Bhagirathi Singh vs State Of West Bengal & Ors.

Jay Sengupta, J.

Both these appeals being C.R.A. 149 of 2012 and C.R.A. 197 of 2012 are directed against the judgment and order dated 25thJanuary 2012 passed

by the learned Additional Sessions Judge, Fast Track 1stCourt, Burdwan in Session Trial No. 10 of 2001: Session Case No. 56 of 2001, thereby finding

the accused Sk.Sukur, Sk.Munna, Sk.Sirajul Haque Mondal and Krishna Bagdi guilty for commission of offences punishable under section 395 of the

Penal Code and sentencing them each to suffer rigorous imprisonment for 8 years and to pay a fine of Rs. 10000/- only, in default to suffer further

imprisonment for 1 year more and finding the accused Bhagirathi Singh guilty for commission of offences punishable under section 412 of the Penal

Code and sentencing him to suffer rigorous imprisonment for 8 years and to pay a fine of Rs. 10000/- only, in default to suffer further imprisonment

for 1 year more, while acquitting the other accused Tinku Bagdi from a charge under section 395 of the Code. It appears that the appeal C.R.A. 149

of 2012 has been preferred by the convicts Sk.Sukur, Sk.Munna, Sk.Sirajul Haque Mondal and Krishna Bagdi while C.R.A. 197 of 2012 has been

preferred by the convict Bhagirathi Singh.

On 15thNovember 2011 at about 15.50 hours, the informant Aditya Sikdar, a director of one Kaiser Oil Pvt. Ltd. (PW11) lodged a first information

report with the Raina Police Station that on the same day at about 01.30 hours some 30 to 40 dacoits came in a ten wheeler truck and plundered their

factory site. They captured the labourers, beat up some of them, kept them confined in rooms and looted away cash, heavy iron and steel machinery,

around 30 bags of OCL brand cement and other costly equipment. Some of their people in the meantime could go to the nearby Police Station to

verbally intimate about the incident and intimation was also given over telephone.

Investigation commenced. Subsequently, it was taken over by the CID, DRBT Cell, West Bengal. Witnesses were examined, articles were seized,

processes were undertaken to seek information of call records, accused were arrested, some stolen good and the truck involved in the dacoity were

purportedly recovered. After completion of investigation, the investigating officer PW27 submitted a charge sheet against the accused Sk.Sukur,

Sk.Munna, Sk.Sirajul Haque Mondal, Krishna Bagdi and Tinku Bagdiunder section 395 of the Penal Code and against the accused Bhagirathi Singh

under section 412 of the Penal Code.

The prosecution examined as many as 27 witnesses to establish its case. From the trend of cross-examination of the prosecution witnesses as well

as from the examination the accused under section 313 of the Code, the defence case appears to be the denial of the prosecution case.

PW1 was one of the security guards working at the factory site. He deposed that two of the miscreants approached them at the gate claiming that

there were materials in the lorry belonging to the company. Thereafter they caught hold of him and the gunmen and came inside. One of the dacoits

stood at the gate and the other snatched money and mobile phone from him and others. The looting went on for an hour. Subsequently he and others

broke open a window of the labour room and found the complex ransacked and articles looted.PWs 2 and 3 were masons working at the factory site.

They and other labourers were sleeping in the labour room of the company. The dacoits assaulted them and others at random and snatched away

mobile phones and money from them. Police came and recovered them from a room where they were kept confined. They could not identify any

miscreants. PW4 was the other security guard at the factory site during the dacoity.PW5 was an employee of the company. Although he could

identify a miscreant (Krishna Bagdi) in a test identification parade before a learned Magistrate as the one who snatched away the mobile phone from

one Gayur, he could not identify him in Court. PW6 was a labourer at the site who called up the Assistant Engineer PW8 to intimate about the incident

of dacoity.PW7 was an employee of the company at the factory site. He deposed that about 10 to 12 miscreants came and asked to open the factory

gate. Finally, they broke open the gate.

