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2018 DIGILAW 815 (CAL)

MD Javed v. State Of West Bengal

2018-11-22

JOYMALYA BAGCHI, MADHUMATI MITRA

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JUDGMENT : JOYMALYA BAGCHI, J. 1. Appeals are directed against judgment and order dated 29.06.2009 and 30.06.2009 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Sealdah in Sessions Case No. 9(5) 2007 arising out of Sessions Trial No.2(7) convicting the appellants for the commission of offence punishable under sections 395/397/412 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for ten years each and to pay a fine of Rs.25,000/- each, in default to suffer simple imprisonment for one year for the offence punishable under sections 395/397 of the Indian Penal Code and to suffer rigorous imprisonment for seven years each and to pay a fine of Rs.10,000/- each, in default to suffer simple imprisonment for six months more for the offence punishable under section 412 of the Indian Penal Code. The appellant Rustam Khan @ Nana was also convicted for the offence punishable under section 25(1b) (a) of the Arms Act and was sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.10,000/-, in default to suffer simple imprisonment for six months for the offence punishable under section 25(1B)(a) of the Arms Act. All the sentences are directed to run concurrently. 2. The prosecution case as against the appellants is to the effect that on 09.12.2006 at about 11.05 p.m. while one Prakash Singh (P.W. 3) was gossiping with his sister Lakshmi Singh (P.W. 4) and his friend Jayanta Das (P.W. 5) in his shop under the name and style as ‘Singh Confectionery’ at 32/A/1 B.T. Road the appellants came in a yellow taxi to commit dacoity in his shop. Three of them entered the shop and stole cash, gold ornaments, Nokia mobile phone from Prakash Singh and others. The other two entered the dwelling room of Prakash Singh where his wife was taking care of his new born baby. They forced her to open the almirah and took Rs.20,000/- from a green purse belonging to Lakshmi Singh (P.W. 4) and other articles. Thereafter all the miscreants left the spot. 3. On the written complaint of Prakash Singh, Cossipore P.S. Case No. 105 dated 10.12.2006 under sections 395/397/412 of the Indian Penal Code and under section 25(1B)(a)/27 of the Arms Act was registered for investigation. In the course of investigation, appellants were arrested and stolen articles including Nokia mobile phone and fire arms were recovered from them. 3. On the written complaint of Prakash Singh, Cossipore P.S. Case No. 105 dated 10.12.2006 under sections 395/397/412 of the Indian Penal Code and under section 25(1B)(a)/27 of the Arms Act was registered for investigation. In the course of investigation, appellants were arrested and stolen articles including Nokia mobile phone and fire arms were recovered from them. They were also identified in the course of test identification parade by P.Ws. 3, 4, 5 and 6. 4. In conclusion of investigation charge-sheet was filed under sections 395/397/412 of the Indian Penal Code and under section 25(1B) (a)/27 of the Arms Act. The case was committed to the Court of Sessions and transferred to the Court of the learned Additional Sessions Judge, Fast Track Court-III, Sealdah for trial and disposal. Charges were framed against the appellants under the aforesaid provisions of law. The appellants pleaded not guilty and claimed to be tried. 5. In the course of trial, prosecution examined 16 witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication. In conclusion of trial, the Trial Judge by the impugned judgment and order convicted and sentenced the appellants, as aforesaid. 6. Nobody appeared on behalf of the appellants. Ms. Mitra was requested to assist the Court as amicus curiae. 7. Ms. Mitra, learned Advocate appearing as amicus curiae argued that the identification of the appellants by the prosecution witnesses are doubtful. No special identification marks were stated by P.W.3 in the First Information Report. On the other hand, P.W.3 claimed in cross-examination that he had disclosed the addresses of the miscreants to the police. If the appellants were not known to P.W.3, how did he disclose their addresses to police. This fact strikes at the root of the prosecution case with regard to the identity of the appellants who were alleged to be unknown dacoits. Test Identification Parade was held after about one and half months and it has been claimed by the appellants that they were shown to the witnesses while they were in the police custody. It is also argued that some of the appellants had mole or scar marks on their faces and therefore, were easily identifiable. No safeguard in that regard has been taken and hence, Test Identification Parade report’s loses its significance. It is also argued that some of the appellants had mole or scar marks on their faces and therefore, were easily identifiable. No safeguard in that regard has been taken and hence, Test Identification Parade report’s loses its significance. There was no Test Identification Parade of the seized articles and hence, the seized articles cannot be connected with the stolen property. Appeals are, therefore, liable to be allowed. 