Calcutta High Court (Appellete Side)
Bablu Sardar And Ors vs The State Of West Bengal on 28 February, 2014
Author: Nishita Mhatre
Bench: Nishita Mhatre
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Subrata Talukdar
CRA NO. 701 of 2008
Bablu Sardar and Ors.
Vs.
The State of West Bengal
For the Appellants : Mukundalal Sarkar and
Sandip Ghosh Choudhury
For the State : Saibal Bapuli and
Sammik Ganguli
Heard on : 13.02.2014
Judgment on : 28.02.2014
Subrata Talukdar, J.: This is an appeal against the judgment and order of
conviction dated 7th August, 2008 and 12th August passed by the Learned
Additional Sessions Judge, 2nd Fast Track Court, Lalbagh, Murshidabad in
Sessions Trial No.5/Jan/08 arising out of Sessions SL No. 87/07 convicting
the appellants under Section 394 of the Indian Penal Code and 27 (1) of the
Arms Act.
Sri Mukundalal Sarkar with Sri Sandip Ghosh Choudhury appear for the
appellants. Sri Saibal Bapuli with Sri Sammik Ganguli appear for the State
respondent.
Sri Sarkar at the commencement of his submission has taken us through the written complaint treated as GR Case No. 952 of 07 pertaining to Nabagram P.S. Case No. 100/2007 under Sections 394/411 of the Indian Penal Code and Sections 25/27 of the Arms Act. The said complaint which was received on the date of occurrence, that is 30th August 2007 at 14:25 hrs was treated as the First Information Report and upon investigation culminated in the 3 accused persons being charged under Section 394 of the Indian Penal Code and Sections 25/1 (1-A)/27 of the Arms Act read with Section 34 of the Indian Penal Code.
The facts of the case, according to the written complaint were as follows:-
The complainant, Sri Prasanta Kumar Ghosh of Jiaganj, Thakurgram, P.S. - Jiaganj, District - Murshidabad was a staff of a 'Chanachur Co.' by the name of K.K. Food Products at Azimganj. The work of the complainant related to supply and collection of money on behalf of his company at Kakakapi area.
On 30th August 2007 the complainant went to Lohapur market at Birbhum for collecting money. He claims to have collected Rs. 31,000 which he put inside a black folio bag. The black folio bag was then kept inside a white cotton bag on which the words SUNRISE PURE were written in English.
Thereafter the complainant put the two bags with money inside the 'Dicky' of his Hero Honda Splendour motor cycle and proceeded along NH-34. At 1:10p.m when the complainant reached Kanefala bus stand the 3 accused came from behind in a motor cycle and blocked the path of the complainant by stepping in front of him. One of the accused, whom the complainant described as a middle aged dark complexioned man pulled out a knife and pushed the complainant to the ground.
The second accused, whom the complainant described as a tall and slim boy aimed a pistol to his head and the third accused, whom the complainant described as a boy of dark complexion with beard hit the complainant on the head with the butt of a pistol which was in his hand.
The complainant sustained injuries as a result of such assault and when he stood up he found that the boy of tender age took away the keys of his motor cycle, opened the 'Dicky' and took out the bags full of money. Thereafter the three accused drove away toward Palsanda on their motor cycle. The complainant managed to note the make and number of their motor cycle which was of TVS make bearing the no. WB F/6227.
The complainant started chasing their motor cycle and on hearing his shouts some local people from Palsanda chased them. On being chased the accused entered into a house in a village by the side of the road. The said house was surrounded by a mob and the accused persons were compelled to come out of the house in which they had taken shelter whereupon the mob started assaulting them.
The complainant has further alleged that the person with dark complexion and beard stated his name to be Bablu Sardar of village Naoda Bhimeswar and the boy of tender age disclosed his name to be Surya Roy of Khosbag, Chaitanyapur. The third accused, being the tall and slim boy disclosed his identitiy as Rehman Sheikh of Ilahiganj. The complainant recognized the bag containing his money to be in the possession of the said accused Surya Roy.
