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2013 DIGILAW 537 (CAL)

Krishnapada Dutta v. STATE OF WEST BENGAL

2013-08-02

KANCHAN CHAKRABORTY, NISHITA MHATRE

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Judgment :- Nishita Mhatre, J. 1. This appeal is directed against the decision of the Sessions Judge, Calcutta, dated 31st August, 1998. The appellant has been convicted for an offence under Section 412 of the IPC and sentenced to suffer a rigorous imprisonment for three years and to pay a fine of Rs.3,000/-(Rupees three thousand only). 2. The case of the prosecution in brief is that one Ganesh Chandra Basak, a goldsmith, working in the shop owned by Bimal Chandra Basak, was present in the shop at night on 15th June, 1994. At 1.45 a.m. two persons prised open the door of the shop, entered the shop and dragged him out, threatening to kill him. They forced him to sit at a little distance away from the shop. Three to four other persons entered the shop. while they were in the shop two lorries came and halted in front of the shop. The men who had entered the shop snatched articles from the shop within three to four minutes, and all of them fled away in the lorries. Ganesh Chandra Basak raised a hue and cry after these persons had left. He entered the shop and found that an iron chest or safe and a clock kept on it had been stolen by these persons. Some other persons gathered near the shop when he raised an alarm, and they informed the owner of the shop at Madhyamgram. According to Ganesh Chandra Basak the accused were talking in Hindi and Bengali and were abusing him. They threatened him and kept him seated. W hen they fled away, they hurled a bomb on the road. However, nobody was injured. 3. Ganesh Chandra Basak lodged the complaint. A charge-sheet was filed against the appellant and one Lakshman Kar under Section 412 of the IPC. Two other persons, Asraf Ali and Anwar Hossain, were charged for having committed an offence punishable under Section 395 read with 397 of the IPC. According to the prosecution the appellant and the other accused disclosed the place from where the ornaments were recovered. 4. The prosecution has examined several witnesses in order to prove the allegations against the appellant. P.W. 2 Ganesh Chandra Basak, i.e., the complainant has reiterated the statements in his complaint with some embellishments. The test identification parade of the accused was held and the witness had identified Asraf Ali and Anwar Hossain. 4. The prosecution has examined several witnesses in order to prove the allegations against the appellant. P.W. 2 Ganesh Chandra Basak, i.e., the complainant has reiterated the statements in his complaint with some embellishments. The test identification parade of the accused was held and the witness had identified Asraf Ali and Anwar Hossain. He has stated that the iron safe along with its contents were stolen from the shop. He has also stated that he could identify the ornaments as the letters “B.C.B.” or “B.B.” are inscribed on each ornament. This fact has not been stated in the complaint lodged by him. Moreover he had not described the jewellery in the complaint, though he has spoken about it in his evidence. 5. P.W. 3 Bimal Chandra Basak is the owner of the shop. According to him, besides the ornaments, there were documents including the trade licence, health licence and book no. 13 in the iron safe. He has further stated that all the stolen articles had been recovered. He applied for the return of the recovered articles by executing a bond. He obtained the ornaments from Lalbazar Police Station and at the time of accepting the delivery of the ornaments he confirmed that the ornaments bore his monogram and thus identified them as those ornaments which he had kept in the iron safe. The iron safe was also delivered to him in a broken condition. In his cross-examination, however, this witness has contradicted himself and has stated that he was not shown the ornaments at Lalbazar Police Station. He did not mention the particulars of these articles, nor did he remember whether he had told the Investigating Officer about the ornaments being engraved with a monogram or a hallmark. 6. P.W. 12 is the witness to the recovery. He has not stated anything about the ornaments bearing any hallmark. He has only stated that seized articles were packed and sealed in his presence. 7. The learned Counsel for the appellant Mr. Banerjee first submitted that the case against the appellant was of receiving goods stolen during a dacoity. He drew our attention to the fact that only two persons had been charged for committing the offence of dacoity which in law was not tenable. He urged that consequently the charge against the appellant under s.412 of the I.P.C. must fail. Banerjee first submitted that the case against the appellant was of receiving goods stolen during a dacoity. He drew our attention to the fact that only two persons had been charged for committing the offence of dacoity which in law was not tenable. He urged that consequently the charge against the appellant under s.412 of the I.P.C. must fail. We need not dwell on this submission as the charge sheet mentions that the dacoity was committed by Ashraf and ten other unknown persons. It is possible that the police have apprehended the others and have brought them to trial. 