Tripura High Court
Abdul Malik vs The State Of Tripura on 22 January, 2020
Equivalent citations: AIRONLINE 2020 TRI 15
Bench: Chief Justice, S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
CRL.A.(J)28 of 2018
CRL.A.(J)38 of 2018
CRL.A.(J)28 of 2018
Abdul Malik,
son of late Tahid Ali,
resident of South Kadamtala,
P.S. Kadamtala, Sub-Division-Dharmanagar,
District : North Tripura
----Appellant(s)
Versus
The State of Tripura
represented by the Secretary
to the Government of Tripura,
Home Department, Agartala
---- Respondent(s)
For Appellant(s) : Mr. A. Nandi, Adv.
For Respondent(s) : Mr. R. Datta, P.P.
Mr. S. Debnath, Addl. P.P.
CRL.A.(J)38 of 2018
1. Md. Abdul Kayesh,
son of Md. Abdul Jabbar,
resident of Klachera, P.S. Kadamtala,
P.S. Dharmanagar, District : North Tripura
2. Md. Sab Uddin,
son of Badrul Haque,
resident of Dakshin Purba Kadamtala,
P.S. Dharmanagar, District : North Tripura
----Appellant(s)
Versus
The State of Tripura
represented by the Secretary
to the Government of Tripura,
Home Department, Agartala
---- Respondent(s)
For Appellant(s) : Mr. S. Lodh, Adv.
For Respondent(s) : Mr. R. Datta, P.P.
Mr. S. Debnath, Addl. P.P.
Page 2 of 23
Date of hearing : 20.11.2019
Date of delivery of
Judgment & Order : 22.01.2020
Whether fit for
reporting : YES
BEFORE
HON'BLE THE CHIEF JUSTICE
HON'BLE Mr. JUSTICE S. TALAPATRA
Judgment & Order
These appeals arise from the judgment of conviction and the consequential order of sentence dated 01.06.2018 delivered in Case No.ST/T-1/27/2017 by the Sessions Judge, North Tripura, Dharmanagar.
2. The appellants have been convicted under Section 395 read with Section 34 of the IPC for committing dacoity. In terms of the conviction, the appellants are sentenced to suffer rigorous imprisonment for life and to pay fine of Rs.10,000/- with default stipulation. The detention they suffered has been directed to be set off against the term of imprisonment under Section 428 of the Cr.P.C.
3. The genesis of the prosecution case is rooted in the complaint filed against the unknown miscreants by one Anjali Nath [PW- 1] on 25.09.2012 to the officer in charge, Dharmanagar PS. In the said complaint, a cognizable offence had been revealed by stating that in the wee hour of night, at about 2.10 a.m., when the complainant was sleeping, a group of seven or eight unknown persons entered their house and by breaking the latch they came inside their room and took away the golden ornaments with estimated value of 1.5 lakhs, a cash of Rs.25,000/-, five mobile phones. Those raiders had dao [a sharp edged cutting weapon], stick and kirich in their hand. They had assaulted Page 3 of 23 complainant's nephews namely Binoy Kumar Nath [not examined in the trial] and Tarun Kumar Nath [PW-6]. The complainant has asserted in the complaint that she would be able to identify those persons if she could notice them again. Based on the said complaint [Exbt.1] Dharmanagar PS Case No.164/12 under Section 395/397 of the IPC was registered and taken up for investigation. Against the appellants and four other persons namely (1) Jamal Uddin alias Jamu (2) Faka Ali alis Mulla (3) Mustak Ali and (4) Jamir Uddin alis Sankei the final report was filed by the police. Those four persons, according to the judgment dated 01.06.2018, are still absconding. The final report was filed sending up the arrested persons [including the appellants herein] to face the trial. On commitment, the trial Court framed the charge against the appellants under Section 395 read with Section 34 of the IPC and the charge was also framed under Section 397 read with Section 34 of the IPC for committing offence of robbery or dacoity with attempt to cause death or grevious hurt. It is to be noted that the trial Judge has acquitted the appellants from the charge under Section 397 read with Section 34 of the IPC. The appellants pleaded not guilty to face the trial.
