Abdul Rashid & Anr. vs State of West Bengal & Ors.

Rajarshi Bharadwaj, J.

This appeal arose out of a judgement and order dated 30th March, 2009 passed by the learned Additional Sessions Judge, Sealdah, South 24-Parganas

in Sessions Trial no. 5(2)07 convicting the appellants for commission of offence punishable under Section 392 of the Indian Penal Code and sentencing

them to suffer rigorous imprisonment for 5 years each and to pay a fine of Rs. 5,000/- each; in default to suffer simple imprisonment for one month

each.

The prosecution case in brief is that on 26th September, 2006 one Shyamlal Agarwal lodged a complaint before Beniapukur Police Station alleging that

he went to his oil mill situated at 13, Tiljala Lane from his house by a scooter at about 11.15 a.m. and after remaining there about 15/20 minutes, he

left the place around 11.30 a.m. collecting Rs. 2,03,300/- in cash kept in two brown coloured paper packets which contained the stamp of his company

namely “Sri Shyam Enterpriseâ€. Rs. 1,50,000/- was in one packet (3 bundles of Rs. 500/- denomination) and Rs. 53,300/- (4 bundles of Rs. 100/-,

2 bundles of Rs. 50/-, 1 bundle of 66 pieces of Rs. 50/- denomination) was in another packet, which were kept inside the dickey of his scooter and

then left his oil mill and proceeded towards Posta office through Mayfair Road, Amir Ali Avenue and so on. While he entered Amir Ali Avenue, he

took left turn and found three persons riding in a motor bike trying to obstruct him. One of the riders asked him to stop otherwise they would fire. The

de facto complainant then took right turn and entered Dilkusha Street and then towards Exhibition Road and thereafter, went to Kimber Street and

after crossing Park Street, he entered Orient Row.

There was traffic jam and he rode on the footpath but the footpath was closed due to fall of a tree and the miscreants came very close to him and

then he left his scooter and ran away. One of the miscreants threatened to fire at him and the other told that the money was in the scooter and third

miscreant took the money and went away. In the meantime, he crossed the other side of the road and found one man taking the money from the

dickey of the scooter and another man was standing with a revolver and the third man was standing by the side of the bike. When the third man was

trying to flee away with the motorcycle, he caught hold of him and as a result, both of them fell down on the road and the motorcycle also fell down.

There was a scuffling between them and the victim gave him two blows on his face, but failed to keep him in his grip. The third miscreant fled away

towards same direction leaving behind the motorcycle. Two miscreants when fled away on seeing him took away the entire money. Local people

chased them but in vain. Later on police arrived there, examined him and recorded his statement. They took charge of the motorcycle, which

contained several scratch marks.

On the basis of the said complaint, a criminal case, being Beniapukur Police Station Case No. 200 of 2007 under Section 392/397 of the Indian Penal

Code read with 25(1B)(a)/27 of the Arms Act was started against three accused persons and after investigation, charge sheet was submitted against

two accused persons, namely Abdul Rashid and Md. Osman, who pleaded not guilty and claimed to be tried.

Mr. Milan Mukherjee, learned Senior Advocate appearing on behalf of the appellants pointed out two issues that the learned Judge failed to prove as

to whether the cash alleged to have been robbed by the appellants was at all collected from the oil mill by the victim and the cash book being the

document, which was written neither in English nor in Bengali, was not deciphered by the Investigating Officer, who took the help of a Constable to

read its contents, but the said constable was never examined as witness. Thus, the prosecution failed to prove as to whether the victim was actually

robbed of Rs.2,03,300/-. He further submitted that the victim identified only two accused persons, namely Abdul Rashid and Md. Osman in Test

Identification Parade, which took place after a long time of the alleged incident. The learned Magistrate did not take any precaution as provided under

the law in the case of Test Identification Parade and as such the Test Identification Parade was not free from ambiguity. He also submitted that the

charges were framed against two accused persons, whereas from the First Information Report and in the charge sheet, it appears that three accused

persons had robbed the victim.

He further submitted that the victim alleged in the complaint that Md. Osman broke the dickey of the scooter, but the offending vehicle was not seized,

another accused person was driving the motorcycle, which was seized and the third person was unidentified by the police. But from the complaint and

depositions it appears that there was an unidentified person, who was holding the revolver, which was disbelieved by the Court while framing charges

and passing the judgement. Lastly, he submitted that the learned Judge failed to take into consideration that in order to constitute an offence under

Section 392 of the Indian Penal Code, there must have some extortion or theft, but in the instant case, there was no such money as alleged which was

recovered from the possession of the appellants. Thus, he prayed for acquittal of the appellants, who were not identified by P.W.6, the independent

witness, but only by P.W.3 the victim, who had no credential as Rs. 2,03,300/- in the dickey of the scooter was not proved.

