Krishna Kanta Border vs State of West Bengal

Partha Sakha Datta, J.—The four appeals have been preferred by the four appellants i.e. Kashinath Das (CRA 353 of 1984), Bijoy Das (CRA 416 of 1984), Adhir Ghosh (CRA 25 of 1985) and Krishna Kanta Border (CRA 441 of 1986) against the judgment and order dated 22-09-1984 passed by the learned Additional Sessions Judge, 12th Court, Alipore in Sessions Trial Case No. 1(2) of 1984 corresponding to Sessions Case No. 20(3) of 1984 convicting thereby the appellants Kashinath Das and Krishnakanta Border u/s 412 IPC, Bijoy Das u/s 395 IPC, and Adhir Ghosh @ Tota u/s 395/397 IPC and sentencing each of them to suffer R.I. for eight years on account of their respective charges.

The prosecution case is that at about 2.00 p.m. on 26th August 1983 when Smt. Gita Rani Agarwal (P.W.10) a housewife residing in her flat in the first floor of the premises No. 5, Tilok Road, Calcutta-29 was listening to the music over transistor and her husband Harish Chandra Agarwal (P.W.4) was away in his office of ''Dainik Biswamitra'', a Hindi daily by virtue of his employment as Managing Director, there was knock on the door of her flat and as soon as she heard the voice of her maid servant Maya Mistri (P.W.13) she opened the door to find five persons standing on the passage in front of the door. They entered into the flat along with P.W.13. One of the miscreants was holding a revolver while others were armed with bhojali. The miscreants pushed her inside and bolted the door from within. P.W.13 (Maya) a) was also taken inside. Immediately, the miscreants demanded money. At the point of revolver and bhojali they took her to the bed room and demanded keys of the iron safe and almirah. Telephone lines were disconnected. Meanwhile, the miscreants broke open two almirah and ransacked the articles. As she was hesitating to open the almirah and the iron safe she was assaulted by fists and blows. Out of fear she opened one almirah and the safe and they collected ornaments and valuables. They broke open the secret chamber of the safe and took three envelopes containing cash of Rs. 40,000/-. They further removed from Thakurghar three idols one of Gopalji, one of Radha & Krishna in pair with one gold stick and one gold flute. They further removed from her person gold ring, two gold bangles with Meena engravings. She could not shout because of threat held out against her and then they decamped. She immediately rushed to the second floor flat and informed her sister-in-law Smt. Vidyabati Agarwal who in turn informed her husband (P.W.10''s) over telephone. It appeared that besides a cash of Rs. 40,000/- and the idols, the other valuables looted by the miscreants included two bangles, gold ring with diamond set, National Panasonic Transistor Cassette Recorder, a pair of diamond ear tops, a necklace of white-gold with single row of diamonds and locket, two pieces of Meena engraved gold bangles, one pair of cluster diamond ear tops on white-gold, two sets of studs of four buttons each - one set of white-gold with emerald pieces on them and the other set of gold only, a velvet pillow cover. Maya (P.W.-13) told her that before 2-00 p.m. when she had gone downstairs she noticed two persons entering into the compound of the building hurriedly. They asked her about the whereabouts of Nepali Darwan who had been absenting himself for last four days. She further noticed them talking to Bablu Naskar (P.W.19), a servant of PW 10. PW 13 became scared at the behavior and had bolted the main entrance of the flat near the staircase and then she heard noise of kicks on that door and did not open out of fear. The miscreants broke open the door''s latches and got entry into the passage and asked her to call her.

This was the FIR lodged by P.W.10, Gita Rani Agarwal at 14-50 hrs. on 20-08-1983 barely an hour after the incident with the O.C., Lake P.S. who registered Lake P.S. Case No. 345 dated 20-08-2983 u/s 395/397 IPC and u/s 25(1)(a)/27 of the Arms Act. Investigation was later taken up by the Detective Department of Lal Bazar. After completion of investigation charge sheet was submitted against the appellants and one Ajit Dey u/s 395/397/412 IPC.

The learned trial Court framed charges u/s 395/397 IPC against Adhir @ Tota and Ajit Dey, Bijoy Das u/s 395 IPC, Krishna Kanta and Kashinath u/s 412 IPC and convicted the four as above, and acquitted the accused Ajit Dey of the charge u/s 395/397 IPC.