4. The prosecution in order to prove the charge adduced eleven witnesses [PWs-1 to 11] including the complainant and Tarun Kumar Nath [PW-6]. That apart, the prosecution placed sixteen documentary evidence [Exbts.1 to 16] including the report of TI parade [including Exbts.2, 4 to 9]. After recording the evidence of the prosecution, the appellants were separately examined under Section 313 of the Cr.P.C. when they reiterated their plea of innocence and claimed to have framed falsely. On appreciation of evidence, the appellants were convicted for committing offence under Section 395 Page 4 of 23 read with Section 34 of the IPC by the judgment dated 01.06.2018. The said judgment followed the sentence (supra).
5. Mr. S. Lodh, learned counsel has appeared for the appellants in Crl.A.(J)No.38 of 2018 and Mr. A. Nandi, learned counsel has appeared for the appellant in Crl.A.(J)No.28 of 2018.
6. Before we proceed further, it requires to be noted that out of the convicts, Md. Abdul Kayesh and Md. Sab Uddin have filed the appeal being Crl.A.(J)38 of 2018 and Md. Abdul Malik has filed the Crl.A.(J)28 of 2018. But the convict Md. Saleem Ahmed has not preferred any appeal against the judgment of conviction and the consequential order of sentence.
7. The state has filed one supplementary affidavit on 18.03.2019 in Crl.A.(J)28 of 2018 stating that the police could not apprehend the other four accused persons who were shown absconding in the final report, despite series of efforts taken by them. When those persons will be arrested, they shall be tried in accordance with law.
8. The counsel appearing for the appellants have contended that the finding of conviction is unsustainable in law as the trial court has inappropriately read the evidence causing serious prejudice. The appellants were in custody during investigation and the trial. But nothing has been recovered from the appellants.
9. PW-6, according to the counsel for the appellants has given the day and time of occurrence as 25.09.2012 at 2 a.m. [late hour of night]. PW-6 has further stated that the appellant namely Md. Abdul Kayesh and Md. Sab Uddin assaulted him and he had reported to Dharmanagar Hospital at about 9.30/10 a.m. for treatment meaning after about 7 to 8 hours of the alleged occurrence. The trial court has inappropriately relied on the improved versions of the witnesses who Page 5 of 23 were present at the time of the alleged occurrence. The counsel for the appellants have further stated that the stolen articles those were seized were not identified by any witness to show that those articles belong to the complainant or her family. Even the Test Identification Parade (TI Parade, in short) as carried out at the instance of the police was visited by serious irregularity and as such, the fact of identity as established through the TI Parade cannot be relied as legal evidence. That apart, there is mutually destructive evidence. PW-7, for example, has stated in the trial that all the inmates were locked up in one room whereas PW-2 has stated that the inmates were locked up in two rooms. In respect of theft of auto-rickshaw which were used for their escape, one of the appellants namely Md. Abdul Kayesh has stated during his examination under Section 313 of the Cr.P.C., no incriminating material was recovered from the said Auto-rickshaw bearing No.TR02A 2125 and for committing theft of the Auto-rickshaw, he suffered the conviction. It has been contended with sufficient emphasis, that a statement of the co- accused namely Saleem Ahmed during his examination under Section 313 of the Cr.P.C. has been relied not only against that accused person but also against the other accused persons who were facing the charge in the same trial. For this purpose, the following passage from the judgment dated 01.06.2018 has been referred :
"Moreover, during the examination under section 313 of the Cr.P.C. accused Selim Ahmed admitted that at the time of dacoity he was standing outside and he also admitted that he, Shayam and Abdul Kayesh were detained by local people and police which[sic.] they went out of the seized auto and he also admitted that the looted booties were not with him and golden articles were taken by Jamal and Mustak Ahmed took cash of Rs.8,500/- and Mustak brought him to the place misleading him without disclosing their intention to commit dacoity. He also told that his original house situated at Luarmal, Sebul District Bangladesh and he came India 7/8 years back and started to live at Silchar and Mustak brought him at Dharmanagar on the pretext of delivery of articles and Mustak used him to strengthen his associates. He also told that he wanted Page 6 of 23 to become a witness but authority did not accept his proposal."
According to the counsel of the appellants, the finding of conviction is primarily based on surmise and there is no legal evidence to convict the appellants.
