Calcutta High Court (Appellete Side)
Sanjoy Paul & Anr vs State Of West Bengal on 12 February, 2018
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLTE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
AND
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 657 of 2015
CRAN 843 of 2017
Sanjoy Paul & Anr.
- Vs -
State of West Bengal
For the Appellants : Mr. Sekhar Kumar Basu, Sr. Adv.
Mr. Abhijit Ganguly, Ld. Adv.
For the State : Mr. Saswata Gopal Mukherjee, Ld. P.P.,
Mr. Arun Kumar Maiti, Ld. A.P.P.,
Mr. Anjan Datta, Ld. Adv.
Heard on: 12.02.2018.
Judgement on: 12.02.2018.
Joymalya Bagchi, J.:
With consent of the parties the appeal is taken up for hearing without the preparation of paper books.
The appeal is directed against the judgment and order dated 29.6.2015 passed by the Additional Sessions Judge, 1st Court, Barasat, North 24- Parganas in Sessions Trial no. 1 (7) 2010 [Sessions Case No.12(5)2010] convicting the appellants and one Amit Das for commission of offence punishable under Sections 364A/411/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs.10,000/- each, in default to suffer simple imprisonment for 5 years for the offence punishable under Section 364A/34 of the Indian Penal Code and to suffer simple imprisonment for two years and to pay a fine of Rs.3,000/- each; in default to suffer simple imprisonment for one year for the offence publishable under Sections 411/34 of the Indian Penal Code, both the sentences to run concurrently.
Prosecution case, as alleged against the appellants is to the effect that on 26th February, 2010 at 1:45 p.m. the victim went to his office at Unitech High Tech Structure Ltd., Block - DH, New Town, Kolkata - 700 156. The victim was at work for the whole day and left the office at around 7:30 p.m. along with his colleague Sourav Baidya, who dropped him at New Town opposite DLF building from where he boarded a yellow taxi. At around 9:30 p.m., Samiran Das, father of the victim, received a call from his son's mobile phone no.9903266089 and upon answering the call, he was informed by a person, speaking in Hindi language, that his son had been kidnapped and a ransom of Rs.20 lakh is to be paid for his release. His son also confirmed over telephone such fact. The abductors again made similar call at around 10:30 p.m. and told Samiran to make arrangement for ransom money immediately. Samiran rushed to the local police station i.e., Kasba Police Station but the police officers asked him to go to the jurisdictional police station i.e., New Town Police Station to register an FIR. Accordingly, on the next day Samiran went to New Town Police Station and lodged FIR at the said police station under Section 364A of the Indian Penal Code against unknown persons. On the next day, Samiran Das (P.W.1) and Debasree Das (P.W.2), wife of the victim, again received phone call demanding ransom. Upon negotiations, the abductors were agreeable to receive Rs.2 lakh and they asked Debasree to bring the money at Madhyamgram. Debasree (P.W.2) went to Madhyamgram with the ransom money whereupon she was directed to come to Belgharia Highway at 65 No. Bar Point and hand over the money to a person who would be sitting in a taxi bearing No. WB19B 0251. She went to the said spot but was again directed to come to Alambazar near Dunlop More and deliver the money to the occupant of a taxi bearing no. WB 04A 0975. She handed over ransom money as directed and the victim was released on the early morning of 28th February, 2010. In the course of investigation, the appellants and one Amit Das were arrested and the ransom money was recovered from their possession. Yellow taxi bearing no. WB 04D 3227 which was used for abduction of the victim was also recovered from the possession of appellant no.1. The victim identified the accused persons in test identification parade and charge sheet was filed against them.
The case, being a sessions triable one, was committed to the court of sessions and transferred to the court of the Additional Sessions Judge, 1st Court, Barasat, North 24-Parganas for trial and disposal. Charges were framed under Sections 364A/411/34 of the Indian Penal Code against the appellants and co-accused Amit Das. They pleaded not guilty and claimed to be tried.
