Calcutta High Court (Appellete Side)
Bhukan Mondal vs The State Of West Bengal on 11 February, 2011
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
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11-02-11
6 (s.d) .
C.R.A 139 of 2008
Bhukan Mondal
-Vs-
The State of West Bengal
Mr. Debabrata Roy
Mr. Man Sankar Chattopadhaya
Mrs. Karabi Roy .........for the Appellant.
Mr. Swapan Kumar Mallick ........for the State.
This appeal is directed against the judgement and order dated 09-01-2008 passed by the Learned Additional
District & Sessions Judge, F. T. C - 1, Asansol in Sessions Trial No. 45 of 2006 convicting the appellant under
sections 328 and 379 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for seven years
and fine of Rs.2000/- for the offence under Section 328 of the Indian Penal Code and to suffer rigorous imprisonment
for two years for the offence under Section 379 of the Indian Penal Code.
The prosecution case in short before the Learned Trial Court is that on 28-11-2005, Bijoy Bahadur Yadav, ASI
of R. P. F alongwith constable, S.k. Roy, Constable Gupteshwar Prasad Gond, Constable A. N. Yadva, Constable B. R.
Mishra were on Train Escort Duty in the 3111 Upn Sealdah Delhi Lal Quila Exp. at Asansol platform at about 23.50
hrs. They found one person running away and another person was chasing him. The person chasing him was shouting
that his mobile phone and cash of Rs.,600/- was stolen by that person. Bijoy Bahadur Yadav and his companions
detained both of them. Since the train was about to leave Asansol station platform no - 4, they boarded 0n the general
compartment alongwith those two persons. On questioning, one of them disclosed his name as Rajesh Kumar while
another person disclosed his name as Bhukan Mondal. Rajesh Kumar informed Bijoy Bahadur Yadav that while he was
waiting at Jamtara ticket counter, he became acquainted with Bhukan Mondal and another person. They together came
to Asansol station by local train and while waiting in the platform no. - 4, Bhukan Mondal and Bija Mondal offered him
a cup of tea. After taking the tea, they boarded on Lal Quila Exp. Rajesh started feeling drowsy soon thereafter.
Bhukan and Bija, taking opportunity of his physical condition, took away his mobile phone and cash of Rs.600/- and a
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suitcase containing tools and official papers from the possession of Rajesh Kumar. They fled away and Rajesh chased
them and raised hue and cry. Bhukan was thoroughly searched and one mobile phone, one file of Vallium 10 tablets of
which two were used and eight were found intact, one half blade were recovered from his possession.
Bhukan admitted that he administered two Vallium 10 tablets on Rajesh by way of mixing the same with tea,
which he offered him at Asansol station. The escorting party led by Bijoy Bahadur Yadav boarded off the train at
Jhajha station and returned back to Asansol by 3020 Dn. Bagh Exp. One F. I. R. was lodged by Bijoy Bahadur Yadav
with the G.R.P.S Asansol. Accordingly, Asansol G.R.P.S Case No. 44 of 2005 dated 29-11-2005 was started against
Bhukan Mondal under Sections 328/379/411 I.P.C. The case was investigated into and ended in charge-sheet. The
case was committed to the Court of the Learned Sessions Judge and the appellant/accused was ultimately tried by
Learned Additional District Judge, F. T. C - 1, Asansol, who on consideration of the evidence on record, found the
appellant guilty of offence under Sections 328 and 379 of the Indian Penal Code and recorded his conviction and
sentenced which has been impugned in this appeal.
The point to be considered in this appeal is whether the judgement impugned is sustainable in law.
Mr. Debabrata Roy, learned counsel appearing for the appellant, advances manifold contention. His first
contention is that there is inordinate delay in lodging the F. I. R, which has not explained by the prosecution. He takes
me to the evidence of P. W. 2 Rajesh Mishra, Constable/R.P.F, who was also on duty under the leadership of Bijoy
Bahadur Yadav. According to his statement, the escort party reached Asansol on the next day at about 6.30 a.m. The F.
