Calcutta High Court (Appellete Side)
Moloy Kumar Biswas vs The State Of West Bengal on 26 August, 2016
Author: Md. Mumtaz Khan
Bench: Debasish Kar Gupta, Md. Mumtaz Khan
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. 438 of 2005
Moloy Kumar Biswas Vs. The State of West Bengal
With
CRA No. 439 of 2005
Rabiul Molla & Anr. Vs. The State of West Bengal
For the appellants : Mr. Arnab Chatterjee
For the State : Mr. Ranabir Roy Chowdhury
Heard on : 08.06.2016, 23.06.2016, 24.06.2016
Judgment on : 26.08.2016
Md. Mumtaz Khan, J. :
The subject matter of challenge in these appeals is the judgment, order of conviction and sentence dated May 22, 2005 and May 21, 2005 respectively passed by the Additional District and Sessions Judge, Fast Track, 1st Court, Diamond Harbour, District South 24 Parganas in S.T. NO. 20(9) of 2003 arising out of S.C. No. 44(8) of 2003. By virtue of the impugned judgment appellants Rabiul Molla and Hafijul Gazi @ Molla (appellants in CRA 439 of 2005) were found guilty of the offence punishable under Section 395 Indian Penal Code (hereinafter referred to as IPC) along with others and in addition to that appellant Hafijul Gazi @ Molla was also found guilty of the offence punishable under Section 412 IPC along with others while appellant Rabiul Molla and two others were acquitted from the charge under Section 412 IPC. Appellant Moloy Kumar Biswas (appellant in CRA 438 of 2005) was also found guilty of the offence punishable under Section 412 IPC. Accordingly appellant Rabiul Molla (appellant in CRA NO. 439 of 2005) along with others were sentenced to suffer rigorous imprisonment for 7 years each and also to pay a fine of Rs. 2,000/- each in default to suffer rigorous imprisonment for 4 months each for the offence punishable under Section 395 IPC only and no separate sentence was imposed for the offence punishable under Section 412 IPC while appellant Moloy Kumar Biswas was sentenced to suffer rigorous imprisonment for 10 years and also to pay fine of Rs. 5,000/- in default to suffer rigorous imprisonment for 10 months for the offence punishable under Section 412 IPC with a direction for set off under section 428 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C) with a further direction that half of the fine amount, if realised, be paid to the victims through the complainant as compensation.
The backdrop of the appeals is discussed below in a nutshell:-
On May 5, 2003 PW1 lodged a written complaint before the officer- in-charge, Raidighi P.S. stating that on May 4, 2003 around 11.00 p.m. after dinner his father, youngest brother and his wife went to sleep in the drawing room to the eastern part of his house, his mother in the groundfloor while he along with his wife and children went to their bedroom on the first floor to sleep and closed the door. Around 2.00 a.m. hearing a loud knock on the adjacent southern side of the door they woke up and thereafter on looking through the open window saw that few persons were keeping watch on the road and giving various threats. On realising that his house had been attacked by dacoits, he started shouting. P.W.2, a neighbour, and his sons also started shouting but in the meantime dacoits had broken open the door with axe and entered the room and beat up his mother and asked her where her elder son was. Those dacoits then struck the closed door of his bedroom on the first floor with axe and threatened them to shoot if they do not open the door. Then in order to save their lives they opened the door and as such eight persons armed with pipes gun, revolvers, Bhojali (daggers), sharp knife, bombs etc. entered into his room and beat him and his wife severely and demanded the keys of the almirah and safe, holding daggers from the front side and back side asking them to keep silent. Being afraid he handed over all the keys to them. Taking those keys they came to the ground floor room and opened the almirah and safe and also broke open the trunk and packed up all the ornaments and cash including a cash of Rs. 6,000/- and Rs. 2,000/- by breaking upon Laxmibhander (earthen pot for saving money), a gold chain weighing approximately 1 bhari, a necklace weighing approximately 11/2 bharies, 4 gold rings weighing approximately 11/4 bharies, two bouti (wide bungles) weighing approximately 1 bhari, 4 gold bungles weighing approximately 1 bhari, 2 bungles made of gold with bronze weighing approximately ¼ bhari, two pairs of ear ring weighing approximately ½ bhari, 4 gold plated red coral bungles weighing approximately ½ bhari, two pairs of kan passa (ear top) weighing approximately ½ bhari, gold gifted on the occasion of Annaprashan of their children weighing approximately 1 bhari and silver weighing approximately 2 bharies, one 14'' black and white Panoroma TV, two pieces of Santosh Radio set, one 5 cell torch light, one 3 cell torch light, two wrist watches (ladies and gents) and tore apart the clothes, quilts, mattresses etc. Though none of them was personally known to him but he saw the faces of those miscreants in the search light they used and he can identify them if he see them. Apart from those miscreants there were approximately 12/14 other miscreants who had been keeping watch on the road and in all they were 20/22 in number. Those miscreants after taking of those articles went through the field near Sabuj Sangha to the north-eastern corner of his house and fled away hurling bombs.
