Calcutta High Court (Appellete Side)
Anwar Ahmed @ Bihari vs The State Of West Bengal on 24 December, 2013
Author: Nishita Mhatre
Bench: Nishita Mhatre
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Mrs. Justice Nishita Mhatre
And
The Hon'ble Mr. Justice Indrajit Chatterjee
C.R.A. NO. 307 of 2003
Swapan Kumar Khan,
Parvez Khan,
Rajat Pal,
Anwar Ahmed @ Bihari
-vs.-
The State of West Bengal
u/s 374 of the Criminal Procedure Code
For the Petitioner No.2 : Mr. P.S. Bhattacharya,
Mr. Ranjit Sanyal,
Mr. Debangan Bhattacharya.
Mr. Firoz Edulzi,
Ms. Devipriya Mitra.
For the Petitioner No.4 : Mr. Debasish Roy,
Ms. Sreyashi Biswas.
For the Petitioner No.1 : Mrs. Anasuya Sinha.
For the Opposite Party : Mr. Saibal Bapuli,
Mr. Soumik Ganguly.
Heard On : 29.11.2013, 06.12.2013
Judgement on : 24.12.2013
Indrajit Chatterjee, J. : This appeal has been directed as against the
judgment and order dated 10.07.2003 and 11.07.2003 as passed by
Additional Sessions Judge, Sealdah, District South 24-Parganas, in
Sessions trial No.1 (1) of 2003 arising out of Sessions case No.90 (6) of
2002 corresponding to G.R. case No.2687 of 2002 of the Additional
Chief Judicial Magistrate, Sealdah.
In that Sessions Trial the Learned trial Court was pleased to
convict all the four (4) accused persons before him namely 1. Swapan
Kumar Khan 2. Rajat Pal 3. Anwar Ahmed and Parvez Khan for the
offence punishable under Sections 394 and 397 of the Indian Penal
Code (henceforth called as the said code) Swapan Khan, Parvez Khan
and Anwar Ahmed were also convicted in respect of the offence
punishable under Section 412 of the said code.
The Learned trial Court imposed a sentence of 10 years rigorous
imprisonment on the four (4) accused persons for the offence
punishable under Section 394 of the said code and also directed to
pay a fine of rupees one thousand (Rs.1000/-) each and in default to
undergo further rigorous imprisonment for one month each. The
Learned Trial Court further sentenced all those four (4)
accused/convicts to suffer rigorous imprisonment for seven (7) years
each for the offence punishable under Section 397 of the said code.
The Learned trial Court was further pleased to sentence the
three accused persons namely, 1. Swapan Khan 2. Parvez Khan and
Anwar Ahmed to suffer rigorous imprisonment for five (5) years and
also to pay fine of Rupees Five hundred (Rs.500/-) each in default to
further rigorous imprisonment for one month for the offence
punishable under Section 412 of the said code. All the convicts were
allowed to get the privilege of set off under Section 428 of the Criminal
Procedure Code. The Learned trial Court further ordered that all the
sentences imposed on the convicts will run concurrently. During the
pendency of this appeal convict Anwar Ahmed alias Bihari absconded.
The fact before the floor of the Ld. Trial Court was thus, that
one written complaint (Exhibit-2) which was scribed by Sub-Inspector
N.C. Ghosh (PW21) was lodged at Ultadanga P.S. on 05.02.2002 at
about 16.05 hours by Mohammed Samim (PW2) the de facto
complainant of this case giving rise to Ultadanga case P.S. No.21
dated 05.02.2002 which ultimately gave rise to G.R. case No.268 of
2002 of the Ld. Additional Chief Judicial Magistrate Sealdah within
the District of 24 Parganas.
As per F.I.R. the newly married couple i.e. Mohammed Shamim
(PW2) and his wife Rehana Khan (PW6) were sleeping in their house
located at premises No.1/7/A/6, J.K. Ghosh Road, Kolkata-37 in the
intervening night of 03/04 of February, 2002. At about 2.00 P.M. one
person knocked their door and told the de facto complainant PW2
that his maternal uncle is ill and as such he will have to go to attend
him. On receipt of this news the de facto complainant opened the
door and then and there two persons aged about 25 to 26 years
entered into the room and bolted the room from inside, one of them at
one bhojali in his hand and other person had one sabal-type iron rod.
