Calcutta High Court (Appellete Side)
Arab Sk vs State Of West Bengal & Ors on 26 June, 2015
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice Debasish Kar Gupta
And
The Hon'ble Justice Md. Mumtaz Khan
CRA No. 450 of 2014
Arab Sk.
Versus
State of West Bengal & Ors.
For the appellant : Mr. Milon Mukherjee
Mr. Prabir Majumder
Mr. Subhashis Dasgupta
For the State : Mr. Monjit Singh
Mr. Ranabir Roy Chowdhury
Judgment on: 26.06.2015.
Debasish Kar Gupta , J. :
This appeal is directed against judgment and order of conviction dated May 30, 2014 and sentence dated May 31, 2014 passed by the Ld. Additional Sessions Judge, Fast Track Court-III, Krishnagar, Nadia in Sessions Trial No.V (January) of 2012 arising out of Sessions Case no.36 (12) of 2011 under Sections 324/411/394 of IPC. The petitioner was sentenced to suffer imprisonment for life and to pay fine of Rs.20,000/- only in default to suffer rigorous imprisonment for one year for committing the offence under Section 394 of IPC. The appellant was further sentenced to suffer imprisonment for three years and to pay fine of Rs.20,000/- only in default to suffer rigorous imprisonment for one year for committing offence punishable under Section 324 of IPC. He was also sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.20,000/- only in default to suffer rigorous imprisonment for one year for committing offence punishable under Section 411 of IPC. The sentence so imposed against the appellant were directed to run concurrently and the period of substantive punishment was subject to usual set off in terms of Section 428 of Cr.P.C.
To adjudicate the issues involved in this appeal the fact of this case is discussed in a nutshell hereunder:-
A written complaint dated August 6, 2011, was lodged by one Parimal Saha, son of let Binod Bihari Saha in Kotwali Police Station, Krishnagar, Nadia(PW.1). According to the above written complaint, construction work was in progress in the house of the complainant lying and situated at Village-Bagane Para, Dom Para, P.S.-Kotwali, District-Nadia (hereinafter referred to as the said premises) for about 20-22 days. On the date of occurrence, i.e., August 6, 2011 at about 11.30 AM one unknown labourer was working at the house of the complainant. He asked Smt. Lovely Saha(P.W. 4), the wife of the complainant to give a "bali chaluni". She asked the aforesaid unknown labourer to take it from the roof of the room. Suddenly, the above unknown labourer entered into the kitchen and started assaulting the wife of the complainant wildly in her head, eyes, mouth and all the body with a fish knife. According to the above written complaint, the wife of the complainant sustained severe injuries. Then the above unknown worker ran away after snatching the gold bracelet, gold ear-ring and gold necklace of the wife of the complainant. The neighbouring people came to the spot hearing hue and cry. The wife of the complaint had been allegedly found in a critical condition by him after returning home and thereafter, she was removed to Saktinagar Hospital, District-Nadia.
One Biwanath Acharjee, PW 5, a law clerk attached with Krishnagar Disrtict Court, scribed the above letter of complaint. The above written complaint was treated as FIR of Kotwali P.S. case no.856/11 dated August 6, 2011. Subsequently, the appellant was arrested. The weapon of offence was recovered and seized (described as "dao" in the seizure list) on August 28, 2011.
The learned Court below passed the impugned judgment and order of conviction and sentence after taking into consideration the oral and documentary evidences as also record of examination of the appellant under Section 313 of Cr. P.C. Out of 15 prosecution witnesses, PW 4 was the person injured in course of snatching her gold ornaments as recorded hereinabove.
According to Mr. Milon Mukherjee, learned senior advocate appearing on behalf of the appellant, impugned judgment and order of conviction as also sentence cannot be sustained in accordance with law for the following reasons:-
(i) According to Mr. Mukherjee, no case was made out against the appellant for committing any offence jointly by more than one person. The nature of injury was simple according to the Medical Officer of Bangur Hospital. Therefore, there was no scope for the learned Court below to pass the impugned order of conviction and sentence under the provision of Section 394 of IPC.
(ii) Though PW 4 was present at the time of lodging the written complaint by her husband (PW 1) in the police station, she did not disclose the name of the appellant at that point of time. The disclosure of the presence of appellant at the place of occurrence at the material point of time was disclosed in Court for the first time. According to the appellant, it was an after thought as evident from the above facts and circumstances.
(iii) There was delay in forwarding the case to the Magistrate on August 12, 2011 in spite of lodging the FIR on August 6, 2011.
