Calcutta High Court
Sanjukta Basu Roy Alias Bulbuli Etc. vs State Of West Bengal on 18 April, 2006
Equivalent citations: 2006CRILJ2637
JUDGMENT Alok Kumar Basu, J.
1. The learned Additional Sessions Judge, 14th Court, Alipore while disposing of Sessions Trial No. 2(6) of 2001 of his file. convicted all the five appellants under Sections 395/397/120-B of the IPC and the appellants were sentenced to suffer different term of sentences accordingly.
2. Sanjukta Basu Roy alias Bulbuli preferred Criminal Appeal 76 of 2005 challenging her conviction and sentence while the remaining four convicts preferred Criminal Appeal 179 of 2005.
3. Since Sanjukta Basu Roy alias Bulbuli was sentenced to suffer rigorous imprisonment for seven years, her appeal in the ordinary course should have been heard and disposed of by a learned single Judge of this High Court, but, since the other convicts of the same trial suffered sentences more than seven years and their appeal is to be heard by a Division Bench and since the appeal of Sanjukta Basu Roy alias Bulbuli and the other convicts arose out of a common judgment and order, both the appeals have been taken up by us for disposal by a common judgment.
4. It is often told that in our life apparent thing is not always the real picture and only on deep and proper enquiry the real picture brushing aside the apparent thing presents a perplexing scenario altogether.
5. One Kalyan Ghosh Dastidar of 57, Harish Mukherjee Road, Kolkata-25 under P. S. Bhabanipur lodged a written complaint with Bhabanipur P. S. after commission of a daring dacolty in his house on 23rd February, 2001 at about 3.30 p.m. Mr. Ghosh Dastidar in his written complaint stated that on 23rd February, 2001 at about 3 p. m. when he and his wife Mira were taking rest after lunch, their grand-daughter Sanjukta alias Bulbuli came to their house and soon thereafter five unknown young persons being armed with different weapons entered into their room' and after tying the hands and mouth of Mr. and Mrs. Ghosh Dastidar and also of Sanjukta alias Bulbuli, the miscreants started ransacking the room and took all the valuable articles available in the room.
6. The miscreants thereafter along with Sanjukta alias Bulbuli went to upstairs and thereafter they in the similar fashion took away gold ornaments and other valuables from the room of his daughter-in-law in presence of his son Sayan. The miscreants after completion of their operation left the house with all the valuables and they also took Sanjukta alias Bulbuli with them.
7. Brother of Mr. Ghosh Dastidar over phone informed the Bhabanipur P.S. about the commission of dacoity and soon thereafter officers of Bhabanipur P.S. came to the place of occurrence and recorded the statement of Mr. Ghosh Dastidar which was treated as the FIR of the case.
8. During investigation of this case, first, by Bhabanipur P.S. and subsequently by Detective Department of Kolkata Police, it came to the notice of the investigating team that Sanjukta alias Bulbuli on the next day of the commission of dacoity came back to her house and after interrogation of Sanjukta alias Bulbuli and after subsequent apprehension of Md. Moktar, one of the miscreants, who took part in the dacoity, investigating team apprehended the other miscreants namely Sahadat Hussain, Md. Naseem and Niazuddin Ahmed.
9. Pursuant to the interrogation of Md. Moktar and Sanjukta alias Bulbuli police came to learn that Sanjukta alias Bulbuli had intimate relation with Md. Moktar and prior to commission of dacoity in the house of Mr. Ghosh Dastidar who was grandfather of Sanjukta, Sanjukta and Moktar had been at Bolpore at 17th February, 2001 and there both of them disclosing their identity as husband and wife stayed at a local lodge. Police, during investigation, had been at Bolpore and after seizure of the register of the lodge, police came to learn that Md. Moktar and Sanjukta alias Bulbuli had been at Bolpore after commission of dacoity also.
10. During investigation police arranged for identification parade of Md. Moktar, Sahadat Hossain, Md. Naseem and Niazuddin Ahmed. Mr. Kalyan Ghosh Dastidar, his wife, daughter-in-law and grandson of Mr. Ghosh Dastidar successfully identified all the four miscreants in the jail and during trial also these four persons identified the suspects.
11. During investigation police also searched the premises of Md. Moktar and Sahadat Hossain and recovered part of the articles taken away by them during dacoity and at the time of trial also Mr. Ghosh Dastidar and his family members identified the recovered stolen articles.
