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2011 DIGILAW 214 (CAL)

Rabiyal Mondal v. The State of West Bengal

2011-02-15

KALIDAS MUKHERJEE, MD.ABDUL GHANI

body2011
JUDGMENT :- Kalidas Mukherjee, J.: 1. This appeal is directed against the judgment of conviction and sentence passed by learned Sessions Judge, Bankura in Sessions Trial No. 3(6) of 1993 arising out of Sessions case No. 7 (3) of 1993 sentencing each of the appellants to suffer R.I. for eight years and to pay fine of Rs.600/-in default to suffer R.I. for six months under Section 392 Part-I of the Indian Penal Code. 2. The prosecution case, in short, is that on 27.3.1992 at about 10.00 P.M. the informant along with others, in all 55 persons boarded a reserved bus bearing No. 2706 and were proceeding to Calcutta to attend a meeting of the CPI (M) party at Brigade Parade Ground. At about 11.45 P.M. when the bus came near Leprosy Colony at Peardoba, the road was found obstructed with boulders and pipes. The driver slowed down the speed of the vehicle. In the light of the bus it was found that 2/3 persons were rushing towards the bus and they hurled a bomb to the left side of the cabin of the bus. The driver had to stop the bus. The glass-panes of the windows of the bus were smashed. Those persons were pelting stones through the windows of the bus and began to show the sharp cutting weapons like bhojali, tangi etc. through the windows. The passengers sitting at the window side received injuries. Ultimately, the gate of the bus was opened and a person got into the bus with a bhojali. Thereafter another man, named, Shanti was called who also got into the bus with a bhojali in his hand. The second man began to collect the articles from the passengers. Out of fear the passengers began to hand over their belongings whatever they had with them. They took the wrist watches, ear rings made of gold and silver, some nose rings, sarees etc, worth Rs.25,000/-. In the meantime another bus from Bibarda came there with the police. After arrival of police those persons fled away to the jungle in the eastern side. The dacoits were five in number. 3. After investigation the charge sheet was submitted. The learned Trial Judge framed charge under Section 395 I.P.C. against five accused persons & under Section 412 against three accused persons. The accused persons pleaded not guilty and claimed to be tried. 4. The dacoits were five in number. 3. After investigation the charge sheet was submitted. The learned Trial Judge framed charge under Section 395 I.P.C. against five accused persons & under Section 412 against three accused persons. The accused persons pleaded not guilty and claimed to be tried. 4. The learned Trial Judge after consideration of the materials on record passed the sentence as stated above holding that the evidence regarding recovery of wrist watches and all the incriminating weapons could not be relied upon. The learned Judge thus held that the charge under Section 412 I.P.C. was not proved. The learned Trial Judge held that there was no incriminating material at all against accused Sukur Ali and thus acquitted him of the charge under Section 395 I.P.C. The learned Trial Judge ultimately convicted four accused persons Rabiyal Mondal, Hyder Ali Khan, Golam Mondal and Sk. Anwar Ali Mondal and passed the sentence as stated above under Section 392 Part–I, Indian Penal Code. 5. Mr. Mitra appearing for the appellants submits that none of the injured persons has been examined by the doctor and there is no injury report. It is contented that P.W. 1 was taken to the house of Golam and in this way the accused was shown to the witness and, as such, the T.I. parade was meaningless in the eye of law. It is submitted that from the evidence of the P.Ws it would appear that subsequently another bus allegedly came there along with a truck carrying the police officers. Mr. Mitra contends that the arrival of police in a truck is not credible at all. It is contended that no label was pasted on the articles alleged to have been seized. Mr. Mitra submits that P.W. 7 and P.W. 8 are the partymen of C.P.I.(M) as told by P.W. 1 and, therefore, the identification made by them cannot be believed. Mr. Mitra submits that the F.I.R. was lodged on 28th March, 1992 and the F.I.R. was received by the learned Magistrate on 30.3.1992. Mr. Mitra contends that this delay in sending the F.I.R. to the court speaks of embellishment and fabrication. 6. Mr. Dutta Gupta appearing on behalf of the State submits that while convicting the appellants under Section 392 I.P.C. the learned Trial Judge relied on the evidence of P.W. 7 and P.W. 8. It is contended that both these P.Ws. Mr. Mitra contends that this delay in sending the F.I.R. to the court speaks of embellishment and fabrication. 