(iv) There was discrepancy with regard to the nature of the weapon used for committing offence. According to FIR, it was "fish knife". According to the evidence of PW 1 it was "Dao".
(v) There was contradiction regarding the place of seizure of the weapon of offence. According to the evidence of PW 1, and 10 it was seized from the bush nearby the said premises. According to the seizure list the place of recovery of the weapon of offence was a pucca place on the first floor of the said premises.
(vi) The seizure list was also not proved. The P.W. no.11 was one of the witnesses of the seizure list. In course of his cross-
examination, he admitted the fact of obtaining his signature on a blank sheet of papers by the Investigating Officer (PW 15). In examination-in-chief, the PW 12 deposed that he had put signature on a blank sheet of paper on request of police. In examination-in-chief, P.W. 13 deposed that he had put his signature on the seizure list on the request of the police claiming recovery of the seized article by them. The P.W. Nos. 12 and 13 were declared hostile. According to seizure list, Gold bracelate, gold ear-ring and gold neclace were seized. According to the evidence of P.W. 4, Gold chain and gold bangle were snatched. The T.I of the seized gold ornaments was not conducted. So, the seized gold ornaments were not proved in accordance with law.. There was discrepancy with regard to the date of seizure of the seized article taking into consideration the date mentioned by the appellant below his signature on the seizure list. The witnesses that the P.W. Nos.1, 6, 8 and 10 were interested persons.
(vii) The most important person Rabi Sutrodhar who happened to be the landlord of the premises adjacent to the house of PW 4 was not examined. The PW 11 was the tenant of his house. The daughter of PW nos.1 and 4 had been present in the place of occurrence at the material point of time but she was not examined.
(viii) The impugned order of conviction and sentence under Sections 324 and 411 cannot be sustained in law in view of non-
disclosure of the name of the appellant in police station by PW 4 at the time of lodging FIR by the PW 1, delay in forwarding the case to the learned Magistrate, discrepancy in evidence with regard to the nature and place of recovery of weapon of offence, not to conduct T.I. of the seized ornaments and non-
examination of vital witness as pointed out hereinabove. Mr. Mukherjee relies upon the decision of Rebait Baidya & Ors. vs. The State of West Bengal, reported in (2014) 1 Cr LR (Cal) 171, Ramkishan Mithanlal Sharma & Ors. vs. State of Bombay, reported in AIR 1955 SC 104, Shaikh Abdul Rashid & Ors., vs. Sheikh Nausher Ali, reported in 83 CWN 523, Pakhar Singh & Ors. vs. The Crown, reported in AIR (37) 1950 East Punjab 66 in support of his above submissions.
At the very outset, the attention of this court is drawn towards the provisions of Sections 390 and 392 of the IPC. It is submitted by the learned Counsel appearing on behalf of the State that guilt of the appellant was proved for passing an order of conviction for robbery as also an order of sentence under the above provision. According to him, there was no fault on the part of the learned court below to pass the impugned judgement and order of conviction as also sentence.
According to the learned counsel appearing on behalf of the State, the name of the appellant was disclosed by P.W.4 at the time or recording of her statement made under section 164 of Cr. P.C. He was identified by P.W.4 in course of recording her evidence. According to him, the presence of the appellant in the place of occurrence at the material point of time was proved in view of the evidence adduced by PW 6 that the appellant had been asked by the above prosecution witnesses to bring "Bali Chaluni" from the residence of the PW 4. According to him the presence of the appellant at the place of occurrence was corroborated by PW 8 in his evidence, to the effect that he had seen the appellant to left the place of occurrence at the material point of time.
According to the learned counsel appearing for the State, the forwarding of the case to the Magistrate on August 12, 2011 on the basis of the FIR dated August 6, 2011 could not be considered as delay in view of the facts and circumstances available on record.
It is further submitted by the learned counsel appearing for the state the weapon of offence and the seizure list were identified by P.W. nos.4,8,9 and 10 in their respective evidences. According to him there was hardly any difference in between "Fish Knife" and "Dao". Our attentions are drawn to the Lower Court records (page 16) to submit that according to the statement of the appellant the weapon of offence was hidden at the place of recovery.
It is also submitted by the learned counsel appearing for the State that the alleged discrepancy with regard to the date of seizure of the weapon of offence taking into consideration the date recorded below the signature of the appellant in his statement made under Section 161 Cr.P.C of the appellant was a minor mistake.
According to him, there was no discrepancy with regard to the place of recovery of the weapon of offence taking into consideration the fact that there was a bush just behind the premises in question which was under
construction.
