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In the Court of 5th Judicial Magistrate at Bankura, Dist. Bankura. PRESENT: Mr. Sk. Md.

. Arif Hasan, 5th J.M., Bankura. G.R. Case No. 272/04 T.R. No. 749T/04
State of West Bengal v/s Kartick Gorai & ors. JUDGEMENT DELIVERED ON: March 27, 2014 Author: Mr. Sk. Md. Arif Hasan, 5th J.M., Bankura. Name of the accuseds died pending this action: a) Naru Gorai, b) Aswani Gorai, c) Sadhan Sur; d) Krishnapada Sur. Name of accuseds faced entire trial:; 1) Kartick Garai; 2) Swapan Bauri; 3) Rohit Rana; 4) Ajit Gorai; 5) Srikanta Bagdi; 6) Jiten Kalindi. [hereinafter these accused persons are referred to by the respective unique number assigned herein against them]
Charge: U/s 365/120B of I.P.C.

JUDGEMENT
Fact behind this action: 1. This is the case of a poor Biri Worker who had been detained for almost 20days inside a factory site for a mere suspicion. His name is Gurupada Das. Gurupada Das, the victim, is from a very poor family. His father was a street beggar. His father, Pravakar Das (PW-1), claimed this in evidence. Both Gurupada and his brother, Rabi Das (PW-4), are Biri worker. Gurupada had another brother. But he is no more on this earth. He was the youngest amongst the brothers. 2. This Gurupada had actually been employed in the Biri factory popularly known by 522 Photo Biri Factory as a child labour. He had been working there since the time when he was only 12. He is now major though. He goes out for his job as such in every morning and returns home in the evening or sometimes by the early night. Now, coming to the particular night, it was April 09, 2004. Since this night Gurupada, the victim, did not return home, though he went out in the morning saying that he would go to Lalbazar, Bankura, for an urgent work. The time was passing out, but he did not return. The night also passed, but no news came about Gurupada. His parents and brothers were in anxiety. They were searching him everywhere he possibly could go. But, could not find any trace of Gurupada. Almost 20 days had passed this way, without any information regarding whereabouts of Gurupada. Finally, on April 29, 2004, Gurupadas parents got information from some source that their son has been detained inside the factory site of this 522 Photo Biri company. This was really a good news for them. Gurupadas mother, Sabitri Das ran right to the I/C, Bankura PS without wasting any further time. She told him everything and lodged a complaint with him. The accuseds above named, according to Sabitri, detained Gurupada inside the factory and they are members of its managing committee. However, the police immediately conducted a raid at this factory site. They recovered Gurupada from inside one room on the 1st floor of this factory site. They also tried to arrest Naru Gopal Gorai, since deceased. But quite a lot of other Biri Workers, as the I/O claimed in his forwarding report dt April 30,
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2004, got overpowered and snatched Gurupada from their custody and also resisted them from arresting Naru. Some of the police personnel sustained a little bit injury in such altercation. Few reporters had also come there by this time to cover the live report of this incident. But they were, according to Gurupada as he said in 164 statement, also got assaulted by the mob. Finally, the I/O called for backup force from the control room. After the backup force came, they recovered Gurupada and could arrest Naru Gorai. The investigation, inquiry and Charge: 3. After this event, the investigation went on in full fledge. After the investigation was over, I/O file charge sheet seeking criminalization of all the 10 accuseds named above u/s 365/120B IPC. Later, copies had been served upon the accuseds above named u/s 207 Cr.P.C and then, the case was transferred to my court for trial. Subsequently Ld. the then predecessor PO of my court had framed charges against all the 10 accuseds above named u/s 365/120B of IPC. To this all the accuseds pleaded their innocence and claimed trial. Nevertheless, four accuseds amongst them expired pending trial. They were Naru Gorai, Aswani Gorai, Krishnapada Sur and Sadhan Sur. So, this case was filed against them forever. The remaining accuseds faced the entire trial. Defence: 4. The accused persons above named took the defence that they are innocent and were falsely framed in this case. Gurupada, according to the accuseds, is himself guilty of embezzling the companys money. He was a salesman of the company. Taking this opportunity, though he collected money from the retailers, but did not deposit the collected money with the company. His brother and sister-in-law also confessed this. Gurupada by such defalcated money purchased land. Since the time he embezzled Companys money, he did not turn towards the factory thereafter. Finally, he executed a regd. deed for payment of the embezzled amount and his brother also executed a bond for the said repayment. Trial: 5. The prosecution tendered the following five witnesses in evidence: Pravakar Das PW-1. Sabitri Das (defacto Complainant) PW-2. Gurupada Das (victim) PW-3. Rabi Das PW-4 Dr. Tarun Kr. Rakshit PW-5. 6. The prosecution proved the following documentary evidences during trial: Signatures of Gurupada on his statement recorded u/s 164 Cr.P.C Exbt.-1 & 1/1. Signature of PW-5 on injury report of Gurupada Exbt.-2. 7. I had examined all the accuseds, facing trial, u/s 313 Cr.P.C. I also had asked them if they want to give any defence evidence or not; but they declined to tender any witness or other evidence. POINTS FOR DETERMINATION 8. With reference to factual matrix, I would frame the following points for deciding this case: (i) Are the accuseds above named or any of them guilty of committing all or any of the crimes u/s 365/120B of I.P.C.? (ii) Has the prosecution been able to prove them all or any of them guilty of the above crimes beyond all reasonable doubts?