In the course of trial, 13 witnesses were examined and a number of documents, including the sample currency notes containing the signatures of P.W.1, were exhibited. In conclusion of trial, the trial judge by the judgment and order dated 29th June, 2015 convicted and sentenced the appellants and Amit Das, as aforesaid.
No appeal has been filed by Amit Das, while the appellants have assailed their conviction and sentence in the present appeal.
Mr. Basu, learned senior Counsel with Mr. Ganguly, learned advocate argued that the prosecution case has not been proved beyond doubt. Evidence of P.W.s 1 and 2 with regard to demand of ransom are contradictory and unreliable. P.W.2 failed to identify the person who had allegedly collected the ransom money. Live link between the ransom paid allegedly to the miscreants and the currency notes recovered from the possession of the appellants has not been proved by the investigating officer (P.W.13) or other independent witnesses. It is also submitted that the evidence of P.W.3 with regard to the manner and circumstances of his abduction by the appellants is unnatural and opposed to common sense. There is delay in holding the test identification parade. P.W. 3 did not disclose the features of the appellants in the course of the test identification parade, improbabilising their identification during test identification parade as well as in Court. Reliance has been placed on various authorities in support of such contention. Hence, the appeal ought to be allowed.
On the other hand, learned Public Prosecutor with Mr. Maiti, leaned Additional Public Prosecutor argued that the evidence of P.W.3 with regard to kidnapping for ransom is clear, cogent and convincing. Not only has P.W.3 identified the appellants in T.I. Parade and in Court but has also indicated the circumstances in which he was able to identify them. Plea on the part of the appellants that they had been shown to the witness has not been probabilised. Signatures of P.W.1 on the seized currency notes have been proved by the said witness as well as P.W.13. Vehicle, which was used for kidnapping the victim, has also been seized from the possession of the appellant no.1. Hence, the appeal is liable to be dismissed.
Let me consider the evidence on record to test the challenges thrown to the conviction and sentence by the appellants in the instant case.
P.W.1, Samiran Das, is the de facto complainant and the father of the victim. He deposed that on 26th February, 2010 he received a phone call at about 9:30 p.m. from the mobile phone of his son bearing no. 9903266089. Upon answering the call, he was informed by a person in Hindi that they have abducted his son and he will not be released unless Rs.20 lakh is paid. His son also confirmed such fact. The abductors talked with his daughter-in-law, Debasree Das and held out similar threat. His son is employed with Capgemini. He had gone to his office at Rajarhat in the afternoon on that date. He had left his office a bit early at 7:30/ 8:00 p.m. as he was feeling unwell. Upon receiving such ransom call, he went to Kasba Police Station and informed the police officer about the incident. The police recorded a general diary and thereafter asked him to go to New Town Police Station. On the next date that is, 27th February, 2010 he lodged the FIR at New Town P.S.. He was accompanied by an office colleague of his son to the police station and thereafter he returned home. His daughter-in-law received a phone call from the abductors and after bargaining the abductors were agreeable to release his son upon receipt of Rs.2 lakh. Upon instruction from the abductors, his daughter-in-law took Rs.2 lakh and went in a taxi to pay the said sum to the miscreants. The money was carried in 3 bundles of hundred pieces of Rs.500/- each in denomination and 5 bundles of hundred pieces of Rs.100/- each in denomination. He signed on one note in each bundle with the date 27.02.2010. His son returned on the next date that is, 28.2.2010. Later on, the police officer arrested the miscreants. Nearly Rs.1.92 lakh was recovered from the accused persons. On prayer before the Court Rs.1.81 lakh was returned to him. He proved the FIR (Ext. 1). He proved the seven currency notes - three in denomination of Rs.500/- each and four in denomination of Rs.100/- each (Mat. Ext.1 series) bearing his signatures. The notes were kept in an envelope, which was produced in court (Mat. Ext.2). He also proved the zimmanama (Ext.2) on the basis of which the currency notes had been handed over to him.
