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2012 DIGILAW 657 (GAU)

Abul Hassan v. State of Tripura

2012-06-02

SUBHASIS TALAPATRA

body2012
JUDGMENT S. Talapatra, J. 1. Heard Mr. K.N. Bhattacharjee, learned Senior Advocate assisted by Mr. Kohinoor N. Bhattacharjee, learned counsel appearing for the petitioners as well as Mr. P. Bhattacharjee, learned Addl. PP appearing for the State respondent. By this petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Cr.P.C. in short), the judgment and order dated 28.02.2004 passed by the learned Additional Sessions Judge, Sonamura, West Tripura, in Crl. Appeal No. 5(3) of 2003 has been challenged. 2. It is pertinent to note that by the said judgment and order dated 28.02.2004, the judgment of conviction and order of sentence of 3 years Rigorous Imprisonment and fine of Rs.2,000/- as passed by the learned Sub-Divisional Judicial Magistrate, Sonamura, West Tripura in G.R. No. 195 of 1998 under Section 394 of the Indian Penal Code (IPC in short) was affirmed. 3. The Prosecution case, as unfolded from the records, in brief, is that on 19.08.1998 one complaint was received that four miscreants made forced entry into the dwelling house of one Smti. Rupiya Begum, the complainant and started looting the inmates including complainant in the said dwelling hut. One of those miscreants fastened the husband of the complainant with a rope by the bamboo pillar within the dwelling hut and pressurised him to aid. Those miscreants also snatched away the golden chain of the daughter-in-law and the silver-made ornaments from the inmates. In the complaint it was further alleged that the miscreants assaulted the daughter-in-law by lathi, fists and blows and thereafter they broke the lock of a drawer so as to take out the golden chain weighing 12 annas, one pair of silver bangle, Rs.300/- in cash, 15 sarees and one radio set. The complainant further disclosed that she could identify two of the miscreants out of the four and she named the miscreants as Abul Hassan and Babul Miah claiming that the miscreants were identified by her by the focus of the torch lights in their hands. 4. On receipt of the complaint, the Sonamura PS registered the case under Section 394 of the IPC and on completion of the investigation, charge-sheet was filed against the four accused persons, namely, (1) Abul Hassan, (2) Khurshed Alam @ Khokan Miah, (3) Jiaur Rahaman @ Bulu Miah and (4) Babul Miah for commission of the said offence. 4. On receipt of the complaint, the Sonamura PS registered the case under Section 394 of the IPC and on completion of the investigation, charge-sheet was filed against the four accused persons, namely, (1) Abul Hassan, (2) Khurshed Alam @ Khokan Miah, (3) Jiaur Rahaman @ Bulu Miah and (4) Babul Miah for commission of the said offence. After taking cognizance and in due course of time, the charge was framed against the four accused persons, namely, (1) Abul Hassan, (2) Khurshed Alam @ Khokan Miah, (3) Jiaur Rahaman @ Bulu Miah and (4) Babul Miah under Section 394 of the IPC. 5. The Prosecution examined as many as 13 witnesses to prove the case and the accused pleaded not guilty and claimed to be tried. On completion of the recording of the Prosecution evidences, the accused persons were examined under Section 313 of the Cr.P.C. but the accused persons did not examine any defence witness. 6. On appreciation of the evidence, learned trial Court returned the finding of conviction against all the accused persons and they were accordingly sentenced to suffer three years RI and with a fine of Rs.2,000/- in default to suffer RI for one month imprisonment. 7. On challenging the finding of the learned trial Court, both the petitioners filed an appeal under Section 374 of the Cr.P.C. being Crl. Appeal No. 5(3) of 2003 on the ground that the learned trial court has failed to appreciate the evidence on record and failed to take note of the fact that the occurrence having taken place at the dead hours of night when there was load shedding, there was no scope of identification along with other ancillary grounds. However, the learned appellate Court was not impressed by those grounds and after elaborate analysis of the evidence, found that those grounds were not sustainable. Accordingly, there has been no interference regarding the finding of the conviction. However, the sentence was modified to only three years RI against the present petitioners only but the other appellants, namely, Khurshed Alam @ Khokan Miah, and Jiaur Rahaman @ Bulu Miah were acquitted on benefit of doubt. 