On the basis of the above written complaint which was received at the Raidighi P.S. on May 5, 2003 at 17.35 hours a Raidighi P.S. case No. 32 dated May 5, 2003 was started against the unknown persons under Section 395/397 IPC and 9B of the Indian Explosive Act and thereafter Section 412 IPC was added and the case was endorsed to S.I., Arabinda Jana, since deceased, who then investigated the case and thereafter on completion of investigation submitted charge sheet against ten accused persons including the appellants Rabiul Molla, Hafijul Gazi, Moloy Kumar Biswas and seven others under Section 395/397/412 IPC and under Section 9B of the Indian Explosive Act vide charge-sheet no.56 dated July 13,2003.
Charges were framed on September 22, 2003 against the appellants Rabiul Molla and Hafijul Gazi along with seven others under Section 395 IPC alternatively under Section 412 IPC. A separate charge was also framed against the appellant Moloy Kumar Biswas under
Section 412 IPC and when they denied their involvement in the crime, trial commenced.
Prosecution examined 22 witnesses and also produced and proved certain documents and articles and thereafter on completion of trial and after examination of the appellants as also the other accused persons under Section 313 Cr.P.C. learned court below passed the impugned judgment.
It is pertinent to mention that during pendency of the appeal appellant Hafijul Gazi @ Molla expired and accordingly appeal abated against the said appellant vide order dated February 11, 2016.
Mr. Arnab Chatterjee learned Advocate for the appellants submitted that the impugned Judgment, order of conviction and sentence against the appellants cannot be sustained on the ground that there were contradictions and discrepancies as to the description of the articles in between the FIR and evidence adduced by the prosecution witnesses and also with regard to the identification of the appellants and delay in holding the T.I. Parade. He also submitted that there was delay of eight days in sending the FIR to the court which also casts a reasonable doubt about the prosecution case. According to Mr. Chatterjee seizure of stolen articles from the shop of appellant Moloy Kumar Biswas leading to the statements of accused Rabiul Molla had not been proved according to the settled principles of law. According to Mr. Chatterjee there was also no evidence on record that Moloy Biswas had the knowledge or reason to believe that the ornaments in question were looted in dacoity from the house of the complainant, so there was no scope for the learned Court below to convict and sentence the appellant Moloy Biswas under Section 412 of IPC. It was also alternatively submitted by Mr. Chatterjee that more than 13 years has elapsed since the date of incident and the appellant Rabiul Molla had already spent more than five years in custody before his release on bail by this court and that it was his first offence, so his sentence be modified to the period already undergone in custody.