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DECISION WITH REASONS 9. For convenience, I would take both the points together. 10. This case is of some interest for the general public, especially those having origins in Bankura, because it had caught havoc attention of the news media during 2004 AC. Nevertheless, I would 1st try to ascertain what actually had happened at the factory site of 522 Photo Biri company in those days or if nothing had actually happened during that time. On this factual aspect, evidences of five witnesses are already on record. So far as their evidence is concerned, Pravakar and Sabitri are the eyewitnesses of the concluding part of this dramatic event. Sabitri had given evidence of the entire story since missing of her son, Gurupada, till his recovery including the job profile of Gurupada. Nevertheless, Pravakar had given evidence about the events happened on the day of Gurupadas recovery. At any rate, the gist of their combined evidence is that their son Gurupada had been working as a salesman at 522 Photo Biri factory. Since April 09, 2004, their son, Gurupada, went missing. Lastly, after quite a few days, they got information that their son had been confined inside the factory premises of 522 Photo Biri factory by the accuseds named above including the accuseds who are dead now. The accuseds had actually called them to bring money to get Gurupada back. Then, they went to the factory for three or four times, but could not rescue their son. [the cross examination of Sabitri suggests this particular fact; see 18th to 20th line of her cross examination]. Then they went to PS seeking assistance of police administration. After this, police recovered Gurupada Das from inside the said Biri Factory. 11. So, these evidences, at any rate, suggest that Gurupada Das had gone missing since April 09, 2004 and he had been confined inside 522 Photo Biri companys factory site which is situated at Kuchkuchia Fasidanga of Bankura town. Nevertheless, these evidences in no way suggest as to how Gurupada came to the factory site and if he had been brought there after abduction or had voluntarily came there without any external influence or interference from any other. Anyway, aside from Gurupadas account of the event, which I think to be the most important evidence for this case, there is another evidence on record. This is Rabi Dass evidence. But, I would not discuss much about Rabis evidence. He is the elder brother of Gurupada. His evidence suggests that he might be a heresy witness. He heard, as he said, that Gurupada had misappropriated companys money and for this his brother had been confined inside the 522 Photo Biri companys factory site for quite a few days. Then said police rescued his brother. 12. Nevertheless, I had been referred to few cross examinations of Pravakar. By referring those Mr. Ranjit Biswas, the Ld. defence counsel, tried to impeach his credibility 1st and then advance the argument that the defence taken by the accuseds that Gurupada had embezzle companys money is highly probable. I would analyze the credibility factor 1st. At the very beginning Pravakar said I went to the factory. The accused persons did not tell me anything. The a little later he said I do not recognize any accused person as I never saw them. Mr. Ranjit Biswas came down heavily on these two statements. He argued how could the accuseds spare Provakar without doing any ill-treatment of him, if they really had confined his son, who embezzled their money? Let me say at once that there is no such general rule that the culprits would always attack the victims parents or relatives also who came for negotiation, especially when they demanded money for returning the victim and someone of the victims family had gone for negotiating this issue without bringing police with them. I think it is quite possible that the culprits may not attack the persons who came for negotiation or bargain over the demand for the release of a confined victim. So far as his Typed & Printed by me: 5th J.M., Bankura. Page 3 of 14

2nd statement is concerned, I would have doubted the credibility of Pravakars statement by which he connected the accuseds with the fact of Gurupadas confinement, if I had not seen the age of Pravakar in the deposition sheet. He was aged about 86 years when he came to give evidence. I have no doubt that the mental faculty of Provakar on the date of his evidence was not so sound like a 30 year old mans mental faculty. Aside this his eye sight is bound to be very weak in this age. It is important to notice the distance between witness box and the platform, where accuseds stand in my court during trial. It is almost 15 to 18 ft. It would not at all be possible for an 86 year old person to see and recognize any person from such a long distance, whom he hardly saw three or four times and that even one year ago. In his examination in chief also I find similar thing as he said in the cross examination to which I had been referred to. Even if, for the sake of argument, I discredit the portion of Pravakars evidence which connects the accuseds with the fact of Gurupadas confinement, still his entire evidence cannot be thrown into dustbin. Nothing is there in his evidence which may raise any doubt about the credibility of this portion of his evidence which suggests about confinement of Gurupada. Let me say at once that there is no law which says about raising eyebrow, from the very beginning, on a witness looking into his evidence with doubtful eyes. Quite a lot of witnesses, in present time, found to exaggerate some facts, though he deposed the other facts truly. The job of a trial judge starts from here actually. I do not think credibility of a witness is to be measured in pound, shelling and pence. Rather, it is to be counted by de-section to ascertain which portion is rotten and which portion is pure, like a surgeon does while surgery of a cancer patient. He traces out which portion of the body is infected and which portion not and then chop out the infected portion of the patients body. Similarly the judge, I think, has to scan the entire evidence of a witness and has to trace out which facts are truly said by the witness and which are the exaggeration of facts. [see, Pandurang Sitaram Bhagwat v State of Maharastra 2005 (1) RCR (criminal) 858; Kartik Malbar v. State of Bihar, 1995 (3) All India Crl. Law Reporter, Page 622; Bharwada Bhoginbhai Hirjibhai v State of Gujrat AIR 1983 SC 753]. 