P.W.2, Debasree Das is the wife of the victim. She has substantially corroborated the evidence of her father-in-law (P.W.1). She deposed that there were repeated phone calls from the abductors and upon negotiation, the ransom amount came down to Rs.2 lakh. She was directed to pay the money alone at Madhyamgram. She went to Madhyamgram and thereafter she was directed to come to Belgharia Highway at 65 No. Bar Point. She was informed that the person would be waiting for her in a taxi being No. WB 19B 0251. She did not find the taxi at the spot. She again received a phone call directing her to come to Alambazar near Dunlop More and deliver the money to a person in a taxi bearing no. WB 04A 0975. A person, aged about 30-35 having moustache was in the taxi who took the money. She handed over the money on 28.02.2010 at 1:00 a.m. P.W.3, Sandipan Das is the victim and most vital witness in the instant case. He deposed that on 26.02.2010 he went to his office at Capgemini at Rajarhat. He had a bad headache and left the office early. As he had missed the office bus, he requested his colleague to give him lift in his vehicle. As they were crossing DLF building, he saw a taxi bearing no. WB O4D 3227. He boarded the taxi. In the taxi, there were two persons namely, the driver and his helper. After the taxi crossed the Wipro Bridge, the front seat for the taxi fell back towards the rear and the driver told him that there was a technical problem which would need repair. They requested him to sit inside the taxi and the driver and the helper came out of the vehicle. At that time another person tried to enter in the taxi and there was a tussle with him. A tattoo, bearing the words 'Manas Shivam' was written in Hindi script, was inscribed on the right hand of the said person. In the course of altercation, the driver and the helper gagged him and his hands and legs were tied. He was also blindfolded. He was made to lie on the floor of the car adjacent to the back seat. The vehicle took a U-turn and on the way he heard a bus conductor's voice announcing the bus stop as Technopolis.
Thereafter the taxi presumably proceeded towards Rajarhat, New Town area. Around 9.30 p.m. captors told him to open his mobile phone by using password. The mobile phone was taken away from him along with the purse and he was asked to inform his father through the mobile phone that he had been kidnapped and would be released upon payment of Rs. 20 lakhs. One of the persons sitting in the back seat of the taxi referred the driver as Sanjay. After sometime, he was brought down from the taxi and made to walk on an uneven road surface and take to a lane after crossing a drain. He heard opening of a grill gate and was taken inside a house and kept detained there. On the next morning through the corner of his blindfold he saw that there was a window in the room with saffron coloured curtains. At about 11.30 a.m he was allowed to talk to his wife and tell his family members to do as his captors demanded. He was given lunch and permitted to attend nature's call. There was an altercation between the driver and one of his captors named Manoj. He identified Manoj in court. He was told that he would be released after getting money from his house. After sometime they gave him his wallet and laptop. He was made to sign on a blank paper. He was taken into a taxi in blind folded condition. He was, thereafter, thrown out of the taxi with Rs. 400/- at Golf Green near the bus stand of route no. 234. It was around 4.30 a.m. in the morning. Using the mobile of a passerby, he telephoned his family members and boarded a taxi and returned to his house. Hie wife narrated to him that she had handed over the money to the captors as demanded. He identified the appellants in the course of T.I. parade. In cross examination, he denied that he had met the police between 26.2.2010 to 22.3.2010. He came to know about the arrest of the miscreants over television. He did not see the faces of the miscreants on T.V. as their faces were covered with cloth.
P.W 4, Kamalesh Poddar is a friend of P.W 3. He accompanied P.W 1 to Kasba P.S and thereafter New Town P.S for lodging FIR. He drafted the FIR as per dictation of P.W 1. He proved written complaint (Ext. 1/1).
P.W 5 and P.W 7 are the witnesses of seizure of taxi bearing no. WB 04A-0975. On 1.3.2010 at around 1 to 1.30 a.m. police seized the said taxi near BT road and Tobin road crossing under Baranagar P.S. Driving licence, R.C Book of Ash Md. were also seized by the police. P.W 5 is the brother of Ash Md.
