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2009 DIGILAW 38 (CAL)

Khedan Mahato v. STATE OF WEST BENGAL

2009-01-28

GIRISH CHANDRA GUPTA, KISHORE KUMAR PRASAD

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JUDGMENT Girish Chandra Gupta, J. This appeal is directed against a judgment and order dated 23rd May, 1991 passed by the learned Assistant Sessions Judge (Additional)) Purulia in Sessions Trial No.8 of 1991 arising out Sessions Case No. 38 of 1989 convicting the accused Khedan Mahato and the accused Puchi Ansari for the offence punishable under section 412 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for 8 (eight) years as also to pay a Line of Rs.2,000/- in default to suffer further rigorous imprisonment for a period or one year. 2. The facts and circumstances of the case brief1y stated are as follows. 3. On 6th August. 1985, 5/6 persons broke into the house of one Behari Singh in the night. He was overpowered on the point of arms including gun and bhojali and was asked to produce money including the gun which he possessed. Behari Singh at that point time was in his house accompanied by his wife and minor children. He gave in to the demand of the dacoits; cash money including a double barrel gun bearing- No. D.B.B.L. 46927 were forcibly taken away by the aforesaid 5/6 persons and they decamped from the house of said Behari Singh. When hue and cry was raised the culprits opened fire seriously injuring Soma, a neighbour of the said Behari Singh, Written complaint was lodged with the police station in the following morning i.e. 7th August, 1985. In spite of best efforts the police could not get any clue for sometime. On 20th December, 1985 the police, attached to Purulia which is about 50 kms. away from the place of occurrence situate at Jhalda, acting on source information, raided Khamarbari of one Mahato wherein the appellants were found sleeping on the platform of a bullock cart. There were four pillows made of straw and from beneath the pillows a gun was recovered bearing D.B.B.L. Gun No.46927. The Purulia Police had no knowledge about any dacoity committed in the house of Behari Singh in Jhalda on 6th August, 1985. They, as such, started a case against the appellant under the Arms Act. Subsequently, it transpired that the gun recovered from the appellants was the same gun looted from the house of Behari Singh. The Purulia Police had no knowledge about any dacoity committed in the house of Behari Singh in Jhalda on 6th August, 1985. They, as such, started a case against the appellant under the Arms Act. Subsequently, it transpired that the gun recovered from the appellants was the same gun looted from the house of Behari Singh. The P.W. 1, de facto complainant Behari Singh and the P.W. 3 son of Behari identified the gun and the same was duly marked material exhibit. 4. The gun shot injury inflicted upon Soma, a neighbour of Behari Singh, was treated by Dr. Dutta, P.W.13. Large number of witnesses were examined who deposed about the dacoity committed in the house of the de facto complainant Behari Singh but the identity of the dacoits could not be established because the act was committed in the night and the witnesses could not identify the dacoits. The learned Trial Judge, as such, held as follows: "I find that none of the P.Ws. has stated the names of the accused persons. They also old not identify the accused persons at the time of trial. In this case the T.I. Parade of the accused persons was not held. The evidence adduced by the prosecution regarding the commission of dacoity by the accused persons in the house of P.W. 1 is not sufficient to warrant conviction. There is nothing on evidence to show that these accused persons committed dacoity in the house of P.W. 1. P.W. 13 is the Medical Officer who examined Rajkishore Mahato and Soma Mahato on 7.8.85 and found injuries on their person. But the factum of injury on the person of Soma and Rajkishore would not by itself prove that it was caused by these two accused persons at the time of Commission of dacoity in the house of P.W. 1. I have already held that there is no evidence to show that these accused persons committed dacoity in the house of P.W. 1. Consequently, it cannot also be said that these two accused persons caused hurt to Rajkishore Mahato and Soma Mahato. Both the charges under sections 395 and 397 IPC therefore, fail The accused persons are, therefore, not guilty of the charges under sections 395, 397 of the IPC." 5. Consequently, it cannot also be said that these two accused persons caused hurt to Rajkishore Mahato and Soma Mahato. Both the charges under sections 395 and 397 IPC therefore, fail The accused persons are, therefore, not guilty of the charges under sections 395, 397 of the IPC." 5. However, as regards the charge under section 412 of the Indian Penal Code the learned Trial Judge held, inter alia, as follows: "From the evidence it is clear that the gun was stolen from the house of P.W. 1 in the incident of dacoity and that the stolen gun was recovered from the possession of the accused persons." 6. Mr. De, the learned Senior Advocate appearing in support of the appeal, advanced the following submissions: (a) The case of the appellants that the gun was never seized from their possession and that they had been arrested by the police from their respective house is probabilised by the fact that the P. W. 1 deposed in his evidence that "the police officer showed me the gun about one month after the incident." (b) Mr. De submitted that the dacoity, if any, was committed on 6th August, 1985 and the gun according to the case of the prosecution was seized on 20th December, 1985 whereas the P.W. 1 claims to have been shown the gun by the police within a month after the dacoity. He contended that this goes to show that the entire case of the prosecution is false and the appellants have been falsely implicated. He, therefore, prayed for outright acquittal. By way of an alternative submission, it was contended that in the event his prayer for acquittal is not acceded to by the Court, the punishment should adequately be reduced regard being had to the fact that the appeal is pending for more than eighteen years and the appellants are now on the wrong side of their age. 7. Mr. Dutta Gupta, the learned Advocate appearing for the State respondent disputed the submissions of Mr. De. He submitted that the fact that the gun was seized on 20th December, 1985 is evidenced by the seizure list which has been marked Exhibit 5. 