10. Mr. Lodh, learned counsel, in order to buttress his contention, has placed reliance on Hari Charan Kurmi and Others versus State of Bihar reported in AIR 1964 SC 1184 where the apex court has observed to enunciate the law in respect of appreciation of the confessional statement by a co-accused against the other accused. The relevant passage is extracted hereunder :
"As we have already indicated this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. in dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty : (1911) I.L.R. 38 Cal. 559 a confession can only be used to "lend assurance to other evidence against a co-accused". In re. Peryaswami Noopan : (1913) I.L.R. 54 Mad. Reilly J. observed that the provision of s. 30 goes not further than this : "where there is evidence against the co- accused sufficient, if, believed, to support his conviction, then the kind of confession described in s. 30 may be thrown into the scale as an additional reason for believing that evidence." In Bhuboni Sahu v. King :
(1949) 76 I.A. 147 the Privy Council has expressed the same view. Sir. John Beaumont who spoke for the Board observed that a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in s. 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of Page 7 of 23 all the facts proved in the case, it can be put into the scale and weighed with the other evidence." It would be noticed that as a result of the provisions contained in s.
30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence;
circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of section 30, the fact remains that it is not evidence as defined by s. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in s. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh : 1952 Cri LJ 839 where the decision of the Privy Council in Bhuboni Sahu's : (1949) 76 I.A. 147 case has been cited with approval."
[Emphasis added] Whether the statement made during the examination under Section 313 of the Cr.P.C. "is evidence" within the interpretation as provided under Section 3 of the Indian Evidence Act or not, thus falls for consideration. The apex court has restated the law in State of M.P. versus Ramesh and Another reported in (2011) AIR SCW 1956 in the context of whether such statement can be used by the defence as legal evidence, the apex court has observed as follows :
"27. The cumulative effect of reading the provisions of Article 20(3) of the Constitution with Sections 161(2); 313(3); and proviso (b) to Section 315 Cr.P.C. remains that in India, law provides for the rule against adverse inference from silence of the accused.
28. Statement of the accused made under Section 313 Cr.P.C. can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross- examined, his statement so recorded under Section 313 Cr.P.C. cannot be treated to be evidence within the meaning of Section 3 of the Evidence Act, 1872. Section 315 Cr.P.C. enables an accused to give evidence on his own behalf to disprove the charges made against him. However, for such a course, the accused has to offer in writing to give his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be cross-examined on behalf of the prosecution and/or of the accomplice, if it is so required Tukaram G. Gaokar v. R.N. Shukla & Ors. : AIR 1968 SC Page 8 of 23 1050 and Dehal Singh v. State of Himachal Pradesh :
(2010) 9 SCC 85. In such fact-situation, the accused being a competent witness, can depose in his defence and his evidence can be considered and relied upon while deciding the case."
The law has been restated in the same manner in Dehal Singh versus State of Himachal Pradesh reported in 2010 AIR SCW 5533, as relied by Mr. Lodh, learned counsel.
11. Mr. A. Nandi, learned counsel appearing for the petitioner in Crl.A.(J) No.28 of 2018 has also relied another decision of the apex court in Surinder Kumar Khanna versus Intelligence Officer Directorate of Revenue Intelligence [judgment dated 31.07.2018 delivered in Crl.A.No.949 of 2018] where having relied Kashmira Singh(supra) the apex court had occasion to observe, in response to the question that how far and what way the confession of an accused person can be used against a co-accused, as under :
"Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. The King "It does not indeed come within the definition of" 'evidence' contained in section 3 of the Evidence Act., It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross- examination." Their Lordships also point out that it is "obviously evidence of a very weak type......... It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities."
They stated in addition that such a confession cannot be made tile foundation of a conviction and can only be used in "support of other evidence." In view of these remarks it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the judge refuses to believe him except in so far as he is corroborated ?
(1952) SCR 526 (1949) 76 Indian Appeal 147 at 155 In our opinion, the matter was put succinctly by Sir 'Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty9 where he said that such a confession can Page 9 of 23 only be used to "lend assurance to other evidence against a co-accused "or, to put it in another way, as Reilly J. did in In re Periyaswami Moopan "the provision goes no further than this--where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession de- scribed in section 30 may be thrown into the scale as an additional reason for believing that evidence."
[excerpted from Kashmira Singh(supra)] Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."
12. The law laid down in Kashmira Singh (supra) was approved by a Constitution Bench of this Court in Hari Charan Kurmi and Jogia Hajam v. State of Bihar 11 wherein it was observed:
"As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, [1911] I.L.R. 38 CAl. 559 at 588 [1931] I.L.R. 54 Mad. 75 at 77.