I. R, which has been marked Ext. - 1 indicates clearly that it was lodged at 14-05 hrs. on 29-11-2005. Mr. Roy submits
that there is inordinate delay and this delay has not been explained by the prosecution, which, of course, clouded the
prosecution case with doubt.
In support of his contention, Mr. Roy refers to the decision of the Hon'ble Apex Court in State of Andhra
Pradesh - Vs- M. Madhusudan Rao reported in (2008) 15 S.C.C 582. In that case, the Hon'ble Apex Court, in fact,
discussed the consequence and implication of delay in lodging the F. I. R. It is opined by the Hon'ble Court that
delayed report not only gets bereft of the advantage of spontaneity, the danger of introduction of a coloured version,
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exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in
casting a serious doubt on its veracity of the prosecution case.
Mr. Roy also refers to another decision of the Hon'ble Apex Court in Gowrishankara Swamigalu -Vs- State of
Karnataka reported in (2008) 14 S. C. C 411. The Hon'ble Court opined in that case that although delay by itself may
not be a ground to disbelieve the prosecution case, but where the prosecution case itself is doubtful, the Court may take
a serious notice of delay in lodging the F. I. R.
Mr. Roy submits further that no independent person was made witness to the seizure. Mr. Roy submits that
there was a compartment full of passengers in the train, but, no effort was made by the escorting party mainly Bijoy
Bahadur Yadav to make any of them witness to the seizure, which is utter violation of the principle of laid down under
Section 100(4) of the Code of Criminal Procedure. This apart, he also submits that there was two seizure lists of same
articles which neither acceptable nor permitted by law. He also draws attention of this Court to both the seizure lists
and submits that there are discrepancies in respect of the articles seized. There is a subsequent development when the
second seizure list was prepared by the Officer-in-Charge, G.R.P.S, Asansol. In place of one half blade, in the first
seizure list, two half blades have been mentioned in the second seizure list. The mobile phone no. which was mentioned
in the first seizure list and deleted, has been mentioned in the second seizure list.
This discrepancy casts serious doubt on the prosecution case.
Mr. Roy submits further that in a case under Section 328 of the Indian Penal Code, prosecution is to prove that
stupefying drug has actually been administered on the victim with an intention to commit or to facilitate the commission
of an offence. Mr. Roy submits that this is sine qua non for recording conviction of an accused under Section 328 of the
Indian Penal Code. In the instant case, Mr. Roy submits that this ingredient has not at all been established by in any
manner whatsoever. The person that is Rajesh Kumar was not placed before any doctor or for medical/chemical
examination for ascertaining the fact whether actually any stupefying drug was administered on him or not.
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Mr. Roy also submits that the conduct of the victim, Rajesh Kumar appears to be unreal and unnatural. Had
he been drugged by stupefying drug and felt drowsy, how could he chase a man on railway platform ? He reached
together with the escorting party to Asansol railway station at 6.30 a.m. F. I.R was lodged at 14.05 hrs. He was taken to
hospital at 10 a. m according to the evidence of P. W. 1. That being so, it is not understood, rather it is not been stated
anywhere what was the physical condition of Rajesh. It is not also understood, Mr. Roy submits, when Rajesh was
taken to hospital at 10 a.m. and the doctor examined him didn't find anything but little drowsiness. Rajesh himself
could lodge the F.I.R with the G.R.P.S. That has not been done. This fact alone is sufficient to come to a conclusion
that the charge under Section 328 I.P.C against the appellant has not been established at all.
The Learned Trial Court did not consider the prosecution case from that angle and erred in coming to a wrong
conclusion without taking into consideration that administering of stupefying drug is a sine qua non in order to record
conviction under Section 328 I. P. C.