The person who has having the bhojali threatened the de facto
complainant and his wife and asked them to sit and to keep silence.
The victims had to comply with the said direction out of fear and
thereafter they broke open the lock of the almirah and took away
Rupees eighteen thousand, four pairs of gold ear rings, one finger ring
and also took away the gold chain and finger rings from the body of
the wife of the de facto complainant. It is further case of the
prosecution that when the de facto complainant tried to resist the act
of those persons then the person who has holding the bhojali
squeezed the hand of the de facto complainant thus he got severe pain
on his left hand and thereafter those persons left the place.
It is in the F.I.R. that the two miscreants were speaking in
Hindi. The victim thereafter was treated as R.G.Kar Medical College
and Hospital. It is further case of the prosecution that for such
treatment he could not lodge the F.I.R. in time.
The police jumped into action and the investigation was taken
up by PW22 i.e. S.I. Sunil Kumar Sarkar of Detective Department
anti-dacoity Section of Kolkata police on 12.04.2002. During the
course of investigation on the next day at about 4.15 P.M. one convict
namely Swapan Khan was arrested from the crossing of Hidaram
Banerjee Lane and N.C. Chatterjee Street and that Swapan Khan was
searched and from his pocket rupees two hundred and seventy five,
one gold looking finger ring, one gold looking Jhumka, one pair of ear
ring with flower design on it were seized as per seizure list which was
prepared in presence of witnesses Mati Roy (PW7) and Pradip Kanjilal
(PW8) and that Swapan Khan was taken into police custody. On the
basis of his statement and as per source information another convict
Rajat Paul alias Rahul, who was already in police custody in
connection with a case of M.T.S.D.D. of Kolkata Police was prayed for
to be shown arrested and that prayer was allowed by the Court. Rajat
Paul was taken into custody in this case and on interrogation he
disclosed the names of other two convicts namely Anwar Ahmed alias
Bihari and Parvez Khan who were already in Police custody in
connection with a Jorabagan P.S. case dated 18.02.2002 and
ultimately the I.O. got him in custody in connection with this case
with the permission of the Court and both of them were interrogated
firstly on 17.04.2002 and again on 21.04.2002 but they did not make
any incriminating statement against themselves.
Thereafter on 22.04.2002 all the four convicts were interrogated
again when convict Swapan Khan made a statement regarding
recovery of articles from him (the statement has been marked as
Exhibit-13) which was already done on 13.04.2002. On 24.04.2002
accused Anwar Ahmed was interrogated in lock up and made his
statement which was duly recorded (marked as Exhibit-13/1) and
that Anwar Ahmed took the police party to premises No 50 of Jakaria
Street Kolkata and in presence of witnesses Samir Nandi (PW12) and
Mohammed Taslim (PW14) one pair of ear rings were seized as
produced by the said convict.
It was further case of the prosecution that on 25.04.2002
convict Parvez Khan was interrogated while he was in police custody
and he made a disclosure statement (exhibit-3/2) and he led the
police party to 12 Harin Bari second bye lane and he brought out one
Jhumka from below the mattress of his house which was seized as
per seizure list in presence of the brother of the said convict and
three local witnesses including one police constable. The seizure list
has been marked as exhibit-6.
So long we were on the recovery point of the investigating
agency. It also prayed for test identification parade which was
allowed. T.I. Parades were held on two dates i.e. on 07.05.2002
(Exhibit-11) and on 14.05.2002. In the first T.I. Parade PW2 i.e. de
facto complainant PW3 i.e. father of the de facto complainant were
present but they failed to identify any of the suspects. In that T.I.
Parade, however, PW4 Mohammed Noor could identify convict Swapan
Khan and Anwar. One witness Abdul Hakim also attended the T.I.