8. Being aggrieved by that judgment and order dated 28.02.2004 as passed in Crl. Appeal No. 5(3) of 2003, Mr. Kohinoor N. Bhattacharjee, learned counsel for the petitioners submits that the content of the FIR i.e. Exbt. 8. Being aggrieved by that judgment and order dated 28.02.2004 as passed in Crl. Appeal No. 5(3) of 2003, Mr. Kohinoor N. Bhattacharjee, learned counsel for the petitioners submits that the content of the FIR i.e. Exbt. 1 cannot be read in the evidence as the said content is barred under Section 162 of the Cr.P.C. Mr. Bhattacharjee emphatically submitted that the information was earlier received by the police from another source and that was entered into the general diary and thereafter they proceeded to the spot where the police had recorded the FIR on the basis of the purported statement of the complainant. As such, the statement that has been recorded by the complainant by its nature and contour is nothing but a statement under Section 161 of the Cr.P.C. Learned counsel to support his contention referred a decision of this Court as rendered in Archcon & Ors. Vs. Sewda Const. Co. & Ors. reported in 2004 (Suppl.) GLT 708 (2005) 1 GLR 526. Mr. Bhattacharjee, learned counsel for the petitioners with sufficient vehemence submitted that identification as accepted by the learned trial Court and the learned appellate Court cannot be accepted in law. Furthermore, he submitted that there is no evidence of hurt and as such the charge under Section 394 of the IPC is to be held as not proved. Learned counsel further agitated that the broken articles such as locks etc. were not seized and there is no other evidence except the oral statement as made by PW-5 in the Court. 9. On the other hand, Mr. P. Bhattacharjee, learned Addl. PP contended before this Court that both the trial Court and the appellate Court have correctly reached to a concurrent finding that there are sufficient evidence against the petitioners to hold that the charge under Section 394 of the IPC has been proved without any shred of doubt. Mr. Bhattacharjee contended that from the evidence of the eye witnesses such as PWs. 1, 2, 5 and 12, it has been well established that the petitioners have committed the offence punishable under Section 394 of the IPC. So far the contention that the statement as recorded by the police officer to be the first information report is hit by the provisions of Section 162 of the Cr.P.C. Mr. 1, 2, 5 and 12, it has been well established that the petitioners have committed the offence punishable under Section 394 of the IPC. So far the contention that the statement as recorded by the police officer to be the first information report is hit by the provisions of Section 162 of the Cr.P.C. Mr. Bhattacharjee submitted that earlier G D. Entry was a mere unspecified information as a measure of law and order situation, the police rushed to the spot where the PW-1 filed the first information report. However, a police officer has recorded the same. As such, the said FIR cannot be stated to have been hit by the provisions of Section 162 of the Cr.P.C. Apart that, Mr. Bhattacharjee submits that PW-8, Dr. B.K. Baidya and PW-11, Dr. R.K. Banik who treated the victim Ali Ahmed (PW-5) and Fatema Begum (PW-2) for the injuries deposed before the Court and corroborated the ocular evidence. 10. On the face of the rival contentions, it appears before this Court that the following points are to be re-appraised on the basis of the evidence as led by the Prosecution. (a) Whether identification of the petitioners are legally sustainable or not? (b) Whether there is any proof of hurt in commission of the robbery? (c) Whether there is any proof of robbery so made available to the learned trial Court indicating that the petitioners were involved in the commission of offence? 11. For that purpose, it is necessary to re-visit the evidence as led by the Prosecution. The complainant, Smti. Rupiya Begum, who deposed as PW-1 in the trial Court stated that dacoits entered into the room by breaking the southern side door of the eastern viti hut wherein all of them were sleeping. At the time of entry they got no sound but when the dacoits attacked them, they became alert and the dacoits forcibly snatched from them the valuable ornaments and goods. The pertinent part of her statement is that "while we went to bed then it was load shedding and through mistake we forgotten to put off the switch of electric light. The dacoits while engaged in continuing the operation, in the mean time the dacoits focussed their torchlight and verified and found those articles were silver ornaments and so they expressed annoyance. The dacoits while engaged in continuing the operation, in the mean time the dacoits focussed their torchlight and verified and found those articles were silver ornaments and so they expressed annoyance. Then one dacoit again told Fatema Bibi that where is your golden chain which you weared on the day of marriage ceremony last Friday. The dacoits also assaulted my husband Ali Ahmed physically and he was pressing hard to give other golden ornaments." Nowhere she stated that by searchlight they could identify the dacoits. Rather, she stated later on, "suddenly light came and then I could able to identify two accd. persons namely Abul Hassan and Babul Miah who are present today in the Court. Before coming of the light, I identified accd. Abul Hassan when he focussed his torch light to verify the articles." She further stated "I have stated to my son that I came to know two accd. persons out of four. Due to the assault by the dacoit my husband received injury and so the neighbouring people shifted him to SNM hospital prior coming of Daragababu." She stated that police officer recorded her oral statement in writing and after writing the complaint that was read over to her and she put her signature. In