Calcutta High Court (Appellete Side)
The State Of West Bengal vs Babar Ali Mondal And Others on 11 July, 2011
Author: Ashim Kumar Roy
Bench: J. N. Patel, Ashim Kumar Roy
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Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice J. N. Patel, Chief Justice
And
The Hon'ble Justice Ashim Kumar Roy
Death Reference No. 1 of 2010
The State of West Bengal
Versus
Babar Ali Mondal and Others.
In connection with
C.R.A. NO. 54 of 2010
Srikanta Dey
Versus
The State of West Bengal
And
C.R.A. No. 59 of 2010
Babar Ali Mondal
Versus
The State of West Bengal
And
C.R.A. No. 130 of 2010
Ratan Tarai
Versus
The State of West Bengal
And
C.R.A. No. 69 of 2010
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Satish Gautam @ Satish Goutam & Anr.
Versus
The State of West Bengal
And
C.R.A. No. 162 of 2010
Prem Pal & 3 Ors.
Versus
The State of West Bengal
And
C.R.A. No. 269 of 2010
Surjya Golder
Versus
The State of West Bengal
For the Appellant : Mr. Sekhar Basu
Mr. Himanshu De
Mr. Navanil De (In C.R.A. No. 54/2010)
For the Appellants : Mr. Sekhar Basu
Mr. Pushpal Satpathi
Mr. Pranab Kr. Jana (In C.R.A. No. 59/2010 &
In C.R.A. No. 130/2010)
For the Appellants : Mr. Joymalya Bagchi
Mr. Avishek Sinha
Ms. Anusuya Sinha
Mr. Rajiv Lochan Chakraborty
Mr. Deep Chaim Kabir (In C.R.A. No. 69/2010)
For the Appellants : Mr. Soubhik Mitter (In C.R.A. No. 162/2010)
For the Appellants : Mr. Joymalya Bagchi
Ms. Rupa Bandopadhyay
Mr. Sourav Chatterjee (In C.R.A. No. 269/2010)
For the State : Mr. Ashimesh Goswami
Mr. Swapan Kumar Mallick
Ms. Rajyasree Das
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For Defacto-Complainant: Mr. Tulsidas Roy
Heard on : April 4th, April 5th, April 6th, April 11th, April 12th, April 13th, April
19th, April 20th, May 2nd, May 3rd, May 4th, May 10th, 2011.
Judgment on: 11-07-2011.
ASHIM KUMAR ROY, J.:
The aforesaid six Criminal Appeals and the proceeding upon reference under Section 366 of the Cr.P.C. made to this Court by the Trial Court for confirmation of sentence of death passed against the appellants since arising out of a common judgement and order, all are taken up for hearing together and are disposed of by this judgement.
In a sessions trial held before the learned Additional Sessions Judge, Fast Track, 3rd Court, Barrackpore, 24-Parganas (North), the aforesaid 10 appellants along with 5 others were charged under Sections 395/396/397 of the Indian Penal Code, and in addition to that the appellants (1) Shisu Pal, (2) Satish Gautam, (3) Babulal Singh, (4) Ganpatram, (5) Balbir Singh, (6) Prem Pal, (7) Banwari Singh, (8) Bhagwan Singh, (9) Srikanta Dey were charged under Section 412 of the IPC and the appellants Ratan Tarai, Surya Golder, Babar Ali Mondal, Babulal Singh along with three others were charged under Section 25 (i)(a)/27 of the Arms Act. however, the Trial Court acquitted the accuseds Tapash Biswas, Biswajit Mondal and Sujit Das from all the charges and the appellants Ratan Tarai, Surjya Golder, Babar Ali Mondal and Babulal Singh from the charges relating to the offences punishable under Sections 25 (i)(a)/27 of the Arms Act. 4
2. In the trial all the appellants were found guilty under Section 396 of the Indian Penal Code and accordingly they being convicted thereunder, each of them were sentenced to death and to pay a fine of Rs. 5,000/- and in default to suffer rigorous imprisonment for one year.
Similarly, all the appellants were sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each and in default to suffer rigorous imprisonment for one year for their conviction under Section 395 of the Indian Penal Code.
They were also sentenced to suffer rigorous imprisonment for 7 years for their conviction under Section 395 read with Section 397 of the Indian Penal Code.
The appellants Shisu Pal, Babulal Singh, Satish Gautam, Prem Pal, Bhagwan Singh and Srikanta Dey were sentenced to imprisonment for life and to pay a fine of Rs. 5,000/- and in default to suffer rigorous imprisonment for one year on their conviction under Section 412 of the Indian Penal Code. The sentences were directed to run concurrently.
The trial two others, accuseds Ganpatram and Balbir Singh were also convicted under Sections 395/396/397/412 of the Indian Penal Code, since after pronouncement of order of conviction, they fled away from the custody, consequently no sentence was passed against them.
3. Shorn of details the case of the prosecution goes like this;
The defacto-complainant Bimal Das, the P.W. 1 along with the other members of his family, viz., his son P.W. 5 Bidyut Das, the daughter P.W. 4 5 Barsha Das and his wife Chandana Das, were residing together in the third floor of the premises No. 7, Lenin Sarani, Kanchrapara within the Police Station Bijpur. The defacto-complainant was a jeweller by profession, having his shop room and workshop situated in the ground floor of the said premises. The P.W. 2 Abhijit Paul and P.W. 3 Niranjan Paul @ Gosai are the employees of defacto- complainant and at the time of incident they were present at the workshop. On the fateful night at about 3 hours the defacto-complainant woke up from his sleep due to barking of dogs and then on being attracted by some noises opened the door of his room and found 5/7 young persons wearing barmuda pants were trying to break open the collapsible gate of his bedroom. At the same time his wife Chandana Das also woke up as well as his son P.W. 5 Bidyut Das and as on being asked by the defacto-complainant, as his wife Chandana Das rushed to the balcony for seeking help from their neighbours, when the miscreants who were already hiding there, threw her down from the verandah as soon as she identified one of them and shouted "Surya Tui". Thereafter, the miscreants having entered their bedroom on the point of firearms took the defacto-complainant and his son P.W. 5 to the workshop situated at the ground floor, there they forced the P.W. 2 and P.W. 3 who were inside the workshop to open the door and on the point of firearms keeping all four of them silent looted away huge ornaments, cash money from the iron chest and also snatched the Mobile Phone from the defacto- complainant and fled away from the spot. The police receiving information about such crime arrived at the spot and after obtaining a written complaint from the P.W. 1 Bimal Das, commenced investigation.
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During investigation on the basis of source information police arrested Tapash Biswas, Biswajit Mondal and Sujit Das, acquitted accuseds and the appellant Ratan Tarai on February 25, 2008. Thereafter, on the selfsame day the appellants Surya Goldar and Babar Ali Mondal were arrested and pursuant to the statement made by them some arms and ammunition were recovered. On April 21, 2008 the appellants, viz. Satish Gautam, Prem Pal, Bhagwan Singh, Banwari Singh, Shisu Pal, Babulal Singh, Balbir Singh, Ganptram were arrested by the police and huge stolen properties and house-breaking instruments were recovered from their possessions. The accused Srikanta Dey was arrested on April 23, 2008. During their custody the accused persons were thoroughly interrogated and pursuant to their statements, the police further recovered the stolen properties, and house-breaking instruments. The appellant Shisu Pal was arrested on April 21, 2008 at Badaun, U.P. and the stolen Samsung Mobile Phone of the defacto-complainant was recovered from his possession. On four different dates the accused persons were placed in T.I. Parade and they were identified by P.W. 1 Bimal Das, P.W. 2 Abhijit Paul, P.W. 3 Niranjan Paul, P.W. 5 Bidyut Das and P.W. 6 Samudra Chakraborty.
