Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 1514 (CAL)

Jiaruddin v. STATE OF WEST BENGAL

2011-12-14

KANCHAN CHAKRABORTY

body2011
JUDGMENT: KANCHAN CHAKRABORTY, J. 1. THIS appeal is directed against the order of conviction and sentence under Section 411 of Indian penal Code dated 20.3.1985 passed by the learned Sessions Judge, Hooghly, whereby the appellants were sentenced to suffer R.I. for one year each. 2. ON 6.5.1981 while wife of Dussashan Jana was sleeping in her room with children, 10 to 12 dacoits entered into the house, tied up Kalipada Karmakar (P.W. 13) who was sleeping on Varandah and asked Archana Jana (P.W. 1), the wife of Dussashan, to open the door. Archana refused to 2 open the door and the dacoits cut the frame of the door by axe and entered into the room. They threatened Archana and demanded cash and valuables etc. from her. When the P.W. 1 Archana said that there was no cash money in the house, the dacoits assaulted her and broken her two teeth. They ransacked the house and looted away house hold articles and left the place. Being attracted by the hue and cry raised by the P.W. 1 Archana, local people assembled there and were informed about the incident. On the next morning, one F.I.R. was lodged with local police station. The case was registered as Polba P.S. case no. 6 dated 6.5.1981. The case was investigated into and ultimately charge-sheet was filed under Sections 395 and 397 of I.P.C. against six accused persons including these two appellants. One of the accused persons died in course of trial. One of the accused was acquitted at the time of framing of charges. Remaining four accused persons including these two appellants were arrayed to face the charges under Section 395/397 and 412 of I.P.C. to which they pleaded not guilty and claimed to be tried. Accordingly, the trial commenced. In all, 23 witnesses were examined on behalf of he prosecution. The report of T.I. Parade, the seizure lists, F.I.R., rough sketch map of Place of occurrence and other documents were admitted into evidence on behalf of the prosecution and marked Ex. No witness was examined on behalf of the defense. 3. THE learned Court, upon consideration of the evidence on record found that the out of four accused persons these two appellants committed the offence 3 under Section 411 of I.P.C. Accordingly, the learned Trial Court recorded their conviction and passed the sentence for suffering R.I. for one year. No witness was examined on behalf of the defense. 3. THE learned Court, upon consideration of the evidence on record found that the out of four accused persons these two appellants committed the offence 3 under Section 411 of I.P.C. Accordingly, the learned Trial Court recorded their conviction and passed the sentence for suffering R.I. for one year. The appellants preferred this appeal challenging the sustainability of the judgement, mainly, on the following grounds : a) that the learned Court failed to appreciate the evidence in its proper and correct perspective; b) that the learned Court failed to take note of the fact that seizure of the alleged stolen articles was not established in accordance with law; c) that the learned Court also failed to take note of the fact that the charge was not properly framed; and d) that the judgement impugned being otherwise bad in law, is not sustainable. 4. MR. Pratik Bhattacharya, Learned Amicus curiae appointed for the appellants contended that the facts averred in the F.I.R. have not been corroborated by the lodger of the F.I.R. Smt. Archana Jana, the lodger of the F.I.R. has been examined as P.W. 1. She stated in the F.I.R. that at the relevant night she was sleeping inside the room with her children while Kalipada Karmakar was sleeping in the Varandah. She heard some odd sounds from the Varandah and also heard sound of dashing the door of her room. She was scared and did not open the door. She could understand that the door was broken by some persons who entered into the room and assaulted her with lathi. They ransacked the room and 4 demanded money, golden ornaments etc. from her. When she could not hand over the money and golden ornaments, the dacoits assaulted her and kicked on her face. They took away all the house hold articles and left the place. Co-villager assembled on the spot hearing her alarm to whom she narrated the incident. 