Before appreciating evidence of the witnesses the fact worth-mentioning is that in course of investigation. P.W.25 Uma Sankar Lahiri, the I.O. of the case arrested one Dipak Sarkar who was a member of the gang that committed dacoity in the flat of P.W.10 Pursuant to his statement a transistor that was allegedly taken away from the flat of P.W.10 was recovered from him in the presence of P.W.7, Swapan Kumar Sorkhel. The said recovery was made from the house of the said Dipak Kumar Sarkar under a seizure list (Ext. 4). In the course of trial P.W.10 identified the said Panasonic Transistor to be the one which was taken away by the miscreants. During investigation the Investigating Agency applied before the learned Magistrate u/s 306 Criminal Procedure Code for tendering pardon to the said Dipak Kumar Sarkar on the ground that he had agreed to make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. Pardon was granted to the accomplice and the said Dipak Kumar Sarkar accordingly turned to be an approver and has been examined as P.W.2.

The approver''s version on oath in brief is that the appellant Krishna Kanta Border disclosed to him a plan for commission of dacoity and asked him to join the gang. On 25-08-1983 the said Krishna Kanta Border came near his house with a white ambassador car when he was not at home. As a taxi driver he returned home at night. Krishna Kanta later came and told him that the dacoity would be committed on the following day. One Siju Sarkar told him that the said white ambassador car belonged to his owner and he had brought that car on the pretext of taking it to workshop. On that night accused persons i.e. Bijoy and Kashinath also came to him and it was decided by them in his presence that plan would be executed by taking the journey by that car at about noon on the day following from Sodpur. On the next day i.e. 26-08-1983 at 10-00 a.m. Bijoy came with the other accused Adhir. Bijoy told him that he (P.W.2) would drive the car with Adhir and meet their fellows at Deshapriya Park, Calcutta where they would be waiting for them. Accordingly, P.W.2 and Adhir came at Deshapriya Park near Priya Cinema Hall. Adhir got down from the car, while he remained seated inside. Then Adhir again came and took him to a place near the premises No. 5 Tilok Road near its junction with Lands down Road. At that junction the car was parked. Adhir waited on the footpath. After some time Krishna Kanta, Ajit, Bijoy, Kashi, Uday, Siju and Punam came to him. Ajit, Siju and Uday had revolver and bhojalis with them. They asked him to wait there until they come back. After 15 minutes all returned to the car. Kashinath had a bundle with him. Bijoy had a two-in-one tape recorder. All boarded the car and then proceeded towards Lands down Road and then at the request of Siju the car was taken towards Bondel gate. At Bondel gate the car was abandoned. From Bondel gate all proceeded on foot along the railway track and reached near Chittaranjan Hospital at Park Circus where they hired two taxis and proceeded to Birati and got down there. There Bijoy directed him, Adhir and Punam to go to Gholar Math. Accordingly, these three went there by a cycle rickshaw. Bijoy told him that they would go to the house of a relative near that place and would meet them. When the three were waiting at Gholar Math, Bijoy, Kashi, Ajit, Siju, Krishna Kanta and Uday came there. Bijoy gave him Rs. 4000/- and also Rs. 4000/- each to Adhir and Punam. Krishna had certain idols and those were given to Krishna for verifying the market price. The gold ornaments were then tied in a red handkerchief and were kept with Krishna who as per the decision would sell them in the market and money would be distributed amongst all and thereafter all departed from the place. Before the learned Magistrate P.W.2 also made this statement. The witness has been cross-examined at great length but the basic fabric of the prosecution case involving the appellants and others could not be demolished. In fact, the prosecution case has been built up by P.W.2.

Of the remaining 24 witnesses P.W.10, Gita Agarwal (FIR maker), P.W.13, Maya Mistri and P.W.19, Bablu Naskar have spoken about the incident that took place in the afternoon of 26.08.1983 in the light of what they have respectively seen. It is not necessary to reproduce the evidence of P.W.10 because her evidence is but an elaboration of what she had stated in the FIR but importantly she had identified in court the two-in-one tape recorder (Mat. Ext. I). The idols that were stolen from the Thakurghar (Mat. Ext. II, III, IV) were also identified to be her deities which were taken away from her flat by the miscreants at the point of revolver and other weapons. She also identified four pocket watches (Mat. Ext. XIII), gold necklace (Mat. Ext. XIV), studs (Mat. Ext. XV) collectively, small diamond and four pieces of small rubies {Mat. Ext. XVI), several pieces of green and red stones (Mat. Ext. XVII). This witness was not placed in the T.I. parade and she has given the explanation that as she was ill she could not present herself at T.I. parade.

P.W.13, Smt. Maya Mistri has corroborated the evidence of P.W.10 in material particulars. She identified the accused Bijoy Das in the T.I. parade to be a member of the group who committed dacoity. She also identified the said accused in the court. It appears from her evidence that she was also arrested by the police, taken to Lal Bazar and was produced before the court as a suspect and was released later on bail but was not charge sheeted. She left the job of maid servant of P.W.10 after the incident.

