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2014 DIGILAW 1186 (CAL)

Mujibar Ansary v. State of West Bengal

2014-12-17

INDIRA BANERJEE, SAHIDULLAH MUNSHI

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JUDGMENT : Indira Banerjee, J. This appeal is against a judgment and order dated 14th June, 2014 passed by the learned Additional District Sessions Judge, Fast Track Court No.4, Raghunathpur, District 'Purulia in Sessions Case No.1 of 2001, Sessions Trial No.2 (3) of 2003, whereby the accused appellant has been convicted under Section 412 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for a term of ten years and further to pay fine of Rs.20,000/-. The accused appellant has, however, been acquitted of the charge under section 396 of the Indian Penal Code. 2. The prosecution case in brief is that, on the night of 12-13-07-1997 between 1.30 hours and 1.40 hours, 10 to 12 unknown dacoits committed dacoity in the house of Late Baneswar Mahato and caused his death by hurling bombs. The unknown dacoits allegedly entered the house through the main road and ransacked all the rooms, after terrorizing the other inmates in the house and decamped with cash of Rs.500/-, utensils, wearing clothes, one Atlas Bi-cycle, one Anglo Swiss Wrist watch, one Eveready torch etc. 3. As observed above, so far as this appellant is concerned, the charge against him under Section 396 of the Indian Penal Code of dacoity was not established. The learned Sessions Court held the accused appellant guilty of charge under Section 412 of the Indian Penal Code. Section 412 of the Indian Penal Code provides as follows. '412. Dishonestly receiving property stolen in the commission of a dacoity. 'Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.' 4. The Learned Sessions Court held the accused appellant guilty of offence under Section 412 of the Indian Penal Code and sentenced him to rigorous imprisonment of ten years on the basis of the evidence of PW 15, the Investigating Officer, who had investigated the case, who stated that statements of the accused appellant under Section 161 of the Criminal Procedure Code, had led to the recovery of a Suitcase and a tin box containing articles and belongings of the deceased. 5. The prosecution examined about 17 witnesses. The Prosecution Witness Nos.1 to 8 in a nutshell stated that there had been a dacoity at the house of Baneswar Mahato and that Baneswar Mahato had been killed by bombs hurled by the dacoits. Many of these witnesses had only heard of the incident and some of them went to the residence of Baneswar Mahato after hearing of the incident. None of the witnesses could throw any light on who had committed the dacoity. 6. The 9th Prosecution Witnesses Smt. Juli Roy deposed that she knew Baneswar Mahato. There was a hue and cry due to theft in his house. Hearing such hue and cry she rushed to his house with her father, but there was bomb charge, so she took shelter at the house of Manohar. This witness said that she saw Baneswar Mahato being hit by dacoits. According to her, the dacoits were not from the same village and she could not identify them. She could not say how the deceased was killed. The 10th Prosecution Witness was the doctor who conducted the post-mortem on the body of Baneswar Mahato. 7. The 11th Prosecution Witness Guta Mahato, daughter-in-law of the deceased, Baneswar Mahato deposed that her father-in-law had been killed by dacoits who had entered their house and looted all their belongings. She deposed that she could not see the dacoits. She further stated that she had not been taken to any jail compound for identification of the accused. In cross-examination, she even denied having been interrogated by the Investigating Officer. 8. The Prosecution Witness Nos. 12 and 13 were police witnesses. The Prosecution Witness No.14, Sulapani Mahato deposed that Baneswar Mahato of Simulgora was her father-in-law. There was dacoity in his house about six years ago on 17th Ashar in which her father-in-law was killed and household articles were looted. 8. The Prosecution Witness Nos. 12 and 13 were police witnesses. The Prosecution Witness No.14, Sulapani Mahato deposed that Baneswar Mahato of Simulgora was her father-in-law. There was dacoity in his house about six years ago on 17th Ashar in which her father-in-law was killed and household articles were looted. She deposed that some articles were seized by the police under a seizure list and she also identified some of the articles belonging to her father-in-law. She, however, deposed that those articles were recovered by her from the field. She left the same in the house of her in-laws. The same had been handed over to the police. She identified her signature on the seizure list. 9. The only witness on the basis of whose statement the accused appellant has been convicted is one Kriti Bhusan Majhi, retired Sub-inspector of police, who was posted as Officer-in-charge of the concerned police station at the material time, when the dacoity took place. He deposed that on 16th July, 1997, he arrested the accused appellant. He deposed that on the basis of the statement of the accused appellant, he recovered an old suitcase, 8 inches in length, containing three white dhuties, pension payment order and a tin box containing a sari and medical prescriptions. However, the statement is contrary to the statement of Witness No.14, Sulapani Mahato, who deposed that the suitcase and articles of her father-in-law had been recovered by her from the field. 10. The accused appellant was examined under Section 313 of the Criminal Procedure Code. Some questions put to the accused appellant are set out here-in-below:- '28. P.W. 15 also stated that you made a statement to him that you will show materials and the stolen properties and persuant to that he recovered old Attachi Case containing three white dhuties, Pension paper, Payment order and a tin box containing a sari, medical prescription etc. Do you have anything to say in respect of this allegation?' '29. P.W. 15 also proved your statement as Ext.7 wherefrom it is revealed that you along with Jamiruddin Ansary, Samsuddin Ansary, Khedan Ansari, Akbar Ansari, Buchu Ansari, Maram Ali Ansari, Nasim Ansari, Tayab Ali Ansary, Sadik Ansari, Taher Ansary, Pradhlad Mudi, Muslim Ansary, Anand Ansari, Aritar, Perka alias Charka Ansari and two other Bouris committed the dacoity in the house of Sulapani Mahato. Do you have anything to say in respect of this Allegation?' '30. It is also revealed from Ext.7 that Muslim Ansari, Ananda Ansari and one Bouri were armed with bombs who hurled bomb on Sulapani Mahato Railway Employee. Do you have anything to say in respect of this allegation?' 11. In reply to the question Nos. 28 and 29, the accused appellant answered 'it is false' and in reply to the question No.30, the accused appellant answered 'I cannot say' . 12. The learned Sessions Judge has not at all considered the evidence of PW 14 Sulapani Mahato daughter-in-law of Rameswar Mahato who identified the dhuti and other articles of her father-in-law. The PW 14 deposed that the articles were recovered by her from the field. She left the articles in the house of her in-laws and the articles were handed over to the Police by the family members. 13. The conviction under Section 412 cannot, therefore, be sustained. 14. The appeal is allowed. The judgment and order of conviction and sentence is set aside. The accused appellant be set free. 15. The appeal thus stands disposed of. Let the Lower Court Records be sent back forthwith. SAHIDULLAH MUNSHI, J. :- 16. I agree. Appeal allowed.