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2012 DIGILAW 970 (CAL)

Md. Raju v. STATE OF WEST BENGAL

2012-10-18

KANCHAN CHAKRABORTY

body2012
Judgment :- Kanchan Chakraborty, J. The Appeal, being C.R.A. 292 of 2010, has been preferred by Md. Raju and the Appeal, being C.R.A. 490 of 2010, has been preferred by Md. Salim alias Israil. Both of them together with others were found guilty of the offences under Sections 398 and 324/34 of the Indian Penal Code in Sessions Trial No. C/424/2005. By the judgment dated 28.04.2012, the learned Additional Sessions Judge, Fast Track Court No. 1, Howrah, recorded their conviction and sentence. Md. Raju was sentenced to suffer Rigorous Imprisonment for seven years and to pay fine of Rs.2,000/-for the offence punishable under Section 398 of the Indian Penal Code and further sentence to suffer Rigorous Imprisonment for three years and to pay fine of Rs.1,000/-for the offences punishable under Sections 324/34 of the Indian Penal Code. The appellant Md. Salim alias Israil was similarly sentenced for the same offences. Since they challenged the same judgment whereby they were convicted, this Court proposes to dispose of both the appeals by this common judgment. On 27.02.2005, at about 2.35 A.M., four miscreants entered into the house of Puranmal Agarwal with arms and ammunitions. They threatened Smt. Gayatri Agarwal, wife of Puranmal Agarwal, who raised hue and cry and Bhagwati Agarwal, brother of Puranmal Agarwal, who came out and saw the miscreants standing in front of the door of his bedroom on the first floor. The miscreants threatened him at the point of firearms and chopper, but Bhagawati jumped on one of them and caught hold of him. Bhagawati was assaulted by the miscreant badly. In the meantime, Puranmal Agarwal and others came out of their rooms but three other miscreants escaped after opening the western door of the ground floor. The miscreant, who was apprehended, had a scuffling with Bhagawati and, as such, both of them fell down from the last stair of the ground floor. The miscreant as well as Bhagawati both received injuries due to such fall. A bomb, which was being carried by the miscreant, exploded at that time. The said miscreant and Bhagawati received injuries due to blasting of bomb. Police was informed and the miscreant, who was apprehended, was handed over to police with firearms and ammunitions. Arrangement for medical treatment was made. The miscreant disclosed his name as Md. Salim alias Israil. A bomb, which was being carried by the miscreant, exploded at that time. The said miscreant and Bhagawati received injuries due to blasting of bomb. Police was informed and the miscreant, who was apprehended, was handed over to police with firearms and ammunitions. Arrangement for medical treatment was made. The miscreant disclosed his name as Md. Salim alias Israil. He was aged about 20 years while the miscreants who could escape were having average age of 30 years. Puranmal Agarwal lodged one First Information Report with the Howrah Police Station stating the facts above, which was registered as Howrah Police Station Case No. 37 of 2005 dated 27.02.2005 under Sections 398 and 324 of the Indian Penal Code read with Sections 25/27 of the Arms Act. In course of investigation, Test Identification Parade of the miscreants was held. Arms and ammunitions were recovered and examined by expert. The available witnesses were examined by the Investigating Officer of the case. Investigation ended in a charge sheet. The appellants together with five others were arrayed to face charges under Sections 398 and 324/34 of the Indian Penal Code, to which they pleaded not guilty. As a consequence, the trial commenced. As many as eleven witnesses were examined on behalf of the prosecution. F.S.L. Report, Injury Report of Bhagawati, Injury Report of the appellant, Md. Salim, the First Information Report, Test Identification Parade Report, rough sketch map of the place of occurrence, seizure list, etc. were admitted into evidences and marked exhibits 1 to 10 on behalf of the prosecution. That apart, pipegun, cartridges, sealed packet and label thereon, wearing apparels, padlock with chain, etc. were produced in Court, identified by witnesses, admitted into evidence and marked material exhibits on behalf of the prosecution. No witness was examined on behalf of the defence. In course of examination under Section 313 of the Code of Criminal Procedure they simply pleaded their innocence without making out any specific plea or taking any specific alibi. were produced in Court, identified by witnesses, admitted into evidence and marked material exhibits on behalf of the prosecution. No witness was examined on behalf of the defence. In course of examination under Section 313 of the Code of Criminal Procedure they simply pleaded their innocence without making out any specific plea or taking any specific alibi. The learned Trial Court upon consideration of the evidence on record, oral and documentary, came to the findings that the prosecution established the case against the appellants beyond all reasonable doubt and, accordingly, recorded order of their conviction and sentence, which has been impugned in these two appeals, mainly, on the following grounds: (i) that the learned Trial Court was oblivious of the fact that the main ingredient of the offence under Section 398 of the Indian Penal Code, i.e., intention to commit dacoity was completely absent in the prosecution case; it was no where