12. After conclusion of investigation, police found prima facie materials to hold that Sanjukta Basu Roy alias Bulbuli who also disclosed her identity as Sehnaj alias Saira hatched a conspiracy along with Md. Moktar to commit dacoity in the house of her grand father at Harish Mukherjee Road, Kolkata and pursuant to that conspiracy Md. Moktar collecting his own men namely Sahadat Hossain, Md. Naseem and Niazuddin Ahmed committed the dacoity in presence of Sanjukta Basu Roy alias Bulbuli who actively facilitated the commission of dacoity by helping the miscreants. Police on such collection of materials submitted charge-sheet against the appellants under Sections 395/397/120-B of the IPC.
13. The learned Additional Sessions Judge after considering the police papers and on hearing both the sides framed charges against all the appellants under Sections 375/397/120-B of the IPC and since all the appellants pleaded innocence, the learned Additional Sessions Judge asked the prosecution side to produce its evidence to substantiate the charges framed against the appellants.
14. Prosecution during trial examined 27 witnesses which included Mr. Kalyan Ghosh Dastidar as P. W. 3, Mrs. Mira Ghosh Dastidar as P. W. 4, daughter-in-law of Mr. Ghosh Dastidar as P. W. 5, Grandson of Mr. Ghosh Dastidar as P. W. 6. proprietor of the lodge of Bolpore as P. W. 10, an employee of the lodge of Bolpore as P. W. 11, witnesses to search and seizure in respect of some of the articles taken away during dacoity, handwriting expert as P. W. 21 who compared the handwriting of Sanjukta alias Bulbuli and submitted his report and the police officers including two investigating officers.
15. Prosecution, apart from oral evidence, also placed before the trial Judge original complaint of Mr. Ghosh Dastidar, photograph of the place of occurrence, different seizure lists prepared in connection with recovery of articles from the possession of the appellants, report of the handwriting expert, medical report of appellants Sanjukta and Md. Moktar, the relevant entry of the register of Bolpore lodge etc.
16. The learned Additional Sessions Judge, on examination of prosecution evidence, both oral and documentary, and with special reference to the written complaint and deposition of Mr. Kalyan Ghosh Dastidar P. W. 3, observed that prosecution successfully established from evidence on record that a dacoity was committed in respect of cash, gold ornaments and other valuable articles at the residential house of Mr. Ghosh Dastidar located at 57, Harish Mukherjee Road on 23rd February, 2001.
17. The learned Sessions Judge accepting the identification of the miscreants at the investigation stage by the inmates of the house namely P. W. 3 to P. W. 6 and subsequent identification of the appellants Md. Moktar, Sahadat Hossain, Md. Naseem, Niazuddin Ahmed by the inmates of the house during trial observed that their par-ticipation as regards commission of dacoity was proved beyond reasonable doubt.
18. The learned Additional Sessions Judge also relied on the factum of recovery of the articles from the possession of Md. Moktar and Sahadat Hossain while supporting the prosecution case against Md. Moktar, Sahadat Hossain, Md. Naseem and Niazuddin Ahmed.
19. As regards charges framed against Sanjukta alias Bulbuli, the learned Judge relied on the entry of the register of the Bolpore lodge and also on the statement of the police officers who had been at Bolpore and conducted investigation and, that apart, the learned Judge relied on the circumstantial evidence which according to the learned Judge established beyond reasonable doubt that Sanjukta alias Bulbuli hatched a conspiracy with Md. Moktar on 17th February, 2001 at Bolpore regarding commission of dacoity in the house of her grandfather and pursuant to that conspiracy Sanjukta alias Bulbuli alone came to the house of her grandfather on 23rd February, 2001 and since thereafter, the other miscreants entered into the house for commission of dacoity. The learned Judge after noticing the discrepancy in the conduct of anjukta alias Bulbuli since her appearance after the dacoity and relying on the subsequent disclosure regarding her intimacy with Md. Moktar before commission of dacoity and particularly her stay at Bolpore with Md. Moktar found no difficulty in coming to the conclusion that Sanjukta alias Bulbuli was a part of the conspiracy behind commission of the dacoity and she actively participated in commission of dacoity by making her physically available at the place of occurrence.
