Calcutta High Court (Appellete Side)
Md. Abdul @ Bapi vs State Of West Bengal on 26 November, 2013
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Kanchan Chakraborty.
C.R.A. 451 of 2013
Md. Abdul @ Bapi
-Versus-
State of West Bengal
For Appellant :- Mr. Asraf Ali,
Mr. Somashis Banerjee.
For State :- Mr. M. Singh, learned Public Prosecutor.
Mrs. Kakoli Chatterjee.
Heard on :- 07.11.2013, 21.11.2013, 25.11.2013.
Judgment on :- 26.11.2013.
Judgement
The challenge in this appeal is the Judgment and the order of conviction
dated 19.04.2013 and 20.04.2013 passed by the learned Sessions Judge, Howrah in
Sessions Trial No. 03/2010 thereby convicting the appellant Md. Abdul @ Bapi
committing offence under Sections 395 and 397 of the Indian Penal Code and
sentencing him to suffer rigorous imprisonment of seven years for both the offences
and to pay a fine of Rs.5,000/-, in default, to suffer simple imprisonment for six
months. Both the sentences would run concurrently.
On 11.08.2009, at about 4.30 hours, one F.I.R. was lodged by Sisir
Samanta with Jagatballavpur Police Station stating therein that on 11.08.2009 at
about 2.15 p.m., four young men aged about 30 years approximately, entered inside
Polgustia Anchal Samabay Krishi Unnayan Samity Limited. At that time Dilip Hait,
the bank accountant, came out for taking tiffin and one of the four young men put a
gun on his head and pushed him inside the bank forcefully. Dilip Hait tried to make
himself free and there was a scuffling. The man fired twice and one bullet blasted
and hit the bank counter but the other one did not blast. The four miscreants had
bitten up five employees of the bank and gathered those employees in one corner and
assaulted the Manager, Sisir Samanta with the butt of the revolver. One of them
brandished one revolver and entered into the cash counter and took away of the
transaction money to the tune of Rs.2,53,568.70/- which was kept in an attachy, they
also snatched five mobile phones from five employees. Two miscreants besides
those four miscreants, were found standing at the gate of the bank and there were
three motor cycles on the road where on two/three miscreants were sitting. The four
miscreants who entered into the bank boarded on the motor cycles and went towards
Panpur after committing dacoity. The entire episode concluded within five minutes.
On the basis of the F.I.R. above, Jagatballavpur Police Station Case No.
143 of 2009 dated 11.08.2009 was started. In Course of investigation, four accused
persons could be apprehended but others could not be. Some stolen cash and mobile
phones were recovered and seized. Fire arms and ammunition as well as motor cycles
were also recovered and seized. The persons arrested were placed in T. I. Parade for
identification by the witnesses. On conclusion of investigation charge sheet was
submitted against four accused persons including the appellant with a prayer to file
supplementary charge sheet in case of arrest of any other miscreants. The appellant
and three others were charged under Sections 395 and 397 of Indian Penal Code
while Mannan Ali Mallick, Kamal Ahmed and Barun Majhi were charged for
committing offence under Section 412 of Indian Penal Code read with Section 25(1)-
B (a) and Section 27(1) of the Arms Act.
The appellant Md. Abdul @ Bapi pleaded not guilty to the charge and
accordingly faced the trial together with three others. The learned Judge, upon
considering the evidence on record, oral and documentary, came to a conclusion that
the prosecution established the charges so framed against the accused persons and
accordingly recorded their conviction and passed the sentence impugned. Amongst
the three convicts, the appellant preferred this appeal challenging the sustainability of
the Judgment.
Mr. Asraf Ali, learned Counsel for the appellant contended that the Trial
Judge made a mistake by framing charge under Sections 395 and 397 of Indian Penal
Code instead of 392 of the Indian Penal Code. He had taken this Court to the F.I.R.
which has been marked Exhibit - 1 and contended that the lodger of the F.I.R. made
it very clear in the F.I.R. that only four persons entered into the bank premises and
done the operation. Since the number of miscreants was less than five, charge ought
to have been filed under Section 392 instead of 395 and 397 of Indian Penal Code.
Second contention of Mr. Ali is that the learned Trial Court relied heavily
on the test identification report of the appellant and others. The T. I. Parade was held
on 27.08.2009 that is about 17 days after the date of incident. There was every
possibility for the investigating agency to get the witnesses acquainted with the
suspects to be identified by way of showing their photographs in the meantime. He
contended further that no charge was framed against the appellant under Section 412
of Indian Penal Code read with Section 25/27 of the Arms Act.
Mr. Ali empathetically contended that the appellant is in custody since
August, 2009, i.e. for four years and few odd months. One of the four miscreants
who faced the trial was acquitted by the Trial Court. The appellant is young man and
by getting statutory remission, he is due to suffer about a year and few odd months
only in connection with this case. Mr. Ali contended that a lenient view be taken if
this Court finds that the order under challenge is not required to be upset in this
appeal.
Mrs. Kakali Chatterjee, learned Counsel appearing for the State-respondent
contended that the case is well proved and there is no scope for this Court to interfere into the Judgment impugned. The appellant and others were identified in Court as well as in T. I. Parade. Stolen cash money, arms which were used in the dacoity and the motor bikes which were also used by the miscreants were seized and identified in Court. There was no alibi from the side of the defence that they were falsely implicated for any reason whatsoever. She contended further that a careful reading of the F.I.R. discloses that there were more than four miscreants who had taken part in the alleged bank daoity. Four members of the gang entered inside the bank while the others were guarding the gate of the bank and sitting on the motor bikes in order to escape immediately after commission of the dacoity. Therefore, she contended that it was a group of more than four miscreants and naturally Trial Court did not make any mistake in framing charge under Sections 395 and 397 of the Indian Penal Code. She contended that this kind of offence has serious impact in society and, as such, no lenient view should be taken.
