Calcutta High Court (Appellete Side)
Jagdish Singh & Ors vs State Of West Bengal on 28 March, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
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AS/AKD/RKD/TKM & PA
Item No.186
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Manojit Mandal
C.R.A. 247 of 2018
Jagdish Singh & Ors.
-Vs-
State of West Bengal
For the Appellants : Mr. Debasish Roy, Advocate,
Mr. Soumik Ganguli, Advocate.
For the State : Mr. Madhusudan Sur, Ld. A.P.P.,
Mr. Debabrata Dasgupta, Advocate.
Heard on : 18.03.2019 & 28.03.2019
Judgment on : March 28, 2019
Joymalya Bagchi, J. :-
The appeal is directed against the judgment and order dated 26.04.2018
and 27.04.2018 passed by learned Additional District and Sessions Judge, 3rd
Court, Tamluk, Purba Medinipur in Sessions Trial No. 02(07)/2016 convicting
the appellants for commission of offence punishable under Sections 395/397 of
the Indian Penal Code and Section 35 of the Arms Act and the appellant Nos.1 to
2
4 and 6 under section 412 of the Indian Penal Code and the appellant No.5
under Section 25(i)(a)27 of the Arms Act and sentencing the appellant Nos.1 to 6
to suffer rigorous imprisonment for ten years each and to pay fine of Rs.10,000/-
each, in default, to suffer simple imprisonment for six months more for the
offence punishable under Section 395 of the Indian Penal Code; to suffer
rigorous imprisonment for seven years for the offence punishable under Section
397 of the Indian Penal Code and under Section 35 of the Arms Act, sentencing
appellant Nos.1 to 4 and 6 to suffer rigorous imprisonment for ten years and to
pay a fine of Rs.10,000/- each, in default, to suffer simple imprisonment for six
months more for the offence punishable under Section 412 of the Indian Penal
Code and sentencing appellant No.5 to suffer rigorous imprisonment for year one
and to pay a fine of Rs.500/-, all the sentences to run concurrently.
The prosecution case, as alleged, against the appellants is to the effect that
in the night of 20.1.2016 at around 2.00 A.M., dacoity took place in two jewellery
shops viz., Krishna Jewellers, owned by P.W.1, Pradip Nayek and Shibani
Jewellers, owned by P.W.2, Soumitra Maity situated at Dimari Bazar. At around
2.45 A.M. one Pradip Mondal (P.W. 25), an adjacent shop owner informed P.W.9
over phone about the incident. He reached the shop room at 3.00 A.M. and was
informed that 12-15 persons had committed dacoity in his shop. He was also
informed that some of the miscreants were Bengalis while others were non-
Bengalis and were wearing dhoti and shirt. They had turbans on their head and
were armed with fire arms and bhojali. Local caterers and florists saw the said
miscreants at the place of occurrence. The miscreants had assaulted a local
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florists viz., Krishna Pada Pattanayak, P.W.3 with lathi. The miscreants had also
assaulted Sibaprasad Jana, P.W.5 and Ganesh Maji, P.W.22. Local caterers,
P.W.7, Partha Pratim Chakraborty, P.W.8, Krishnendu Sau, P.W.21, Gobinda Pal
and others had seen the miscreants. The miscreants took away gold and silver
ornaments valued lakhs of rupees and cash and had fired two rounds of bullets
in the locality. On the first information report lodged by P.W.1, Tamluk P.S. Case
No.64 of 2016 dated 20.1.2016 under Sections 395/397/398/412 of the Indian
Penal Code and Sections 25/27 of the Arms Act was registered for investigation.
Investigation was conducted by P.W.31 and P.W.35. In the course of
investigation, P.W.35 collected call dump data from P.W.19 and with the
assistance of P.W.12, Ajay Kumar Mahato, a co-tenant identified the hideout of
the appellants i.e. the residential premises of P.W.13. On 28.1.2016, P.W.35
arrested the appellants from the aforesaid residence and stolen booty viz., gold
and silver ornaments, cash etc. and fire arms were recovered. Subsequently,
incriminating articles like sabol, gupti etc. for committing dacoity were also
recovered from the said residence. In the course of test identification parade,
appellant Nos.3 and 5 were identified by P.W.s 7, 8 and 11. In conclusion of
investigation, charge sheet was filed against the appellants. The case was
committed to the Court of Sessions and transferred to the Court of the learned
Additional District and Sessions Judge, 3rd Court, Tamluk, Purba Medinipur for
trial and disposal.