20. Thus, the learned Judge having regard to the overall evidence produced by prosecution during trial and after considering submissions of both prosecution and defence, recorded his order of conviction against all the appellants.
21. Appearing in support of the appeal preferred by Sanjukta alias Bulbuli, the learned advocate contends that the order of conviction recorded against Sanjukta alias Bulbuli appears to have been based merely on conjecture and surmise than on actual legal evidence. The learned advocate contends that presence of Sanjukta at the place of occurrence on 23rd February, 2001 was a mere coincidence and that cannot be taken as an act of conspiracy as alleged by prosecution since prosecution miserably failed to prove any element of conspiracy against Sanjukta alias Bulbuli.
22. The learned advocate contends that it is quite an improbable story that committing dacoity on 23rd February, 2001 at 3.30 p.m. Md. Moktar along with Sanjukta alias Bulbuli could be found at Bolpore at 5 p.m. on the same date and this part of the prosecution story itself is sufficient to prove that prosecution concocted a case against Sanjukta alias Bulbuli to implicate her in this case. The learned advocate contends that no reliance can be placed on the opinion of the handwriting expert since it is well known position in law that a suspect cannot be compelled to be a witness against him and naturally, the opinion of the handwriting expert cannot be availed of by the prosecution to show that Sanjukta alias Bulbuli was at Bolpore on 17th February, 2001 and to substantiate his point, the learned advocate has relied on a decision in the case of Kalidas Biswas v. The State of West Bengal reported in 2004 C Cr LR (Cal) page 728.
23. The learned advocate contends that a dacoity was committed in the house of P.W.3 on 23rd February, 2001, but, there is no evidence on record to prove beyond reasonable doubt that Sanjukta alias Bulbuli had previous connection with the miscreants and Sanjukta alias Bulbuli hatched any conspiracy with the miscreants for the purpose of commission of the dacoity and by her physical presence at the place of occurrence she facilitated the operation of dacoity and thereby making herself legally liable for the commission of the offence under Sections 395/397/120-B of the IPC. The learned advocate has, therefore, submitted that the order of conviction against Sanjukta alias Bulbuli cannot be supported either in fact or in law.
24. The learned advocate has also submitted on the question of sentence and in this connection he has contended that Sanjukta alias Bulbuli hails from a very respectable and cultured family and she herself is an educated lady and thus, considering her family background and her future, the sentence imposed upon her by the learned trial Court has been too harsh and disproportionate and, therefore, this Court should consider this aspect and should reduce the period of sentence.
25. The learned advocate appearing for the appellants in connection with Criminal Appeal 179 of 2005 submits that having regard to the fact and evidence on record of this case, the learned Judge was not justified either in fact or in law in recording a separate conviction under Section 397 of the IPC and also in recording separate sentence on that account.
26. The learned advocate contends that there are serious contradictions in the statement of P. W. 3 to P. W. 6, as it is clear from the cross-examination of the investigating officer and there is also possibility of prior identification of those appellants at Lalbazar by the witnesses and from that angle it is a big question as to whether prosecution really succeeded in establishing the guilt of the appellants beyond reasonable doubt.
27. The learned advocate finally submits that having regard to the fact and evidence of this case, the sentence passed against the appellants also appears to be too harsh and this Court may consider the question of reduction of their sentence.
28. The learned advocate representing the State submits that in this case from the evidence of P. W. 3 to P. W. 6 there is no scope to dispute the fact of commission of dacoity in the house of informant Mr. Kalyan Ghosh Dastidar on 23rd February, 2001. The learned advocate contends that in the FIR it was specifically disclosed that five miscreants entered into the house and committed dacoity and at that point of time, appellant Sanjukta alias Bulbuli was physically present and, in fact, she was also tied up by the miscreants during the commission of dacoity and she was also taken away by the miscreants.
29. Soon after the occurrence, the learned advocate contends that four of the miscreants were apprehended and Sanjukta alias Bulbuli also returned safely in her own house.
30. The learned advocate contends that during investigation it came to the limelight that Sanjukta alias Bulbuli hatched a conspiracy with Md. Moktar for commission of dacoity in the house of her own grandfather P.W. 3.
31. The learned advocate submits that from the test identification parade of Md. Moktar and other appellants of Criminal Appeal 179 of 2005 and by recovery of articles from the possession of Md. Moktar and Sahadat Hossain, prosecution successfully established its case that Md. Moktar and other appellants of Criminal Appeal 179 of 2005 actively participated in the commission of dacoity.