4. Mr. Sekhar Basu, the learned Counsel in fact in his argument covered the case of all the appellants, irrespective of the appellants, whom he represented. Similar stand was also taken by Mr. Bagchi while he addressed us.
5. In their submissions the learned Counsel laid much emphasis on the following facts to show the prosecution's failure to prove its case; 7
(a) In the trial the written complaint of P.W. 1 Bimal Das was illegally treated as the FIR of the case and marked Exhibit - 1, although such complaint was made after commencement of investigation and inquest was held, thus the same is not admissible in evidence, hit by the provision of Section 162 of the Code.
(b) The P.W. 25 I.C. Bijpur P.S. having received an information at his quarter about the commission of a dacoity at the residence of the defacto- complainant, P.W. 1 Bimal Das, made a G.D. at P.S., and on the basis of such information, proceeded to the spot and the information so recorded in the said G.D. having disclosed commission of a cognizable offence, the same to be treated as the FIR of the case not the Exhibit - 1.
(c) In the aforesaid G.D. it is having noted that a lady died due to a fall from verandah, the prosecution case that she was killed by the miscreants by throwing her down, is a clear improvement and incredible.
(d) According to the P.W. 1 soon after the dacoity some of his neighbours informed the police over phone, however both the P.W. 25 and P.W. 31 the police personnels denied receipt of any such information which indicates that the prosecution withheld such information because same was not corroborating the prosecution case.
(e) Admittedly, the P.W. 1 Bimal Das is a foreign national, who immigrated to India from East Pakistan but staying in this country without obtaining citizenship or any valid Visa and constructed his own house and built 8 up a large business in the locality which shows his connection with the police and the police has concocted the case at his behest.
(f) The evidence of the P.W. 1 suffers from various infirmities;
(i) According to the witness the dacoits entered in his flat by breaking open a collapsible gate situated at the entrance of their flat but no part of broken collapsible gate was either seized by police nor any photographs was exhibited during the trial, in support of his claim. On the other hand, P.W. 3 Niranjan Paul, an employee of the said witness denied about existence of any such collapsible gate.
(ii) According to the P.W. 1 all gold ornaments manufactured at his shop embossed with a mark "BD" and all silver ornaments are tagged with a paper slip writing on the same "B. Das & Sons". However, no stamp was seized.
(iii) During investigation police seized some gold ornaments and silver ornaments from the shop of the defacto-complainant but in the seizure list, the Exhibit - 2/13 there is no mention that the gold ornaments so seized had any such inscription or there was any slip tagged with the silver ornaments.
(iv) The witness in the First Information Report nowhere mentioned that his wife deceased Chandana Das having opened the door of the verandah uttered "Surjya Tui" and then she was thrown down on the passage.
(v) Nothing about the description of the miscreants, viz. their features, complexions, heights were mentioned in the FIR as well as the fact that a repairing work was going on in the said building.
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(vi) There was no mention in the FIR as to what prompted the defacto-complainant to wake up and after waking up what he noticed and the witness and his son P.W. 5 Bidyut Das were brought down to his workshop on the point of firearms and the dacoits looted away the gold and silver ornaments from there.
(g) Both the P.W. 2 Abhijit Paul and the P.W. 3 Niranjan Paul had no documentary proof to show that they were employed at the shop of the defacto-complainant.
(h) According to the P.W. 2 on being attracted by the sound of knocking of doors and being called by P.W. 1 he woke up from his sleep but he was silent as to what happened before that including breaking of collapsible gate. He introduced a new story as to how the incident happened. He also did not mention in his statement before the police that the witness and others were confined in the workshop on the point of gun and never claimed to have been informed by the P.W. 1 that his wife was thrown from the verandah by the miscreants and P.W. 1 started crying seeing the dead body of his wife.
(i) The P.W. 3 admitted in his evidence that he heard that the defacto-complainant has murdered his wife and for 14 days he was not allowed to leave the place of occurrence by the police as well as the P.W. 2 for about 8/9 days.
(j) During the trial the witness has contradicted and introduced a new version as to how the occurrence continued for 3 hours. The witness did not disclose to the police that sometime due to pressure of work he and P.W. 2 used 10 to stay in the workshop and the said miscreants dragged P.W. 1 along with the keys to the shop. He had not spoken anything about engraving of any mark in the ornaments.
(k) The P.W. 4 Barsha Das, daughter of the defacto-complainant although was sleeping in the next room but claimed to have no knowledge as to what was going on in the bedroom of her parents. She did not mention to the police that on the previous night she studied till 1 a.m.
(l) The P.W. 5 Bidyut Das, the son of the defacto-complainant in one hand claimed that they used to sleep by keeping the light burning but on other hand claimed that he woke up from sleep being attracted by the barking of dogs and after switched on the bulb went to bathroom. This witness did not identify Satish Gautam or Shisu Pal. This witness for the first time before the Court stated that he woke up after hearing the shouts of his mother and saw some persons were hiding in their balcony and they threw his mother on the ground floor. He also not stated to the police that the miscreants kept them standing on the point of a gun.
(m) The P.W. 6 Samudra Chakraborty and P.W. 21 Nandalal Yadav are chance witnesses, who found on the previous night the miscreants at Naihati Cinema Hall.
(n) The P.W. 8 Haraprasad Karmakar is the landlord of the house where some of the miscreants staying in the ground floor as tenants and P.W. 10 Rakesh Majhi is his domesticated son-in-law. The witness identified 7 persons in Court as his tenants however identified appellant Satish Gautam as Ganpatram. 11 While P.W. 8 stated in his evidence the police themselves dug a hole and recovered one polythene packet, however P.W. 10 who was examined two days later, introduced a new story that recovery was done at the instance of the accused persons.
(o) Besides above, it has been vehemently urged that the identification of the appellants as the participants in the commission of the dacoity has not been proved beyond all reasonable doubt. It is further submitted that the accused persons were detained in police custody for sufficiently long time and when they were produced in Court from remand, the witnesses were also present, which obviously facilitated their identification in the T.I. Parade. Moreover the T.I. Parade was held long after their arrest and there was nothing on record to show as to how the witnesses were able to identify them long after the incident, when they before the police immediately after the occurrence mentioned nothing about their features, complexions, heights etc.
(p) Nothing was brought on record to show as to how the miscreants reached the verandah, wherefrom the victim was thrown down or that it was never established by the prosecution that the victim did not died due to an accidental fall.
(q) The site plan has not been proved in accordance with law.
(r) There is no conclusive opinion as to the cause of the death, therefore the appellants cannot be held guilty for murder.
(s) Sharing of the common object by all the miscreants have not been proved.
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(t) The seizure of the stolen articles were not in accordance with law and none of the articles was placed in T.I. Parade.
(u) The identification of Surjya Goldar is very doubtful.
(v) Lastly, it is vehemently urged that this is not a case which comes within category of rarest of rare cases, therefore the sentence of death of all the 10 accused persons does not at all called for.
On the other hand, the learned Public Prosecutor strongly repudiated each and every submission made on behalf of the appellants and submitted that the case against the appellants has been proved beyond all reasonable doubt. It is further submitted as regards to the broad facts of the case, i.e. as to how the dacoity was committed at the residence of P.W. 1 Bimal Das and in course of such dacoity how the wife of the defacto-complainant was killed and then as to how the ornaments were looted away from the shop and the workshop of the defacto-complainant situated in the same building there was no material and vital contradictions in the evidence of witnesses and contradictions, if any, are only on minor aspects which are quite natural. It is further submitted that not only the appellants were identified in the T.I. Parade held by a Judicial Magistrate, they were also identified in the Court, therefore the participation of the appellants in the commission of the dacoity has been proved beyond any shadow of doubt. It was also contended in addition to their identification as the participants in the commission of dacoity, the stolen properties were also recovered from their custody, which clearly pointing towards their involvement. It is also urged that the contradictions if any in the testimony of the witnesses 13 has not been brought on record in accordance with law and therefore the defence cannot seek any support therefrom. It is contended in a case of dacoity the individual role played by any miscreants is not at all important and each and every miscreants, who participates in a dacoity, may be their role varies, still each of them is responsible for the crime. Lastly, it is submitted the manner in which in course of dacoity committed during the dead hours of the night in a residential house and the brutal way in which the wife of the defacto- complainant was killed by throwing her down from the third floor of the house, this case certainly falls within the category of rarest of rare cases and thus not only the conviction but the sentence of death deserves no interference.
