the charge under Section 306 of the

Indian Panel Code and acquittal of accused Sukhdeo Majumdar of

the charge under Section 3(1)(x) of the Act, Learned State Counsel

submitted that there is sufficient evidence available on record to

show that the accused persons were continuously physically and

mentally harassing Dileram Bada for recording of his confession.

With regard to the charge under Section 3(1)(x) of the Act also,

there is sufficient evidence available on record. Hence, the Trial

Court has wrongly acquitted the accused persons of the aforesaid

charges.

8. In reply, Learned Senior Advocate appearing for the

Appellants/accused persons supported the impugned judgment so

far as it relates to acquittal of the accused persons. It was argued

that finding of acquittal is based upon the evidence available on

record and the Trial Court has rightly acquitted both the accused

persons of the charge under Section 306 of the Indian Penal Code

and accused Sukhdeo Majumdar of the charge under Section 3(1)

(x) of the Act.

9. I have heard the arguments raised on behalf of the parties and

perused the record of the Trial Court minutely.

10. It is not in dispute that deceased Dileram Bada and his relatives

were brought to Police Station Pakhanjur in connection with inquiry

of missing person Gautam Vishwas. It is also not in dispute that

Dileram Bada committed suicide in the premises of Police Station

Pakhanjur on 25.4.2007 at 7:15 p.m.

11. With regard to the offence under Section 348 of the Indian Penal

Code, wrongful confinement of a person is essential. Wrongful

confinement is defined in Section 340 of the Indian Penal Code,

which runs thus:

"340. Wrongful confinement.--Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person."

12. Wrongful restraint is defined in Section 339 of the Indian Penal

Code, which runs as follows:

"339. Wrongful restraint.--Whoever voluntarily obstructs any person so as to prevent that person from

proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.

Exception.--The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section."

13. Looking to the above provisions, it would be pertinent to see

whether Dileram Bada was under wrongful confinement or not? In

this regard, statements of Kanshiram (PW9), Sunil Bada (PW10)

(son of the deceased), Nandkishore (PW12) and Shiv Prasad

(PW13), who, according to the case of prosecution, were also

brought to Police Station Pakhanjur for interrogation with regard to

missing of Gautam Vishwas, need to be gone through. Kanshiram

(PW9) deposed that they were kept in a room in the police station.

There, Sukhdeo Majumdar was committing marpeet with them.

However, in paragraphs 10 and 11 of his cross-examination, he

admitted the fact that he himself had gone to the police station.

Some construction work was going on in the police station and the

construction labours were also using the latrin and bathroom of the

premises of the police station. He categorically admitted that the

police officials were not committing marpeet or torture with them

and they were free to move anywhere in the police station.

14. Sunil Bada (PW10), who is son of deceased Dileram Bada, in his

examination-in-chief, also deposed that in the police station,

Sukhdeo Majumdar was committing marpeet with them. However,

in paragraphs 8 and 9 of his cross-examination, he also admitted

that the police officials had brought them to the police station for

inquiry and they were free to move inside and outside the police

station premises. He also admitted that many labours were also

moving in the police station premises due to some construction

work going on in the premises and those labours were also cooking

their food in the said premises. He further admitted that his father

Dileram Bada never told him regarding any torture given to him. In

paragraph 12 of his cross-examination, he categorically admitted

the fact that since his father has died, he is stating against the

accused persons.

15. Nandkishore (PW12) has not supported the case of the prosecution

and turned hostile. He also admitted that their village was situated

far away from the police station and they themselves had requested

police officials for their stay in the premises of the police station

because they were being called to the police station frequently for

the inquiry and due to that they were suffering trouble. He also

admitted that in the police station premises, they were free to move

inside and outside the police station premises and they frequently

visited outside the premises.

16. Shiv Prasad (PW13), another son of deceased Dilram Bada also

did not support the case of the prosecution and turned hostile. He

also admitted the fact that they and deceased Dileram Bada were

not prevented to move outside the police station premises and,

therefore, they visited outside the police station premises

frequently. He also admitted the fact that since they were suffering

trouble on being called to the police station frequently for inquiry, at

their request itself, they were allowed to stay in the police station

premises.

17. U.N. Shukla (PW1), who initially inquired into the matter, also

admitted the fact that at the time of inquiry the witnesses had told

him that deceased Dileram Bada and his relatives had all liberty to

move outside the police station premises and they were not

restricted to move outside the premises.

18. On a minute examination of the above statements of the witnesses,

it is clear that though the deceased and his relatives were called to

the police station for inquiry into missing of Gautam Vishwas and

they were present in the premises of Police Station Pakhanjur for

about 4-5 days, from the admissions made by all the above

witnesses it is clear that during that period they were free to move

anywhere and no restrictions were put on them by the accused

persons for their free movement and, therefore, enjoying the liberty,

they freely moved outside the premises of Police Station Pakhanjur.

