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2014 DIGILAW 1007 (CAL)

Sushanta Datta v. State of West Bengal

2014-11-03

JOYMALYA BAGCHI

body2014
JUDGMENT : Joymalya Bagchi, J. Appeals are directed against the judgement and order dated 16.02.2010 passed by the learned Additional District and Sessions Judge, Sealdah, South 24 Parganas, in Sessions Trial No. 3(5) of 2009 convicting the appellants in both the appeals for commission of offence punishable under Section 392 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for seven years and to pay fine of Rs. 10,000/- only, in default to suffer simple imprisonment for one year more for the offence punishable under Section 392 of the Indian Penal Code and convicting appellant no. 2 (Kachi Pandit) in CRA 287 of 2010 for commission of offence punishable under Section 397 of the Indian Penal Code and under Section 25(1B)(a) of the Arms Act and sentencing him to suffer rigorous imprisonment for seven years for the offence under Section 397 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 2,000/- in default to suffer further simple imprisonment for three months more for the offence under Section 25(1B)(a) of the Arms Act, all the sentences to run concurrently. 2. Prosecution case, as alleged, against the appellants as follows : On 31.03.2009 at about 03.15 hours Smt. Minati Datta (PW 4) noticed that four persons, one armed with bhojali surreptitiously entered her room. As she tried to raise alarm one of the miscreants threatened her with bhojali and another snatched away gold chain, ear ring, churi, nose pin, mobile phone etc. from her person. They ransacked the suitcase, showcase and took away three nose pins. Thereafter one of them stood in front of her with a bhojali. Other three miscreants went to the adjoining room. There were two steel almirahs in the adjoining room. One person came back and demanded the keys of the almirah. Minati (P.W. 4) told him that key was not with her, he went away and after a while defacto complainant heard the sound of opening the almirahs from the adjoining room. In the mean time, hearing the hue and cry, elder sister of the defacto complaint viz. Suniti Pain (PW 5) came downstairs and saw the miscreants. She started shouting 'chor, chor' and thereafter the accused persons fled away through the grill gate one by one. In the mean time, hearing the hue and cry, elder sister of the defacto complaint viz. Suniti Pain (PW 5) came downstairs and saw the miscreants. She started shouting 'chor, chor' and thereafter the accused persons fled away through the grill gate one by one. Suniti Pine found that the almirahs were open, the articles have been ransacked and on inspection she found that the bundle containing ornaments like gold chain, ear ring, six pieces of churi and gold ring were missing. Minati (PW 4) noticed that the padlock of the grill gate was lying broken. Police attached to the Manicktala Police Station were contacted over phone and P.W. 4 lodged written complaint with the police when them came to the P.O. which was treated as first information report being Manicktala Case No. 121 dated 31.03.2009 under Sections 392/397 of the Indian Penal Code. In the course of investigation, the appellants were arrested and stolen articles were recovered from their possession. In test identification parade they were identified by P.W.s 4 and 5. In conclusion of investigation, charge-sheet was filed against the appellants under Section 392/397 of the Indian Penal Code and under Section 25(1B)(a) of the Arms Act against the appellant no. 2, Kachi Pandit. After obtaining the opinion of the arms expert a supplementary report was filed. The case, being a sessions triable one, was committed to the Court of Sessions, Alipore, South 24 Parganas and transferred to the Court of Additional Sessions Judge, Sealdah, South 24-Parganas for trial and disposal. Charges were framed under Section 392/397 of the Indian Penal Code against the appellants and under Section 25(1B)(a) of the Arms Act against the appellant no. 2, in CRA 287 of 2010, namely Kachi Pandit. The appellants pleaded not guilty and claimed to be tried. In the course of trial prosecution examined as many as twelve witnesses and exhibited a number of documents. Defence of the accused persons was one of innocence and false implication. 