Ashoke Kumar Sharma vs The State

R.N. Dutt, J.—This appeal is against an order of conviction and sentence under Sections 355/34 and 323/34 of the Indian Penal Code.

The prosecution case is in short as follows:

One Subrata Bose was admitted in the Marine Engineering Training Course in August 1967. On August 9, 1967, at about 8-30 a.m. he reported himself at the College. Some others candidates admitted to. the training course also reported themselves at that time. Subrata was allotted to the Calcutta Port Commissioners'' workshop impractical training along with several other such fresh cadets. Subrata and some twenty others went to the Port Commissioners'' workshop gate at about 9 a.m. where they were received by one senior cadet Pradip Knmar Biswas, Appellant No. 4, who took them inside the workshop and then inside a room marked "D.M.E.T." where he found some 12 senior cadets. The other Appellants and Sujit Bagchi, Sanjoy Chatterjee and Anil Vohra were amongst them. The senior cadets greeted the fresher saying that they were welcome, but this welcome would not make them laugh ; this welcome would make them cry. Thereafter, the senior cadets divided the fresher into several groups and. the Appellant Ashoke Sharma took Subrata and some other fresher to a corner of the room and ordered them to make fifty sit ups, that is, sitting on the toes and standing up. This done, they were asked to box each other's ears and to move like a piston engine. Then Sanjoy Chatterjee caught hold of Subrata, made him sit on his toes with arms stretched holding a brick on both hands. Sanjoy then put his legs on the brickbat and asked Subrata to sing a song. Sujit Bagchi slapped him and directed him to make vulgar gesture and recite obscene songs. Anil Vohra too asked Subrata vulgar questions and directed him to recite obscene songs. Subrata protested when Anil Vohra, Sujit Bagchi and Sanjoy Chatterjee and the Appellant No. 2 Ranganathan assaulted him with fists and blows. Ranganathan made him lie on a table in a bow-like fashion and put the burning side of a lighted cigarette into his mouth. Subrata was then taken to an adjacent room and Sujit Bagchi and Sanjoy Chatterjee asked him to put off his trousers, but on his refusal he was kicked and slapped by the Appellants Ahsoke Sharma, Ranganathan and Nayer and Anil Vohra. Thereafter, they laid him flat on the floor when Sanjoy poured inside his mouth some white sticky liquid. Sujit Bagchi pressed his mouth and the Appellant Pradip Biswas squeezed a few drops of liquid into his mouth which smelt like urine from a soaked handkerchief. This continued till about 12 noon and, thereafter, the fresher were directed to respect the seniors and not to disobey them. Subsequently, they were taken around the workshop and that was followed by lunch-break at 1 p.m. when the fresher returned to the hostel, Subrata felt very bad and on some pretext he took leave and returned to his house and went straight to his room and vomited lying on the carpet in the floor. The parents came there, a doctor was called ; some friends and relations also came. Subrata related to them what had happened in the workshop.

Subrata's father Jyotish Bose made a complaint before the Police on August 23, 1967. The Police made an investigation and submitted challan against the Appellants and Sujit Bagchi, Sanjoy Chatterjee and Anil Vohra. The Appellants and Sujit Bagchi, Sanjoy Chatterjee and Anil Vohra were at their trial charged under Sections 328/34, 355/34 and 323/34 of the Indian Penal Code.

They all pleaded not guilty. Their defence was that they had been falsely implicated. It was suggested that Subrata could not stand the rigours of the training and so, in order to get the refund of the admission fee of Rs. 1,400 and odd, he connived with his father and concocted this false story.

The learned Additional Sessions Judge acquitted the Appellants and Sujit Bagchi, Sanjoy Chatterjee and Anil Vohra of the charge u/s 328/34 of the Indian Penal Code. He, however, convicted all of them under Sections 355/34 and 323/34 of the Indian Penal Code and sentenced each of them to a fine of Rs. 200, in default, simple imprisonment for one month u/s 355/34 of the Indian Penal Code. No separate sentence was imposed u/s 323/34 of the Indian Penal Code.