The version of P.W.19, Bablu Naskar is that at 2-00 p.m. on 26-08-1983 when he was seated in the ground floor of the building P.W.13 asked him what was the time in the watch and he told that it was 2-00 p.m. P.W.13 was about to go to the flat on upstairs when two young boys came to her and asked where the Nepali Darwan was Maya replied that he had not been attending for the last four days. Then those two boys asked him where was the lift located and he pointed out the lift to them. Then they pushed him by his neck inside the room in the ground floor which was the living room of the 6/7 servants including him and was threatened with dire consequences if he would raise shout or play any tricks. Then at the gate of the room the two stood with bhojalis and revolver. Other 6/7 servants were also kept confined in the room. This witness could not be able to come to the flat of P.W.10 and obviously could not be a witness to what took place inside the flat. He could be able to identify Adhir Ghosh as the person who accosted him with bhojali. In the T.I. parade also he had identified Adhir Ghosh. Like P.W.13 he was also taken to Lal Bazar but was let off in the night.

P.W.4, Harish Chandra Agarwal, the husband of P.W.10 is a reported witness and his evidence is not worth considering. He at the material time was in his office at Dharmatala Street and having received telephone intimating him of the commission of dacoity in his flat he asked his staff reporter P.W.3, Samir Chowdhury to inform the D.C. (South) over telephone and accordingly P.W.3, Samir Chowdhury says that as asked by P.W.4 he rang D.C. (South) over telephone and informed him of the incident.

Binoy Agarwal, P.W.5, the son of P.W.4 and P.W.10 was not present at the time of occurrence. He is a witness to the seizure of broken telephone instruments, door''s latch, a piece of velvet cloth and other articles which were seized by the police on 26-08-1983 under a seizure list (Ext. %) from the flat of P.W.10.

P.W.1, Ashoke Bhattacharya is a plan maker, and his evidence is not relevant. Similarly, P.W.6, Kanan Behari Chakraborty is a police photographer. P.W.8, Sekhar Mukherjee was simply tendered for cross-examination which was however declined. Evidence of P.W.16, Swapan Poddar, a goldsmith of Chinsurah is not at all relevant to the fact in issue. P.W.9, Dr. Soumendra Nath Ghosh examined P.W.10 and found certain injuries on her person.

P.W.11, Amar Majumdar is a witness to the seizure of idols and a cash of Rs. l,350/- on 08-11-1983 at Ghola More under Srinagar Colony from the possession of Krishna Kanta under a seizure list (Ext. 10). P.W.12, according to the prosecution is also a witness to such seizure along with P.W.11. Evidence of P.W.14, Narayan Chandra Poddar is important in this that Kashinath Das, accused brought the other accused Bijoy to him. Bijoy made over certain gold ornaments to P.W.14 who is a goldsmith at Chinsurah. According to P.W.14, he had purchased the gold from Bijoy and melted the same and the melted gold bar was seized by the police from P.W.14 under a seizure list on 13-11-1983 (Ext. 11). The said P.W.14 made a statement u/s 164 Criminal Procedure Code before the learned Magistrate. P.W.15, Binoy Kumar Das Sarkar was present in the shop of P.W.14 when police came with Bijoy and he corroborated the evidence of P.W.14.

P.W.17, Sambhu Nath Sarkar is a witness to the seizure of four watches and a Nescafe bottle containing a good number of stones of different colours against Kashinath Das near Prachi Cinema under a seizure list (Ext. 14). P.W.18, Joydev Mondal is another witness to that seizure. P.W.22, Ashim Kumar Roy, Judicial Magistrate recorded the statement of P.W.14 u/s 164 Cr. P.C. (Ext. 13), while P.W.23 Mr. Tafiquddin, another Judicial Magistrate recorded statement of P.W.2, Dipak Sarkar u/s 164 Criminal Procedure Code. The said P.W.23 also conducted T.I. parade on 22-11-1983 whereat P.W.13 Maya Mistri identified Ajit and Bijoy, while Bablu Naskar (P.W.19) identified accused Adhir. P.W.20, Kalipada Bandyopadhyay is the D.C. (South) who received the information from P.W.3, while P.W.21, Jayanta Das, P.W.24, Mihir Gupta and P.W.25, Uma Sankar Lahiri are the three successive I.Os of the case.