Parade on that date and identified three accused persons namely
Rajat Paul Anwar Ahmed and Parvez Khan (this Abdul Hakim was not
examined as prosecution witness). Another witness also attended the
T.I. Parade on that day namely, Mohammed Salem but he failed to
identify any of the suspects. In the T.I. Parade dated 14.05.2002 one
witness namely Jiauddin Ansari (PW5) was present and all the four
convicts were placed and he identified the convicts Swapan Khan and
Anawar Ahmed alias Bihari in that T.I. Parade.
Thus, after the investigation was closed the I.O. of this case
submitted charge-sheet against all the four convicts for the offence
punishable under sections 394 and 397 of the Indian Penal Code and
further submitted charge-sheet against the convicts namely Swapan
Khan, Parvez Khan, Anwar Ahmed alias Bihari also for the offence
punishable under Section 412 of the Indian Penal Code. It may be
noted that no T.I. Parade was held in respect of the seized ornaments.
It is the argument of the Learned lawyer appearing on behalf of
the defence taken together that the order of conviction is itself
defective as there cannot be conviction on two counts i.e., Sections
394 and 397 as Section 397 is the aggravated form of Section 394 of
the code. This point was further extended by arguing that similarly
conviction of the same convicts for the offences punishable under
Sections 394 and 397 cannot be also in respect of the Section 412 of
the said code which has prescribed punishment for the recovery of the
booty of dacoity.
It was argued on behalf of the appellants that the FIR is totally
contrary to the evidence of PW2 i.e. Mohammed Shamim and are full
of exaggerations also. It was also argued as to why the FIR maker did
not approach the police soon after he was released from hospital in
the morning of 04.02.2002, that as per FIR only two (2) persons
entered into the house, there is no whisper in the FIR that other
miscreants were waiting outside, that both PW2 and PW3 (father of
PW2) claimed in their cross-examinations that police came to their
residence in the said morning and then why F.I.R. was not lodged at
that time, that the description of the miscreants as given in the FIR is
not tallying with the accused/convicts, that if the evidence of PW2 is
scrutinized then it will reveal that Swapan Khan and Parvez Khan are
elder than his father and Anwar Ahmed was also senior in age that of
the age of his father i.e. PW3 who is fifty years, that in the FIR it was
categorically stated that the age group of the miscreants was 25-26,
why one of the main witness of this case i.e. wife of PW2 i.e. PW6 who
actually saw the miscreants for more times did not face the Test
Identification Parade (henceforth called as T.I. Parade), that PW2
failed to identify any of the suspects, the existence of Aman
Committee of the locality has been well-proved from the version of the
witnesses and there is no explanation as to why the de facto
complainant or his father did not inform any member of the said
Committee who were in that area on that night, why the matter was
not instantly reported to Belgachia Police out post which is very near
the House of the PW2, that as per evidence of PW3 police was given a
call and police came in that morning but why no F.I.R. was lodged
even at that time, that PW4's presence near the place of occurrence is
doubtful as admittedly he is one khalasi of a truck and if his cross-
examination is scrutinized it will reveal that the said truck was
unloaded at 12.00 to 12.30 at night and he waited at LakeTown area
for another one and half hour as per direction of the truck driver, i.e.
Mohammed Salam and also deposed that only about the three (3)
persons one with rod in his hand, one with Bhojali and one with a
putli and as such the story of 4th man cannot be believed, that in the
T.I. Parade he actually identified such three persons even though he
identified all the four convicts in the court room, that his presence is
very doubtful as he is one accused, that on recall he categorically
deposed that he identified the accused persons out of the pressure of
the police that, PW5 is a chance witness and that portion of his
evidence has not been corroborated by any one that he went to his
sister's house to attend one ceremony, that PW6 i.e. wife of the PW2
also exaggerated herself in her evidence vis a vis the FIR, that no T.I.
Parade was held in respect of the one pair of Jhumka, one pair of
earring another pair of small size Jhumka, one pair of Kan Phool and
ring of her husband even though this witness identified those before
the Court as marked as material Exhibit-I collectively and that she
exaggerated herself from the F.I.R. when she categorically stated that
the miscreants even took four wrist watches and that the miscreants
took upon the almirah and thereafter took the gold ornaments.