On the other hand, Mr. Ranabir Roy Chowdhury, learned advocate for the State submitted that the motorcycle was seized by the police. P.W.6 and

P.W.3 categorically stated that there was snatching and the accused ran away from the spot. He further submitted that the account book produced by

the victim proved the existence of money and the motorcycle and its owner identified in Test Identification Parade was a clear evidence of the

presence of the appellants in the place of occurrence. He prayed that the order of conviction and sentence dated 30th March, 2009 may be upheld and

the appeal may be dismissed.

Heard learned advocates for the parties and perused the impugned judgement. The prosecution examined 12 witnesses including the complainant as

well as the Investigating Officer of this case. P.W.1, Ganesh Chandra Garai, Sub-Inspector of Police deposed that he went to the place of occurrence

and met the Sub-Inspector of Beniapukur Police Station, who showed him the surroundings of the place of occurrence. He further stated that on being

requested by the Investigating Officer, he prepared the rough sketch map. P.W.2, Kamal Laskar, Constable deposed that he took snaps of the place

of occurrence in front of a school and one motor bike and a scooter found lying on the road.

P.W.3, Shyamlal Agarwal, the complainant in this case deposed that he had wholesale business of muster oil and on 26.9.2006 at about 11.10 a.m. he

went to his mill riding on his scooter and collected a sum of Rs.2,03,300/-, which was kept in the dickey of his scooter and proceeded through Mayfair

Road. When he entered Amir Ali Avenue, he found three persons trying to obstruct him riding a motor bike. One of them asked him to stop otherwise

they would fire. He then entered Dilkhus Street, Exhibition Road, Kimber Street and after crossing Park Street he entered Orient Row. Since there

was traffic jam and on the footpath there was obstruction of a tree, the miscreants came very close to him. He left the scooter and ran away to the

other side of the road and found one man took away the money, the other man standing with revolver and the third man was standing by the side of

the bike. He caught hold of the third man but after scuffling he also ran away. Then he informed the police and made a statement. He handed over his

account book etc. to the police. He identified the accused Md. Osman stating that he took the money from the dickey and the accused Abdul Rashid

stating that he caught hold of him along with the bike. He also stated that he identified both the accused in Test Identification Parades in the

correctional home.

P.W.4, Irshad Alam and P.W.5, Md. Jahangir were the seizure witnesses in this case. P.W.6, Abdul Rashid, was the seizure witness of motorcycle.

He claimed himself to be an eyewitness to the assault committed upon the complainant, P.W.3. P.W.7, Md. Nawsad Alam was also a seizure witness

of the wearing apparels of the complainant seized by the police. P.W.8, M.M. Mishra, Judicial Magistrate, 1st Court, Sealdah was present at the Test

Identification Parade. He stated that he had not mentioned the number of convicts and the under trial prisoners standing in a queue. He also stated

that there was no specific mention that he took all necessary precaution in holding the T.I. Parade.

P.W.9, Dr. Soumen Saha, Medical Officer deposed that he examined the complainant in the National Medical College & Hospital at Park Circus on

the date of incident. He stated that the injury was minor in nature. P.W.10, Pratap Biswas, Sub-Inspector of Beniapukur Police Station deposed that

after receiving information he went to the place of occurrence and examined the complainant and other witnesses and seized the offending motor bike

and the wearing apparels of the complainant.

P.W.11, Atanu Tarafder, Sub-Inspector of Ekbalpur Police Station conducted seizure of the documents of the motorcycle. P.W.12, Prabir Kumar

Saha, Investigating Officer, being the Sub-Inspector of Police deposed that he seized the documents in respect of the motor cycle and arrested both

the accused persons. After completion of investigation, he submitted charge sheet under Section 392/397 of the Indian Penal Code and 25(1B)(a)/27

of the Arms Act against the accused persons.

After going through the evidence on record, I find that if the alleged money collected by the victim from his oil mill was not proved, there could not be

any robbery. P.W. 3 claimed that the amount of Rs. 2,03,300/- was taken away by the appellants, on the other hand he stated to the learned

Magistrate that during T.I. Parade Rs. 13,000/- was scattered in the place of occurrence, though not a single note could be seized or recovered from

the place of occurrence. Mere presence of the motorcycle does not prove robbery. It is not evident that how the police came to the spot on the date

of incident as P.W. 1 stated that he did not make any complaint to the police, only he gave a statement to the police. The person, who was carrying

the revolver, was not identified by eyewitness P.W.6 or the victim. Even the genuineness of the documents to confirm the ownership of the scooter

was not verified by P.W.12, the Investigating Officer. There was no scuffling of the victim with the appellant, but only with the unidentified person.

The Constable, who read the cash- book for the Investigating Officer, was not a prosecution witness.

I feel that in absence of direct evidence that the appellants were involved in the commission of offence under section 392 of the Indian Penal Code,

benefit of doubt may be extended to them and they may be acquitted of charges levelled against them. Accordingly, the appeal is allowed. The

impugned judgement and order of conviction and sentence passed by the learned Judge is set aside. The appellants are acquitted of all the charges

levelled against them and shall be released from their bail bonds. Copy of the judgement along with Lower Court Records be sent down to the trial

court at once for necessary compliance. Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all

necessary legal formalities.