The Appellants have then preferred this appeal, but Sujit Bagchi, Sanjoy Chatterjee and Anil Vohra have not moved this Court against their conviction.

P.W. 1 is Subrata. He has given a detailed account of what happened after he and the other fresher were taken inside the Port Commissioners'' workshop. He has spoken of the specific acts done by each of the Appellants and the other accused persons. He had reported for training only that morning. His parents have testified the facts that when he went to the Marine Engineering College that morning, he was in the best of his health. Subrata has also said this. He returned to their house that very evening with shattered health and nerves and his parents have spoken about his physical condition When he returned. They found him very sick. Subrata was complaining of the Marine Engineering College being a hell. He also vomited. His parents sent for a doctor. He is P.W. 31 who has also spoken about the sick condition of the boy when he examined him. Some of the relations of the boy and P.W. 29, a lawyer friend of his father, have also spoken about the sick condition of the boy when he returned to the house that evening. There is no reason not to place reliance on this evidence. So, there is no doubt that Subrata was maltreated during the short period of his stay in the workshop. On the face of it this makes the defence suggestion improbable that a false case was instituted though nothing happened to Subrata during his stay in the workshop. Furthermore,- Subrata reported for training only that morning and it is very unlikely that in the course of a few hours'' stay there and that on the very first day he would be so much terrified with the rigours of life there that he would falsely make out a case so that his lather can get refund of Rs. 1,400 and odd deposited with the College as his fees. Lastly, the evidence of the College authorities will show that even though no such case was made out, his father would be entitled to get refund of the deposits made by him in case for any reason his son would not stay there for the training. The defence suggestion, therefore, cannot be accepted as probable. But, even though the defence suggestion cannot be accepted, the prosecution must prove its case. Here, I have said, Subrata has spoken of the incident and the part played by each of the Appellants and the other accused persons. Subrata is the only witness to prove this. True, the other fresher were with him, but none of them has been examined. But, that is because the other fresher are continuing in the College and it was not likely for them to have come and deposed against the senior cadets with whom they were continuing for the training. So, though Subrata is the only witness, there is no reason not to place reliance on his evidence when that evidence is considered in the light of the other circumstances some of which I have already discussed.

Mr. Roy argues that reliance should not be placed on the identification made by Subrata. I find that Subrata identified the Appellants and the other accused persons at the trial and has said who was responsible for what. Before that there was a test identification parade on October 6, 1967, and Subrata identified the Appellants and the other accused persons there also specifying the part played by each of them. Mr. Roy argues that Subrata was not the identifying witness in the test identification parade. It appears that when Subrata came as the identifying witness in the test identification parade, he came in the robes of a Moulavi and it further appears that he identified the Appellants and the other accused persons through the window of the Magistrate's room. Obviously, Subrata was in terror of the persons in whose hands he had the said sad experience and that is why he wanted to identify the suspects from some distance and not exposing himself to be seen again in plain clothes. The Magistrate allowed Subrata to identify the suspects in the robes of a Moulavi and through a window from inside his room. Subrata appeared before the Magistrate in plain clothes. Thereafter, he was taken to the Police Station for taking the robes of a Moulavi and the Police officers have said that Subrata was put on the robes of a Moulavi at the Police Station and then taken back to the Magistrate's room for identification. Mr. Roy submits that the make-up man Bejoy Chakraborty was not examined. Evidence was let to the effect that Bejoy Chakraborty could not be traced to be examined. Whatever that may be, there is no reason to disbelieve the evidence of the Police officer who has said that Subrata was put on the robes of a Moulavi and taken to the Magistrate for identification. Further, the Magistrate has said that he was satisfied about the identity of the witness. Mr. Roy then submits that identification by pointing a finger through a window is not a proper identification. The Magistrate has explained that Subrata identified the Appellants and the other accused persons pointing his finger through the window, and the person at whom the finger was pointed was fixed up by counting the number from one side of the row, that is, the fifth man or the seventh man and so on, and when the suspect was thus identified the Magistrate ascertained his name. The Magistrate has explained that he correctly ascertained the names of the suspects who were identified by Subrata. True, the whole procedure adopted is somewhat novel. But then, in the facts and circumstances of the case, there is no reason to think that there was scope for error or mistake in the identification made. The identification made in the Court is thus corroborated by the identification made at the test identification parade. There is, therefore, no reason not to place reliance on the evidence of Subrata or on the identification made by him, and I am satisfied that the Court can safely act on the evidence of Subrata in all respects.

