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2018 DIGILAW 294 (CAL)

Amrit Bauri v. State of West Bengal

2018-03-19

JOYMALYA BAGCHI, RAVI KRISHAN KAPUR

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JUDGMENT : JOYMALYA BAGCHI, J. 1. Nobody appears for the parties. However, as the appellants have been sentenced to term imprisonment which is about to come to end, we have taken up the appeal for hearing. 2. The appeal is directed against judgment and order of conviction dated 27th April, 2011 passed by the learned Additional Sessions Judge, 1st Court, Bankura in Sessions Trial No. 3(11)2001 arising out Session Case No. 6(7)2001 convicting the appellants punishable under Sections 392 and 412 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for ten years and to pay a fine of Rs. 10,000/-, in default to suffer simple imprisonment for three months more for the offence under Section 392 of the Indian Penal Code and to suffer rigorous imprisonment for ten years for committing offence punishable under Section 412 of the Indian Penal Code, both the sentences to run concurrently. 3. The prosecution case against the appellants is to the effect that the they along with others committed dacoity on 23rd August, 1995 of cash to the tune of Rs. 7,75,000/- by intercepting a hired taxi bearing Registration No. WB 68/5549 which was carrying the money in cash remittance boxes from UCO Bank Jhantipahari Branch to the Bankura Branch of the said bank. It was further alleged that the said cash was carried in the hired vehicle by the Manager, Umapada Chakraborty of Jhantipahari Branch of the Bank along one Ranjit Patra, Assistant Manager, Mr. Manabenedra Mirdha, Assistant Manager (Cash), Mr. Sagar Chandra Mondal, Assistant Cashier and Mr. Amulya Ratan Mandi, the armed guard. At around 16:15 hours when the party had approached Kharbana Railway over bridge, they noticed an Ambassador Car blocking the road on the opposite side of the bridge. It appeared that the said vehicle was out of order. As the hired car carrying the cash slowed down on the bridge, four people approached the said vehicle. One of the miscreants tried to snatch the gun from the armed guard by showing Bhojali. Another miscreant showed a pipe gun at Umapada Chakraborty and Ranjit Patra and threatened them that they would be killed. The vehicle used by the miscreants was of whitish in colour with blackish glass panes. Sagar Chandra Mondal noticed that the number plate of the vehicle was covered with mud and the number was undecipherable. Another miscreant showed a pipe gun at Umapada Chakraborty and Ranjit Patra and threatened them that they would be killed. The vehicle used by the miscreants was of whitish in colour with blackish glass panes. Sagar Chandra Mondal noticed that the number plate of the vehicle was covered with mud and the number was undecipherable. The miscreants followed the hired vehicle and overtook it at Karbana crossing. A bus under the name and style 'Shaktisree Paribahan' crossed the vehicle between railway bridge and Kharbana crossing. The bank officials unsuccessfully cried for help. After crossing Basanti Oil Mill the miscreants pulled out the armed guard from the vehicle. Thereafter, all of the bank officials including the driver were pulled out. Then the miscreants sped away with the vehicle carrying cash towards Kamalpur. After their departure Ranjit Patra and Sagar Mondal took a lift in a car and reached Chhatna P.S. Umapada Chakraborty and Manabendra Mirdha also took a lift to the Police Station in a motorcycle. Due to assault, the armed guard Mandi had suffered injuries and was treated at Chhatna Primary Health Centre. Mr. Mirdha and Mr. Mondal had also received injuries and were treated at the said Primary Health Centre. Umapada Chakraborty lodged complaint resulting in registration of criminal case. Investigation was taken up by CID and in course of investigation Rs. 3400/- was recovered from the appellant No. 1, Amrit Bauri whereas Rs. 40,000/- was recovered from the possession of appellantno.2, Madan Bouri. In the course of test identification parade, one Bablu Bauri was identified by some of the witnesses as a customer of the bank. 4. In conclusion of investigation, charge-sheet was filed under Sections 395, 397 and 412 of the Indian Penal Code. The case was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge, 1st Court, Bankura for trial and disposal. Charges were framed under Sections 395 and 412 of the Indian Penal Code. The appellants pleaded not guilty and claimed to be tried. 5. In course of trial prosecution examined 19 witnesses and exhibited the number of documents. The defence of the appellants was one of innocence and false implication. 6. In conclusion of trial, the Trial Judge by the impugned judgment and order dated 27th April, 2011 convicted and sentenced the appellants, as aforesaid. 7. 5. In course of trial prosecution examined 19 witnesses and exhibited the number of documents. The defence of the appellants was one of innocence and false implication. 6. In conclusion of trial, the Trial Judge by the impugned judgment and order dated 27th April, 2011 convicted and sentenced the appellants, as aforesaid. 