6. Before us the Trial Court has been vehemently criticized by the learned Counsel of the appellants for treating the written complaint of the P.W. 1 Bimal Das as the FIR, essentially on the ground that such FIR was recorded after inquest was held and during investigation. It is their further submissions that such FIR being recorded during investigation same become inadmissible in evidence being hit by Section 162 of the Code. In this regard having gone through the evidence of P.W. 31, A.S.I. Samir Karmakar who held the Postmortem Report and the P.W. 25 Shib Kumar Banerjee, I.C. Bijpur Police Station on whose arrival at the spot the FIR was lodged and upon perusal of both the Exhibit - 1, FIR of the case and the Exhibit 22 the Inquest Report, we find there is no dispute that FIR was lodged after the inquest was held. While holding of inquest was commenced at 6.45 hours, the written complaint, Exhibit - 1 was 14 made over to the I.C. Bijpur Police Station Shib Kumar Banerjee P.W. 25 at 7.25 hours.
Thus we are posing with a question, in the given facts and circumstances, whether the Trial Court was right in treating the Exhibit - 1 as the FIR of the case. However this controversy can at once be resolved by merely referring a decision of the Hon'ble Supreme Court, viz., in the case of Sambhu Das @ Bijay Das & Anr. Vs. State of Assam, reported in (2010) 3 SCC (Cri) 1301, relied on behalf of the State. In the aforesaid case while confronting with a similar situation the Apex Court in Paragraphs 21, 22 and 23 dealt with the issue in great details. However, for us, it would be enough to refer the conclusion arrived at by the Apex Court in the aforesaid case. According to the Apex Court investigation and inquest can start with telephonic information even prior to lodging of formal FIR and it would not affect trial and evidence in Court. Submissions that FIR losses its authenticity if lodged after inquest is a general proposition and cannot have any universal application. Neither FIR nor inquest report nor postmortem report can be regarded as substantive piece of evidence. Apart from above, it was further held in the aforesaid decision the object of inquest proceeding is to ascertain whether a person has died under unnatural circumstances or an unnatural death and if so, what the cause of death is? The question regarding details as to how deceased was assaulted or who assaulted him or under what circumstances he was assaulted, is foreign to the ambit and scope of a proceeding under Section 174 CrPC. The purpose of preparing inquest report is for making a note in regard to identification marks of the accused and 15 the nature of injuries. The inquest report is not a substantive evidence, while concluding the Apex Court referred its earlier decision in the case of George Vs. State of Kerala, reported in 1998 SCC (Cri) 1232, where it was held at the stage of holding inquest the Investigating Officer is not obliged to investigate into or ascertain who are the assailants.
In the present case there is no dispute the FIR, Exbt. - 1 was lodged after about one hour holding of inquest was commenced. We find from the evidence of P.W. 31 that on being informed by the I.C. Bijpur about a dacoity and murder in the house of P.W. 1 Bimal Das and further being asked to go to the P.O., he rushed there and after finding the dead body he held inquest. However, before proceeding to the spot no such information was reduced into writing. We further find the evidence of P.W. 25 I.C. Bijpur that he got an information from an unknown person at his quarter about the incident that there was a dacoity at the house of the P.W. 1 and then he went to the police station and after recording a G.D. he proceeded to the spot. Now, going through the content of the said G.D., we find that same is nothing but a cryptic message about an alleged incident. It is well settled an information to the police about the commission of a cognizable offence can only be treated as FIR if the same is not vague and cryptic. We have no hesitation that this cryptic message given to the P.W. 31 cannot be treated as FIR as the whole purpose behind the same was to present the police at the scene of occurrence and not to register FIR for the purpose of investigation into a cognizable offence. The only question now left for consideration in this regard whether the FIR recorded after inquest is hit by prohibition contained in 16 Section 162 CrPC or not. In the case of H. N. Rishbud Vs. State of Delhi, reported in 1955 Criminal Law Journal 526, at paragraph 5 the Apex Court held, "...Investigation usually starts on information relating to the commission of an offence given to an Officer-in-Charge of a police station and recorded under Section 154 of the Code...".
Similarly, in the case of Sambhu Das Vs. State of Assam (supra) at paragraph 30 the Apex Court held, "...The principle now well settled is that when information regarding a cognizable offence is furnished to the police that information will be regarded as the FIR and all enquiries held by the police subsequent thereto would be treated as investigation, even though formal registration of the FIR takes place only later ...".
In this regard we may refer one of the decision of the Hon'ble Supreme Court in the case of Paresh Kalyan Das Vabsar Vs. Siddique Yakub Bhai Jamadar, reported in AIR 1993 SC 1544, where the Apex Court held merely because police had already information about the riots statement in FIR of the person who lodged the FIR afterwards about murder could not be rejected inasmuch as any statement made therein could be used to contradict the informant and corroborate the evidence of other eyewitnesses, even if such FIR was held to be hit by Section 162.
In the case of Ranbir Yadav Vs. State of Bihar, reported in AIR 1995 SC 1219 the Apex Court held, where the police started investigation on the night of the occurrence itself and in the next morning the FIR was lodged by the 17 witnesses of the occurrence the FIR could very well be treated as a statement under Section 161 (3) of the Code of Criminal Procedure. Similar view was taken by the Hon'ble Apex Court in the case of B. Subhha Rao Vs. Public Prosecutor, reported in AIR 1994 SC 1256.
In the case of State of U.P. Vs. M.K. Antony, reported in AIR 1985 SC 48, the Apex Court held, the fact the Investigating Officer obtained the signature of the witness on his statement speaking about the confession made to him by the accused does not render his evidence inadmissible. It merely puts the Court on caution and may necessitate in depth scrutiny of the evidence but the evidence on this account cannot be rejected outright. Section 162 does not provide that evidence of a witness given in Court becomes inadmissible, if it is found that the statement of the witness recorded in course of investigation was signed by the witness at the instance of the Investigating Officer.
Thus, in the light of the decisions of the Apex Court referred hereinabove, in our opinion holding of inquest by a police officer who arrived at the spot having received an information, without any formal FIR being registered and not being entrusted with the charge of investigation by the Officer-in-Charge of the police station on whose jurisdiction such offence was committed, is mere an irregularity on the part of the concerned police officer and that does not render the FIR lodged subsequently inadmissible in evidence. In any event, accepting the defence contention, if it is held that the FIR of this case is not admissible in evidence due to the reason, same was lodged after the inquest, 18 then also the substantive evidence of P.W. 1 Bimal Das in Court will not ipso facto lose its probative value.
