N.C. Mukherji, J. - (1.) The prosecution case may briefly be stated as follows : - Complainant Swapan Singh owned lorry bearing No. WMK 4315. On 21st June, 1978 that lorry proceeded to Gauhati with some goods. Its driver was Adya Singh and Khalashi was Ramchandra Rauth. The lorry was scheduled to come back to Calcutta on 27 6.78. Carrying 180 chests of tea of M/s. Assam Bengal Carriers Ltd. from Gauhati that lorry reached the petrol pump of one Gyan Singh near Dum Dum Airport in the night of 26 6.78. Along with the said lorry another lorry bearing No. WMK 4534 belonging to Amal Daw arrived. In that lorry, the driver was Prasanta Nath. Jayanta, younger brother of Amal along with his friend Amitava Mitra was in that lorry. Both the lorries arrived at the petrol pump at about 11.30 P.M. The driver of larry No. WMK 4534 decided to stay at the petrol pump. Jayanta and Amitava being eager to return to Calcutta bearded lorry No. WMK 4315 which left Gyan Singh's petrol pump that night. Driver Adya Singh, khalasi Ramchandra, Amitava and Jayanta were in that lorry. The lorry proceeded towards Calcutta. It took the route via Birati. When the lorry arrived near Pubpara More on Madhusudan Banerji Road with P. S. Belgharia it was obstructed by 10/12 persons by placing a handcard on the road. The lorry had to stop. As soon as it was stopped 3/4 persons with revolvers in their hands got inside the lorry and compelled all the four passengers to come down. The persons who so obstructed the lorry were the accused against whom charge under Sec. 396/34 I.P.C has been framed. It is the prosecution version that after the driver and three others were brought down accused Lalli directed accused Ram Abatar to drive the lorry to the place to be shown by accused Barun Biswas and Manik Das Thereafter the lorry was diverted to a different route. After the disappearance of the lorry, the aforesaid accused persons caught hold of the passengers of the lorry and forced them to go on foot to a field at Adarshanagar. In that night Haradhan Das, a night guard attached to Nimta Paschimanchal Babasayi Samity, had been accused Lalli and others obstructing the lorry, diverting it and forcibly taking away the four passengers towards the field. Hiding himself behind a stack of bricks he noticed that. Thereafter, he followed the accused persons when the aforesaid persons were being taken away to the field. Going to that field Haradhan hid himself behind a bush and observed the incident. He found that the four persons were kept seated beside a pillar. They entreated the accused persons to let them go, but to no effect. A piece of cloth was wrapped on the eyes of each of these four persons. Thereafter the accused persons took them one by one in the jheel, drewned them and after that hit them on their heads with some hard and blunt substance. After killing them one by one the accused persons threw their dead bodies into a big hole already dug for that purpose Thereafter the dead bodies were all buried. Two bamboo poles were put on it. Some water hyacinth was brought and placed over that place. The accused persons left the place and took their bath in a jheel lying to the east of that place. Witness Haradhan Das came back to his place of work. Accused Ram Abatar with accused Barun Biswas and Manik Das drove that lorry to Chamrail in the district of Howrah. There in the godown of accused Habul Naskar 40 chests of tea were unloaded. Thereafter keeping that lorry at a place accused Barun and Ram Abatar proceeded towards their houses. While they were crossing Ariadaha area in the early morning of 27.6.78 they were challenged by witness Sk. Samsul Alam, a police officer of Belgharia PS who was then investigating a theft case. S. I. Alam had suspicion on accused Barum Biswas and he searched his person. From his possession he recovered a key and some challans and other papers, seized those articles and arrested accused Barun Biswas In the morning of 27.6 78 lorry No. WMK 4315 was further driven by accused Panna Shaw at a place near Makardah Road. The tea chests of that lorry were thereafter unloaded and loaded in two lorries, one belonging to Md. Nazir and the other to his brother. With the tea Chests those two lorries were driven by Ramjiban Keori and Ram Narayan Saroj The lorries while proceeding towards Calcutta had to stop as they arrived during 'no entry' period. In that after noon some police personnel from Lalbazar had gone to that place and brought the aforesaid two lorries with the tea chests to Lalbazar. Seeing the lorry No. WMK 4315 not returning by 27. 