There was no electric light inside the factory complex. The accused gave him a slap and confined him and others inside a room. After the dacoits left

the place, the gunman opened the door and they could come out. His mobile phone was snatched away. It was detected that the dacoits had taken

away diesel, cements, iron rods and one Honda motor. He identified convict Sk. Sirajul Haque Mondal as one of the dacoits both in the test

identification parade as well as in the Court. He also disclosed the incidents to the informant.PW8 was the factory in-charge. But, he was attending

his duty from a guest house at Madhabdihi. The electrician PW6 informed him about the dacoity over phone. He informed the police. The police

started for the place of occurrence and he followed in a motorcycle. When they reached near the factory gate, a bomb was charged on the police

vehicle and the front glass was damaged. The police came back and returned after sometime with more personnel. By that time, the dacoits had fled.

He found some bags of cement, TMT bars, a Hero Honda pump and some iron scraps were missing. In the cross, he categorically stated that he had

seen lights burning within the complex when he came near the gate for the first time.PW9 was an employee of the company at the relevant time and

was working somewhere else at the time of deposing. The dacoits slapped him and snatched away Rs 1000/- and his mobile phone from him. They

forced him and others into a room and closed it. He stated to police that he could identify the miscreant who slapped him.

In fact, in the test identification parade and in the Court as well he identified the accused Sk.Sirajul Haque Mondal. He categorically stated that

electric bulbs were burning inside the complex at the time of incident. PW10 was also a worker at the factory site. A dacoit slapped him and he told

police that he could identify that man. Both in the test identification parade as well as in the Court, he identified the accused Krishna Bagdi as the

assailant. He too clearly deposed that at the time of incident, electric bulbs were burning inside the complex. In the cross examination, he admitted that

the miscreants were wearing clothes covering their bodies with full protection of the head.

PW11, a director of the company, was the de-facto complainant. He learnt about the incident from his Manager over phone. He admitted in the

cross that the annexure containing the list of stolen articles was not prepared on the basis of actual stock verification, but on the basis of information

available at the place of occurrence.

PW12 was a neighbour of accused Krishna Bagdi. He admitted that the police went to Krishna Bagdi’s house on 20th December 2010. He

admitted his signature on a seizure list, but stated that nothing was seized in his presence.PWs 15 and 16, two passersby were the signatories to the

seizure list dated 6thJanuary 2011 for the iron rods and materials from a make-shift bamboo shed. They signed as per instruction of the police. PW17

was a witness to the seizure list dated 19thJanuary 2011 for iron beams and materials found within a shed at Matipara. Two hand capped boys were

standing near. PW18 was a Sub-Inspector of Police who was a witness to the two seizures, both dated 13th January 2011, one for the seizure of

mobile from accused Sk. Sirajul Haque Mondal and another for the seizure of mobile phone from accused Sk.Munna while apprehending him along

with the vehicle.

PW 19 was a Sub-Inspector of Police who was a witness to several seizures. He was a signatory to the seizure list dated 20th December 2010 for the

seizure of stolen articles, especially cell phones from accused Krishna Bagdi, seizure list dated 26th December 2010 for the seizure of cell phone, sim

cards and a pocket book from the accused Sk.Sukur, seizure list dated 6th January 2011 for the seizure of iron beams, etc. as shown by accused

Sk.Sukur and as acquiesced by accused Bhagirathi Singh, the seizure list dated 9th January 2011 for the seizure of a mobile phone from the accused

Bhagirathi Singh, the seizure list dated 17th January 2011 for the seizure of the letter of authority from the car owner (PW13), the seizure list dated

19th January 2011 for the seizure of iron articles as shown by accused Sk.Munna and Sk. Sirajul Haque Mondal and the seizure list dated 25th

February 2011 for the seizure of some documents showing purchase of iron ore by the company. In the cross examination, he admitted that no seized

articles were produced before him and that no article relating to the seizure list dated 6th January 2011 was produced on that day. PW21 was a Sub-

Inspector of Police who had signed as a witness on several seizure lists. But, none of the articles allegedly seized were produced before him in Court.

PW24 was an Assistant Sub-Inspector of Police who was a witness to the seizure list dated 9th January 2011 for the seizure of a mobile phone from

Bhagirathi Singh.