13. Mr. Ranjit Biswas, Ld. Defence counsel, referred to one cross examination of Sabitri where she said: The names of the [.] accused persons were told to me by my son Gurupada. When police brought Gurupada, I came to know the names of the persons who confined him. By referring this Ld. Defence counsel argued that the FIR was lodged after recovery of Gurupada and hence the investigation was not in accordance with law. This evidence really suggests that as if Gurupada was recovered 1st and then the FIR was lodged. Let me say at once that the FIR only sets the investigation into a crime in motion. It is not a sine qua non requirement for taking any action towards recovery of any victim who had been subjected to any crime and the information about which had already been reported to PS, though orally. To my mind, the police took the right step after receiving oral information about Gurupadas confinement. I cannot subscribe to the view that the lodging of FIR is a precondition before taking any police action. The statutes may not be express always. It may be silent for a particular situation, through which a judge may come across in a particular case, like in this case I am confronted with the question is FIR a precondition for recovery of a victim? It seems to me, that it is a question of policy which we, as a judge, have to decide. To my mind, this cannot be the policy of criminal law, which stands for protecting the society alone, that the FIR should be a sine qua non for every police action. Take a hypothetical situation for example. Suppose a young lady is being forcibly dragged into an abandoned
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house by four or five drunken hooligans. Now, if someone having seen this rush to a very nearby PS and orally reports the mater that the lady might be gang rapped, what should be the direction of law, if it is seen as a matter of policy? Would it be the right policy for any civilized sate to insist on the informant to write his report on a paper and then to present the same before the officer in charge and then registering the same as FIR and after doing all these the police should go for recovery of the lady, even though she might be gang rapped and killed in the meantime? The answer is certainly not. To my mind, the right policy would, no doubt, be the recovery of the lady before anything wrong happens to her. I would, therefore, not insist upon the technicalities, without having regard to the protection of human life and liberty. I do not believe in any such doctrine which says 1st comply the technical and procedural formalities strictly, and then go for protecting human life. After all procedural formalities are handmaid of the justice system and not a handcraft for it. The human liberty is to be given preference over technical and procedural formalities. There is nothing, so far I know, in Cr.P.C which insists on lodging of FIR before protecting any human being from a continuing crime. I would, therefore, not hold that the entire proceeding had been vitiated only for the reason that Gurupada was 1st recovered and then the FIR was lodged. Similar view has been taken by Delhi High Court in Upesh @ Chintu v State [Crl Appeal no 964/11, para 11], though in respect of lifeless articles. 14. I had been referred to another portion of Sabitris cross examination. This portion suggests that she could not identify the accuseds by their names. I do not think it would be fatal for the credibility of her entire evidence, because she already said that Gurupada had told him the names of the culprits whom she does not personally knows and the defence itself established that the FIR was lodged after Gurupada was recovered. At any rate, I do not find any material discrepancy in her entire evidence, especially with respect to the material fact that Gurupad had been confined in the factory premises of 522 Photo Biri company and the police had recovered him. This much evidence, at least, could safely be relied on, even if, accepting the defence argument, I discard the portion of her evidence, which connected the accuseds with the crime. 15. Coming now to the evidence of Gurupada, I think he is the most important witness of this case. He is the victim. The gist of his evidence is that h e is a salesman of 522 Photo Biri Factory. On April 09, 2004 morning he had been to Lalbazar. By 11:00am Kartick (Accused no.1), Krishnapada (accused no. d), Jiten (accused no. 6) and Aswini (accused no. b) called him to the Biri Factory saying that Manager called him for once. Then he came to the factory. Then Balaram Chakroborty, the manager, gave a blame on him that he misappropriated the sale proceeds which he received from the retailers as a salesman of the company and created pressure upon him to return the money. Gurupada denied the blame. Then he was detained inside the factory. During this detention he was tortured on a regular basis by all the accuseds including the deceased accuseds. Kartick assaulted him quite a few times with bamboo stick. The other accuseds also assaulted him quite a lot. Even cigarette burning was given. Whenever he became trusty, if he asked for water, he was made to drink urine. Later, he was rescued by the police. He said that he was confined in the Biri factory for 18days. But it was in fact 20 days. I can understand his mistake in counting the total number of days he remained detained. He is a mere worker and Sabitris evidence suggests that he had been working since 12 years age. He is, no doubt, not a well-educated person. He was telling his frightening experience of those days of detention , in 522 Photo Biri factorys campus, when he stepped in the witness box after almost 3years of the event. His