In the course of trial, charges were framed against the appellants under
Sections 395/397 IPC and Section 35 of the Arms Act against the appellants,
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under Section 412 of the Indian Penal Code against the appellant Nos.1 to 4 and
6 and under Sections 25/27 of the Arms Act against the appellant no.5. All the
appellants pleaded not guilty and claimed to be tried. To prove its case,
prosecution examined 35 witnesses and exhibited a number of documents. The
defence of the appellants was one of innocence and false implication. They,
however, did not examine any witness to probabilise such defence.
In conclusion of trial, the Trial Judge by the impugned judgment and
order dated 26.04.2018 and 27.04.2018 convicted and sentenced the appellants,
as aforesaid.
Mr. Roy along with Mr. Ganguly appearing for the appellants argued that
none of the witnesses had seen the appellants commit dacoity in the jewellery
shops of P.W.1 and P.W.2. Most of the prosecution witnesses deposed the place
was dark and the faces of the miscreants were covered. Hence, the identification
of the appellant Nos.3 and 5 by P.W.7, P.W.8 and P.W.11 is highly improbable.
Furthermore, P.W.8 and P.W.11 admitted that the police had shown the
miscreants to them before the Test Identification Parade examination. Particulars
of the miscreants given by P.W.1 in the first information report does not tally
with the physical attributes or age of the appellants. P.W.1 and P.W.2 did not
state the particulars of the silver and gold ornaments stolen from their shops. No
documents were also produced with regard to the ownership of the ornaments.
Recovery of the stolen articles from the possession of the appellants has not been
proved beyond doubt. Identification of the articles in the course of investigation is
faulty. There is nothing on record to show that the identifying mark on the silver
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ornament viz., 'SJ' was the insignia used by P.W.2. Hence, the prosecution case
has not been proved beyond doubt and the appellants are entitled to an order of
acquittal.
On the other hand, Mr. Sur, learned A.P.P. along with Mr. Dasgupta,
learned Counsel appearing for the State argued that the prosecution case has
been proved beyond doubt. P.W.7, P.W.8 and P.W.11 identified the appellant
Nos.3 and 5 during Test Identification Parade and in Court. Source of light at the
place of occurrence had been stated by the said witnesses. Other witnesses have
corroborated the prosecution case that the miscreants had in a body come with
deadly weapons to the place of occurrence and had assaulted P.W.3, P.W.5,
P.W.10 and P.W.22 who were treated by P.W.20 and P.W.28. Recovery of
ornaments as well as fire arms were made from the possession of the appellants
by P.W.35 in the presence of independent witnesses. P.W.1 and P.W.2 identified
the said articles in the course of investigation as well as in Court. Identification of
appellant Nos.3 and 5 by P.W.7, P.W.8 and P.W.11 as well as recovery of stolen
booty from the possession of the appellants soon after the incident from the
premises jointly occupied by them clearly show that all the appellants were part
of a gang who committed dacoity at the said jewellery shops. Hence, the appeal is
liable to be dismissed.
Prosecution case against the appellants essentially hinges :-
(a) identification of the appellants by P.W.7, P.W.8 and P.W.11;
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(b) recovery of stolen articles and other incriminating articles
including fire arms from a room jointly occupied by all the
appellants soon after the incident.
Let me examine whether the aforesaid facts have been proved beyond
doubt or not against the appellants.
Prosecution witnesses deposed that a number of miscreants armed with
fire arms and other weapons had committed dacoity in two jewellery shops
namely, Krishna Jewellers and Shibani Jewellers at Dimari Bazar on the night of
20.01.2016. They broke open the padlock and removed gold ornaments, cash and other valuables from the said shops.
P.W.1, Pradip Nayek, owner of M/s. Krishna Jewellers received information of such dacoity. Having received such information, P.W.1 rushed to his shop and found that the collapsible gate and shutter of his shop were cut and the locker had been taken away from his shop. He found that the showcases were ransacked and broken. He found silver and gold ornaments and cash from the shop had been stolen. He heard from a nearby florist and local men carrying on catering business that the dacoits had chased and beaten them. He lodged written complaint, Ext.1. Police came to the spot and seized various articles under a seizure list. Few days later police recovered three gold rings and one gold ear ring. He identified the said articles as stolen articles in court.
P.W.2, Soumitra Maity, owner of M/s. Shibani Jewellers corroborated the evidence of P.W.1 and deposed dacoity had also been committed in his shop. He 7 identified three silver tabij (Badam) with logo of 'SJ' recovered by the police during investigation.
P.W.3, Krishna Pada Pattanayek was a florist carrying on business near the jewellery shops. He deposed that three miscreants had apprehended him at Rathtola at Dimari Bazar and had assaulted him. The miscreants had tied him with a gamcha.
