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2016 DIGILAW 776 (CAL)

Deb Kumar Das v. State

2016-09-29

ASHIM KUMAR ROY, MALAY MARUT BANERJEE

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JUDGMENT : Malay Marut Banerjee, J. 1. Six accused persons were tried in the Fast Track Court of the Ld. Addl. District & Sessions Judge, Bishnupur in connection with Sessions Trial No. 5(7)04 arising out of Sessions Case No. 6(6)02 to answer charges under Section 396/120B I.P.C. Out of them accused Tapa @ Tapu @ Khepa Bagdi was found not guilty of the charges and was acquitted. The remaining five accused persons were found guilty under Section 396 I.P.C. and the Ld. Trial Judge held that there is no need to record a separate findings for the offence under Section 120B I.P.C. The appellant/convict Naru @ Monoranjan Mathur was sentenced to suffer imprisonment for life and to pay fine of Rs.5000; convict Deb Kumar Das was sentenced to suffer rigorous imprisonment for 8 years and to pay fine of Rs.5000 with default clause; convict Golam Mustafa and Sk. Kajem Badsha were sentenced to suffer rigorous imprisonment for 6 years and to pay fine of Rs.5000 with default clause and convict Buro @ Sitanshu Bhowmick was sentenced to suffer simple imprisonment for 5 years and to pay fine of Rs.5000 with default clause. 2. In connection with CRA No. 559 of 2007 a Division Bench of this Court issued rule for enhancement of sentence since the State did not come forward against the inadequacy of sentence. Similarly, a Single Bench of this Court in connection with CRA No. 600 of 2007 also issued rule for enhancement against the appellant Buro @ Sitanshu Bhowmick and subsequently this Bench also issued a notice of enhancement of sentence of convict Kajem Badsha. 3. Before going into the question of enhancement of sentence it is incumbent upon us to decide whether the impugned judgment and order of conviction and sentence can be sustained. 4. Mr. Debasish Roy, the Ld. Advocate appearing on behalf of the appellant Golam Mustafa in CRA No. 559 of 2007 vehemently contended that there is no iota of legally admissible evidence in-so-far-as accused Golam Mustafa is concerned and the Ld. Trial Judge in arriving at the guilt of the appellant relied on the statement of another co-accused recorded by the Investigating Officer (P.W.18) which is not permissible as also the statement of the accused himself recorded under Section 161 Cr.P.C. The Ld. Advocate drew our attention to pages 28 and 29 of the judgment. The Ld. Trial Judge in arriving at the guilt of the appellant relied on the statement of another co-accused recorded by the Investigating Officer (P.W.18) which is not permissible as also the statement of the accused himself recorded under Section 161 Cr.P.C. The Ld. Advocate drew our attention to pages 28 and 29 of the judgment. The Ld. Trial Judge in the impugned judgment came to hold: “............ if evidence of P.W.2, P.W.6 and information given by accused Deb Kumar Das and Golam Mustafa to the I. O. – all are taken into consideration then it appears accused Deb Kumar Das had earlier knowledge about these two idols when he had gone to the house of the deceased before the incident for installation of iron grill. His statement has also disclosed under what circumstances and by whose acts Kamalanona has died.” 5. To our utter dismay we find that the Ld. Trial Judge considered the statement of the accused persons recorded by the Investigating Officer under Section 161 Cr.P.C. as evidence. We, therefore, cannot put a seal of approval on such findings. Be that as it may, in this regard we have also gone through the evidence of P.W.2 (Bsudev Banerjee) and P.W. 6 (Smt. Lalita Mukherjee) and find that there is no whisper even against the appellant in their evidence. It is found that while P.W.2 was a family priest of deceased Kamalanona, the old lady killed by the miscreants in course of committing decoity of the idols of Radha – Damodarji which she used to worship, P.W.6, the daughter of the deceased identified the stolen and recovered idols produced in Court. It came out in the evidence of P.W.6 that the idol of Shree Radha was of ‘Asta Dhatu’ and the idol of Damodarji was of ‘Kashti Pathar’ and there were some gold and silver ornaments. 