Mr. Arnab Chatterjee, learned advocate appearing for the appellants relied on the decisions of Sukdeep Singh @ Dipu, Nizal Akkara @ Viki,Raju Dutta @ Honey vs. State of West Bengal reported in (2009)2 C.Cr.LR (Cal)95, Bijoy Singh and another vs. State of Bihar reported in AIR 2002 SC 1949,Achyut Das and another vs. State of Assam reported in 1994 SCC(Cri)526, Shahejadkhan Mahebubkhan Pathan vs. State of Gujrat reported in (2013)1 SCC 570 and one unreported judgment of this court in the matter of Rebati Baidya and others vs. The State of West Bengal passed on October 7,2013 in CRA 221 of 1995 in support of his above submissions.
It is submitted by Mr. Ranabir Roy Chowdhury, learned advocate representing the state that the appellant Rabiul Molla was one of the miscreants and he was identified in the T.I. Parade and also in court during trial and immediate after his arrest looted booties were recovered from his possession and thereafter leading to his statements certain looted booties namely ornaments were also recovered from the shop of appellant Moloy Biswas and the said recovery was also admitted during his examination under section 313 Cr.P.C. and as such Rabiul Molla was convicted for the offence punishable under section 395 IPC and Moloy Biswas was convicted for the offence punishable under section 412 IPC and there was no illegality or irregularity in the same. According to Mr. Ranabir Roy Chowdhury no question about any delay in dispatching the FIR was put forward by the appellants during trial and moreover there was no unreasonable delay in sending the FIR to court. According to Mr. Roy Chowdhury the discrepancies as pointed out by the learned advocate for the appellants was not so vital going to the root of the case making the prosecution case doubtful. According to Mr. Roy Chowdhury prosecution has been able to prove the case against the appellants beyond all reasonable doubt.
We have considered the submissions advanced by the learned counsels appearing for the respective parties. We have also given our thoughtful consideration to the evidence of prosecution witnesses and other materials on record for examining the propriety of the impugned judgment, order of conviction and sentence passed by the learned court below.
The learned Court below took into consideration the evidences of the eye witnesses namely P.W.1, the complainant, P.W.4, wife of the complainant, P.W.9, brother of complainant, P.W.10, wife of P.W.9, the evidences of P.W.5 and P.W.7 who saw the dacoits to flee away after committing dacoity as also the evidences of P.W.12 and P.W.13, the witnesses to the seizure from the shop of accused Moloy Biswas, besides the evidences of P.W.20, the Judicial Magistrate who conducted T.I. Parade and P.W.21, the police officer who was the member of raiding party with the I.O., since deceased, to arrive at a conclusion that it was the appellant Rabiul Molla who along with others committed dacoity in the house of the complainant and thereby committed an offence punishable under section 395 I.P.C. and appellant Moloy Biswas from whose shop a portion of the looted booty was recovered has committed an offence punishable under section 412 I.P.C.
Regarding question of discrepancies in the FIR and the depositions of witnesses as to the description of the article, it is the settled proposition of law 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 and the same itself is not the proof of a crime but is a piece of evidence which can be used for corroborating prosecution case. The FIR need not be an encyclopaedia of all the facts and circumstances on which the prosecution relies. Reference may be made to the decision of Jitender Kumar -Vs.- State of Haryana reported in (2012) 6 SCC 204. Similarly, with regard to discrepancies in the depositions of witnesses, it is well settled that there are bound to be some discrepancies between the depositions of different witnesses when they speak in details, and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. While minor discrepancy or variation in evidence will not make the prosecution case doubtful, contradiction in the statement of witness is fatal for the case. Reference may by made to the decision of State of Himachal Pradesh vs. Raj & Anr. reported in (2000) 1 SCC 247.
