Calcutta High Court (Appellete Side)
Kele @ Nijamuddin Sk. & Anr vs The State Of West Bengal on 27 September, 2016
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
Item no. 124/
Aloke
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
C.R.A.N. 3077 of 2016
in
C.R.A. 792 of 2015
KELE @ NIJAMUDDIN SK. & ANR.
Vs.
THE STATE OF WEST BENGAL
AND
C.R.A. 793 of 2015
JAHIR SK.
Vs.
THE STATE OF WEST BENGAL
For the appellants : Mr. Prabir Majumdar, Advocate
(in CRA 792 of 2015)
For the appellants : Mr. Sunirmal Nag, Advocate
(in CRA 793 of 2015)
Amicus Curiae : Mr. Ranadeb Sengupta, Advocate
For the State : Mr. Ayan Basu, Advocate
Heard on : September 27, 2016
Judgement on : September 27, 2016
Joymalya Bagchi, J. :
With the consent of the parties the appeals are taken up for hearing dispensing with the preparation of paper books.
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The appeals are directed against judgment and order dated 08.10.2015 passed by the learned Additional Sessions Judge, 5th Court, Krishnagar, Nadia in Sessions Trial No. II of November, 2014 (Sessions Case No. 26(9) of 2014) convicting the appellants for commission of offence punishable under Section 394/34 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for five years and to pay find of Rs.5,000/- each in default simple imprisonment for three months.
The prosecution case as alleged against the appellants is to the effect that on 01.06.2014 around 7 P.M. while the de facto complainant Narayan Karmakar (P.W. 8) and his son Arun Karmakar (P.W. 9) were carrying on business in their goldsmith shop, four unknown persons aged about 24 to 27 years entered the said shop with sharp cutting weapons on their hands. They pointed firearm and threatened them, thereupon Arun Karmakar moved out of the said shop and raised alarm. In the meantime the said four miscreants snatched money, gold ornaments from the said shop and fled away after hurling bombs. It is claimed that the miscreants were at the place of occurrence for 2/3 minutes and thereafter fled away and due to hurling of bombs some persons received injuries.
On the written complaint of Narayan Karmakar (P.W. 8) first information report in Nakashipara P.S. Case No. 392/14 dated 01.06.2014 under Section 394 of IPC and Section 25/27 of the Arms Act as well as 3/4 of Indian Explosive Act was registered. In course of investigation the investigating officer visited the place 3 of occurrence and prepared draft sketch map, recorded statement of witnesses and arrested the appellants. Police have made arrangement for T.I. Parade and it is claimed that P.W. 8 and 9 identified the appellants in course of such T.I. Parade. Some ornaments were also seized from the possession of the appellant Kele @ Nijamuddin Sk. Upon conclusion of investigation charge-sheet was filed in the instant case.
It is pertinent to note that near the place of occurrence an unknown dead body was recovered and an U.D. Case being No. 29/14 dated 02.06.2014 was also registered for enquiry. However, no connection was found between the said dead body and the alleged act of dacoity.
In conclusion of investigation charge-sheet was filed under Section 394/412 IPC. The case is being a sessions triable one was committed to the Court of Sessions, Nadia and transferred to the Court of Additional Sessions Judge, Nadia for trial. Charge was framed under Section 394/34 of the Indian Penal Code as well as under Section 27 Arms Act and 9(b) of Indian Explosive Act. Separate charge was framed under Section 412 of IPC against accused Najimuddin Sk. @ Kele in CRA 792 of 2015.
The appellants pleaded not guilty and claimed to be tried. 4 The prosecution examined as many as 12 witnesses. The defence of the appellants is one of innocence and false implication. It is the specific defence that they have been falsely implicated in the instant case and had been shown to P.W. 8 and 9 during police custody.
In conclusion of trial the trial Judge by impugned order convicted and sentenced the appellants as aforesaid. However, the trial Judge acquitted the appellants of the charges under Section 9(b) of the Indian Explosive Act and Section 27 of Arms Act. Appellant Najimuddin Sk. @ Kele was acquitted from the charge under Section 412 of IPC.
Mr. Majumdar and Mr. Nag, learned Advocates appearing for the appellants submit that the prosecution case suffers from various inconsistencies and/or infirmities. None of the independent witnesses apart from P.W. 8 and 9 identified the appellants. Even identification of P.W. 8 and 9 is highly doubtful. It was specifically deposed by P.W. 9 that he and his father had met the appellants in police custody and they had threatened him. It is also argued that the prosecution case with regard to the seizure of stolen articles was, in fact, disbelieved by the trial court itself. No injury was proved on the body of P.W. 8 or any other witnesses. Accordingly, they prayed for acquittal. 5
Mr. Sengupta, learned amicus curiae supported the contention of the appellants and submitted that the prosecution case has not been proved beyond reasonable doubt.
