Calcutta High Court (Appellete Side)
Subhas Mundari @ Sabar & Ors vs The State Of West Bengal on 12 July, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Ravi Krishan Kapur
163
Aloke/RP/Sg & PA
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
And
The Hon'ble Mr. Justice Ravi Krishan Kapur
C.R.A. 105 of 2013
Subhas Mundari @ Sabar & Ors.
VS
The State of West Bengal
For the Appellants : Mr. Mrinal Kanti Mukherjee, Advocate
Mr. Roni Chowdhury, Advocate
For the State : Mr. Rana Mukherjee, Advocate
Ms. Sukanya Bhattacharya, Advocate
Heard on : July 12, 2018
Judgment on : July 12, 2018
Joymalya Bagchi, J.:
The Appeal is directed against judgment and order dated 20.12.2012 and 21.12.2012 passed by learned Additional Sessions Judge, Fast Track 1st Court, Suri, Birbhum in Sessions Case No. 177 of 2011 corresponding to Sessions Trial No. 08/DECEMBER/12 convicting the appellants for commission of offences punishable under Sections 395/397 of the Indian Penal Code and directing them to suffer rigorous imprisonment for nine years each and to pay a fine of Rs.6,000/- each, in default, to suffer further rigorous imprisonment for six months for the offence punishable under Section 395 of the Indian Penal Code and to suffer rigorous imprisonment for eight years each and to pay a fine of Rs.6,000/- each, in default, to suffer rigorous imprisonment for six months for the offence under Section 397 of the Indian Penal Code. Both the sentences are to run concurrently.
The prosecution case, as alleged against the appellant, is to the effect that on 26.07.2011 at about 11.25 p.m. one Rajendranath Chandra (P.W. 1) along with five others were returning from Bolpur to Ahamedpur in a Tata Sumo bearing registration no. RH-30A/7776. When the vehicle reached near old culvert at Seur more about eight armed miscreants stopped their vehicle and assaulted them and snatched gold chain, finger ring, wrist watch, mobile phones and Rs.90,000/- from them. The miscreants were aged about 20-30 years and they also looted other vehicles going towards Bolpur. They also snatched three mobile phones and Rs.6,050/- from a Tata Sumo vehicle of Manthon Broad Band Service. On the written complaint of Rajendranath Chandra (P.W. 1) Sainthia P.S. Case No. 88/11 dated 27.07.11 under Sections 395/397 of the Indian Penal Code was registered. In the course of investigation police arrested the appellants and on the leading statement of appellants stolen articles were allegedly recovered. Section 412 of the Indian Penal Code was added to the first information report. In the course of test identification parade the appellants were identified by various witnesses. In conclusion of investigation charge sheet was filed under Section 395/397/412 of the Indian Penal Code against the appellants and one Dilip Mundari. The case was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge, Fast Track, 1st Court, Birbhum at Suri for trial and disposal. Charges were framed under Section 395/397/412 of the Indian Penal Code. The appellants pleaded not guilty and claimed to be tried. In conclusion of trial, the trial Judge by a judgment and orders dated 20.12.2012 and 21.12.2012 convicted and sentenced the appellants, as aforesaid. By the self-same judgment and order, Dilip Mundari was acquitted of all charges and the appellants were acquitted of the charge under section 412 of the Indian Penal Code. At the time of the admission of the appeal, a rule for enhancement of sentence was issued. Hence, the present appeal and the rule for enhancement of sentence are taken up for hearing analogously.
Mr. Mukherjee, learned Advocate for the appellants submitted that identification of the appellants by the witnesses is not without doubt. The witnesses could not identify most of the appellants in the course of the first test identification parade and their identification in Court also suffers from various infirmities. Source of light at the place of occurrence is doubtful. Furthermore, the seized articles were not identified as stolen properties and even the trial Judge refused to rely on the evidence of recovery of stolen articles from the appellants and acquitted them of the charge under Section 412 of the Indian Penal Code. Accordingly, he prayed for acquittal of the appellants.
Mr. Mukherjee, learned Advocate with Ms. Bhattacharya, learned Advocate argued that the evidence of the prosecution witnesses identifying the appellants both in Court and TI Parade remained unshaken in the course of cross- examination. The appellants were arrested on various dates and test identification parade was held shortly thereafter. There is no infirmity in holding TI Parade of the appellants and their identification in Court also does not suffer from any defect. Accordingly, the appeal is liable to be dismissed.
