Calcutta High Court (Appellete Side)
Sk. Amber Ali & Others vs The State Of West Bengal on 7 March, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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Item No. 479/AB/Aloke
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
C.R.A. 2 of 1997
SK. AMBER ALI & OTHERS
VS
THE STATE OF WEST BENGAL
Amicus Curiae : Ms. Anusua Sinha, Advocate
For the State : Mr. Ayan Basu, Advocate
Heard on : March 7, 2017
Judgement on : March 7, 2017
Joymalya Bagchi, J. :
Nobody appears on behalf of either of the parties when the matter is called on.
Ms. Anusua Sinha, learned advocate is requested to appear in this matter as amicus curiae and assist this Court.
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Mr. Ayan Basu, learned advocate is requested to appear on behalf of the State.
This Appeal is directed against judgement and order dated 10.12.1996 passed by learned Additional Sessions Judge, 1st Court, Hooghly in Sessions Trial Case No. 220 of 1988 convicting the appellants for commission of offence punishable under Section 412 of the Indian Penal Code and sentencing the appellant no.1 to suffer rigorous imprisonment for three years and to pay a fine of Rs.3,000/-, in default to suffer simple imprisonment for a further period of six months and appellant nos.2 and 3 to suffer rigorous imprisonment for six years each and to pay a fine of Rs.2,000/- each, in default to suffer simple imprisonment for a further period of six months.
The prosecution case, as alleged against the appellants, is to the effect that a consignment of goods of various traders were carried in a lorry bearing no. WMH 1487 belonging to Purulia Roadway Transport from Calcutta to Purulia on 29.10.1986. The driver of the lorry was one Shyammi Alam. On that day at about 10.00 P.M., the lorry was loaded with the goods from the office of Purulia Roadway Transport in Calcutta and began its journey towards Purulia thereafter. At about 11.00 P.M. to 11.30 P.M. while proceeding towards Chapadanga on Delhi Road after the lorry had crossed the cinema hall at Shiakhala, it was overtaken by another vehicle which stopped in front of the said lorry and 7-8 3 persons hijacked the lorry and took it away after tying and gagging the driver and khalasis of the lorry. At about 3.00 A.M. the miscreants stopped the vehicle in front of a babool tree and tied the driver and two khalasis with a rope to the tree and drove away with the lorry. Upon enquiry from local people, the driver came to know that they were tied up near Rohia Saw Mill on Highway No.23. The driver somehow reached Dhaniakhali Police Station and lodged a complaint at the police station. The said written complaint was sent to Haripal Police Station on the point of jurisdiction and first information report being Haripal P.S. Case No. 16 of 1986 dated 30.10.1986 under Sections 395/397 of the Indian Penal Code and Sections 25/27 of the Arms Act was registered for investigation.
In the course of investigation, the consignment of stolen articles was recovered from the godown which was suspected to be owned by the appellants. The appellants were thereafter arrested and charge sheet was filed against them and one Sunil Kumar under Sections 412 and 414 of the Indian Penal Code.
The case being a sessions triable one was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, Hooghly for trial and disposal. Charge was framed under Section 412 of the Indian Penal Code against the appellants and under Sections 412 and 414 of the Indian Penal 4 Code against the aforesaid Sunil Kumar. They pleaded not guilty and claimed to be tried.
In the course of trial, prosecution examined as many as 21 witnesses. The defence of the appellants was one of innocence and false implication. It was their specific defence that the goods had not been seized from their possession and there is nothing to show that they were the owners of the shop / godown from where the alleged seizure took place.
In conclusion of trial, the trial court by the impugned judgement and order dated 10.12.1996 convicted and sentenced the appellants, as aforesaid. However, Sunil Kumar was acquitted of the charges levelled against him.
Mrs. Sinha, learned amicus curiae submitted that the prosecution has failed to prove its case beyond reasonable doubt. There is no evidence to show that the source information was diarized and that the seizure of the articles from the abandoned room was made pursuant to the statement of the appellants. That apart, the prosecution has miserably failed to prove that the appellants owned or were in possession of the shop room from where the seizure was made. Accordingly, she prayed for acquittal of the appellants. 5
On the other hand, Mr. Basu, learned Advocate appearing for the State submitted that there is evidence on record to show that the seizure was effected in the presence of the appellants. The conduct of the appellants also shows that the place was under their control and custody and they had failed to give any explanation for possession of the stolen goods. Accordingly, the appeal ought to be dismissed.
The issue which, therefore, falls for decision in this appeal is whether the alleged stolen articles seized from the control and/or custody of the appellants or not.
