Jafarulla Laskar vs State of West Bengal

Md. Mumtaz Khan, J. - The subject matter of challenge in these appeals are the judgment, order of conviction and sentence dated May 20, 2005 and May 21, 2005 respectively passed by the Ld. Additional Sessions Judge, Fast Track, 3rd Court, Diamond Harbour, South 24 Paraganas in S.T. No. 12(5)/2004 arising out of SC No. 65(4)/2004 (GR No. 120/04). By virtue of the impugned judgment appellants Jafarulla Laskar (appellant in CRA No.410 of 2005), Abu Kalam Sk & Abu Hossain Sk @ Bhaju (appellants in CRA No.418 of 2005) and Barhan Mondal (appellant in CRA No.611 of 2005) were convicted for commissioning of the offence punishable under Section 412 of the Indian Penal Code (hereinafter referred to as I.P.C.) and were sentenced to suffer rigorous imprisonment for 10 years each and also to pay a fine of Rs. 2,000/- each in default to suffer simple imprisonment for six months each though they were acquitted from the charges punishable under Section 395/397 of the Indian Penal Code. Other 3 accused persons who also face trial along with the appellants were acquitted from the charges punishable under Section 395/397/412 I.P.C.

The case of the prosecution, as emanating from the statement of P.W.1 recorded by P.W.24, is that on January 31, 2004 at about 12 O''clock in the night while P.W.1 along with his relatives and friends were returning from Yaarpur village after completing the wedding celebration of his son Bubun by a bus bearing No. WBR-4864 through the Sirakol-Sherpur road, then at about 1.00 a.m. when their bus reached near a saw mill, some armed miscreants stopped their bus by placing timber logs in front of the bus. Thereafter 5/6 miscreants armed with pipe gun, vojali etc. boarded in the bus and by putting the pipe gun on the head of the driver took away money and other documents, which was in his custody. They also took away Rs. 2,000/- from the possession P.W.1 and his seiko wrist watch and also snatched away wrist watches, money bags, ear rings, finger rings etc. from the bridegroom party namely P.W.6, P.W.8, P.W.9 and others. Besides those miscreants there were others with them who were standing on the road in front of the bus armed with bombs and pistols and as the headlight of the bus were on, so they could be seen clearly. Thereafter dacoits who were standing on the road started shouting saying �police have come, police have come'' and charged a bomb and thereafter they all fled away.

On the basis of the above statement of P.W.1, forwarded to the Usthi P.S. through the constable 1312 Samit Sarkar, P.W.25 started Usthi P.S. Case No. 17, dated February 1, 2004 under Section 395/397 I.P.C. against unknown miscreants and the case was endorsed to P.W.28 for investigation who then investigate of the case and after completion of investigation submitted charge sheet being No. 60/2004 dated April 5, 2004 under Section 395/397/412 I.P.C. against the appellants and three others namely Azim Molla, Bablu Gazi @ Saifulla and Saquibul Sk. Charges were framed on May 18, 2004 against all the charge sheeted accused persons including the appellants under Section 395/397/412 I.P.C. and after they denied their involvement in the commission of the crime trial commenced.

Prosecution examined 28 witnesses and also produced and proved certain documents and thereafter on completion of trial and after examination of the appellants as also the other accused persons under Section 313 Cr.P.C. learned court below passed the impugned order.

Mr. Arnab Chatterjee learned Advocate for the appellants submitted that the impugned Judgment, order of conviction and sentence against the appellants cannot be sustained on the ground that there were vital contradictions and discrepancies as to the description of the articles in between the FIR and evidence adduced by the prosecution witnesses and also with regard to the identification of the articles placed in the T.I. Parade. According to Mr. Chatterjee there had been serious doubt about the reported recovery of the looted articles from the possession of the appellants as none of the seizure witnesses had supported the same. He also submitted that the evidence of P.W.16 was not reliable as his presence at the place of alleged recovery was doubtful.

According to Mr. Chatterjee factum of seizure of looted articles from the possession of appellants leading to their statements had not been proved according to the settled principles of law.

According to Mr. Sabyasachi Banerjee, the learned advocate representing the state, case against the appellants was proved on the basis of the recovery of the looted articles from their possession leading to their statements.

We have considered the submissions advanced by the learned counsels appearing for the respective parties. We have also given our thoughtful consideration to the evidence of prosecution witnesses and other materials on record for examining the propriety of the impugned judgment, order of conviction and sentence passed by the learned court below.