(1964) 6 SCR 623 at 631-633 the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty a confession can only be used to "lend assurance to other evidence against a co-accused". In re Periyaswami Moopan Reilly. J., observed that the provision of Section 30 goes not further than this: "where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence". In Bhuboni Sahu v. King the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that "a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence"
contained in Section 3 of the Evidence Act. It is not Page 10 of 23 required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved the case; it can be put into the scale and weighed with the other evidence". It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh where the decision of the Privy Council in Bhuboni Sahu case has been cited with approval."
[Emphasis added]
12. Mr. S. Debnath, learned Addl. P.P. appearing for the state has in order to repel the submission of the counsel for the appellants has submitted that even though identification in the TI Parade is not a substantive piece of evidence, but when the identification later on is made in the trial by the witnesses of the TI Parade, such identification cannot be questioned unless by the alternative evidence it is shown that those witnesses had intention to falsely implicate the accused. Mr. Debnath, learned Addl. P.P. has further contended that the submission that has been made that the trial Judge has convicted the appellants based on the incriminating statement [somewhere, is referred as the confessional statement] made by a co-accused is not proper appreciation of the evidence, inasmuch as it is evident from the part, Page 11 of 23 that has been reproduced from the judgment dated 01.06.2018, that having appreciated the evidence the said observation has been made by the trial Judge without relying the said incriminating statement made by the co-accused as the substantive evidence and hence, the conviction of the appellant does not suffer from any infirmity.
13. Mr. Debnath, learned Addl. P.P. has finally stated that so far the fact of identification of the stolen articles is concerned, it has not been projected whether the stolen articles were seized. No stolen articles were seized [see the seizure lists] [Exbts.3 and 11] and those were seized and identified by the witnesses are not stolen articles. In respect of identification of the accused, Mr. Debnath, learned Addl. P.P. has submitted that PW-2 [Barun Kanti Nath], PW-3 [Barnali Nath], PW- 6 [Tarun Kumar Nath] identified the appellants Sab Uddin, Saleem Ahmed and Abdul Kayesh. The appellant namely Abdul Malik could not be identified by the witnesses of the TI Parade. Even in the judgment, it has been observed that the appellant namely Abdul Malik could not be identified by those witnesses. But PW-3 identified the said appellant, for the first time in the trial. Thus, Mr. Debnath, learned Addl. P.P. has contended that on appreciation of the evidence by the scale, the prosecution has succeeded to substantiate the charge under Section 395 read with Section 34 of the IPC. Hence, no interference is called for.
14. It appears from the complaint [Exbt.1] that the complainant, Anjali Nath [PW-1] was the eye witness of dacoity committed by "7-8 unknown men" who entered their dwelling house by breaking open the bolt. They tied the inmates by gamcha (towel) and took away cash of Rs.25,000/-, gold ornaments valued about 1.5 lakhs, five mobile phones of different make. Those unknown persons had dao, Page 12 of 23 stick, kirich and country made gun with them. They assaulted the complainant's nephews namely Binoy Kumar Nath and Tarun Kumar Nath [PW-6]. Binoy Kumar Nath has not been examined in the trial. The police after arrest of the appellants held TI Parade by the witnesses namely Anjali Nath [PW-1], Barun Kanti Nath [PW-2], Barnali Nath [PW- 3] and Binoy Kumar Nath. The details of the TI Parade is recorded in the memoranda by the Sub Divisional Judicial Magistrate, Dharmanagar but the said Magistrate has not been examined in the trial. By the seizure list [Exbts.3] a broken torch light which was left by the dacoits and two gamchas [towels] by which the inmates were tied up by the dacoits were seized. Barun Kanti Nath [PW-2] and one Sudhangshu Pal [PW-8] were witnesses to the seizure.
15. In these appeals, the principal objections as raised are (i) whether the identification of the offenders has been established by sustainable evidence? (ii) whether there is any legal evidence to return the finding of conviction against the appellants? and (iii) whether the conviction has been solely based on the statement made by one of the co-accused namely Saleem Ahmed ?
16. For purpose of appreciation of those objections it would be apposite to revisit the evidence recorded in the trial in a meaningful manner.