Regarding the evidence of PW7 it was argued that this seizure
list witnesses cannot be believed who came for shopping from a
distant place in that area, that why the nearby shop owners who were
only more reliable persons were not cited as witnesses or examined
before the Court to give strength to the story of seizure from the
possession of accused Swapan, regarding the evidence of PW8 it was
argued that why the shop of ornaments which were kept in the
Malkhana were not noted in the register to prove convincingly that
such articles were actually seized, that such articles were not weighed
and that PW10 is a man of Howrah District and he came to Kalutala
Street to purchase articles of his business who has his place of
business at Baigachi under Dankuni line which is 20 minutes from
Howrah Railway Station and as such he cannot be a good seizure list
witness when the Seizing Officer could have make other reliable
persons as witnesses in respect of the search and seizure made from
accused Swapan Khan and others.
Regarding PW11 it was argued on behalf of the defence that it is
hard to believe that this witness is a mobile cycle repairer who attends
call from public to repair cycles at the places where he was asked to
go, that he is a man of 28, Tarachand Dutta Street and as such the
story of seizure from the possession of accused Swapan Khan cannot
be believed, regarding the evidence of PW12 and 13 it was argued that
this witnesses deposed only regarding the absconding accused Anwar
and as such their evidence may not be taken into consideration in
this appeal, regarding PW15 it was argued that this witness is a street
hawker who came to Harin Bari Lane when he was returning back
from selling fruits and as such this witness is also a chance witness
whose evidence may also be discarded, regarding evidence of PW16 it
was submitted that he is a police constable and as such no reliance
can be placed on his evidence and regarding the evidence of the PW20
i.e. the Magistrate who presided over the T.I. Parade it was argued by
the Ld. Defence Counsel that as to why accused Paresh Halder and
Mohammed Tayeb (who were accused at the investigation stage but
were not charge-sheeted) placed in T.I. Parade and it was also
argued that several incriminating questions were not put to the
convicts and as such those incriminating portions cannot be
considered by the prosecution.
On this point the defence cited the decision of the Apex Court
as reported in 1984 S.C.C. (CRI page 487) (Sharad Birdhichand Sarda
Vs. State of Maharashtra) to convince this Court that when several
questions were not put to the accused persons regarding their
involvement in the crime and the entire evidence of PW22 has not find
its place in the 313 sheets. The defence will naturally get the benefit
of such flaw as left by the Ld. Trial Court.
On behalf of the prosecution it was submitted that prosecution
is relying on the evidence of PW5 and also the evidence of the
Investigating Officer i.e. PW22 to say that the prosecution has been
able to prove the charge against the convicts and that the Ld. Trial
Court duly convicted the accused persons.
The Ld. Prosecutor has cited the decision of the Apex Court as
reported in 2008 (6) Supreme 691 (Aslam @ Deewan Vs. State of
Rajasthan) to convince this court that as harm was caused to the
victim Section 394 of the Code will definitely apply in this case.
Before we proceed further we like to put on record the relevant
Sections quoted below:-
Section 390- Robbery- In all robbery there is either theft or
extortion.
When theft is robbery. Theft is "robbery" if, in order to the
committing of the theft, or in committing the theft, or in carrying away
or attempting to carry away property obtained by the theft, the
offender, for that end, voluntarily causes or attempts to cause to any
person death or hurt or wrongful restraint, or fear of instant death or
of instant hurt, or of instant wrongful restraint.
When extortion is robbery. Extortion is "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 hurt, 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.
Section 391- Dacoity when five or more persons conjointly
commit or attempt to commit a robbery, or where the whole number
of persons conjointly committing or attempting to commit a robbery,
and persons present and aiding such commission or attempt, amount
to five or more, every person so committing, attempting or aiding, is
said to commit "dacoity".
Section 394- Voluntarily causing hurt in committing
robbery. - If any person, in committing or in attempting to commit
robbery, voluntarily causes hurt, such person, and any other person
jointly concerned in committing or attempting to commit such
robbery, shall be punished with imprisonment for life, or with
rigorous imprisonment for a term which may extend to ten years, land
shall also be liable to fine.