P.W 6 deposed that he witnessed the seizure of one yellow colour taxi bearing no. WB 19B/0251 on 2.3.2010 at 11.45 a.m. Police seized one knife from the said taxi in front of Gems Cinema Hall, Entally Market. He signed on the seizure list. (Ext. 5).
P.W 8 and 9 are the witnesses to the seizure of cash from the residence of appellant no. 1. They also witnessed the seizure of taxi bearing no. WB 04D 3227 in front of the residence of appellant no.1.
P.W 8 deposed that on 3.3.2010 in between 2.30 to 3 p.m. police officers seized three bundles of Rs. 500/- Indian currency notes and four bundles of Rs. 100/- Indian currency notes from the flat of Sanjoy Paul which is situated on the 3rd floor of a building at 111, A.K. Mukherjee Road, Noapara. Police also seized two mobile phones and one torn pillow from the flat in his presence. He signed on the seizure list with regard to the aforesaid seizure.
P.W 10 is the police officer who received the written complaint from P.W 1 and drew up the formal FIR (Ext 8).
P.W 11 is the driver of the vehicle which was used by P.W 13 to come to the house of Manoj Bag. At 3.3.2010 around 9.30 a.m. police seized 25 numbers of Rs. 100/- currency notes from his house. He signed on the seizure list. On the same day P.W 13 seized 10 numbers of Rs. 100/- notes from the house of Amit Das. He signed on the seizure list. He also signed on the seized currency notes as well as on the envelope wherein the seized currencies were kept.
P.W 12 is the Magistrate who conducted T.I parade. He deposed that P.W 3 had identified appellant nos. 1 and 2 as well as Amit Das in the course of T.I. parade. He proved T.I. parade report (Ext. 12).
P.W 13 is the investigating officer in the instant case. He examined the de facto complainant and other witnesses under section 161 Cr.P.C. Sourav Baidya identified the place of occurrence before him. He prepared rough sketch map of the place of occurrence with index (Ext. 14 and 14/1). He gave message for obtaining the call details record of the mobile phone. On 27.2.2010 at 17.35 p.m. he received information from P.W. 1 that if Rs.2 lakhs was given to the kidnappers they would release his son and they had asked him to come to Madhyamgram and subsequently at the 65 point of Belgharia Expressway. He made a general diary to that effect. He went to the 65 point accompanied by force and lay in ambush. A yellow coloured taxi bearing no. WB 19B-0251 came there but suspecting the presence of police they fled away. On 28.2.2010 at about 1.05 p.m. the de facto complainant informed that Debasree Das, wife of the victim had handed over the said sum of Rs.2 lakhs at Alambazar. Thereafter he recorded her statement. He conducted raid in Alambazar area. On 1.3.2010 he seized a taxi near B.T road crossing and Tobin Road from the driver Ash Md. He also traced out the taxi bearing no. WB 19B 0251 in front of Jem Cinema Hall near Entally Market. He arrested the driver of both the taxies. Relying on the statement of Md. Mokaddam he went to the flat at Baranagar and upon search, found Sanjay Paul in the said flat and in presence of neighbours Sanjay showed a pillow containing the said money. After tearing the pillow he found three bundles of money of one hundred numbers each in the denomination of five hundred rupee note each and four bundles of one hundred numbers each of Rs.100/- denomination each were recovered. He seized the said money along with two Nokia mobile phones and one SIM card under a seizure list (Ext. 17). Thereafter he arrested Sanjoy Paul. He also seized a taxi bearing no. WB 04D 3227 which was kept in front of the flat under seizure list (Ext. 18). Sealed envelope was opened in court.