6. Mr. Dutta Gupta appearing on behalf of the State submits that while convicting the appellants under Section 392 I.P.C. the learned Trial Judge relied on the evidence of P.W. 7 and P.W. 8. It is contended that both these P.Ws. identified the suspects in the T.I. parade and there is no ground to disbelieve the evidence regarding the T.I. parade held by the learned Magistrate. It is contended that the defence did not deny the snatching away of the articles from the passengers after the bus was intercepted by the miscreants. It is submitted that there was no denial about the bus coming to attend the party meeting at Brigade Parade Ground. Mr. Dutta Gupta further submits that the defence did not suggest to the P.Ws that out of political rivalry the case was falsely lodged. It is submitted that no explanation was given either in cross-examination of the P.Ws or in the statement of the accused under Section 313 Cr.P.C. It is submitted that P.W. 1, P.W. 2 to P.W.5 were all the passengers of the bus and they have categorically stated that their belongings were snatched away and they were threatened with dire consequences. Mr. Dutta Gupta submits that there is no ground to interfere with the findings of the learned Trial Judge. 7. From the evidence on record and the judgment of the learned Trial Court it appears that the learned Judge did not rely on the post occurrence seizure of articles. The learned Trial Judge also observed that there was no T.I. Parade of articles. Since the alleged recovery of articles was not relied upon, the charge under Section 412 I.P.C. was not proved. Out of the five accused persons against whom the charge was framed under Section 395 I.P.C. accused Sukur Ali was found not guilty of the charge under Section 395 I.P.C. and the learned Judge ultimately held the appellants guilty under Section 392 Part – I, Indian Penal Code. 8. Out of the five accused persons against whom the charge was framed under Section 395 I.P.C. accused Sukur Ali was found not guilty of the charge under Section 395 I.P.C. and the learned Judge ultimately held the appellants guilty under Section 392 Part – I, Indian Penal Code. 8. As regards the alleged incident it is in the evidence of P.W. 1, P.W. 2, P.W. 7 and P.W. 8 that the bus started at about 9.30 P.M. from Taldangra & near the Leprosy Colony at Peardoba there was obstruction by boulders and cement pipes on the road and, as a result, the bus was stopped. It is also in evidence that bomb was hurled and the window panes of the bus were smashed. It is in evidence that the miscreants were armed with bhojali, lathi, torch and they threatened the passengers with dire consequences. The P.Ws have also stated that the miscreants entered inside the bus and forcibly took away the personal belongings, namely, cash, wristwatch etc. Since the learned Trial Judge held that the charge under Section 412 I.P.C. was not proved and the State having not preferred any cross appeal, we are not entering into the alleged seizure and recovery of articles. 9. It is the case of the prosecution that the suspects were identified by the witnesses. In this regard the learned Trial Judge held that the suspects were shown to P.W. 1 and P.W. 2 and, as such, the learned Trial Judge did not rely upon the identification made by P.W. 1 and P.W. 2. The learned Trial Judge relied on the evidence of P.W. 7 and P.W. 8 so far as the identification of the suspects is concerned. 10. P.W. 7 and P.W. 8 are the disinterested persons. P.W. 7 has stated that he is a businessman at Taldangra and does not belong to any political party. It is in his evidence that on 27.3.1992 he was going to Calcutta in connection with his business by a bus hired by the supporters of CPI (M) party from Taldangra. He has also stated about the interception of the bus and the snatching away of articles from the passengers of the bus. He attended the T.I. parade twice. It is in his evidence that he identified Hyder Ali, Ansur and Golam. He has also stated about the interception of the bus and the snatching away of articles from the passengers of the bus. He attended the T.I. parade twice. It is in his evidence that he identified Hyder Ali, Ansur and Golam. P.W. 13, the learned Judicial Magistrate has stated in his evidence that P.W. 7 (Dhirendra Nath Santra) identified Ansur Ali Khan as a person who boarded the bus; this witness also identified Hyder Ali as the person who was pulling the passengers out of the bus. He has stated that this witness identified Golam as the person who was searching the passengers of the bus and snatching their belongings.P.W. 7 has further stated that on the second occasion he identified the miscreant Rabiyal Mondal as the person who entered into the bus with a bhojali in his hand. 11. P.W. 8 has stated that he attended the T.I. parade to identify the miscreants. He identified three persons in the T.I. parade, namely, Hyder Mondal, Golam Mondal and Ansur Ali Khan. P.W. 13 has stated that during identification witness Asish Chatterjee stated that Hyder entered into the bus with a bhojali; Ansur and Golam were hitting the window glass of the bus. 12. P.W. 9 has stated that on 27.3.1992 at night he was going to village Saldah by a motorcycle along with his friend Sujay; when he was proceeding near Peardoba, Leprosy Colony, he was robbed of the wrist watch and cash of Rs.150/- from his possession. 