Therefore, the finding of the Trial Court that the deceased was

wrongfully confined in the police station by the accused persons is

not in accordance with the evidence available on record.

Therefore, the conviction of the accused persons under Section

348 of the Indian Penal Code is not sustainable.

19. With regard to acquittal of both the accused persons of the charge

under Section 306 of the Indian Penal Code, the Trial Court has

arrived at the conclusion that the prosecution has failed to establish

any instigation on the part of the accused persons. Dealing with

the similar issue, in (2012) 9 SCC 734 (Praveen Pradhan v. State

of Uttaranchal), the Supreme Court observed as under:

"16. This Court in Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, while dealing with a similar situation observed that what constitutes "instigation" must necessarily and specifically be suggestive of the consequences. A reasonable certainty to incite the consequences must be capable of being spelt out. More so, a continued course of conduct is to create such circumstances that the deceased was left with no other option but to commit suicide.

17. The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation.

18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straitjacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. ....."

20. In the instant case, according to the post mortem report (Ex.P7), no

injury either internal or external was found on the body of the

deceased. Even no injury was found on the bodies of Shiv Prasad

(PW13), Nandkishore (PW12) and Sunil Bada (PW10), who, as per

the case of the prosecution, were also present in the premises of

Police Station Pakhanjur along with the deceased for 4 days. With

regard to mental torture also, from the admissions made by Sunil

Bada (PW10), Nandkishore (PW12), Shiv Prasad (PW13) and

Kanshiram (PW9), it is established that during the period of stay in

the premises of Police Station Pakhanjur, they along with the

deceased were free to move anywhere and no restrictions were put

on them by the accused persons for their free movement. They

also enjoyed the said liberty. They also freely moved outside the

premises of Police Station Pakhanjur. Therefore, the prosecution

has totally failed to establish that the deceased was mentally

tortured by the accused persons by any means. Therefore, in the

case in hand, the prosecution has totally failed to establish any

instigation on the part of the accused persons. Thus, the finding of

the Trial Court in this regard is in accordance with the evidence

available on record and the Trial Court has rightly acquitted both

the accused persons of the charge under Section 306 of the Indian

Penal Code.

21. With regard to acquittal of accused Sukhdeo Majumdar of the

charge under Section 3(1)(x) of the Act, the Trial Court has

acquitted him on the ground that the prosecution has also failed to

prove that at the time of incident the deceased belonged to

Scheduled Tribe. It is the conclusion of the Trial Court that since

the deceased had adopted christian religion, he was not a member

of the Scheduled Tribes.

22. From the statements and admissions made by Kanshiram (PW9),

Nandkishore (PW12) and Shiv Prasad (PW13), who is son of the

deceased, it is well established that though the deceased was of

the caste of Uraon, he had adopted christian religion and as stated

by his son Shiv Prasad (PW13), they follow the christian religion.

This fact has also been admitted by Investigating Officer Rajesh

Agrawal (PW14). Dealing with the similar issue in (2004) 3 SCC

429 (State of Kerala v. Chandramohanan), the Supreme Court

observed thus:

"5. The question as to whether a person is a member of the tribe or has been accepted as such, despite his conversion to another religion, is essentially a question of fact. A member of a tribe despite his change in the religion may remain a member of the tribe if he continues to follow the tribal traits and customs.

20. We, therefore, are of the opinion that although as a broad proposition of law it cannot be accepted that merely by change of religion a person ceases to be a member of the Scheduled Tribe, but the question as to whether he ceases to be a member thereof or not must be determined by the appropriate court as such a question would depend upon the facts of each case. In such a situation, it has to be established that a person who has embraced another religion is still suffering from social disability and also following the customs and traditions of the community, which he earlier belonged to. Under such circumstances, we set aside the order under appeal and remit the same to the Sessions Court, Palakkad, to proceed in accordance with law."

23. In the case in hand also, it is established that the deceased

belonged to Uraon Caste which falls within the category of the

Scheduled Tribes, but, he had already adopted christian religion

and was following customs and traditions of christian religion. There

is no evidence on record to show that after his conversion from

Hindu community to christian community, he continuously followed

tribal traits and customs and he was also following the customs and

traditions of the community which he earlier belonged to. Therefore,

the Trial Court has rightly held that at the time of incident the

deceased was not a member of the Scheduled Tribes which is

based upon the law laid down by the Supreme Court in

Chandramohanan case (supra). Thus, the Trial Court has rightly