PW13 was the owner of the vehicle purportedly used in the dacoity. He deposed that accused Sk.Munna used to be the driver. The police seized a

letter of authority issued by him to Sk.Munna for driving the vehicle. But, in the cross he admitted that Sk.Munna was engaged as a driver about 20 /

25 days before the seizure of truck. By taking Sk. Munna’s signature on the garage register, he had handed over the vehicle. But, this register

was not handed over to the police. He admitted that to avoid any trouble after the seizure of his vehicle, he manufactured the letter in connivance of

the police.

PW14 was the learned Magistrate holding the test identification parades. PWs 5 and 10 identified accused Krishna Bagdi while PWs 7 and 9

identified the accused SkSukur. Both the accused had complained before him of prior identification.

PW20 was a senior Executive of the Bharati Airtel Ltd. He presented the call and tower location details of some mobile phone numbers as

supplied by the authority. In the cross, he admitted that neither he had any endorsement on the documents nor any personal knowledge about the

details nor did he sign them. PW22 was an Area Manager of Reliance Communications. He presented some system generated call details although

the papers were not marked exhibit. He too did not have any personal knowledge. PW23 was the alternative Nodal Officer of the Vodafone. He too

presented some system generated call details. These papers too did not have any signature or endorsement and he also did not have any personal

knowledge about the details.

PW25 was the first investigating officer of the case. He prepared the sketch map. PW26 was the Sub-Inspector of Police who had recorded the

first information report. PW27 was the main investigating officer doing bulk of the investigation and finally filling the charge sheet. He examined

witnesses, effected seizures and obtained call and tower location details of mobile phonesof the accused. He talks about a witness Gaiur Md who

phone was snatched away and tracked. But, the said Gaiur was cited as a witness. On 6th January 2011, accused Sk.Sukur identified the iron

materials and the accused Bhagirathi Singh raised no objection in that respect. He admitted that during investigation he did not pray for test

identification parade of the seized articles.

Mr. Ashimes Goswami, the learned senior counsel appearing on behalf of the appellants in C.R.A. 149 of 2012, submitted that it is a case of

second FIR and at least the GD Entries about the prior information about dacoity given to the police ought to have been exhibited. This has prejudiced

the defence. Secondly, the framing of charge was defective and has also prejudiced the defence. The test identification parade was wrongly referred

to as if all the accused had been identified in it and there was mention about the role of cell phones. As per PW7 there was no light inside the factory

complex. As such, the evidence on identification of the accused would not help. The accused Sk.Munna was arrested with the lorry in Jamboni on

13th January 2011. As regards connecting him with the offence, PW13, the owner of the lorry, admitted that he fabricated a letter of authority in

connivance with the police. Lastly, the certificates necessary under section 65-B of the Evidence Act for the admissibility of the electronic records

regarding documents containing call details and tower locations were not produced and this rendered the materials inadmissible in evidence.

Mr. Sandipan Ganguly, the learned senior counsel appearing on behalf of the appellant in C.R.A. 197 of 2012, submitted that it was not proved

beyond doubt that the materials recovered were belonging to the company. The invoices supplied by the informant regarding purchase of iron ore

were not exhibited. If one compared the annexure to the first information report to the seizure lists Ext 6, the recovered articles appeared to be much

higher in quantity. The recovered items were not produced in Court. The investigating officer PW27 did not even place the articles seized on 6th

January 2011 on test identification parade. No previous statement of the accused was recorded under section 27 of the Evidence Act. PWs 15, 16,

witnesses to the seizure say nothing regarding presence of the accused. Bhagirathi Singh had only raised a no objection to the purported recovery and

the disclosure actually took place at the instance of the accused Sk Sukur. While the date of occurrence was 15th November 2011, the recovery of

stolen goods pertaining to the accused Bhagirathi Singh took place only on 6th January 2011, that too from near a public place. As regards seizure of

phones and call details, per se recovery of a phone that did not belong to Bhagirathi Singh from him cannot be treated as an incriminating

circumstance. PW27 did not produce any document to show that the place from where the phone was recovered was in Bhagirathi Singh’s

exclusive control. These call documents were not exhibited. More importantly, there was no certificate appended to these as required under section

65-B of the Evidence Act. In the examination of Bhagirathi Singh under section 313 of the Code neither Akbar nor Pintu were an accused as referred

to in questions 5 and 8.

