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2005 DIGILAW 714 (CAL)

Abdul Wahed Akunjee v. STATE OF WEST BENGAL

2005-11-25

ALOK KUMAR BASU, PRANAB KUMAR DEB

body2005
Judgment :- (1.) Alok Kumar Basu, J. Appellants Abdul Wahed Akunjee, Jagannath Rai @ Roy, Abdul Hai Gayen and Manoj Singh from jail preferred these four separate appeals challenging their respective conviction and sentence order passed by the learned Sessions Judge, 3rd Bench of the City Sessions Court, Calcutta in connection with Sessions Trial No.2 of 1998 corresponding to Sessions Case No.30 of 1998. (2.) Prosecution case in short was that on 7th November, 1997 at about 13.05 hours some unknown young men numbering more than six and aged between 28 to 35 years came in front of CESC Barabazar Office at Mahatma Gandhi Road and they committed dacoity at the point of firearm in respect of cash of Rs.25,96,412.35/- kept in four gunny bags and also in respect of one aluminium bag containing some valuable documents of the CESC belonging to Shyambazar cash office. The dacoits took away one SBBL gun from security men belonging to CESC during their operation. (3.) Soon after commission of the dacoity the nearest police station was informed and considering the gravity of the offence, the local police station at once started its operation to nab the criminals and in due course, Anti-Dacoity Wing of Lalbazar took up the investigation. (4.) A formal FIR was lodged by one Shanti Chatterjee of the CESC. In course of investigation men of Anti-Dacoity Wing of Lalbazar conducted raid at different places and subsequently the appellants were apprehended from different places and they were placed for T.I. Parade. Recovery of part of the money was also made from the appellants in course of investigation and appellant Abdul Hai Gayen made a confessional statement. (5.) After completion of investigation, police ultimately submitted chargesheet against four appellants under sections 395, 395/397 and 412 of the IPC read with under section 25(lB)(a)/27 of Arms Act and also under sections 25(lB)(a)/ 27/35 of the Arms Act. (6.) During trial, prosecution side examined 55 witnesses to prove different charges framed against the appellants and those witnesses included men of CESC including the FIR maker who were eye-witnesses to the commission of dacoity and who subsequently identified the appellants during T.I. Parade, witnesses to search and seizure regarding recovery of part of the money and arms from the appellants and different police officers who took part in conducting search and seizure and also investigation of the case. Prosecution also examined Judicial Magistrates who conducted T.I. Parade and who recorded confessional statement of appellant Abdul Hai Gayen. (7.) The learned Sessions Judge from the prosecution evidence both oral and documentary came to the conclusion that on 7th November, 1997 dacoity was committed in respect of the cash of Rs.25,96,412.35 p. belonging to CESC and having regard to the statement of witnesses regarding identification of the suspects both in jail and subsequently during trial and having regard to the search and seizure made in course of investigation, the learned Sessions Judge was convinced that Manoj Singh, Abdul Hai Gayen and Jagannath Roy along with others took active part in commission of dacoity and all the three appellants also used different deadly weapons at the time of commission of dacoity and thereby assaulted securitymen of the CESC. From the prosecution evidence the learned Judge was also convinced that appellant Manoj Singh had arms in his possession which was subsequently recovered from his possession during investigation. (8.) The learned Sessions Judge after considering the prosecution evidence and after considering the defence submissions along with the plea of alibi taken by appellant Jagannath Roy found no difficulty in convicting appellant Manoj Singh, Abdul Hai Gayen and Jagannath Roy under section 395/397 of the IPC. The learned Judge also convicted Manoj Singh under different sections of the Arm Act since arms were recovered from his possession which were used during commission of dacoity. (9.) As regards appellant Abdul Wahed Akunjee, the learned Judge found from evidence that he was not involved in commission of dacoity, but, he received a part of the money which the miscreants took away during dacoity and it was subsequently recovered from the possession of the said appellant from his residence and accordingly, the learned Judge convicted Abdul Wahed Akunjee under section 412 of the IPC. (10.) The learned Judge after hearing both the prosecution and the defence sentenced Manoj Singh, Abdul Hai Gayen and Jagannath