Section 397- Robbery, or dacoity, with attempt to cause
death or grievous hurt. - If, at the time of committing robbery or
dacoity, the offender uses any deadly weapon, or causes grievous hurt
to any person, or attempts to cause death or grievous hurt to any
person, the imprisonment with which such offender shall be punished
shall not be less than seven years.
Section 410- Stolen property. - Property, the possession
whereof has been transferred by theft, or by extortion, or by robbery,
and property which has been criminally misappropriated or in respect
of which criminal breach of trust has been committed, is designated
as "stolen property", whether the transfer has been made, or the
misappropriation or breach of trust has been committed, within or
without India. But, if such property subsequently comes into the
possession of a person legally entitled to the possession thereof, it
then ceases to be stolen property.
Section 411- Dishonestly receiving stolen property. Whoever
dishonestly receives or retains any stolen property, knowing or having
reason to believe the same to be stolen property, shall be punished
with imprisonment of either description for a term which may extend
to three years, or will fine or with both
Section 412- Dishonestly receiving property stolen in the
commission of a dacoity. - Whoever dishonestly receives or retains
any stolen property, the possession whereof he knows or has reason
to believe to have been transferred by the commission of dacoity, or
dishonestly receives from a person, whom he knows or has reason to
believe to belong or to have belonged to a gang of dacoits, property
which he knows or has reason to believe to have been stolen shall be
punished with imprisonment for life, or with rigorous imprisonment
for a term which may extend to ten years, and shall also be liable to
fine.
This Court finds that the following points are to be answered in this
appeal to get a picture as to whether the Trial Court rightly convicted
the accused persons before him or it erred to come to that conclusion:
1.Whether there were actually four miscreants who committed this crime or whether their numbers were less?
2. Whether the F.I.R. was lodged at the very early stage giving no chance to the de facto complainant to concoct this case?
3. Whether the victim i.e. PW2 sustained any grievous injury to attract Section 397 of the said Code instead of Section 394 of the Code?
4. Whether the evidence of PW5 i.e. only witness relied upon by the prosecution as regards test identification parade can be held to be trustworthy to sustain this conviction?
5. Whether the evidence of PW22 can be totally discarded in view of the fact that no question was put to any of the convicts under section 313 of the Cr.P.C regarding his evidence which is a must in view of the decision of the Hon'ble Apex Court as reported in 1984 S.C.C. (CRI page 487) (Sharad Birdhichand Sarda Vs. State of Maharashtra)?
6. Whether the story of seizure as claimed by the prosecution can be believed?
7. Whether same person may be convicted in respect of the charge punishable under Section 394/397 of the Code?
8. Whether there can be the conviction of the same person U/s 394/397 and also for the offence Under Section 412 of the said Code?
1. As per the evidence of PW2 and PW6 i.e. the couple in whose house the alleged crime was committed actually two persons entered into their room. Even to the doctor (PW17) this PW2 stated that such miscreants were only two in number. There is nothing in the F.I.R. or in the evidence that other persons were waiting outside their room. The evidence of other witnesses about which we have pointed out while noting arguments of the defence go to show that actually they saw three persons one with 'putli' one with 'Bhojali' and one with 'iron rod'. So at best there were not more than three miscreants and as such the story as made out by the prosecution that there were four miscreants is a myth and was not proved before the Ld. Trial Court. However, the number will not make any difference as Section 394 does not postulate any fixed number to make the offence of robbery like that of dacoity. Even a single person can commit robbery. Thus we are of the clear view that four persons were in the crime was not proved before the Ld. Trial Court and the Ld. Trial Court erred on this point.
2. The first information report is a valuable document as it is the first information given to the Investigating Agency. Here in the present case the F.I.R. was recorded by the police at 16.05 hours on 05.02.2002. It may be noted that the alleged crime took place in the intervening night of 3/4 02.2002 at about 2.00 a.m. thus, there was delayed of 38 hours in lodging the F.I.R. This Court is not unmindful of the fact that the victim PW2 had to be hospitalized after the incident but the prosecution did not produce any discharge certificate of the victim to prove at what time he was actually discharged.