8. Mr. Banerjee has drawn our attention to the fact that there was no identification of the ornaments at any stage; nor was there any indication in the evidence that those ornaments bore the hallmark which has been mentioned by P.W. 2 and 3. 9. The learned Advocate has submitted that there is no evidence on record to prove that the appellant was aware of the fact that the ornaments were stolen and that he had reason to believe that these ornaments had come into his possession after the other accused had committed a dacoity. 10. Ms Sinha, the learned advocate for the State supported the conclusions of the trial court and pointed out that the statement of the appellant and the other accused led to the discovery of the ornaments from a room owned by Mohammed Nazar. She drew our attention to the fact that the bag containing the ornaments was seized in the presence of witnesses which is evident from the testimony of P.W.17, the Investigating Officer. The learned advocate submitted that the complicity of the appellant is established from the fact that it was his statement which led to the discovery of the articles. She therefore urged that the appeal be dismissed. 11. It is true that the Investigating Officer has deposed that the ornaments were recovered pursuant to the statement of the appellant. However he has also stated that Laxman Kar, the other accused in this case, made a similar statement leading to the recovery of the articles. He has deposed further that the statements of both the accused at Ex. 24 and 25 were recorded at the same sitting, one after the other. However he has also stated that Laxman Kar, the other accused in this case, made a similar statement leading to the recovery of the articles. He has deposed further that the statements of both the accused at Ex. 24 and 25 were recorded at the same sitting, one after the other. However he was unable to disclose as to whose statement was recorded first in point of time as there was no noting in the diary to that effect. This, in our opinion, is a major flaw in the prosecution’s case. It has not been established by the prosecution that it was the statement of the appellant that led to the recovery being made. The fact that the recording of Laxman Kar’s statement may have preceded the noting of the appellant’s statement cannot be ruled out. Unless the recovery is conclusively attributable to the statement of the appellant, that piece of evidence cannot be held against him as it is inadmissible. 12. Furthermore, although Mohammed Nazar, the owner of the room from where the recovery was made, was a witness to the seizure, he has not been examined as a prosecution witness. 13. We have scanned the evidence on record and it is apparent that there was no identification of the ornaments at any stage either by P.W. 2 or 3. The ornaments which were seized were delivered to P.W. 3 on the execution of a bond in the Lalbazar Police Station pursuant to an order passed by the Court. However, there is no evidence deduced that he physically checked the ornaments to ensure that they bore the hallmark “B.C.B.” of “B.B.”. Besides this, P.W. 3 has contradicted himself in his cross-examination and has stated that he did not see the ornaments at any point of time before they were delivered to him on furnishing a bond. Therefore, the case of the prosecution that the ornaments which were seized from the accused were stolen from the shop of PW 3 is not proved. 14. The case of the prosecution that the appellant had knowledge about these articles being delivered to him by the other accused after committing a dacoity has also not been established. In our opinion, therefore, the basic ingredient of Section 412 of the I.P.C. has not been proved against the appellant. 14. The case of the prosecution that the appellant had knowledge about these articles being delivered to him by the other accused after committing a dacoity has also not been established. In our opinion, therefore, the basic ingredient of Section 412 of the I.P.C. has not been proved against the appellant. There is no evidence to prove that he had dishonestly received the stolen property from a person who he knew or had reason to believe belonged to a gang of dacoits, and that these ornaments came into his possession after these dacoits had committed an act of dacoity. 15. In our opinion, the offence under Section 412 of the IPC has not been proved against the appellant. 16. The judgment and order of the Sessions Court in so far it convicts the appellant is set aside. 17. This appeal is allowed. 18. Urgent certified photocopies of this order, if applied for, be given to the learned advocates for the parties upon compliance of all formalities. Kanchan Chakraborty, J. I agree.