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memory bound to fall. I cannot expect a witness to give evidence like a video recorder. Such mistakes and discrepancies are bound to happen for any genuine and credible witness. [see, Bharwada Bhoginbhai Hirjibhai v State of Gujrat AIR 1983 SC 753]. So far as his cross examination is concerned, the Ld. Defence counsel could not refer me anything to impeach his credibility. His earlier statement recorded u/s 164 Cr.P.C. is also in conformity with his evidence. Nevertheless, the 164 statement suggests some additional facts regarding elements of extortion e.g. causing him to execute a sale deed and causing his brother and his wife to execute a bond. Though, Gurupada was silent during examination in chief on these matters regarding extortion, which he said in his 164 statement, but his cross examination suggests quite similar thing. It is important to notice his cross examination. He said: My elder brother and the wife of my elder brother were forcefully made to sign a paper that I would repay the defalcated amount. So, this evidence is quite in conformity with his earlier statement recorded u/s 164 Cr.P.C. It is another matter that there are some evidences in his cross examination, which might be in consonance with the claim of the accuseds that Gurupada had embezzled companys money. I would consider the effect of this evidence later. To my mind, a victim of wrongful confinement who had been tortured during detention is not likely to spare the true culprits. He is not likely to implicate any other person leaving the real culprits aside. Having read Gurupadas entire evidence, I find it to be quite strong and confidence inspiring with regard to the fact that Kartick, Krishnapada, Jiten and Aswini (accused nos. 1, d, 6 & b) called him to the factory from Lalbazar on April 09, 2004 and then he was detained there by the accuseds, who tortured him during that 20 days detention period. 16. So, Gurupadas evidence, at any rate, suggests that he had really been confined in the factory premises and all the accuseds charge sheeted are somehow or other involved in this incident. From the event of calling Gurupada to the factory premises on April 09, 2004 till his recovery all these accuseds had some part to play. Another thing had come up with this evidence that during his detention period, Gurupada had been tortured by all these accuseds. So far the Gurupadas evidence is concerned, there is a scent of crime of Simple hurt also. The evidence of Dr. Tarun Rakshit as well as the exbt.-2 also suggests similar thing. But, I do not think it would be just to enter into the question of simple hurt, because no charge has been framed u/s 323 IPC and s. 222 Cr.P.C would not permit me to inquire about such matters. At any rate, Gurupadas evidence had been corroborated by the evidence of Pravakar and Sabitri in material particulars, e.g. he was detained in factory premises since April 09, 2004 and police had recovered him from there. I have no doubt that Gurupada had been called to the factory by Kartick, Krishnapada, Jiten and Aswini and when he came there, he was wrongfully confined inside the 522 Photo Biri Factory campus and each of the accused persons played some part in this entire incident of detention. 17. On the question of claim of the accuseds that Gurup ada embezzled Companys money, it is important to notice a few of the cross examinations of Pravakar, Gurupada and Rabi Das. Pravakar at the end part of his cross examination said that: I never know that there was any problem regarding money. My son also till this day did not inform me about the problem regarding the money. Gurupada said in his cross examination that discussion over the account was made before his detention. Rabi in his evidence said I heard that my brother has misused some money and therefore [he] was confined at the factory premises . In cross examination, he said this: I had to execute a bond to repay the money. I executed this bond two to four days before
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the release of my brother. Then a little later he said: My brother executed a sale deed to repay the amount due from the factory. So, these evidences suggest that there might be a real embezzlement of the Biri factorys money or it might be a mere blame. But one thing is certain, there was a dispute regarding factorys money and Gurupada had executed a sale deed for repaying such money. Nevertheless, it is important to notice the condition under which Gurupada executed the sale deed. He said in his cross examination: I was forced and I signed the deed So, Gurupada did not execute the deed voluntarily, but executed the same under compulsion. At any rate, there was, no doubt, an allegation upon Gurupada that he embezzled factorys money and might be he had really indulged himself with such embezzlement of money. But I do not think this would justify the forcible detention of Gurupada for recovery of the embezzled money, even if he really had indulged in such activity of embezzlement. If I, as a court of law, allow the general public for such taking of law in their own hand, then, it would become an open door for creating extreme indiscipline in the society. Everyone would, then, start fighting for their presumed causes also and would flood the lands of this country with blood and the society would lay to ruin. But I cannot allow this to happen. I think, if Gurupada had really embezzled factorys money, the accuseds should have approached to the judicial system or even PS for complaining against Gurupada instead of taking the law in their own hand. No civilized society would justify taking the law in hand by a civilian. I would, therefore, refuse to give any legal recognition to this defence of justification taken by the accuseds. 18. Now, coming to the question whether Gurupada could be said to have been abducted by the accuseds, I think, from the established facts such a conclusion could well be made that Gurupada had been abducted. The established fact is that Kartick, Krishnapada, Jiten and Aswini (accused nos. 1, d, 6 & b) called him to the factory from Lalbazar on April 09, 2004 and then he voluntarily went there, but afterward he had then been forcibly detained there. So, there was no use of force till he came to the factory premises. He was only told that the manager had called him once. In 1st blush, one may think that this much fact would not satisfy the requirements of S.362 IPC. I would read the section, deleting the words not necessary for the situation of this case: Whoever..by deceitful means induces, any person to go any place , is said to abduct that person In this case Gurupada was told by Kartick, Krishnapada, Jiten and Aswini to come to the factory because manager called him once. When he went there, the manager asked him to refund companys money giving a blame of embezzlement. The cross examination of the witnesses also suggests a chance that Gurupada might have indulged himself in embezzling companys money. The crucial question is, therefore, could this manner of calling Gurupada to factory campus and the manner of bringing him there be said to be a deceitful means? For this, I think, the meaning of deceitful means would play the pivotal role. The dictionary meaning of this word deceitful means is a means which is fraudulent or fallacious. So, it seems that it is the same as fraudulent means or fraudulently. I know that if the language of a statute is clear and unambiguous, it would not be right to embark on close analysis of the words used in it and the plain dictionary meaning should be accepted. But the more I think about the phrase deceitful means in the statute with reference to this case, the more
