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2018 DIGILAW 386 (CAL)

Sk. Mahid Ahmed v. State of West Bengal

2018-05-17

JOYMALYA BAGCHI, RAVI KRISHAN KAPUR

body2018
JUDGMENT : Joymalya Bagchi, J. 1. All the appeals are taken up together and disposed of by this common judgment and order 2. C.R.A No. 72 of 2013 has been filed by Rejaul Karim Molla @ Pappu, C.R.A No. 82 of 2013 has been filed by Sahidul Haque Tarafdar @ Rintu and C.R.A No. 98 of 2013 has been filed by Bikash Mondal, Khokan Mondal, Basudev Mondal and Sk. Ansar Ali against the judgment and order dated 09/10.01.2013 passed by the learned Additional Sessions Judge, Fast Track Court No. 4, Barasat, North 24 Parganas in Sessions Trial No. 2(5) of 2008/Sessions Case No. 20(4) of 2008 convicting the appellants Basudeb Mondal, Khokan Mondal, Bikash Mondal and Sk. Ansar Ali for commission of offences punishable under sections 394/397/411 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for 9 years and to pay fine of Rs. 10,000/- each, in default, to suffer rigorous imprisonment for 2 years more each for the offence punishable under section 394 of the Indian Penal Code and to suffer rigorous imprisonment for 7 years each for the offence punishable under section 397 of the Indian Penal Code and to suffer simple imprisonment for 3 years each for the offence punishable under section 411 of the Indian Penal Code, convicting Rejaul Karim Molla @ Pappu, Sahidul Haque Tarafdar @ Rintu and Jayanta Mondal for commission of offence punishable under section 411 of the Indian Penal Code and sentencing them to suffer simple imprisonment for 3 years each for the offence punishable under section 411 of the Indian Penal Code, all the sentences to run concurrently with further direction, if no appeal is preferred, the seized gold and silver ornaments shall be returned to the de facto complainant, Mohid Ahmed. 3. It is pertinent to note that the said de facto complainant subsequently made an application for return of the seized gold and silver ornaments under section 452 of the Code of Criminal Procedure before the trial court which was turned down by order dated 24.02.2015. Such order is the subject matter of appeal under section 454 Cr.P.C. being Criminal Appeal No. 376 of 2015 at the behest of the de facto complainant, Mohid Ahmed. 4. The prosecution case, as alleged, against the appellants is to the effect that P.W. 1 Sk. Such order is the subject matter of appeal under section 454 Cr.P.C. being Criminal Appeal No. 376 of 2015 at the behest of the de facto complainant, Mohid Ahmed. 4. The prosecution case, as alleged, against the appellants is to the effect that P.W. 1 Sk. Mohid Ahmed is the owner of a jewellery shop, named and styled as "The R.A. Jewellery House" situated at Rajarhat Chowmatha under P.S. Rajarhat. On 18.01.2008 at about 9.15 p.m. while he was about to close his shop, three miscreants armed with weapons entered his shop. At the relevant time two employees, namely, Khokan and Babu Sona alias Koushik Roy, P.W. 4 were present in the shop. Sister-in-law of P.W. 1, namely, Shilpi, P.W. 6 was also present in the shop. The miscreants looted about 10/15 bhoris gold ornaments and one mobile phone of P.W. 1 and kept the stolen articles in a nylon bag. One of the miscreants snatched away gold necklace and gold ear-top from Shilpi. They were talking among themselves in Bengali and were aged about 28/30 years. The miscreants took Rs. 30,000/- to Rs. 35,000/- in cash. P.W. 1 caught hold of one of the miscreants whereupon the other miscreants exploded bombs and all of them managed to flee away in two motor cycles. They fired one round from their pipeguns and threw bombs at Chowmatha. The stolen ornaments bore the hallmark "RA-22C - SS - RA - 22 - CP/KP". 5. On the written complaint of P.W. 1, Rajarhat P.S. Case No. 19 of 2008 dated 19.01.2008 was registered for investigation under section 392 of the Indian Penal Code and sections 25/27 of the Arms Act and section 9(b) of the Indian Explosive Act. 6. In the course of investigation, appellants were arrested and Basudeb Mondal, Khokan Mondal, Bikash Mondal and Sk. Ansar Ali were identified by P.W. 1 in the course of test identification parade. Various jewelleries containing similar hallmarks, mobile phone and other stolen articles including firearms was recovered from the possession of the appellants and co-accused persons. 