Evidence of P.W.3 with regard to the miscreants moving in and around Dimari Bazar with weapons is corrborated by other witnesses who were carrying on catering business in the locality. One group of caterers are P.W.s 5, 6, 9, 10 and 22. Out of them P.W.5, P.W.10 and P.W.22 suffered injuries at the hands of the miscreants. P.W.3 and P.W.22 were treated by quack doctors viz., P.W.20 and P.W.28. However, none of the said witnesses could identify the miscreants as the place was dark and faces of the miscreants were covered.
Subsequently, another group of caterers who were passing the locality, namely, P.Ws. 7, 8 , 11 & 21 saw the miscreants standing together near an electric pole. Out of them P.Ws.7, 8 & 11 could identify appellant nos. 3 and 5.
P.W.7, Partha Pratim Chakraborty, deposed that he was going in a bi-cycle with P.W.8 Krishnendu Sahoo. When they reached Rothtola they found one bi- cycle lying on the street. Two persons were lying on the ground and were rubbing their hands on their legs. As they proceeded further they found fifteen persons standing and whispering amongst themselves. There was an electric post in the vicinity. One of the persons asked them to leave the place and flashed torch light on their faces. Out of fear they left the place. They informed one of their 8 colleagues, Narayan Pal, P.W.11 not to cross the area due to danger. He made statement before the investigating officer as well as Magistrate. He identified appellant nos. 3 & 5 in the course of T.I. Parade as well as in court.
P.W.8 who were in a bi-cycle with P.W.7 has corroborated the version of P.W.7. He identified the appellant no.3 in T.I. Parade as well as in court.
P.W.11, Narayan Pal, identified the appellant no.3 in court as well as in the course of T.I. Parade.
Their identification has been seriously challenged by the learned counsel appearing for the appellants. It is contended that version of witnesses run contrary to that of other prosecution witnesses who claimed that the place was dark and the faces of the appellants were covered. It is also argued that police had shown the appellants to the witnesses before T.I. Parade and hence, there was little value of their identification in court.
I have given anxious consideration to the aforesaid submissions. P.Ws.7, 8 & 11 have disclosed the source of light which enabled them to identify the appellants. All the witnesses claimed that light coming from a nearby electric pole enabled them to identify some of the miscreants. It must be borne in mind that the circumstances in which the aforesaid witnesses had seen the appellants was not similar to that of other prosecution witnesses namely, P.Ws.3, 5, 6. 9. 10 & 22 and P.Ws.7, 8 & 11 had seen the appellants after the aforesaid witnesses had confronted the miscreants. Hence, versions of P.Ws.3, 5, 6. 9. 10 & 22 cannot rule out the possibility of identification by P.Ws.7, 8 & 11 with the help of electric light at a subsequent stage of the incident. P.Ws.3, 5, 6. 9. 10 & 22 had seen the 9 appellants immediately after the occurrence when they had covered their faces. After sometime, P.W.s 7, 8 and 11 happened to come across the miscreants. It is absurd to presume that the miscreants would keep their faces at all points of time. It is possible that the miscreants had removed the covers from their faces after dacoity had already been committed. Hence, there is no irreconcilable difference between the deposition of other prosecution witnesses and the identification of appellant nos.3 & 5 by P.W.s 7, 8 and 11 in T.I. Paraded as well as in court. It is true that in cross-examination, P.Ws 8 & 11 admitted that they had seen the accused persons in police custody. However, evidence of P.W.7 does not suffer from such infirmity. The said witness unequivocally deposed he had identified appellant nos.3 & 5 in the course of T.I. Parade examination which was held within two days of arrest of the appellants and also in court. Hence, I am not inclined to hold that identification of appellant nos. 3 & 5 by P.W.7 does not suffer any infirmity and clearly establishes the presence of the appellant nos. 3 and 5 along with other miscreants immediately after the dacoity at the place of occurrence.
Soon after the occurrence, all the appellants were apprehended on 28.1.2016 by P.W.35 at the house of P.W.13. P.W.13 and his daughter P.W.14 has corroborated the prosecution case with regard to the fact that the appellants had jointly taken a room on rent at her residence. Version of the P.Ws.13 & 14 has been corroborated by other co-tenants, namely, P.Ws.12, 15 & 17. At the time of apprehension of the appellants P.W. 35 recovered one golden bouty, three gold rings, one gold ear ring and mobile phone from appellant no.1 under a 10 seizure list (Ext.18/7), silver tabiz marked with S.J. from appellant no.2 under a seizure list (Ext.18/4), pipe gun and mobile phone from appellant no.5 and currency notes and mobile phone from appellant nos.3 & 4. Cash memos of M/s. Shibani Jewellers and other incriminating articles were also recovered. On a subsequent day i.e. 2.2.2016 other incriminating articles, namely, sabols, one bhojali, one iron rod and one gulti were also recovered. Soon after the recovery, gold and silver articles were identified by P.Ws.1 & 2 at the P.S. in presence of P.Ws.29, 30 & 33. P.W.1 identified three gold rings and one gold earring in court. Silver tabij marked with S.J. was identified by P.W.2 in court.