On opening the bag in front of all the persons assembled outside the house an amount of Rs.11, 700 was found. The accused persons also put down the pistols which they carried on their waists. In the meantime the police also arrived and the three accused with the articles and weapons were handed over for investigation to the police.
The case was investigated by S.I. Subrata Bhattacharjee of Nabagram P.S. and during the investigation a rough sketch map was prepared. The charge was framed on 15th December 2007 by the Learned Additional Judge, Second Fast Track Court, Lalbagh, Murshidabad and the case was committed to trial. The judgment was delivered on 7th August, 2008 by the Learned Sessions Court holding the three accused persons Surya Roy, Rehman Sheikh alias Jabbar and Bablu Sardar guilty of offences under Section 394 of the Indian Penal Code and second 27(1) of the Arms Act. Upon their conviction three accused persons were sentenced to suffer rigorous imprisonment for a period of 10 years and fine of Rs. 5,000, in lieu thereof to suffer imprisonment for 6 months for the offence under Section 27(1) of the Arms Act and fine of Rs. 2,000, in lieu thereof to suffer imprisonment for 3 months - both sentences to run concurrently.
The Learned Trial Court was pleased to examine several witnesses on behalf of the prosecution. No witness came forward to depose for the defence. During the course of tendering evidence PWs 4, 5 and 14 were declared hostile.
The complainant was examined as PW 1. In his evidence-in-chief the complainant reiterated the contents of his written complaint recorded by the police. The sequence of events tendered by the complainant in his written complaint and his evidence-in-chief could not be shaken by the defence in cross examination.
According to the evidence of PW1 he suffered bleeding injury as a result of the assault on him by the butt of the pistol. However, even in that condition he managed to shout 'Dacoits, dacoits' and chase the accused persons along with local people. The accused persons entered into one house at a village which the complainant came to know was called Volladanga. The complainants were compelled to give themselves up before the mob which surrounded the house in which they had taken shelter and upon arrival of the police two pistols were recovered along with an amount of Rs.11, 700. Significantly the complainant has adduced evidence that the two bags in which he was carrying the cash amount were recovered from the accused persons. He also identified the motor cycle belonging to the accused persons from the number plate.
However, the complainant has stated in the cross examination that although he has seen the persons in the dock he cannot identify any of those persons involved in the incident. The complainant has specifically denied the suggestions given to him in the cross examination that he had made false allegations against the accused persons.
PW2, one Nazimuddin Sheikh having his home at Palsanda More has stated in his evidence that the accused were three in number and that he knew the complainant, He stated that about 1:20p.m. to 1:30p.m. on 30th August 2007 the complainant met him at Palsanda and at the relevant time he was suffering from bleeding injuries as a result of the assault on his head.
PW2 has further stated that on receiving the details of the incident from the complainant he, along with others proceeded towards Volladanga village on hearing from local people that the miscreants might have entered that village. PW2 also informed the local P.S. regarding the incident.
PW2 has reiterated the allegations of the complainant that the three accused persons were found to take shelter at a house in Volladanga village which was the house of one Raichand Master. On surrender of the three accused to the mob they disclosed their names as Surya, Bablu and Rehman. Two pistols and a cash amount of Rs.11,700 kept in a bag were recovered from the accused. PW2 signed on the seizure list. He also identified the 3 accused persons in the dock. However, he could not identify another accused by the name of Tunu Sheikh.
To a specific question in his cross examination PW2 has stated as follows: "Not a fact that I had identified the accused persons on dock by guess only". PW2 also could not be shaken from his evidence during cross examination about the details of the incident in respect of which he deposed in Court. PW2 was also a signatory to the seizure list prepared at Volladanga village by the police.