The learned Court below took into consideration the evidences of P.W.1 to P.W.9 to prove the commission of dacoity in the bus WBR 4864 in the night of January 31/February 1st, 2004 on Sirakol-Serpur road under Usthi P.S. as also the evidences of P.W.11, P.W.12, P.W.13, P.W.14, P.W.16, P.W.21, P.W.23 and P.W.26, the witnesses to the seizure, besides the evidences of P.W.27, the Judicial Magistrate who conducted T.I. Parade of the seized articles and P.W.28, the I.O. to arrive at a conclusion that it was the appellants from whose possession a portion of the looted booties was recovered and have thus committed an offence punishable under section 412 I.P.C.

Regarding question of contradictions and discrepancies in the FIR and the depositions of witnesses as to the description of the article, it is the settled proposition of law that the FIR need not be an encyclopaedia of all the facts and circumstances on which the prosecution relies.

Reference may be made to the decision of Jitender Kumar v. State of Haryana reported in (2012) 6 SCC 204. Similarly, with regard to contradictions and discrepancies in the depositions of witnesses, it is well settled that there are bound to be some discrepancies between the depositions of different witnesses when they speak in details, and unless the contradictions are of material dimension, the same should not be used to jettison the evidence in its entirety. While minor discrepancy or variation in evidence will not make the prosecution case doubtful, contradiction in the statement of witness is fatal for the case. Reference may by made to the decision of State of Himachal Pradesh v. Raj & Anr. reported in (2000) 1 SCC 247.

In the case in hand, it was evident from the evidences of P.W.1 to P.W.9 that they had fully corroborated the FIR (Ext.11) relating to commission of dacoity in the bus WBR 4864 in the night of January 31/February 1st, 2004 on Sirakol-Serpur road under Usthi P.S.by placing logs in front of the bus and looting away of cash, wrist watches, ear rings, finger rings etc. by showing arms from the bridegroom party members present in the bus. According to P.W.1, dacoits snatched away his wrist watch (Seiko 21 Jewels) and cash of Rs.2000/-, one money purse with paise, one ladies shawl, keys of the dwelling house and shop from P.W.3, one wrist watch from P.W.5, gold ear ring and gold churi from P.W.6, three cell torch light (Eveready) and Rs.1000/-from P.W.7, one gold plated silver ear ring from P.W.8, cash of Rs.720/-from P.W.9 and from many others. According to P.W.2, conductor of the said bus, miscreants snatched away Rs.1300/-from him. According to P.W.3 miscreants snatched away one leather bag, one woollen chadar, key of his house and cash of Rs.30/-kept in the leather bag from him. According to P.W4, driver of the said bus, miscreants snatched away his wrist watch.

According to P.W.5 miscreants snatched away his wrist watch. According to P.W.6 miscreants snatched away one piece gold ear ring and one pair of gold churi from her. According to P.W.7 miscreants snatched away his three cell torch light and cash of Rs.1000/-from him. According to P.W.8 miscreants snatched away one gold plated silver ear ring from him.

According to P.W.9 miscreants snatched away money purse containing Rs.700/-from him. Admittedly, none of the appellants were identified by any of the witnesses to be the miscreants who committed the said dacoity.

According to P.W.28, I.O., on February 2, 2004 at 20.05 hrs he arrested appellant Abu Kalam Sk. and recovered one white dial Seiko brand wrist watch, one grey colour handkerchief containing Rs.200/- of the denomination of Rs.100/-each, one another blackish colour handkerchief containing Rs.200/- of the denomination of Rs.100/-each, one silver like necklace, one yellow-blue colour money bag containing Rs.715, one small colour money bag containing fifteen pieces of Rs.5/- coin, one white branded casio wrist watch from his house as being produced by him and accordingly he seized the same in presence of witnesses Swapan Purkait (P.W.21) and Saidul Islam by a seizure list, Ext.9/1.He also identified Mat. Ext. I (Seiko wrist watch) & Mat. Ext IV (casio wrist watch). Interestingly, P.W.21 did not support the above claim of the I.O. while Saidul Islam was not examined by the prosecution.