2, in CRA 287 of 2010, namely Kachi Pandit. The appellants pleaded not guilty and claimed to be tried. In the course of trial prosecution examined as many as twelve witnesses and exhibited a number of documents. Defence of the accused persons was one of innocence and false implication. In conclusion of trial, the learned Trial Judge by judgement and order dated 16.02.2010 convicted the appellants for commission of offences punishable under Section 392 of the Indian Penal Code and sentenced them for rigorous imprisonment for seven years and to pay fine of Rs.10,000/- only, in default to suffer simple imprisonment for one year more for committing offence punishable under Section 392 of the Indian Penal Code and further convicted appellant no. 2 (Kachi Pandit) in CRA 287 of 2010 for commission of offence punishable under Section 397 of the Indian Penal Code and under Section 25(1B)(a) of the Arms Act sentenced him to suffer rigorous imprisonment for seven years for commission of offence punishable under Section 397 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 2,000/- in default to suffer further simple imprisonment for three months more for the offence punishable under Section 25(1B)(a) of the Arms Act, all the sentences to run concurrently. 3. Mr. Gupta, learned Counsel appearing for the appellant in CRA 446 of 2010 and as amicus curiae in CRA 287 of 2010 submits that there are patent absurdities and/or inconsistencies in the prosecution case. It is not clear as to whether there was a grill gate in the veranda of the first floor of the house of P.W. 4. P.W. 1, plan maker, did not notice such a grill gate in the verandah. He submits that conduct of P.W. 4 to sleep with the lights burning in her room is highly artificial and cannot be believed. He further submits that there was nothing to show as to how the miscreants gained access to the verandah on the first floor as the locks on the ground floor and the mezanine floor had not been broken. He submits that F.I.R. had been altered to include description of the appellants. He further submits that there was nothing to show as to how the miscreants gained access to the verandah on the first floor as the locks on the ground floor and the mezanine floor had not been broken. He submits that F.I.R. had been altered to include description of the appellants. He criticizes the test identification parade on the premise that there was inordinate delay in holding the test identification parade and the fact that the appellants had complained to the learned Magistrate (P.W. 12) after holding of test identification parade and they had been shown to the witnesses while in police custody. He submits that seizure of the stolen articles and the bhojali was doubtful as the independent witnesses were not local persons. All the seized articles had not been identified and nothing had been placed on record to establish the ownership of P.Ws 4 and 5 qua the seized articles. He accordingly prays for acquittal of the appellants. 4. Mr. Banerjee, learned Additional Public Prosecutor, submits that P.Ws, 4 and 5 identified the appellants in course of test identification parade and in Court. The appellants were at the place of occurrence for about 40 to 45 minutes and their identification was, therefore, most probable. The plea of showing the appellants to the witnesses in police custody was an afterthought and therefore did not vitiate the identification. Seizure of the stolen articles as well as bhojali had been proved beyond reasonable doubt. Part of the seized articles were identified as stolen property. Opinion of the arms expert had not been doubted in this case. He prays for dismissal of the appeal. 5. P.W. 1, A.S.I., Partha Ray, is the plan maker who prepared the plan of the place of occurrence. In cross-examination, he stated that he had not seen any grill gate in the verandah. P.W. 2, Purnendu Ray, is the photographer who took photographs on the place of occurrence. Material exhibit 1 is the photograph showing the grill gate in the verandah. P.W. 3, S.P. Dikpati, is the arms expert who gave the report that the seized bhojali came under the purview of the Arms Act. In cross-examination, he stated that such bhojali is available in the market. P.W. 4, Minati Dutta, is the most vital witness of the instant case. P.W. 3, S.P. Dikpati, is the arms expert who gave the report that the seized bhojali came under the purview of the Arms Act. In cross-examination, he stated that such bhojali is available in the market. P.W. 4, Minati Dutta, is the most vital witness of the instant case. She stated that she alongwith her mother resided in the first and second floor of P44 C.I.T. Scheme No. VII, Kankurgachi for 17 to 18 years. The said building is a three storied building. She resided in the first floor while her mother used to reside in the second floor. She stated that there are two rooms in the first floor. There is a verandah in front of the room which is covered by a grill having an opening which remains under lock and key. She stated that she used to sleep with the lights burning in her room. She deposed that on 31.03.2009 she went off to sleep at mid-night. The incident occurred around 03.15 hours at the night. At the time of the incident, she was awaken by some sound and found four persons inside the