stated that the miscreants entered into the house of Puranmal Agarwal with an intention to commit dacoity; therefore, the learned Trial Court ought to have acquitted the appellants from the charge under Section 398 of the Indian Penal Code; (ii) that the learned Trial Court failed to take note of the fact that the Test Identification Parade of the suspects were not done in accordance with the procedure laid down by the Code; the learned Court failed to take note of the fact that the Investigating Officer of the case had taken part in the Test Identification Parade and, as such, the entire process of identification parade lost its legal value; (iii) that the learned Trial Court failed to take note of the contradictions in the oral testimonies of the witnesses regarding manner in which the appellant Md. Salim alias Israil was caught; and (iv) that the judgment being otherwise bad in law, is liable to be set aside. Mr. Suman De, learned counsel appearing on behalf of the appellants contended that in order to convict an accused under Section 398 of the Indian Penal Code, prosecution is saddled with the burden to establish that (i) there was attempt to commit robbery or dacoity and (ii) the offender is armed with deadly weapon. Mr. De contended that the first ingredient, i.e., attempt to commit robbery or dacoity, has not at all been established in the instant case. Mr. De contended that the first ingredient, i.e., attempt to commit robbery or dacoity, has not at all been established in the instant case. He had taken this Court to the First Information Report, which was marked Exbt. 3, and contended that there was no whisper that the miscreants entered into the house of Puranmal Agarwal with an intention to commit dacoity or robbery. He had taken this Court to the evidence of the witnesses and contended that there was no whisper as to the intention on the part of the appellants to commit robbery in the house of Puranmal Agarwal. Some stray statements have been made by some of the witnesses, which, according to Mr. De, are not sufficient enough to cover up the lacuna in the prosecution case on this issue. Mr. Ghose, learned counsel appearing on behalf of the State of West Bengal contended that intention, being a mental state-of-affair, is to be deduced from the fact situation, conduct and other factors. Mr. Ghose contended that from the fact that four persons entered into a house at an odd hour armed with deadly weapons, threatened the inhabitants with dire consequences, one of them was caught and other escaped, in all probabilities, it can well be understood that they entered into the house of Puranmal Agarwal for nothing but committing dacoity or robbery. It is true that the learned Judge did not consider this fact separately but found himself satisfied with the evidences adduced by the prosecution as a whole and came to a findings that the offences under Sections 398 and 324/34 of the Indian Penal Code were well proved. On re-appreciation of the evidences, adduced on behalf of the prosecution, I find that Mr. De, learned advocate for the appellants, made his submission without basing on the evidence recorded by the learned Trial Court. Starting from the evidence of a man outside the house, i.e., P.W. 3, it appears that the story of robbery or attempt to commit robbery very much there from the inception. The P.W. 3 is a medical officer attached to Howrah District Hospital. On 27.02.2005 at about 3.15 hours, he examined Bhagawati Prasad Agarwal. He stated that Bhagawati told him that some robbers entered into the house at night for committing robbery and he apprehended one robber and both of them received bomb injury. The P.W. 3 is a medical officer attached to Howrah District Hospital. On 27.02.2005 at about 3.15 hours, he examined Bhagawati Prasad Agarwal. He stated that Bhagawati told him that some robbers entered into the house at night for committing robbery and he apprehended one robber and both of them received bomb injury. This statement of the doctor (P.W. 3) was not challenged by the appellants while they cross-examined him. The P.W. 4, the lodger of the First Information Report, although has not stated anything about the intention of robbery or dacoity of the miscreants who entered into his house but in his cross-examination, he has stated that he did not mention the names of the dacoits in the written complaint excepting the name of Md. Israil. He also stated that he mentioned in the written complaint that he could recognize the other docoits. The P.W. 5, Bhagawati Prosad Agarwal, the injured, has stated that he caught one of the miscreants who was having a firearm in his hands and threatened him with dire consequences. In spite of threat, he jumped on the said man and caught hold his hand. He was assaulted but he did not leave that man, both of them fell down on the ground. The bomb, which was being carried by the said miscreant, exploded and, as a result, both of them received injuries. By that time, other inmates of the house gathered and taken charge of the miscreant who was caught. He stated further that the said dacoit disclosed his name and the names of his associates to the Police Officers. He stated that the said dacoit disclosed his name as Md. Salim alias Israil. The P.W. 10, the police officer, who had been to the house of Puranmal Agarwal receiving the information of dacoity, took charge of the appellant, Md. Salim @ Israil from the hands of the Agarwal family and stated that the appellant and