13. P.W. 11 was also a passenger of the said bus and he has stated that the miscreants entered into the bus and took away cash, wrist watch etc. 14. P.W. 12 also corroborated P.W. 11. 15. P.w. 14, a teacher of Chandkuri Primary School was also a passenger of the said bus. He also corroborated P.W. 11 and P.W. 12. He has stated that the miscreants took away cash of Rs.400/- and Anglo Swiss wristwatch from his possession. 16. P.W. 16 has stated that the miscreants took away his wristwatch. 17. On perusal of the evidence of P.Ws it is clear that the appellants were identified by P.W. 7 and P.W. 8 in the T.I. parade held by the learned Judicial Magistrate. The learned Judicial Magistrate was examined as P.W. 13. He has stated in details about the manner of holding the T.I. parade. 17. On perusal of the evidence of P.Ws it is clear that the appellants were identified by P.W. 7 and P.W. 8 in the T.I. parade held by the learned Judicial Magistrate. The learned Judicial Magistrate was examined as P.W. 13. He has stated in details about the manner of holding the T.I. parade. He further stated that the T.I. parade was held precluding all possibilities of collusion. There is no discrepancy in the evidence of P.W. 7 and P.W. 8. Nothing has been elicited in their cross-examination which would cast any shadow of doubt on the veracity of their testimony. Under such circumstances, we are of the considered view that the learned Trial Judge was justified in placing reliance on the identification of suspects made by P.W. 7 & P.W. 8 before the learned Magistrate holding the T.I. parade. It is also clear from the evidence of the P.Ws that the bus was intercepted by placing boulders and pipes and after the bus stopped, the appellants entered the bus and snatched away the belongings of the passengers. It is also in evidence that the appellants were armed with deadly weapons and they exploded bombs. It is clear that the appellants put the passengers of bus under fear of instant death. 18. As regards the contention of Mr. Mitra regarding the delay in sending the F.I.R. to the learned Magistrate, we find that the complaint was received at Leprosy Colony, Peardoba on 28.3.1992 at 5.35 hours and it was forwarded to O.C. Taldangra P.S. for starting a case under Section 395 I.P.C. The complaint was received at the P.S. on the same day at 8.15 hours and the Taldangra P.S. case No. 8 dated 28.3.1992 was started. The F.I.R. was sent to the learned Magistrate on 30.3.1992. 19. Mr. Mitra contends that the delay in forwarding the F.I.R. to the learned Magistrate shows embellishment and fabrication. We are of the considered view that if any delay is caused in sending the F.I.R. to the learned Magistrate it would not, ipso facto, throw out the prosecution case. It is to be seen whether evidence led by the prosecution is otherwise trustworthy and free from any doubt. In the instant case we find that there is clinching evidence regarding the commission of the offence under Section 392 Indian Penal Code by the appellants. It is to be seen whether evidence led by the prosecution is otherwise trustworthy and free from any doubt. In the instant case we find that there is clinching evidence regarding the commission of the offence under Section 392 Indian Penal Code by the appellants. Therefore, the delay in sending the F.I.R. to the learned Magistrate, as pointed out by Mr. Mitra, would not cast any shadow of doubt on the veracity of the prosecution case. 20. On perusal of the evidence on record and having heard the learned Counsel for the parties, we are of the considered view that the learned Trial Judge was justified in passing the impugned judgment of conviction and sentence and there is no ground to interfere with the findings of the learned Trial Judge. There is no merit in this appeal. The appeal is dismissed. 21. The appellants are directed to surrender before the learned Trial Court within one month from the date of communication of this order to serve out the sentence. 22. Let a copy of this judgment along with the lower Court records be sent down to the learned Trial Court immediately. 23. Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.