I am not impressed by the challenge thrown by the learned counsel appearing for the appellants with regard to the recovery and identification of stolen articles by the prosecution witnesses. He submitted particulars of stolen gold and silver ornaments were not disclosed by P.W.s 1 and 2 in FIR or in their subsequent statements to police. He also submitted that identification of seized articles during investigation is faulty as the articles were not mixed with other ornaments. I have perused the first information report. It is alleged in the FIR that various valuables had been stolen from the jewellery shops. It is not expected that the particulars of all the ornaments stolen from the shop would be described in the FIR. Recovery of gold and silver ornaments pursuant to a dacoity committed in a jewellery shop soon after the incident clearly gives rise to an inference that the person from whom such ornaments were involved in the dacoity in terms of Illustration (a) of Section 114 of the Evidence Act. It is also important to note that the silver 'tabij' identified by P.W 2 bears the insignia 'SJ' 11 i.e. the initials of his shop 'Sibani Jewelers'. P.W.s 1 and 2 had identified the articles in course of investigation which reinforces their identification in court. Minor discrepancies in investigation in that regard, in my considered opinion, does not erode the identification of the stolen articles by P.Ws 1 and 2 in the course of trial and the prosecution case in that regard is wholly established.
From the aforesaid discussion it appears that the appellant nos. 3 and 5 were seen along with other miscreants near the place of occurrence where dacoity was committed. They were armed with various weapons including fire arms. They threatened the local people and assaulted some of them. Within a week from the dacoity, stolen articles and fire arms were recovered from the possession of the appellant nos. 1 2 and 5. Appellant nos. 1 and 2 were unable to explain how they came into the possession of gold and silver ornaments stolen from the shop room of P.W 1 and 2.
In the light of recovery of stolen articles from appellant nos. 1 and 2 soon after the dacoity which remained unexplained by the said appellant vis-a-vis their licit possession of such articles, I have no hesitation to draw the inference that appellants nos. 1 and 2 were also members of the gang along with the appellant nos. 3 and 5 (who were identified at the police station by prosecution witnesses) who committed dacoity at the shop rooms of P.Ws 1 and 2. In view of the fact that the appellant nos. 4 and 6 had not been identified by any of the prosecution witnesses nor any incriminating article except cash being recovered from them, I am of the opinion that the evidence on record does not justify a firm conclusion 12 beyond reasonable doubt that they were members of the gang who committed dacoity in the jewellery shop of P.W 1 and 2 as alleged.
Hence, I am inclined to extend the benefit of doubt to appellant nos. 4 and
6. Conviction and sentence imposed upon the aforesaid appellants namely Charan Singh and Lakhram Singh are set aside.
Conviction of the appellant nos. 1, 2, 3 and 5 namely Jagdish Singh, Ramkishor Singh, Kalicharan Singh and Kalu Singh are upheld.
Appellant nos. 4 and 6 shall be forthwith released from jail custody if not wanted in any other cases on executing a bond to the satisfaction of the trial court which shall remain in force for a period of six months in terms of section 437A of the Code of Criminal Procedure.
Coming to the sentences imposed on the appellant nos. 1, 2, 3 and 5, I note that they do not have any criminal antecedents.
Accordingly, while upholding the sentences imposed upon them with regard to other charges, I modify the substantive sentences imposed on appellant nos. 1, 2, 3 and 5 with regard to the offences under section 395 IPC and on appellant nos. 1, 2 and 3 with regard to offence under section 412 IPC and direct that they shall suffer Rigorous Imprisonment for seven (7) years each and to pay a fine of Rs.10,000/- each, in default to suffer simple imprisonment for six months more on each court respectively. All the sentences shall run concurrently.
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The period of detention, if any, undergone by the appellant nos. 1, 2, 3 and 5 during investigation, enquiry and trial shall be set off against the substantive sentences imposed upon him in terms of section 428 Cr.P.C.
Appeal is partly allowed.
Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once.
Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites.
I agree.
(Manojit Mandal, J.) (Joymalya Bagchi, J.)