PW3 is one Dilip Bhakath also of Palsandi More. He has deposed that at about 1:30p.m. on 30th August 2007 he was proceeding with other persons towards Volladanga village. He saw the villagers taking out 3 miscreants from one house and the said miscreants disclosed their names as Bablu, Rehman and Surya Roy. He has reiterated the seizure of cash, one loaded pistol, one empty pistol, one driving license, one motor cycle by the police from the spot. He was also a signatory to the seizure list.
However, PW3 could not identify the accused persons in the dock as, according to him, the said incident took place long ago. PW2 in his cross examination has stated that he has read only up to class VI. He has denied that the evidence adduced by him was false and that he had adduced falsely in respect of the facts which were within his knowledge.
PW6 is one Samir Bhakath of Palsanda. He has deposed that at around 1p.m. to 1:15p.m. on 30th August 2007 he was standing at Palsanda More when the complainant came to him and complained of the incident of assault and snatching of the money. Upon hearing the complainant he along with 4 to 5 other persons and the complainant rushed towards Volladanga village. At the village they were told by local persons that a few miscreants had entered into the village whereupon PW6 along with others entered into the village shouting "dacoits, dacoits". The villagers then saw the three persons in the house of one Raichand Master by finding their motor cycle lying outside the road. Then PW6 along with others surrounded the house whereupon the miscreants came out and handed over the money to the mob pleading that they should not be assaulted. On arrival of the police and search of the miscreants Rs.11, 700 was found along with bags and two pistols.
PW3 in his deposition identified the black bag of the complainant in which the money was kept. He also identified the second bag in which black bag was kept as narrated by the complainant. PW3 identified all the three accused persons out of 12 accused persons who were kept at random in the dock. He also identified the two pistols seized by the police.
In his cross examination PW3 also gave details of the clothes being worn by the accused persons. He could not be shaken from the details of the incident of chase, surrender, search and seizure of the accused persons from the house of Raichand Master at Volladanga village.
PW7, one Bhagirath Besara of Volladanga has stated that the incident took place on 30th August 2007 at about 1:20p.m. He has further stated that he was at Volladanga village at his neighbor's house and on hearing the shout of "dacoits, dacoits" he rushed to the house of one Raichand Master and saw around hundred people surrounding the house. He has further stated that the three accused persons came out of the house whereupon the mob assaulted them. On arrival of the police the three accused persons handed over Rs.11, 700, two pistols and one black bag to the police and pleaded that they should not be assaulted. PW7 has specifically stated that the black bag was inside the white bag. He however could not identify the accused on the plea that the incident happened a long time back. He has denied any suggestion that he was deposing falsely.
PW8, Laxman Hembram of Volladanga has given only hearsay evidence. He says that he did not see anything.
PW 9, one Basudeb Saha of Palsanda has stated that on 30th August 2007 at about 1p.m to 1:30p.m when he was at his house at Palsanda some persons informed him that three robbers were caught by the police from Volladanga village.He has further stated that on 5th September 2007 the police took one accused Surya Roy to a site at Volladanga village. He also went there and the time was about 10a.m to 10:30a.m. He states that police recovered one knife as shown by Surya Roy from the said site in his presence. He also signed in the seizure list and identifies the knife seized by the police.
In his cross examination he has reiterated his deposition that the knife was recovered from beside the road near Nayanjuli when the police took them there. He has denied any suggestion that he did not go with the police to Volladanga village or that Surya Roy, one of the accused was not with them during the visit or that the police did not recover any knife as shown by Surya Roy. He however could not identify Surya Roy in Court.
PW11, one Tothin Mondal of Nabagram P.S. was the home guard posted at Nabagram P.S. He has stated that as per direction of the Duty Officer of Nabagram P.S. he proceeded to Volladanga village near Palsandi More. There he saw the villagers surrounding the three miscreants and the police were also present. He also says that the complainant, Prashanta Ghosh submitted a written complaint to the police officer and he took the complaint to Nabagram P.S. for submitting to his officer. He identifies the FIR as Exhibit 3. PW11 further identified the three accused persons in Court whom he saw at village Volladanga. He has denied any suggestion that he did not see 3 miscreants at Volladanga village.