P.W. 1 Rajendra Nath Chandra is the informant in the instant case. He deposed that on 26.07.2011 at about 11.25 p.m. he along with others were returning from Bolpur-Ahmedpur road in a Tata Sumo Vehicle No.7776. When the vehicle reached near the culvert at Seur more of Bolpur-Ahmedpur road he found two 'Babla trees' were put across the road. When they tried to move their vehicle backwards, they were surrounded by unknown miscreants armed with various weapons. The miscreants threatened them with dire consequences and used abusive language. Due to moon light as well as light inside the vehicle and also from the light coming from other vehicles which had stopped at the spot he could see the faces of the miscreants. The miscreants assaulted him and others and snatched Rs.7400/-, three gold rings, one gold chain from him. They also took away his mobile phone Nokia 1690. He identified the written complaint which was signed by him. He identified Subhas Mundari, Chottu Sabar, Raju Sabar and Dilip Mundari in Court. He also stated that he identified the said persons in the course of TI Parade.
P.W. 2 Sanjib Majumder has corroborated the evidence of P.W. 1. He stated that one gold chain, two gold rings one marked -S, one Titan wrist watch, two mobiles- Samsung B5772, Nokia X6 and cash Rs.7000/- were snatched from him. In the first TI Parade he could not identify the appellants but in the second TI Parade he identified one of the miscreants, namely Chottu Sabar. He identified the said accused in Court also.
P.W. 3 Somenath Sadhu deposed that the miscreants had robbed one Alwin watch, one Nokia mobile and Rs.7200/- from him. He saw the miscreants from the light of the vehicle who were standing in the opposite direction. He identified Raju Sabar, Ganesh Mundari and Subhash Mundari.
P.W. 4 Koushik Pramanick deposed that the miscreants had robbed Rs.2000 and one gold ring from him. In the first TI Parade he identified two accused persons. He identified the said accused persons in Court.
P.W. 5 Rajib Bhattacharjee deposed that miscreants assaulted him and took the key of the vehicle from the driver and robbed three gold rings, two dual sim mobile of Nokia and Max brand and Rs.47,000/-. He identified Ganesh Mundari, Chottu Sabar, Subhas Mundari and Shibnath Sabar.
P.W. 6 Prasanta Sadhu deposed that the miscreants snatched the key of the vehicle from him. The miscreants also broke open the window on the right side of the driver's seat of the vehicle and threatened to throw bombs on them. They snatched one silver chain and Rs.30/- from him. He identified Shibnath Sabar and Chottu Sabar.
P.W. 7 Rikab Sk. is the owner of Mahindra Pick Up Van No.WB57A/2188. He deposed that while he was proceeding to Bolpur from Ahmedpur and reached near a culvert on Bolpur-Ahmedpur Road 5/7 miscreants stopped the vehicle and assaulted on his right leg by a lathi. The miscreants pointed gut at him and held a tangi in from of his chest. They snatched one Samsung Mobile phone, Rs.7,300/- from him.
P.W. 8 Debashish Ghosh deposed that he is an employee of Manthan Borad Band Service Pvt. Ltd. He was returning from Pakur to Durgapur in a Tata Sumo vehicle bearing no.WB42R/6159 through Ahamedpur-Bolpur road. He stated that miscreants snatched the key of the vehicle from the driver. Thereafter, they opened the door of the vehicle and started assaulting him.
P.W. 9 Manoj Mondal is the driver of the vehicle no.HR30A/7776. He deposed that the miscreants snatched Rs.600/- cash from him and mobile phone and other articles from the passengers of the vehicle.
P.W. 10 is the owner of the Tata Sumo Vehicle no.HR30A/7776. He deposed that the miscreants stopped the vehicle when his son Manoj was returning home and disclosed that the dacoits have looted the passengers. He identified his signature on the seizure list (Exbt.2/2).
P.Ws. 11, 12, 15, 21 and 22 are the police personnel who were present at the time of the seizure of various articles from the possession of the appellants. They deposed that they recovered various articles from the appellants pursuant to the leading statement of the appellants.
P.Ws. 14, 17 and 18 are the witnesses who claimed to be present at the time when the said seizures were effected. They have proved their signatures on the seizure list.
P.W. 13 is the police officer who received the complaint from P.W. 1. He drew up the first information report.
P.W. 23 is the Magistrate who conducted the test identification parade in respect of the appellants. He proved the test identification reports in Court.
P.W. 24 was posted as Assistant Controller at District Correctional Home, Suri. He deposed that on 17.08.2011 on his presence test identification parade of Subhas Mundari, Ganesh Mundari, Raju Sabar was conducted.