In the case in hand, it is evident from the evidences of both P.W.1(complainant) and his wife P.W.4 that they had fully corroborated the FIR (Ext.1) relating to commission of dacoity in their house in the night of May 4th/5th 2003 and looting away of cash amounting to rupees 8000/-, ornaments and articles like TV, radio, torch lights, calculator, wrist watches etc. from their house and also identified the appellant Rabiul Molla besides other accused persons to be the miscreants involved in commission of that dacoity. It was also evident from Ext.12 that during T.I. Parade also they identified the appellant Rabiul Molla. They were cross-examined by the defence at length but their evidence remained unshaken. P.W.9 and P.W.10, brother of complainant and his wife, had also specifically narrated the incident of dacoity at their house and looting away of house-hold articles and ornaments including their own. P.W.2, P.W.5, P.W.7, neighbours of the complainant, also supported the above claim of P.W.1, P.W.4, P.W.9 and P.W.10 about commission of dacoity at their house on the relevant night. Both P.W.2 and P.W.3 also identified their signatures (Exts.2 and 2/1) on the seizure list relating to seizure of broken articles from the house of the complainant. They were cross-examined by the defence but the defence failed to impeach their credibility and as such there was no reason to disbelieve their testimonies.
P.W.16, P.W.17 and P.W.18, the then constables of Raidighi P.S., have also stated that on the relevant night after getting information of commission of dacoity at the house of the complainant they accompanied by the police officers went to the P.O. and thereafter officers started investigation and apprehended some of the miscreants and some of the stolen articles were recovered from them. This also found corroboration from P.W.19. They identified the appellant Rabiul Molla and others to be the persons who were apprehended. The I.O. of this case S.I. Arabinda Jana is now dead. P.W.21, the then O/C of Raidighi P.S. who endorsed the case to S.I. Arabinda Jana for investigation and also assisted him had proved the sketch Map with Index and the seizure lists. During cross-examination he admitted that he stated to the I.O. that on June 12, 2003 at Raidighi market, he arrested appellant Moloy Biswas, a jeweller, and recovered from his possession the gold in connection with this case. This corroborated the evidence of above witnesses. P.W.12 and P.W.13 are the witnesses to the seizure of ornaments (Mat.Exts. V & VIII) from the shop of appellant Moloy Biswas. According to P.W.12 on June 12, 2003 police brought the appellant Rabiul Molla at the shop of appellant Moloy Biswas at Raidighi Bazar where Rabiul Molla revealed that he sold one churi of bronze and a pair of Pasa to appellant Moloy Biswas and thereafter police seized those alamats from the shop of appellant Moloy Biswas (identified Mat. Exts. V & VIII). He identified his signature (Ext.5/1) on the seizure list. P.W.13 also corroborated the above version of P.W.12 and he too identified Mat. Exts. V & VIII being recovered from the possession of appellant Moloy Biswas and also identified his signature (Ext. 5/2) on the seizure list. Both of them also identified the appellant Rabiul Molla on dock. Interestingly the above claim of P.W.12 and P.W.13 also found corroboration from the statements of the appellant Moloy Biswas recorded during his examination under section 313 Cr.P.C. P.W.4 identified Mat. Exts.VII & VIII being the ornaments and articles looted away from their house in the dacoity besides Mat. Exts. I to VI. P.W.10 also identified Mat.Ext. VIII to be her own ear ring and also identified Mat. Exts. I, II, III and VII as being the other articles stolen away from their house by the dacoits. From the evidence of P.W.20 as also Ext.14 it was evident that before the Judicial Magistrate also they identified those items. They were cross- examined by the defence at length but nothing came out contrary to their statements-in-chief. Their evidence appear to be trustworthy and reliable and as such there was no reason to discard their evidence. It was true that there were certain discrepancies in the FIR and the depositions of witnesses as to the description of the article and certain variation in evidence of prosecution witnesses but those were minor in nature and not going the root of the case thereby making the prosecution case doubtful. Therefore, in view of the settled proposition of law as discussed herein-above the above discrepancies cannot affect the credibility of the evidence of the eye witnesses concerned.
Therefore, our interference with the impugned judgment is not required on the above grounds considering the same were not contradictions of a material dimension.