17. PW-1, Anjali Nath testified that in the intervening night of 24.09.2012 and 25.09.2012 at about 2.10 a.m. when she was asleep with her family members, she suddenly woke up registering barking of her pet dog. The other family members namely Binoy Kumar Nath [not examined in the trial], Barun Kanti Nath [PW-2], Barnali Nath [PW-3] and Tarun Kanti Nath [PW-6] woke up as well. They peeped outside through a hole in the window and noticed seven to eight persons were Page 13 of 23 approaching their hut. Immediately thereafter, those persons broke open their front door, entered inside their building and put on the lights. They were armed with dao, kirich [a short rod with one end pointed and sharpened] and one country made gun. They tied their hands by gamcha [seized during investigation]. They confined them in a room and compelled them to provide the key of steel almirahs putting them under fear. By breaking open the almirahs, they took away cash of Rs.25,000/- and golden ornaments valued at Rs.1.5 lakhs. PW-1 has given the description of the golden ornaments. Not only golden ornaments, they took away five mobile phones from their room. PW-1 has also given the brand name or the name of the manufacturer of the mobile phones. Those persons also took away three ATM cards, [two ATM cards of AXIS Bank and the other of SBI] and one camera. PW-1 has further stated that those unknown persons brutally hurt Binoy Kumar Nath and Tarun Kumar Nath. Thereafter, she made an important statement that "their faces were uncovered and accordingly their faces could be recognized by me. Before they left their room they had threatened us that within next half an hour we should not go out." When they left the house they came out and raised alarm. A mobile police van was nearby and they came to their house. But they did not take any action. On the following day, she lodged the complaint in the police station. The complaint was drafted by her nephew Barun Kanti Nath as per her dictation. She identified her signature on the complaint [Exbt.1]. She has stated that she was called to identify the persons in the jail premises and she was able to identify three persons there. But in the trial, she could identify two persons in the dock. They are Abdul Kayesh and Saleem Ahmed whom she also identified in the TI Parade. She also identified her signature over the memorandum of TI Parade. Page 14 of 23 She has stated that PW-2, her nephew could identify the mobile phones when those were recovered by the police but those were not produced in the trial. One Auto-rickshaw were detained by the police. From there, she heard that those mobile phones and jewelleries were recovered. One country made gun was also recovered from the said auto-rickshaw. She made the following statement thereafter :
"Thereafter Abu Awal did not return our golden ornaments. I did not know whether the golden ornaments were seized in that case or not. I did not believe that my jewelleries were actually recovered by police and those jewelleris were not produced in this case. Braja Gopal Nath , one of my relatives chased that auto."
Braja Gopal Nath, as it appears from the records, was not examined in the trial. In respect of hurt received by Binoy and Tarun Kumar Nath, even though she has stated in the cross- examination that she made the said statement in the complaint but she admitted on being shown no such statement is available in the complaint. As regards the TI Parade, it was suggested that she identified the accused persons in the said parade being shown by the police previously in the police station but she denied the suggestion.
18. PW-2, Barun Kanti Nath has replicated the statement of PW- 1 but he has added that on hearing their alarm, their neighbours namely Dulal Paul [PW-5], Tapash Nama [PW-4], Sudhangshu Pal [PW- 8] and Narayan Nath [not examined in the trial] came to their place and the police came after 45 minutes seeing the people rushing towards their house. He has also stated that after they recovered from the shock, PW-1 lodged the complaint as the guardian of their family. He is the witness of seizure of one torch light left by the dacoits and two torn pieces of gamcha. He identified his signature in the seizure list [Exbt.3] and identified those material objects [M.O.-I]. Those material objects Page 15 of 23 were vividly marked in the trial. He has also stated that he identified three persons in the TI Parade but in the trial he identified only Abdul Kayesh and Saleem Ahmed. The other accused could not be identified by him. He identified his signatures on the memorandum of TI Parade. Those memoranda have been admitted as Exbts.3, 4, 5 and 6. He has also stated that he did not get back his mobiles. He has also narrated about ATM cards those were taken away by the dacoits. In the cross- examination, he has reiterated that the faces of the dacoits were not covered at all. He has denied the suggestion made from the defence that prior to the TI Parade, the police identified the accused persons to him.