room. One of the persons threatened her with a bhojali. Thereafter they ransacked the showcase and one almirah in her room. They also ransacked the almirahs situated in other room. They snatched away gold ornaments like churi, gold sonabadha, gold har, gold nakchabi and also took away gold ornaments from the almirah, mobile phone from the bed and cash from her bag. They also took away the money and ornaments from the showcase and by breaking open the almirahs in the other room. On hearing hue and cry her elder sister came down in the staircase and found the miscreants. Then the miscreants left one by one through the grill gate in the verandah. She found that the grill gate in the verandah was open. She identified the appellant Kachi Pandit in Court as the person who was holding the bhojali. She identified the appellant Sushanta Datta as the person who snatched the gold ornaments from her person. She identified the appellant Bidhan Das as the person who searched and ransacked the showcase and almirahs. She deposed that the incident occurred for 45 minutes. She stated that weight of gold ornaments stolen were approximately between 10 to 12 bhoris. She identified the appellant Sushanta Datta as the person who snatched the gold ornaments from her person. She identified the appellant Bidhan Das as the person who searched and ransacked the showcase and almirahs. She deposed that the incident occurred for 45 minutes. She stated that weight of gold ornaments stolen were approximately between 10 to 12 bhoris. She stated that her elder sister lodged complaint at Manicktala Police Station in the early morning on 31.03.2009. She thereafter stated that her elder sister informed the incident over phone to the police station and on getting the information police came to their residence. She thereafter narrated the incident to the police who reduced it into writing and she put her signature on the pages as exhibits 4, 4/1, and 4/2. She identified the ornaments recovered in the course of investigation in Court. She also identified the cash receipt for the purchase of the mobile phone which was stolen by the miscreants. She identified the broken lock which was found in the verandah. In cross-examination she stated that the entrance door to her room in the first floor flat was kept open. She denied the suggestion that the complaint lodged at Manicktala Police Station was changed to implicate the accused persons. P.W. 5, Suniti Pain, is the sister of P.W. 4. She stated that the house was owned by her mother. She lives at her matrimonial home with her husband. On the date of incident she was sleeping in the second floor of the house with her mother. She woke up hearing the hue and cry and came down the staircase and found a person standing there with a big sword and there were other persons totalling 3 to 4 in number and the persons asked her to stop there and threatened her with dire consequences. She raised alarm by crying 'chor, chor' and the persons fled through the grill gate in the varandah. She identified the appellants in Court. She also stated that she had identified them in the course of test identification parade in the jail. She identified the seized gold ornaments which belonged to her. She stated that after the incident she telephoned the police station and thereafter the police came and interrogated her sister and herself and recorded the statement of her sister and obtained her signature thereon. She identified the seized gold ornaments which belonged to her. She stated that after the incident she telephoned the police station and thereafter the police came and interrogated her sister and herself and recorded the statement of her sister and obtained her signature thereon. P.W. 6, Santosh Kanhoo, proved the invoice of the mobile phone which was sold to P.W. 4. P.W. 7, Dinesh Roy, is a seizure list witness with regard to seizure of mobile phone and gold ornaments from the possession of the appellant Kachi Pandit. He deposed that on 31.03.2009 he had come to Kolkata at NRS hospital with his friend. He found that police had apprehended a boy and requested them to be witness of search and seizure on that person. Upon search and seizure a mobile phone and gold ornaments were recovered from the pocket of the boy. He proved his signature on the seizure list as exhibit-7. He further deposed that seized articles were kept in packets which were put in a big envelop. He proved his signatures on the packets. He also identified the seized articles. He identified the appellant, Kachi Pandit as, the boy, from whom seizure was made. P.W. 8, Prakash Hari, is a seizure list witness of the seizure effected in the house of the appellants, Sushanta Datta and Bidhan Das. He stated that at that time he was at his father-in-law's house. He deposed that police recovered gold