8. On the other hand, learned Advocate appearing for the State opposes the submissions of the learned Amicus Curiae. He submits that the evidence of P.W.3, P.W.4, P.W.5 and P.W.6 with regard to the dacoity are consistent with one and another. The appellants were identified by the witnesses in Court as well as during T.I. Parade examination. The age and other particulars of the appellant have been reflected in the First Information Report and due precautions were taken by P.W.1 who conducted the Test Identification Parade in the instant case. Most of the articles recovered during investigation are jewelleries belonging to the family of P.W.3 and had been identified by them in Court. The evidence of P.W.15 and P.W.16 clearly establish that the mobile phone of P.W.3 had been recovered from used by appellant Rustom and hence, the prosecution case has been proved beyond reasonable doubt. 9. Let me analysis the aforesaid issues in the light of the evidence on record. 10. P.W.3, Prakash Singh is the owner of the shop named and styled as ‘Singh Confectionery’ where dacoity took place. He deposed that on 9.12.2006 at 11.00 P.M. while he was chatting with Laxmi Singh, P.W.4 and Jayanta Das, P.W.5, the miscreants came in a taxi and three of them entered his shop while two of them kept watch outside the door. The miscreants who entered the shop room aimed fire arms at them. Thereafter, they snatched away Rs.20,000/- cash from his money bag, two gold rings from his sister and Rs.5,000/- from Jayanta. P.W.3 also deposed that two of the miscreants who were keeping watch entered his dwelling house through the passage of the shop and upon showing fire arms to his wife took the keys of the almirah from her. Thereafter, they stole Rs.20,000/- from the vanity bag of his sister and also Rs.200/- from the cash box in his shop and his Nokia mobile set bearing No.9433104432. 11. Thereafter, they stole Rs.20,000/- from the vanity bag of his sister and also Rs.200/- from the cash box in his shop and his Nokia mobile set bearing No.9433104432. 11. The evidence of P.W.3 has been corroborated by his sister P.W.4, Laxmi Singh and his friend P.W.5, Jayanta Das. 12. P.W.6, Anita Singh, wife of P.W.3, Prakash Singh deposed that two miscreants entered into her room and upon showing her a fire arm they took the key of the almirah and took out a ladies purse containing Rs.20,000/- belonging to Laxmi Singh. Then went towards the shop. 13. In the course of Test Identification Parade which was conducted by P.W.11, the aforesaid witnesses have identified the appellants. P.W.3 identified all the appellants in the course of Test Identification Parade. P.W.6 identified Rustam @ Nana and Mohan Roy as the persons who had entered the dwelling room and snatched the key of the almirah from her by showing a fire arm and had stolen Rs.20,000/- from the ladies bag belonging to Laxmi Singh. P.W.4, Laxmi Singh and Jayanta Das, P.W.5 identified all the appellants. 14. P.W.11, Sourav Bhattacharya in his deposition claimed that he had taken due care to cover up the mole in the fact of the appellant Kanai Rajbhar in the course of Test Identification Parade .He had also taken due pre-caution to ensure that the identity of the appellants had not been disclosed before hand. He also deposed that prior to the Test Identification Parade, the appellants had not raised any objection but after the examination they claimed that they had been shown by the police to the witnesses. 15. P.W.14, the Investigating Officer in the course of investigation arrested appellant Rustam Khan on18.1.2007 and seized a single-shot fire arm, one live cartridge, one Nokia phone and some cash from his possession. Pursuant to the statement of Rustam, other appellants were arrested. In the course of investigation, P.W.14 obtained call details register of the mobile phone bearing No.9433104432. Pursuant to the statement of appellant Mohan Roy, he seized two golden rings in aluminium container on 22.1.2007 at Purani Bazar, Dhankheti Mahalla. Similarly, he seized three gold rings from a small steel container from Purani Bazar, Chai Math, Titagarh on the same date pursuant to the statement of Kanai Rajbhar. He also seized four bangles pursuant to the statement of Md. Javed. Similarly, he seized three gold rings from a small steel container from Purani Bazar, Chai Math, Titagarh on the same date pursuant to the statement of Kanai Rajbhar. He also seized four bangles pursuant to the statement of Md. Javed. He seized a gold chain from the residence of Anil Jaiswal pursuant to his statement. 