According to him, the seized articles as also the seizure list thereof were identified by P.W. nos.1, 4 and 10 in their evidences. There was corroboration of the above evidence in view of the evidences of P.W. nos.8 and 10. Therefore, according to him, the weapon of offence and the other seized articles were proved.
It is also submitted that evidences of P.W. nos.6, 8 and 10 were corroborated by the other prosecution witnesses as also the documentary evidences. Therefore, the credibility of those witnesses could not be ignored on the ground that they were interested witnesses, as alleged or that the most important person, who happened to be the owner of the adjacent building had not been examined.
Reliance is placed by him upon the decisions of Dana Yadav @ Dahu & Ors. vs. State of Bihar, reported in 2002 SCC (Cri) 1698, Jadunath Singh & Anr. vs. State of U.P., reported in 1971 SCC (Cri) 124, Ravi Kumar vs. State of Punjab, reported in 2006 (1) SCC (Cri) 738, Ajayan vs. State of Kerala, reported in 2011 (1) R.C.R.(Criminal) 543, Sandeep & Anr. vs. State of U.P., reported in 2012 (3) SCC (Cri) 18 in support of his above submissions.
After lengthy hearing of the learned counsels appearing on behalf of the respective parties as also after careful consideration of the materials on record, the dispute raised on behalf of the appellant with regard to the applicability of the provisions of Section 394 of IPC, in this case is taken up first.
The scope of applying the provisions of Section 394 of IPC in case of causing harm during commission of robbery or in attempting to commit robbery, is no more an undecided question of law.
According to the provisions of Section 390 and Section 392 of IPC, robbery is either theft or extortion. If the offender voluntarily causes or attempt to cause to any person death or hurt or wrongful restrain, or fear of instant death or of instant hurt, or of instant wrongful restraint in order to the committing of theft, or in committing theft, or in carrying away or attempting to carry away property obtained by the theft is "robbery". Extortion is also "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant heart, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
The offence under the provisions of Section 394 is more serious offence than one under Section 390 and Section 392 of IPC. Provisions of Section 394 of IPC , applies to cases where during the course of robbery voluntary hurt is caused by two distinct class of persons as follows :-
(1) Firstly , those who actually cause hurt and (2) Secondly, those who do not actually cause hurt , but are " jointly concerned " in the commission of offence of robbery .
The above proposition of law has been settled by The Hon'ble Apex Court in the judgement passed in the matter of Aslam @ Deewan- Vs.-State of Rajasthan, reported in (2008)9 SCC 227 and relevant portions of the above judgement are quoted bellow :-
"8. In support of the appeal, it was submitted that the evidence adduced by the prosecution was not sufficient to fasten the guilt on the appellant for offence punishable under Section 394 IPC.
9. Learned counsel for the State, on the other hand, supported the judgment.
10. Section 394 describes punishment for voluntarily causing hurt in committing or attempting to commit robbery. The offence under this section is more serious offence that one under Section 392. Section 394 postulates and contemplates the causing of harm during commission of robbery or in attempting to commit robbery when such causing hurt is hardly necessary to facilitate the commission of robbery. Section 394 applies to cases where during the course of robbery voluntary hurt is caused. Section 394 classifies two distinct class of persons. Firstly, those who actually cause hurt and secondly, those who do not actually cause hurt but are "jointly concerned" in the commission of offence of robbery. The second class of persons may not be concerned in the causing of hurt, but they become liable independently of the knowledge of its likelihood or a reasonable belief in its probability."
In our appeal, neither any person other than the appellant caused the alleged hurt, nor any person other than the appellant was jointly concerned in alleged commission of offence of robbery, who did not actually cause the alleged hurt. The Learned Court bellow came to a conclusion that the appellant caused hurt to the PW 4 with the weapon of offence (Dao) before snatching away her golden ornaments, which he had hidden in a secret place. Subsequently, the offending weapon as also golden ornaments were discovered consequent upon receiving information from the appellant. According to the Learned Court bellow, the above facts and circumstances signified the attraction of the provisions of Section 394 of IPC. The above conclusion of the Learned was misconceived in view of the settled proposition of law as discussed hereinabove.
Regarding the nature of injury, the Medical Officer and Surgeon of Nadia District Hospital (at the material point of time), PW 14 deposed in course of his examination -in-chief that the injury was simple. According to the evidence of PW 1 adduced in course of his cross-examination that had brought the PW 4 in hospital on the date of occurrence and then he went to the Kotwali police station with the PW 4 for lodging complaint. The Learned Court bellow took into consideration the evidence adduced by the PW 14 in course of his cross-examination that there was no possibility of death of the PW 4 from the injury sustained. In view of the above there is no dispute with regard to the injury sustained by the PW 4.
