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2013 DIGILAW 885 (CAL)

Md. Sahid @ Katta Sahid v. State of West Bengal

2013-12-03

KANCHAN CHAKRABORTY

body2013
JUDGMENT : The challenge in this appeal is to the order dated 28.01.2008, 29.01.2008 and 31.01.2008 passed by the learned Additional District and Sessions Judge, F. T. Court No. 7 at Alipore, 24-Parganas (South) in Sessions Trial No. 4(5) 2006 arising out of Sessions Case No. 25(3) 2005 thereby convicting the appellant, Md. Sahid @ Katta Sahid for committing offence under Sections 392 and 397 of the Indian Penal Code and sentencing him to suffer four years rigorous imprisonment with fine for the offence under Section 392 Indian Penal Code and seven years rigorous imprisonment for the offence punishable under Section 397 of Indian Penal Code which would run concurrently subject to deduction of remission under Section 428 of Criminal Procedure Code. Construction of a building was going on at 39A, Broad Street, Kolkata – 700 019. On 28.10.2004, at about 4.00 p.m., four boys including the appellant entered inside the construction site and on the point of fire arms demanded Rs.1,00,000/- from Tarun Singh, site-in-charge. That much money was not available with Tarun Singh. His brother, Barun Singh who was an employee of that construction firm, was sent to the Head office at 21/2, Ballygunge Place, Kolkata – 700 19 to bring the money so demanded. The miscreants waited there till Barun Singh came back with money. They, however, did not allow any one to go out of the construction site. Barun Singh returned after one hour with Rs. 70,000/-. The miscreants took that money and left the place. Before leaving the place, they also took away gold chain and wrist watch of Tarun Singh. Tarun Singh lodged one F.I.R. on 28.10.2004 at 22.30 hours with Kareya Police Station which was registered as Kareya Police Station Case No. 329 dated 28.10.2004. It was against four unknown boys aged between 25 to 30 years. The case was investigated into and the investigating officer could apprehend the appellant and another one. They were taken into police custody twice. While they were in Jail custody, they were placed in T. I. Parade. The appellant was identified by the witnesses as one of the miscreants who at the point of gun demanded Rs.1,00,000/- and took away golden chain and wrist watch. On the basis of the statement leading to discovery, the golden chain and one locket were recovered from one Md. Azad (P.W. - 8). The appellant was identified by the witnesses as one of the miscreants who at the point of gun demanded Rs.1,00,000/- and took away golden chain and wrist watch. On the basis of the statement leading to discovery, the golden chain and one locket were recovered from one Md. Azad (P.W. - 8). The person arrested with this appellant in connection with this case absconded after he was granted bail. The trial proceeded against the appellant only after filing of charge-sheet against him. Learned Court framed charge against the appellant under Sections 395 and 397 of the Indian Penal Code. The appellant pleaded not guilty to the charge and accordingly, the trial commenced. The Trial Court recorded evidence of ten witnesses on behalf of the prosecution and admitted some documents, such as, F.I.R., seizure list, report of T. I. Parade, rough sketch map of the place of occurrence etc. and admitted some materials into evidence which were marked material exhibits on behalf of the prosecution. No evidence was adduced on behalf of the appellant as his defence in any form. The learned Court found that the prosecution brought home the charges under Sections 392 and 397 of Indian Penal Code against the appellant and accordingly, recorded his conviction and sentence which is impugned in this appeal. Mr. Kabir, learned Counsel appearing on behalf of the appellant contended that even if it is accepted that the prosecution witnesses made consistent and uncorroborated testimony in respect of the incident alleged, the offence alleged cannot be said to be an offence punishable under Sections 392 and 395 of Indian Penal Code. He contended that it is a case squarely comes under Sections 385/387 of the Indian Penal Code. He contended further that the appellant was arrested prior to 30.11.2004 and the Judgment impugned was passed on 31.01.2008. He is all along in custody since his arrest and thereby has spent four years and ten months behind the bars. Therefore, he be directed to be set at liberty even if charges under Sections 385/395 of Indian Penal Code is found established against him. To distinguish the offences under Sections 392/397 of Indian Penal Code with the offence of extortion, Mr. Kabir referred to a decision of the Hon’ble Apex Court in Gursharan Singh –Vs.- State of Punjab, reported in (1996) 10 SCC 190 . To distinguish the offences under Sections 392/397 of Indian Penal Code with the offence of extortion, Mr. Kabir referred to a decision of the Hon’ble Apex Court in Gursharan Singh –Vs.- State of Punjab, reported in (1996) 10 SCC 190 . He contended that the appellant and his three associates had been to the place of occurrence and demanded a lumpsum money at the point of gun. It is not the case of the prosecution that they looted money from the place of occurrence at the point of gun. They waited there for a considerable period of time after making demand of money. The money was paid from the Head office situated at a different place and was brought by one of the employees of the construction firm who was present inside the construction site when the appellant and his associates demanded money. It was a case of extortion and putting or attempting to put fear of injury in order to commit extortion. There was no robbery or dacoity. There is no element of theft without knowledge of any person. Mr. Panda, learned Counsel appearing on behalf of the respondent-State of West Bengal contended that although learned Trial Court opined that it was a clear case of extortion by showing deadly weapons, the case against the appellant under Sections 392/397 of