6. 78 Swapan Singh, the owner, was anxious. He made searches for the lorry. He had been to the petrol pump of Gyan Singh and Barasat Check Post and from there as also from the driver of lorry No. WMK 4534 came to know that in the night of 26. 6. 78 his lorry had arrived at the petrol pump and crossed the check post at Barasat. Finding his lerry and his driver and khalashi missing Swapan Singh went to Belgharia P S. on 29 6 78 and lodged a written complaint. For want of jurisdiction that complaint was sent to Dum Dum Airport P. S. and on the basis of that complaint P. S. Case No 2 dated 1 7 78 was started. Inspector Acharya took up the Investigation of the case. He had been to the place of occurrence pursuant to a statement made by Barun Biswas and examined some witnesses. Subsequently, the investigation was taken up by CID. On the basis of the source information S. I. Birendra Nath Biswas arrested accused Ashoke Thakur from Mohesh colony, Serampore on the night between 18.8.78 and 19 8 78. He made some statement before S.I. Biswas and on the basis of his statement accused Ashoke Dutta and Pabitra Dutta were arrested from Jatindasnagar. In the night of 19.8.78 after arrest accused Ashoke Dutt Pabitra Dutta made some confession to the police stating that they would be able to show the place where four dead bodies would be found if they be taken to a field at Adarshanagar. On the basis of their statements, the friends and relatives of the missing persons were informed and told to be present at the DDI Office, Baranagar on the morning of 19 8.78. On that morning, accused persons led the police to a filed at Adarshanagar and pointed out a place from where four dead bodies were recovered. Some domes were engaged by the police and they dug up the place and brought out four dead bodies which were identified to be those of Adya Singh, Ramchandra Routh Amitava Mitra and Jayanto Daw by the relatives on seeing their wearing apparels. The dead bodies were sent id Barrackpore morgue for post mortem examination. After completion of investigation, chargesheet was submitted. The defence is an absolute denial of the charges that have been framed against the accused persons. It is the defence case that all the accused persons have been falsely implicated on the statements of some persons belonging to the police camp. The learned Judge, on a scrutiny of the entire evidence on record, acquitted these persons, but convicted and sentenced nine appellants as stated above. Being aggrieved, these appeals have been filed.
(2.) Mr. Das, Mr. Roy and Mr. Dutt, learned Advocates appearing on behalf of the appellants, submit that in this case the prosecution relies on three items of evidence, Firstly on the uncorroborated testimoney of a single witness P. W. 26 - Haradhone Das who claims to have seen the occurrence. Secondly, on the evidence under Sec. 27 of the Evidence Act and thirdly, on the retracted confession of a co -accused. It is contended that the learned Judge ought not to have placed any reliance on the evidence of P. W. 26 as on a scrutiny of the evidence adduced by this witness, it will be clear that he did not see the occurrence and has been procured by the police about two months after the incident. The reasons offered by the learned Advocate for not accepting the testimoney of P.W. 26 will be discussed subsequently. With regard to the evidence on the point of recovery of dead bodies it has been submitted that the statements of the accused persons have not been proved in this case and as such the fact of recovery cannot go under Sec. 27 of the Evidence Act. Again, it has been contended that it is the evidence of the investigating officer that three accused persons made statements together. It has been contended that in such circumstances, the statements of the accused who was the first to state can only be admissible in evidence and the statements of the other accused should be rejected. This point will also be discussed at length subsequently. As regards the judicial confession of Ram Abatar broadly it bas been pointed out that the confession is self -exculpatory and as such cannot implicate the other accused persons. It has also been pointed out that though a confession was made by Ram Abatar he has been acquitted. In such circumstances, such a confession cannot be used against other co accused. It has also been submitted that the learned Magistrate did not observe the required formalities of law and as such the confession ought not to have been admitted in evidence.