With regard to the non-discloser of the name of the accused in the FIR, it is a settled principle of law that FIR is not proof of a crime but it is a piece of evidence which can be used for corroborating prosecution case. Though accused is not named in the FIR, if a definite role is attributed to him and the same is proved beyond reasonable doubt, he is liable to be convicted . Reference may be made to the decision of Jitender Kumar - Vs. - State of Haryana , reported in ( 2012 ) 6 SCC 204 and the relevant portions of the above decision are quoted bellow :
"18. The court has also to consider the fact that the main purpose of the FIR is to satisfy the police officer as to the commission of a cognizable offence for him to conduct further investigation in accordance with law. The primary object is to set the criminal law into motion and it may not be possible to give every minute detail with unmistakable precision in the FIR. The FIR itself is not the proof of a case, but is a piece of evidence which could be used for corroborating the case of the prosecution. The FIR need not be an encyclopaedia of all the facts and circumstances on which the prosecution relies. It only has to state the basic case. The attending circumstances of each case would further have considerable bearing on application of such principles to a given situation. Reference is this regard can be made to State of U.P. v. Krishna Master and Ranjit Singh v. State of M.P."
According to the evidence of PW 1 adduced in course of his cross- examination by the defence he had brought the PW 4 in hospital on the date of incidence and then he went to the Kotwali police station with the PW 4 for lodging complaint . She did not disclose the name of the appellant while FIR was lodged against him in Kotwali police station on August 6,2011 treating the letter of complaint lodged by PW 1 (her husband) as FIR. She had disclosed the name of the accused in course of recording her statements under Section 161 of Cr. P. C. Therefore, we are not inclined to interfere with the issue under reference in the matter of assessing the evidential value of the same in accordance with law as discussed herein above.
There was a delay in receiving FIR by the Magistrate who was empowered to take cognizance of the offence. Admittedly the FIR had been lodged in this case on the date of occurrence, i.e. August 6, 2011, but the same was received by the Magistrate on August 12, 2011. It has been decided by the Hon'ble Apex Court in the matter of Iswar Singh - Vs. - State of Uttar Pradesh, reported in AIR 1976 SC 2423, that when no explanation is offered for extraordinary delay in sending the report to the Magistrate, it is a circumstances which provides a legitimate basis for suspecting that the FIR was recorded much later than the stated date and hour, affording sufficient time to the prosecution to introduce improvement and embellishments and to set up a distorted version of the occurrence. Relevant portions of the above decision are quoted bellow: -
"9. We have pointed out that the trial court in conviction the appellants overlooked certain significant features of the case, namely, the inordinate and unexplained delay in despatching the first information report to the magistrate; the difference in the account given by the prosecution witnesses and as appearing from the first information report of the occurrence; the absence of any statement in the first information report as to the injuries received by some of the accused, and the non-examination of material witnesses. The High Court in affirming the judgment of the trial court also failed to advert to these circumstances. We do not therefore think that the case against the appellants has been proved beyond reasonable doubt. The appeals are accordingly allowed and the order of conviction and the sentences passed on the appellants are set aside. We direct that the appellants be set at liberty forthwith."
The above proposition of law has been repeated and reiterated by the Hon'ble Supreme Court time and again.
A Division Bench of this court set aside a judgement, order of conviction as also the sentence in an appeal in the matter of Rebati Baidya
-Vs. - State of West Bengal, (supra) taking into consideration, amongst others, delay of eight days in receiving the FIR by the Magistrate.
In our case, the delay of receiving FIR by the magistrate was six days. No explanation of the above delay was made available by the prosecution either in the form of oral evidence or documentary evidence. The Learned Trial court did not take into consideration the above aspect of the matter. We are of the opinion that the impugned judgement, order of conviction and the sentence cannot be sustained in law.
The decision of Sandeep - Vs. - State of U.P. (supra) does not help the prosecution in this regard due to distinguished facts of that case. One of such difference was that the period of delay was of two days and the caused of delay was explained. The decision of Ravi Kumar (Supra) has no manner of application in our case for the same reason.