others entered into the house of Puranmal Agarwal for the purpose of committing dacoity, but due to resistance, they could not commit dacoity. He searched Md. Salim @ Israil and found one pipegun loaded with one round live ammunition together with cash of Rs.1,000/-, one wrist watch chain, one locket. He searched Md. Salim @ Israil and found one pipegun loaded with one round live ammunition together with cash of Rs.1,000/-, one wrist watch chain, one locket. He was not put any question, even in form of suggestion, during his cross-examination that the members of Agarwal family did not inform him that the appellants and other entered into the house being armed with firearms, bombs etc. for the purpose of committing dacoity. That portion of his statement remained unchallenged. As far as the point of law raised by Mr. De is concerned, it is true that there is lack of oral testimonies suggesting that the appellants and others entered into the house of Puranmal Agarwal with an intention to commit dacoity. Turning to the judgment impugned, I find that the learned Trial Court did not discuss much over this issue. The offence under Section 398 of the Indian Penal Code is set out below: “S. 398. Attempt to commit robbery or dacoity when armed with deadly weapon. -If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.” A bare reading of the definition of the offence given under Section 398 of the Indian Penal Code makes it explicit that following are the essential ingredients of the offence: (i) there was attempt to commit robbery or dacoity and (ii) the offender was armed with deadly weapon In the instant case, sufficient evidence has been adduced on behalf of the prosecution to establish that the appellants were armed with deadly weapons like firearms and daggers. It is also found that the prosecution has established by sufficient, consistent and satisfactory evidence that the appellants, Md. Salim, caused injury to Bhagawati Prosad Agarwal and because of blasting of bomb, he himself received injuries for which he was treated in hospital. Therefore, one of the ingredients of the offence is very much there. Now the question is whether or not there was attempt to commit rubbery or dacoity. As stated earlier, attempt to commit robbery or dacoity can only be deduced and presumed from the fact situation of the case, conduct of the accused and recovery of articles from their possession. Therefore, one of the ingredients of the offence is very much there. Now the question is whether or not there was attempt to commit rubbery or dacoity. As stated earlier, attempt to commit robbery or dacoity can only be deduced and presumed from the fact situation of the case, conduct of the accused and recovery of articles from their possession. In the instant case, before the miscreants could do anything, one of them was caught by Bhagawati Prosad Agarwal despite receiving injury of dagger on his head. The fact that Md. Salim was caught by Bhagawati Prosad Agarwal first of all and, thereafter, other members of Agarwal family and was handed over to the P.W. 10 have been established beyond doubt. The time when the miscreants entered into the house of Agarwal family was, no doubt, an odd hour when everyone was supposed to sleep. They entered into the room, not in empty hands, but with arms like revolver, dragger etc. There is no case either of the prosecution or on the side of the defence that there was enmity between the appellants and the Agarwal family. There was no reason, whatsoever, for the appellants to enter into the house of Agarwal family at that odd hour excepting to commit robbery. They attempted to commit robbery because they prepared themselves for that and taken a step further to fulfil their preparation by entering into the house of Agarwal family. The moment they entered into the house of Agarwal family with such preparation, the attempt was complete. They might have failed to commit the offence of robbery or dacoity, but they attempted it. There was no other reason for them excepting to commit robbery in the house of Agarwal family. In all probabilities, they had the intention and attempted to commit robbery. I carefully gone into the answers given by the appellants to the question put to them in course of examination under Section 313 of the Code of Criminal Procedure. Interestingly enough, they denied the prosecution case but had not taken any specific plea that they had been to the house of Puranmal Agarwal in order to commit any offence other than robbery or dacoity. This apart, under Section 114 of the Evidence Act Court may presume existence of certain facts. Interestingly enough, they denied the prosecution case but had not taken any specific plea that they had been to the house of Puranmal Agarwal in order to commit any offence other than robbery or dacoity. This apart, under Section 114 of the Evidence Act Court may presume existence of certain facts. It says that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relations to the facts of the particular case. I have stated already that in all probabilities, if the factual position of the case is considered, no conclusion can be drawn other than that the miscreants entered into the house of Puranmal Agarwal to commit robbery. Therefore, this Court does not accept the proposition of Mr. De that the intention followed by an attempt on the part of the appellants to commit robbery/dacoity has not been established. The next point raised by Mr. De is that the Test Identification