(3.) The learned Advocates for the appellants, with much emphasis, contend that it will be risky to rely on the uncorroborated testimony of a single witness namely. P. W. 26 who was examined by the police only on 8.10.78, the incident having taken place on 26 6 78. In this connection it has also been contended that though the witness narrated the incident to his mother and wife but none of them has been examined in this case. The two night guards who were with him on the night of the occurrence have also not been examined It is gathered from the evidence of the investigating officer that the two night guards left their services and were not available. It has not transpired in evidence that P.W. 26 stated to the investigating officer that he narrated the incident to his mother and wife If that be so, then there was absolutely no necessity for the investigating officer to examine mother and wife of P.W. 26. On behalf of the appellants, reliance has been placed on a decision, reported in : AIR 1976 SC 2488 (State of Orissa Vs. Mr. Brahmanda Nanda). In this case, the only eye witness to the occurrence did not disclose the name of the assailant for a day and a half after the incident and the explanation offered for nondisclosure was unbelievable. In the facts and circumstances of the case, it was held that "such non disclosure was a serious infirmity of the evidence of the witness and that the High Court was correct in rejecting it as untrustworthy and acquitting the accused." It is true that in this case also the only eye witness is P.W. 26 - Haradhone. P.W. 26 deposes that after seeing the entire incident he met the two night guards. He did not disclose the incident to them. After the incident he did not go to the police. He, however, admits that he narrated the incident to his mother and wife. On the following day, he narrated about the lorry hijacking incident to the Secretary, He forbade to tell the incident to anybody and not to bother about it. The Secretary further stated that as a nightguard his duty was to look after the security of the shops and not to bother about any other incident. One and a half months after the incident the police officer came to his house and interrogated him. He stated to him what he knew. As has been stated earlier, this witness though a simple and unsophisticated person and a vegetable dealer and a nightguard impressed us very much as a truthful witness. He was cross examined at length, but was not shaken a little. From a close scrutiny of his evidence we are of the opinion that it cannot be said that he is a tutored witness. He has given the minutest detail from the beginning to end in a most systematic, convincing and reliable manner and that being so, though he is the only eye witness we are not in a position to reject his evidence, as his evidence, gets fully corroborated by other items of evidence which we will discuss soon. On behalf of, the accused reliance has also been placed on another decision, reported in : AIR 1954 SC 51 (Habeeb Mohammad Vs. State of Hyderabad). It has been held "it is the bounden duty of the prosecution to examine a material witness, particularly when no allegation has been made that, if produced, he would not speak the truth. Not only does an adverse inference arise against the prosecution case from his non production as a witness in view of the illustration (g) to Sec. 114 of the Evidence Act, but the circumstances of his being withheld from the Court casts a serious reflection on the fairness of the trial." The prosecution case is that P.W. 26 is the only eye witness. There was no other witness to the actual occurrence. It is true that on that night other two night guards were with him, but they were standing at a distance and they did not see any part of the incident. Even then, they ought to have been examined to prove that on that night they were doing duties as night guards with P. W. 26. The Explanation for non examination of these witnesses has been offered by the investigating officer. P W. 26 also slates that he does not know the whereabouts of these two night guards. Mr. Mukherji, the learned Public Prosecutor in this connection relies on a decision reported in : AIR 1979 SC 1116 (Pal Singh and others Vs. State of Uttar Pradesh), In this case, it has been held that after the High Court had believed the eyewitness Nos. 1 and 2, and having found that their testimony was absolutely credit worthy and truthful, it cannot have rejected the prosecution case merely because some of the eye witnesses mentioned in the F.I.R. were not examined. In such cases, the question which has to be determined is not whether the absence of the examination of the independent witnesses would vitiate the prosecution case by itself but whether the evidence actually produced is reliable or not. Once the court given a finding of fact that the evidence led by the prosecution is reliable and trust worthy, the infirmities arising out of non -examination of witnesses will not be sufficient to put the prosecution out of Court". Mr. Mukherji, with much emphasis, submits that in the present case there is absolutely nothing for which the veracity of the evidence of P.W. 26 can be questioned. The learned trial court was satisfied that P.W. 26 is a truthful witness and Mr. Mukherji submits that this Court also should consider that P.W. 26 is a truthful witness and should not reject his evidence.;