PW12, one Anil Kumar Chruriya of Azimganj has only given hearsay evidence.
PW13, one Nirmal Sarkar of Raiganj has deposed that on 30th August 2007 and 3rd September 2007 he was D.S.P. (AP) Murshidabad-cum-Arms expert. On 3rd September 2007 with reference to Nabagram P.S. case no. 100 of 2007 dated 30th August 2007 he has deposed as the ballistic expert.
PW14, one Dr. P.C.Bagchi has deposed that he was the Medical Officer posted at Nabagram Block Public Health Centre on 30th August 2007. He examined Prashanta Ghosh, PW1 and stated that he saw one lacerated injury on his scalp. The injury was caused by a blunt weapon and was simple in nature. PW14 has further deposed in cross examination that such type of injury cannot be caused by fall over a hard substance.
PW15, one Arun Biswas has deposed as an employee of the office of the District Magistrate, Berhampore. He has deposed in the affirmative in respect of the sanction letter issued from the office of the District Magistrate. PW16, one Goutam Bharary in his deposition has stated that he was the S.I. of Police posted as Duty Officer on 30th August 2007 at Nabagram P.S. He has deposed that about 1p.m. he received telephonic information of the incident from one Abdul Wahab of Palsanda More. It appears from the record that such telephonic information is confirmed from the deposition of PW2, Abdul Wahab of Palsanda More.
On receipt of information General Diary Entry no.1496 dated 30th August 2007 (marked Exhibit 10) was recorded and S.I. of Police, one Subrata Bhattacharjee was dispatched to the spot. PW16 has stated in his deposition that S.I. Subrata Bhattacharjee was entrusted with investigation of the case. PW17 Jyotirmoy Bagchi deposed that on 30th August 2007 he was O.C. Nabagram P.S. He has deposed that he endorsed Nabagram P.S. case no.100 of 2007 dated 30th August 2007 to S.I. Subrata Bhattacharjee for investigation. PW18, one Sri Subrata Bhattacharjee has deposed as the investigating officer. In his deposition he has confirmed the sequence of events narrated in the complaint. He has further deposed that he took the three accused persons into custody. He has further deposed that one of the accused persons, Bablu Sardar handed him arms and ammunitions which were seized under a seizure list. He has further deposed that accused Surya Roy handed him a white bag containing one black bag in which six bundles of currency notes totalling Rs.11, 700 was found. He was also handed over a driving license. He also seized one motor cycle bearing the number WB 58F 6227 belonging to the accused persons and prepared a seizure list which was signed by accused Surya Roy. He also seized another motor cycle bearing the number WB 58G 4562 of Hero Honda make belonging to the complainant Prashanta Ghosh. After visiting the place of occurrence he prepared a rough sketch map with index. He prepared three rough sketch maps of three different places of occurrence namely, Volladanga village (marked Exhibit 15), Kanfala bus stand (mark Exhibit 15/1). He also prepared a rough sketch map of the place of occurrence subsequently. He examined witnesses of Volladanga village and recorded their statements under Section 161 CRPC.
PW18, the said Subrata Bhattacharjee also deposed that during police remand the accused Surya Roy disclosed on 5th September 2007 that he left one knife and some amount of money at a hidden place. Accordingly he took accused Surya Roy to the place at Volladanga village and recovered one knife from the roadside jungle. He prepared a seizure list dated 5th September 2007 which was signed by accused Surya Roy and three witnesses. During his deposition the said PW18 identified the cash, the arms and ammunition and the bags containing money as seized from the accused persons and submitted a chargesheet under Sections 394/411 of the Indian Penal Code and Sections 25/27 of the Arms Act. PW18 specifically denied all suggestions that the accused were falsely implicated in the said case.
The defence of the accused persons in their examination before the Learned Magistrate is of denial. To a specific question whether they will adduce any evidence for the defence, accused Surya Roy and other accused replied in the negative. The stand of the accused before the Learned Magistrate is of false implication in the present case.