Regarding question of delay in sending the FIR, it is the settled proposition of law that it is not always a circumstance on the basis of which the prosecution case may be said to be fabricated, but it all depends on the facts and circumstances of each case where the circumstances of delay may lead to serious consequences. In the instant case, as it appears from the record, on the very date of incident of dacoity FIR was lodged and the Raidighi P.S. case no.32 dated May 5, 2003 was started. It was apparrent from the seizure list (Ext.2/3) that the seizure of the broken almirahs, cut pieces of wooden door and other articles were made on the same date at the house of the complainant in connection with the said case which found corroboration from P.W.2 and P.W.3, the witnesses of those seizures, and there was no challenge over the same from the side of the defence. Even no such plea of delay in sending the FIR before the Magistrate was taken before the trial court. There remains no doubt that section 157 of the Cr.P.C. requires sending of the FIR before the Magistrate forthwith and the reason behind this was to avoid any possibility of fabrication or introduction of facts at the susequent stage of investigation and improvement in the prosecution story but this lacuna on the part of the prosecution would not be the sole basis for throwing out the entire prosecution case being fabricated if the prosecution had produced the reliable evidence to prove the guilt of the accused persons. In the instant case commission of dacoity at the house of the complainant in the night of May 4th/5th 2003 and looting away of cash, ornaments and articles from their house and identification of the appellant Rabiul Molla besides other accused persons involved in commission of that dacoity had already been proved by the eye witnesses as also the recovery of a portion of booty from the shop of Moloy Biswas by seizure witnesses. Therefore, our interference with the impugned judgment is not required on the above ground.
In view of the facts and circumstances involved in this case the decisions of Bijoy Singh and another vs. State of Bihar(Supra) and Rebati Baidya and others vs. The State of West Bengal(Supra) do not help the appellants due to distinguishable facts and circumstances of those cases.
With regard to the delay in conducting test identification parade of the accused persons, it is well settled that no time limit could be fixed for holding a test identification parade. There are circumstances for creating impression upon the mind of a victim which would not diminish or disappear for a considerable period of time. In the case of Anil Kumar vs. State of U.P., reported in (2003) 3 SCC 569, lapse of 47 days to conduct test identification parade was not considered sufficient to erase the facial expressions from the minds of witnesses. The relevant portion of the above judgment is quoted below:-
"14. In the present case also Manoj was attacked by Chaman as well as the appellant. He had a clear look at his assailants. Thereafter his younger brother came to save him and in that process got killed. Manoj also received serious injuries. These are circumstances which would impress upon the mind of Manoj the facial expressions of the assailants. This impression would not diminish or disappear within a period of 47 days. Similar is the case of the father and one of the father and the mother of Manoj. They have seen the assailants attacking their sons and one of the sons getting killed. In their memory also the facial expressions of the assailants would get embossed. A mere lapse of 47 days is not going to erase the facial expressions from their memory."
(Emphasis supplied) It was evident from the record that the miscreants were unknown to the victims. Accordingly after apprehension when the appellant Rabiul Molla was placed in the T.I. Parade he was identified by the eye witnesses namely the complainant (P.W.1), and his wife (P.W.4) as it appears from the report of T.I. Parade (Ext.12). They also identified him before the court during trial. Interestingly, during his examination under section 313 Cr.P.C. no explanation was given by the appellant Rabiul Molla regarding his identification in the T.I. Parade by those witnesses save and except taking the plea of innocence. Appellant Rabiul Molla was apprehended on June 12, 2003 and the T.I.P. was held on June 23, 2003. So, the identification of the appellant by the victims, held within eleven days from his arrest, did not throw any doubt on the genuineness of identification parade taking into consideration the circumstances of commision of dacoity in their house in their presence. So, the plea with regard to genuinity of identification does not hold good. Therefore, the propriety of the impugned judgment cannot be questioned on the above ground.