According to I.O. Abu Kalam was taken into police custody and during police custody he recoded his statements and leading to his statements(Ext.18) he went to his house where from he recovered black dial wrist watch (Nike) fitted with plastic band(Mat Ext.IX). He also claimed that accused Abu Kalam also made another statements (Ext.22, 23) on February 2, 2004 and leading to his statements he recovered and seized (Ext.5/5) in presence of witnesses Azimuddin Sardar (P.W.13) and Ananda Gayen (P.W.16) but did not specify what articles were recovered.

Be that as it may, both P.W.13 and P.W.16 had denied recovery of any such articles from the house of the appellant Abu Kalam in their presence. Even no such articles were shown to them for their identification. To add further, I.O. had claimed recording of statements (Exts.18, 22 and 23) of accused Abu Kalam on February 2, 2004 but Ext.18 and Ext. 23 shows recording of the same on February 9, 2004.

There was no explanation what necessitated the I.O. to record two statements of the same accused on the same day.

P.W. 28, I.O., had also claimed that on February 2, 2004 at 21.05 hrs he arrested Bhaju @ Abu Hossain sk. and recovered one white colour plastic bag containing Rs.4460/-and one yellow banded Sona wrist watch from his house on being produced by him and he seized the same by a seizure list (Ext.4/2) in presence of witnesses. He identified Mat. Ext.VI (Yellow band Sona wrist watch) to be the article recovered from possession of accused Bhaju @ Abu Hossain sk. Surprisingly,the witnesses to the reported seizure namely P.W.11 and P.W.12 did not support the above claim of the I.O. According to him Bhaju was taken into police custody and during police custody he recorded the statements of accused Bhaju and leading to his statements (Ext.17) he went to his house where from accused Bhaju produced one black dial Omex Quartz steel band wrist watch and one black band wrist watch (style) from the drawer of a table of his house in presence of witnesses Azimuddin Sardar (P.W.13) and Ananda Gayen (P.W.16) and accordingly he seized the same by a seizure list (Ext.5/4). He identified Mat Exts.VII & VIII to be the wrist watches recovered by him. Both P.W.13 and P.W.16 had denied recovery of any such articles from the house of the appellant Bhaju in their presence. Even no such articles were shown to them for their identification.

According to P.W.28, I.O., on March 23, 2004 he arrested Barhan Mondal and forwarded him to court with a prayer for police custody which was granted and accordingly during P.C. period the said accused made statements and leading to his statements (Ext.19) he recovered one ladies money bag, one red rexin money bag and one Casio quartz wrist watch from the bed room of the said accused in presence of witnesses Hari Mohan Naskar (P.W.23) and Hafijul Mallick which he seized by a seizure list (Ext.10/1). He further deposed after recovery, the said accused also made another statements (Ext.20). He identified Mat. Exts. X, XI and XII to be the articles recovered from the house of accused Barhan Mondal. Interestingly, P.W.23 did not support the above claim of the I.O. and Hafijul Mallick was not examined by the prosecution. Even no such articles reportedly seized in his presence was produced before him for identification.

According to P.W.28, I.O., on February 6, 2004 he arrested Jafarulla Laskar and forwarded him to court with a prayer for police custody which was granted and accordingly during P.C. period the said accused made statements and leading to his statements (Ext.21) he recovered one steel brand ladies wrist watch, one black brand wrist watch(Reiko),one black brand wrist watch(RICCH) quartz, one ladies black brand classic quartz and one black branded ladies wrist watch (Sona) quartz from inside drawer of his table and accordingly he seized the same by a seizure list (Ext.6/1) in presence of witnesses Qutubuddin Laskar (P.W.14) and Manirul Laskar (P.W.26). He identified Mat. Exts. XIII, XIV, XV and XVI to be the articles recovered from the house of accused Jafarulla Laskar. Surprisingly, the witnesses to the reported seizure namely P.W.14 and P.W.26 did not support the above claim of the I.O. nor any such articles were produced before them for identification. Learned trial court did not believe the I.O. relating to recovery of looted articles from the possession of accused Azim Molla as being not supported by any of the seizure witnesses. Similarly, I.O. was not believed by the learned trial court with regard to the recovery of looted articles from the possession of accused Bablu Gazi and Sakibul Sk. in the absence of any confessional statements leading to the recovery but the same I.O. was believed by the learned court below in respect of reported recovery from the possession of the appellants in spite of the fact that seizure witnesses did not support the factum of seizure by the I.O. There can not be different yardsticks for different persons.