The prosecution has examined P.Ws. 5 to 16 in the instant case who are businessmen who had entrusted their goods to Purulia Roadway Transport for transportation of the said goods in the aforesaid vehicle on the fateful night i.e. 29.10.1986. They have proved the challans for transportation of the said goods and have also identified the goods and put their signatures on the seizure list relating to the seizure of challans relating to the consignment in question. 6
It is clear from their evidence that goods belonging to the said witnesses had been loaded in the aforesaid lorry being registration no. WMH 1487 for transportation. These witnesses have also identified the seized goods in the instant case as the selfsame goods entrusted to the transport company under various challans which were seized during investigation in the night between 29.10.1986 and 30.10.1986. They, however, have not deposed that the goods were recovered from the possession or control of the appellants.
To establish such fact prosecution appears to rely on the evidence of P.Ws. 1 to 4 and P.Ws. 18 to 20.
P.W.1 is a local person from the place of seizure. He deposed that he knew the appellants. He was declared hostile. He deposed that he had signed on a blank paper as called upon by the police. He did not know the contents of the said paper. Hence, his evidence is of little help to the prosecution.
P.W.2 was tendered for cross-examination and P.W.3 was a S.I. of Police who was attached to Dhaniakhali Police Station as Officer-in-Charge on 30.10.1986. He deposed that dacoity of a lorry took place at Seakhala, Police Station - Haripal. The driver reported the incident to him. Pursuant to the statement of the driver, he reduced the same into writing and took the signature 7 of the driver and forwarded it to Officer-in-Charge of Haripal Police Station for starting a case. He identified the written complaint Ext. 2. The name of the driver is Shammi Alam. He identified the signature of Shammi Alam in the FIR Ext. 2/1. He identified the endorsement on the written complaint and his signature on the written complaint Ext. 2/2. He forwarded the complaint to Haripal Police Station as the incident occurred there. On the next day, he got a source information that similar type of articles were kept in a godown at Nagdipara, P.S. Dhoniakhali under lock and key. Accordingly, he along with A.K. Roy, (P.W.4) and others went to work out the information and found that the godown was under lock and key. There was space between the door leaves and peeping through them he found articles especially some plastic beads lying near the door of the said godown.
Thereafter, he detained the appellants who were owners of the godown. He informed O.C., Haripal regarding the matter. I.O. and men of the transport company came there. In the presence of the police officers and local people lock and key of the godown was broken. The men of the transport company identified the goods as stolen goods which were booked in the said lorry. The goods were seized item-wise and four hours was taken to complete the seizure. I.O. and his men arrested the appellants and he put his signature on the seizure list (Exbt. 1/2). The men of the transport company also put their signature on the seizure list. This is the signature of Jayantai Prosad Pandey (Exbt. 1/3). The appellants 8 are identified in court today. The appellants stated that they had purchased the articles from one Bulbul.
In cross-examination, he admitted he did not make any enquiry regarding the ownership of the shop or godown. He peeped through the gap of the door of the godown and saw that the goods were stacked haphazardly. He could not recollect if I.O. asked the accused persons to produce any title, document regarding the ownership of the shop or godown.
P.W. 4 is the S.I. of Police who was also posted at Dhaniakhali P.S. on 30.10.1986. On 31.10.1986 at around 5.45 a.m. to 11.00 a.m. some goods of transport company were seized and he signed on the seizure list. Some bags of plastic beads, cycle parts and clothes, in all 30 items were seized. The goods were seized from the shop of Ambar, Zakir. They were identified in court. He put his signature on seizure list (Exbt. 1/4). Officer-in-Charge, Dhaniakhali P.S. told him that the driver of the lorry had complained that the lorry had been hijacked and the goods had been stolen. Some boys were collecting subscription for 'Saraswati Puja' informed that some plastic beads were scattered in front of the said shop and they also informed that the appellants kept the stolen goods in one abandoned shop at Nabdipara. They went to the P.O. and saw that the shop was under lock and key. They saw through the gap of the door leaves. Some bags, 9 cycle parts, clothes and other articles were stocked inside. They became suspicious that the goods were stolen goods of Haripal dacoity. They detained the appellants and arranged for the guard of the said goods. The appellants told that they purchased the said goods from one Sunil to whom they had not made any payment. Persons assembled there at that time. Thereafter, they informed Haripal P.S. The men of transport company also came. The lock of the door of the shop was broken. The transport men identified the goods as stolen goods and the goods were seized under a seizure list.
In cross-examination, he stated that he did not remember if he stated to the I.O. how he came to know that the shop belonged to Jakir, Ambar. I.O. did not inspect any document regarding possession, title or ownership of the shop room.