Parade was not done properly or in accordance with the procedure laid down by the Code. I have carefully gone through the entire case record and failed to agree with the submission of Mr. De. All the ocular witnesses identified the appellants in the Test Identification Parade as well as in Court. Even if, for the argument sake, it is accepted that identification they made at the time of T.I. Parade was not in accordance with law, their identification in Court cannot be thrown away because that was the best way of identification. Identification in Test Identification Parade has strengthened the prosecution case and nothing more. However, in the instant case, in my opinion, there were no irregularities in holding the Test Identification Parade of the suspects including the appellant. Mr. De put must stress on the evidence of P.W. 6, who stated in his cross-examination that before Test Identification Parade, the suspects were shown to him and, accordingly, he could able to identify them. This fact might have ruled out proper identification of the suspects by the P.W. 6 but not the others. The other witnesses have not stated anywhere that suspects were shown to them before holding of Test Identification Parade. Amongst the appellants, Md. Salim was caught red handed on the spot. This fact might have ruled out proper identification of the suspects by the P.W. 6 but not the others. The other witnesses have not stated anywhere that suspects were shown to them before holding of Test Identification Parade. Amongst the appellants, Md. Salim was caught red handed on the spot. Therefore, his identification in Test Identification Parade is immaterial. In this regard, the decision of the Hon’ble Apex Court in State of Rajasthan vs. Sufal Singh, reported in (1983) 2 SCR 53 , can well be referred to. It is right to say here that identification of the accused for the first time in Court is very week character unless and until the identification is corroborated by other factors. In the instant case, Sk. Raju was identified by the P.W. 4, who denied in his cross-examination that police introduced the suspects before holding of Test Identification Parade. Sk. Raju was also identified by the P.W. 5, the injured, in the Test Identification Parade and no question was put to him by the side of the accused that Sk. Raju was shown to him by the Investigating Officer before holding of Test Identification Parade. The Exbt. 4, the report of the Test Identification Parade, does not disclose anything in support of the plea taken by the defence. Out of the two appellants, one was caught on the spot and handed over to the police and another was identified by at least two witnesses in the Test Identification Parade subsequently in the Trial Court. Therefore, there is no doubt as to the identity of the appellants, who were found inside the house of Puranmal Agarwal on the date and time of the incident. Therefore, I do not accept the proposition of Mr. De in this regard. Mr. De contended that there are some contradictions in the testimonies of the witnesses in respect of the manner in which Md. Salim was apprehended. On scrutiny of the evidences, I find that all the witnesses stated categorically that Md. Salim was found inside the house of Puranmal Agarwal and Bhagawati Agarwal caught hold of him despite receiving injury on his head. The fact that Bhagawati Agarwal caught hold of him tightly and subsequently, other members of the Agarwal family took charge of Md. Salim and handed over to the police, has been established by consistent, sufficient and cogent evidence. Salim was found inside the house of Puranmal Agarwal and Bhagawati Agarwal caught hold of him despite receiving injury on his head. The fact that Bhagawati Agarwal caught hold of him tightly and subsequently, other members of the Agarwal family took charge of Md. Salim and handed over to the police, has been established by consistent, sufficient and cogent evidence. There might be some variances in giving the description in respect of the manner in which appellant Md. Salim was caught but that appears to be normal and natural, because witnesses are not expected to give description like tape recorder. When a fact is stated by different persons, some variances are natural and normal. Therefore, I do not like to put much importance on these discrepancies which are trivial in nature. I have carefully gone into the entire evidence of the prosecution case. There cannot be any doubt that the appellant together with three others entered into the house of Puranmal Agarwal at an odd hour at night with arms and ammunitions, caused injury to Bhagawati Agarwal and due to bomb blast, one of them also sustained injury and treated medically in hospital. All these facts together established the prosecution case to the hilt and there cannot be two views on appraisal of the evidence on record. The only view unmistakably can be drawn is that the appellants committed the offence under Section 398 of the Indian Penal Code. Amongst them Md. Salim alias Israil caused injury to Bhagawati Agarwal and they entered into the house of Puranmal Agarwal with an intention to commit robbery. Therefore, I do not find any reason to upset the judgment of the learned trial Court. Accordingly, in view of the discussion above, both the appeals fail. The judgment of conviction and sentence, which is impugned in these appeals, is affirmed. Interim order, if there be any, stands vacated. There will, however, be no order as to costs.