5. IN course of her examination, the P.W. 1 Archana stated that on the relevant date and time while she was sleeping inside the room with her children and Kalipada was sleeping out side the room, 12 dacoits entered into the house, tied Kalipada and thereafter dashed the door of her room. First of all, they threatened her and thereafter cut the door open. They demanded cash from her. First of all, they threatened her and thereafter cut the door open. They demanded cash from her. When she said that there was no cash with her, they assaulted her and as a result, two of her teeth were broken. Thereafter, those dacoits took away her house hold articles, ornaments she had. Thereafter, she raised alarm when the miscreants left. Local people assembled and she narrated the incident to them. In the next morning, she went to police station with Nilu Ray and lodged the F.I.R. She also identified the appellant Jiaruddin Sk. in T.I. Parade. She could not recognized any other dacoits. She also identified the stolen utensils placed before her at the time of her examination which were marked material Ex. 2, Ex. 3, Ex. 4 and Ex. 5. On careful perusal of the cross-examination of P.W. 1 it appears that she reiterated that she was assaulted by the dacoits when they entered into the room by breaking open the door. She denied that any of the persons arrested in connection with the case was shown to 5 her in the police station. It appears that her testimony supporting the case of prosecution remained unsankened and she faced the text of cross-examination confidently. The P.W. 2,3,4,5 and 7 are local people who found the door of room of P.W. 1 broken and that police official arrived there and seized same articles there-from. 6. THE P.W. 8 is a seizure witness in respect of Kansha plate and one torch light from the house of Sambu. 7. THE P.W. 9 and P.W. 10 are also seizure witnesses in respect of same articles. Sambhu has been acquitted by the learned Trial Court. Therefore, the evidence of P.W. 8, 9 and 10 are not required to be discussed. 8. THE P.W. 11 is a witness to the seizure in respect of some stolen utensils from the house of the appellants. He identified his signatures on the seizure lists which were marked Ex. 5/1 and 6/1. The P.W. 11 was declared hostile by the prosecution and he denied in course of his cross-examination that he stated the I.O. that in his presence house of appellants were searched and the utensils mentioned in the seizure list were recovered from their houses in his presence. 9. THE P.W. 12 is also a witness to the seizure of utensil from the house of the appellant. 9. THE P.W. 12 is also a witness to the seizure of utensil from the house of the appellant. He identified his signatures on the on the seizure lists which were marked Ex. 5/2 and 6/2. He denied that he had been to the house of the appellants with the police and witnessed the seizure. He has stated that he was asked to sign some papers and accordingly, he put his signatures. He was also declared hostile by the prosecution and was cross-6 examined by the learned Public Prosecutor. He denied all the suggestions put to him by the prosecution in course of his cross-examination. The P.W. 13 Kalipada Karmakar is an important witness in this case. He stated that as advised by the husband of P.W. 1 he was sleeping on the varandah of the house of Dussashan as he gone out of village for the night. He also stated the wife of Dussashan i.e. P.W. 1, was sleeping inside the room with children. At about 2 A.M., Kalipada woke up hearing hue and cry. He was rapped up and tied up by some dacoits who threatened him not to shout. They had dragger with them. He heard the sound of cutting the door of Dusshasan. The dacoits broke open the door, assaulted wife of Dusshasan and looted away valuables and articles from her room. When the dacoits left the place, he found that wife of Dussashan lost two teeth. In the next morning, police officials came and seized some articles. He was interrogated also. The P.W. 13 was not at all cross-examined by the defense. 10. THE P.W. 14 is Dussashan Jana, the husband of the P.W. 1. He was not in the scene at the relevant time. Therefore, his evidence is not at all important excepting the part of his evidence whereby he identified the theft utensils produced before him in course of trial. 11. THE P.W. 15, P.W. 16, P.W. 17, P.W. 18 and P.W. 19 are co-villagers and have stated that there was a dacoity in the house of Dussashan in his absence. Utensils and house hold articles were looted. The wife of Dussashan was also assaulted by dacoits. 7 12. THE P.W. 20 is the police official who raided the house of the appellants and recovered some stolen utensils in presence of witnesses. He also identified the seizure list which was marked Ex. 6. Utensils and house hold articles were looted. The wife of Dussashan was also assaulted by dacoits. 7 12. THE P.W. 20 is the police official who raided the house of the appellants and recovered some stolen utensils in presence of witnesses. He also identified the seizure list which was marked Ex. 6. In course of his cross-examination the P.W. 20 was not asked any question whatsoever even in suggestion form as to whether the P.W. 10 and P.W. 11 were present at the time of seizure or not. No question concerning the presence of P.W. 11 and P.W. 12 at the time of seizure was put to him as if the fact of seizure was done in presence of the P.W. 11 and P.W. 12 was not disputed. 13. THE P.W. 21 searched the house of another appellant together with the P.W. 20. He identified the Ex. 6. He was not also asked any question, whatsoever, by the appellants in course of his cross-examination regarding the manner of seizure and presence of P.W. 11 and P.W. 12 at the time of seizure. 