Mr. Roy finally submits that the learned Magistrate did not consider the case of each of the accused persons separately but convicted them with the aid of Section 34 of the Indian Penal Code though the common intention was not proved, Mr. Roy argues that there is no direct evidence of a prior meeting of the mind and, so, the learned Judge was not justified to take the aid of Section 34 of the Indian Penal Code. True, there is no direct evidence of prior meeting of the mind. But, even though there is no, direct evidence, there can be an inference of common intention from the facts and circumstances in a particular case. Here from the facts and circumstances proved there is no doubt that there was a common intention of the accused persons in this affair. The fresher were received by one of them, taken inside the workshop and then inside a room where, as Subrata puts it, he was ragged in the manner I have described by different accused persons--sometimes some of them simultaneously, sometimes one by one but aided and abetted by others. Unless'' there is a common intention, such things cannot happen. Furthermore, Subrata has said that when the fresher were received, the senior cadets shouted in a chorus--"We senior cadets are welcoming you--but usually when you are welcomed you laugh, but here the welcome will make you cry." Such chorus shouting would indicate common intention particularly when we consider how Subrata was treated by the Appellants during the subsequent hour or so. Ashoke Sharma starts the show by directing the fresher fifty sit-ups and, thereafter, to box each other's ears and move like a piston-engine. Sanjoy Chatterjee then takes on and makes Subrata sit on his toes with arms stretched and bricks on hands. Sujit Bagchi then comes on and directs him to recite obscene songs. Anil Vohra almost simultaneously comes on and asks him to recite obscene songs. Further, Anil Vohra, Sujit Bagchi, Sanjoy Chatterjee and Ranganathan--all of them assaulted Subrata. The Appellant Ranganathan then makes Subrata lie on a table in a bow-like fashion and puts the burning side of a lighted cigarette into his mouth. Ashoke comes back again and takes him to an adjacent room where Sujit and Sanjoy ask him to put off his trousers and, on his refusal, he was kicked and assaulted by Ashoke Sharma, Ranganathan, Vohra and Nayer, so on and so forth. So, there can be no doubt that what was done was in furtherance of the common intention of all of them.

So, the facts are all proved. But then, I have my doubts about the conviction u/s 355/34 of the Indian Penal Code. For a conviction u/s 355 of the Indian Penal Code it must be proved that the accused had intended to dishonour the person hurt. Here true, what was done was dishonorable. But then, the intention of the senior cadets was just to show their supremacy so that the fresher obey them unquestionably in future. It is doubtful whether they had the intention to dishonour the fresher and, in that view of the matter, I think the conviction u/s 355/34 of the Indian Penal Code should be set aside. But, there is no reason to interfere with the conviction u/s 323/34 of the Indian Penal Code. The sentence appears to me to be rather light in view of break in the boy's career and the public importance of the matter. But, when the appeal was admitted no Rule was issued for enhancement of the sentence.

In the result, the appeal is allowed in part. The conviction and sentence of the Appellants u/s 355/34 of the Indian Penal Code are set aside and they are acquitted of that charge. But, their conviction u/s 323/34 of the Indian Penal Code is upheld and each of them is sentenced to a fine of Rs. 200 (Rupees two hundred), in default, rigorous imprisonment for one month.