19. PW-3, Barnali Nath replicated the statement made by PW-1, who is her aunt. She has stated that even the golden ornaments in the wearing of her, her aunt, mother and brothers were taken by the dacoits. But she has not corroborated that by opening the almirah the dacoits took away golden ornaments. But PW-2 had corroborated that statement of PW-1. In the TI Parade, she had identified Abdul Kayesh, Sab Uddin and Saleem Ahmed. She has also stated in the trial that she could identify the other accused who was present in the trial during recording her deposition. She has identified Abdul Malik [the appellant of Crl.A.(J)28 of 2018] but she had failed to identify him in the TI Parade. She identified her signatures on the memorandum of TI Parade. In the cross-examination she has stated as follows:
"It is true that after the accused persons were arrested I went to the police station along with my aunt."
Thereafter, she volunteered in the cross-examination that at that time, the accused persons were covered with clothes, but she denied the suggestion that in the police station the police allowed her to Page 16 of 23 see faces of the accused persons. She has also denied the suggestion that on being shown by the police she could identify the accused persons in the jail premises in the course of TI Parade.
20. PW-4, Tapash Nama who appeared in the wake of dacoity in the house of PW-1 has stated that he found the latch of the door broken. He heard that the dacoits had taken away golden ornaments and a cash of Rs.25,000/-. He even heard that Binoy and Tarun Kumar Nath were assaulted by the dacoits.
21. PW-5, Dulal Pal followed the suit of PW-4.
22. PW-6, Tarun Kumar Nath one of the inmates has replicated the statement of PW-1 and thereafter added that he was hurt by the dacoits. He was dealt with a blow by a rod. Even Binoy Kumar Nath was hurt by the same way. From that place, the dacoits took them to that room where the other inmates were pushed to. He has stated that by taking the keys they opened the almirah and scattered the articles and took away all the golden ornaments belonging to his mother, sister and aunt [PW-1]. They had also took away the finger ring of Binoy Kumar Nath. He has corroborated the statement of PW-1 in respect of taking away of the mobile phones and ATM cards. He has supported even taking away of the cash of Rs.25,000-26,000/- from the almirah. He has stated that they managed to untie them after the dacoits left, but they did not make any attempt to chase them. They raised the alarm out of fear and the local people rushed in. In the morning the police came. They noted something in the diary and left. His aunt [PW-1] lodged the complaint which was drafted by his brother, Barun Kanti Nath [PW-2]. In the trial, he identified two accused namely Abdul Kayesh and Saleem Ahmed as the person who participated in the said dacoity. He has made the following statement also : Page 17 of 23
"I could recollect the face Saleem as he approached me two three times for keys. I could identify Abdul Kayesh as his face remains as it is."
In the cross-examination, he has stated that he also intimated the police that he was assaulted. He had denied the suggestion that two accused persons as identified by him in the trial did not enter into their house for committing dacoity.
23. PW-7, Debananda Tripura, a Sub-Inspector of Police from Kadamtala PS had seized the auto-rickshaw on preparing seizure list [Exbt.10] and he had sent the supplementary case diary in that regard to Dharmanagar P.S. The seizure was caused in connection with Kadamtala PS GDE No.1012 dated 25.09.2012. In the cross- examination he has stated that he received the requisition from the Dharmanagar PS in respect of auto-rickshaw of Abdul Malik bearing No.TR02 4368 in connection with Dharmanagar PS Case No.164/2012 dated 25.09.2012. The said auto-rickshaw was seized from the courtyard of one Ashab Choudhury. He has stated in the cross examination that Abdul Malik [the accused] and Ashab Chowdhury are two different persons. He has categorically stated that he did not seize any documents regarding ownership of the auto-rickshaw.
24. PW-8, Sudhangshu Pal a witness from the neighbourhood has stated that he went to the house of PW-1 at about 9/10 a.m. on receiving the information that the dacoity had taken place in the house of PW-1. He saw the broken door, the articles of the hut lying scattered and their three almirah were all broken. When he had visited, there were many persons from their locality. But he did not enquire whether the inmates could identify the dacoits or not. He is the witness to the seizure vide Exbt.3. But in the cross-examination he has stated that the police did not shown him the torch light and the torn pieces of gamcha. Page 18 of 23
25. PW-9, Shibendra Chandra Nath has testified that seizure of auto-rickshaw bearing No.TR02A 2125 was made in his presence and that auto-rickshaw belonged to him. That was stolen by unknown miscreants. Inside the auto-rickshaw, there were bottle of liquor, pistol, pipe gun, some bullets of gun, rain coat, camera and other articles which he could not recollect. PW-9 had himself searched out the auto- rickshaw. When he noticed his auto-rickshaw, he cried out and the passengers jumping out of the auto fled towards the vacant field. Having registered his alarm, the neighbouring people came out and managed to apprehend three persons. One of the persons was known as Abdul Kayesh. But he could not recollect the name of the others. He had failed to identify any of those persons in the trial.