On the other hand, Mr. Basu, learned counsel for the State submitted that the there is ample evidence on record to show that the appellants had committed dacoity at the shop of P.W. 8 and the latter had identified the appellants in T.I. Parade as well as in Court. There is no infirmity in his identification of the appellants. No suggestion was put to P.W. 8 with regard to the fact that he had met the appellants in police custody prior to T.I. Parade examination. The deposition of P.W. 9 has to be taken as a whole and a single statement culled out therefrom cannot be used to discard his entire version. It is further submitted that in view of such consistent identification of the appellants by P.W. 8 and 9 the appeals are liable to be dismissed and the conviction may be upheld.
The most vital witnesses in this instant case are P.W. 8 and 9. P.W. 8 is the owner of the shop where the alleged incident of dacoity took place. He deposed that on 01.06.2014 at about 7:00 p.m. he and one Parimal Chandra Tarafder (P.W. 11) were talking inside the said shop. There was no customer in the shop and his son Arun Karmakar (P.W. 9) was moving near the shop. At that time he noticed four persons entered the shop. As he saw the miscreants he tried to go to the place where the measuring instrument was kept. 6 At that time he found that those persons entered the shop by pushing the glass- door and he noticed that they had fire arms in their hands. After entering the shop one of those persons pointed the firearm at his belly and threatened him not to shout. His son was standing in front of the door. As Parimal Chandra Tarafder (P.W 11) tried to move out from the shop, another person detained him by pointing a sword at his neck and another person started to disconnect the C.C. T.V. in the shop. When the said four persons noticed that C.C.T.V. was not running, they entered the area where he was sitting. He waved at his son to go away and his son moved out of the place and raised alarm. When he waved at his son to go away from that place, the miscreant pointed his firearm on the left side of his forehead. Thereafter those miscreants took gold ornaments from the show- case and put them into a bag. When the ornaments were taken and put inside the bag, he heard sound of bursting of bomb and 6/7 bombs were hurled outside his shop. He came out of the shop. There was a grocery shop as well as a clothing shop near to his shop and when he went up to the said shop the accused persons hurled a bomb towards him. He found black smoke around the place and raised alarm. He found that the said persons got into a vehicle and fled away after hurling bombs. Thereafter he returned to his shop and found the ornaments which were lying hither and thither. He noticed that local people had assembled. He found 4/5 police personnel enter into his shop and he was told that blood was oozing out from his face. He was then taken to Hospital. After returning from Hospital he lodged FIR at the Police Station and his brother-in-law namely Sailen Karmakar wrote the said FIR as per his instruction. He put his signature thereon 7 (Ext. 5). Police seized splinters of bombs and other articles. He signed on the seizure list. He appeared at the T.I. Parade and he identified the appellants at the correctional home in presence of a Magistrate. In cross-examination, he denied that he had any talk with the police since the dacoity till the date of holding of T.I. Parade. Police had taken him to the Hospital but he could not recollect whether Sailen Karmakar accompanied him at that time or not. He showed Close Circuit T.V. inside his shop to the police. He has not maintained any document regarding the gold ornaments which were kept in his shop for sale. He has not handed over police any bill or voucher or any document in connection with the gold ornaments in his shop.
P.W. 9, Arun Karmakar is the son of the owner of the goldsmith shop. He deposed that on 01.06.2014 at about 7.00/7.10 p.m. he was standing outside the goldsmith shop. At that time four persons having bag on their shoulder entered their shop by pushing the glass-door. His father was inside the counter of the shop and another person was outside the counter at that time. One of the miscreants pointed a revolver towards his father and when he tried to enter inside the shop his father asked him to go away by waving his hand and the said person pointed his revolver towards the forehead of his father. He moved away from the place and raised alarm. Some persons who were inside the shop hurled bombs. He noticed one of the miscreants entered the counter and took away articles. Thereafter, he was unable to see due to smoke emanating from the bomb. He was dragged by local people so that he did not receive any bomb injury. 8 When the miscreants left the shop his father chased them. They hurled bomb for which his father suffered injury. Police seized splinters, stone-chips, nail under a seizure list and he put his signature (Ext. 6/1). He identified the seized articles (Mat. Ext. I). He went to the Correctional Home, Krishnagar and identified the appellants. Identification was made in presence of the Magistrate. He identified the appellants in Court. He deposed that when he appeared before the T.I. Parade one of the accused persons threatened him that he will not spare him after his release from the Correctional Home. In cross-examination, he said that he went to their shop after the incident with his father. After lodging the FIR he and his father returned to the house. On the same night they again met with the police at about 12.00/12.30 a.m. Police officer went to their house and shop at the night. They were standing in front of their shop when the police collected splinter of bombs. After collecting the articles, seizure list was prepared and he put his signature. He had not lodged any written complaint with regard to threat given to him by one of accused persons during T.I. Parade. The accused persons threatened him at Bethuadahari police lock-up. At that time his father was also with him.