Roy to suffer rigorous imprisonment for life under section 395 of the IPC and they were also sentenced to pay a fine of Rs.50,000/- each, in default, to suffer imprisonment for two years more. (10.) The learned Judge after hearing both the prosecution and the defence sentenced Manoj Singh, Abdul Hai Gayen and Jagannath Roy to suffer rigorous imprisonment for life under section 395 of the IPC and they were also sentenced to pay a fine of Rs.50,000/- each, in default, to suffer imprisonment for two years more. The learned Judge also sentenced all the above three appellants under section 395/397 of the IPC to suffer rigorous imprisonment for seven years each and to pay a fine of Rs.10,000/-each, in default, to suffer rigorous imprisonment for one year each. (11.) Appellant Manoj Singh was also sentenced to suffer imprisonment for the offence committed under the Arms Act. (12.) Appellant Abdul Wahed Akunjee was sentenced to suffer imprisonment for ten years under section 412 of the IPC and also to pay a fine of Rs.5,000/-, in default, to suffer imprisonment for two years more. (13.) At the time of hearing of all the four appeals preferred by the appellants separately, it is very much clear that there is no challenge regarding commission of the dacoity and the appellants have only challenged the findings of the learned Judge regarding their participation in the commission of dacoity and accordingly both the order of conviction and sentence. (14.) Appearing for the appellant Jagannath Roy, it has been contended by the learned Advocate that the order of conviction and sentence recorded against Jagannath Roy cannot be sustained either in law or in fact. The learned Advocate submits that Jagannath Roy since his arrest was in police ,ock up at Lalbazar and he was shown to the witnesses at Lalbazar and those witnesses on two different dates namely on 24th February, 1998 and 27th February, 1998 identified Jagannath Roy in jail. The learned Advocate contends that identification of the same suspect on two different dates was prima facie illegal and improper and when the appellant complained of his prior identification by the witnesses at Lalbazar police lock up, there was virtually no sanctity in the T.I. Parade and the learned Trial Judge did not consider this important aspect raised on behalf of the appellant during trial and since the main point for the learned Judge in convicting the appellant Jagannath Roy was his identification by the witnesses, the conviction order cannot be supported at all. (15.) The learned Advocate for Jagannath Roy next submits that it has been specific case of Jagannath Roy that he was not present in Calcutta at all not to speak of the place of occurrence and appellant Jagannath Roy by examining himself and two witnesses on his behalf established before the Trial Court that prior to 7th November, 1997 he was in Bihar for medical treatment and this has been proved by the doctor and the staff of the Primary Health Centre by producing convincing document that he was under treatment from 4th November to 7th November, 1997 and this important alibi of the appellant was totally ignored by the learned Judge without any convincing reason. (16.) The learned Advocate contends that I.O. of the case during his cross- examination clearly stated that he never visited the native place of appellant Jagannath Roy to ascertain from local witnesses whether Jagannath Roy was present at the relevant time in his native place or not and this statement of I.O. along with the evidence adduced by appellant during trial was sufficient to establish that appellant Jagannath Roy was no way involved with the alleged commission of the dacoity. (17.) The learned Advocate finally contends that the examination of appellant Jagannath Roy under section 313 of the Cr.PC was not legal and proper since all the incriminating substances were not put before him during his examination and thereby the appellant was deprived of his valuable legal right. (18.) The learned Advocate in order to substantiate all his above points referred decisions reported in AIR 1979 SC page 1831 para 13, CWN Vol. XXXVII page 426, 2005 SCC Criminal page 113 and AIR 1958 Allahabad page 746. (19.) Appearing for the appellants Abdul Hai Gayen and Manoj Singh, the learned Advocates for the appellants submit that merely acting on the identification of the appellants by some tutored witnesses of the Investigating Officers, the learned Trial Court was not justified in recording his conviction order against the appellants. (19.) Appearing for the appellants Abdul Hai Gayen and Manoj Singh, the learned Advocates for the appellants submit that merely acting on the identification