ornaments from the house of the appellants, Sushanta Datta and Bidhan Das. He identified the appellants. He further stated that police seized the bhojali from the house of the appellant Kachi Pandit. He identified the bhojali. He identified the labels on the seized articles and the packets in which the said articles were kept. He proved his signature on the labels and packets. P.W. 9, Sanjay Prasad, is also a seizure list witness who proved the seizure of gold ornaments from the house of the appellants, Sushanta Datta and Bidhan Das. He also proved the seizure of bhojali from the residence of Kachi Pandit. P.W. 10, S.I., Gopinath Biswas, is the investigating officer of the case. He deposed that on 31.03.2009 he was posted as S.I. of Manicktala Police Station. He received a telephonic message that a decoity had been committed at a house. Pursuant to such information, he diarised such information being exhibit-11 and reached the place of occurrence. P.W. 10, S.I., Gopinath Biswas, is the investigating officer of the case. He deposed that on 31.03.2009 he was posted as S.I. of Manicktala Police Station. He received a telephonic message that a decoity had been committed at a house. Pursuant to such information, he diarised such information being exhibit-11 and reached the place of occurrence. He found that the grill gate in the varandah open and the padlock was broken. He seized the padlock under seizure list. He recorded the statement of P.W. 4 which was treated as first information report. He has proved the first information report lodged by P.W. 4 as exhibit 4/3 as well as the formal F.I.R. as exhibit-13. He proved the seizure of mobile phone and gold ornaments from the pocket of the appellant, Kachi Pandit. He stated that Kachi Pandit made a statement in police custody. Pursuant to such statement, appellants Sushanta Datta and Bidhan Das were arrested. Pursuant to disclosure statements of Sushanta Datta being exhibit-16 and Bidhan Das being exhibit-17, gold ornaments were recovered from their house. Pursuant to statement of Kachi Pandit, bhojali was recovered from his house which was concealed under the pillow. P.W. 11, S.I., C. Pandey, is the other investigating officer of the case. He prepared the sketch map through the plan maker, P.W. 1. He made arrangements for holding test identification parade of the miscreants at Presidency Correctional Home. He collected the report of the arms expert. He submitted the charge-sheet. P.W. 12, Saurav Bhattacharjee, is the Judicial Magistrate who conducted the test identification parade of the appellant on 18.04.2009. He deposed that P.Ws 4 and 5 identified the appellants. In cross-examination, he stated that it is not mentioned in his report that before identification the suspects were interrogated whether they were previously known to the accused persons. He further stated that initially the accused persons did not make comment but subsequently they stated that they were identified by the witnesses at Lalbazar and falsely implicated in the instant case. 6. Appreciation of the evidence on record would show that P.Ws. 4 and 5 are the most vital witnesses in the instant case who had identified the appellants both in test identification parade as well as in the Court. It has been argued that there was delay in holding test identification parade. I find that miscreants were arrested on 31.03.2009 remanded to police custody till 09.04.2009. 4 and 5 are the most vital witnesses in the instant case who had identified the appellants both in test identification parade as well as in the Court. It has been argued that there was delay in holding test identification parade. I find that miscreants were arrested on 31.03.2009 remanded to police custody till 09.04.2009. Thereafter, test identification parade was promptly held on 18.04.2009. Hence, there is no inordinate delay in holding test identification parade in the facts of the instant case. It has been argued that the appellants had been shown to the witnesses during their detention in police custody prior to test identification parade. I am unable to accept such contention on behalf of the appellants. Initially the appellants did not raise any objection in that regard. Only after being identified by the witnesses, the appellants by way of an afterthought raised objection that they were identified by the witnesses during police custody. Suggestion given to the witnesses P.Ws. 4 and 5 in that regard have been squarely denied. I find that the miscreants who committed the dacoity in the house of PWs 4 and 5 were present at the place of occurrence for 40 to 45 minutes. It is the evidence of P.W. 4 that the light was burning in her room when the appellants had entered. Accordingly, it is most likely that P.Ws, 4 and 5 had seen the appellants for a reasonable period of time and