7. In conclusion of investigation, charge sheet was filed against the appellants and other accused persons and case was committed to the Court of Sessions and transferred to the Additional Sessions Judge, Fast Track Court No. 4, Barasat, North 24 Parganas for trial and disposal. 8. 7. In conclusion of investigation, charge sheet was filed against the appellants and other accused persons and case was committed to the Court of Sessions and transferred to the Additional Sessions Judge, Fast Track Court No. 4, Barasat, North 24 Parganas for trial and disposal. 8. Charges were framed against the appellants and other accused persons under sections 394/397/411 of the Indian Penal Code and sections 25/27 of Arms Act. 9. The appellants and other accused persons pleaded not guilty and claimed to be tried. 10. In the course of trial prosecution examined 19 witnesses and exhibited a number of documents. The defence of the appellants is one of innocence and false implication. 11. In conclusion of trial, the trial Judge by judgment and order dated 09/10.01.2013 convicted and sentenced the appellants, as aforesaid. Hence, the present appeals being CRA 72 of 2013, CRA 82 of 2013 and CRA 98 of 2013. At the time of admission of the appeals, rule was issued for enhancement of sentence by a coordinate bench of this Court. 12. Subsequent to the delivery of judgment, P.W. 1 preferred an application before the learned trial Judge praying for return of the seized gold, silver ornaments which was turned down by order dated 24.02.2015. Being aggrieved by the said order, he preferred an appeal which was registered as C.R.A. 376 of 2015. 13. Accordingly, the aforesaid appeals along with the rule for enhancement of sentence are taken up for hearing together. 14. Nobody appears for the appellant/convicts. Mr. Partha Pratim Das with Ms. Trina Mitra were requested to appear as amicus curiae. They argued that apart from P.W. 1 nobody could identify the appellants in the course of T.I. Parade. That apart, there was no T.I. Parade in respect of articles which were seized in the course of investigation. They prayed for acquittal of appellants. 15. Mr. Saswata Gopal Mukherjee, learned Public Prosecutor with Mr. Arun Kr. Maiti, learned Additional Public Prosecutor appearing for the State submitted that evidence on record with regard to the involvement of the appellants in the robbery is clear and convincing. Not only P.W. 1 and P.W. 6 identified Bikash Mondal, Khokan Mondal, Basudev Mondal and Sk. Ansar Ali in Court but P.W. 1 also identified them in the course of test identification parade. Soon after the incident, stolen articles were recovered from the possession of the appellants. Not only P.W. 1 and P.W. 6 identified Bikash Mondal, Khokan Mondal, Basudev Mondal and Sk. Ansar Ali in Court but P.W. 1 also identified them in the course of test identification parade. Soon after the incident, stolen articles were recovered from the possession of the appellants. Stolen articles bore the hallmark of the jewellery shop of P.W. 1 and therefore failure to hold test identification parade in respect of the stolen articles does not militate against the prosecution case. Accordingly, appeals may be dismissed. 16. Mr. Rajdeep Majumder, learned advocate appearing for the de facto complainant P.W. 1 submitted that the direction of the trial Court to return the seized articles to P.W. 1 only in the event no appeal is preferred is contrary to law. He, however, conceded that the appeal preferred by his client against the subsequent order dated 24.02.2015 was not maintainable. 17. I have considered the rival submissions of the parties in the light of the evidence on record. 18. P.Ws. 1, 2, 4 and 6 are witnesses who were present at the time of robbery. 