of the appellants by some tutored witnesses of the Investigating Officers, the learned Trial Court was not justified in recording his conviction order against the appellants. The learned Advocate contends that there were serious discrepancies and anomalies in the statement of the witnesses who came forward to identify the appellants both in jail and in Court during trial and, that apart, when both the appellants were kept detained in police lock up at Lalbazar, the possibility of their identification beforehand by the Investigating Officers to the witnesses could not be ruled out and in such a situation, the learned Judge ought to have accepted the contention of the appellants that they were not involved in the commission of dacoity and they have been falsely implicated in this case by the Investigating Officers. (20.) In has also been contained on behalf of the appellant Manoj Singh and Abdul Hai Gayen that the order of sentence recorded by the learned Judge is too harsh having regard to the fact and circumstances of the case and this Court should consider this aspect also with compassion while disposing of their appeals. (21.) Appearing for appellant Abdul Wahed Akunjee it has been submitted by the learned Advocate that this appellant according to the prosecution allegation was not involved in commission of the dacoity, but, he was found guilty only for retention of a part of the money which was taken away by the dacoits. The learned Advocate contends that it is available from record that elder brother of this appellant was wanted in connection with this dacoity and when that elder brother was not available, this appellant was picked up from his residence and he was compelled to lead the police party for an alleged recovery of a part of the booty, but, from the evidence of the witnesses to the seizure it is crystal clear that there is no evidence worth the name to indicate that the recovered money was found from the exclusive possession of this appellant. (22.) The learned Advocate contends that it is established position of law that if it cannot be proved that the stolen property was not found in the exclusive possession of the accused and anybody could have access to the place wherefrom the alleged recovery was made, no conviction can be sustained under section 412 of the IPC. The learned Advocate, therefore, concludes that so far evidence against this appellant is concerned, there is practically nothing to pass any conviction order under section 412 of the IPC. (23.) The learned P.P. appearing for the State respondent in all these appeals have drawn our attention to the evidence-on-record and contends that there is practically no challenge regarding commission of dacoity taken place on 7th November, 1997. The learned P.P. contends that Investigating Officers soon after commission of dacoity apprehended the appellants from different places after conducting search at their hiding place and thereafter when they were placed for T.I. Parade conducted by learned Judicial Magistrates, the men of CESC who were present at the time of commission of dacoity unerringly identified all the three appellants charged under section 395/397 of the IPC. The learned P.P. contends that from the evidence-on-record it is clear that during investigation part of the stolen property was recovered from the exclusive possession of the appellants and, that apart, appellant Abdul Hai Gayan gave a confessional statement wherefrom the involvement of Manoj Singh, Jagannath Roy and Abdul Hai Gayen himself was proved convincingly and under provision of section 30 of the Evidence Act, the confessional statement of Abdul Hai Gayan can be used both against Manoj Singh and Jagannath Roy. (24.) The learned P.P. contends that the learned Trial Judge after due consideration of the evidence adduced by Jagannath Roy refused to accept the same in support of this alibi and if evidence of Jagannath Roy and his witnesses are examined dispassionately, no reasonable man can differ from the assessment and findings of the learned Trial Court in this regard. (25.) The learned P. P. contends that so far the face of Abdul Wahed Akunjee is concerned it will appear from the evidence of the witnesses to the search and seizure that the appellant himself led the police party while in custody and he? (25.) The learned P. P. contends that so far the face of Abdul Wahed Akunjee is concerned it will appear from the evidence of the witnesses to the search and seizure that the appellant himself led the police party while in custody and he? picked up the money from a place known exclusively to him and naturally, all this stage no plea can be taken that he had no exclusive possession