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2017 DIGILAW 133 (CAL)

Tamijuddin v. State of West Bengal

2017-01-31

JOYMALYA BAGCHI

body2017
JUDGMENT : Joymalya Bagchi, J. 1. The appeal is directed against the judgment and order dated 18th November, 1992 passed by the learned Additional Sessions Judge, Islampur in Sessions Trial No. 40/90 [Sessions Case No. 21/90] convicting the appellant for commission of offence punishable under Section 396 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for six years and to pay fine of Rs. 1000/-, in default, to suffer rigorous imprisonment for one year more. The prosecution case as alleged against the appellant is to the effect that on 2nd September, 1984, at about 11:30/12 p.m. midnight, the appellant along with others being armed with weapons and having torch light in their hands came to the house of the defacto complainant (PW. 1) and by show of arms compelled the de facto complainant and other persons sleeping in the courtyard of the house to remain mum. In the meantime, the miscreants broke the door of the house of the de facto complainant and his nephew and looted away cattle, utensils and other valuable articles from the house. When the miscreants were fleeing away, the de facto complainant and others chased them. One of the miscreants fired at them and as a result one Sayad died. The de facto complainant and others could identify the miscreants by flash of torchlight. It was suspected by the de facto complainant that due to dispute over selection of bride with his nephew Salauddin, the said Salauddin may have committed dacoity in the house. In course of investigation, the appellant was arrested and put up for identification in T.I. Parade and was identified by the de facto complainant (PW. 1) and PW. 4, Najimuddin alias Sirua Khawa. In conclusion of investigation, charge-sheet was filed against the appellant under Section 396, IPC. The case was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, Islampur for trial and disposal. Charge was framed under Section 396 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. In course of trial, prosecution examined as many as 14 witnesses. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgment and order dated 18th November, 1992, convicted and sentenced the appellant, as aforesaid. 2. Mr. The appellant pleaded not guilty and claimed to be tried. In course of trial, prosecution examined as many as 14 witnesses. The defence of the appellant was one of innocence and false implication. In conclusion of trial, the trial Judge by the impugned judgment and order dated 18th November, 1992, convicted and sentenced the appellant, as aforesaid. 2. Mr. Pawan Kumar Gupta, learned Amicus Curiae, submitted that the evidence on record with regard to identification of the appellant suffers from various infirmities. PW. 1 deposed that he had identified the appellant as he was a bald person. However, in course of T.I. Parade, no precaution was taken to mix up the appellant with other bald suspects. It is further submitted that there was delay in holding T.I. Parade and the appellant was known to the witnesses and therefore, identification of the appellant loses significance. He accordingly, prayed for acquittal. 3. On the other hand, Mr. Saryati Dutta, learned advocate appearing for the State, submitted that there is ample evidence on record that dacoity was committed in the house of PW. 1. Appellant was identified by PWs 1 and 4 in course of T.I. Parade as well as in Court. There was proof of light at the time of commission of offence and therefore, identification of the appellant by the said witness is most probable and natural. He prayed for dismissal of the appeal. 4. The most vital witnesses in the instant case are P.Ws. 1 and 4, who have identified the appellant during T.I. Parade as well as in Court. 5. PW. 1 is the de facto complainant in the instant case. He deposed that about eight years ago in the month of Bhadra at around 11:30 p.m., a dacoity was committed in his house. At that time he along with others were sleeping in the verandah. The miscreants who were carrying torch, lathi and other weapons threatened them with dire consequences. Thereafter, they broke open doors and windows. They also brought out his cows and buffaloes as well as his nephew Sayad Hossain. They also broke the house of his nephew Lal Md. and niece Najmuddin and took away cattle from their house. The said houses are within the same compound. In the meantime, he managed to come out of the house and raise alarm. The miscreants came out of the house and fired in the air. They also broke the house of his nephew Lal Md. and niece Najmuddin and took away cattle from their house. The said houses are within the same compound. In the meantime, he managed to come out of the house and raise alarm. The miscreants came out of the house and fired in the air. He and other inmates raised alarm and thereupon the miscreants fired once again causing death of Sayad Hossain and injury on Najmuddin Sayad. Sayad Hossain was taken to hospital and died on the way. Next morning he being accompanied by Idrish went to Islampur Police Station and lodged complaint (Exhibit-1). T.I. Parade was held in Islampur sub-jail. He identified the appellant by his bald head. He was carrying torchlight and lathi. Inquest was held. Dead body of Sayad was sent to Raiganj Hospital for post-mortem examination. In cross-examination, he deposed that he stated to O.C. that some of the miscreants were wearing lungis, pagris and ganjis. He stated that Md. Hossain of Kathalbari is his cousin. The appellant is a relation of Md. Hossain. Islampur Haat is the common haat of the accused and the said witness. Appellant and PW. 1 also used to come to the said haat. 6. PW. 4 deposed that about eight years ago in the month of Bhadra, a dacoity was committed in the house of PW. 1. They live in the same premises. He was sleeping in the western verandah when the dacoity was committed. The dacoits were carrying torch and lathis. The dacoits took away cattle and started moving in southerly direction. They chased the dacoits whereupon the dacoits fired and hit one of them. Sayad sustained injury and died on the way to the hospital. In T.I. Parade held at Islampur sub-jail, he identified the appellant due to scant hair. In cross-examination, he stated that he identified the accused person because of baldness. Only the appellant was placed in the T.I. Parade as a bald headed person. 