P.W. 18 was an employee of Borako Carrying Corporation at Purulia Roadways. He deposed that they transported goods from Calcutta to various destination through vehicles. Ram Sanjiban Mishra was one of the partners of the corporation. He, Jayanti Prosad Pandey, Ramji Gaur and Ramdulal Gaur assist the shipment of the goods. After the party placed their goods for transportation they issued challans to them. Thereafter they prepared consignment note. After loading the truck they send the truck to the destination 10 with papers including road challan and different challans for each of the goods. All these challans are entered in one road challan. On 29.10.1986 WMH-1487 carried their goods. The lorry was hijacked on the road. There were 65 items of goods. Khalashi was tied to a tree on the road side. After recovery he telephoned them at the office that they went to Haripal P.S. They went to the spot with local police officers where articles were recovered. They found some plastic danas on the road. All the 65 items of goods were found in a room. It was a kutchaghar. It was on the right side of the road. I.O. prepared a seizure list. He put his signature on the seizure list. The articles were in a jimma. The articles were taken to thana. From the court they were released to them. He identified his signature in the eight seizure lists (Exbts. 5/2, 6/2, 8/1, 9/1, 10/1, 11/1, 12/1 and 13/1). I.O. had seized the challans issued as well as road challans in respect of the consignment under these seizure lists. He identified nine challans issued by the corporation as well as two road challans issued by their office.
P.W. 19 is another employee of Purulia Roadways. He h as corroborated the evidence of P.W. 18 with regard to seizure of plastic beads and other articles from a kuchcha ghar on the right side which was under lock and key.
P.W. 20 is the owner of the transport business, namely, Purulia Roadways. He also deposed of the recovery of stolen articles from kuchcha ghar. 11
P.W. 21 is the Investigating Officer of the case. He deposed that he visited the place of occurrence with Officer-in-Charge, Dhaniakhali P.S. They broke the lock of the room and seized the articles by preparing seizure list (Exbt.1). The lorry was seized earlier by Officer-in-Charge, Dhaniakhali P.S. (seizure list Exbt.22). He prepared seizure list in respect of challans which was seized from transport company (Exbt. 3) He examined witnesses and submitted charge-sheet. In cross-examination he admitted that he did not seize any title deed, C.S., R.S. and L.R. parchas in respect of the ownership of the godown in question. He did not produce any panchayat tax receipts from Anchal Prodhan regarding the godown and shop in question.
From the evidence on record, it is clear that a transport vehicle belonging to Purulia Roadways Ltd. was carrying goods consigned to the transport company from Calcutta to Purulia in the night of 29/30.10.1986. The said truck was hijacked en-route by unknown miscreants and the consignment was stolen.
There is no direct evidence with regard to such dacoity as the driver of the vehicle, namely one Sammi Alam being the de facto complainant in the instant case has not been examined. However, the written complaint lodged by him with regard to the aforesaid dacoity has been exhibited by P.W. 3. It is also the evidence of P.W. 3, S.I. of Police, Sreerampore that the investigation of the said case was transferred to Haripal Police Station and was conducted by P.W. 21. In 12 the meantime, P.W. 3 received source information that stolen articles had been kept in a godown at Nabdipara, P.S. Dhaniakhali and pursuant to such information he along with P.W. 4 went to Nabdipara and upon peeping through the gap between the doors leaves of the godown which was under lock and key they found plastic beads and other articles haphazardly scattered inside the godown. P.W. 4 deposed that some boys who were collecting subscription for 'Saraswati Puja' informed them some plastic beads were scattered in front of the said shop and that the appellants loaded the stolen goods in one abandoned shop at Nabdipara. However, no member of the locality has been examined to establish such fact.
In the meantime, P.Ws. 3 and 4 requisitioned Officer-in-Charge, Haripal P.S. and the employees of the transport company and in their presence broke open the lock and recovered the articles. The articles were thereafter identified by P.W. 18 and 19, the employees of the transport company. Thereafter, the appellants were arrested alleging that they were the owners of the godown wherefrom the seizure had been effected. It has, however, been admitted by P.W. 3 and 4, being the members of the raiding party, as well as P.W. 21 (I.O.) that no enquiry or investigation was made with regard to ownership of the shop room in question. Hence, there is hardly any evidence on record to show that the appellants were the owners or were in possession or control of the shop rooms/godown wherefrom the stolen articles were recovered. Vague reference to statements of local people that the appellants had put the articles in the shop 13 room as deposed by P.W. 4 cannot be relied upon in the absence of any direct and cogent evidence establishing such fact.
In view of the aforesaid discussion, I am of the opinion, the prosecution case is based on vague surmises and conjectures and cannot be said to have been proved beyond reasonable doubt.
Accordingly, the appeal is allowed and the conviction and sentence of the appellants are set aside. The appellants shall be discharged from their bail bonds after six months from date in terms of Section 437A Cr.P.C.
Copy of the judgment along with L.C.R. be sent down to the trial court at once for necessary action.
I record my appreciation for the able assistance rendered by Ms. Sinha, learned amicus curiae in disposing of the appeal.
Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.
(Joymalya Bagchi, J.) 14 AB/Aloke Item no. 479