Out of the four appellants, the appellant Adhir @ Tota stands on a footing different from other appellants inasmuch as unlike Krishna Kanta and Kashinath no recovery of any booty or any part thereof was recovered from him. The involvement of the appellant Adhir in the commission of dacoity has been testified to by P.W.19, Bablu Naskar, a servant of P.W.4. Bablu''s evidence as against the appellant Adhir @ Tota consists in giving description of the incident relating to confinement of P.W.19 by the miscreants including Adhir in the servants'' room in the ground floor. When the two miscreants were at their asking shown the location of lift to the upstairs they pushed P.W.19 inside the servants'' room in the ground floor where besides P.W.19 some other servants were taking rest. One of the miscreants had a bhojali in his hand and the other was armed with revolver. P.W.19 claimed in his evidence that he was able to identify one accused armed with bhojali in his hand and identified the appellant Adhir Ghosh. As we find from the evidence of P.W.23, Shri Tafiquddin, Bablu Naskar identified accused Adhir Ghosh only in the T.I. parade which was held on 22-11-1983. Argument was made questioning the probative value of the T.I. parade because of the same having been held about three months after the incident and it has been submitted that there was as enough opportunity for P.W.19 to see the accused Adhir Ghosh at Lal Bazar and possibility of such view of the accused Adhir by P.W.19 being not ruled out, Adhir cannot be convicted u/s 395/397 I.P.C., particularly when no part of the booty removed by the miscreants in the commission of dacoity was recovered from him. Learned advocate appearing for the State of West Bengal strongly refused the submission stating that it cannot be the strait jacket proposition of law that any amount of delay in holding T.I. parade would render the result, even if positive, relegated to no significance, and so far as the present case is concerned, circumstances do not suggest that Adhir was shown to P.W.19 at Lal Bazar. Having heard the submissions of learned advocates for the parties and on perusal of the materials we find that though P.W.19 was taken to Lal Bazar immediately after the incident, he was not detained but was let off on the night of 25-08-1983 and Adhir was arrested as late as 31-10-1983. Therefore, it is not that there was three months'' delay in holding T.I. parade in respect of the accused Adhir. As we find from the evidence of P.W.25, soon after Adhir was arrested prayer was made for holding T.I. parade in respect of him as also other suspects and the learned Magistrate (P.W.23) was directed to hold T.I. parade by the order of the learned SDJM, Alipore and he held T.I. parade on 22-11-1983. In fact, T.I. parade was held within 21 days after the incident. Circumstances do not show that there was any possibility of Adhir being taken somewhere so as to facilitate the P.W.19 to have a view of him. There is no evidence that P.W.19 was taken to Lal Bazar or Lake P.S. on any day subsequent to the date of the incident that took place on 26-08-1983. Further, evidences do not suggest that Bablu and Adhir had acquaintance with each other since before the incident. Bablu, a servant of P.W.4 is a resident of Diamond Harbour, while the appellant Adhir Ghosh hailed from village Tarapukur under P.S. Khardah in the district of 24-Parganas (North). Gross-examination of P.W.19 does not extend to any suggestion even that Bablu and Adhir had known each other since before the incident. Thus, probative value of the T. I. parade has not been lost; and such value has been reinforced by identification of Adhir by P.W.19 in the court. Occurrence took place on 26-08-1983 and within a period of less than a year trial commenced and was concluded. Therefore, it was not impossible on the part of P.W.19 to identify Adhir Ghosh in the court. In that view of the matter, it cannot be said that the learned trial court was not justified in recording conviction against the appellant Adhir Ghosh. P.W.19''s evidence is a clinching one, it being a vivid description as to how the miscreants, Adhir included, came and detained him along with other servants in the servants'' room in ground floor of the premises at 2 p.m. on 26-08-1983 and how they were keeping on guard by standing at the gate being armed with revolver and bhojali. Bablu stood the test of cross-examination successfully and no improbability or infirmity could be attached to his testimony. Furthermore, Adhir''s involvement in the commission of crime gets support from the testimony of P.W.2, an approver who has made full and complete disclosure of the entire incident.