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doubtful do I find its import. It appears to be used in contrast to the phrase fraudulent means or fraudulently which means, according to s. 25 IPC, things done with intent to defraud. To defraud, as the modern scholars think, involves the idea of economic loss or legal injury. Our Supreme Court also approved this view about the meaning of fraudulent intent. [see, Dr. S. Dutta vs. State of U.P AIR 1966 SC 523 ]. If I were to accept the dictionary meaning of the phrase deceitful means which means a means which is fraudulent, then all other deceptions, which does not involve economic loss or gain or a legal injury, would go outside the scope of this phrase. I cannot agree with this interpretation. If a drug addict forges a doctors prescription so as to enable him to get drugs from a chemist, he has, I should have thought, an intent to deceive, even though he intends to pay the chemist the full price and no one is a coin the worse off. If these sorts of deceptions are allowed to go on without any penal sanction, the situation would be pretty deplorable. I cannot think that the legislators intended to allow such things to go on. The meaning of the phrase deceitful means or with the intent to deceive in IPC must, therefore, be something else. 19. Much valuable guidance, I think, could be found in the dictum of Buckley J in Re London & Globe Finance Corpn Ltd ([1903] 1 Ch 728). In this case Buckley J. said: To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practicing the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action. This guideline, I think, is more reasonable. It could achieve the policy of criminal law to a considerable extent. For instance, take this example. If a man should falsify a family pedigree so as to make himself appear to be descended of a noble family, for the sake of his own glorification, so that the pretty girl, who dreams of marrying a noble family guy, may get impressed with him and accept his proposal for love affair, he would not be guilty of an intent to defraud and would, therefore, not be punishable either under section 465 IPC or u/s 417 IPC for want of legal injury to the girl. But he, no doubt, have an intent to deceive and if that girl having been allured with such representation subsequently elope and marry that man, but afterwards knowing the truth renounced his company, then he could very well be punished u/s 366 IPC. 20. Nevertheless, I cannot agree with the dictum of Buckley J., to its entirety. I do not think the representation must always be false. A person could very well be deceived without making any false representation, like what happened in this case. It is quite possible to deceive a person by making a representation which is half-truth or by representation which is true, but coupled with a nondisclosure of some additional true facts which may affect or alter the persons decision. The best instance of such deceitful means was shown in Mahabharata, where Yudhisthir shouted Ashwathama dead.. Ashwathama dead but muttered the word the elephant, after Bhima killed the elepha nt known as ashwathama. This was a plan to deceive Drona to think that his son Ashwathama died in the war and in fact it had resulted the desired deception. To my mind, to deceive conveys the element of deceit or deception or the trick, which induces a state of mind, either by false representation or by representation which is half-truth or a truth coupled with some suppressed facts, but without the element of fraud, which induces a course of action or inaction.
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21. Now, returning back to the case, Gurupada was told by Kartick, Krishnapada, Jiten and Aswini to come to the factory because manager called him once. But they did not disclose him that the manager called him in connection with an allegation of embezzlement of factorys money alleged to my made by him. After Gurupada goes there, he was asked to refund the money giving such allegations of defalcation, no doubt asked by the manager. Nevertheless, Gurupada could learn about the true motive behind calling him to the factory campus only after he reached there. So, what representation was made to Gurupada by Kartick, Krishnapada, Jiten and Aswini, was only a half-truth coupled with suppression of another truth that he would be asked to refund the defalcated money, which he might have really embezzled, and would be pressurised for such refund and would be detained till the refund is made. This, I think, was a deceptive trick to bring Gurupada to the factory premises and it, no doubt, was a deceitful means. I would, therefore, hold that Gurupada was abducted on April 09, 2004. I do not justify Gurupada to have done the right thing in defalcating factorys money. He, of course, committed a serious wrong and might be a crime also, if he really had embezzled factorys money. But this would not justify the victims of his wrong to indulge themselves in another crime. I cannot allow the general public to become a Shylock in themselves. If they try to, the judiciary has to assume the role of Portia. [see, The Merchant of Venice by William Shakespeare]. Otherwise, if this is allowed, the society would lay to ruin. 22. So far as the charge u/s 120B IPC is concerned, it is, no doubt, to be inferred from the attending circumstances. Here Kartick, Krishnapada, Jiten and Aswini (accused nos. 1, d, 6 & b) deceived Gurupada in the morning (11:00am as Gurupada said in evidence) of April 09, 2004, saying that the manager had called him for once to the factory. By this trick they brought Gurupada to the factory, though none of the other accuseds participated in this act of bringing him to the factory premises. After he came to the factory site, he was first given the blame of defalcating factorys money and was a sked to refund it. This was asked by Balaram Chakroborty, the manager. Nevertheless, the I/O did not cite this Balaram as accused, though he ought to have been made an accused in this case. At any rate, when Gurupada denied this allegation of defalcation, he was 1 st assaulted by all the accuseds of this case and then was detained in the factory premises. Then, inhuman torture perpetrated on him. Krishnapada, since deceased, even gave him cigarette burnings. Other accuseds also