The evidence of the doctor i.e. PW17 only goes to show that he attended the patient on 04.02.2002 at 2.40 a.m. and there was dislocation in the left elbow joint of the victim but his evidence is also silent as to at what point of time the patient was discharged from the hospital. There is no evidence that any other doctor attended the victim thus, this court is satisfied that this PW2 could have lodged the F.I.R. much earlier. The evidence of PW3 as we have pointed out while noting the argument of the defence clearly shows that he called the police soon after the incident over phone and police came to the spot. It is unfortunate to note that no F.I.R. was lodged by the police instantly. The police must have been aware regarding the admission of PW2 at the hospital but did not go to record his statement and waited for the arrival of PW2 from the hospital.
The cross-examination of PW3 also shows that there is one Belgachia police out post very near the place of the occurrence but no F.I.R. was lodged there. The existence of the Aman Committee has been very much proved from the evidence on record. It is the duty of the Aman Committee to guard that area but unfortunately PW2 or PW3 did not inform any member of such Aman Committee regarding the crime. PW5 claimed himself to be a resident of that area but he also did not inform any member of that committee. Thus, this point is answered with this observation that the F.I.R. could have been lodged much earlier.
3. No injury report has been produced by the victim in respect of PW2 but the evidence of PW17 i.e. the doctor goes to show that this victim got fractured wound. The evidence of PW2 goes to show that his left hand was squeezed and as such he received some injuries on that hand.
Now, the question is whether this is a grievous injury or not. To attract Section 397 of the said code the victim must receive grievous injury. And to convert a case u/s 394 of the Code to one u/s 397. As per Section 320 of the Code clause seventhly one hurt is grievous hurt if there is fracture or dislocation of a bone or tooth. No radiological report was placed before the Ld. Trial Court to show that actually Mohammed Samim (PW2) got a fractured wound only the attending doctor. i.e. PW17 deposed as such. Without any radiological report this court is not inclined to believe the version of PW17 that there was dislocation/fractured of the left elbow joint of the victim. Thus this court is of the opinion that having regard to the evidence on record, the victim did not sustain any grievous injury to attract Section 397 of the Code.
4. Now, let us consider the evidentiary value of PW5 i.e the only public witness on which the prosecution has placed its reliance in this appeal. This PW5 is one Giauddin Ansari who is a resident of 2/H/2 J.K. Ghosh Road Police Station, Ultadanga within the District of 24- parganas (South). It may be noted that this incident took place in that area. As per his evidence he went to LakeTown area in the house of his sister to attend one ceremony there and he was returning at about 12.45 a.m. As per his evidence it took 40/45 minutes to reach at Belgachia Metro Station and further deposed that at about 1.30 a.m. at night at J.K. Ghosh Road he saw four persons coming from the side of the house of Salam (PW2) in a hurried manner and such persons were not known to him. He also deposed that he saw one person with 'bhojali' in his hand one person with 'iron rod' in hand and another person with one 'putli'.
It may be noted that this witness further deposed that he attended the T.I. parade and he identified the miscreants who are now the appellants before us.
His evidence is totally contrary to the claim of PW2 and PW6 who deposed that the incident happened at 2.00 a.m. and if the incident took place at 2.00 a.m. inside their room then how this witness could see four miscreants to come out of the house of PW2 at that odd hour of night i.e. at 1.30 a.m. Apart from this aspect his presence at the spot at that odd hour of night on the road is also to be scrutinized by this Court. It is claimed that he went to LakeTown area to attend one ceremony at his sister's house but on this point there is no evidence. This court would not have mind regarding his presence in that road had it been the day time but naturally this court will be suspicious when it is considering a case which happened at that odd hour of night. As per the evidence of this witness those miscreants whom he saw were 30 or 35 years in age and it is also contrary to the evidence of PW2 vis a vis the F.I.R. wherein PW2 claimed that the two miscreants who entered into his house was in the age group of 25 or 26.