It is the settled principles of law that the authorship of concealment is not sine qua non to make information received from a person accused of an offence while in the custody at the police officer admissible under Section 27 of the Indian Evidence Act. The information deposed by the police officer does not reveal authorship of concealment of the seized article. If the information as deposed by the investigating officer is otherwise admissible in evidence it would not become inadmissible solely that the information deposed by the police officer does not reveal authorship of concealment. The Hon'ble Supreme Court adopted the above settled principles of law from the judgment of Privy Council in Pulukuri Kottaya and Ors. V. Emperor reported in AIR 1947 Privy Council 67 and the relevant portions of the above decision are quoted below:-
"..... it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house"
does not lead to the discovery of a knife, knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
Repetitions and reiterations of the above settled principle of law by the Hon'ble Supreme Court on a number of occasions are evident. Reference may be made to the decision of Ranuikishan Mithanlal Sharma and Ors. Vs. State of Bombay reported in AIR 1955 SC(1)4, Udai Bhan Vs. State of U.P. reported in AIR 1962 SC 1116, Nagappa Yellappa Hosamani Vs. State of Karnakata and Ors. Reported in (2009) 14 SCC 582. In that situation the T.I. of the seized articles was essential for establishing the recovery of such articles.
While considering the place of recovery of the weapon of offence in our case, we find discrepancy with regard to the same. According to the evidences adduced by the PW No.1, and10, the place of recovery of the weapon of offence was a bush behind the said building, which was under
construction. According to the seizer list, the weapon of offence was recovered from the pucca place on the first floor of the said building. The learned Court below did not take into consideration the above discrepancy while arriving at conclusion that the discovery of weapon as also the place of such discovery had been proved.
But the evidence of the PW 15, who was the I.O. in our case, did not reveal authorship of concealment of seized weapon so far as the appellant was concerned due to inadmissibility of the evidence of PW 15 for the reasons discussed hereinabove.
In Nagappa Dondiba Kalal Vs. State of Karnakata reported in 1980(supp) SCC 336, it has been held by the Hon'ble Supreme Court that in case of identities of the seized ornaments had been established fully even in absence of any T.I. parade, the fact of recovery of those seized ornaments were proved, the relevant portions of the above decision are quoted below:
"We have gone through the judgment of the High Court and we find ourselves in complete agreement with the reasons given by the High Court for holding that the identity of the ornaments recovered at the instance of the appellant which belonged to the deceased Pashyabi had been fully established. It was also proved that she had been wearing these ornaments when she left the house on the night of April 10, 1973. The recoveries were made on April 13, 1973 that is to say within three days of the occurrence. P.Ws 7,8, 16 and 17 who are close relations of the deceased and who had full opportunity to see her wearing these ornaments have identified the ornaments. Their evidence is further corroborated by two goldsmiths P.Ws 9 and 10 who had prepared these ornaments. In these circumstances therefore, the High Court was fully justified in acting on the evidence of these witnesses and in rejecting the argument of the accused that as no test identification parade was held, the identity could not be established. Taking however the evidence as it stands, there is nothing to connect the appellant with the murder of the deceased or even with any assault the accused may have committed on the deceased or having robed her of her ornaments. At the utmost as the ornaments have been proved to be stolen property received by the appellant knowing that they were stolen property. The accused can thus be convicted on the basis of presumption under Section 114 of the Evidence Act and under Section 411 of Indian Penal Code as a receiver of stolen property knowing the same to be stolen."
The learned Court below did not take into consideration that the evidence of PW 11, one of the witnesses of the seizer list that the investigation officer (PW No. 15) took his signature on blank sheet paper. It will not be out of context that the PW 11 was not declared as hostile witness.
In view of the discrepancy of the place of discovery of the seized ornaments in our case had not been taken into consideration by the learned Court below to come to the conclusion that the discovery of those articles was proved. So, the above conclusion of the learned Court below can not be sustained in law In view of the distinguishable facts and circumstances of this case, the decisions of Jadunath Singh -vs- State of U.P. (SC) reported in 1971 SCC (Cri) 124, DanaYadav @ Dahu -vs- State of Bihar(SC) reported in 2002 SCC(Cri.) 1698, Ravi Kumar -vs- State of Punjab (SC) reported in 2006(1)SCC(Cri) 738, Ajayan -vs- State of Kerala (Kerala) (F.B) reported in 2011(1) R.C.R.(Criminal) 543, Sandeep -vs- State of U.P.(SC) reported in 2012(3) SCC(Cri) 18, cannot come as an aid to support the case of the prosecution.
In view of the discussions and observations made herein above the impugned convictions and sentences of the appellant are set aside.
This appeal is allowed. The appellant is directed to be set at liberty forthwith, unless wanted in connection with any other case.
Let the Lower Court's records be sent back expeditiously. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree. ( Debasish Kar Gupta, J.) (Md. Mumtaz Khan, J.)