19. P.W. 1 is the de facto complainant and owner of the jewellery shop. He deposed that on 18.01.2008 around 9.10 to 9.15 P.M. when he was about to close his shop, three persons entered the shop room. Out of them, two persons brought out a pipegun and the other person brought out a bhojali. Thereafter, they looted the gold ornaments from the shop and kept the ornaments in a nylon bag. He followed them and shouted "dacoit dacoit" and caught hold of one of them from behind. Thereafter, they threw bombs and fired from their pipegun. Then they fled in two black coloured motor bikes. He went to the police station at 12.30 A.M. in the night and lodged a complaint. He proved his signature in the complaint (Exbt. 1). During enquiry by police it was noticed that 20/25 bhoris of gold ornaments along with cash amounting to Rs. 40,000/- were looted by the accused persons. There were identification marks in the gold ornaments, namely, RA 22C SS and RA 22 CP/PK. He went to Dum Dum correctional home on two occasions for the purpose of test identification parade. He identified three of the accused persons during T.I. Parade on the first occasion. He identified the fourth person on the second occasion. There were identification marks in the gold ornaments, namely, RA 22C SS and RA 22 CP/PK. He went to Dum Dum correctional home on two occasions for the purpose of test identification parade. He identified three of the accused persons during T.I. Parade on the first occasion. He identified the fourth person on the second occasion. He identified Bikash Mondal, Khokan Mondal, Basudev Mondal and Ansar Ali in the dock. He identified the mobile phone which was snatched from him in the course of dacoity. He identified the gold ornaments which had been seized and produced in Court. He identified the hallmark numbers on the seized ornaments being RA 22C SS and RA 22 CP/PK. 20. PW. 2 Saidul Molla and P.W. 4 Koushik Roy are employees who were present at the place of occurrence. They have corroborated the evidence of PW 1 with regard to robbery. They however did not identify the accused persons. 21. PW 6 Rimika Mousina @ Shilpi was also present at the time of robbery. She is the sister-in-law of PW 1. She corroborated the evidence of PW 1. She stated that one of the miscreants snatched away gold chain, two earrings from her. She identified Sk. Ansar Ali who snatched the gold chain from her. She deposed that she did not attend the T.I. Parade. 22. PW 15 Puspa Bhattacharya is a resident of Jagadishpur, Rajarhat. She deposed that on 18.01.2009 at around 9/9.30 P.M. at night while she was proceeding down the road from Rajarhat Chowmatha to her house she suffered injuries due to bomb blasts caused by dacoits who were running away from the said place. She was medically treated at Rajarhat Hospital. 23. PW 17 Dr. Sarmistha Chatterjee of the Rek Hwanit Primary health Center treated PW 15. She corroborated the evidence of PW 15 and proved the injury report (Exbt. 28). 24. From the evidence of the aforesaid witnesses it appears that there was a robbery in the jewellery shop of PW 1 on 18.01.2008 around 9.10 to 9.30 P.M.. The miscreants armed with pipeguns and bhojali had come to the shop of PW 1. At that point of time apart from PW 1 there were two employees, namely, PW 2 and 4 in the shop. His sister-in-law (PW 6) also happened to be present in the shop room. The miscreants armed with pipeguns and bhojali had come to the shop of PW 1. At that point of time apart from PW 1 there were two employees, namely, PW 2 and 4 in the shop. His sister-in-law (PW 6) also happened to be present in the shop room. The miscreants took away various gold ornaments containing hallmark RA 22C SS and RA 22 CP/PK and cash of Rs. 40,000/- and also a gold chain and earring of PW 6. While they were leaving the jewellery shop, PW 1 caught hold of one of the miscreants whereupon they threw bombs and fired from their pipeguns and fled away in their motorcycles through Rajarhat Chowmatha Road. As a consequence of such bomb blasts PW 15 suffered injuries and was treated at the local primary health center. 25. In this backdrop the questions which fall for determination are whether the appellants Bikash Mondal, Basudev Mondal, Khokan Mondal and Ansar Ali were the members of the group who committed robbery and the other appellant, Rejaul Karim alias Pappu had received stolen property or not. 26. Mr. Das, learned Amicus Curiae argued that while PW 1 claimed that there were three miscreants, he identified four appellants in Court as well as in T.I. Parade. Such identification is, therefore, contrary to his evidence in Court as to the number of persons who committed the robbery. He also argued that other witnesses, namely, P.Ws. 2, 4 and 6 were unable to identify any of the miscreants save and except Ansar Ali (who was identified by PW 6). 