We have gone through the evidence of PW5 meticulously and on keeping our searching eyes on the cross-examination of this witness and on reading and re-reading his entire evidence this court cannot put emphasis on his evidence as worthy of credence particularly when this court has been asked to believe only this witness to confirm the order of conviction so far as T.I. Parade is concerned.
It was suggested on behalf of the defence that there is no premises bearing No.2/H/2 at J.K. Ghosh Road but this witness could not produce any document to show that there is such a premises and he was residing there. This witness also deposed that he was not visiting the premises of Shamim (PW2) and it was only on that day he went to that house and thereafter he never visited the house of Shamim. Thus we reiterate that it is difficult for us to rely on the version of such a chance witness.
Regarding the T.I. Parade we are aware that this witness identified the four convicts but it is a million dollar question as to why PW2 could not identify any of the suspects and same was the fate of PW3 i.e his father. PW6 i.e wife of PW2 did not even face the T.I. Parade. We like to reiterate that the persons who saw at least two miscreants for a long time were PW2 & 6. PW2 categorically deposed that the persons who entered their room were not placed at all in T.I. Parade. He further deposed that the persons who committed the crime were shown to him and his father at police lock up and naturally the actual persons were not placed in T.I. Parade. This discussion will also apply regarding the identification of the absconding convict Anwar Ahmed @ Bihari.
5. Now, the question is whether the convicts were duly examined U/s 313 of the Cr.P.C?
We have noted in the argument of the defence that several questions were not put to the convicts by the Learned Trial Court to get the answer from the accused/convicts.
The main allegation of the defence was that not a single question was put by the Learned Trial Court regarding evidence of PW-22 i.e SI Sunil Kumar Sarkar, the IO of this case. We are not unmindful of the decision of the Hon'ble Apex Court as Reported in 1984 S.C.C (Cr.L.J) Page 487 (Sharad Birdhichand Sarda Vs. State of Maharashtra) wherein the Hon'ble Apex Court categorically held that the questions which were not put to the appellant in his statement U/s 313 of the Cr.P.C must be completely excluded from consideration because the appellant did not have any chance to explain them.
We have given our anxious thought to the examination of the accused persons as recorded U/s 313 of the Cr.P.C but unfortunately we are constrained to say that not a single question was put to the present appellants covering the incriminating circumstances as depicted by PW-22.
Thus, in view of the decision of the Apex Court as noted above the accused persons are entitled to get the benefit of such flaws in recording the statement of the accused persons U/s 313 of the Cr.P.C. The evidence of PW-22 covers the entire story of recovery and if the recovery portion goes practically there is nothing against the appellants/convicts. The same is the picture regarding the absconding convict Anwar Ahmed @ Bihari. Thus, this point is answered in favour of the convicts/appellants.
6. Whether the story of seizure as claimed by the prosecution can be believed?
The prosecution to prove the seizure from the present appellant has relied upon witnesses like, PW-7, Mati Roy who is a contractor labour of Metro Railway regarding the seizure from the accused Swapan Khan, PW-8, Pradip Kanjilal who did not support the prosecution's case and was tendered by the prosecution for cross examination, PW-10, Sanjib Mondal one business man having business of Rubber Chappal at Baigachi within Dankuni line who came to Chitpur area to purchase chappals, PW-11 Md. Amjad one mobile cycle repairer who somehow came to Kalutala Street to be a seizure witness, PW-12, one Samir Nandy who sells coconut by pieces who also witnessed the search and seizure, PW-13 Santosh Shaw one police constable who witnessed the search in respect of premises no.50, Jakaria Street, PW-14, Md. Taslim who did not support the prosecution's case and was tendered by the prosecution for cross examination, one Sanjay Singh PW-15 who is a fruit hawker and was returning back after selling fruits and somehow allegedly saw the seizure and one constable Sundar Bahadur Thappa PW-16 who deposed in his examination in-chief that he did not leave the PS on the date of the seizure even though he deposed thereafter that the seizure was made in his presence on 25.09.2002.