over the booty which was recovered at his residence and in presence of independent witnesses. (26.) We have carefully considered the entire prosecution evidence and we have heard the submissions of the learned Advocates appearing for the appellants in connection with all these appeals. We find from the evidence as well as from the submissions of the learned Advocates for the appellants that there is no challenge regarding the commission of dacoity taken place on 7th November, 1997 in respect of the cash amount belonging to the CESC Barabazar Office situated at Mahatma Gandhi Road. (27.) The main question for consideration regarding the pending appeals wovdd be whether the appellant Jagannath Roy, Manoj Singh and Abdul Hai Gayen took part in commission of the dacoity as alleged by the prosecution witnesses and as sought to be proved by the prosecution through its evidence both oral and documentary. (28.) It is established position of law that to prove a charge under section 395 of the IPC the prosecution must establish from cogent and convincing evidence that the appellants were present at the place of occurrence where the dacoity took place and they took active part in commission of dacoity and this point can be proved by the witnesses who had the opportunity to see the miscreants on the spot and who could identify the miscreants soon after the occurrence through T.I. Parade and also during trial by pointing out the appellants as the persons who were present during commission of dacoity and who took active part in such commission of dacoity. (29.) Another important point for satisfactory proof of prosecution allegation is recovery of money from the possession of the appellants in course of investigation. (29.) Another important point for satisfactory proof of prosecution allegation is recovery of money from the possession of the appellants in course of investigation. (30.) In this particular case from the evidence of P.W.3 to P.W.11 we get that all these persons were present in front of Barabazar CESC Office when the cash money was being carried and at that time they had the opportunity to see the appellants who committed dacoity in respect of the said cash money. These witnesses identified the appellants in jail and these witnesses also identified the appellants individually during their own examination before the Trial Court. (31.) In a case of dacoity it is the common practice to raise a question challenging the T.I. Parade on the sole ground that the witnesses identifying the suspects had the occasion to see the suspect before they were actually placed for identification in jail and present case is no exception. (32.) We have examined T.I. Parade sheets prepared by P.W.33 and P.W.35 who were Judicial Magistrates at the relevant time and who conducted T.I. Parade in respect of the appellants and also their statements recorded during trial and we find nothing on record to lend our support to the defence contention that the witnesses had the prior opportunity to see the appellants at police lock up, on the contrary, we are convinced that these witnesses who were present on the spot at the time of commission of dacoity correctly identified the appellants subsequently both during their identification parade in jail and also during trial in Court. (33.) In this particular case from the seizure lists as also from the statement of the witnesses to the seizure we find that part of the looted money was recovered from the appellants who were identified by the witnesses and, that apart, in this case we also get the confessional statement of Abdul Hai Gayen wherefrom we find that Manoj Singh, Jagannath Roy, Abdul Hai Gayen along with others prepared a plan for commission of dacoity and they executed the plan on 7th November, 1997, (34.) We have examined the provision of section 30 of the Evidence Act and looking at the confessional statement of Abdul Hai Gayen which appears to be a voluntary statement of the deponent, we find that this confessional statement can be used by the prosecution against the appellants along with their T.I. Parade and subsequent recovery of money from their possession. (35.) Thus, after considering the entire prosecution evidence specially the statement of witnesses regarding T.I. Parade and statement of witnesses regarding recovery, we find no reason to take a different view than that has been taken by the learned Trial Court relying on prosecution evidence. (36.) It has been argued on behalf of Jagannath Roy that he was not present on the spot as he was away from Calcutta in connection with medical treatment. We have examined the statement of defence witnesses along with the documents produced by the