26. PW-10, Abu Awal, one Sub-Inspector of Police has stated that one Uttam Debnath reported on 25.09.2012 at about 4.30 a.m. that one auto-rickshaw bearing No.TR02A 2125 had been stolen by some unknown miscreants. Almost about the same time, he received a call about theft of the said auto-rickshaw. The said auto-rickshaw was being searched in connection with Dharmanagar PS Case No.163/2012 under Section 380 of the IPC. He had entered the information in the GD and then went out for detection of the auto-rickshaw. He received a call from PW-9 and he appeared at the place where the auto-rickshaw was detained. He had seized the same. He has admitted that on search in the auto-rickshaw, he found one pistol, pipe gun, fifteen cartridges and other five cartridges, four torch light, one liquor bottle, one rain coat, one lungi and one blue coloured shirt, but no ornaments, mobiles, camera or cash. PW-10 seized those articles and the auto-rickshaw on preparing the seizure list [Exbt.11] in presence of the witnesses. He Page 19 of 23 identified those articles in the trial. But he did not state anything about arrest of three persons, what PW-9 has claimed in the trial.
27. PW-11, Partha Chakraborty who is a Sub-Inspector of police has investigated Dharmanagar PS Case No.164/2012 regarding the offence of dacoity. He has stated that he had visited the place of occurrence. At the place of occurrence he examined nine witnesses including the informant. He had sent for requisition for police dog squad and they came and conducted search. One broken torch light and two pieces of gamcha were seized on preparing the seizure list [Exbt.3]. He identified the seized articles in the trial marked as [Exbt.MO-II/a]. He identified the broken charger torch light [Exbt.MO-I]. He has stated that at about 11 a.m. he had received the information in respect of detention of auto-rickshaw by the people of Bhagan area. Choraibari PS at about 12.30 p.m., in the afternoon, produced four persons namely Sab Uddin alias Shyam, Saleem Ahmed, Abdul Kayesh and one Abdul Malik. The Choraibari police produced some seized materials as seized by them from the auto-rickshaw which included one Kodak Camera etc. He identified those materials in the trial. Further, he testified that the TI Parade was held for identification of the accused persons by the informant [PW-1], Barnali Nath [PW-3], Tarun Kumar Nath [PW-6], Barun Kanti Nath [PW-2] and Binoy Kumar Nath. Out of the four accused persons the witnesses identified three accused persons namely Sab Uddin, Saleem Ahmed and Abdul Kayesh. But Abdul Malik was not identified by anyone. He has admitted that he did not arrange for treatment of the witnesses. According to him, he added Section 25(a)(b) of the Arms Act and Section 6 of the IPP Act in respect of entry into India. But during the investigation it did not reveal that Saleem Ahmed was a Bangladeshi citizen who entered into India. Finally, he Page 20 of 23 filed the charge-sheet against Mustaq Ali, Jamal Uddin, Abdul Kayesh, Saleem Ahmed, Sab Uddin and Jamir Uddin. Only the appellants and Saleem Ahmed [the convict] could be arrested. He had sent those arms and ammunition for examination by the State Forensic Science Laboratory (SFSL). He identified the seized arms and ammunitions. In the TI Parade held on 28.09.2012 at 9 a.m. in the corridor of Dharmanagar sub-jail, PW-1 identified Sab Uddin alias Shyam in presence of the witnesses. The accused were mixed with the persons of the same height and complexion and wearing different clothes. The persons who were arranged for the TI Parade had been named in the report. PW-1 in the same parade identified Saleem Ahmed and Abdul Kayesh. The Sub Divisional Judicial Magistrate attested the memoranda of parade. No question has been raised in respect of admissibility of those memoranda, which are otherwise admissible.
28. PW-3, Barnali Nath in the parade held at the same time and in the same place, identified in presence of the witnesses Sab Uddin alias Shyam, Saleem Ahmed and Abdul Kayesh.
29. PW-2, Barun Kanti Nath identified Sab Uddin, Saleem Ahmed but he could not identify Abdul Kayesh. It appears that the other witness failed to identify anyone. No objection has been raised in respect of procedural illegality and impropriety in holding the TI Parade in the trial.