16. The arrest and seizure of Rustam Khan was witnessed by P.W.9 and P.W.10 who have supported the prosecution case and proved their signatures on the seizure list. The seizures from the other appellants have been witnessed by Sunil Kr. Shaw, P.W.7 and Prakash Shaw, P.W.8 who corroborated the prosecution case and proved their signatures on the seizure lists. 17. P.W.15, Taraprasanna Banerjee produced the call details register of mobile phone bearing No. 9433104432 issued by Ms. Amita Samanta, Sub Divisional Engineer. The latter was examined as P.W.16 and duly proved the print out in court and deposed that the mobile phone No. 9433104432 was used in I.M.E.I. Sl. No.355373000454260. 18. From the aforesaid evidence particularly that of P.W.3 to P.W.6 and P.W.11, the Magistrate who held Test Identification Parade including his Test Identification Parade report, Ext.21, I have no doubt in my mind that the appellants had come to the shop and residence of P.W.3 and on the fateful day and committed dacoity. I am not convinced by the arguments made in favour of the appellants that the Test Identification Parade of the appellants were conducted belatedly or suffered from infirmities. It is trite law that no hard and fast time frame has been prescribed within which a Test Identification Parade is to be conducted. 19. On the other hand, the plea raised by the appellants that they had been identified by the police officers prior to such examination appears to be a belated one. In spite of query from P.W.11, the appellants were kept quiet upon their grievances and only after being identified in the course of Test Identification Parade, they claimed that they had been shown to the witnesses earlier. I note that the First Information Report contained sufficient details with regard to the identity of the miscreants and as the dacoity was committed for a considerable period of time inside the shop and the residence which had electricity, I have no reason to believe that the identification of the witnesses was faulty. I note that the First Information Report contained sufficient details with regard to the identity of the miscreants and as the dacoity was committed for a considerable period of time inside the shop and the residence which had electricity, I have no reason to believe that the identification of the witnesses was faulty. There is nothing on record to show that the appellants were known to the witnesses before hand and a single statement culled out from the cross-examination of P.W.3 cannot militate against his otherwise consistent version that dacoity was committed in his shop by unknown miscreants. No suggestion has been put to P.W.14 that P.W.3 (de-facto complainant) had disclosed the addresses of the appellants to him in the course of interrogation. Recovery of ornaments and other articles have been proved not only by the Investigating Officer (P.W.14) but also by independent witnesses in this case. It has been argued that there was no Test Identification Parade of the seized ornaments in the course of investigation. However, the ornaments have been duly identified by the prosecution witnesses particularly P.W.3 and P.W.4 to whom they belonged. 20. P.W.14 has also indicated that there were specific designs in the gold ornaments which probabilises their identification by the prosecution witnesses. Evidence of P.W.15 and P.W.16 show that the mobile phone seized from the appellants, Rustam Khan, bears No. 9433104432, belonging to the P.W.3 and used in the phone having I.M.E.I. No. 355373000454260 which tallied with that of P.W.3. 21. Hence, I am of the opinion that the prosecution has been able to prove that the articles seized from the appellants were part of the stolen property. 22. In the light of the aforesaid discussion, I upheld the conviction and sentence recorded against the appellants. 23. Accordingly, the above appeals are dismissed. 24. The period of detention suffered by appellants during investigation, enquiry or trial shall be set off against their substantive sentences imposed on then in terms of Section 428 of the Code of Criminal Procedure. 25. Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance. 26. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. Madhumati Mitra, J. : I agree.