assaulted him with reference to the blame of embezzlement of factorys money, during this period of detention, whenever they thought of cleaning their hands. All these tortures were made to compel Gurupada to refund the defalcated money. The evidence also suggests that he was even compelled to execute a deed while he was detained there. These evidences, no doubt, suggest an agreement between the accuseds to bring Gurupada anyhow to the factory premises and then to ask him for refunding the defalcated money and if he refuses, then to detain him and create pressure upon him so that he refund the defalcated money. No doubt, these discreet acts of these different accuseds have a reference to this agreement of them. [see, Harishchand Kohil v. CBI, Jabalpur 2012 Cri.LJ 119]. These evidences by no explanation would suggest any other hypothesis than the existence of such an agreement between the accuseds. But still, I find a little difficulty in applying S.10 Evidence Act for using these evidences of discrete acts of different accuseds against all of them. The reason is that, this section used the phrase conspired together to commit an offence or an actionab le wrong. Had this case been involving a conspiracy to do a crime and had there been direct evidence that the accuseds agreed to do that crime, my job would have been much easier. A
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conspiracy to do an illegal thing and if such illegal thing is a crime, then the conspiracy is per se a crime. But this is not the situation here. Here, the ultimate object of the agreement was to recover the defalcated money. This is neither an illegal act, nor a crime in itself. The crucial question is, therefore, was the agreement of accuseds a conspiracy? The answer is certainly yes. I would prove this. If I read S.120A IPC deleting the words, not necessary for the circumstances of this case, it would be: When two or more persons agree to do or cause to be done, (1).. (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: .. Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object In this case the object was recovering the defalcated money, which, no doubt, is not an illegal act; but the means adopted i.e calling Gurupada deceptively by saying a half-truth and then detaining him and torturing him to create pressure for refund of the defalcated money, is certainly illegal and crime also. This detention and torture upon Gurupada were not certainly the primary object of the agreement, but purely incidental because if, Gurupada had refunded the defalcated money at once when he was called, these things might not have happened. But still the explanation of S.120A IPC would make the entire agreement a criminal conspiracy. Since the means adopted by the accuseds in this case for executing the ultimate object of their agreement i.e. recovery of defalcated money is a crime also, I think, S.10 Evidence Act is quite applicable to the situation of this case also and all the discrete actions taken by different accuseds in reference to and in furtherance of their agreement, which is, no doubt, a criminal conspiracy, could be used against all of them and they all are vicariously liable for each of such acts. [see, Harishchand Kohil v. CBI, Jabalpur 2012 Cri.LJ 119]. In the end, having considered the entire evidence, especially those evidences which I mentioned in para 22, I do find all the accuseds to be guilty of indulging themselves in criminal conspiracy and are liable u/s 120B (2) of IPC. I would, therefore, hold them all guilty of the crime u/s 365 IPC also by a legal fiction for the existence of the criminal conspiracy amongst them, though the particular crime u/s 365 IPC has been executed by Kartick, Krishnapada, Jiten and Aswini only. It is true that no charge u/s 342 IPC has been framed, but Gurupada, as I already found in para 16, had been wrongfully confined in the factory premises of 522 Photo Biri factory for 20 days and this certainly amount to crime under that section. Here, I do not find any difficulty in convicting the accuseds for this crime u/s 342 IPC because of S.222 Cr.P.C. The charge u/s 365 IPC has already been framed in this case and one of the elements of this crime is the intent of wrongfully confining the person abducted and the crime u/s 342 is a much lesser crime than the crime u/s 365 IPC. I would, therefore, hold them all guilty u/s 342 IPC also. The proved facts, no doubt, suggest the crime u/s 368 IPC also, but I cannot, I am afraid, to convict the accuseds under that section. S.222 Cr.P.C. would not authorize me to do this. 23. It is true that the written complaint was not proved to mark it exbt. in this case. But the lodging of the FIR and putting of Sabitris LTI mark on it had been proved in this case. The scribe could not step into the witness box, because the prosecution evidence was closed on prayer of the accuseds having regard to the age of this case and because the prosecution failed to produce the witnesses since long. At any rate, I do not think that the defence was prejudiced in any manner for this non marking of the written complaint as exbt, nor it to be Typed & Printed by me: 5th J.M., Bankura. Page 10 of 14

fatal to the prosecution case. The FIR mainly serves two purposes. 1st it set the criminal law in motion and 2nd, it may be used for contradicting the defacto complainant with his/her earlier statement, but no other purpose it could serve. In this case, no doubt, the criminal law was set in motion. So far as the question of contradicting the defacto complainant is concerned, I do find in cross examination of Sabitri that she had been cross examined over the contents of the FIR. Aside from this, her evidence is absolutely in conformity with her FIR and I do not find any discrepancy amongst the two. I would, therefore, hold that the accused persons has not been prejudiced in any manner on this score and this non marking of FIR as exbt is not at all fatal. Non-examination of I/O, if fatal for this action? 