30. PWs-1 and 3 identified Sab Uddin, Saleem Ahmed and Abdul Kayesh in the trial. PW-2 identified Abdul Kayesh and Saleem Ahmed and no other accused person. The plea raised by the defence that beforehand, the police allowed the witnesses to identify the accused persons by their aid cannot be sustained appraising the outcome of TI Parade.
Page 21 of 23
31. True it is that PW-3 has stated that after arrest of four accused persons they visited the police station, but she with equal emphasis and in the same breath has stated that the accused persons' body was covered by cloth. Thus, the objection related to identification of the accused persons beforehand cannot be accepted. Moreover, the evidence of identification during TI Parade is not substantive one, the identification in the court constitutes substantive evidence. But TI Parade is an available option for the investigating agency to get tested whether they were proceeding in the right direction in the investigation or not. The object of TI Parade is to satisfy the investigating agency that a certain person, not previously known to the witnesses, was involved in the commission of a crime or a particular property was related to the crime. Further, its purpose is to furnish evidence. It ensures the investigating agency to ascertain whether really the witnesses had seen the accused at the time of occurrence or not.
32. PWs-1, 2 and 3 have identified the accused persons whom they had identified during the TI Parade in the trial. However, PW-3, Barnali Nath, identified the other accused and that accused was Abdul Malik whom she failed to identify in TI Parade. Thus, the question that emerges is that whether the identification by PWs-1, 2 and 3 in respect of Abdul Kayesh, Sab Uddin and Saleem Ahmed can be accepted? There cannot be any dilemma that answer must be in the affirmative. But identification of Abdul Malik cannot be accepted by this court though PW-3 had identified Abdul Malik in the trial. She had failed to identify him in the TI Parade [see the memorandum of Parade in respect of PW- 3]. Thus, the identification of Abdul Malik cannot be accepted as a serious doubt emerges in respect of identification of Abdul Malik [the appellant of Crl.A.(J)28 of 2018]. The witnesses, particularly the Page 22 of 23 inmate-witnesses have corroborated each others' statement so consistently. This court does not find any difficulty in accepting their evidence as regards the commission of dacoity, though there appeared some minor discrepancies in the statements made by the inmate- witnesses, but those did not touch the substratum of the prosecution case.
33. So far the objection as raised on use of the [confessional] statement of one of the accused namely Saleem Ahmed, again this court is unable to accept that contention inasmuch as the trial Judge has relied that [confessional] statement of Saleem Ahmed made under Section 313 of the Cr.P.C. as assurance to his finding, but the finding is not structured on the said confessional statement as reproduced above. Law is well laid that solely on the basis of the confessional statement of a co-accused, the other accused cannot be convicted.
34. So far the objection as regards the identification of the stolen articles is concerned, this objection is entirely irrelevant inasmuch as those were at first place, not recovered, at least there is no such record. Therefore, this objection is without any substance.
35. Having appreciated the evidence, we are satisfied that conviction against Md. Abdul Kayesh and Sab Uddin alias Shyam has correctly been returned and as such, no interference is called for so their conviction is concerned. But identification of Abdul Malik cannot be accepted by us inasmuch as PW-3 failed to identify Abdul Malik in the TI Parade held within the shortest possible time from the time of occurrence. After about eight years when her deposition was recorded, she could identify Abdul Malik in the trial. Such identification being visited by improbability cannot be the basis for convicting Abdul Malik. Page 23 of 23
36. As consequence thereof, we are persuaded to interfere with the conviction of Abdul Malik [the appellant of Crl.A.(J)No.28 of 2018] as returned by the judgment dated 01.06.2018 in Case No.ST/T- 1/27/2017. Accordingly, the judgment and order of conviction and sentence dated 01.06.2018 against Abdul Malik are set aside. Abdul Malik be released forthwith, if not wanted in any other case. But the conviction and sentence returned by the said judgment and order against the appellants namely Abdul Kayesh and Sab Uddin alias Shyam stand affirmed.
In the result, the appeal being Crl.A(J)No.38 of 2018 stands dismissed whereas the appeal being Crl.A.(J)No.28 of 2018 stands allowed.
LCRs be sent down forthwith.
JUDGE CHIEF JUSTICE Sabyasachi B