In view of the facts and circumstances involved in this case the decision of Sukdeep Singh and others vs. The State of West Bengal (Supra) do not help the appellants due to distinguishable facts and circumstances of that case.
The next issue which requires our consideration is whether the offence committed by the appellant Moloy Biswas falls under the provisions of Section 412 IPC or under Section 411 IPC?
In the case in our hand we find that though some portions of the looted ornaments in the dacoity were recovered from the shop of the appellant Moloy Biswas but we do not find any evidence on record that he also participated in said dacoity or that he had the knowledge or reason to believe that the ornament found from his shop were looted in dacoity from the house of the complainant. In such circumstances, there was no scope for the learned Court below to convict and sentence the appellant Moloy Biswas under Section 412 of IPC. On the other hand taking into consideration the evidences and other materials on record lead towards the guilt of the appellant Moloy Biswas for the commission of offence punishable under section 411 IPC. The learned Court below failed to consider the above aspect at the time of passing the judgment that no evidence was brought on record to prove that he had the knowledge or reason to believe that the ornament found from his shop were looted in dacoity from the house of the complainant. Attention of this Court has not been drawn by the learned counsel appearing for the State towards any material on record to take a different view. Therefore, our interference with the impugned judgment and the order of conviction and sentence against appellant Moloy Biswas is required on the above ground.
With regard to the alternative prayer of the learned Advocate for the appellants for modification of the sentence awarded to the appellant Rabiul Molla by the learned trial Court, we find from the record that though this appellant and five others were convicted and sentenced to suffer imprisonment and also to pay the fine in default to suffer further period of imprisonment for the commission of offence punishable under section 395 IPC but only this appellant had preferred the appeal against that conviction. It also appears from the record that he was in custody since the day of their arrest on June 12, 2003 and was released on bail by this court only on September 24, 2008 and nothing was brought on record to show that he is the habitual offender and/or that it was not his first offence.
In the matter of Shahejadkhan Mahebubkhan Pathan V. State of Gujrat reported in 2012(4) Crimes 309 (SC), the Hon'ble Supreme Court considering the poor condition of the accused person and it was is first offence while upholding the conviction of the appellants under the NDPS Act modified the sentence from 15 years to 10 years and reduced the period of sentence from three years to six months in default of payment of fine of rupees 1.5 lakhs.
In the matter of Ram Sunder Mahto and others V. State of Bihar reported in (2009)16 SCC 191, the Hon'ble Supreme Court considering the old age of the accused persons, the period elapsed since the offence took place and other circumstances while upholding the conviction of the appellants under section 395 of the Indian Penal Code reduced the sentence from five years as awarded by the High Court to three years.
Attention of this Court has not been drawn by the learned counsel appearing for the State towards any material on record to take a different view. Therefore, considering the circumstances placed before us on behalf of the appellant Rabiul Molla that he was of young age of 20 years at the time of commission of offence and it was his first offence and already thirteen years have elapsed since the time of commission of offence and he had already spent more than five years in custody before his release on bail by this court on September 24, 2008, we are of the view that appellant deserves lenient treatment.
In view of the matter we reduce the sentence of the appellant Rabiul Molla (appellant in CRA No. 439 of 2005) which has been awarded by the trial court to that of five years. The fine imposed and the default sentence awarded to him remained unaltered.
Similarly, the conviction of the appellant Moloy Biswas (appellant in CRA No.438 of 2005) under Section 412 is altered to one under Section 411 of the Indian Penal Code and for the altered conviction, the appellant Moloy Biswas is sentenced to suffer rigorous imprisonment for a period of three years. The fine imposed and the default sentence awarded to him remained unaltered.
These appeals are thus disposed of with partial alteration of the order of conviction and sentence as indicated herein-above.
Copy of this judgement along with the lower court records be sent down to the trial court immediately for information and taking necessary action.
Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.
I agree (Md. Mumtaz Khan, J.) (Debasish Kar Gupta, J.)