7. The contention of the defence that no broken part of collapsible gate was seized by the police, nor any photograph thereof has been taken if at all are deficiencies in investigation. Indeed the Investigating Officer of the case ought to have seized the broken parts of the shutter and collapsible gate, if the same were found there and exhibited those items during the trial and they also take photographs of broken shutters and collapsible gate, but this omission on the part of the Investigating Officer to do so, in our opinion would not touch the credibility of the prosecution case as regards to the factum of dacoity at the residence of the Bimal Das, P.W. 1. It is noteworthy that the Investigating Officer seized three broken padlocks with the loop cut and some other articles from the place of occurrence. The front portion of those padlocks were found cut by some cutting instruments. The Investigating Officer also seized either from the custody of the appellants or pursuant to the statement made to the police after their arrest and at their instance various house-breaking instruments, viz. hacksaw blades, metal cutting instruments, iron rods, sabls, wrench, sindkathi, hansua etc. There is nothing on record that the shutters and collapsible gates were broken into pieces at the time of dacoity. There was also no cross-examination of the Investigating Officer on this count. Even if, we accept the defence argument, in our opinion these lapses on the part of the Investigating Officer by itself will not demolish the prosecution case, if it is found otherwise acceptable. 19
8. Much has been argued with reference to the evidence of P.W. 3 Niranjan Paul that there was no collapsible gate in the third floor of the house but we find from the evidence of the P.W. 1 Bimal Das that after opening the door of room he found 5/7 young persons wearing barmuda pants were trying to break open the collapsible gate of one verandah lying in front of his bedroom and it is the evidence of P.W. 3 Niranjan Paul that he never went inside the bedroom of the P.W. 1, therefore on his aforesaid evidence turns nothing.
9. The contention of the defence that P.W. 1, Bimal Das is a foreign citizen and neither have the citizenship of India nor any valid document for staying in India, in our opinion the same is not at all relevant to decide the question whether there was any dacoity in the house of P.W. 1 Bimal Das and in course of such dacoity his wife was killed or not.
Once again, in our opinion non-mentioning in the seizure list that the seized stolen properties, viz., the gold ornaments having inscription "BD" on it, if at all be a lapse on the part of the investigating agency but on such minor discrepancies, question of disbelieving such seizure does not at all arise, when there are enough evidence in support of the same. The rest of the submissions of the learned advocate of the appellants with reference to non-mentioning of many facts to the police, is of no consequences, not only because such omissions are not very significant and at the same time we cannot overlook the fact the P.W. 1 Bimal Das was examined soon after the incident of a dacoity continued for hours together in which his wife was killed and various valuable articles were looted away by the miscreants, thus those omissions are quite natural. 20
10. We have also very carefully gone through the evidence of P.W. 1 Bimal Das, P.W. 2 Abhijit Paul, P.W. 3 Niranjan Paul and P.W. 5 Bidyut Das, who were extensively cross-examined by the defence and now by thoroughly scrutinizing the same, we have no doubt the prosecution has been able to establish that there was a dacoity on February 21, 2008 at the residence of P.W. 1 Bimal Das and in such dacoity, dacoits at the point of firearms looted away various valuable articles, viz., gold ornaments and silver ornaments from the shop and workshop of the defacto-complainant and in such incident the wife of the defacto-complainant was killed. On the other hand, the defence in spite of cross-examined the witnesses at length has miserably failed to create any doubt as to the same. We have also no doubt that at the time of the commission of the dacoity, the P.W. 1 Bimal Das, P.W. 2 Abhijit Paul, P.W. 3 Niranjan Paul and P.W. 5 Bidyut Das were very much present at the place of occurrence and they are the eyewitnesses of the said incident.
11. Referring to the evidence of the Investigating Officer of the case P.W. 32 it is vehemently argued on behalf of the appellants that the plan maker never visited the place of occurrence and prepared the site plan sitting at the police station at the instruction of the Investigating Officer of the case. The evidence with reference to which such submission has been made is read as follows;
"The Sketch Map of the P.O. was prepared by one drawer in my presence as per my instruction". In this case sketch map has been prepared by P.W. 11 Jayanta Majumder (Exhibit - 7). According to the said witness, he prepared a sketch map of the place wherefrom the deceased was thrown away. 21 We have carefully gone through the evidence of this witness and do not find his evidence has been challenged by the defence suggesting that same was prepared by the witness at the police station and as dictated by the Investigating Officer of the case without personally visiting the scene of occurrence. No such suggestion was also given to the P.W. 32 the Investigating Officer. In our opinion, nothing wrong has been committed by the Investigating Officer and there is no illegality on his part to get any sketch map of the place of occurrence prepared by another. Furthermore, by instructing anybody to prepare a sketch map of the place of occurrence that does not mean the person prepared the sketch map has not visited the spot and had no direct knowledge about the same and without viewing the actual place he prepared such sketch map". Having read the evidence of the maker of the sketch map P.W. 11 Jayanta Majumder and the Investigating Officer of the case P.W. 32, we have no doubt that sketch map was prepared by the P.W. 11 from his direct knowledge and after he visited the place of occurrence. As already observed, we do not find anything has been brought out from the cross- examination of the aforesaid two witnesses, which might probablized the defence case. We have looked into the sketch map, Exhibit - 7 and having gone through the same, it can hardly be said, the prosecution has not been able to show as to how the miscreants reached the verandah, wherefrom the deceased was thrown down. From the index of the sketch map it is clear that "F" is the verandah wherefrom the deceased was thrown to the passage marked "T". We have also find from the sketch map "A" is the back side view of the place of occurrence and there was a temporary bamboo made ladder fixed on the building mark "G" and it 22 is the case of the prosecution by the said ladder some of the miscreants reached the roof of the building and then effected their access to the verandah from where the deceased was thrown down.
12. According to the learned Counsel of the appellants the evidence of the doctor, who held the postmortem P.W. 12 Dr. Abhijit Ghosal it cannot be concluded the death of the victim Chandana Das was homicidal in nature as his evidence was not conclusive. However having going through the evidence of the postmortem doctor, we find the said witness has categorically stated, if the deceased was thrown away from the top of the building or thrown away by applying force from the top of the building she might received the injuries as mentioned in the Postmortem Report and it was unlikely that the deceased would receive such injuries if she fell accidentally from the top. In his extensive cross- examination by the defence nothing transpired to render his evidence inconclusive. Thus on the face of such evidence we have no doubt that deceased suffered a homicidal death.
13. After it is found undoubtedly there was a dacoity in the house of P.W. 1 Bimal Das and in course of such dacoity his wife Chandana Das was killed by the miscreants, who pushed her from the third floor balcony and thereafter huge gold and silver ornaments were looted away from the shop of the defacto-complainant situated at the ground floor of the said premises, now the only question left for our decision, as to whether the prosecution evidence as regards to the involvement of the appellants in the commission of dacoity can be 23 relied upon and if so, are the same enough to establish their guilt beyond any shadow of doubt?
14. It was the case of the prosecution that the miscreants who committed dacoity at the residence of the P.W. 1 Bimal Das were not known to the witnesses before hand and its case entirely rests on the evidence of P.W. 1 Bimal Das, P.W. 2 Abhijit Paul, P.W. 3 Niranjan Paul and P.W. 5 Bidyut Das who identified them during investigation, in the T.I. Parade and in the Court, during trial as well as on the recovery of the stolen properties from their possession.
The learned Counsel appearing on behalf of the appellants strenuously urged before us that the evidence of the aforesaid four witnesses is completely unworthy of credence since the same suffers from glaring inconsistencies and exaggerations. The identification of the appellants in the T.I. Parade was challenged essentially on the ground that same was held long after their arrest and before T.I. Parade they were shown to the witnesses. So far as the appellant Srikanta Dey is concerned, it is strenuously urged as his photograph was published in a local daily, his identification in T.I. Parade loses all its significance.
It is also urged the recovery of the stolen properties from the same place, a tenanted premises wherefrom the appellants Babulal Singh, Prem Pal, Bhagwan Singh, Satish Gautam, Banwari Singh and two others were apprehended, on two different dates within a gap of 11 days make such recovery highly doubtful and the seizure of mobile phone from the appellant Shisu Pal and 24 stolen properties from the appellant Srikanta Dey were not proved beyond all reasonable doubt.