There was three bundles of currency notes of denomination of Rs.500/- and from the said three bundles two currency notes were taken from each bundle as samples. He identified six currency notes of denomination of Rs.500/- which was taken as samples. He also identified eight currency notes of Rs.100/- each taken from the four bundles of Rs.100 currency notes seized from Sanjay Paul. They were identified as Mat. Ext.6 series and Mat. Ext.7 series. He recovered and seized currency notes from Manoj Bag and prepared seizure list. Two Indian currency notes of denomination of Rs. 100/- each were kept as samples from the notes seized from Manoj Bag. He also seized currency notes from Amit Das. Two currency notes out of the five currency notes seized from Amit Das were kept as samples. They were exhibited in the instant case. All the seized currency notes were signed by the accused persons and the witnesses. He arranged for T.I. Parade of the accused persons. He recorded statement of the victim under section 164 Cr.P.C. After collecting the T.I. Parade report he submitted charge sheet.
It has been argued that the identification of P.W 3 is doubtful as he did not disclose the physical features of the victim before the magistrate or during trial. It has also been argued that the TI parade was conducted belatedly and, therefore, is of little value.
I have given anxious consideration to the issues raised by the senior counsel appearing on behalf of the appellants. Evidence of P.W 3 shows that he has not merely identified the appellants in the instant case. P.W 3, in the course of deposition, spoke of the circumstances which enabled him to identify each of the appellants. He identified appellant no. 1 as the driver of the vehicle and also gave out his name as Sanjoy as the miscreants were referring to him as such. P.W 3 had boarded the vehicle in day light. Appellant no.1 was the driver of the vehicle was naturally seen by the appellant. This fact in my opinion give sufficient credence to the identification of appellant no.1 by P.W 3 as the driver of the vehicle named Sanjoy during T.I. Parade and in Court. Appellant no. 2 had also been identified as the person who had quarreled with Sanjoy in the room where P.W 3 was detained. It is true that P.W 3 was blind folded but from his evidence it appeared that he was permitted to have lunch and answer nature's call. Hence, it is evident that he was not blindfolded at all times during his detention. Even from the corners of his blindfold he could see the surroundings and had been disclosed the colour of the curtains in the window of the room. In these circumstances, the identification of appellant no.2 by P.W. 3 as Manoj who had quarrel with Sanjoy is clearly credible and does not appear to be a fignst of imagination of the said witness.
Coming to the issue of delay in holding TI parade, I find that the accused persons were arrested on 3.3.2010 and immediately thereafter prayer was made for holding TI parade. Such examination was conducted in presence of P.W 10 on 26.3.2010. P.W 10 deposed that all necessary formalities were adhered to at the time of holding T.I. Parade. He also deposed that P.W 3 had identified the accused persons during T.I. Parade in his presence. P.W 3 claimed that he came to know the news of arrest of the miscreants from T.V. channel. But he did not see the faces of the miscreants in the T.V. as their faces were covered with cloth. For the aforesaid reasons, I am of the opinion that necessary precautions were taken by the investigating agency as well as P.W. 10 while holding T.I. Parade in the instant case.
Coming to the issue of delay in holding TI parade, I am of the opinion that no hard and fast rule can be laid down as to the time frame within which T.I. Parade is to be conducted. Evidence of P.W 13 shows that immediately after the production of accused persons he made prayer was made for T.I. Parade and date of holding of T.I. Parade was fixed on 26.3.2010. Hence, there is no unnecessary delay in holding T.I. Parade in the facts of the case.
The authorities relied on by the appellants in this regard are factually distinguishable. In Hasib vs. State of Bihar, AIR 1972 S.C. 283, acquittal was recorded as the witnesses were unable to identify the accused in Court. In the present case, P.W.3 not only identified the accused persons in course of T.I. Parade but also in Court. Hence, the said authority is of no help to the appellants. In Provash Kumar Bose & Anr. Vs. The King, AIR (38) 1951 Calcutta 475, a Division Bench of the High Court held that T.I. Parade report is not substantive but corroborative evidence with regard identification in Court. In Sukdeep Singh @ Deepu vs. State of West Bengal, (2009) 2 C.Cr.L.R. (Cal) 95, a Bench of this Court held on facts that the identification of the accused persons were doubtful and acquitted them. In the present case, P.W.3 has succinctly stated the circumstances which enabled him to identify the appellants unlike the cited decision. Hence, the said authority is distinguishable on facts from the instant case.