the cross examination she did not make any statement benefit of which could be taken by the defence. For the purpose of appreciation of the deposition of the PW-1, the first information report is also required to be revisited. In the FIR which was received by the police on 19.08.1998 at about 03.55 hours, the PW-1 stated that she could identify Abul Hassan and Babul Miah by the torchlight of the said accused persons. But the story of return of the electric light is completely absent in the FIR. One Smti. Fatema Khatun who deposed as the PW-2 also corroborated the occurrence of dacoity stated that suddenly power came at the time of breaking of the lock and with the light of the electric bulb we saw the dacoits and the articles. She corroborated that her mother-in-law (PW-1) stated to her son that she had identified Abul Hassan and Babul Miah out of the four dacoits. She further stated at the time of occurrence she could not identify the accused persons but subsequently she had identified them. She corroborated that her mother-in-law (PW-1) stated to her son that she had identified Abul Hassan and Babul Miah out of the four dacoits. She further stated at the time of occurrence she could not identify the accused persons but subsequently she had identified them. She also witnessed to the seizure of one saree but she did not state to whom that saree belonged. In the cross-examination PW-2 admitted that she did not make such statement that the electric lights came back etc. while the statement under Section 161 of the Cr.P.C. was being lodged. PW-2 also admitted that she could not tell the names of the dacoits. She admitted that the police did not seize the broken locker etc. In the cross-examination, she also stated categorically that from whom the said saree was recovered. PW-3, namely, Manu Miah, is a chance witness who corroborated by stating that PW-1 identified Abul Hassan and Babul Miah. But he disclosed a very important fact relating to the identification. He stated in the cross that he appeared after half an hour of the departure of the dacoits and after his appearing at the place of occurrence after about 20/25 minutes, the electricity came back. He categorically stated Rupiya Begum, PW-1, stated him that at the time of occurrence there was load shedding. PW-4, namely, Ali Azzam, who was a relative of the PW-1 corroborated the incidence of dacoity and regarding identification of the two of the dacoits namely Abul Hassan and Babul Miah whose names has stated by the PW-1. He stated in the cross that the PW-1 stated him that there was no electricity light during the first part of the dacoity though these people were the residents of the neighbourhood. They have not stated whether at the relevant point of time there was electricity or not. PW-5, namely, Ali Ahmed, stated that there was dacoity and the dacoits were lighting a search light through which he identified two dacoits. The dacoits took away the golden ear rings and one silver made chain from the ears and neck of his daughter-in-law. He further stated that they physically assaulted him. He also stated that when they were packing all stolen articles, at that moment power came and electric bulbs were lighted up. He also stated that when he went to bed, there was load shedding and they did not switch off the lights. He further stated that they physically assaulted him. He also stated that when they were packing all stolen articles, at that moment power came and electric bulbs were lighted up. He also stated that when he went to bed, there was load shedding and they did not switch off the lights. He categorically stated that through the light of the electric bulbs, he clearly identified the three accused persons, namely, Abul Hassan, Khokan Miah and Bhulu Miah. In the cross-examination he tried to bring a new story that when the bulbs were lighted up, the dacoits tried to switch off the lights. But when confronted, he admitted that there was no such statement recorded by the police. One Jahangir Hussain, PW-6, is a neighbour who appeared after the occurrence and stated as the witness to the seizure of one branch of tree. He did not reveal anything of consequence. One Abul Kasem, PW-7, appeared in the place of occurrence on hearing the hue and cry along with some other persons. He stated that PW-1 disclosed the names of two dacoits as Abul Hassan and Babul Miah. Thereafter, they approached the house of Babul Miah but he was found absent from the house and then they rushed to the house of Abul Hassan and found he was sleeping in an open hut. The police arrested the accused Abul Hassan as per their identification and just after arrest the said accused managed to escape himself from the police custody. Dr. B.K. Baidya, who treated Ali Ahmed on 19.08.1998 was a medical officer of the Sonamura Rural Hospital deposed as PW-8. He categorically stated that the patient did not disclose how he received the pain. One Abdul Khaleque deposed as PW-9 and stated that they were at panchayat office and on hearing hue and cry from the house of Ali Ahmed, he along with many other people proceeded towards the spot. Prior to reaching the spot they found that Ali Ahmed was being taken away