27. I have examined the evidence of aforesaid prosecution witnesses in the light of the challenges thrown by Mr. Das, learned Advocate. PW 1 stated that three miscreants had entered the shop room. However, such statement cannot be read in isolation and must be understood from the explanation given by him of the narration of the incident before P.W. 10 during the T.I parade. One of the miscreants, namely Ansar Ali entered the shop and thereafter three others followed him. If the evidence of P.W. 1 is read in this perspective, it is clear though four miscreants were in the jewellery shop when robbery was committed, they had entered the shop room in two groups, numbering one and three respectively. One of the miscreants, namely Ansar Ali entered the shop and thereafter three others followed him. If the evidence of P.W. 1 is read in this perspective, it is clear though four miscreants were in the jewellery shop when robbery was committed, they had entered the shop room in two groups, numbering one and three respectively. Their specific roles were stated by PW 1 not only in Court but also in the course of their identifications in the T.I. Parade before the Magistrate (PW 10). PW 6 has also identified one of the miscreants, namely, Ansar Ali as the person who snatched the gold chain from her neck. As appellant Ansar Ali had snatched the gold chain from the neck of PW 6, it is probable that she was able to identify the face of the said miscreant but could not identify the other miscreants. From the evidence of PW 10, who conducted the test identification parade, I find directions were given to ensure that the identities of the suspects were not disclosed to PW 1 and all other formalities were duly performed. In view of the aforesaid facts, I am convinced that identification of the appellants, namely, Bikash Mondal, Basudeb Mondal, Khokan Mondal and Ansar Ali as the persons who committed the robbery is convincing and can be relied on. It is trite law that if the identification of the miscreants by a single witness is reliable then the prosecution case ought not be thrown out. 28. That apart, soon after the incident, the stolen articles were recovered by the investigating officer PW 19 from the appellants in the following manner:- (I) On 08.02.2008 PW 19 recovered a gold chain from the custody of the appellant Rejaul Karim Molla @ Pappu and one gold finger ring from co-convict Sahidul Haque Tarafdar @ Rintu both having the hallmark of the shop of PW 1. The evidence of PW 19 in this regard was corroborated by PWs. 13 and 14. (II) Pursuant to the statement of accused Sahidul Haque Tarafdar @ Rintu, PW 19 on 10.02.2008 seized two gold plated Nowa, four gold earrings, one gold ring, one gold necklace from the possession of accused Khokan Mondal having the hallmark as specified by PW 1. The evidence of PW 19 in this regard was corroborated by PWs. 13 and 14. (II) Pursuant to the statement of accused Sahidul Haque Tarafdar @ Rintu, PW 19 on 10.02.2008 seized two gold plated Nowa, four gold earrings, one gold ring, one gold necklace from the possession of accused Khokan Mondal having the hallmark as specified by PW 1. (III) Similarly from the possession of accused Bikash Mondal one Chur, a Jhalar Pasa made of gold and a gold plated Sakhabadhano were recovered which were identified by PW 1. (IV) Seizure was also effected on 11.02.2008 of 10 pieces of earrings, four pairs of silver nupur and a country made revolver from the possession of co-convict Rajjak @ Bhutto. The revolver was found to be in working condition as per the evidence of the arms expert (PW 18). Sanction in this case was proved by PW 16. (V) Similar seizures of gold and silver ornaments were made from the possession of the accused Jayanta Mondal on 18.02.2008 and three gold rings, two of which were fitted with precious stones, bearing hallmarks of the shop of P.W. 1 were effected from the accused Ansar Ali on 22.02.2008. 