I have gone through the evidence of 28 prosecution witnesses. The P.W. - 1 is the lodger of the F.I.R. who happened to be the Manager of Polgustia Anchal Samabay Krishi Unnayan Samity Limited. He was on the bank on that date and stated that four young persons came inside the bank and obstructed Dilip Hait, the bank accountant, from going out of the bank. One of them fired twice from his revolver and Mr. Hait was narrowly escaped. One of the bullets hit the counter and another bullet did not blast. The P.W. - 1 stated that he came forward and asked the boy about the happenings but he was hit with the butt of a revolver. Then another miscreant entered inside the cash counter and took away the brief case containing Rs.2,53,900/- and odd. He was brandishing one revolver at that time. They put the employees and 4/5 customers in one corner of the bank and thereafter left the place by riding on motor cycles waiting outside. He identified one of the miscreants in the T. I. Parade that is the appellant, Md. Abdul. He also identified him in Court in course of trial. He identified the brief case (material Exhibit - 1) which was taken away by the miscreants from the cash counter containing Rs.2,53,568.70/-. He denied in his cross-examination that photograph of Md. Abdul, i.e. the appellant, was shown to him before he identified the appellant in the T. I. Parade. He identified the appellant as the man who hit him on his head with the butt of the revolver. The P.W.
- 2 is Dilip Hait, the bank accountant of the bank who had given vivid description of the entire incident. He stated that he was about to go out of the bank to have his tiffin. He found four miscreants to enter into the bank and one of them forced him to enter inside the bank at the point of a pistol. P.W. - 2 stated that he tried to get himself free but the man fired twice and one of the bullets hit the cash counter while other one did not blast. There was a scuffling and the Manager of the bank (P.W. -
1) tried to rescue me but he received a blow on his head with a butt of the revolver.
The P.W. - 2 stated that the land phone connection was cut off by the miscreants and one of them entered into the cash section and took away the brief case wherein cash was kept. They also took away mobile phones. The P.W. - 2 identified the bullet which was seized on the place of occurrence. He identified the appellant and two other miscreants in the T. I. Parade as well as in Court. He identified the brief case which was containing money. He denied that the suspects was shown to him by the police before holding of the T. I. Parade. The P.W. -3 is the another employee of the bank. He fulfledgedly supported the prosecution case and also corroborated the statements of P.W. - 1 and P.W. - 2. He also identified one miscreant, i.e. the appellant in T. I. Parade as well as in Court. The P.W. - 5 is the medical officer who treated Dilip Hait and Sisir Samanta that is P.W. - 2 and P.W. - 1, respectively, on 11.08.2009. He stated that Sisir Samanta told him that he was employee of Co- operative bank and received injury on his head as the miscreants hit him with the butt of revolver. The another injured Dilip Hait also stated the same fact. He found cut injury and both the persons were given medical treatment by him.
The P.W. - 6, 7 and 8 are the employees of Polgustia Anchal Samabay Krishi Unnayan Samity Limited and corroborated the statements of P.W. -1 and P.W. - 2. P.W. - 6 also identified the appellant, Md. Abdul and another miscreant Mannan Mallick in T. I. Parade as well as in Court. P.W. - 9, P.W. - 10 and P.W. - 11 are customers who came to the bank on that fateful date and time. They witnessed the incident and supported the prosecution case.
I have carefully gone through the report of the T. I. Parade which was marked Exhibit - 25 collectively. It shows that the appellant was identified in T. I. Parade by some of the witnesses who also identified him in the trial.
I have gone through the oral testimonies of other witnesses including the arms experts and the investigating officer of the case and found nothing which would go in favour of the appellant. If their evidence and other evidence are taken together, it only indicates that the appellant was a member of the gang who not only committed dacoity but used fire arms and assaulted bank employees in course of the dacoity. Some of the stolen money was recovered and placed before the Court. The motor bikes as well as the arms, ammunitions used in the dacoity were also admitted into evidence as material Exhibit identified and proved by the witnesses. There is no lacuna in the prosecution case which would go in favour of the appellant.
I find also that the appellant and his companions did not cover their faces at the time they entered into the bank premises, committed dacoity and escaped. Naturally, the witnesses to the incident were able to identify them even after 17 days in the T. I. Parade and long thereafter in the Court in course of trial.
Taking everything into consideration I find that there is no justified reason to upset the order of conviction which is impugned in this appeal. Accordingly, the order of conviction is upheld.
However, it appears to me that the appellant is in custody of about four years and few odd months. One of the four miscreants who faced the trial was acquitted. Some miscreants are yet to be apprehended. The appellant is a family man having kids. He is to suffer imprisonment for about one and half year more than what he has already suffered after getting statutory remission. In considering the facts above, I think that order of sentence can be modified accordingly.
Therefore, while upholding the order of conviction, I reduce the sentence to the extent that the appellant is to suffer rigorous imprisonment for the period already undergone by him but he has to pay a fine of Rs.20,000/-, in default, to suffer rigorous imprisonment for three years.
The appeal is disposed of with the above observation. The L.C.R. be returned to the Trial Court together with a copy of this order. The appellant be given a copy of the order.
(Kanchan Chakraborty, J.) Srimanta.