8. The fact that the appellants were arrested by the police on 20th December, 1985 would also appear from the Court records because they were produced before the Court. De. He submitted that the fact that the gun was seized on 20th December, 1985 is evidenced by the seizure list which has been marked Exhibit 5. 8. The fact that the appellants were arrested by the police on 20th December, 1985 would also appear from the Court records because they were produced before the Court. Prayer was made on behalf of the prosecution that one of the accused persons had during interrogation disclosed names of other dacoits involved and he was willing to give information with regard to them and on that basis prayer was made before the Court that the Khedan should be remanded to police custody whereas the accused Ansari might be remanded to jail custody. 9. Mr. Dutta Gupta submitted that these records unmistakably show that the gun was recovered from the appellants on 20th December, 1985 and they were arrested on the same day. He added that there is no scope for any reasonable doubt as regards the apprehension of the appellants on 20th December, 1985 including the seizure of the gun on that day. The defence is trying to take advantage of a careless mistake made by the P.W. 1 as regards the time when the gun was identified by him. He drew our attention to the evidence of the P.W. 3, son of the P.W. 1 who deposed that the gun was shown to them in the month of Pous i.e. to say in the month of December, 1985. He submitted that the evidence of the P.W. 3 coupled with the Court records go to show that the case of the prosecution is well-founded which cannot be thrown out on the basis of a stray answer given by the P.W. 1 during his cross examination. He added that the case of the defence that the appellants were arrested from their respective house is altogether bad. The appellants did not even disclose the day when they were allegedly arrested frorr their houses. Moreover, the police is duty-bound to produce the arrestee before the Court. The Court records do not show that the appellants were produced at any time prior to 20th December, 1985. If the arrest of the appellants on 20th December, 1985 cannot be doubted, then the seizure of the gun on 20th December, 1985 cannot also be doubted. Moreover, the police is duty-bound to produce the arrestee before the Court. The Court records do not show that the appellants were produced at any time prior to 20th December, 1985. If the arrest of the appellants on 20th December, 1985 cannot be doubted, then the seizure of the gun on 20th December, 1985 cannot also be doubted. This would also go to show that the inadvertent answer given by the P.W. 1 during his cross-examination that the gun was shown to him by the police within a month more or less is a mistake made by him and there is no reason why benefit of inadequate doubt should be given to the appellants who are threats to the society. He also drew our attention to illustration (a) of section 114 of the Indian Evidence Act which provides as follows: "that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession". 10. He submitted that it is a watertight case and there is no scope for any interference. He added that there is no scope for any leniency to be shown to the appellants. He, therefore, prayed for dismissal of the appeal. 11. We have considered rival submissions advanced by the learned Advocates appearing for the parties. We are of the view that the submissions advanced by Mr. Dutta Gupta have great force. The appellants were, in fact, arrested on 20th December, 1985 and the gun was recovered from their possession which was kept concealed under their pillows as would appear from the evidence of P.Ws. 10 and 12. The P.W. 1 was obviously mistaken when he deposed that the gun was shown to him by the police more or less within a month from the incident. There is thus no scope for interference in so far as the conviction of the appellants is concerned. 12. The submissions advanced by Mr. De that the appellants are on the wrong side of their age does not appear to be correct in so far as the appellant Ansari is concerned. On the day when he was examined under section 313 of the Cr. PC, according to his own statement, he was 40 (forty) years old on 8th May, 1991. De that the appellants are on the wrong side of their age does not appear to be correct in so far as the appellant Ansari is concerned. On the day when he was examined under section 313 of the Cr. PC, according to his own statement, he was 40 (forty) years old on 8th May, 1991. By that process today he may be 57 years old. On 8th May, 1981 Khedan, according to his own statement, was 51 years old and by that process he might be 67 years old. 13. Considering that one of the appellants is aged about 67 years, the punishment awarded by the learned Trial Court upon the appellants, Khedan Mahato and Phuchi Ansary is reduced to 7 (seven) years simple imprisonment each. The amount of fine with default stipulation that is Rs. 2000/- each in default to suffer further rigorous imprisonment for one year each shall remain unchanged. 14. The appellants were enlarged on bail by an order dated 20th June, 1991. Their bail-bonds are cancelled. They are directed to surrender to their bail bonds furnished by them at once. 15. The learned Trial Court is directed to take the appellants in custody so that they may serve out the sentence as modified hereinabove. 16. The appeal thus stands partly allowed. 17. The learned Registrar General of this Court is directed to communicate this order to the concerned learned Trial Court under Chapter XI Rule 8 of the Appellate Side Rules of this Court forthwith for information and necessary action. 18. Lower Court Records with a copy of this judgment to go down forthwith to the Court of learned Trial Judge for information and necessary action. 19. Urgent xerox certified copy of this judgment, if applied for, be supplied to the learned Counsel for the parties, upon compliance of all formalities. Appeal allowed in part.