6. Mr. Roy also argued that P.W.7, Rampada Manna, officer-in-charge of Sonamukhi Police Station in his evidence has claimed to have accompanied P.W.18 Alok Kumar Mitra, the Investigating Officer of the case but curiously enough remained silent so-far-as the presence of appellant Golam Mustafa when police allegedly raided the house of co-convict Sk. Kajem Badsha and recovered the stolen idols. The Ld. Advocate also drew our attention to the questions put to convict Golam Mustafa by the Ld. Trial Judge. From questions No. 12 and 13 we find that the Ld. Kajem Badsha and recovered the stolen idols. The Ld. Advocate also drew our attention to the questions put to convict Golam Mustafa by the Ld. Trial Judge. From questions No. 12 and 13 we find that the Ld. Trial Judge relied on the confessional statement of convict Deb Kumar Das having confused himself what is legally admissible evidence and what is not as such. 7. The Ld. Advocates appearing for the other appellants also contended that the Ld. Trial Judge erroneously relied on the statement of the accused persons recorded by the Investigating Officer under Section 161 Cr.P.C. and the impugned judgment and order of conviction and sentence are liable to be set aside. 8. The Ld. Advocate appearing for accused Monoranjan Mathur argued that the prosecution wanted to believe that one pair of chappal which was seized from beside the boundary wall of the house where the decoity was committed belongs to the appellant and in that regard the prosecution examined P.W.11 Kusum Ranjan Patra a senior Scientific officer attached to Forensic Science Laboratory of Kolkata, Government of West Bengal who deposed that the foot-print of the appellant taken during investigation matches with the foot-print appearing in the seized pair of chappal and this P.W.11 opined that the hawai slippers marked Exbt – X and X1 and specimen foot-prints are the production of one and same left foot and right foot. He also stated that specimen 1 and 3 and specimen 2 and 4 are said to be the left and right plaster cast and inked foot-prints of said Monoranjan Mathur. It was argued that the seizure of ‘hawai chappal’ is not at all believable. 9. We have anxiously considered the argument put forward by the Ld. Advocate appearing for the appellants and carefully scrutinized the evidence on record. We find that P.W.2 was re-called by the prosecution and when his examination-in-chief was resumed on 21.02.2005 he simply stated that:- “The seized chappal was recovered by the police nearby the gas-pipe of the latrine of the house of the deceased beside the boundary wall outside of that house.” Similarly, it is in the evidence of P.W.18 shows that he simply identified the pair of chappal (Mat Exbt-5). There is nothing in the evidence on record that when the Investigating Officer visited the place of occurrence and the vicinity he or any of the witnesses found the pair of chappals and thereafter seizure was made. It seems that the introduction of the factum of seizure of pair of chappals is not without doubt. Similarly, there is nothing in the evidence on record to convince us that the seized Motor-Cycle was used by the present appellants for the purpose of committing decoity or carrying away the stolen idols. 10. Although the fact remains that the stolen idols were recovered at the instance of the appellants Deb Kumar Das, Golam Mustafa and Kajem Badsha but the prosecution failed to adduce convincing evidence in that regard. The evidence of P.W.12 and P.W.13 does not inspire confidence. 11. Having scrutinized the evidence on record we find and hold that the prosecution has not been able to bring home the charges against the convicts/appellants beyond the shadow of all reasonable doubt and consequently the order of conviction and sentence passed against them cannot be sustained. 12. In the result, all the appeals succeed. The impugned judgment and order of conviction and sentence are set aside. The convicts, if any of them is in custody be released forthwith unless detained in connection with any other case. 13. In the light of our judgment the Rules for enhancement of sentence also stand disposed of. I agree – Ashim Kumar Roy and Malay Marut Banerjee, JJ.