14. THE P.W. 23 is the I.O. of the case who conducted the T.I. Parade and submitted charge-sheet. He was confronted by the defense in course of investigation but, no question was put to him by the defense regarding the seizure of theft articles from the possession of the appellants. 15. MR. Bhattacharya, learned Amicus curiae appearing for the appellants contended that the charge was not correctly framed and, as such, the appellants were highly prejudiced. I do not conceed to such proposition of Mr. Bhattacharya. There is nothing wrong in framing of charge under Section 395, 397 and 412 of I.P.C. The Section 395 I.P.C. refers to commission of offence dacoity while Section 397 of I.P.C. refers to dacoity 8 with attempt to cause death and grievous hurt. Section 412 refers to an offence of dishonestly receiving stolen property knowing that it was obtained by dacoity. Each offences are distinct, separate and can well be tried together or separately. Question of being prejudiced by the accused in such a case does not arise. 16. A careful perusal of the judgement impugned as well as the evidence recorded by the learned Trial Court it appears clearly that the learned Court believed the prosecution case of seizure but disbelieved the prosecution case of dacoity as against the appellants. Question of being prejudiced by the accused in such a case does not arise. 16. A careful perusal of the judgement impugned as well as the evidence recorded by the learned Trial Court it appears clearly that the learned Court believed the prosecution case of seizure but disbelieved the prosecution case of dacoity as against the appellants. The alleged seizure of stolen utensils was done by P.W. 20 and P.W. 21. The P.W. 20 and P.W. 21 have categorically stated that they seized the utensils mentioned in the seizure list (Ex. 6) in presence of witnesses and those were placed before the Court in course of trial. The witnesses identified the utensils. The evidence of the P.W. 1 and P.W. 13 (Dussashan) in this regard is very important and in my view, is acceptable and believable. The P.W. 20 and P.W. 21 were not asked by the defense at any point of time in course of their cross-examination about the manner of seizure, preparation of seizure list and presence of P.W. 11 and P.W. 12. That part of statement of the P.W. 20 and P.W. 21 remained unchallenged in the trial. The P.W. 11 and P.W. 12, however, identified their signatures on the seizure list. Although they were declared hostile by the prosecution, taking their evidence, signatures of the seizure list and uncontroveted statement of P.W. 20 and P.W. 21, the learned Court has come to a conclusion that 9 those articles which were stolen from the house of the P.W. 13 Dussashan, were recovered by police from the houses of the appellants. I find justified reason for the learned Trial Court to come to such a findings and there is no reason to upset that finding of the Court in this appeal. 17. THE learned Amicus Curiae, Mr. Bhattacharya has also contended that the broken teeth and broken door were not placed before the Court as material evidence. I do not find that non-production of those articles has affected the merit in the prosecution case in any manner. The fact that the stolen utensils were recovered from the houses of the appellants has been established by sufficient and satisfactory evidence. They failed to give any explanation about their possession over those utensils. I do not find that non-production of those articles has affected the merit in the prosecution case in any manner. The fact that the stolen utensils were recovered from the houses of the appellants has been established by sufficient and satisfactory evidence. They failed to give any explanation about their possession over those utensils. The seizure was established and, as such, there was nothing wrong on the part of the learned Trial Court to record conviction of the appellants under Section 411 of I.P.C. 18. IN view of discussion above, I find that the appeal should be dismissed. 19. HOWEVER, considering the fact that a period of 30 years has already been lapsed from the initiation of the case, I reduce the sentence by way of modification to the effect instead of suffering R.I. for one year, it would be justified if the appellants pay a fine of Rs. 1000/- each within a period of six months from the date of communication of the order. 20. THE appeal fails. The order of suffering imprisonment is modified to the extent that the appellants who were found guilty of offence under Section 10 411 of I.P.C. are to pay a fine of Rs. 1000/- each within six months from the date of communication of the order. 21. THE learned Trial Court is directed to take necessary action in the matter of realization of fine. 22. THE appeal stands disposed of. 23. MR. Pratik Bhattacharjee, the learned Advocate of this Court rendered a very strenuous and tremendous job as Amicus Curiae for the appellants. He deserves a token remuneration for the job he rendered as Amicus Curiae. The Secretary, High Court Legal Service Authorities is directed to pay Rs. 1000/- to Mr. Bhattacharjee for his job within a shortest possible time.