7. PW. 12 is the Magistrate who held T.I. Parade. He deposed that he held T.I. Parade on 11th lanuary, 1985 at Islampur sub-jail. P.Ws. 1 and 4 identified the suspects. Both the witnesses stated before him that they identified the suspects by some identifying mark. He proved the T.I. Parade sheet (Exhibit-3). 7. PW. 12 is the Magistrate who held T.I. Parade. He deposed that he held T.I. Parade on 11th lanuary, 1985 at Islampur sub-jail. P.Ws. 1 and 4 identified the suspects. Both the witnesses stated before him that they identified the suspects by some identifying mark. He proved the T.I. Parade sheet (Exhibit-3). In cross-examination, he admitted there is no specific mention in the T.I. Parade that undertrial prisoners were mixed with the suspects who had bald head or scant hair. 8. PW. 2, PW. 5 & PW. 6 are post occurrence witnesses who have deposed that a dacoity had taken place in the house of PW. 1 and one Sayad had died due to firing by the dacoits. 9. PW. 8 is a seizure list witness who deposed that Darogababu visited the place of occurrence and seized one fired cartridge, some stone chips and a bundle of rope. He proved his signature on the seizure list (Exhibit-2). 10. PW. 9 is also a seizure list witness who signed on the seizure list prepared in respect of seizure of wearing apparels of the deceased. 11. PW. 11, Dr. R.B. Ghose is the autopsy surgeon who was attached to Raiganj Hospital and he proved the post-mortem report of the deceased, Sayad Hossain prepared by Dr. R.B. Rudra. 12. PW. 13 is the police officer who held inquest over the dead body of the deceased and sent the dead body to the hospital for postmortem examination. He proved the inquest report (Exhibit-2/2). He also seized the wearing apparels of the victim. 13. PW. 14 is the Investigating Officer in the instant case. He wrote down the letter of complaint on the dictation of PW. 1 and drew up the formal FIR. (Exhibit-4). He visited the place of occurrence, prepared sketch map with index (Exhibit-5). He prepared seizure list (Ex-hibit-2/2). He recorded statement of witnesses and arrested the appellant. He put the appellant for examination in T.I. Parade. He collected the result of T.I. Parade as well as postmortem report. He handed over the case diary to S.I., P. Dutta upon transfer. 14. From the evidence on record it appears that there was a dacoity committed in the house of PW. 1 in the night of 2nd September, 1984. The dacoits threatened PW. 1 and other inmates of the house including PW. He handed over the case diary to S.I., P. Dutta upon transfer. 14. From the evidence on record it appears that there was a dacoity committed in the house of PW. 1 in the night of 2nd September, 1984. The dacoits threatened PW. 1 and other inmates of the house including PW. 4 to silence and took away various articles including cattle belonging to the said witnesses. The witnesses chased the miscreants who in turn fired at them and one Sayad expired due to such firing. On the next day, FIR was registered in the instant case. In course of investigation, the appellant was arrested and is claimed to have been identified in T.I. Parade which was conducted by PW. 12. PWs 1 and 4 have stated on oath that they identified the appellant by his bald head. However, PW. 12 admitted that no effort was taken to mix the suspect with other under-trial prisoners having bald head or scant hair. PW. 4 admits in cross-examination that the appellant was the sole person in the T.I. Parade who had a bald head. It is, therefore, evident that sufficient precaution was not taken while conducting T.I. Parade examination and the appellant was easily identifiable due to his bald-ness in course of such examination. That apart, it has also transpired from the evidence of PW. 1 that the appellant was known to the said witness from before. The appellant is a relation of the cousin of the said witness and both of them used to go to Islampur Haat for selling cattle. It is, therefore, evident that PW. 1 had known the appellant from before who was also a relation of his cousin. If that is so, holding of T.I. Parade is an empty formality and there is no explanation as to why the appellant was not named in the FIR by PW. 1 although he was known to the said witness from before. Such lacunae which goes to the root of the prosecution has not been explained at all. Identification by PW. 4 is also highly doubtful. In cross-examination, he admitted that he identified the appellant due to his baldness and that the latter was the only person put up in the T.I. Parade with a bald head. That apart, it is claimed by PWs 1 that PW. 4 was injured during firing. Identification by PW. 4 is also highly doubtful. In cross-examination, he admitted that he identified the appellant due to his baldness and that the latter was the only person put up in the T.I. Parade with a bald head. That apart, it is claimed by PWs 1 that PW. 4 was injured during firing. No such evidence is transpiring from the mouth of PW. 4 himself. 15. In view of the aforesaid evidence on record, more particularly in the light of the fact that the appellant appears to be a person who was known to PW. 1 from before, I am of the opinion that failure of the said witness to name the appellant as a miscreant in the FIR strikes a death knell to the truthfulness of the prosecution case and the appellant is, therefore, entitled to be acquitted of the charge levelled against him. 16. Accordingly, the appeal is allowed. The conviction and sentence imposed upon the appellant is set aside. 17. The appellant shall be discharged from his bail bond after six months from date in terms of Section 437A of the Code of Criminal Procedure. 18. The lower court records along with a copy of this judgment be sent down at once to the learned trial court for necessary action. 19. I record my appreciation for the able assistance rendered by Mr. Pawan Kumar Gupta, learned advocate, as amicus curiae in disposing of the appeal. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities.