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.â€"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.â€
12. Wrongful restraint is defined in Section 339 of the Indian Penal Code, which runs as follows:
“339. Wrongful restraint.â€"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.â€"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.â€
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. …..â€
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.â€
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 acquitted accused Sukhdeo Majumdar of the charge under Section 3(1)(x) of the Act.
24. Consequently, Criminal Appeal No.419 of 2009 moved by Sukhdeo Majumdar and Criminal Appeal No.426 of 2009 moved by G.K. Arya (Gopi
Kishan Arya) are allowed and Sukhdeo Majumdar and G.K. Arya (Gopi Kishan Arya) are acquitted of the charge under Section 348 of the Indian
Penal Code. Acquittal Appeal No.100 of 2009 preferred by the State is dismissed. Acquittal of both the accused persons of the charge under Section
306 of the Indian Penal Code and acquittal of accused Sukhdeo Majumdar of the charge under Section 3(1)(x) of the Act are affirmed.