24. It is true that the I/O has not been examined in this case. Let me say at once that the nonexamination of I/O, no doubt, is a serious fault on the part of the prosecution, but for this fault the prosecution case may not fail always. It would not be correct to contend that if the Investigating Officer is not examined the entire case would fail on the ground that the accused was deprived of the opportunity to effectively cross-examine the witnesses and bring out contradictions. The case of prejudice likely to be suffered depends upon the facts of each case and no universal strait-jacket formula could be laid down that non-examination of Investigating Officer per se vitiate the criminal trial. [see, Behari Prasad v. State of Bihar AIR 1996 SC 2905]. The effect of non-examination of Investigating Officer has been considered by Indian Supreme Court in a series of cases. One of such case is Ram Dev v. State of U.P. 1995 Supp. (1) SCC 547. In this case it was held that it is always desirable for the prosecution to examine the Investigating Officer. However, non-examination of the Investigating Officer not in any way create any dent in the prosecution case much less affect the credibility of otherwise trustworthy testimony of the eye witnesses. 25. The same view was approved in Ambika Prasad v. State (Delhi Admn.) AIR 2000 SC 718, where it was held that the criminal trial is meant for doing justice, not just to the accused but also to the victim and the society so that law and order is maintained. It was held that a Judge does not preside over the criminal trial merely to see that no innocent man is punished. A Judge presides over criminal trial also to see that guilty man does not escape. Both are public duties which the judges have to perform. It was unfortunate that the Investigating Officer had not stepped into the witness box without any justifiable ground. This conduct of the Investigating Officer and other hostile witnesses could not be a ground for discarding evidence of other witnesses whose presence on the spot was established beyond any reasonable doubt. So, non-examination of the Investigating Officer could not be a ground for disbelieving eye witnesses. 26. This issue was again considered in Bahadur Naik v. State of Bihar 2000 Cri.L.J. 2466, where it was held that non-examination of an Investigating Officer is of no consequences when it could not be shown as to what prejudice had been caused to the appellant by such non-examination. 27. So, the principle is well established. Let me say all that examination of I/O could serve is that he could give evidence about the P/O and its surroundings and the defence could get an opportunity to contradict the evidences of witnesses with their earlier statements which they made u/s 161 Cr.P.C. In this case, I do not think that the I/O could give any better description of the P/O than what is given by Gurupada and Sabitri. Gurupada is the only person who is the eyewitness of the entire incident which went on for a long 20 days inside the factory premises i.e. the P/O. He was detained there for all these 20 days and, therefore,
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was present at P/O from beginning to end of the entire drama. The I/O, no doubt, reached there much later than him. In fact Sabitri has shown the P/O to the I/O. Gurupada has already given believable evidence and described the P/O with sufficient certainty. So also Sabitri. I would, therefore, hold that the Defence party did not suffer any prejudice on this score of P/O. I would have held that the accuseds had been prejudiced to some extent, if anything had been recovered in this case u/s 27 Evidence Act. So far as the question of opportunity to contradict the witnesses with their earlier statements recorded u/s 161 Cr.P.C. is concerned, I do not think the accuseds had been prejudiced on this score in any manner. Except Gurupada none of the witnesses were present at the spot at during these 20days of his detention. So far as the scope of contradicting Gurupada with his statement u/s 161 Cr.P.C. is concerned, I would say, there cannot be a more authentic document of Gurupadas earlier account, than his statement recorded u/s 164 Cr.P.C. by Ld. Magistrate. This was admitted in evidence and I do not find any discrepancy in Gurupadas evidence, as I already said, with his previous statement recorded u/s 164 Cr.P.C. At any rate, I had gone through the 161 statements of the witnesses of this case and I did not find any significant discrepancy in their evidence with their earlier statements recorded u/s 161 Cr.P.C. Nevertheless, the manager of the Biri factory, as suggested by the evidence on record, seems to me to be also involved somehow with the criminal conspiracy, but the I/O did not tagged him with this case as accused. The I/O, I think, ought to have tagged him in this case as accused. I would not say that this was done purposely for some clandestine arrangement of the I/O with Balaram Chakraborty, the manager. He might have omitted to tag the manager by negligence or for lack of legal knowledge. This failure of I/O and his failure to step into witness box is, no doubt, a fault on his part. But for these derelictions of duty by the I/O, it would not be proper to acquit the guilty men when there is otherwise believable evidence on record establishing the suspects guilty. [see, Karnel Singh v. State of MP (1995) 5 SCC 518; see also, Alamgir v. State(NCT, Delhi) 2003 (1) SCC 21]. This legal issue was much considered by the Supreme Court in Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517] and Paras Yadav and others v. State of Bihar [(1999) 2 SCC 126]. In the former this was held: In such cases, the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the lawenforcing agency but also in the administration of justice. While in the later this was held: It may be that such lapse is committed designedly or because of negligence. Hence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. 28. So, the position of law is clear. No one would even dare to throw any doubt on it. To my mind, as a final conclusion of all that I have said, the accused persons, has not been prejudiced in any manner due to non-examination of the I/O. In the end, I would, therefore, hold them all guilty u/s 365/342/120B of IPC. I have no doubt that the prosecution proved its case beyond all reasonable doubts. 29. Hence, I do hereby ORDER that, Kartick Garai, Swapan Bauri, Rohit Rana, Ajit Gorai, Srikanta Bagdi and Jiten Kalindi, the surviving accused persons, were proved guilty of committing crimes u/s
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365/342/120B of IPC and they all are hereby convicted for their crimes u/s 365/342/120B of IPC Their bail bonds are hereby cancelled and they are taken into custody. Let a copy of this Judgement be supplied to these convicts free of cost. Let the seized alamats, if any, be returned to the person entitled thereto after expiry of the appeal period. Nevertheless, hearing the convicts on punishment point is necessary. Accordingly, the pronouncement of sentence is hereby deferred for two hours.