15. Now, having regards to the evidence of P.W. 1 Bimal Das, we find on the fateful night while the said witness along with his son P.W. 5 Bidyut Das and his wife Chandana Das, who was killed by the dacoits were sleeping in one room, their daughter P.W. 4 Barsha Das was sleeping in the next room. According to the P.W. 1 Bimal Das as soon as they found that the dacoits entering into their flat they closed the door of their bedrooms and he asked his wife to seek help of the neighbours by raising alarm from the balcony. It was his further evidence as soon as his wife opened the door of the balcony, they found some of the miscreants were hiding there and seeing the miscreants as his wife shouted by uttering "Surjya Tui Eki Korchis", the miscreants immediately pushed her from the balcony. It is contended such fact not being disclosed in the FIR lodged soon after the incident, the case of the prosecution that the deceased Chandana Das identified appellant Surjya Golder as one of the dacoits is of no credence. It is true that in the FIR, no name of the miscreants was mentioned. The identification of the accused Surjya Goldar was not by the maker of the FIR, P.W. 1 Bimal Das but by his wife deceased Chandana Das. Although the factum of such identification was known to the P.W. 1 Bimal Das but in our opinion, after such horrifying incident which continued for hours together and in which the wife of the P.W. 1 was killed, such omission is not of much significance and is quite natural. Apart from that in this case soon after the lodging of the FIR within half an hour the P.W. 1 Bimal Das was further examined by the 25 Investigating Officer of the case and his statement was again recorded but on a close scrutiny of the extensive cross-examination of the said witness, we find he was never confronted by the defence that such fact of identification of appellant Surjya by his wife was also not disclosed to the police, when the witness was subsequently examined by the police. We further find the evidence of P.W. 5 Bidyut Das that his mother identified Surjya Golder as one of the miscreants was also not challenged by the defence and the evidence of P.W. 5 Bidyut Das that he told such facts to his sister P.W. 4 Barsha Das was fully corroborated by her. It is pertinent to note the P.W. 32 the investigating officer of the case in his evidence categorically stated on 21st February, 2008, i.e. on the date of occurrence itself, the P.W. 1 Bimal Das told him about the involvement of Surjya Golder in the case but the accused could not be arrested even after holding raid at Chakda. For the sake of argument, even we accept the defence contention that the fact Surjya Golder was identified by deceased Chandana Das as one the miscreants not being disclosed to the police, when P.W. 1 and P.W. 5 were examined after the incident, still then the identification of Surjya Golder both by the P.W. 1 and P.W. 5, during the T.I. Parade and then during the trial cannot be ignored.
16. The principal point now we are required to determine as to whether the identification of the appellants as the miscreants, committed dacoity at the house of the victim has been established beyond all reasonable doubt or not?
In this case the P.W. 1 Bimal Das in the T.I. Parade identified appellants Surjya Golder, Babar Ali Mondal, Ratan Tarai, Satish Gautam, 26 Bhagwan Singh, Srikanta Dey, Shisu Pal, Babulal Singh and two others absconded co-accuseds and in Court the said witness identified all those appellants including the appellant Banwari Singh. Similarly, the P.W. 2 Abhijit Pal in T.I. Parade identified appellants Satish Gautam, Bhagwan Singh, Srikanta Dey, Shisu Pal, Babulal Singh and two others absconded co-accuseds and in court he identified all the aforesaid miscreants. The witness P.W. 3 Niranjan Pal in T.I. Parade identified appellants Babar Ali Mondal, Ratan Tarai, Satish Gautam, Prem Pal, Bhagwan Singh, Srikanta Dey and Babulal Singh and two others absconded accused persons and in Court the witness identified all the said miscreants including appellant Banwari Singh. The witness P.W. 5 Bidyut Das in the T.I. Parade identified the appellants Babulal Singh and the absconded accused Ganpatram and during the trial in dock the witness also identified appellant Balbir Singh, besides whom he identified in the T.I. Parade.
The appellants Surjya Golder, Babar Ali Mondal, Ratan Tarai were arrested on 25th of February, 2008 and their T.I. Parade was held on 28th of March, 2008, i.e. after 31 days. The said T.I. Parade was conducted by the Judicial Magistrate P.W. 9 Sandip Chakraborti. The T.I. Parade of the rest of the appellants were conducted on 3 different dates by the Judicial Magistrate P.W. 34 Nachiketa Bera. The appellants Satish Gautam, Prem Pal, Bhagwan Singh, Banwari Singh, Shisu Pal and Babulal Singh were arrested on 21st of April, 2008 and their T.I. Parade was held on 30th of April, 2008 within 8 days. The T.I. Parade of appellants Banwari Singh, Shisu Pal and Srikanta Dey, who were arrested on 21st of April, 2008 and on 23rd of April, 2008 respectively, were held 27 on 2nd of May, 2008 within 10 days and 8 days. So far as the appellant Babulal Singh is concerned, he was arrested on 21st of April, 2008 and within 13 days his T.I. Parade was held on 5th of May, 2008.
17. According to the learned advocate of the appellants, their identification in the T.I. Parade has no probative value, for the reasons, firstly, their T.I. Parade was held long after their arrest and so far as the appellant Srikanta Dey is concerned, before holding of T.I. Parade his photograph was published in a local daily, secondly, none of the witnesses either before the Investigating Officer or in Court gave any description of the miscreants, viz., their feature, stature, complexion etc., which enable them to identify the appellants long after the alleged incident, thirdly, no precaution was taken to conceal the identity of the appellants before they were placed in the T.I. Parade. In this regard on behalf of the appellants reliance has been placed as many as on 13 rulings of the Hon'ble Supreme Court of India covering the same field. Thus it is needless to refer all the decisions and it would be sufficient to mention only a few of them, viz., Suryamoorthi and Anr. Vs. Govindaswamy and Ors., reported in 1989 SCC (Cri) 472, Ravi @ Ravichandran Vs. State, reported in (2010) 3 SCC (Cri) 730, Hasib Vs. The State of Bihar, reported in AIR 1972 SC 283, Soni Vs. State of Uttar Pradesh, reported in 1983 SCC (Cri) 49, State of Andhra Pradesh Vs. M. V. Ramana Reddy and Ors., reported in AIR 1991 SC 1938.
So far as the ratio of the aforesaid decisions are concerned, there is no controversy that Test Identification Parade belongs to investigation stage and served to provide the investigating authority with the material to assure 28 themselves if the investigation is proceeding on right lines or not and therefore it is desirable to hold T.I. Parade at the earliest opportunity so as to minimize the chances of memory of the identifying witnesses fading away due to long lapse of time. There is also no dispute where there is a sole identifier unless the witness while deposing in Court mentioned about the stature, complexion etc. of the miscreants and in his statement before the police, the possibility of mistake in identification cannot be ruled out. There is also no dispute that in case of delay in holding T.I. Parade unless there is any valid explanation the benefit of doubt will go in favour of the accused.
It is true the Apex Court refused to give much importance to the identification made at the T.I. Parade when photographs of the accused was published in daily newspaper. Similarly, the Apex Court also refused to give any importance to the T.I. Parade which was held after 10 days of arrest and at the police station taking the photographs same was published in the newspaper and according to the identifier witnesses, in the newspaper the suspect was shown to be accused involved in the crime.
Now coming to the case in hand, so far as the appellants Satish Gautam, Prem Pal, Bhagwan Singh, Srikanta Dey, Banwari Singh, Shisu Pal and Babulal Singh are concerned, their T.I. Parade was held within 8 days, 10 days and 13 days respectively, on the prayer of the investigating officer of the case made shortly after their arrest. In our opinion, there is no undue delay in holding the T.I. Parade of those appellants. So far as the T.I. Parade of appellants Surjya Golder, Babar Ali Mondal and Ratan Tarai are concerned, we 29 find from the records that after their arrest on 25th of February, 2008 within 11 days, on the date of their production in Court after completion of first remand from police custody, the Investigating Officer made the prayer for T.I. Parade. According to the investigating officer of the case on their very first day of production in court on 26th of February, 2008 after their arrest he made no prayer for T.I. Parade because their statement was not verified completely. In our opinion, the reason given for not making prayer for holding T.I. Parade on the very first day of the production of the accused in court by the investigating officer of the case is fully justified and he having made a prayer for T.I. Parade on the next day of their production we do not find any lapse on his part. Top of everything, the Investigating Officer of the case was also not cross-examined by the defence on this score.