Thus, giving our anxious thought to the presence, status and nature of evidence of the seizure witnesses we are of the considered view that these seizure list witnesses cannot be believed and the Ld. Trial Court erred in relying on these witnesses to come to the conclusion to hold the accused/convicts guilty as regards recovery of articles allegedly belonging to PW2 & 6. In this discussion we have also taken note of the evidence of the seizure witnesses regarding the seizure made from Anwar Ahmed @ Bihari.
Apart from this aspect we cannot shut our eyes to this fact that the articles recovered from the possession of the three convicts namely Swapan Kumar Khan, Parvez Khan and Anwar Ahmed @ Bihari (since absconding) were not placed in property T.I. Parade which was a must to prove even prima facie that those articles actually belonged to PW2 & 6 and naturally convicts Swapan Kumar Khan and Parvez Khan including this absconding convict Anwar Ahmed @ Bihari are entitled to get the benefit of this flaw left by the Investigating Agency.
7. It is needless to say that Section 397 of the Code is an offence of higher degree compared to Section 394 of the said Code and as such there cannot be conviction on two counts i.e. both Sections 394 and 397 of the Code. The Trial Court naturally erred in convicting the appellants before us on both counts.
This Court has already held that the prosecution has failed to prove before the Ld. Trial Court that actually Shamim received any grievous injury and naturally the conviction u/s 397 was unwarranted. Thus, it is reiterated that there cannot be conviction both under Sections 394 and 397 of the Code. Thus, this point is answered accordingly.
Regarding the decision of the Apex Court as reported in 2008 (6) Supreme Court 691 (Aslam @ Deewan Vs. State of Rajasthan) vis a vis this case we are of the opinion that Section 394 was the right section to implicate the miscreants who committed the offence. To this extent the said decision may be accepted in this case.
8. It is a settled principle of law that one person who commits robbery or theft or dacoity cannot be also the receiver of stolen property or receiver of booty of dacoity and as such the person who has been convicted either u/s 394 or u/s 397 or u/s 379 of the Code cannot be convicted in respect of the charge whether it is alternative or not for the offence punishable either u/s 411 or u/s 412 of the Indian Penal Code. Before we part with this point we like to mention again that Section 412 has prescribed the punishment as regards recovery of booty of dacoity. Naturally Section 412 has no application in a case when the principal offence is robbery. We like to say that receiver of booty in a case of robbery can only be punished u/s 411 of the Code and not u/s 412. Thus, the conviction clamped u/s 412 had no sanction of law on the facts and circumstances of this case.
Thus, in view of our discussion above we are satisfied that the prosecution failed to prove the charge against the four convicts Swapan Khan, Parvez Khan and Rajat Pal including the absconding accused Anwar Ahmed @ Bihari even the offence punishable u/s 394 of the Code and far less the offence punishable u/s 397 of the Code and also in respect of the three others convicts namely Swapan Khan, Parvez Khan and Anwar Ahmed (since absconding) the alternative/additional charge u/s 412 of the Indian Penal Code. Thus, we are satisfied that those convicts are fit to be acquitted from this case and as such the order of conviction as passed by the Ld. Trial Court in this sessions trial on 10th July, 2003 and the sentence imposed on them as per order dated 11th of July, 2003 are both hereby set aside.
If the appellants are in custody then they be set at liberty at once. Even though the convict Anwar Ahmed @ Bihari is absconding we prefer to extend the order of acquittal in his favour also as there is no need to keep this appeal pending when we have travelled through the evidence on record including the seizure witnesses and T.I. Parade matter. If any of the convict/convicts is/are on bail they be discharged from bail bond forthwith.
Recall W.A pending against convict Anwar Ahmed @ Bihari.
Even though seized articles were not placed in T.I. Parade but those were allowed to be returned to PW2 Md. Shamim as per the impugned judgment. We are in disagreement on this point with the Ld. Trial Court but we prefer not to disturb the advantage given to PW2 after a gap of roughly ten years. Let that portion of the order be confirmed.
Transmit the L.C.R along with a copy of this judgment including all the files and the Ld. Trial Court is directed to comply with the direction of this Court forthwith.
(Indrajit Chatterjee,J.) (Nishita Mhatre, J.)