towards the hospital through a swing. He stated that Ali Ahmed after 3/4 days disclosed the names of the four dacoits to him. One Sajahan Miah, PW-10, who also accompanied PW-9 to the place of occurrence, stated in a similar fashion. Prior to reaching the spot they found that Ali Ahmed was being taken away towards the hospital through a swing. He stated that Ali Ahmed after 3/4 days disclosed the names of the four dacoits to him. One Sajahan Miah, PW-10, who also accompanied PW-9 to the place of occurrence, stated in a similar fashion. He stated that Abul Kasem proceeded to the police station to inform the matter and within a short while police came and then Abul Kasem's mother narrated the occurrence to the police and the police recorded her statement. He stated that police rushed immediately to the residence of Babul Miah and Abul Hassan and Abul was found sleeping in his hut and he was arrested. But he escaped the custody of the police within moments. In cross, he stated that PW-1 disclosed the names of Babul Miah and Abul Hassan to the police officer in his presence. When confronted he stated to the police that the police arrested the elder brother of Abul Hasan, but he denied to have made such statement. However, such statement was found available and the same was marked as Exbt. A. Dr. Ram Krishna Banik, who was at the relevant point of time posted in Melaghar Hospital appeared as PW-11 and stated that he treated Fatema Begum on 22.08.1998. In the cross he admitted that there was no reference of any case in the injury report. PW-12, namely, Smti. Sufia Khatun, was one of the witnesses of the occurrence who stated that the dacoits raided their house and they were using three torch lights. They assaulted Ali Ahmed, PW-5 and tied him with a post by rope. Out of pain Ali Ahmed was saying the dacoits to take all the articles but not to assault him. At the time of recording her deposition, she categorically stated that by the electric bulb they had identified all the four dacoits who were present in the attack. Nowhere she stated that they could identify the dacoits by the search lights. In the cross though she stated that dacoits were having torchlight but nowhere she stated that anyone could identify by the torchlight She stated that in presence of her and in presence of other persons, PW-1 disclosed the names of the dacoits to the police personnel. Nowhere she stated that they could identify the dacoits by the search lights. In the cross though she stated that dacoits were having torchlight but nowhere she stated that anyone could identify by the torchlight She stated that in presence of her and in presence of other persons, PW-1 disclosed the names of the dacoits to the police personnel. The Investigating Officer, namely, Dhiraj Laskar, deposed as PW-13, who stated that Sonamura Police Station received an information of hue and cry at Khedabari and accordingly the said incident was recorded in the GD Entry No. 747 on 18/19.08.1998 at 03.00 hours and as per direction of the Officer-in-Charge of the Sonamura PS he rushed to the spot. After arrival at the spot he talked to the local people who intimated him that incident of dacoity took place in the house of one Ali Ahmed. The wife of Ali Ahmed, Smti. Rupia Begum narrated the incident, which he recorded and on having the contents of the same read over to her, he obtained the signature of Smti. Rupia Begum on the ejahar since that was disclosing the cognizable offence. He visited the place of occurrence and prepared the hand sketch map with separate index and he seized two Nos. of kuchra tree from the place of occurrence and raided the house of Babul Miah and Abul Hassan but Abul Hassan fled on seeing the police and Babul Miah was not found at his residence. He also seized one stolen sharee as identified by Abul Kasem, thereafter, he conducted the investigation and on completion filed the charge-sheet against the four accused persons, namely, (1) Abul Hassan, (2) Khurshed Alam @ Khokan Miah, (3) Jiaur Rahaman @ Bulu Miah and (4) Babul Miah under Section 394 of the IPC. The IO has confirmed that a sharee was seized from the drawer of Abul Hassan in presence of the witnesses. He categorically denied the suggestion in the cross examination that the seizure was made in the police station. In this context, the seizure list (Exbt. 3) by which that sharee of PW-1 was seized can be noticed. The place of seizure has been shown at North Aralia on 19.08.1998 in the house of accused Abul Hassan son of Shri Abdul Mazid. 12. Now, on analysis of the evidence as briefly recorded, it would appear that the objection as raised by Mr. 3) by which that sharee of PW-1 was seized can be noticed. The place of seizure has been shown at North Aralia on 19.08.1998 in the house of accused Abul Hassan son of Shri Abdul Mazid. 