therefore they were able to identify them in the course of test identification parade as well as in Court. Criticism has been made as to the conduct of P.W. 4 in keeping the light burning in her room while she slept. This is a matter of personal preference and/or habit and it cannot be said that such habit of P.W. 4 is patently absurd or inherently improbable so as to throw out her deposition as a whole. It is to be borne in mind that the description of the appellants was given in the first information report at the earliest opportunity. P.W. 4 has denied the suggestion that the first information report was altered. Telephonic message to the local police station has also been diarised and exhibited and thereafter the F.I.R. was promptly recorded. It is to be borne in mind that the description of the appellants was given in the first information report at the earliest opportunity. P.W. 4 has denied the suggestion that the first information report was altered. Telephonic message to the local police station has also been diarised and exhibited and thereafter the F.I.R. was promptly recorded. Hence, I do not find much force in the argument of the learned Counsel for the appellants that the first information report in the instant case was altered and/or substituted to implicate the appellants. Coming to the issue of seizure, it has been argued that the independent witnesses of the seizure are not local witnesses. The said witnesses viz. P.W.7, 8 and 9 have, however, explained the circumstances under which they were present at the place of seizure. P.W. 7 deposed that he had come to NRS hospital with his friend. P.W. 8 stated that he was in his father-in-law's house when the seizure was effected. Similarly P.W. 9 has also explained that he was proceeding by the side of 28/1, Murali Pukur Road, (place of seizure) which was 10 to 15 minutes away from his residence. I am of the opinion that the said witnesses are natural witnesses of the search and seizure resulting in recovery of the stolen articles from the appellants and bhojali from the appellant, Kachi Pandit. The factum of search and seizure was also pursuant to the disclosure statements made by the appellants which have been exhibited in the instant case. Hence, I am of the opinion that search and seizure in the instant case has been proved beyond reasonable doubt. 7. P.Ws. 4 and 5 have identified the stolen articles viz. mobile phone as well as ornaments in Court is pertinent to note that the said witnesses only identified such part of the seized ornaments which belonged to them. This goes a long way to establish the honesty and truthfulness of the said witnesses as they identified only such part of the seized gold ornaments which belonged to them and unequivocally stated that other parts of the seized gold ornaments did not belong to them. It has been argued that no document as to ownership of gold ornaments were produced. It is common knowledge that the gold ornaments are ordinarily inherited by the womenflok and hence it would be incorrect to disbelieve their evidence on such score. It has been argued that no document as to ownership of gold ornaments were produced. It is common knowledge that the gold ornaments are ordinarily inherited by the womenflok and hence it would be incorrect to disbelieve their evidence on such score. Receipt with regard to purchase of the mobile phone of P.W. 4 which was stolen in the course of dacoity was produced. Seizure of bhojali from the appellant, Kachi Pandit has also been proved. Opinion of arms expert (P.W. 3) was not challenged in the course of cross-examination. 8. In view of the aforesaid discussion, I am of the opinion that prosecution has been able to prove its case beyond reasonable doubt. Conviction and sentence of the appellants in CRA 446 of 2010 and CRA 287 of 2010 are accordingly upheld. 9. Coming to the rule of enhancement of sentence issued by this Court, I find that the sentence imposed by the Trial Court is not below the statutorily prescribed minimum limit. There is no incriminating circumstance exhibiting exceptional cruelty or brutality by the appellants in the facts of the case which necessitates a higher sentence. The appellants also do not have any criminal antecedent. Hence I am not inclined in enhancing the sentence imposed upon the appellants by the trial court. The rule of enhancement is therefore discharged. Conviction and sentence imposed upon the appellants are accordingly upheld. 10. CRA 446 of 2010 and CRA 287 of 2010 are dismissed and CRR 3415 of 2010 is also discharged. 11. Lower court records along with a copy of the judgement be sent down to the Trial Court forthwith. I record my appreciation for the able assistance extended by Mr. Gupta as amicus curiae for disposal of the appeal being CRA 287 of 2010 with CRR 3415 of 2010.