appellant Jagannath Roy and frankly speaking from the specific statement of Jagannath Roy that he was never at the village where he was treated before 4th November, 1997 and thereafter, we find sufficient force in the assessment made by the learned Trial Court regarding the evidence of Jagannath Roy and naturally, we are also not inclined to accept the alibi of the appellant Jagannath Roy. (37.) We have seriously considered the different ratio of decisions relied on by the learned Advocate for the appellant Jagannath Roy, but, having regard to the prosecution evidence as a whole, we find no reason to accept the contention of the learned Advocate of appellant Jagannath Roy. (37.) We have seriously considered the different ratio of decisions relied on by the learned Advocate for the appellant Jagannath Roy, but, having regard to the prosecution evidence as a whole, we find no reason to accept the contention of the learned Advocate of appellant Jagannath Roy. (38.) Thus, after considering the prosecution evidence and after hearing the submissions of all the learned Advocates for the appellants Jagannath Roy, Manoj Singh and Abdul Hai Gayen, we are inclined to accept the prosecution case against each of the appellant and we are convinced that each of the appellant was guilty of the offence under section 395 and also under section 397 of the IPC. (39.) After considering the prosecution evidence regarding recovery of arms and ammunition from the possession of Manoj Singh, we also find no reason to reject the finding of the learned Trial Court as regards Manoj Singh when he was convicted under the provisions of the Arms Act. (40.) As regards the case of Abdul Wahed Akunjee, however, we have carefully examined the statement of the prosecution witnesses who came forward to prove the search and seizure and having regard to their evidence and having regard to the seizure lists produced on behalf of the prosecution, we are fully convinced that there is nothing on record to indicate that the place of recovery was under exclusive possession of this appellant and that being the factual possession, having regard to the specific provision of section 412 of the IPC, we fully share the contention of the learned Advocate for the appellant Abdul Wahed Akunjee that appellant cannot be convicted under section 412 of the IPC. (41.) Now, coming to the question of sentence under section 395 of the IPC we find that the learned Judge was not justified in sentencing appellant Jagannath Roy, Manoj Singh and Abdul Hai Gayen to suffer rigorous imprisonment for life and having regard to the provision of section 395 of the IPC and having regard to the fact and circumstances of the case, we are inclined to modify the sentence of life imprisonment and to alter the same to that of rigorous imprisonment for ten years. (42.) We, however, do not find any ground to interfere with the sentence order regarding appellant Manoj Singh and Abdul Hai Gayen and Jagannath Roy under section 397 of the IPC. (42.) We, however, do not find any ground to interfere with the sentence order regarding appellant Manoj Singh and Abdul Hai Gayen and Jagannath Roy under section 397 of the IPC. We have already observed that the order of conviction regarding Abdul Wahed Akunjee cannot be sustained. (43.) In the result of our above discussion, we allow all these four appeals partly. We confirm the order of convicton both under section 395 and also under section 397 passed against Jagannath Roy, Abdul Hai Gayen and Manoj Singh and we also confirm the conviction order of Manoj Singh under the provision of Arms Act. (44.) We set aside the conviction order of Abdul Wahed Akunjee under section 412 of the IPC and he shall be released forthwith from this case if he is not wanted in connection with any other case. (45.) Appellant Jagannath Roy, Abdul Hai Gayen and Manoj Singh shall suffer rigorous imprisonment for ten years and also to pay a fine of Rs.50,000/-each in default to suffer rigorous imprisonment for two years more for the offence under section 395 of the IPC. The order of sentence passed under section 397 of the IPC shall stand unaltered and so also the sentence order passed under the provisions of Arms Act as against appellant Manoj Singh. (46.) Send a copy of this judgment at once to the Superintendent of Jail/ Correctional Home where all the appellants are lodged for information and necessary compliance. (47.) Send a copy of this judgment along with LCR to the learned Trial Court for issue of modified jail warrant against appellant Manoj Singh, Jagannath Roy and Abdul Hai Gayen. (48.) The order of disposal of property passed by the Trial Court is also confirmed. Appeals allowed partly.