Mr.Sudip Ghosh, the learned Additional Public Prosecutor submitted that as regards the identification of some of the accused, as per PWs 8 and 9,

light was there during dacoity. Dacoity did take place. Quantum of materials stolen was roughly given in the first information report. So, the actual

amount recovered could have varied a little. The lorry was seized on 13th January 2011. Even if PW13’s admission is accepted, he employed

Sk.Munna 25/26 days before the recovery and as such, the time coincides with the date on which dacoity was committed. Seizure of cell phones

clearly pint towards the guilt of the accused. Besides the call details, as regards the accused Krishna Bagdi, the Airtel produced the customer

application from. Reliance was placed on State (NCT of Delhi) vs Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600 at paragraph no 150 on

admissibility of call records without a certificate where it was held that despite non-compliance of section 65-B, secondary evidence may be led in

terms of sections 63 and 65 of the Evidence Act.

I have heard the submissions of both the parties, gone through the evidence and other materials on record and perused the decisions cited. I now

venture to discuss the questions of facts and law for arriving at a just decision.

First, the first information report does not at all evoke any suspicion. There were earlier information to the police, one over phone and one in

person. The police first tried to salvage the situation by trying to prevent the offence, but in vain. In fact, there was no suppression of fact in this

regard in the first information report either. It appears to be the first cogent and complete information so as to render it a first information report. In

any event, no prejudice can be said to have been caused by not bringing on record any prior GD entry, especially in view of the fact that there were

too much contemporaneous evidence as regards the factum of dacoity.

The quantity of stolen iron and steel articles that was roughly mentioned in the first information report was admittedly based on information

available at the site and not based on actual stock verification. The actual quantity could have varied a little. But, the contention of the learned senior

counsel of the appellant in C.R.A. 197 of 2012 that much more quantity was recovered than allegedly stolen is not borne out from the records.

As regards the purported defects in the charges framed, the accused appeared regularly in Court, were aware of the facts of the case, those

placed in test identification parades were agile enough to allege prior identification and as such, I do not think the alleged defects in the framing of

charge caused them any prejudice.

Next is the question of identification of the accused Sk. Sirajul Haque Mondal and Krishna Bagdi vis-Ã -vis existence of light in the factory

complex at the time of dacoity. PW7, an employee of the company at the factory site deposed that there was no electric light inside the factory

complex. The accused gave him a slap and confined him and others inside a room. He identified convict Sk. Sirajul Haque Mondal as one of the

dacoits both in the test identification parade as well as in the Court. If one reads his deposition carefully, it did not rule out that a light could have been

there outside or nearby so as to render some visibility. If it was indeed so dark aswould be impossible for a witness to identify an accused who slapped

him, then one has to presume there was no dacoity at all as the light would be insufficient even for looting articles. One who gets assaulted would be

more likely to remember the assailant. Moreover, PWs 6, 9 and 10 categorically vouched that they saw light ‘burning’ inside the factory

complex at the time of dacoity. PW9 was no longer an employee of the company at the time of deposing. I find no reason to disbelieve their evidence.

PWs 9 and 10 got assaulted by Sk. Sirajul Haque Mondal and Krishna Bagdi, respectively and identified them both at the test identification parade and

in Court. Their evidence also could not be shaken. PWs10’s admission that the heads of the accused were protected does not, by any stretch of

imagination, mean that their faces were also covered.

On the question of seizure of stolen goods, no prior leading statement of the accused was exhibited. The seizures do not seem to satisfy the rigours

of section 27 of the Evidence Act. But, except for the seizure dated 6thJanuary 2011 vis-Ã -vis the accused Bhagirathi Singh, the conduct of the

respective appellants may be treated as a circumstance relevant under section 8 of the Evidence Act. N this, reliance is placed on the ratio explained

by the Hon'ble Supreme Court in A N Venkatesh& another vs The State of Karnataka, AIR 2005 SC 3809 at paragraph 9.

PW17 was a witness to the seizure list dated 19thJanuary 2011 for iron beams and materials found within a shed at Matipara. Two hand capped

boys were standing near. PW 19, a Sub-Inspector of Police, was also a witness to the seizure list dated 19thJanuary 2011 for the seizure of iron

articles as shown by accused Sk.Munna and Sk. Sirajul Haque Mondal. This seizure is found rather untainted. There is no special reason to disbelieve

a police officer whether it is in the capacity of a seizure list witness.