This is not a case where no T.I. Parade was held but is a case where T.I. Parade was held allegedly after some delay. We have already pointed out that it appears from the materials on record there was no lapses on the part of the investigating officer in this regard and the investigating officer always approached the concern court within reasonable time for holding T.I. Parade. It is noteworthy in a case where no T.I. Parade was held, still the Hon'ble Apex Court accepted the identification in dock during the trial as sufficient to fix the accused in the commission of the offence. In this regard reliance may be placed on a 3 Judges Bench decision of the Hon'ble Supreme Court in the case of Malkhansingh and Ors. Vs. State of M.P., reported in 2003 SCC (Cri) 1247, the Hon'ble Apex Court at para 7 held as follows;
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"7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn., Vaikuntam 31 Chandrappa v. State of A.P., Budhsen v. State of U.P. and Rameshwar Singh v. State of J & K.)"
Subsequently, in the case of Pramod Mandal Vs. State of Bihar, reported in (2004) 13 SCC 150 at para 20 the Apex Court held as follows;
"20. It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness? Prudence therefore demands that these matters must be left to the wisdom of the courts of fact which must consider all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification."32
In a recent case, viz. Sheo Shankar Singh Vs. State of Jharkhand and Anr., reported in (2011) 2 SCC (Cri) 25, the Supreme Court heavily relied on the said two decisions and followed the same line of reasoning and observed followings in paragraphs 46 and 47.
"46. It is fairly well settled that identification of the accused in the court by the witness constitutes the substantive evidence in a case although any such identification for the first time at the trial may more often than not appear to be evidence of a weak character. That being so a test identification parade is conducted with a view to strengthening the trustworthiness of the evidence. Such a TIP then provides corroboration to the witness in the court who claims to identify the accused persons otherwise unknown to him. Test identification parades, therefore, remain in the realm of investigation.
47. The Code of Criminal Procedure does not oblige the investigating agency to necessarily hold a test identification parade nor is there any provision under which the accused may claim a right to the holding of a test identification parade. The failure of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the court. As to what should be the weight attached to such an identification is a matter which the court will determine in the peculiar facts and circumstances of each case. In appropriate cases the court may accept the evidence of identification in the court even without insisting on corroboration."
In view of above, the delay if any in holding T.I. Parade in the present case, is of no adverse consequences.
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18. Next point canvassed before us that the identifying witnesses neither in their statement before the police nor in their deposition in court gave any description of the miscreants, thus the complicity of the appellants is quite doubtful, therefore, their conviction cannot be sustained.
This is a case where a dacoity was taken place inside a residential house and continued for hours together and at the time of the occurrence according to the unchallenged evidence of the witnesses, who were present there, althrough electric bulbs were burning. The defence despite subjecting the prosecution witnesses with extensive cross-examination has not been able to demolish the evidence of the prosecution witnesses that the dacoity continued for hours together and there was sufficient light. It is also the evidence of the prosecution witnesses during the dacoity their movement was restricted on the point of gun and they have to conduct themselves as desired by the said miscreants. The entire incident took place inside a building and inside closed rooms, thus the witnesses have every opportunity to notice the assailants from close proximity. In the said incident Chandana Das wife of the P.W. 1 Bimal Das and the mother of P.W. 5 Bidyut Das were killed by the miscreants, who thrown her down from the balcony in presence of both the said witnesses. All these factors were sufficient to create a long lasting impression in the memory of the persons who went through such a traumatic experience. This is not a case, where the incident took place was not sufficiently illuminated nor is a case where the incident lasted for a couple of minutes and the witnesses had only a brief glimpse of the occurrence. Because of the manner in which the incident took 34 place and the length of time it lasted, even if there is any omission to mention about the description of the accused by the witnesses in their statement before the police in our opinion that would not be fatal to the prosecution case. We have no doubt that the appellants have been correctly identified by the P.W. 1 Bimal Das, P.W. 2 Abhijit Paul, P.W. 3 Niranjan Paul and P.W. 5 Bidyut Das as the miscreants who committed dacoity at the house of the P.W. 1 on the fateful night and killed Chandana Das.
The identification of the appellant Srikanta Dey was vehemently challenged on the ground that before his T.I. Parade his photo was published in a daily newspaper. This appellant was identified by P.W. 1 Bimal Das, P.W. 2 Abhijit Paul and P.W. 3 Niranjan Paul, as one of the miscreants who took part in the commission of the dacoity but none of these witnesses was even suggested that because of the fact his photograph was published in a daily newspaper as the accused involved in this case, the witnesses could identify him as one of the miscreants. The only question that was put to the P.W. 2 Abhijit Paul as to whether he read newspaper or not, accordingly we do not find any force in the submission of the learned counsel of the appellants.
We have very carefully scrutinize the evidence of the Judicial Magistrates who held the T.I. Parade, the P.W. 9 Sandip Chakraborti and the P.W. 34 Nachiketa Bera as well as gone through the T.I. Parade Sheets, we find all necessary precautions were taken during the T.I. Parade so as to conceal the identity of the suspects. During the cross-examination of the aforesaid two 35 witnesses who held the T.I. Parade, we do not find anything has been highlighted which could create any doubt.
It was also contended by the learned advocate of the appellants that there were many contradictions in the evidence of the prosecution witnesses as regards to the manner in which the incident happened. We have already very closely examined the testimony of the prime witnesses, on whose evidence the prosecution case rests. We find the contradictions, inconsistencies, exaggerations and embellishments in the evidence of those witnesses are very minor and same are bound to occur due not normal error of observation and the mental disposition, viz. shock and horror at the time of occurrence. Those are very marginal and not at all significant.
19. In course of his argument the learned Counsel of the appellants draws out attention to the order of the passed by the Judicial Magistrate, who held the T.I. Parade on 28th of March, 2008 from the Lower Court Records. Then it was contended before holding of T.I. Parade, the witnesses as well as the accuseds who were placed in the T.I. Parade on that day, all were brought at the same time and produced in Court together and thereby facilitated the witnesses to identify these appellants. We have gone through the order passed on 28th of March, 2008 and we find the order does not indicate the accuseds, whose T.I. Parade were held on that day, were produced in Court. On the other hand, we find the learned Magistrate only recorded the said date was fixed for holding T.I. Parade of those particular accused persons and the presence of the witnesses. We further find on that particular day, i.e. on March 28, 2008 the said accused 36 persons were at Barrackpore Sub-Correctional Home, pursuant to a remand order passed on March 19, 2008 by the Court below and April 2, 2008 was fixed for their production in Court. Therefore, there was no question of their production in Court on March 28, 2008. In this regard it may be noted neither the said two witnesses, viz., P.W. 1 Bimal Das and P.W. 3 Niranjan Paul nor the Investigating Officer of the case P.W. 32 were even suggested by the defence that by production of the accuseds and the witnesses in Court at a time, the identification of the accuseds in T.I. Parade was facilitated. The above contention is thus without any foundation.