The Learned Counsel for the appellants has submitted that the entire incident consists of two parts. The first part pertains to the alleged robbery to which only PW1, Prashanta Ghosh is a witness. The second part is the search, seizure and detention of the accused persons at Volladanga village. The Learned Counsel has emphatically submitted that Prashanta Ghosh has not identified the accused persons in any T.I.Parade. He has further submitted that although a total sum of Rs. 31,000 was claimed to have been robbed from the complainant, only Rs.11, 700 was allegedly recovered from the accused persons after their surrender at Volladanga village.
The Learned Counsel therefore submits that in view of the above mentioned discrepancies noticed during trial namely, (a) that PW1has not identified the accused persons inspite of the fact that he is the only and direct victim of the alleged robbery and assault; and (b) that the same sum of money allegedly recovered from the accused was not the same of money claimed to be originally carried by the complainant at the time of being robbed - on both these counts which are extremely relevant the accused are entitled to get benefit of doubt and hence acquitted.
On behalf of the State respondents it has been argued that the reason why PW1, the complainant could not identify the accused persons has been given clearly in his deposition. PW1 has stated that after the robbery and the assault he was suffering from a sense of "hopelessness" for which he failed to identify the accused persons in court.
Learned State Counsel has argued that it is not uncommon that after such a serious incident of robbery and assault on the head, the complainant could not be said to be immediately in control of his senses so as to identify the accused persons in Court. He has drawn the attention of this Court to the positive identification of the accused persons in Court by PW2 and PW6. The Learned State Counsel has also submitted that it is not uncommon that all the booty which was robbed at pistol point may not be recovered after the arrest of the accused persons. However, the role of the accused persons in the said incident cannot be denied since part of the booty amount totalling Rs.11, 700 was recovered from the accused persons at Volladanga village from the black and white bags carried by the complainant.
We have considered the materials on record and the submission of the parties. We find that the PWs have given a consistent version of the incident dated 30th August 2007. The deposition of the PWs confirms the evidence of PW1, the victim, as well as the contents of the written complaint filed by him before the police.
Although PW1 in his deposition has stated that he cannot clearly identify any of the persons involved in the incident, from the evidence of PW2 who was present on the spot at the place of occurrence it clearly transpires that he identified two accused persons on the dock. With respect to the identity of third accused he said he is not in a position to identify him who is named Tunu Sheikh. PW2 has confirmed that he telephoned the local P.S. about the incident and such telephonic information is confirmed from the evidence of PW16. PW2 being present at the spot outside the house of Raichand Master in Volladanga village has deposed that the three accused disclosed their names as Surya, Bablu and Rehman. He has confirmed in his deposition the recovery of arms and cash from a bag.
PW2 could not be shaken in his cross examination that he identified the accused persons out of five persons in the dock. He has clearly stated as follows: "Not a fact that I identified the accused persons on dock by guess only." PW6, who were also present at Volladanga village at the time of the incident has given a graphic narrative of the sequence of events on 30th August 2007 particularly of the surrender of the accused persons at Volladanga village when they were surrounded by a mob shouting "dacoits, dacoits". PW6 positively identified the three accused persons from twelve persons on dock who were mixed at random. He has also deposed with precision on the nature of the wearing apparels of the accused persons at the time of the incident. He has identified the bags in which the cash was carried and which was subsequently seized by the police. He has stated that an amount of Rs.11, 700 along with two bags and two pistols were seized by the police.
Several of the accused persons who were present at the spot at Volladanga village where the accused were compelled to give themselves up along with their arms, ammunition and the stolen cash have consistently deposed that an amount of Rs.11, 700 was seized by the police. They have also consistently deposed with respect to the names of the three accused persons - Surya, Bablu and Rehman - as disclosed by them at the time of their surrender. The said PWs have given a consistent version of the chain of events leading to the surrender, search and seizure of the accused from the house of Raichand Master at Volladanga village.