29. From the aforesaid evidence on record it appears that apart from identification of PW 1 and PW 6, stolen articles were also recovered from all the appellants soon after the incident. It has been argued that the stolen articles were not put up for T.I. Parade. In the face of clear identification marks on the gold ornaments as specified by PW 1 at the earliest opportunity in the FIR, I have no doubt that the seized articles were a part of the stolen booty. Illustration (a) to Section 114 of the Evidence Act, inter alia, provides if stolen articles are recovered from the possession of an accused soon after the incident it may be presumed that the accused has either committed the robbery or is a receiver of stolen goods. The aforesaid seizures of stolen articles from the appellants soon after the incident lends credence to the prosecution case and corroborates the evidence of PWs. 1 and 6 who identified the appellants, namely, Bikash Mondal, Khokan Mondal, Basudev Mondal and Ansar Ali as the miscreants who committed robbery in the jewellery shop of P.W. 1. The aforesaid seizures of stolen articles from the appellants soon after the incident lends credence to the prosecution case and corroborates the evidence of PWs. 1 and 6 who identified the appellants, namely, Bikash Mondal, Khokan Mondal, Basudev Mondal and Ansar Ali as the miscreants who committed robbery in the jewellery shop of P.W. 1. The evidence of seizure of gold ornaments bearing the hall marks of P.W. 1 from the possession of appellants, Sahidul Haque Tarafdar @ Rintu and Rezaul Karim Molla @ Pappu which were also identified by the said witness in Court establishes the prosecution case of receiving stolen property against them beyond reasonable doubt. 30. In view of the aforesaid discussion, I am inclined to hold the convictions recorded against the appellants Bikash Mondal, Khokan Mondal, Basudev Monda, Ansar Ali and Rezaul Karim @ Pappu respectively. 31. Coming to the issue of sentence, I do not find that the appellants have criminal antecedents. In view of such fact I am unwilling to enhance the sentence imposed on them. On the other hand, I choose to reduce the sentence imposed upon the appellants Bikash Mondal, Khokan Mondal, Basudev Mondal, Ansar Ali and Rezaul Karim @ Pappu on the score of commission of offence under Section 394 IPC and I direct that they shall suffer rigorous imprisonment for 7 years and pay a fine of Rs. 1000/-, in default to suffer rigorous imprisonment for 1 year more. Sentence imposed on them for commission of offence under Sections 397/411 IPC shall, however, remain unchanged and will run concurrently. Sentence imposed upon Rejaul Karim Molla @ Pappu under Section 411 of IPC is also confirmed. With the aforesaid modification as to sentence, the appeals being C.R.A 72 of 2013, C.R.A 82 of 2013 and C.R.A 98 of 2013 are disposed of. 32. Coming to the prayer made on behalf of PW 1, I am of the opinion that the appellate Court was justified in refusing the prayer to return the seized gold and silver articles to him vide order dated 24.02.2015 as it was functus officio having already delivered the judgment and order of conviction and sentence on 9/10.01.2013 in the instant case. Hence C.R.A No. 376 of 2013 is dismissed. However, I am in agreement with the submission of Mr. Hence C.R.A No. 376 of 2013 is dismissed. However, I am in agreement with the submission of Mr. Majumder, learned Advocate for the de facto complainant that the direction to return the seized articles to P.W. 1 only if no appeal is preferred is not in consonance with law. Hence, while disposing of the appeals I direct the trial Court to return the seized gold and silver articles to P.W. 1 within three months from the date of communication of this order on condition that he shall submit a bond to the satisfaction of the trial Court for a period of three months in contemplation to any special leave petition which may be preferred on behalf of the appellants against this judgment and order. 33. All the appeals are, thus, disposed of. 34. Bail bonds of the appellants are cancelled and they are directed to forthwith surrender before the trial court and serve out the remainder of their sentences in accordance with law failing which the trial court shall resort to appropriate processes to execute the said sentences. 35. Period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from their substantive sentences imposed upon them in terms of 428 of the Code of Criminal Procedure. 36. Let a copy of this judgment along with the lower court records be forthwith remitted to the learned Trial Court for information and necessary action. 37. I record my appreciation for the able assistance rendered by Mr. Partha Pratim Das and Ms. Trina Mitra as amicus curiae in disposing of the appeals. 38. Urgent xerox certified copy of this judgment, if applied for, be delivered to the learned Advocate for the parties upon compliance of all formalities. Ravi Krishan Kapur, J. - I agree.