32. The learned advocate contends that regarding involvement of Sanjukta alias Bulbuli and her part behind the conspiracy of the dacoity, her conduct soon after her return to her house and subsequent detection of the fact of her staying together with Md. Moktar at Bolpore lodge prior to commission of dacoity and recovery of some incriminating materials from her during investigation clearly established the charge under Sections 395/120-B of the IPC. The learned advocate contends that her presence at the time of commission of dacoity and her prior joining with Md. Moktar in hatching conspiracy for commission of dacoity clearly established her guilt and accordingly, the learned trial Judge relying on prosecution evidence rightly convicted all the appellants and there is no scope of interference either with the order of conviction or the sentence.
33. From the written complaint of Mr. Ghosh Dostidar P. W. 3 and from the prosecution evidence in general, we find that in the commission of dacoity role of Sanjukta @ Bulbuli was somewhat different from that of the other appellants.
34. From the submissions made on behalf of the appellants and from the prosecution evidence as a whole, we are totally convinced that a dacoity took place in the house of Mr. Kalyan Ghosh Dastidar at 57, Harish Mukherjee Road on 23rd February, 2001 and the miscreants took away cash and other valuable articles from the house.
35. According to the prosecution case Md. Moktar along with Sahadat Hossain, Md. Naseem and Niazuddin Ahmed committed the dacoity and Sanjukta @ Bulbuli actively helped in the commission of dacoity and, in fact, Sanjukta @ Bulbuli with Md. Moktar hatched a conspiracy prior to the commission of dacoity and pursuant to that conspiracy Sanjukta @ Bulbuli brought the miscreants in the house of her grandfather at 57, Harish Mukherjee Road, Kolkata and she had left the house in the company of the miscreants.
36. On the question of participation of Md. Moktar and other appellants in the commission of dacoity prosecution has relied on identification of the miscreants during investigation and also their identification during trial by the inmates of the house namely P. W. 3 to P. W. 6. Prosecution has also relied on the recovery of the articles from the custody of Md. Moktar and Sahadat Hossain.
37. We have carefully examined the statements of Mr. Kalyan Ghosh Dastidar P. W. 3, Mrs. Ghosh Dastidar P. W. 4, daughter-in-law of Mr. Ghosh Dastidar P. W. 5, grandson of Mr. Ghosh Dastidar P. W. 6 and we find from their statements that all of them were present in the house during the commission of dacoity and they had the occasion to see the miscreants in broad daylight. We also find from record that the miscreants were apprehended within a short time from the commission of dacoity and soon thereafter, they were placed before the witnesses for identification and the learned Judicial Magistrate has deposed how the miscreants were identified by the witnesses in jail. We have considered cross-examination of these witnesses on the point of identification of the miscreants and, frankly speaking, we do not find anything in their cross-examination to impeach their credibility in this respect.
38. We find from record that during investigation in presence of witnesses and pursuant to the statement of Md. Moktar and Sahadat Hossain, while they were in police custody, search was made in their respective premises and part of the articles taken away during dacoity were recovered under proper seizure lists. We also do not notice any significant cross-examination regarding the seizure witnesses to impeach their credibility.
39. In a case of dacoity, if the identification of the miscreants is done successfully by the inmates of the house, followed by recovery of the articles from the possession of the miscreants, prosecution can be stated to have established the guilt of the miscreants beyond reasonable doubt. In this particular case when prosecution successfully from evidence satisfied both the ingredients, the learned trial Judge rightly recorded the order of conviction under Sections 395/397 against the appellants of Criminal Appeal 179 of 2005.
40. We have stated earlier that here is a case where a close relation of the owner of the house, in fact, conspired regarding commission of dacoity and miscreants knew fully well that the grandfather and the grandmother were aged persons and the other inmates were lady and minor boy.
41. The presence of Sanjukta @ Bulbuli at the place of occurrence just before commission of dacoity apparently appears to be mere co-incidence, because, it is not unexpected that a granddaughter would pay a visit at the house of the grandmother, but, the subsequent conduct of Sanjukta @Bulbuli and subsequent disclosure of materials connecting Sanjukta with Md. Moktar has established that presence of Sanjukta at the place of occurrence on the date of dacoity was not mere co-incidence, but, it was a result of planning and conspiracy.