(Sk. Md. Arif Hasan) Judicial Magistrate of 1st Class, 5th Court, Bankura. Dated: 27-03-2014 Later: 27-03-2014 The convicts were produced from J/C. Ld. App and Ld. Defence Counsel both are present. Hd. both the counsels as well as the Convicts. Considered. So far as the issue of punishment is concerned, Probation of Offenders Act, 1958 is always my first choice. It is true that the contagion of lawlessness may undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity, no doubt, is the prime object of law. [see, Legal Philosophies by JW Harris (2nd edition)]. I do not deny that Friedman in his "Law in Changing Society" said, "State of criminal law continues to be as it should be a decisive reflection of social consciousness of society". But, still the necessity of reintegrating the criminals with society and their rehabilitation to the society, so far I believe, cannot be ignored. All that is the task of a court, so far I believe, is to balance between all these irreconcilable issues and to impose an effective sentence and not the maximum or minimum sentence according to dictates of the judges individual morals. For this the judge should delicately balance all the mitigating and aggravating factors. No doubt, this is a difficult task, but somehow or other the court has to balance this. I do admit that to reach this conclusion the books Crime reason and History by A. Norrie and Sentencing and Criminal Justice by A. Ashworth (2005) helped me out a lot. But, there remains the question- what should be the guideline which criminal courts would follow for this balance? To my mind, the best criterion is the guideline given by US Supreme Court in Dennis Councle MCGDautha v. State of Callifornia: 402 US 183: 28 L.D. 2d 711. Their Lordships said: No formula of a fool proof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any fool proof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
I would have invoked Probation of Offenders Act, 1958 for these convicts, if they had not shown the mediaeval brutality while torturing Gurupada when he was in their wrongful custody at 522 Photo Biri factory. Their cruel attitude was no less than the attitude of
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Shylock in Merchant of Venice. They poured urine into Gurupadas mouth, when he was trusty and wanted some water to drink. Gurupadas evidence clearly suggests this. Gurupada might have embezzled factorys money. But still he is a human being having some basic human dignity and rights. But he was treated much worse than any animal. These convicts did not bother to think of Gurupada as a human being. They made him to drink urine. If, I treat such convicts very leniently and sympathetically giving them the benefits of a Noble Statute namely Probation of Offenders Act, 1958, a very bad message would go to the society that they may take law in their own hand for any personal cause and the law would release them without any captive punishment. This would become an open door for indiscipline in the society and lay it in ruin. So, some deterrence is necessary, especially for the persons having the cruel attitude like these convicts. At any rate, I cannot bear the sin of allowing such indiscipline to go on in our country by showing leniency to these cruel convicts. I would, therefore, not invoke any provision of the Probation of Offenders Act, 1958 for these convicts. So far as the quantum of sentence is concerned, only two mitigating factors are in convicts favour. The 1st is that perhaps Gurupada is also guilty of wrongful activity that is to say embezzling the Biri factorys money. The other is the dependents of these convicts, who are no way responsible for the actus reus of these convicts. Having considered the entire situation and the mitigating as well as aggravating factors, I think, if each of these convicts are sentenced to serve three (3) months simple imprisonment in J/C for each of their crimes u/s 365 IPC and 342 IPC and if they are sentenced to pay fine @ 500/ - each for their crime u/s 120B IPC, it would be just. Having considered the fault factor of Gurupada, I would not award him any portion of the fine as compensation. The entire fine amount shall go to the State of West Bengal with a direction to utilise the same for the benefit of victims of human trafficking. Hence, I do hereby, ORDER that, Kartick Garai, Swapan Bauri, Rohit Rana, Ajit Gorai, Srikanta Bagdi and Jiten Kalindi, each of these convict, are hereby sentenced to serve three (3) months simple imprisonment in J/C for each of their crimes u/s 365 IPC and 342 IPC. Each of them are further sentenced to pay fine @ 500/- for their crime u/s 120B of I.P.C. All the captive sentences shall run concurrently. If the convicts or any of them fail to pay their respective fine, it shall be recovered as per S.421 Cr.P.C. The entire fine shall go to the State of West Bengal and the same shall be utilised for the benefit of victims of human trafficking. Inform the State of West Bengal accordingly. Let a copy of this Judgement be supplied the convicts at once and free of cost. Let the seized alamats, if any, be returned to the person entitled thereto after expiry of the appeal period. The case is thus disposed of on contest. Note in concern registers.

(Sk. Md. Arif Hasan) Judicial Magistrate of 1st Class, 5th Court, Bankura. Dated: 27-03-14.
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