The other person who is claimed to have been present in the shop at the time of dacoity is Parimal Ch. Tarafder (P.W.11). He deposed that on 01.06.2014 a dacoity took place in the shop of Narayan Babu. He was sitting in the goldsmith shop. At that time three persons entered into the shop and one person pointed a firearm towards Narayan Babu and when he tried to stand one person pointed a 'dao' on his head and asked him to sit. Persons committed dacoity and took away 9 the articles from the shop. He could identify the person who pointed a 'dao' on his head. After dacoity the said persons fled away after hurling bombs. He did not know whether any dead body was recovered on the next morning. He did not identify the appellants as the miscreants in Court.
P.W. 7 is an employee of the "Alankar Bhaban" of P.W. 8. He deposed that on the fateful day at about 6.45/7.00 p.m. he heard hue and cry. He was inside the said shop. On hearing the sound of bursting of bombs and hearing people shout 'dakat dakat', he went inside and found dacoity had taken place. He found his employer Narayan Chandra Karmakar with blood on his face. He had not seen who hurled bombs and failed to identify the persons.
P.W. 12 is the investigating officer in the instant case. He investigated the case, visited the P.O., examined the available witnesses and arrested the appellants. He conducted T.I. Parade and thereafter he recovered allegedly stolen articles from the possession of appellant Kele @ Nijamuddin Sk. He identified the seized articles being Mat. Ext. 1. He made over the investigation on 17.07.2014.
P.W. 14 concluded the investigation and filed charge-sheet in the instant case.
P.W. 13 is the Judicial Magistrate who held the T.I. Parade wherein P.W.8 and 9 identified the appellants.
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From the evidence on record, it appears that apart from P.W. 8 and 9 none of the witnesses have identified the appellants as the miscreants who committed dacoity at the said shop of P.W. 8 on 01.06.2014 between 7.00-7-10 p.m. However, P.W. 8 and 9 have identified the appellants both in T.I. Parade and in Court. It is trite law that if identification of an accused by a sole witness is reliable, the same may the basis for conviction of the said accused in a case of dacoity.
Hence, the issue which falls for decision whether the identification of the appellants by P.W. 8 and 9 is reliable in the instant case.
It has strongly argued before me that in view of the evidence of P.W. 9 that he along with his father had met the appellants at the police lock-up at Bethuadahari where they had been threatened by latter, the identification of the appellants by the said witnesses both in T.I. Parade as well as in Court lose significance.
Learned counsel for the appellants argued that such piece of evidence elicited from the mouth of the prosecution witness during cross-examination deals a fatal blow to the prosecution case.
On the other hand, it was submitted on behalf of the State that the aforesaid statement of P.W. 9 cannot be read in isolation and cannot sully the 11 unassailable version of P.W. 8 as to identification of the appellants. It was also submitted that P.W. 13 did not depose that appellants had claimed that they did not shown to the witnesses during the T.I. Parade.
In the instant case P.W. 9 has admitted in cross-examination that he along with his father had met the appellants in police custody at Bethuadahari police lock-up where they had been threatened by the said appellants. The trial Judge also has not disbelieved this version of P.W. 9 but had come to a conclusion of guilt against the appellants on the ground that the appellants had threatened the witnesses. I am unable to accept such reasoning of the learned trial Judge. Threats may be held out by an accused for various reasons but it cannot by itself lead to an inference of commission of a crime for which he has been suspected and arrested. On the other hand, the aforesaid piece of evidence which is not otherwise discredited clearly gives rise to an irresistible impression that the witnesses had the occasion of seeing the appellants in police custody at Bethuadahari. This version coming from the mouth of one of the most vital witnesses (P.W.9) has not been clarified by the prosecution by recall of the said witness. It is for the prosecution to prove its case beyond reasonable doubt. Any reliable hypothesis militating against the guilt of the accused persons by the prosecution version doubtful would naturally enure to their benefit. If the evidence of prosecution witnesses taken as a whole give rise to a reasonable and probable doubt as to the factum of identification of the appellants in a case of dacoity, naturally, the benefit would accrue in favour of the defence. Evidence of 12 P.W. 8 and 9 cannot be seen in isolation and when the evidence of both the witnesses are read as a whole it would appear that the witnesses had gone to the police station together for lodging first information report and were also present with the police even at the time of seizure of the splinters of bomb mid-night. The appellants had been arrested soon thereafter on that night itself and, therefore, it is most probable as transpiring from the version of P.W. 9 that they had gone to the Police Station and saw the said appellants in police lock-up whereupon the appellants threatened them. The meeting of the appellants at the Police lock-up with the said witnesses on the night of their arrest therefore, cannot be said to be a fitment of imagination on the part of the defence but is a viable and plausible hypothesis which sounds a death knell to the reliability of identification of the appellant by the said witnesses in T.I. Parade and during trial.
Accordingly, I am of the opinion that the appellants are entitled to the benefit of the doubt and are acquitted from the charges levelled against them. The appellants shall be forthwith released from custody if they are not wanted in any other case.
The appeals are allowed accordingly.
The application being CRAN 3077 of 2016 is disposed of.
13Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.
I record my appreciation for the able assistance rendered by Mr. Sengupta as amicus curiae in disposing of the appeal.
(Joymalya Bagchi, J.)