12. Now, on analysis of the evidence as briefly recorded, it would appear that the objection as raised by Mr. Bhattacharjee, learned counsel for the petitioners that the FIR is hit by the provisions of Section 162 of the Cr.P.C. does not hold any force as the IO has categorically stated that they received an information that there was hue and cry at Khedabari and that information did not disclose any cognizable offence or any offence at all. After reaching nearby a place of the occurrence they got information from the villagers that there had been an incident of dacoity and they immediately rushed to the residence of PW-5 where they recorded the ejahar as narrated by the PW-1 who thereafter duly signed having been satisfied that the said ejahar was written as per her dictation. As such, even though the said statement is signed by the PW-1, that cannot be stated that the statement was recorded under Section 161 of the Cr.P.C. and as such by obtaining the signature thereon the police officer committed illegality and the statement is hit by the provisions of Section 162 of the Cr.P.C. 13. The question relating to the identification of the accused person holds some force to make a fresh analysis. Except PW-1 none stated that they could identify the accused person by the flashes of the torch lights which the dacoits were using. Even the PW-12 categorically stated that they could not identify the dacoits till the electricity came back. Regarding the coming back of the electricity, there is much doubt as none of the neighbours told that they rushed to the place of occurrence when the electricity came but PW-3 has given a definite reference of coming of the electricity back in that area which cannot be brushed aside because that person has not destroyed the prosecution case or shown any inclination towards the defence. As such, the identification of the dacoits at the place of occurrence is not free from doubt and clear two versions are possible. Learned counsel for the petitioners rightly relied a decision of the apex Court in Epoch Enterrepots Vs. As such, the identification of the dacoits at the place of occurrence is not free from doubt and clear two versions are possible. Learned counsel for the petitioners rightly relied a decision of the apex Court in Epoch Enterrepots Vs. M. V. Won Fu as reported in AIR 2003 SC 27. Apart that, the police failed to conduct any Test Identification Parade for identification of the accused persons after their arrest. Though PW-1 did not disclose anything how the petitioners were acquainted to her but from the evidence of the other witness, it appears that the petitioners are the co-villagers of PW-1. As such, the identification is not an improbable one. Even if the identification is questioned, the recovery of the stolen sharee from the drawer of Abul Hassan in presence of the witnesses cannot be questioned since the sharee was definitely identified by PW-7 who stated in the cross that the very sharee was presented to his wife at the time of his marriage ceremony. 14. The defence did not discharge their duty under Section 106 of the Evidence Act how the stolen sharee had come to the drawer of the Abul Hassan and as such presumption under Section 114 read with illustration has to come into play and presumption has to be drawn against the petitioner Abul Hassan. From the circumstances and from the consequences of the raids and seizure immediately after the occurrence the chain of circumstantial evidence is complete, so far the charge against the Abul Hassan is concerned, it has to be held that Abul Hassan was one of the dacoits who raided the house of the PW-5 and looted away and destroyed the properties. The other question that has been raised by the learned counsel for the petitioners that there is no proof of hurt cannot be accepted by the court that on the same day PW-5 was hospitalized, after a fraction of the hour of the occurrence and he was hospitalized for three days for the hurt that he received during the occurrence. Mere non-recording of the reason of the hurt in the medical report would not render the evidence absolutely of no consequence. That piece of evidence has to be understood in the context of other evidence as has been led by the prosecution. 15. Mere non-recording of the reason of the hurt in the medical report would not render the evidence absolutely of no consequence. That piece of evidence has to be understood in the context of other evidence as has been led by the prosecution. 15. Since this Court has expressed doubt about the identification of the dacoits by torch light or by the electric bulb, the involvement of the petitioner No. 2, namely, Babul Miah in commission of offence under Section 394 of the IPC has to be held not established beyond shred of doubt. As such, the petitioner No. 2, namely, Babul Miah is given the benefit of doubt and acquitted from the charge. The impugned Judgment of conviction and order of sentence against the petitioner No. 2 namely, Babul Miah is therefore set aside. The judgment of conviction and order of sentence as modified by the learned Addl. Sessions Judge, Sonamura, West Tripura is maintained by this Court so far the petitioner No. 1, Abul Hassan is concerned. Accordingly, the sureties so far the Petitioner No. 2, namely, Babul Miah is concerned, are discharged from their obligation. The petitioner No. 1, namely, Abul Hassan shall surrender before the learned trial Court forthwith to suffer the sentence. Accordingly, the instant criminal revision petition is allowed partly and is disposed of. Return the LCR forthwith.