Mr. Roy further submits that seized articles were never been produced in court. Taking the fact that the seized
articles were not produced in court at any point of time during the trial together with the fact that no independent person
was made witness to the seizure, the prosecution case ought to have been disbelieved by the Learned Trial Court.
Mr. Roy submits that chemical examination of the strip of Vallium 10 which is allegedly found in the
possession of the appellant does not necessarily establish that two pieces of tablets out of 10, were actually applied on
the victim Rajesh by the appellant.
Mr. Roy also takes me to the medical report which has been marked as Ext. - 4 and the F. I. R which has been
marked Ext. - 3. In the Ext. - 3 i.e. written complaint, the place of occurrence has been shown as Lal Quilla Exp. But
in the Ext. - 4, the place of occurrence noted by the doctor according to the statement of Rajesh Kumar as Baidyanath
Dham - Asansol local. This apart, time of occurrence mentioned in the Ext. - 3 and Ext. - 4 are not matching with
each other. The time of seizure mentioned in the Ext. - 2 and Ext. - 7 are also found not tallying with each other.
Mr. Roy submits that for the reasons aforesaid, the judgement impugned is liable to be set aside.
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Mr. Mallick, learned counsel appearing for the respondent/State of West Bengal clearly concedes to the
submission of Mr. Roy and submits that in all probabilities, it cannot be said that the prosecution has actually established the commission of offence by the appellant under Section 328 of the Indian Penal Code. He submits that it was the bounden duty on the part of the prosecution to establish that a stupefying drug has actually been administered on the victim for the purpose of committing an offence of theft. Therefore, the view of the Learned Trial Court, so far as the offence under Section 328 I.P.C is concerned, is not tenable and is liable to be set aside.
Mr. Mallick, however, submits that since the articles belonging to the victim Rajesh Kumar were seized from the possession of the appellant and seizure was witnessed by the all the members of the escorting party, the view of the Learned Trial Court that charge under Section 379 of the Indian Penal Code has been established against the appellant cannot be questioned.
The Learned Trial Court has gone through the evidence, oral and documentary, and came to a definite finding on that issue which is not required to be interfered with.
However, Mr. Mallick submits that the appellant has undergone imprisonment for about five years. Therefore, even in case he is found guilty under Section 379 I. P. C, he has undergone the sentence already. So, he be released.
I have considered the contention of Mr. Roy as well as Mr. Mallick. I have gone through the entire case record including the oral evidence recorded by the Learned Trial Court and the exhibits admitted into evidence.
As far as of non-production of seized alamats are concerned, I must say that merely because of that ground, prosecution case is not be disbelieved. There is no abstract or absolute rule that "no seized alamat no conviction" can be possibly be raised to the pedestal to the rule of law because this by itself is likely be occasioned a failure of justice.
The substantial issue in a criminal case like proof and punishment of crime should not be converted into a plaything of technicalities. But, when there are glaring discrepancies on material point which are sufficient enough to 6 create doubt on the prosecution case, the Court should put importance on that aspect. It cannot be gainsaid that in order to record conviction under Section 328 I.P.C, the prosecution is duty bound to establish the main ingredient of the offence that the person victimized was actually given stupefying drug. In other words, the prosecution is bound to establish that stupefying drug has been actually administered on him in order to commit any offence. On scrutiny of the evidence on record, it is clear that the victim was neither placed for any chemical/medical examination to ascertain as to whether any stupefying was administered on him, nor the doctor who examined him stated anywhere within four corners of Ext. - 4 that on examination, he came to know that stupefying drug was applied to the victim. That being the fact, it cannot be said that offence under Section 328 I. P.C has been established.
Even, if we forget that part of the prosecution case, the conduct of the victim appears to be peculiar and unnatural. Had he been felt drowsy, he would not have the physical capability to chase the appellant and his companion on the railway platform immediately after the alleged theft. His physical condition immediately thereafter till he was examined by the doctor on the next day at 10 a. m remained undisclosed.