In the factual matrix of the case, I find that there was no intentional delay or breach of requisite precautions to protect the identity of the suspects while holding T.I. Parade vitiating the entire exercise. Hence, identification of the appellants by P.W.3 in T.I. Parade and in Court is wholly trustworthy.
Evidence of P.W 3 with regard to kidnapping for the purpose of ransom is corroborated by the evidence of his family members, namely, P.W.s 1 and 2. Both the witnesses spoke of calls being made to them by the abductors demanding ransom money for the purpose of release of P.W 3. It is true that the call detail registers were not produced in the course of investigation. However remissness on the part of the investigating agency in that regard cannot be a ground to throw out otherwise credible versions of the victim and his family members with regard to a grave offence like kidnapping for ransom. Evidence of P.W 3 with regard to calls made to his family members by the abductors have been corroborated by the said family members, namely, P.W.s 1 and 2. Their evidence have remained unshaken in cross examination and the demand of ransom is reflected at the earliest opportunity in the FIR lodged by P.W 1 on the very next day. Sufficient explanation has been given by P.W.1 with regard to his lodging FIR at New Town P.S. on the next day. P.W. 1 had, upon receiving the call, rushed to the local police station, namely, Kasba P.S., but for reasons best known to them the police officers attached to the said police station told him to come to the jurisdictional police station, New Town PS to lodge complaint. Hence, he was constrained to lodge complaint at New Town P.S. on the next day.
In view of the aforesaid evidence on record, I am of the opinion that kidnapping of P.W 3 and the demand for ransom has been proved beyond reasonable doubt.
Coming to the seizure of ransom money from the possession of the appellants I find that the evidence of P.W.13 with regard to the seizure of money from the appellants has been corroborated by the independent witnesses, namely, P.W 8, 9 and 11. P.W.s 8 and 9 have witnessed the seizure of ransom money from appellant no. 1 while P.W 11 had witnessed the seizure of ransom money from the possession of appellant nos.2 and Amit Das. Samples of the currency notes which were seized were signed not only by the appellants but also by the seizing witness and have been exhibited in this case.
It has, however, been strenuously argued that the livelink between the ransom money paid by P.W.2 and the currency notes seized from the appellants has not been established beyond doubt. Seized Alamats which were produced in court in course of investigation containing the currency notes which had been signed by P.W 1 bearing to the relevant dates, that is 27.2.2010. P.W.1 identified his signatures on seven of such currency notes during trial which were marked as Ext.1 series. The other seized note was identified and proved by P.W.13. It would have been advisable for the public prosecutor to have identified Mat Ext.1 series by P.W.13 also. However, such lapse in the course of trial is a minor one and ought not affect the prosecution case. Mat Ext.1 series containing currency notes seized by P.W.1 were a part of the seized alamats which had been produced during investigation before the Court and had been kept in its custody. They were identified by P.W.1 clearly establishing the link between the ransom money paid by P.W.2 and the currency notes seized from the appellants by P.W.13. Seizure of the said currency notes from the appellants were proved beyond doubt by P.W.13 and the independent witnesses. The witnesses had signed on the sample currency notes exhibited in the instant case alongwith the appellants. The aforesaid facts including the failure of the appellants to justify licit possession of the monies seized from them soon after the incident establishes the prosecution case that the ransom money had been recovered from their possession.
In the light of the aforesaid discussion, I am of the opinion that the prosecution case has been proved beyond reasonable doubt and the conviction and sentence of the appellants are upheld.
Accordingly, the Appeal is dismissed.
The application being CRAN 843 of 2017 is disposed of.
The period of detention, if any, undergone by the appellants during investigation, enquiry and trial shall be set off against the substantive sentences imposed upon him in terms of section 428 Cr.P.C.
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.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.) rp/km/tkm/PA