The version of events given by the aforementioned PWs is corroborated by PW18, who is the Investigating Officer. PW18 has further confirmed the recovery of a knife on 15th September 2007 at the instance of one of the accused, Surya Roy thereby corroborating the evidence of PW9. PW14, the Medical Officer has also confirmed the nature of the injury suffered by the complainant and deposed that such injury could be caused if a person is hit by the butt of a pistol.
Furthermore, from the written complaint it is found that the complainant had said that after the assault when accused fled away on their motor cycle he "somehow managed" to note down the number of their motor cycle which was "WB F/6227". From the deposition of PW18 it transpires that the motor cycle seized from the accused was numbered as WB 58F 6227 which belonged to the accused, Jabbar Sheikh. It is apparent therefore that he complainant, in spite of being hit on the head by the butt of a pistol and suffering bleeding injuries and therefore in some trauma, could correctly record the number of the motor cycle as 6227 and three other letters i.e., WB F, which matches with the seizure made by PW18. It is possible that as the accused were fleeing away after the incident and the complainant was suffering some trauma a part of the number plate of the motor cycle could not be legible from a distance. However, this Court finds enough reason to believe that the complainant could positively identify the motor cycle used by the accused at the time of commission of the offence.
This Court is also impressed by the consistent version of the PW regarding the following chain of events:-
a) The chase of the accused persons by the local people alerted by the complainant;
b) The discovery of the motor cycle of the accused persons in a road at Volladanga village and the subsequent encirclement of the house of Raichand Master by the mob;
c) The surrender of the accused persons to the mob and disclosure of their identities;
d) The consistent version of recovery of two arms, ammunition cash of Rs.11, 700 and the two bags - black and white from the accused persons before the mob and the seizure by the police.
e) The disclosure of their identities by the accused persons before the mob and in front of the police.
This Court notices the fact that the witnesses to the second stage of the incident - that is the post robbery and assault stage - as argued by the Learned Counsel for the appellants, have deposed consistently with regard to the above chain of events and, have not been shaken in their deposition in the cross examination. In fact, the lacunae, if any, as argued by the Learned Counsel for the appellant regarding the first stage of the incident revolving around the robbery and the assault on the complainant and stemming from the inability on the part of the complainant to identify the accused persons, has been filled up without doubt by the consistent deposition of the eye witnesses at the place of surrender, recovery and seizure. Furthermore, from the rough sketch maps of the place of occurrence prepared by the Investigating Officer marked Exhibits 15, 15/1 and 15/2 the veracity of the complaint and the evidence of the PWs indicating that the incident covered a contiguous stretch of area located on one arm of NH-34 is corroborated.
As observed earlier in this judgment each of the PWs present at the spot have given a version and there is no suggestion on behalf of the defence at the cross examination that the said three accused persons were not the persons who were compelled to surrender before the mob at Volladanga village or were not the persons from whom the arms, ammunitions and the cash in the bags carried by the complainant were seized.
In fact the discrepancy in the amount of cash seized from the accused persons vis-à-vis the amount alleged to have been robbed by the complainant is cured by the evidence on record that the currency seized belonged to the complainant because the amount of Rs.11,700 was seized from the black and white bags in which the cash was carried originally being by the complainant prior to the robbery and his assault.
Therefore, from the chain of facts and circumstances emanating from the aforesaid discussion we see no reason to upset the said judgment and order of conviction dated 7th August 2008 and 12th August 2008 passed by the Learned Additional Sessions Judge, Second Fast Track Court, Lalbagh, Murshidabad in Sessions Trial No. 5/Jan/08 convicting the appellants under Section 394 of the Indian Penal Code and Sections 27(1) of the Arms Act.
The Criminal Appeal no.701 of 2008 is accordingly dismissed. There will be however no order as to costs.
Urgent Xerox certified copy, if applied for shall be given to the parties as quickly as possible.
(Subrata Talukdar, J.) (Nishita Mhatre, J.)