Nowhere, it has been stated how he was feeling, where he had been and what food he had taken during this long period of time. In fact, his mental and physical condition during that period has never been mentioned either by the witnesses or in any documents. This factual aspect mentioned above, obviously goes in favour of the appellant. The Learned Trial Court ought to have considered these factors before recording conviction under Section 328 I.P.C against the appellant. The Learned Trial Court was oblivious of the fact that the main ingredient of the offence under Section 328 I.P.C was absent in the prosecution case. Simply because two tablets out of ten tablets of Vallium 10 were not found in the strip, the Court should not jump into a conclusion that those two tablets were actually used by the appellant in order to commit the offence of theft.
The reason given by the Learned Trial Court cannot at all be accepted. The Learned Trial Judge made out a third case on the basis of his experience, which he has noted down in the judgment impugned. He observed, "happening of incident in general compartments/platforms by way of stealing valuable belongings of the passengers by the miscreants after supplying tea, drink etc. are the common incident of the day. So, the happening of present incident cannot be said to be impossible in present days".
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This perception of the Learned Trial Court has no value at all. I have stated earlier that the substantial issue in a criminal case is to prove a case beyond all reasonable doubt. Even perception should be a reasonable one. Here, in this case, simply because two tablets out of ten tablets were not found with the possession of the appellant, it cannot be said with force that those two tablets were used by him in order to commit theft. The prosecution could have established that fact by getting the victim examined chemically/medically in order to establish that stupefying drug was actually applied to him. That has not been done. The report of Forensic Laboratories in respect of eight remaining Vallium 10 tablets will not come in the aid to the prosecution in this respect.
In view of the discussion above, I find that the Learned Trial Court ought to have recorded that the prosecution failed to establish the case under Section 328 of I. P. C against the appellant. That part of the judgement impugned is liable to be set aside.
As regards of the offence under Section 379 I. P. C, I find that the articles such as mobile phone, Rs.600/- in cash and two pieces of blade are found in the possession of the appellant of which he could not give any explanation. Those articles were seized in presence of the witnesses who are signatories to the seizure list. Simply because they are police personnels, they cannot be categorized as interested witnesses. It is not correct to say that no independent witness was called on to witness the seizure. The P. W. 6, a tea stall owner, was a seizure witness. He might have not supported the prosecution case but that does not necessarily make the statement of other witnesses disbelievable.
The discrepancy in the seizure list does not appear to be vital also. In fact, the articles were recovered from the possession of the appellant in a running train. A list was prepared by Bijoy Bahadur Yadav then and there in presence of his escorting party. When he lodged the F. I. R, he handed over the list and the articles to the Officer-in-Charge of the G. R. P. S, Asansol, who in turn, prepared another seizure list. This fact does not make the seizure illegal or irregular. The discrepancy in respect of contents i.d. are not vital and significant enough to disbelieve the seizure of articles mentioned therein from the possession of the appellant.
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It is not the case of the appellant that those articles belong to him. On the other hand, it is the claim of Rajesh Kumar, victim, P. W. 14 that those articles were taken by the appellant from his possession, while he was feeling drowsy.
That being the fact, I do not like to interfere with the findings of the Learned Trial Court as far as his order regarding conviction of the appellant under Section 379 I.P.C is concerned.
That part of the order is affirmed.
In the fitness of the facts and circumstances above, when the appellant has already undergone imprisonment for five years and the charge under Section 328 I.P.C against him is not established, I find it difficult to keep him in custody any more only for offence committed by him under Section 379 I.P.C. Two years of imprisonment awarded by the Learned Trial Court has already undergone by him. Therefore, he be released at once.
The appeal is allowed in part and accordingly is disposed of.
Criminal Section is directed to supply the urgent photo certified copy of this Judgement, if applied for, with usual undertaking.
( Kanchan Chakraborty, J.)