20. In this case during investigation the police apprehended the appellants Babulal Singh, Prem Pal, Bhagwan Singh, Banwari Singh, Satish Gautam and two absconded accuseds Balbir Singh and Ganpatram, from the residence of P.W. 8 Haraprasad Karmakar situated at Purbapara, Dashghara within Dhaniakhali Police Station where they were residing as his tenants occupying four rooms at the ground floor. During such raid the police recovered various stolen properties, viz. Gold and Silver ornaments in a rexine bag and house-breaking instruments. All those stolen properties and the house-breaking instruments were produced to the police by the said accused persons. Those articles were seized by the police in presence of the witnesses P.W. 8 Haraprasad Karmakar and his son-in-law P.W. 10 Rakesh Majhi under a proper seizure list authenticated by the said witnesses and also signed by the accuseds from whose possession the same were seized. Both the said witnesses P.W. 8 and P.W. 10 fully corroborated the factum of such seizure. Then after about 10 days 37 pursuant to the statement of some of the appellants made to the police during their interrogation, the police once again held a raid at the said premises and during such raid on being produced by the accused persons the police recovered the stolen properties, viz. gold and silver jewelleries in presence of P.W. 8 and P.W. 10 under proper seizure list duly authenticated by the said seizure witnesses and signed by the accuseds at whose instance the same were recovered. At that time of the said raid the police also seized the wearing apparels of the appellants, viz. barmuda pants, which the appellants were wearing at the time of dacoity. Those articles were also seized under the seizure list authenticated by P.W. 8 Haraprasad Karmakar and his son-in-law P.W. 10 Rakesh Majhi. During the investigation the police also seized the rent receipts in support of the fact that at that relevant time the aforesaid five appellants and two others absconded accused persons were residing at the house of P.W. 8 Haraprasad Karmakar as his tenants. In the trial the P.W. 8 Haraprasad Karmakar identified appellants Babulal Singh, Bhagwan Singh, Satish Gautam while P.W. 10 Rakesh Majhi identified appellants Babulal Singh, Prem Pal, Bhagwan Singh, Banwari Singh, Satish Gautam as the persons who were residing at their house as tenants occupying four rooms in the ground floor. Therefore there cannot be any doubt that these appellants after committing dacoity took shelter the house of P.W. 8 Haraprasad Karmakar in the guise of tenants and from their possession stolen properties, house-breaking instruments and their wearing apparels used at the time of the dacoity were recovered by the police.
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In our opinion, the identification of the appellant Satish Gautam as Ganpatram during the trial by the landlord the P.W. 8 Haraprasad Karmakar never dilutes their involvement in the crime, inasmuch as the point was whether the said accuseds were residing along with other miscreants as a tenant in the said premises or not. The P.W. 8 Haraprasad Karmakar has not committed any mistake to identify the said appellants as the persons who were residing along with others in his house and from their possessions stolen properties as well as house-breaking instruments were recovered by the police.
21. The learned Counsel for the appellants vehemently contended the recovery of stolen articles on two instalments within a span of 10 days casts serious doubt as to the authenticity of such recovery. It is further submitted on the first day when the accused persons apprehended from the house of P.W. 8 and the house was thoroughly searched, there cannot be any valid reason which may justify non-recovery of the remaining articles in one go. In this connection, it would be more apposite to refer only one observation of the Hon'ble Apex Court in its recent decision in the case of Ramesh and Ors. Vs. State of Rajasthan, reported in (2011) 3 SCC 685. The following have been observed by the Hon'ble Apex Court in para 39 of the said decision;
"39. We are not impressed by the contention raised that the police have seized the gold chain on 19-2-2003 even when they had visited the same place on 9-2-2003 for recovering the clothes and on 13-2-2003 for recovering the other ornaments including the katordan. It is quite possible that the police were not able to recover all the ornaments in one go. The High Court has given good reasons to set aside the finding of the trial court 39 to the effect that this recovery was not proved. In fact, there is clear-cut evidence on record that the ornaments which were recovered on 13-2-2003 were kept in a katordan. We have already commented that in Ext. P-35 itself, it is clearly mentioned that full name of deceased Ramlal was engraved on the katordan. The recovery of katordan would clinch the issue insofar as the identification of the ornaments is concerned. Gordhan had no explanation whatsoever for these ornaments or for the katordan. Therefore, it is clear that Gordhan was also in possession of the stolen property almost immediately after the theft and was directly connected with the crime since his shirt and shoes were stained with human blood for which there was no explanation. We confirm the finding given by the High Court regarding the recoveries."
The learned Counsel for the appellants had taken us through the evidence of the P.W. 8 Haraprasad Karmakar and the P.W. 10 Rakesh Majhi and pointed out the discrepancies in the evidence as to how on the second raid the stolen properties and the house-breaking instruments were recovered. In our opinion, such discrepancies are not only trifle, the same are quite natural and bound to occur after a long lapse of time. Even assuming due to such inconsistencies the second recovery does not come under the purview of Section 27 of the Evidence Act, still such recovery is admissible under Section 8 of the Evidence Act being the conduct of the accuseds. Furthermore, we have no hesitation to say the Investigating Officer of the case, on the very first day when conducted raid and arrested the miscreants and recovered huge stolen properties and house-breaking instruments from the house of the P.W. 8 Haraprasad 40 Karmakar, he should be more careful and should have searched the whole house, but failure to do so by him, would not by itself wipe out the entire prosecution case.
22. So far as the seizure of stolen mobile phone from the appellant Shisu Pal is concerned we do not find any substance in the contention of the learned counsel of the appellants. Merely because the sale receipt was not seized under proper seizure list, there is no reason to doubt such seizure, when there are other materials to support the recovery of stolen mobile phone from the possession of the said appellant.
23. In view of aforesaid overwhelming evidence on record we have no doubt about the complicity of the appellants in the commission of the dacoity on the fateful night at the residence of P.W. 1 Bimal Das and during such dacoity his wife was thrown down from the balcony and was killed by some of them and huge amount of gold and silver ornaments were looted away from the workshop situated at the ground floor of the said premises.
Their guilt has been proved by their identification by the witnesses present at the scene of occurrence and by recovery of the stolen properties and house-breaking instruments from their possessions.
24. Now, the question arises for our decision whether the conviction of all the appellants under Section 396 of the Indian Penal Code is justified when there is no evidence to show that all the appellants took part in killing the victim housewife by throwing her from the verandah and when the others were not present there.
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In this connection it would be enough to refer the case law cited on behalf of the State. In the said case of Kalika Tiwari and Ors. Vs. State of Bihar, reported in AIR 1997 SC 2186 in paragraphs 7 and 8 the Apex Court observed as follows;
"7. Under Section 396, if any one of the dacoits "commits murder in so committing dacoity" every one of the dacoits is liable to be punished either with death or imprisonment for life or rigorous imprisonment for a term which may extend to 10 years. If a dacoit in the progress of, and in pursuance of, the commission of a dacoity commits a murder, all of his companions, who are participating in the commission of the same dacoity may be convicted under this section, although they may have no participation in the murder beyond the fact of participation in dacoity. It is not necessary that the murder should have been within the contemplation of all or some of them when the dacoity was planned, nor is it necessary that they should have actually taken part in, or abetted, its commission. Indeed they may not have been present at the scene of murder, or may not have known even that murder was going to be, or had in fact been committed. But nonetheless they all will be liable for enhanced punishment, provided a person is in fact murdered by one of the members of the gang in commission of the dacoity.
8. It is not necessary for the prosecution in such a case to establish either any common intention envisaged in Section 34 or common object contemplated in Section 149 of IPC. If one of the dacoits committed murder during the commission of dacoity the tentacles of Section 396 would prance to envelop all the 42 dacoits huddled within its penal circumference and then it would be immaterial that the other dacoits did not share the intention with that person who committed murder."