As regards the seizure list dated 6th January 2011 for the seizure of iron beams, etc. as shown by accused Sk.Sukur and as acquiesced by

accused Bhagirathi Singh, it is a case of joint seizure and the articles were first shown by Sk.Sukur. PWs 15 and 16, two passersby were the

signatories to the seizure list dated 6th January 2011 for the iron rods and materials from the make-shift bamboo shed, but they signed as per

instruction of the police. PW19 was a witness to this seizure too. This is clearly an incriminating material against Sk.Sukur. But, a subsequent

acquiescence by the accused Bhagirathi Singh cannot be held as an incriminating circumstance against him.

Besides, there were seizures of stolen mobile phones as well. But, investigating agency should have examined the witness Gaiur whose mobile

phone was allegedly stolen and the same led to important clues.

Again the offending cellphone seized from the accused Bhagirathi Singh was found to be registered in someone else’s name and no document

was placed to show that the seizure was made from a place exclusively under the control of the said accused.

Besides the seizure of stolen goods as shown by the accused Sk.Munna, the second incriminating circumstance against him is that he was

apprehended along with the vehicle used in dacoity. PW13, the owner of the vehicle used in the dacoity, admitted in the cross Sk.Munna was engaged

as a driver about 20 / 25 days before the seizure of truck. By taking Sk. Munna’s signature on the garage register, he had handed over the

vehicle. But, this register was not handed over to the police. He admitted that to avoid any trouble after the seizure of his vehicle, he manufactured the

letter in connivance of the police. This is very damaging indeed, both for him as well as for the investigating agency. This aspect perhaps could have

been explored further. But, at the same time the witness seems to rather candidly and fearlessly admit the mischief done by him and yet point his

fingers at Sk.Munna. I agree with the contention of the learned Advocate for the State that even if PW13’s admission is accepted, he employed

Sk.Munna 25/26 days before the recovery and as such, the time covers the date on which dacoity was committed.

Lastly, we come to the issue of admissibility of the documents showing call records and call tower locations for mobile phones in absence of any

certificate as contemplated under section 65 B-of the Evidence Act. The ratio in Navjot Sandhu’s Case (supra) that secondary evidence may be

led despite non-compliance of section 65-B has now been overruled by a Three-Judges’ Bench of the Hon’ble Supreme Court in Anvar P V

vs P K Basheer, AIR 2015 SC 180 at paragraph no 20. Therefore, the documents containing call records and call tower locations of cell phones

cannot be used in evidence in the present case in the absence of the required certificate / s.

Therefore, as against the appellant Sk.Sukur, the credible evidence is the recovery of stolen goods, as against the appellant Sk.Munna, the credible

evidence are the recovery of stolen goods and that he was found driving the offending vehicle, as against the appellant Sk. Sirajul Haque Mondal, the

credible evidence are the recovery of stolen goods and the identification by witnesses / victims, as against the accused Krishna Bagdi, the credible

evidence is the identification by witness / victim.

In respect of the appellant Bhagirathi Singh, neither does the seizure list dated 6th January 2011 for stolen goods incriminate him nor are the call

records found admissible in evidence.

In view of the above discussions, I hold that the prosecution case has been proved beyond all reasonable doubts as against the appellants Sk.Sukur,

Sk.Munna, Sk.Sirajul Haque Mondal and Krishna Bagdi in C.R.A. 149 of 2012 and hence, the said appeal is dismissed and the conviction and

sentence passed by the learned Trial Court is affirmed. The period of detention suffered by these appellants during investigation, inquiry and trial shall

be set off from the substantive sentence imposed upon them in terms of section 428 of the Code. But, the prosecution has failed to prove its case

against the appellant Bhagirathi Singh in C.R.A. 197 of 2012 and hence, the said appeal is allowed, the conviction and sentence passed by the learned

Trial Court are set aside and the appellant Bhagirathi Singh is directed to be released forthwith, if in jail in connection with the instant case, if his

detention is not required in any other case.

A copy of the judgment along with the Lower Court Records maybe sent down to the learned Trial Court forthwith for information and necessary

action.

Urgent photostat copies of this judgment may be delivered to the learned Advocates of the parties, if applied for, upon compliance of all

formalities.