7. Perusal of the evidence-on-record shows that the appellants have not been identified by any of the witnesses either in court or in the course of test identification. The evidence connecting the appellants with the alleged crime are to the effect that appellant No. 1 Amrit Bauri was arrested by P.W. 14 Jitendra Nath Mukherjee, the then Officer-in-Charge of Raghunathpur Police Station in connection with another case, namely, Raghunathpur P.S. Case No. 51/95 dated 15.08.1995 under Sections 399/402 IPC. In the course of investigation in the said case, Amrit made a confessional statement implicating himself in the present case. Pursuant to the said confessional statement, P.W. 14 took Amrit to his house at Jorapukhur under Kashipur P.S. S.I. Md. Noor Mohammed, the then officer of Kashipur P.S. (P.W. 6), Satyabrata Chakraborty (P.W. 7) and K.K. Sinha, Circle Inspector of Raghunathpur P.S. (P.W. 15) also accompanied P.W. 14 as members of the raiding party. Amrit showed them a newly purchased Philips Television set which he claimed to have purchased by using the stolen cash. He also showed cash to the tune of Rs. 3,400/- in 68 notes of Rs. 50/- each recovered in his room. The said cash along with Philips Television were seized under a seizure list. A Vespa Scoter was also seized under a seizure list. Thereafter the police party went to the house of appellant No. 2 Madan Bauri and in presence of Satyabrata Chakraborty (P.W. 7) and Narayan Chandra De (P.W. 5), Rs. 40,000/- was recovered from the possession of Madan Bauri which was kept in a glass jar inside the earth under the cover of tiles. The evidence of P.W. 14 is not only corroborated by the police personnel, namely, P.Ws. 6, 7 and 15 but also by independent witness P.W. 5 who corroborated the seizure of Rs. 40,000/- cash from the possession of appellant No. 2, Madan Bauri. The evidence of P.W. 14 is not only corroborated by the police personnel, namely, P.Ws. 6, 7 and 15 but also by independent witness P.W. 5 who corroborated the seizure of Rs. 40,000/- cash from the possession of appellant No. 2, Madan Bauri. The bank officials, namely, Umapada Chakraborty (P.W. 8), the Manager of UCO Bank, Jahntipahari Branch, Sagar Chandra Mandal (P.W. 9), Ranjit Patra (P.W. 10) and Manabendra Mirdha (P.W. 12) who were present at the time of robbery have deposed regarding the robbery as well as identified the seized currency notes as those which were being transported by them and bore the signatures of Ranjit Patra (P.W. 10) and Manabendra Mirdha (P.W. 12). The evidence of the bank officials have also been supported by the driver of the hired vehicle which was used for transporting cash, P.W. 1, Soumen Kumar Khan and the Armed Guard of the Bank, namely, Amulya Ratan Mandi (P.W. 2). 8. From the aforesaid evidence it is, therefore, clear that the stolen cash was recovered from the possession of appellants soon after the robbery and they have failed to give any explanation with regard to the said recovery. 9. Section 114 illustration (a) of the Indian Evidence Act, 1872 which reads as follows: "114. The Court may presume existence of certain facts.-The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The Court may presume - (a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to the stolen, unless he can account for his possession; (b)...........................; (c)...........................; (d)...........................; (e)...........................; (f)...........................; (g)...........................: (h)...........................: (i)............................". 10. Applying the aforesaid presumption to the case, I have no doubt that failure on the part of the appellants to account for the currency notes which bear the signatures of the bank personnel and were shortly recovered from them after the robbery unerringly points to the guilt of the appellants. 10. Applying the aforesaid presumption to the case, I have no doubt that failure on the part of the appellants to account for the currency notes which bear the signatures of the bank personnel and were shortly recovered from them after the robbery unerringly points to the guilt of the appellants. However, in view of the fact that the robbery was committed by four persons and no conviction was recorded for offence of dacoity, I am of the opinion that the appellants could not have been convicted and sentenced for the offence punishable under Section 412 of the Indian Penal Code. Accordingly, the conviction and sentence of the appellants are modified. Conviction and sentence of the appellants under Section 392 of the Indian Penal Code are upheld. However, conviction of the appellants for the offence under Section 412 of the Indian Penal Code is altered to a lesser offence punishable under Section 411 of the Indian Penal Code and they are directed to suffer rigorous imprisonment for three years. Both the sentences to run concurrently. 11. With the aforesaid modification, the appeal is disposed of. 12. Period of detention suffered by the appellants during investigation, enquiry and/or trial shall be set off against their substantive sentences in terms of Section 428 of the Code of Criminal Procedure. 13. Copy of judgment along with lower court records be sent down to the trial court at once. Ravi Krishan Kapur, J. : I agree.