25. In view of above, we do not find any wrong in the judgement of the Trial Court so far that relates to the conviction of the appellants under Sections 395/396 of the Indian Penal Code. However, the conviction of the appellants under Section 397 read with Section 395 of the Indian Penal Code is completely misconceived and erroneous. The offence punishable under Section 397 IPC is by itself a distinct and different offence and such offence is committed when at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempted to cause death or grievous hurt to any person. While provisions of Section 395 of the Indian Penal Code prescribes punishment for dacoity simpliciter. On the evidence on record we have no hesitation the charge against the appellants for offence punishable under Section 397 of the Indian Penal Code has been clearly established, therefore they deserves to be convicted thereunder.
Thus, the conviction of the appellants under Sections 395/396/397 of the Indian Penal Code is upheld.
26. In this case the appellants Shisu Pal, Babulal Singh, Satish Gautam, Prem Pal, Bhagwan Singh and Srikanta Dey are also convicted under Section 412 of the Indian Penal Code. From the evidence on record this Court has already come to a definite conclusion, that the appellants participation in the commission of the dacoity at the residence of the P.W. 1 Bimal Das and killing of 43 his wife by some of them during such dacoity and looting away of valuable properties, has been established beyond all reasonable doubt. So far as the recovery of stolen properties from the possession of the aforesaid six appellants are concerned the same has also been proved beyond any shadow of doubt. Therefore it can safely be held that the aforesaid six appellants retained such stolen properties knowingly that the same were stolen by the commission of dacoity and thus the Trial Court has not committed any mistake in convicting them for the offence punishable under Section 412 of the Indian Penal Code.
The conviction of the aforesaid six appellants under Section 412 IPC is thus upheld.
27. Now, coming to the last but most crucial question whether the present case is one, which falls within the category of rarest of rare cases and therefore the guilties are liable for capital punishment.
On the question of propriety of death sentence the learned Counsel for the appellants relied on as many as 9 case laws but in our opinion it would be enough to refer only two of them. Accordingly, the observation of the Apex Court at para 209 in the case of Bachan Singh Vs. State of Punjab, reported in (1980) 2 SCC 684 as well as the circumstances enumerated by the Hon'ble Supreme Court in the case of Machhi Singh Vs. State of Punjab, reported in 1983 SCC (Cri) 681, where imposition of death sentence would be justified, are quoted below;
In the case of Bachan Singh Vs. State of Punjab (supra) the Apex Court observed as follows;
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"209. ...Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, courts have inflicted the extreme penalty with extreme infrequency-a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the high road of legislative policy outlined in Section 354(3) viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
Whereas in the case of Machhi Singh Vs. State of Punjab (supra) the Apex Court enumerated the following circumstances where the death sentence be proper;
"(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. (2) When the murder is committed for a motive which evinces total depravity and meanness e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-à-vis whom the murderer is in a dominating position or in a 45 position of trust; or murder is committed in the course of betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of "bride burning" or "dowry deaths" or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child or a helpless woman or old or infirm person or a person vis-à-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community."
In the light of the aforesaid observations and the guidelines enumerated by the Supreme Court, we now propose to consider the question whether on the evidence on record the Trial Court is justified in imposing death sentence or not. According to the prosecution case the P.W. 1 Bimal Das and the P.W. 5 Bidyut Das were present at the time when the deceased Chandana entered the balcony and having seen her the dacoits who were hidden there killed her by throwing from the balcony. In this regard the relevant portion of the evidence of P.W. 1 and P.W. 5 are quoted below :-
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As per the P.W. 1 :
(a) At that time 4/5 dacoits were present in the balcony of his house and they threw his wife to the ground below from the said balcony of their building.
(b) When his wife open the door of the balcony she shouted saying "Surjya Tui" and immediately she was thrown down.
(c) In Court the witness identified all the appellants as the persons committed dacoity in his house.
(d) According to the Judicial Magistrate the P.W. 9 Sandip Chakraborti, who held the T.I. Parade the P.W. 1 touching the suspect appellant Ratan Tarai, Surjya Golder and Babar Ali Mondal that they are the persons who threw his wife from the balcony.
As per the P.W. 5 Bidyut Das :
(a) After opening the door of the balcony her mother shouted saying "Surjya Tui Eki Korchis" then the said miscreants threw his mother from the balcony.
(b) In Court the witness identified Babulal Singh and Ganpatram as the persons who threw his mother from the balcony at the time of incident.
However, the said witness in the T.I. Parade identified only Babulal Singh and Ganpatram as the dacoits without attributing any role to them.
We have already sustained conviction of the total 10 appellants under Section 396 of the Indian Penal Code, relying on the decision of Kalika Tewari and Ors. Vs. State of Bihar (supra) where it was held in a case of offence 47 punishable under Section 396 of the Indian Penal Code, if any murder is committed by one or more, in course of a dacoity everyone of the dacoits shall be liable for the said offence although all of them had no participation in the murder. However, since we are considering the question of sentence and that too the propriety of imposition of death sentence, all the appellants cannot be treated at par as the degree of culpability varies. While sentencing the accuseds under Section 396 of the Indian Penal Code, we must segregate the case of the miscreants, who were present at the scene of murder and actually took part in the crime from those miscreants who have no participation in murder beyond participation in the dacoity. In this case it is the substantive evidence of P.W. 1 that appellants Ratan Tarai, Surjya Golder and Babar Ali Mondal are the dacoits who threw his wife from the balcony, while according to the P.W. 5 Bidyut Das the appellant Babulal Singh and Ganpatram are the persons who threw her mother from the balcony. Therefore, for the purpose of considering the question of sentence the case of the appellants Ratan Tarai, Surjya Golder, Babar Ali Mondal, Babulal Singh, and Ganpatram (an absconding accused) can be segregated from the remaining other appellants, viz. Satish Gautam, Prem Pal, Bhagwan Singh, Srikanta Dey, Banwari Singh and Shisu Pal. However, the evidence of these two eyewitnesses as regards to the identification of the persons who threw the deceased Chandana Das from the balcony are contradictory, except that according to the said witnesses at once the deceased identified appellant Surjya she was thrown down from the balcony.
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Undoubtedly, the manner of commission of the offence is really gruesome but the fact remains the prosecution has not been able to bring on record anything to show the murder of Chandana Das was pre-meditated and pre-planned except that she was killed when she identified one of the dacoits. The entire incident took place in the span of few minutes. The evidence is not indicative of extreme depravity or brutality. The murder was not committed to satisfy any greed or lust but the miscreants being recognized by the victim she was killed. Thus in our opinion, this is not a case which comes within the category of rarest of rare cases and accordingly we are of the opinion in this case the sentence of death is not called for and it would be just and proper if these appellants are sentenced to suffer imprisonment for life and to pay a fine of Rs. 50,000/- each and in default to suffer rigorous imprisonment for 5 years for their conviction under Section 396 of the Indian Penal Code. When we sentence the appellant to imprisonment for life, we do not think that any separate sentence is necessary for their conviction under Section 395 and Section 397 of the Indian Penal Code. Accordingly, the sentence imposed upon the appellants for their conviction under Sections 395/397 of the Indian Penal Code is set aside.
However, the sentence imposed against the appellants Shisu Pal, Babulal Singh, Satish Gautam, Prem Pal, Bhagwan Singh and Srikanta Dey for their conviction under Section 412 of the Indian Penal Code is reduced to rigorous imprisonment for 10 years with a fine of Rs. 10,000/- each, and in default to suffer rigorous imprisonment for one year each. 49
It is further directed if the fine amount is realized, the entire amount shall be paid to the legal heirs of the deceased Chandana Das by way of compensation.
The death reference and all the six Criminal Appeals accordingly stand disposed of.
The Office is directed to communicate this judgement and order to the Trial Court and to send down the Lower Court records at once.
Urgent Photostat certified copy of this judgement, if applied for by the parties same shall be given to them on usual undertakings.
I agree
(J. N. Patel, C.J.) (Ashim Kumar Roy, J.)