With regard to involvement of the appellant Bijoy Das, we find from evidence of P.W.13, Maya Mistri that at 2-00 p.m. as he came to the ground floor to see her friend Sobha two young boys came and asked her about the whereabouts of Nepali Darwan. Being afraid of them she came to first floor flat and closed the door from within. Then she went to her own room and reached her bed. A few minutes later she heard sound on the main door and found two young boys entering inside her room followed by three more young boys. They asked her to state where were the valuables kept. She pleaded her ignorance. Then the miscreants asked her to call the housewife. Then she was taken to the door of the room of P.W.10 who opened the door at her asking and then they committed dacoity. She recognized the appellant Bijoy Das to be among the miscreants who talked with her and detained her. She also identified the appellant Bijoy Das in the T.I. parade on 22-11-1983. Argument of the learned defence counsel that convict Bijoy Das was shown to P.W.13 at Lal Bazar does not appear to be tenable because occurrence took place on 26-08-1983 and on the same day P.W.13 was taken to Lal Bazar for interrogation and was arrested but long after she was released on bail. Bijoy Das was arrested only on 03-11-1983. Within a period of 19 days of the arrest of Bijoy Das T.I. parade was held in respect of Bijoy Das together with Ajit Dey and Adhir Das @ Tota. Further in the T.I. parade neither Bijoy nor Adhir did make any complaint to the learned Magistrate that witnesses were shown to them at Lal Bazar. Furthermore, evidence of P.W.2, the approver clearly goes to show that on the night of 25-08-1983 Bijoy along with other accused persons came to him and disclosed to him about the plan to be executed on the following day. Further, on the following day at about noon Bijoy along with Adhir came to him and directed him to take the car to Deshapriya Park. While Adhir took P.W.2 to Deshapriya Park by the car Bijoy and other accused persons proceeded ahead separately and met P.W.2 at Deshapriya Park in its junction with Tilok Road. Evidence of P.W.2 as has been discussed above could not be shaken at all in cross-examination. Further more it was Bijoy who made over gold to P.W.14 and he was introduced to P.W.14 by the other convict Kashinath.

With respect to the convict Krishna Kanta, he was also a member of the gang that committed dacoity in the afternoon of 25-08-1983 in the flat of P.W.10. His participation in the commission of crime is borne out from evidence of P.W.2. It was from the convict Krishna Kanta that on 08-11-1983 seizure of idols together with cash of Rs. 1350/- was effected from him at his residence at Gholar More under Srinagar Colony in presence of P.W.11 and P.W.12. P.W.10 has identified the seized idols after they were seized and produced before the court at the trial.

With respect to the appellant Kashinath, we find from evidence of P.W.2 that Kashinath was one of the members of the gang who along with the accused Bijoy, Krishna Kanta and Adhir committed dacoity and after they all returned from committing dacoity P.W.2 found a bundle wrapped by cash with Kashinath. It further appears that near Prachi Cinema at about 12 noon on 25-11-1983 seizure was made of four watches and a Nescafe bottle containing stones of different colours under a seizure list by the I.O. from the appellant Kashinath Das in the presence of P.W.17 and P.W.18. These articles (Material Ext. XIII series, Material Ext. XIV, XV, XVI and XVII) were identified by P.W.17 to be the articles which were recovered from Kashinath Das and they were also identified to be her articles by P.W.10. P.W.25 has testified to the fact that on 25-11-1983 on receipt of an information he arrested accused Kashinath Das in front of Prachi Cinema on Lower Circular Road and in the presence of the witnesses search was conducted and pocket watches and a Nescafe bottle contained a good number of stones of different colours were recovered.

Evidence as against the four appellants were clinching and unchallengeable and we find that the learned trial court rightly found Adhir guilty of the charge u/s 395/397 IPC and Bijoy u/s 395 IPC. As to Krishna Kanta. and Kashinath they were rightly convicted u/s 412 IPC.

It has been submitted by Mr. Biplab Mitra, learned counsel for the appellants that the appellants Adhir, Bijoy and Krishna Kanta have already served out the sentence, and so far as Kashinath is concerned he is on bail but having regard to the age of the convict Kashinath Das he may be shown some leniency with regard to sentence. Learned Public Prosecutor left the matter to the discretion of the Court.

We accordingly, find no merit in the appeal. While we dismiss the appeal and confirm the judgment of conviction rendered against all the appellants and sentence passed as against the appellants Adhir, Bijoy and Krishna Kanta we modify the sentence as against Kashinath Das from the period of 8 years to 5 years and a fine of Rs. 1000/- in default to suffer further R.I. for 3 months on account of charges u/s 412 IPC.

The appellant Kashinath Das who is on bail shall surrender to the learned trial court within a month from the date of this judgment in failure of which the learned trial court will take appropriate steps for his apprehension so as to have the sentence executed in accordance with the law.

A copy of the judgment along with the L.C.R. shall be sent to the learned trial court immediately.

The learned Registrar General of this court is directed to communicate forthwith operative part of the judgment to the concerned learned Trial Court under Rule 8 Chapter XI of the Appellate Side Rules of this Court for information and necessary action.

Urgent Xerox certified copies of this judgment, if applied for, be given to the parties as expeditiously as possible.

Girish Chandra Gupta, J.

I agree.