P.Ws. 19 and 22 are the investigating officers of the instant case. P.W. 19 deposed that on 22.07.2011 he was posted as OC, Saithia. He received the written complaint from Rajendranath Chandra. He commenced investigation. He drew up the sketch map with index. He examined available witnesses and recorded their statements under Section 161 CrPC. He seized one Tata Sumo vehicle and two pieces of wood logs of 'Babla' tree lying at the place of occurrence under the seizure list. He sent requisition to S.O.G, Birbhum for collecting call detail report, subscriber detail report, IMEI searching of stolen mobile phones. He examined the shop owners, who sold the SIM cards, which were being used in the stolen mobile phones. He arrested the accused persons. Pursuant to the statements of the accused persons stolen articles were recovered. He made a prayer for conducting test identification parade of the accused persons.
P.W. 22 is the second investigating officer who completed investigation and submitted charges sheet.
From the aforesaid evidence on record it appears that on the date of the incident i.e. 26.07.2011 at night a number of vehicles were stopped near a culvert at Seur more at Bolpur-Ahmedpur road by the miscreants who had put Babla tree logs across the said road. Thereafter, the miscreants robbed the passengers of the said vehicles. P.Ws. 1 to 9 were in the said vehicle. They have identified the appellants both in Court and Test Identification Parade. P.W. 1 Rajendranath Chandra identified Subhas Mundari, Chottu Sabar, Raju Sabar and Dilip Mundari in Court as well as in the course of test identification parade. P.W. 2 Sanjib Majumder identified Chottu Sabar in Court as well as in the second TI Parade. P.W. 3 Somenath Sadhu identified Raju Sabar, Ganesh Mundari and Subhas Mundari. P.W. 4 Kaushik Pramanick identified Raju Sabar and Ganesh Mundari. P.W. 5 Rajib Bhattacharjee identified Subhas Mundari, Chottu Sabar and Shibnath Sabar in Court. He, however, had identified Subhas Mundari, Ganesh Mundari and Raju Sabar in the course of TI Parade. P.W. 6 identified both Shibnath and Chottu Sabar in Court as well as in Test Identification Parade. It has also come from the evidence of the witnesses that T.I. Parades were held on 17-08-2011 and 01-09-2011 soon after the arrest of the accused persons on 14-08-2011 and 25-08-2011 respectively. In the light of the aforesaid evidence on record I have no doubt in my mind that the T.I. Parades were held shortly after the arrest of the appellants. It has been argued that some of the witnesses could not identify the appellants in the first T.I. Parade. In view of the short time span between the first and the second T.I. Parade and the fact that a large number of miscreants had attacked the witnesses and robbed them on the highway, identification of the appellants in one of the T.I. Parades and thereafter in Court, in my estimation is sufficient corroboration of the presence and participation of the appellants in the crime. One cannot also ignore the fact that both the T.I. Parades were held in short succession to one another and soon after the arrest of the accused persons ruling out any possibility of the appellants being shown to the witnesses in the meantime.
It has been strongly argued that there was insufficient light at the place of occurrence and identification is doubtful. I am unable to accept such contention. Witnesses have stated that they identified the miscreants with the help of moon light, light inside their vehicles as well as from the lights coming from other vehicles which had stopped on the road at the time of occurrence. Hence, I am of the opinion that identification of the appellants by a number of witnesses who were robbed by them at the place of occurrence is corroborative of one another and there is no escape from the conclusion that the appellants had committed the dacoity in the manner and course as proposed by the prosecution. There is also evidence on record that the appellants were armed with deadly weapons and had threatened to use them at the time of dacoity. Hence, I am inclined to uphold he convictions recorded against the appellants for the offences punishable under sections 395 and 397 of the India Penal Code.
Coming to the issue of sentence, I find that a rule of enhancement of sentence had been issued at the time of admission of appeal. However, I note that the appellants do not have any criminal antecedents. There is no evidence that the victims had suffered injuries in the course of the incident. The trial judge had not accepted the prosecution case of recovery of stolen articles from the appellants and had acquitted them of the charge under Section 412 of the Indian Penal Code. In view of the aforesaid facts, I am not inclined to enhance the sentence imposed upon the appellants. On the other hand, as the appellants do not have criminal antecedents, I choose to modify the sentence imposed on them for the commission of offence punishable under Section 395 of the Indian Penal Code and I direct that the appellants shall suffer rigorous imprisonment for 8 years each and to pay fine of Rs.6,000/- each in default, to suffer further rigorous imprisonment for six months more. The sentence imposed on the appellants for the commission of offence punishable under Section 397 of the Indian Penal Code is however, upheld. Both the sentences shall run concurrently.
With the aforesaid modification as to sentence, the appeal is disposed of and the Rule is discharged.
Period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from the substantive sentences imposed upon them in terms of 428 of the Code of Criminal Procedure.
Copy of the judgment be sent down to the trial court at once. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) I agree.
(Ravi Krishan Kapur, J.)