Indian Penal Code has been established. He contended that the Judgment impugned is not required to be upset in this appeal. I have carefully gone through the evidence on record, oral and documentary, and the Judgment impugned. The fact that on the fateful date and time, the appellant along with three others had gone to 39A, Broad Street and demanded Rs.1,00,000/- at the point of gun from the employees of the construction firm who were present in the site has been established by consisting, corroborating and credible evidence of the witnesses, such as, P.W. – 2, Tarun Singh, P.W. – 3, Barun Singh, P.W. – 4 Akash Sharma and P.W. – 6, Mantu Singh. Their evidences was supported by the evidence of P.W. – 7, Sk. Sultan who has stated that on 06.12.2004 police personnel came to the house of Md. Azad (P.W. – 8) and in his presence the appellant told Azad to bring out the gold chain and locket given to Azad by him. Their evidences was supported by the evidence of P.W. – 7, Sk. Sultan who has stated that on 06.12.2004 police personnel came to the house of Md. Azad (P.W. – 8) and in his presence the appellant told Azad to bring out the gold chain and locket given to Azad by him. Azad (P.W.- 8) brought out the gold chain and locket in presence of P.W. – 7 which was seized in his presence under a seizure list on which he put his signature. The statement of the P.W. – 7 was supported by Md. Azad also who stated that the appellant once came to him, took Rs.2,000/- from him, keeping one gold chain and locket. He further stated that on 6th December, 2004 police official together with the appellant came to his house and the appellant told him to deliver the gold chain and locket to the Sub-Inspector. Accordingly, he handed over the same which was seized under a seizure list by police official wherein he put his signature. The gold chain and locket were produced in Court and identified by the P.W. 2 and 3. It had a particular marking on it, which helped the P.W. – 2 and 3 to identify the same. Although it was available in market and a sticker was attached to the locket bearing initial of the name of the P.W. – 2, the identification of the chain and locket cannot be disputed. The appellant was identified in T. I. Parade as well as in Court by the witnesses. The reports of the T. I. Parade were marked as exhibit – 3 and exhibit – 3/1. The witnesses made no mistake to identify the appellant in course of trial also. Therefore, the case of the prosecution to the effect that on that particular date and time the appellant along with three others had been to the construction site at 39A, Broad Street, demanded money at the point of gun, collected Rs.70,000/- and took away money together with one golden chain and locket and threatened the witnesses, have been established barring some discrepancies which are trivial in nature. Now, the question comes in is whether the offence allegedly committed can be categorized as dacoity, robbery or putting any person in fear of death in course of committing dacoity or robbery. Now, the question comes in is whether the offence allegedly committed can be categorized as dacoity, robbery or putting any person in fear of death in course of committing dacoity or robbery. The facts of the case appears to be unusual one because the P.W. – 3 who was present on the spot at the time the appellant and his associates made entry and demanded money at the point of gun. No one was allowed to go outside by the miscreants. They only spared the P.W. – 3 to go out of the site in order to collect money they demanded from the Head office which was situated far off. The P.W. – 3 had been to the Head office at Ballygunge Place, collected Rs.70,000/- from the cashier of the company, returned back to the place of occurrence and delivered that money to the miscreants. He, i.e. P.W. – 3 had gone to the Head office on foot and he neither informed the incident to any police station nor the Head office. The cashier, astonishingly enough, had given him Rs.70,000/- on mere asking without making any entry or granting any receipt. Be that as it may, the learned Trial Court believed the statements of the witnesses and came to a findings that the prosecution has established the facts that the appellant together with three others had been to the place of occurrence, demanded Rs.1,00,000/- at the point of gun, put the witnesses in fear and subsequently, received Rs.70,000/- and took away golden chain with locket. No fire arms, cash money and wrist watch was seized in course of investigation although the appellant and one of the miscreants were taken in police custody twice. It is not a case that the appellant robed the witnesses. They waited at the place of occurrence for more than one hour and were given the money demanded which was collected from Head office without making any entry in register. It is a case of extortion having clear distinction with the offence ‘robbery’. I find that the learned Court below although came to such a conclusion in his Judgment at page 12 but recorded conviction under Sections 395/397 of the Indian Penal Code for reason not understood. I accept the proposition made by Mr. Kabir in this regard. It is a case of extortion having clear distinction with the offence ‘robbery’. I find that the learned Court below although came to such a conclusion in his Judgment at page 12 but recorded conviction under Sections 395/397 of the Indian Penal Code for reason not understood. I accept the proposition made by Mr. Kabir in this regard. Accordingly, in view of the discussion above I, uphold the conviction of the appellant not under Sections 395/397 of the Indian Penal Code but under Sections 384 and 385 of the Indian Penal Code. Since the appellant has already undergone rigorous imprisonment for a period of four years and ten months, I reduce his sentence to the period he has undergone. He be, accordingly, set at liberty at once and be discharged from bail bond, if any. A copy of Judgment be given to the appellant. The L.C.R. be sent back to the Court below together with a copy of this Judgment.