Moreover, it was evident from the evidence of P.W.27, the Judicial Magistrate, that he conducted T.I. Parade of the seized articles on February 13, 2004 (Ext.14), March 5, 2004 (Ext.13), March 30, 2004 (Ext.15) and April 3, 2004 (Ext.16) in his Ejlas as also in chamber but from Exts.13, 14 and 15 it appears that number and description of the articles placed in the T.I. Parade were not given there. From Ext.14, it appear that on February 13, 2004 only P.W.15 and P.W.16 attended the T.I. Parade and they identified one wrist watch (Sona) each but from the evidence of P.W.15 it appears that he was not the member of the bridegroom party nor his name figure in the FIR or from the statements of P.W1 or other witnesses, so his presence in the bus in question appears to be doubtful. The other witness P.W.16 did not whisper about his identification of any articles in any T.I. Parade and also denied his knowledge about commission of any dacoity on the relevant night on sirakol-Sherpur road. He was even not challenged by the prosecution on this score. From Ext.13, it appear that on March 5, 2004 only P.W.1, P.W.18 and one Bhaskar Karmakar attended the T.I. Parade and P.W.1 identified one wrist watch (Seiko), P.W.18 identified one money bag and Bhaskar Karmakar identified one wrist watch (Nike) but from the evidence of P.W.18 it appears that he pleaded his ignorance about commission of any dacoity on the relevant night and also denied identification of any articles in the T.I. Parade. He was even not challenged by the prosecution on this score. Bhaskar Karmakar was even not examined by the prosecution nor there was any explanation for the same. P.W.1 though identified one wrist watch (Seiko) in the T.I. Parade but as it had already been pointed out that number and description of the articles placed in the T.I. Parade were not given there nor the seizure of the wrist watch in question was supported by the seizure witnesses.

From Ext.15, it appear that on March 30, 2004 only P.W.23 and one Hafijul Mallick attended the T.I. Parade and they identified one wrist watch(Casio) each but from the evidence of P.W.23 it appears that he had not whispered about commission of any dacoity and/or identification of any articles in any T.I. Parade. He was even not challenged by the prosecution on this score while Hafijul Mallick was even not examined by the prosecution nor there was any explanation for the same. From Ext.16, it appear that on April 3, 2004 only P.W.3 and P.W.9 attended the T.I. Parade where two Casio wrist watches, small and big, were placed in T.I.P. and they identified one wrist watch each but from the evidence of P.W. 3 as also P.W.9 it appears that they had not whispered about snatching of any of their wrist watch in the said dacoity nor there was any whisper by them about their identification of any wrist watch in any T.I. Parade. In such circumstances their identification of wrist watches in the T.I. Parade becomes doubtful. P.W.27 had admitted that column nos.1, 3, 4 and 8 were not filled up by him nor he could remember who filled up the same. Column no.1 relates to the date of holding T.I. Parade, column no.3 relates to the witnesses attended T.I. Parade, column no.4 relates to the articles placed in the T.I. Parade and column no.8 relates to the reference of the case in connection of which T.I. Parade was held. He also admitted that there was no note in the T.I. Parade sheet who placed the articles for identification in the T.I. Parade.

All these shows that T.I. Parade was not held in a proper way. It was evident from the seizure lists (Exts. 4/2, 5/4, 5/5, 6/1, 9/1 and 10/1) that several wrist watches of different make besides other articles were recovered by the I.O. but there was no evidence on record that all those articles were placed in the T.I. Parade and/or the articles identified in the T.I. Parade were actually placed during trial for identification by the witnesses. All these show vital contradictions and lacuna in the evidence of the prosecution witnesses. In our opinion the above contradictions are very fatal for the prosecution case which escaped the attention of the learned court below.

Learned court below completely overlooked the above contradictions and was, therefore, in error in ignoring the above aspect of the matter.

Accordingly, the judgment, order of conviction and sentence can not be sustained in law due to the failure on the part of the prosecution to prove the guilt of the appellants beyond all reasonable doubt. As such, the impugned judgment, order of conviction and sentence are quashed and set aside.

These appeals are allowed. The appellants are set at liberty from this case. The appellant Abu Hossain Sk @ Bhaju who is in custody be released from custody forthwith, if he is not required to be detained in any other case.

Copy of this judgement along with the lower court records be sent down to the trial court immediately by special Messenger for information and taking necessary action.

Urgent photostat certified copy of this judgement, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.

Debasish Kar Gupta, J. - I agree.