42. From the register of the lodge at Bolpore we find the Sanjukta ® Bulbuli herself filled up the necessary column of register disclosing her identity as Mrs. Saira Khan and that of Moktar as that of Mr. Moktar Khan with an address. From the report of the handwriting expert it has been shown that Sanjukta @ Bulbuli filled up the colunin of the register of the lodge and from the evidence of prosecution it was proved that there was no Moktar Khan or Mrs. Saira Khan at the address disclosed on the register of the lodge. From the entry of the register it is found that on 17th February 2001, six days prior to the commission of dacoity, Moktar and Sanjukta were at Bolpore.
43. It is available from evidence on record that according to Sanjukta @ Bulbuli she was taken to diamond Harbour by the miscreants on the date of dacoity and she herself without any trouble came back to her residence, but, curiously enough, she did not inform the local P. S. about her arrival or there is nothing on record to indicate that she wanted to help the investigating agency in nabbing the miscreants and in identifying the hide out of the miscreants. It is also very difficult to believe that at the broad daylight when she was taken away by the miscreants against her will as alleged she did not raise any alarm seeking help of the -passers-by, rather, she voluntarily gave her company to the miscreants and this appears to be against normal human conduct.
44. Thus, from the physical presence of Sanjukta @ Bulbuli at the place of occurrence soon before commission of dacoity, Sanjukta's abrupt return from the company of the miscreants, Sanjukta's visit of Bolpore with Md. Moktar before commission of dacoity and other incriminating materials collected by prosecution during investigation all taken together lead us to only one conclusion that Sanjukta hatched a conspiracy with Md. Moktar regarding commission of dacoity in the house of her grandfather at Harish Mukherjee Road, Kolkata and following that conspiracy Sanjukta @ Bulbuli herself brought the miscreants in the house of her grandfather on the date of occurrence and Sanjukta facilitated the operation of dacoity and thereby Sanjukta is certainly liable to be convicted under Sections 395/120B of the IPC.
45. Having regard to the fact and evidence on record and after hearing submission of the learned advocate for the appellants and the learned advocate for the State respondent we are, however, of the opinion that there is no evidence on record to record an order of conviction under Section 397 of the IPC against Sanjukta @ Bulbuli. We are also of the view that having regard to the fact and evidence on record, the learned Judge was also not justified in recording a separate conviction and sentence against the appellants of Criminal Appeal 179 of 2005 under Section 397 of the IPC also.
46. Thus, in view of our forgoing discussion we confirm the order of conviction recorded against Sanjukta @ Bulbuli under Sections 395/120B of the IPC and as against the appellants of Criminal Appeal 179 of 2005 under Sections 395/397/120B of the IPC.
47. Now, coming to the question of sentence we have taken into account the submissions made on behalf of the appellant Sanjukta @ Bulbuli on the question of sentence and after hearing the learned advocate for the appellant and the learned P. P., we think it will be proper in the present case if the sentence of the appellant is modified from rigorous imprisonment of seven years to rigorous imprisonment of five years.
48. So far the sentence recorded against the appellants of Criminal Appeal 179 of 2005 is concerned, we are of the view that these appellants should not be sentenced to suffer separately under Section 397 of the IPC, but, so far their sentence under Sections 395/120B is concerned having regard to the fact and evidence on record, we do not find any ground to reduce their sentence.
49. Thus, both the appeals are, therefore, allowed in part.
50. We modify the order of sentence of Sanjukta @ Bulbuli by directing that she Shall suffer rigorous imprisonment for five years under Sections 395/120B of the IPC and also to pay a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for one month.
51. The conviction of Md. Moktar, Sahadat Hossain, Md. Naseem and Ntajuddin Ahmed and their sentence to suffer rigorous imprisonment under Sections 395/397/120B of the IPC as recorded by the learned trial Court are hereby confirmed. Their separate conviction and sentence under Section 397 of the IPC are, however, set aside.
52. Send a copy of this judgment and order to the respective Superintendent of Correctional Home where the appellants are detained far their information.
53. Send a copy of this judgment and order along with LCR to the learned trial Court immediately with a direction to issue modified jail warrant pursuant to our present direction contained in this judgment and order.
Sadhan Kumar Gupta, J.
54. I agree.